the district court's january rd two thousand and nineteen order denying her motion for remain on the grounds that at the time of removal the district court lacked original subject matter jurisdiction because there was no constitutional basis then for original subject matter jurisdiction as its court knows and as it has reaffirmed along with the supreme court for years two things are necessary to create original subject matter jurisdiction number one must be a constitutional basis for original subject managers diction and number two there must be a statutory bas argument i have a lot more concerns about the merits of the case so i'm going to turn to that but i can see my colleagues may have questions on the point you just may i want to ask you about whether there is my question about this business of she knew she had these symptoms and they are who are your start ronnie is how many of these sentences tell you you have the disease because a is there any indication anywhere in this vast record that these symptoms definitely are caused by the way that means of the elma for example is i think ninety nine percent caused by assesses i think i w no i'm not trying to you know i'm not trying to cut you off in my life my colleagues may have questions about the jurisdictional issue that mr russell raised but i personally don't think that's a very strong argument and stand it you know because if you're a very heavy smoker and you get lung cancer you probably figure that's where it came from but if you've never never been around anyone who did it and you get cancer how do you know where it came from understand the link between knowing much less exposed to four pm by the descendants of this shows you know too much less than one year before filing suit so with our point there being is that the mere fact that someone suffer sometimes there's not mean that they will know that they were caused by some chemical much less of the chemical they were exposed to their chemical by any particular defendants so the fact of symptoms occurring does not of itself in any way because  was known not to should've known but was known so that's that's just a pleading concern i share with the district or with them to legally you rely heavily on wells but what i mean with this is a pretty standard test  emissions environmental context because in weld it was the mineral servitude when the supreme court highlighted that the defendant's own neglect right not having given her payments by or complain of federal court for personal injury there is going to be some allegation about the actions of the defendant about causation and about damages but none of those allegations necessarily indicate when the plaintiff learned of the actions of the defendant learned of the them much as were caused by the defendants or called by corporations in this case if your paragraph twenty four it's very clear that there is an allegation that the plaintiff has suffered damages and there is an allegation that the plaintiff's them which is were caused by the defendants but there is no hourly issue whatsoever as to when the plate of learned of the damages being caused by the defendants there is no allegation of paragraph twenty four that the plate of new as to when she knew when she learned that she had been exposed to poor  hospitals are the important point here legally is is there an allegation about that in the petition or the amended petition there is not there is no allegation that anybody put together d the a much less than a year before of the of the suit was filed those are the actual facts a sticking to the spitz legally speaking sticking to the pleadings your point is there is no allegation that she put together  rotter there are undoubtedly there are cases and that are out there that might be dealing with the mission's what we're looking for was the law i'm really just asking as to the discovery rule exception i understand you're asking i'm asking but i'm really asking for a case in louisiana that doesn't have that critical element highlighted in wells of an if not a concealment a deliberate nonpayment so the lady there didn't know where your honor i'm afraid i have to i'm going to have to elaborate upon the actual holding of wells because that wasn't the theory legal theory applied in wells if you read it wells in its entirety including which we've quoted in part in our brief well's identifies fo that was not the situation of wells the th situation that's called the discovery rule the th is the discovery not in the th just and the th situation and this is very important on or if you look in wells a very specifically says that  discovery rule making up something on the spur of the moment as opposed to the concealment but a definitive either through neglect or willfully which is a different situation not addressed in wells well as was the pure  plaintiff didn't know planted and should not have known no fault of the defendant with respect the discovery or non discovery and that's a situation that you know let's hear how we do istm allegations in the petition and we've discussed them in our brief in the harmful nature of the of the emissions in fact there were a flat out lies just because your time's tight i'm wondering as to dupont i mean none of this prescription argument is relevant  the sources of the emissions which are part of the part of the facility it's a continuing tort so you would reach prescription against dupont just as you would reach prescription against denko because of the continuing tort rates your ongoing nature and your bed just a mass question for me your best case is to guard against dupont as retained interest in the property in the building but not the neoprene unit what's your best wasn't any discovery had now these are the facts which you know which i think lead we do know which can lead to inquiry reasonable inquiries an inference us inference is now inquiries later  because we don't have the contract of sale and you know and we don't know what involvement dupont still have with neoprene at the plant it is hard to believe of authority that dupont continues to exercise of over its activities including possibly dangerous activities on its own property you know that would be it would be extraordinarily foolish and i don't even know if it be legally effective to simply say you know we are delegating to unfettered authority to do whatever it wants on our property and day no matter how dangerous so i think that you know in terms of guard there is certainly a reasonable inference to be drawn that dupont has guard over everything the puncher works for civility in what they because doing and here it's a very important point to keep in mind that more than one party rule on this rule oh p six motions and aside from not falling under wanted us cases that original jurisdiction is extended to an article three original jurisdiction at the time a removal was born or by the state agency defendants th and mimic immunities from suit against them in federal court the supreme court in its cases has said for over a one hundred years we've reaffirmed that one that that no sue may be brought in federal court against the state or state agencies are its own private citizens ok all right thank you i appreciate it brad we didn't hammer arguing on behalf of defendant happily keep on doing more as a company i'd like to begin by addressing the issue of prescription and get pretty quickly to the question which is an important one the judge cha raise but just to set the groundwork plaintiff's claims as you know were subject to a one year prescriptive period and the plaintiff here in paragraph twenty four dollars of her st amended complaint alleges that she began suffering from twenty plus  symptoms for two years she went to not different doctors the horse she was diagnosed with uterine cancer so the fact that she knew she had symptoms and she obviously had the money to go to great doctors she still didn't get diagnosed answer your honor most clearly is is contained in the holdings of the to norio in the lenny and where in cases that we say of from the louisiana appellate courts and each of those cases involved plaintiffs who have been unwittingly exposed to toxic substances or radiation in years later years after that exposure were diagnosed with cancer had no idea what might have caused had no idea that they had been exposed to any toxic substance that could have caused it but w the courts held in each one of those in those cases is that the manifestation of the of the illness of the injury the diagnosis triggers a duty to investigate the cause of the don't and so it's not enough to say i ailments and it's ok by their own status if i have a headache and somebody gives me aspirin that doesn't tell me what illness i have it just maybe makes me feel better but wait mr asher she was getting you know i'm sure medicines in this and that but we didn't have a diagnosis for two years so on if the point is that a diagnosis of cancer makes you have to run around finding out how you got the cancer we don't even have that here so mean to me treating symptoms giving me aspirin for my headache doesn't answer the question of how i got it already just then even to give me a diagnosis maybe i had brain cancer or maybe i just i had tired of my own questions and gave me had a diagnosis is not the critical fact for purposes of triggering the prescription period under louisiana law and if you go back to just the plain language of the prescription statute which is article three thousand four hundred and ninety two it says the prescription runs from the day of the injury or damage and so in women in cases of l disease cellular level diseases like cancer there's no basis to know that you have an injury you're not a notice of any injury at all until you get a diagnosis but in an instance slate ms butler  over injuries that were so severe that she sought continuously so medical treatment for those different injuries and illnesses since two thousand and twelve and under the plain language of the statute that's required even in the norio in le where and cases the rule that the courts cite and apply is not the prescription runs from the date of the diagnosis it's prescription runs from the date of a manifest injury as soon as you know you've got an injury that puts you on construct notice and requires you imposes a duty to go out and investigate and so what should have happened here and didn't is that ms butler should have talked to her doctor should have talked to others about the potential causes of this constellation of chance mary mask several on prescription and one on another point go ahead absolutely ok three questions on this prescription line could you speak to wells and then could you tell me whether you draw any significance as the district judge did from the due to construction of paragraph twenty four and lastly i didn't see that the district court relied on public disclosure as giving constructive notice but your brief has am i correct that judge feldman didn't point to that those are my three questions about prescription and then i'd love to hear if you could reach the custody all liability point in my in my specific question concern is what's the limiting principle and i'm not suggesting this occurred here but how would you reassure me that the law doesn't allow for a poor for the vacation that it sells the land and the property but then allows an internal production unit to continue to pollute and therefore doesn't that give control or direction if you have ownership interest as to everything supporting a polluting unit do you get all those points  but i might add best where reminder at some point yeah let me begin but let me begin by addressing the wells kids i think is an important question because the planet realized pretty heavily on wells and says that wells essentially just the language construction point judge have told me highlighted yet he didn't public disclosure right so so judge belvin i think correctly and gave the most natural is and yet dupont owns the land in the building apparently as alleged what do you what are your what's the case law that would reassure me that that merck indicate that that's definitely not guard or it could be g quality i'll be very brief on the issue of jurisdiction and just say that this case is indistinguishable from frazier vs pioneer americas and plaintiffs have not even addressed that case or attempted to distinguish it motion we did however ask that the entire claim against d e q be dismissed the entire lawsuit and then it was after we had made that request the plaintive filed a motion  to submit a nd amended complaint in which she omitted the declaratory judgment claim all together so she's now arguing to this court that judge feldman within caret for bringing for not addressing a claim that she had sought to dismiss before he ruled on our twelve b six that really doesn't making sense that declaratory judgment claim was abandoned in the court below it was never addressed or raised by the plaintiffs and it's being raised now for the st time on appeal before this court with respect to the damages claim of course the briefing from the plaintiffs on that was really minimal d i mean we've got about ten pages of arguments about the louisiana pollution and she really has not addressed the merits of those argument other than to say she's found she argues that american wage d the louisiana supreme court decision of merit and waste  irrelevant but that case by the louisiana supreme court specifically sound that d e q determinations on regulatory matters are not civil matters under the louisiana constitution which you know granted jurisdiction over civil matters to louisiana just records it is a relevant decision it is a part of our argument only a small part of louisiana constitution public trust doctrine the actions of legislature and setting up an entire legislative scheme for appeals of louisiana to see if you decision etc it is a relevant decision ok thank you mr mcintyre obviously we do not have as the court has already observed prescription issues ours deal more with the substance of the motion to dismiss do you think i mean we would have to rule if we're going to affirm we would have your honor i completely agree with what mr wyden hammar has already indicated that the test with regard to their prescription issues and that's of course not my client's issue but the test for that is what is the plaintiff alleged and is it prescribed on its face and if not prescribed on its face or if prescribe on its face does it apply with any exception and that analysis is considered purely on the substance of what the plaintiff is alleged with regard to those facts with regard to the substance however what the plaintiff and mr wyden hammer's also pointed this out correctly what the plaintiff did in both the st and st amending petition in the original petition as well as in the nd amending petition was referenced numerous documents numerous other documents which the court is permitted to consider and the court did consider in the analysis of both the original st amending complaint as well as the nd amended complaint including documents from the e p a documents from osha documents from nyasha the national institute of occupational safety and health documents from the industrial high genesis association all of which clearly indicate and the court referenced this information and again these are documents cited in the petitions by the plane all of these indicate the symptoms judge that you have previously asked about which are as you have accurately pointed out merely symptoms not personal injuries or disease processes that those symptoms may in fact because by some exposure to some level of however all of those documents contradict any exposure and creation of those symptoms at the levels alleged by the plaintiffs in this case that is precisely one of the judge's problems when you consider the information cited by the understand you've got to make a plausible claim i totally get that affirmed a lot of twelve dollars to six dollars i understand the concept but i also understand that every last little needy detail that you might need to win a jury trial isn't going to be there on day one of the plaintiff that referenced all of these documents number one number one the difference between and incidentally your honor the plaintiff is also specifically alleged e p a has been monitoring at that site for exposures beyond the fenceline dangerous player approximately since danka has been operating data has been monitoring the plaintiff specifically alleges the result of that monitoring so the allege that when referencing all of those documents and here's the disparity and this is what troubled judge filmon and i believe should trouble this court as well as far as plausibility all of those documents indicate number one with regard to those symptoms fallows ans of times greater exposures than those alleged by the plaintiffs in this case would be required to demonstrate even remotely symptoms corporators been studied for years this plant has been in operation your honor since and sixty nine it's been study that's why occupational health and we're talking about exposures to workers who are right there on the site dealing with this substance that is what is problematic with this the plaintiff alleged all of this and cannot make the plausible case and in fact the case that the plaintiff alleges is contradicted by the very things that the point of science in their petition i'd like to move on to two other issues very quickly your honor because we believe and we've suggested in brief that this case really can be decided beyond the substance of the various issues on the merits number one the judge fellman denko moved to dismiss the nd amending complaint because it was filed on time with judge feldman issued his order and reasons and spent five pages demonstrating number one why this was clearly  untimely the nd many complained and why the plaintiff it failed to demonstrate any excuse excusable neglect and then at the conclusion of those order and reasons judge feldman said for the reason the four growing reasons the motion to plaintiff i mean the complaint is dismissed with prejudice they have not appealed and they have not raised on appeal as an issue in this matter the judge's ruling on the on timeliness and the dismissal based upon on timeliness the only thing they have said in their reply brief was the judge never dismissed on untimely as well that is absolutely refuted by the judges five pages of reasons saying th warranted and then dismissing at the conclusion for all of the foregoing reasons and then the nd matter that to scare or should take care of the nd amending complaint should not be before the court because it was dismissed as untimely and that issue is not before the court on appeal but secondly with regard to the st amended complaint what the law is and has been stated in the th circuit that if you file an amending complaint that completely replaces and renders the original complaint of no legal effect that's precisely what happened here and what we're dealing with you use a nd amending complaint which completely restates the original complaint ponce counsel the those three cases did not depend upon their having been a diagnosis of cancer that statement isn't correct and i can tell you three reasons why st if you read the three decisions you'll see all three of those cases the decision is hung wearily on the fact that there had in fact been a diagnosis of cancer there's been no diagnosis of cancer here there's been no diagnosis at all most importantly there is no diagnosis alleged in the complaint this is a twelve to six motion or it also like to refer the court to page twenty three of dupont's brief we're quoting it three recent cases from louisiana spitz circuit court of appeal holding that medical diagnoses constitute constructive notice and sugar the duty to inquire so and to punch brief by mr witt commerce samba mr we've hires colleagues they do say those three decisions were based on diagnoses also if we look at the department of health remember department of health as the clear in my fran drescher it's not a hypo that really happened to her you it start the clock running when she was diagnosed with eater cancer and not when she st went to the doctor with symptoms actually i would not your honor that actually goes to the tension between wells and these three decisions that started that is the earliest not talking about anything that's a secret or the other thing i was this is if you look at the department of health brief at page twenty it says quote medical diagnosis triggers a duty to acquire as the possible causes issues citing those same three cases so the three cases themselves by their own terms are based on diagnosis the briefs of dupont and pharma health both say diagnosis as well in any case i would say the three cases or that could have caused any of the symptoms diagnosis cancer or anything else for your client needs nonces if we look at the allegations of the petition nd fission which was not dismissed in may be that no one will ever get cancer and we still have a cause of action you know a point that has consistently ignored and that we have briefed in our brief with a whole string side of louisiana cases is that in fear of cancer and for medical monitoring for cancer all of which claims predate any actual cancer and exist those claims exist even if no cancer ever does develop so you know  other states risk of increased risk of cancer fear of cancer and medical monitoring for cancer or cognizable cause of action not like to probably i'm out of time and i would like to say one last thing on a subject matter