the lower court simply used the wrong standard of proof to determine whether there was a genuine issue of fact on summary judgment instead of the preponderance standard set by supreme court precedent it use conclusive evidence standard the lower courts all or nothing approach meant to defendants had any admissible evidence no matter how litter little or how weak arm the nonmoving party could not establish a genuine issue a fact regardless of the quality and quantity of evidence produced by the nonmoving party the standard of proof to show disputed issue of fact is set by supreme court precedent in anders the familiar case of andersen v liberty lobby under andersen the existence of a disputed issue of fact in this case is determined by the preponderance of evidence standard not conclusive evidence here wealth of evidence she had three scientific method analysis which looked at data collected from sixty one randomized controlled trials and that analysis is the best scientific evidence that you can get she also had five additional independent randomized controlled trials including the largest and longest study ongoing whole biloba conducted today where there were three thousand participants in a way that went on for eight years and it was in contrast defendants in total had five individual trials all of those trials were of questionable reliability because each of the tests they introduced were funded or authored by with your position in this case would we be creating a split with the fourth circuit you know i don't think so i don't think because there is supreme you have to get in regency because there supreme court precedent which is andersonville of the lobby there's a ni circuit precedent and that's the i think it's that the harkins case and also the patrol case which address this issue so you've got u s supreme court and ninth circuit precedent but as i read the gnc case and i'm not saying i agree with the gnc case i just want to make understand if we decide to go with you we up was one or stand we may be disagreeing with other courts i thought g and c seemed to apply the standard that opposing counsel wants us to apply it to us so we would be great it's a we go with you we would be i guess i'm saying we will be issuing a decision on this statute that is inconsistent with the fourth circuit i think that's a better way to put it it would be inconsistent with the fourth circuit it would be consistent with ninth circuit precedent and consistent with supreme sure so when i say when product was beneficial for joins and plaintiffs allege because it was a motion to dismiss not summary judgment that the scientific evidence was going to show who cosa mean didn't work and the four circuit speaking through judge floyd said well wait a minute plaintiffs didn't allege all scientists agreed so therefore the disputed fact can be false so the court used an absolutist abstract definition of falsity divorced from the really the normally counsel would try to say well you can still rule my way and not create a split with the fourth circuit and here's the way to do it you know that's like you're saying nope when we go where we got to we have to disagree with you know they're right in my partner's going to kill me on this conducted tests could only lead to can the conclusion that the product doesn't work reasonable experts can disagree and if the preponderance of evidence is in our favor if we meet that preponderance standard then we have then the disputed issue of fact will be resolved in our favor for purposes of this lawsuit not for every lawsuit not forever in time and scientific evidence developed a different jury could come to a different resolution but in this case or let me back in a way that you have to proceed by somehow convincing the jury that your opponent's evidence was most reliable and your evidence should be credited well yes we're going to have to come to to say our evidence is better are at the weight of evidence is in our favor but i don't think we have to say they have no it miscible evidence we don't have to say that their evidence is so flawed that it can't be considered look what this court did in  that's the case about whether the helsinki formula grows hair and so that was just made if that doesn't grow hair i think that that threw me off your answer as to whether we have to create a circuit split because i thought that in re g and c there was a concession that reason experts disagree as to whether the products involved can provide the symptoms relief that's been promised and so they are the courts conclusion is like well if you can't if reasonable experts disagree that means that the science is equivocal and so therefore there can't be literal falsity here your expert essentially said that  your expert was very critical of the evidence proffered by the defendants and said more specifically shots burke and recently more hierarchy promoted this false conclusion so as judge mortal pointed out at trial i thought that because certainly we think we have the better evidence that at trial we will show that their evidence is old that it comes from less reliable studies that it comes from biased so you could say that we would show that all reasonable experts will will agree that the product doesn't work but i think the course your went further she said if there's any admissible evidence not that it get to trial does that make sense i mean it does that answer your question well maybe in terms of answering questions this is a thorny issue of state law would it make sense for this court to certify this question to the california supreme court so they could answer that question yes it could do you think that would be helpful yes it would be helpful i think it's a pretty straightforward question that i think this court can answer because it really comes down to what do you what how much evidence do you need to show a disputed issue of fact and i think this court has answered it should be applying california law where except in the liberty lobby liberty lobby he says the amount of evidence you need to establish a disputed issue of fact you know how much that is is it so i think i don't think this is a question of law for california courts if i didn't like and i didn't have the correct standard of proof to establish a genuine issue of fact and summary judgment and i think that but why not just the regular it's the right human standard it different it's no different it's no different look when you were going to save ten minutes and you're now down to the morning when he was might write i'm here i'm behind on behalf of defendants nature's way and schwab in north america the issue here is simple it is not a evidentiary issue but it's a substantive law issue and it's whether my clients had valid scientific evidence to support the labeling statements that are the subject of this case that issue was addressed by summary judgment and the district court correctly concluded that my client did have the valid scientific evidence jury to determine because that's what i do all the time because what they did is they raised criticisms of substantiation and this is a substantiation case if we have valid scientific studies to support what we're saying all they're doing is looking at our studies and saying we criticize it because it's or we criticize it because it's can conflicts with our studies but we still have the valid studies to support what we're saying and under seven support what you're saying and the jury's going to roll for you but we don't need to get to agree with this is i don't i don't know about that it seems to me when you have to use it when you have a valid the experts the judge doesn't get to make the decision about which set of experts are correct well trial course on a regular basis in gauging a gatekeeping function the critical issue here is whether we have valid scientific evidence  a governmental person can ask you to substantiate your claims or you're not going to get to advertise in the state of california it's quite another thing when someone says and says i have i have obvious evidence that you are committing false centuries to your advertising but they all they've done is point to criticisms make they can move under dog and eliminate our experts they have not stated that our science is invalid and base has their own valid science right but but because then we're in a position where my client is being forced to prove the truth of its labeling statements to a jury and that is contrary to seven hundred five zero eight which  substantiation process is reserved for those prosecuting authorities and the king bio decision when said that results in the private plaintiff are private plaintiffs cannot take that substantiation standard and allege falsity and throw in for everybody maybe the advertising to be to fall needs to say it may not work for you but that our labeling statements or maybe the jury accept the validity of b clinical studies relied on by the plaintiff's expert and rejects yours in that case it would just be two different judgments it wouldn't necessarily mean that our science is wrong it would mean that there's two different sciences in the jury sided with them on that particular day if we still have valid scientific studies to back it up we have a basis to said that the some of the studies were old but she didn't say they were invalid because they were old but then they can't win for the jury i mean then then they would lose her friend the jury but i don't see how you circumvent getting to a jury favor of the advertiser because they you cannot show that it's actually false and we actually have valid studies that have not been completely dismissed if there i mean dr snips in her declaration wouldn't you  instead we had our declaration stating that our expert reference our specific labels and he cited to specific studies and said yes to a reasonable degree of scientific certainty those are supported by the science in response to the plaintiff's offer dr seuss's declaration but what's important about dr since his declaration is she never never actually said that those labeling statements are false if you read the brief that she stating that she actually stated in her declaration there is sufficient evidence from which we can determine whether the labeling statements orks are true or false but she does not take it the next step and say you know what and by the way they are in fact falls what she did she then talked about the studies we cited which is they are old but she didn't say they are invalid because they're old and our experts said actually you can't disregard old studies because of the increase in placebo response rate you have to consider the old ones these are actually might be problems with newer studies she criticized that some of the studies were in conflict with what she offered but when you look at the  put at the the top tier of the scientific evidence those are really only reviews of other scientific evidence and the to the to be the cochrane review that concluded that the science was unreliable and inconsistent so that's really not evidence that my client's statements were false we still have our valid studies and that did not invalidate the point to yeah we may have a conflict in the science but that's just two possible judgements we have an advertiser who's pursuit who is permitted to rely on valid scientific studies and they did the other study was the cancer in first or believe and count when you i do have a question for you and i don't want to interrupt your saying but just so i can understand your view of the plaintiff's case for the plaintiff to prevail under california law what would they have to show they would have to show that we do not have valid scientific evidence to support our statements and then so that's the substantive legal question correct and then in applying summary judgment we would have to apply summary judgment to that standard correct as in liberty lobby when it was a so make sure i fully understand it so you're saying that under california law to it's a california legal question as to what the sudden of law requires we're not you're not asking for us to apply some different form of summary judgment to this case you just asking us to apply some normal standard summary judgment to this particular question of california law so getting back to my question i asked others the other side certification to the california supreme court would that help answer this question we don't need to this case because fair enough i figure you going to go there but but is there a state law question for the california supreme court to answer in this case no because why not under seventy five the way and the king bio decision why do we even need to look to ask the california supreme court at all you would disagree with that you think this is a question of state law now we can maybe debate whether or not it's wise for us to decide that issue ourselves or rely on our colleagues on the california supreme court will you agree it's a civil procedure in any way you know you're asking us to interpret california law and its whole regime and we would then apply standard rule fifty six procedures like ok but then i'm also saying that we don't need to go there because i think  evidence and because the plaintiffs in king bio didn't have any evidence that fell within those categories then judgment for the defendant was upheld so it doesn't quite address the situation on summary judgment lawyer somebody like that but the king bio court said when you have a substantiation process and that's at issue that is something that a private plaintiff cannot do that's reserved for the prosecuting authorities and that's for good reason prosecuting authorities are the best equi know what to ask for and to look at it and evaluate it it's the least intrusive process certainly much less intrusive than private plaintiffs in able to drag excuse me to bring advertisers in and always  jury yes and it's been the last century that the factual question of falsity is now never determined by the jury in california with regard to these type of claims know that there could be circumstances but first they have to quantization and if the state legislature thought there were some ambiguity they certainly could have acted by now because that's been the it is spent not only instructive in california but some principles instructive instructive across the united states  king bio was more about the burden of proof that the that that the the question before the court was who had the burden of proving that the claims were false and  this is not a substantiation claim this is a false advertising claim and it's clear under california law and federal procedure that the burden is on the plane it to prove so if they can't meet their burden at trial you win and i don't see how king bio and that statute changes anything because if we have a trial of the subject my client will have to come into meet the preponderance of the evidence standard on the issue of truth or falsity or we would one party's going to meet that burden and if in order for us to win that false advertising case we would have to offer enough evidence that would propounded over the evidence that they offered and that is us proving the truth of our labeling statements which is something that seventeen five zero eight and team by and one has said that advertisers can't be forced into court to substantiate their claims when the claims have been brought by private plaintiffs that is reserved for prosecuting authorities i'm way over i did want to make an important point with respect to the declaration of d case that occurs when plaintiff walks into court arms folded and says we don't have any evidence that your advertising claim is false you have to prove it's true that's not what's here we have lots of evidence affirmative prove our case and then in opposition they don't have to put on evidence they can move for a directed verdict they can simply attack our evidence if they choose to put on their own affirmative evidence that doesn't make it a lack  improperly shifting a bird it seconds i believe i don't understand your question about state law and this and state law on the substantive claims require that there be absolute evidence to show that navitas and claim is false and i think the answer to that is no look at the pottawattamie case that is a california court of appeal case where on summary judgment to see whether an advertisement is false the court  false advertising under the u c l our claim here and there they went to trial and kaiser the plaintiff introduced evidence that the advertising claim was false the drug was not effective as advertised pfizer introduced their own evidence that the drug was effective as advertised the court weighed the evidence and found that kaiser's evidence was better that pfizer's evidence was show that the drug was not effective as advertised and therefore you have a false advertising claim and violation of u c l so i believe that answers your question finally on it dr snit she did saying that the advertise time she did not meet the legal conclusion that this is false advertising she did with an expert is supposed to do and she opined on the issue is the disputed issue in fact true or false she looked at all the evidence and she concluded advertising claim is false it's that there's a violation of the u c l that's a legal conclusion they can have the census they can say it's not material but that's a different step she opined as she was supposed to on the disputed be cooked true but there's disclaimers so if there's it's just a different step a different step in the process that the claim is false and then there's the step with the false claim is that is the advertising