[00:00:04] Speaker 03:
All right, looks like we're about ready.

[00:00:08] Speaker 03:
Next case is 23-3241 Messerly versus AW Distributing.

[00:00:14] Speaker 03:
Ms.

[00:00:14] Speaker 03:
French-Hodson?

[00:00:16] Speaker 00:
That's correct.

[00:00:17] Speaker 00:
Yes, Your Honor.

[00:00:17] Speaker 00:
Ruth Ann French-Hodson, representing plaintiff appellant Robin Messerly.

[00:00:21] Speaker 00:
And I'd like to reserve two minutes for rebuttal.

[00:00:24] Speaker 00:
May it please the court?

[00:00:26] Speaker 00:
This court should recognize that in adopting the broad modified comparative fault statute

[00:00:33] Speaker 00:
Kansas abolished contributory negligence and all analogous defenses dependent on plaintiff's culpability as complete bars.

[00:00:42] Speaker 00:
Kansas courts have set out detailed guidance on the mechanics and social policy in subsequent decisions.

[00:00:48] Speaker 00:
The guiding text and policies of Kansas products and comparative fault law should govern the choice of whether to recognize illegality as a total defense to a product's claim after the adoption of comparative fault.

[00:01:00] Speaker 02:
So in your opinion,

[00:01:04] Speaker 02:
the illegality should just be considered when apportioning the fault between the person who suffered the injury and the maker of the spray cans.

[00:01:15] Speaker 00:
That's correct.

[00:01:16] Speaker 02:
So if the person was committing a crime, the jury could say, oh, you know, it's really 75% of this related to this person's commission of the crime.

[00:01:29] Speaker 02:
But there was some negligence on behalf of the CAN manufacturer, so we're going to apportion 25% to them.

[00:01:36] Speaker 00:
Correct.

[00:01:36] Speaker 00:
And if that's the apportionment that the jury decided, then there would be no recovery for the plaintiff, because the plaintiff's culpability would be greater than that of the manufacturer.

[00:01:46] Speaker 02:
How about 51% on the CAN manufacturer?

[00:01:48] Speaker 00:
Then under Kansas modified comparative faults, then there would be recovery for the plaintiff, but the damages would be reduced by the amount of culpability

[00:01:59] Speaker 00:
for the, in this case, plaintiff's son, Kyle Messerly, but the recovery to Robin Messerly would be decreased by the amount of culpability for the plaintiff.

[00:02:10] Speaker 00:
And that is really in keeping with how Kansas, all of the other kind of listed analogous defenses that Kansas has considered in products cases, unreasonable use, assumption of risk,

[00:02:24] Speaker 00:
all of those, and now in the pattern instructions, when you get to comparative fault, you get instructed that if any of those previous reasons for culpability, unreasonable use, if that had a causal connection, you would consider that as part of your comparative fault analysis.

[00:02:40] Speaker 00:
And that's just typically now how Kansas governs those all or nothing defenses.

[00:02:45] Speaker 02:
How would your position apply in this fact pattern?

[00:02:48] Speaker 02:
Say I went over to Judge Timkovich's house to break in

[00:02:54] Speaker 02:
to steal his wife's jewelry.

[00:02:57] Speaker 02:
And when I got in, he had spilled a glass of water on the floor the night before.

[00:03:04] Speaker 02:
And because he was tired, didn't want to clean it up.

[00:03:07] Speaker 02:
And I slipped and fell and injured my tailbone.

[00:03:11] Speaker 02:
And a jury determined that 51% of the fault of that fall was Judge Timkovich for not cleaning up the water.

[00:03:19] Speaker 00:
I think that actually goes a little bit into what

[00:03:23] Speaker 00:
came in the Kansas Trial Lawyer Association's amicus brief, which is that Kansas does recognize duties to trespassers in certain circumstances.

[00:03:32] Speaker 00:
So we'd start with the duty.

[00:03:34] Speaker 00:
And if there was a duty there, then you would have the duty.

[00:03:38] Speaker 00:
And then it would be a comparison fault.

[00:03:40] Speaker 00:
And that is a choice that the Kansas courts have made on how to apportion fault when both parties have some culpability

[00:03:48] Speaker 00:
And in the case of trespassers, we don't have that as much in the products context, but it is also one in which there is a clear Kansas policy on trespassers and the duties to trespassers that allows for even criminal trespassers that there may be a duty of care given to them if it's reasonably foreseeable.

[00:04:11] Speaker 00:
The similar principles exist here as well.

[00:04:14] Speaker 02:
So the answer to that was that I get 51% of my damages from Judge Timkovich?

[00:04:19] Speaker 00:
Correct.

[00:04:19] Speaker 03:
OK.

[00:04:20] Speaker 03:
I object.

[00:04:22] Speaker 03:
Is the comparative fault regime, is that a legislative creation, or is that by the Kansas Supreme Court?

[00:04:30] Speaker 00:
That's a really good question, and it's actually a little bit of both.

[00:04:34] Speaker 00:
So Kansas, through both legislative and judicial decision making, has established

[00:04:39] Speaker 00:
comparative fault.

[00:04:40] Speaker 00:
So the legislature adopted 60-258A, which allows for modified comparative fault for the negligence claims, and it would cover cases where contributory negligence had previously applied.

[00:04:54] Speaker 00:
In Ari and Dondo, the Kansas Supreme Court said that that meant contributory negligence or any of the analogous defenses.

[00:05:03] Speaker 00:
In the Kennedy case, and subsequently in the Forsyth case,

[00:05:08] Speaker 00:
The Kansas Supreme Court then extended this policy and adopted the modified comparative faults of 6258A for strict liability product cases and for implied warranty cases.

[00:05:21] Speaker 03:
Were products liability and strict liability, was that a creation of the Supreme Court, or was that also a legislative pronouncement?

[00:05:29] Speaker 00:
That was a creation of the Kansas Supreme Court.

[00:05:32] Speaker 00:
So in foresight, they explicitly say that they are adopting 625A.

[00:05:37] Speaker 00:
I'm sorry, 60258A.

[00:05:40] Speaker 00:
They're explicitly adopting the statutory scheme into strict liability and implied warranty cases, but they are judicially adopting it.

[00:05:50] Speaker 00:
It's not a legislative adoption.

[00:05:53] Speaker 00:
In Forsyth, they mention, the Kansas Supreme Court mentions that it wouldn't make sense to have a different policy for negligence or strict liability because you may come into cases where there may be negligence of some parties, and in fact, that's

[00:06:07] Speaker 00:
what happened in Kennedy.

[00:06:08] Speaker 00:
There might have been negligence in spraying of the chemical, but there was strict liability of the manufacturer.

[00:06:14] Speaker 00:
And so it makes sense that everybody had a comparative fault.

[00:06:17] Speaker 00:
And so it was a judicial policymaking in Kennedy to adopt modified comparative faults.

[00:06:24] Speaker 03:
Is it currently the law of Kansas that the illegality defense does apply to torts?

[00:06:31] Speaker 00:
That is not clear.

[00:06:35] Speaker 00:
cases where illegality was mentioned that I can find in any type of tort cases were the Orr case and the Fleming's Cole cases from over 100 years ago.

[00:06:51] Speaker 00:
And those were negligence cases.

[00:06:54] Speaker 00:
So are you saying it's never been clearly established?

[00:06:57] Speaker 00:
Correct.

[00:06:58] Speaker 00:
There is no instance of illegality being used in a products case.

[00:07:02] Speaker 00:
The only other case that we happen to have that is

[00:07:05] Speaker 00:
post the adoption of comparative fault as a legal malpractice case.

[00:07:09] Speaker 00:
And in that case, the court was never even briefed or deciding on whether such a defense exists or how it would have been affected by the comparative fault regime.

[00:07:21] Speaker 00:
But we have none in the products context and none that defendants can point to or the district court could point to or illegality was a defense to product liability cases.

[00:07:34] Speaker 03:
And how can we be confident that our eerie guess on what the Kansas Supreme Court would do?

[00:07:40] Speaker 03:
In fact, I'm a little surprised you didn't start Kansas Court since that's what we're talking about.

[00:07:47] Speaker 00:
Yes.

[00:07:47] Speaker 00:
And I do want to say that I don't know if we can be confident exactly what the Kansas Supreme Court would do.

[00:07:56] Speaker 00:
And that is why we filed the motion to certify.

[00:07:59] Speaker 00:
And that would be our first request for this panel is to certify.

[00:08:04] Speaker 00:
answer and the district court acknowledged that, that it was predicting because it could find no cases that would indicate one way or the other and was predicting based on the policies of other states.

[00:08:15] Speaker 00:
And so our first request is for you to certify to the Kansas Supreme Court given the important policy issues that are at play and the novel issue here.

[00:08:25] Speaker 00:
But given that that is fully in your discretion, I also want to, you know, handle the substantive basis if you decide to.

[00:08:32] Speaker 03:
What do you think the strongest

[00:08:34] Speaker 03:
case for your positions from other jurisdictions?

[00:08:38] Speaker 00:
Probably the strongest case is the other case with a similar statutory scheme.

[00:08:44] Speaker 00:
It's the Ariadondo case out of Texas.

[00:08:46] Speaker 00:
A little confusing, because there is both an Ariadondo decision in Kansas and one in Texas.

[00:08:52] Speaker 00:
But there, the Texas Supreme Court was considering a modified comparative fault statute again, and then was asked very explicitly whether that broad modified comparative fault statute

[00:09:03] Speaker 00:
abrogated the defense of, I can't remember there if it was called illegality or unlawful conduct, but one of those kind of similar defenses, and decided that the broad statutory language left no room in that case for these all or nothing defenses, such as the unlawful conduct.

[00:09:25] Speaker 00:
So I think that's the most analogous, but I think that's also a decision that different state courts have decided different things, both about

[00:09:33] Speaker 00:
The interplay between modified comparative faults and the statutes, I think we have a lot of good indications from Kansas that they have a similar policy to Texas, but courts have come out different ways.

[00:09:45] Speaker 00:
They have also fashioned these defenses in very different ways.

[00:09:48] Speaker 00:
You could look at New York, Connecticut, some of the states that defendants point to, Iowa, all of them restrict the use of their unlawful conduct defenses to major crimes, felonies.

[00:10:03] Speaker 00:
And there's no indication that something as here, a misdemeanor, a class B misdemeanor would rise to the kind of level that even in the states that do apply, some version would grant here.

[00:10:17] Speaker 00:
And so I think there is very much room for us not to predict if such a defense is going to be adopted, that it would look like the one that was adopted by the district court.

[00:10:29] Speaker 00:
I mean, if you take what the district court said, that any

[00:10:32] Speaker 00:
injury that arises out of illegal conduct, that would mean that a mother, you know, rushing to her child's daycare, but following another vehicle too closely, a misdemeanor in Kansas, she would be barred from suing a vehicle manufacturer for faulty airbags.

[00:10:48] Speaker 00:
The kind of rule that we have from the district court.

[00:10:50] Speaker 01:
Is that right?

[00:10:51] Speaker 01:
I thought that there had to be proximate cause.

[00:10:54] Speaker 00:
There has to be a causal connection.

[00:10:56] Speaker 00:
And in the instance that I'm discussing here,

[00:11:01] Speaker 00:
If you're following too closely and you got into a wreck, one of the causes may be following too closely, but it's also part of the injury would have been the airbag failing to deploy.

[00:11:10] Speaker 02:
And in a normal comparative fault, both of those... Wouldn't it have to be your airbag that the illegal conduct caused the airbag not to deploy under your hypothetical?

[00:11:29] Speaker 00:
I'm not sure if it would.

[00:11:31] Speaker 02:
Because if your illegal conduct caused the crash, that's different than the illegal conduct causing your airbag not to deploy.

[00:11:42] Speaker 02:
What if in that situation the allegation was that you had unlawfully disabled your airbag?

[00:11:53] Speaker 02:
Wouldn't that be closer?

[00:11:54] Speaker 00:
It might be closer, and that might be one.

[00:11:57] Speaker 00:
Again, I think there would be fault involved.

[00:12:01] Speaker 00:
But the rule that the District Court set forth was that the injury just had to arise from illegal conduct.

[00:12:11] Speaker 00:
It didn't necessarily have to be involved.

[00:12:13] Speaker 00:
And in fact, that kind of gets a little bit to how Empari Delecto used to apply, which was that there had to be some kind of joint conspiracy or joint action between

[00:12:24] Speaker 00:
the parties for it to apply and not just simply unconnected defenses.

[00:12:30] Speaker 00:
And so I think the kind of broad role that we have here has not ever shown up in Kansas courts, but also one in which takes away what Kansas has said is a really broad role for juries in deciding those types of questions of causation and fault.

[00:12:50] Speaker 00:
more interesting things is that in going back through all of the cases, part of this, you know, it extends to duty.

[00:12:57] Speaker 00:
The duty exists even for criminal trespassers.

[00:13:00] Speaker 00:
In the proximate cause context, the Kansas Supreme Court has decided that proximate cause no longer has any force in Kansas products cases.

[00:13:11] Speaker 00:
It is simply a causal connection and not looking at.

[00:13:13] Speaker 01:
Do you take issue with the pharmacist cases?

[00:13:17] Speaker 00:
I think the pharmacist cases are different in a couple different ways.

[00:13:21] Speaker 01:
Do you take issue with them?

[00:13:23] Speaker 01:
In other words, are they wrongly decided or do you make room with your rule where they are correctly decided?

[00:13:30] Speaker 00:
It's hard to say whether they are wrongly decided.

[00:13:32] Speaker 00:
They're decided on other courts' laws.

[00:13:35] Speaker 01:
Well, you have two sides of illegality there, right?

[00:13:38] Speaker 01:
You have the person who's getting the OxyContin

[00:13:42] Speaker 01:
and you have the person who's selling it, both knowing that something illegal is happening.

[00:13:48] Speaker 01:
And in that instance, no liability, right?

[00:13:53] Speaker 01:
The illegality defense defeats a civil suit.

[00:13:57] Speaker 00:
That would be the impari delicto defense.

[00:13:59] Speaker 00:
And usually how that weighs is you have to have joint conspirators.

[00:14:02] Speaker 00:
And that was what happened in most of these pharmacist cases, is there was a pharmacist and then the person kind of working in a joint scheme with them.

[00:14:11] Speaker 00:
And so you had joint conspirators that were both working voluntarily and freely together.

[00:14:16] Speaker 00:
And no civil liability.

[00:14:18] Speaker 00:
Right.

[00:14:18] Speaker 00:
And then you weigh their culpability and to determine.

[00:14:21] Speaker 01:
I remember the cases, but I'm still waiting as far as, do you agree that there's no civil liability in that instance?

[00:14:29] Speaker 00:
I don't think Kansas recognizes them for products cases.

[00:14:34] Speaker 01:
Is it odd to say that in that instance where you have two culpable criminal parties, no liability, but in this one where you only have one and a relatively innocent, if you're using the product correctly, manufacturer that there is liability?

[00:14:52] Speaker 01:
That seems odd to me.

[00:14:55] Speaker 00:
I would push back a little bit on the relatively innocent manufacturer.

[00:15:00] Speaker 01:
Compared to the pharmacist.

[00:15:02] Speaker 00:
Given here the allegations of long-standing knowledge of this particular use of the product and continuing to put in a highly addictive propellant that can be deadly on the first use, despite other alternatives being available, taking on a duty to put in a bitter end that does not work, that could have prevented the very injury here.

[00:15:23] Speaker 00:
and then not warning in a way in which case we get a presumption.

[00:15:27] Speaker 00:
I think, though, in Kansas, there is no indication that the empire delicto would apply for those cases either.

[00:15:38] Speaker 00:
We don't have that as well.

[00:15:40] Speaker 00:
And that defense has kind of been left behind by defendants in their briefing here.

[00:15:45] Speaker 03:
All right.

[00:15:47] Speaker 03:
Your time's expired.

[00:15:49] Speaker 03:
We took it all.

[00:15:49] Speaker 03:
I'll give you a little bit of rebuttal, though.

[00:15:51] Speaker 03:
Thank you.

[00:15:54] Speaker 03:
Mr. Nichols.

[00:15:57] Speaker 04:
Good morning, and may it please the court.

[00:15:59] Speaker 04:
My name is Stephen Nichols on behalf of the defendant's appellees.

[00:16:02] Speaker 04:
I'm also here with Scott Kaiser on behalf of Falcon, Jared Harp on behalf of Narazza, and Mitchell Malkowski on behalf of the AW defendants.

[00:16:11] Speaker 04:
The issue before this court is both narrow and straightforward.

[00:16:15] Speaker 04:
Whether a plaintiff can assert tort claims against a manufacturer

[00:16:19] Speaker 04:
when those claims arise from the user's illegal act of huffing computer duster in violation of Kansas criminal law.

[00:16:29] Speaker 04:
The district court correctly recognized that the illegality defense in Kansas barred those claims.

[00:16:36] Speaker 04:
And we asked this court to affirm the district court's decision for two reasons.

[00:16:41] Speaker 04:
First, Kansas recognizes the legality defense, and it has not been abrogated.

[00:16:46] Speaker 04:
by the adoption of comparative fault in 1974, nor the adoption of the Kansas Product Liability Act in 1981.

[00:16:54] Speaker 03:
And second, has there been any legislative activity in this area for the illegality defense?

[00:17:02] Speaker 03:
Proposed statutes or what have you?

[00:17:05] Speaker 04:
From our review, there has not been, your honor, although certainly there are other states that have codified the illegality defense by statutes.

[00:17:14] Speaker 04:
Kansas, like New Mexico, for example, recognizes illegality or the wrongful conduct doctrine in New Mexico under the common law.

[00:17:24] Speaker 03:
The same question I asked your opponent, and that is the best case from another jurisdiction that lays forth the

[00:17:35] Speaker 03:
policy and the principle.

[00:17:37] Speaker 04:
I think there's two, and I think there's one recently from this circuit, the Inge v. McClellan decision is a case that specifically identified whether the wrongful conduct or wrongful acts doctrine in New Mexico had been abrogated by comparative fault there in New Mexico, a pure comparative fault statute had been adopted.

[00:17:58] Speaker 04:
Looking at that decision, Inge

[00:18:00] Speaker 04:
quoted from the De Smet decision in New Mexico in 1950s decision and found that the wrongful conduct doctrine was compatible with the adoption of comparative fault in New Mexico.

[00:18:19] Speaker 03:
Do any of those other states allow the illegality defense to apply to a misdemeanor?

[00:18:27] Speaker 04:
Your Honor, some of the states that have codified it by statute, we acknowledge, have made the policy decision to limit the application of the legality defense to felonies.

[00:18:38] Speaker 04:
However, we have supporting authority from Kansas, the Richards decision, albeit old, did apply the legality defense in the case of a misdemeanor violation of a statute.

[00:18:51] Speaker 04:
So there is authority in Kansas for the application

[00:18:55] Speaker 04:
of the legality offense on the face of the complaint here.

[00:19:01] Speaker 04:
Moreover, in the Inge decision, I don't believe it was ever specified whether it was a felony or misdemeanor conduct that the plaintiffs whose claims were barred and affirmed in the Tenth Circuit on a motion to dismiss whether that conduct was a felony or misdemeanor.

[00:19:22] Speaker 04:
So moving into my first point, Kansas does recognize the illegality defense.

[00:19:27] Speaker 04:
And as cited in our briefing, we've identified at least six cases both by the Kansas Supreme Court and the Kansas Court of Appeals that have applied that or recognized the doctrine in very narrow circumstances.

[00:19:39] Speaker 04:
Certainly, it has been recognized both in the Orr, the Richards, and the Bakerley decisions by the Kansas Supreme Court.

[00:19:46] Speaker 04:
but also Kansas Court of Appeals decisions after the adoption of comparative fault, albeit some of those decisions were in the context of intentional tort claims or insurance indemnification claims, as plaintiff correctly points out.

[00:20:00] Speaker 04:
But certainly, it has been recognized in a legal malpractice case as recently as 2013 by the Kansas Court of Appeals.

[00:20:12] Speaker 04:
The legality of defense does apply in Kansas

[00:20:16] Speaker 04:
And inciting the American jurisprudence towards Superior F92 and Bakerly, you can find the supporting policy rationale for that rule in Kansas, that general policy being the court should not permit a person to take advantage of his own wrong or to found any claim on his own iniquity.

[00:20:38] Speaker 03:
As the Kansas Supreme Court addressed any of these all or nothing defenses since the adoption of comparative fault

[00:20:47] Speaker 04:
They have, Your Honor, and I think the Simmons v. Porter decision from 2013 is a useful example of the difference between the assumption of the risk doctrine in all or nothing defense that the Kansas Supreme Court there held was abrogated by the adoption of comparative negligence.

[00:21:04] Speaker 04:
In reaching that decision, the Kansas Supreme Court surveyed many other states that had modified or abrogated their

[00:21:13] Speaker 04:
assumption of the risk doctrine based on the adoption of comparative negligence or comparative fault.

[00:21:20] Speaker 04:
Some of those decisions specifically, citing a New Mexico decision, the Galtenieri case from 2000, excuse me, cited a New Mexico Supreme Court case that did modify the assumption of the risk doctrine.

[00:21:39] Speaker 04:
However, as this court is aware,

[00:21:41] Speaker 04:
the wrongful conduct doctrine continues to apply in New Mexico even after that modification of assumption of the risk.

[00:21:48] Speaker 04:
And I think that makes sense based on the policy distinction that the Kansas Supreme Court has recognized, that this court has recognized in applying New Mexico law that the general policy of the court's being not to prepare a person to take advantage of their own wrong.

[00:22:06] Speaker 04:
So I think inciting both the New Mexico decision recognizing the difference between

[00:22:12] Speaker 04:
Maybe it puts perhaps an abrogation of assumption of the risk, but continue to apply the legality or wrongful conduct doctrine.

[00:22:21] Speaker 04:
The simple adoption of comparative fault or comparative negligence in Kansas does not explicitly nor implicitly abrogate the legality defense.

[00:22:32] Speaker 03:
Has the American Law Institute, through the restatement of torts, taken a position on the legality defense in these circumstances?

[00:22:42] Speaker 04:
So yes, in the second restatement of torts, certainly you could look to section 889, comment B, which applies the narrow exception here, where a plaintiff in violation of a criminal statute that is intended to prevent the specific harm here, inhaling computer duster, which can certainly cause harm.

[00:23:10] Speaker 04:
would apply.

[00:23:12] Speaker 04:
So the restatement second of towards 889, B would address that issue.

[00:23:25] Speaker 04:
I did want to note as well that I believe there's an argument that the, or at least in the briefing, that the Kansas Product Liability Act may have also abrogated the Illegality of Defense.

[00:23:35] Speaker 04:
But I think as noted in our briefing, product liability law in Kansas

[00:23:40] Speaker 04:
is governed by both the KPLA and the common law.

[00:23:43] Speaker 04:
Here the legality defense is a common law defense that would apply here.

[00:23:51] Speaker 04:
And although there has been some abrogation of all or nothing defenses, I think it is worth noting that the KPLA itself codifies several all or nothing defenses.

[00:24:03] Speaker 04:
If you look at KSA 63303, that's the 10 year statute of repose,

[00:24:09] Speaker 04:
But also 63305, for failure to warn claims, there is a all or nothing defense based on the sophisticated user or open obvious dangers.

[00:24:22] Speaker 04:
Certainly there is contemplation that not all or nothing defenses have been subsumed by the KPLA or the adoption of comparative fault, and the illegality defense would apply equally in the product liability context.

[00:24:38] Speaker 01:
Could the Supreme Court abrogate, or do you think the legislature has to do that?

[00:24:45] Speaker 04:
That's a good question, Your Honor.

[00:24:47] Speaker 04:
I would believe it would need to come from the legislature to do so.

[00:24:51] Speaker 04:
Certainly, you have seen legislatures take a position on adopting or codifying illegality of defense.

[00:25:00] Speaker 04:
However, we do not believe this is a question that needs to be certified to the Kansas Supreme Court.

[00:25:06] Speaker 04:
Specifically, as I've explained before, this is not a novel issue.

[00:25:12] Speaker 04:
The Kansas Supreme Court has recognized this defense in 1900, 1919, 1964.

[00:25:19] Speaker 04:
Kansas Courts of Appeals have recognized it in 1995, 1998, 2006, and 2013.

[00:25:26] Speaker 04:
Certainly, the context changes based on the claims at issue.

[00:25:32] Speaker 04:
the principle applies and the Kansas Supreme Court has spoken to the policy of why there is an illegal defense that has been recognized in these decisions.

[00:25:45] Speaker 04:
So I do not believe a motion to certify should be granted in this case.

[00:25:50] Speaker 04:
I do not believe it is a unsettled

[00:25:52] Speaker 04:
question of law as the district court correctly decided in denying plaintiffs' motion to certify at the district court level six months after receiving an adverse decision in that case.

[00:26:08] Speaker 04:
And further,

[00:26:16] Speaker 04:
Further, the district court correctly applied the legality of defense to the face of the complaint.

[00:26:23] Speaker 04:
Here, plaintiff does not and has not disputed that Kyle Miserly unfortunately violated Kansas criminal law in 2018 when he was introduced to Huffing computer duster to experience a brief intoxication by a work colleague.

[00:26:41] Speaker 01:
It doesn't seem like there's any middle ground here, which is to say

[00:26:45] Speaker 01:
On the one hand, we don't want people dying of this, and it's the product itself.

[00:26:51] Speaker 01:
It's the DFE and the compressed gas, and it's serving its purpose.

[00:26:58] Speaker 01:
And on the other hand, it's not an illegal product.

[00:27:03] Speaker 01:
Yes, Your Honor.

[00:27:04] Speaker 01:
And so depending on what we say or the Kansas court says, it's one or the other, isn't it?

[00:27:14] Speaker 04:
I think in this narrow set of facts, it would be, yes.

[00:27:19] Speaker 04:
But I do think there is a policy that has been spoken to, which is the legislature's policy of adopting a statute to criminalize this behavior in 2009.

[00:27:31] Speaker 04:
This is not a traffic statute.

[00:27:34] Speaker 04:
This is a specific statute intended to prevent harm to people from inhaling

[00:27:41] Speaker 04:
all different types of chemicals that are specifically listed.

[00:27:45] Speaker 04:
One of those chemicals is halogenated hydrocarbons, which is what difluorithate is.

[00:27:54] Speaker 04:
The structure of that statute, I think, fits squarely within restatement 889,b.

[00:28:01] Speaker 04:
This is specifically the context where it would apply.

[00:28:06] Speaker 04:
And I believe the causal issue here is

[00:28:11] Speaker 04:
completely intertwined with the claims brought to prove or establish any of the claims brought by plaintiff in this lawsuit would require a showing of Kyle Miserly's illegal use of Huffing computer duster in violation of Kansas criminal law.

[00:28:28] Speaker 04:
For example, the strict liability design defect claim, the theory that the product was defectively designed, that is, making it easier to inhale computer duster,

[00:28:38] Speaker 04:
would, of course, require the plaintiff to show that computer duster was inhaled in this case, starting in 2018 when Kyle mysteriously chose to have computer duster when introduced by his work colleague to do so.

[00:28:57] Speaker 04:
I'll conclude by just briefly noting the due process argument was not raised at the district court level.

[00:29:04] Speaker 04:
We believe that argument has been waived.

[00:29:06] Speaker 04:
But as discussed previously, we did not believe there was any due process violation here.

[00:29:12] Speaker 04:
The legality defense in Kansas is not new.

[00:29:16] Speaker 04:
Certainly, the policy supporting its application in the context we've identified in our briefing also supports its application on the facts of this case.

[00:29:26] Speaker 04:
If Your Honors have any additional questions, I'd be happy to answer them.

[00:29:30] Speaker 04:
Otherwise, we'll conclude.

[00:29:32] Speaker 03:
Thank you, Counsel.

[00:29:34] Speaker 03:
your excuse, go ahead and give Ms.

[00:29:37] Speaker 03:
French-Hodson two minutes.

[00:29:50] Speaker 00:
Thank you, Your Honor.

[00:29:52] Speaker 00:
I just want to quickly hit on, we heard about the Illegality Defense used in different contexts and how it continues to apply, but I would focus the Court back on

[00:30:03] Speaker 00:
the major products cases, Kennedy, and then two that I didn't get to discuss in great detail, which would be the Kansas Arendondo decision and the Simmons decision, which were, again, product liability cases.

[00:30:15] Speaker 00:
And the Arendondo decision, or at least the Arendondo decision was a products case

[00:30:21] Speaker 00:
And in that case, it was the defendant that violated a criminal statute and committed a misdemeanor.

[00:30:27] Speaker 00:
And the Kansas Supreme Court concluded that it was state policy to allow a defendant who violated a criminal statute to compare fault rather than bear the full responsibility for the injury under the previous statutory system of negligence per se.

[00:30:43] Speaker 00:
It would be incongruous to allow a defendant who violated the law and committed a misdemeanor to compare fault

[00:30:49] Speaker 00:
but bar a plaintiff who committed a misdemeanor to do the same.

[00:30:52] Speaker 00:
The court in Kennedy again emphasized that provision and said, when there is a finding that the criminal statute was violated, the negligence of the other party is to be compared to that of the violator of the criminal statute.

[00:31:05] Speaker 00:
And then in Simmons, which was discussed previously, that was the one in which the Kansas court decided whether kind of an unlisted all or nothing affirmative defense assumption of risk was abrogated by

[00:31:19] Speaker 00:
the broad comparative fault statute.

[00:31:22] Speaker 00:
And they looked and they said states have done a lot of different ways similar to what we have here.

[00:31:27] Speaker 00:
They've gone a lot of different ways.

[00:31:28] Speaker 00:
We find most persuasive how Idaho went about their decision and they adopted the kind of approach of Idaho and concluded that they would not go about perpetuating a gross legal inconsistency by prohibiting the use of contributory negligence as an absolute bar

[00:31:49] Speaker 00:
yet allow its effect to continue under the guise of the affirmative defense at issue assumption of risk.

[00:31:55] Speaker 00:
And that is exactly what happened here, where the district court dismissed plaintiff's negligence claims and strict liability claims under the guise of illegality.

[00:32:04] Speaker 03:
Thank you.

[00:32:04] Speaker 03:
Thank you, counsel.

[00:32:07] Speaker 03:
All right, counsel, excuse, and the case is submitted.