good morning ma'am please the court jack fitzgerald on behalf of appellants and with the court's permission i'd like to reserve two minutes for rebuttal as the court is aware there's two primary issues in this case number one is what is a reasonable consumer interpretation of diet in the context of diet sodas and number two is whether the sciences strong enough to support the claims in this case now in this particular case is the court knows there's three related cases against the three big soda manufacturers and this particular case judge daniel's blow really rested his decision on the reasonable consumer issue really didn't talk about the science much but on the other hand the decision from the man well versus pepsi case which came out a few weeks ago and judge how b c was on the panel in that case primarily found based on the science so  word diet does not soley represent claims with regard to the loss of weight or the gain of weight by its use we would argue that by saying it doesn't soley mean what we are asserting or alleging it means judge that in some cases it does mean what we allege it means and if that's true and our interpretation is a plausible one then under andersen news judge daniels was not at liberty to choose between those two definitions but should've found our definition was at least plausible required with respect to science and that is a fascinating question because it actually says when you have something that is not at the time it was a regionally you see the basis of the science with there was a van which is risk case right because it's a time that diet was first used nobody thought that it meant anything misleading pretty good how much science do you need in order to say it becomes in misleading is it zero is it a little bit of science it causes some people to have some doubt or do you have to have at a particular moment some finding videos so clear that it does it now in the pepsi case where we could not ask what the new york general business law was meant because it wasn't determined that because issue of preemption we had to do the best we would and so we said we believe that you need more science then very it is in this case my question in this case is here we don't have that impediment and this is a question of new york law so i don't know whether new york would say what new york would say about this new york would say the last and they'd be perfectly willing to say that to new york but that it is an issue of new york thank you i understand your comments you made similar comments last time and including in the footnote in the manwell decision to the decision said that none of the studies purports to establish a causal relationship between non nutritive sweeteners and weight gain that is sufficiently strong first of all for us that begs the question what is sufficiently strong we would argue that where where as here that you have at a minimum lots of indirect evidence lots of people raising concerns and maybe some hedging that's enough at the pleading stage to go to go through but here's a distinction on the facts in men well we were not allowed to submit amended complaint although in the appeal we argued that if we had been permitted we would have cited some additional studies the manwell decision says that's not enough because those studies predated the complaint so you know we had our opportunity to put them in and this case we did submit a first amended complaint it did have additional studies and i would argue that those additional studies are are even more supportive and and the two i really would cite and have the court read very carefully and i think if you read these decisions you have to agree that the science is strong enough to allow us to proceed is chia two thousand and sixteen and fouler two thousand and sixteen and and she is cited in the first amended complaint paragraph fifty three don't use has to be given to the company vittie better stuff you know it's it's it's a very i have problems suggesting that we are very isn't one very clear event at a certain point a company becomes liable for doing something which having done all along it's a little bit like when something is heading towards unconstitutionality i mean when well how starts out doing something which is perfectly ok and invests money on that and then some scientist somewhere source to say aid is different and then another scien at what point are you going to save it is company has to pay classed i mean i think that's a question of fact for the for the jury depending on how strong the science is and if they believe it's crossed isn't it isn't a question of law for a court to say what kind of data or what kind of point is enough and isn't that that's why i go back to say ultimately we could decided t quick question i know your time is about and returning to the reasonable consumers understanding of the right words i might agree with you that in many cases it's difficult to do on the basis of a complaint but here diet dr pepper it's not like diet pills it's diet dr pepper seems reasonable to me that you think oh this is the lower calorie form of dr pepper and if you if we decide on that basis we don't deal with the science well i would just argue that that the fact that it has no calories has implications for consumers and the implication has to do with body weight and just one thing i would point out on page twenty seven of a pelleas brief they give a definition as an adjective remember they harped on this is an adjective and the definition is suitable for consumption with a weight reduction diet so these sodas are at least suitable concert for consumption with a rate weight reduction diet if it turns out that the stuff is actually not causing a cause because of weight gain or even if it's a possibility that there's a risk of it that's at least a deceptive omission and remember we have a mission claims in this case as well and the complaints paragraph forty one forty six to forty seven at the offense in the complaint yes fifty three and you mention another reference to another study as the material difference between this case strongest that we had looking in fifty three it says another study found that using different models and approaches to account for initial indication we consistently found low calorie sweetener use associated with weekend and expanding waistline but seventy it's really a stronger study because of the of the controlling for reverse causality and it talks about causality and fowler talks about the plausible mechanisms have having been identified in the in the consistency between different types of data like animal epidemiological it please the court my name is evan young from baker botts and i represent the defendant that believes both of the issues that we've been discussing are independent grounds for affirming the judgment will oh maybe i'll start briefly with the understanding that a reasonable consumer could have in the question of new york law about that and we've cited the case and that has been applied by this court many times that it come straight from the new york court of appeals saying that in explicating the legislative objective behind section three forty nine are mindful of the potential for a tidal wave which is why they say we adopted the objective standard a reasonable consumer acting reasonably under the circumstances which they then say may be decided as a matter of law or of fact as the case may allow in this case there is no possible basis i think that any reasonable consumer under any reasonable standard could say that diet dr pepper means anything other than dr pepper that has a reduced  hundred twelve b six this is something about plausibility when every single dictionary including the dictionaries that they cited to the district court say list diet soda as an example this is the one they cited for example from the cambridge dictionary of food or drink containing much less sugar than usual and often sweetened artificially or containing less fat than usual colon diet soda every dictionary uses diet soda as the exempl what diet means when used in that form the f d a regulations also are consistent with that saying that when a word like diet or low calorie precedes the name of the food it's modifying the food not something else and so fundamental to the claim about consumer confusion is this notion that's repeated over and over again that it's not as safe as water what we're talking about is not dr pepper flavored water we're talking about diet dr pepper  several other new york case on page eighteen of our opening brief and that's where chief judge kay articulated this objective principle that says in new york under this statute as a matter of law it's possible to resolve these is generally a matter of law if it is objective sounds to be as if it may or may not be plausible but then when we get all the information that we get for summary judgment it wise practice and she started this off by saying that the reason for allowing it to be decided as a matter of law and as an objective question is to satisfy the new york legislature desire to avoid  a tidal wave of litigation which would not be stopped by saying we're going to open it up to discovery we might have a jury decide these questions well so the reference to tidal wave you say makes it clause that she was contemplating that she may not have said explicitly that it could be the pleading stage but yes i think that the also the reference to as a matter of law makes that plausible but of course it's a federal pleading standard we're talking about new york substantive law in a federal pleading standard which if you take every single dictionary makes and applying new york law under the federal pleading standard i think leaves no possibility that judge daniels was wrong no reasonable consumer as a matter of law at the pleading stage could plausibly mean that could not possibly have any effect on weight gain i mean go in order three of the weight watchers meals that are marketed for diets to facilitate diets and heat three of those you may as well have a cheeseburger right you can have  weight gain from things that satisfy diets to diet is not too fast to diet is not to starve and the fact that this has zero calories doesn't mean as has been conceded that relative to dr pepper this doesn't satisfy everything that even plaintiffs demand so for from every perspective i think that there is no plausible allegation twelve b six standard that you couldn't get to discovery in summary judgment much less a jury on this but even if you don't agree with all of all of those points i wish the court would adopt them and it's this these cases have proliferated even if you didn't on the science there is no real distinction with manuel every single study including the ones that were mentioned today was at least present this court in the argument like the survey difference between this case and well is it will we had to say what is enough science as a of the preemption issue and to avoid deciding the preemption issue which is it terribly difficult issue certification was not appropriate in this case for whatever reason the preemption issue zero of it and so it is determined and still that in this case like planned well the issue is what does vest law say i'm perfectly willing to say as i day saying here's how we decided if you don't like it you know i took manuel a little bit differently and i was not a judge on the panel so i acknowledge that we can all agree on that yes that's that's one you know that would be an implausible allegation i think that manuel so said we don't have to decide the preemption issue because we're relying on the science and we don't need to certify the question about the new york standard of but i think that what we find is that under any standard there is no way that you can plausibly allege causation when you have not a single study that remotely says that she doesn't say it valid doesn't say  single one of those cases are presented and it's not just a new york substantive law question although if it were i think that there could be no doubt but it is a federal pleading standard that when you say this causes weight gain you have to have at least something that can plausibly a legit as opposed to cite of variety of things with some correlation all of the scientists were very careful to say things like we cannot i mean wouldn't that be holding it would be darn useful it would be a fascinating question and in a case in which that would indeed be determinative because it would be plausible then i think that there may be a time for the new york court of appeals to comment on that if you're right the first issue and of course it is and i think if we're also right on the question of whether or not there is any science that plausibl asserts causation even today you couldn't possibly ask the new york court of appeals to tell us about a hypothetical circumstance in which the science plausibly alleges something that has changed and for either of those two reasons this is this is why i think that it's not determ understand where we are with court seven number of district court opinions but no circuit court has weighed in on this problem other than in the summary order only in the manuel summary order that's correct the others are all pending all the district judges including others like judge oric in the northern i'm just brief and i use lot of my time but just on the issue of causation i want to read a quote from one study this is hoeing h a h u n g twenty seventeen he talks about a study suez did in two thousand and fourteen so he says a recent article by as that all demonstrated that artificial sweeteners induced glucose intolerance by altering got micro biota in mice and that the induced glucose intolerance was abated by treatment with antibiotics additionally they demonstrated that in a small sample of human volunteers that artificial sweetener induced despite yo cysts and glucose intolerance was transferrable by fecal transplants transplants to germ free mice suggesting a causal relationship is also several studies that we cite that talk about reverse causation cannot account for all the effect we're seeing in the epidemiological evidence etc and that these scientists have been trying to control all these confounding factors for a long time now i think if you look at this is science that does that ok and then in six poems some professor and we'll put him in our armored so would we know it's something that's reliable i mean i'm just asking if we go on that ground because that is what it means and don't deal with issues what happens if we have something that is that possibility myself i think it would be worse you really hard that's how you make your money but i think it would be really hard to come in after after several decision from the science in this way and saying the science well enough it's harder to show that the next article is really a good one