court based its holdings on the wrong injury on the wrong defendant the opinion is therefore inconsistent with the ninth circuit's injury discovery rule i'm having trouble understanding the injury of a little bit myself so maybe you can tell me specifically because you say that you did not become aware that the fenice cause injuries for your plants until at the earliest march of two thousand and fourteen correct on iraq i guess i'd like to know what injuries are you specifically referring to and why was that the earliest that became aware that you are the question you asked is the heart of the matter because we think the district court misconstrued the injury also the injured were alleging is not the pressuring to play football or the receipt of the drugs those two things on their are legitimate business concerns they're not a harm they're not a wrong but there is there was an injury that the players had designed or stand it and then you're suggesting after they had a injury then there was the pressure if you in a lot of different cars while i'm trying to figure out is there is i mean there is some physical injury at the beginning you had tall i'm trying to say there's some physical injury in the beginning and then as i understand it then they got these injury but then they were pressured to returning before these physical injuries were as i understand it taken care of and that that are completely healed let's say and then that caused them to retire prematurely isn't that you when you play football you're going to get physically hurt yes were injuries are part of the game that's part of the normal where that's kind of a die argument i mean anyone that claims that they i mean how many you know every time they go out and play a game that could be the last game that they ever play and it's kind of a thing as well that everyone knows that you aren't going to be playing football when you're sixty years old or you don't get to be like a judge where they dump you in your seat and you can you know continue to play  as far as that goes so there's certain things that inherent to an athlete's sport it's going to be shorter they have a risk of injury and physical injury but there isn't anyone that knows  seem conclusory in nature and so tell me if you can in the best way possible specifically your theory here injury is not the normal wear and tear that occurs in football injury is the premature ending of the careers because of the legal use of medications and the fraudulent cover up of those illegal make it which you apparently allege occurred during the time and while they were suffering the injure their physical injury ok so i guess i'm just trying to figure out you know how the stats the limitations doesn't preclude you from going forward only they didn't know they were harmed just trying to show what's the fraud here and when did you find out about it they're not telling these people what the side effects are they're not telling them about the dangers of cocktailing that's the mixing of the drugs they're not telling them about the name of the medication  to time they're not giving those you can when you buy tylenol you'll you'll see a little thing on the box giving you warnings that are mandated by federal and state law and you say that they did your clients did not become aware of this until march of two thousand and fourteen is coincidentally for you it's put you within the four year statute of limitations but you don't tell us what happened your honor about that time a lawsuit was filed in dent that got publicize a lot that publication in the words and circuit was notorious and numerous that would have put all n f l players on notice at that point in time when the lawsuit got filed that lawsuit w preceded by discussions in the end of probably twenty thirteen among some n f l alumni about all these drugs and they started to put together about all the injuries they were feeling and all the drugs  injuries it started with a physical right and that and that's what our law says it begins with the injuries not the fraud and i think you're trying to tie it to the fraud here i'm having just some freak trying to figure out what and how that would work that such as imitations doesn't run until the defendant knows he's been harmed and knows if the defendant caused the injury they didn't leave they didn't know either one here they thought that what was being given to them and what had happened to them was the normal business practice they thought it was just perfectly fine they had no sense that they were being damaged by any illegal distribution of the drugs they didn't know they were illegal didn't know it didn't they trusted their doctors your honor they trusted their coaches players during their twenty's and the kids they're young as they got older or people start to talk about it and said oh what's what's going on with all these drugs and that's how it started well just a minute left so let's  it seems to me that they had the physical injury and then they were pressured i guess into returning or at least that's what the complaint says before they were completely feet healed then those injuries and having been forced to go back before they were completely healed cause the plaintiffs to retire prematurely correct and lose out on future business or future opportunities then it seems to me that if i take that why isn't that the date on which the retirement happened which is the date because the retirement i mean it was a pretty it was a premature retirement they know it's retirement they have then every notice of opportunity to do something about that and to say something and to think of why they were getting it premature what was the situation so why doesn't the statute run when the first when the retirement happens you're a judge callahan's of the question no she didn't but they all know they're going to you're going to answer the question and i mean and frankly i haven't heard it yet they all know they're not going to play until they're fifty they all know that this is a limited career world they had no idea that terminations premature what they thought as you allege in your complaint that they had the injury that they were forced to return before the injuries were completely healed that this cause them to retire prematurely are you saying they didn't know that they have already premature let me give you an example that may clarify suppose you sprain your ankle which they all do the normal cure is going to be take three or four weeks off rehabilitated maybe they give you a pain pill because your ankles in pain at that point your ankles going to be normal you're going to resume a normal life in the n f l when you sprain ankle they shoot you with cortisone they give you pain pills and they tell you to play fifteen more games are you suggesting that the injuries you did not know that these injuries led to an allegedly premature retirement they didn't know the retirement was premature correct that's what you're suggesting yes bro tell us all that's all complaint tell it doesn't say that it's when they discovered the injuries and that defense caused their injuries back it says five twenty eight c five fifty five quote we have been at pains to explain that discovery of the injury not discovery of the other elements of the claim is what starts the clock correct your hon is dealing with the injury pattern rule and discovery rule that's that was a rule that said clock didn't start until you knew the details of the rico claim that's not what we're saying here they didn't have to know about the criminal enterprise in the conspiracy in the predicate act they didn't have to know all that to start the clock we got but rotella does say specifically the clock doesn't start until the defendant knows he's been hurt and who has inflicted the injury they had no idea that the teams were doing this if they knew anybody was inflict any injury they thought it was the doctors they had no idea that the teams were telling the doctors to illegally medicate them they had no idea that the teams responsible for the exacerbated use of using drugs said just a second if i take your language exact why weren't they on constructive notice when they has alleged that as they allege they were forced by the doctors or the teams to go back out on the field why isn't that constructive notice your honor these are twenty year i know who they are i know who and we've got more than just twenty year olds in every case these are not the only twenty year olds in the world but we're up terp reading constructive notice here and if you're suggesting that they knew that they were being forced on the field too early after their injury i don't know why they're not on constructive notice of their claim at that point because they have no sense of the wrong they have no sense of being harm your honor because inverses what you're saying that the clock started when they discovered the fraud and i'm not sure that that's what the case is say and that doesn't really make sense  have you known or benefit for specific cases beneficial life that say it is not these knew or should have known the injury but new version on the fraud beneficial standard to seventy five folk at fourteen fifteen  eleven ten and living designs of three sixty five so how does this argument go with your equitable tolling argument because you make that argument as well and i'm wondering what your legal support is for the argument that pos of conduct of deals the details of the cause of action fraud in the original injury discovery rule is about when the statute starts to run so in everything said even if the passive alleged conduct supports a claim fraudulent concealment what are the allegations that planets did not know or should not have known if the path of contact you're on an equal tone usually takes affirmative fraud and we do allege affirmative action fraud  answering questions about side effects on truthfully statements about the n f l gives the best health care in the world telling people that broken legs are just sprains so there are a firman of vaccine addition just passive acts that support the equable to save some time for rebuttal if i could not have one more in august ok go ahead if i look at living designs for instance because it seems to me that if you have an argument to make inside a living designs but it seems to me living design says the limitation i'm quoting the limitations period for civil rico actions begins to run when a plaintiff knows or should know of the injury which is the basis for the action now why can't we find then the living designs was simply applying the injury discovery rule as described by the supreme court and really applying it the way it ought to be applied you lose know of the injury should know means you have to put yourself in other words constructive notice i understand that's and other words we know we have an injury we know we're being forced out on the field before the injury is done and we're out there doing it and we're on constructive it where therefore have constructive notice of the problem and we did nothing don't have constructive notice of the harm the harm is the wrongful conduct your honor it's not simply the wear and tear of normal n f l existence ok what do we have in your complaint to show what steps the plaintiff took to investigate these injuries we're talking in the complaint we made one tell me give me some good because i don't find anything in your complaint talks about what to plaintiffs do to investigate their injury your honor we deny and frankly i don't think you've got a fraudulent concealment even if we give you all of this unless there is some allegations about that diligence in the attempt to uncover the scheme your answer your honor on page twenty one the complaint paragraph one of seven we specifically allege that plaintiff's asked about side effects and were the living design case if you could talk to me about that it's i think it maybe distinguish what i like to hear from you why it is the case is that there are a colleague across the aisle aside in a beneficial we're rotella i think living design is post rotella so give me your best argument regarding living design and living designs your honor the plaintiff alleges that they had been fraudulently induced to accept less in settlement of a lawsuit than they should have been less than their claim was worth and that was because the defendant in that case dupont had withheld crucial information and discovery the ninth circuit began its limitation analysis should know of the injury which is the basis for the action and then the court went on to find a triable issue of fact on the limitations issue not because of a dispute over when plaintiffs learned the cause of their injury but rather because of a dispute over when plaintiffs learned that they had been injured at all it wasn't until plaintiffs knew of the fraud in and living design that they learned that they had been injured so in my view your honor living designs is entirely consistent with rotella and apply the injury discovery rule and it resulted from the unusual situation where unless they the  the less the plaintive knew of the of the scheme of the fraud he didn't know that he had been injured the situation here is fundamentally different as the panel has recognized in each of these instances the plaintiff knew that he had it that his his career had terminated his business interests had ended and in their view the business interests had ended prematurely and i can i can take just an example and these we cite examples in our brief it at page seven but jerry wunsch one of the one of the players alleged that he had suffered ankle injuries and that after the last one a team doctor told him that his ankles were so damaged that he couldn't return to play and then a few weeks later he was cut by the seattle seahawks a team that employed him his career ended in two thousand and four but there was at that point mr once knew that his career had ended that his business if you will was over fraudulent concealment there is no suggestion of that in the subsequent ten years he made inquiries of other doctors about the the the nature his of is treatment during the time he was employed by the by the seahawks or even that at the time he took advantage of the provisions that were available to him in the collective bargaining agreement to seek a second opinion and what anything that we should make of the argument or the claim that plaintiffs make that that they weren't told about the harm of tylenol or that some of the drugs they were given and and all of that you know your honor there are there are two respects in which plaintiffs were put on notice of their of the injury here i mean the first is the premature end of their career but in addition the complaint itself on the face of the complaint plaintiffs allege all of the facts upon which they would rely to establish the predicate acts to support  rico claim they in those examples include allegations that the plaintiffs had received pills and unbar containers without prescriptions from athletic trainers rather than doctors in airplanes or in visiting team locker rooms without disclosure of the of the underlying of any wrist those are facts and i'm just wondering if the plaintiffs have a colorable argument that defendants passive conduct is team pride chilling concealment because of the doctor patient fiduciary duty between plaintiffs and their team doctors or trainers so why isn't i know you're trying to eat now i'm trying to make the best argument for them on that point even if even if they were to establish that argument the court should go back to the points raised by you and by judge smith that there are multiple requirements to allege fraudulent concealment one has to allege affirmative acts by the by the pla cheeseman by the defendant but in addition the plaintiff has to allege that he was unaware of the underlying acts the form the basis of his claim and as i indicated on the state of the on the face of the complaint it's clear that the plaintiffs were aware of the acts that underlie their claims and in addition if i may the plaintiffs have to allege do jill due diligence to discover their claim and there are no allegations of due diligence here and that your honor is is is absolutely fatal to do at least a frontal and concealment allegation that's what there is something in living designs which worries me i quoted the the part of the language that accrued when plaintiffs had actual or constructive knowledge of dupont's fraud i understand what the problem is here is it seems to me that the plaintiffs claim  though we knew that we were injured though we knew we were forced out onto the field before we should have been though we knew we retired we really didn't know it was fraudulent and till this case comes along well and i guess my bound by that please respond offer several responses one you're not bound by that because of a tele ret is what to casey out come here and benefit or a living designs can be explained because as i noted earlier and i recognize that the court used the word fraud at the and that's because in the circumstances presented there the plaintive couldn't know that he had been injured until he knew of the fraud it's a situation where the plaintiff missed out on an opportunity because he was unaware of the discovery abuse or the sky every failure and he couldn't know that he settled his claim for less than the claim was worth it's that this is the same situation as in beneficial standards which is which is before  a but it suffers from the same flaw because in beneficial standards at that was the case involving a kickback scheme an employee kickback scheme and the defendant or the plaintiff what the plaintiff wasn't in a position to know that he had been injured that money had been effectively embezzled from him until he learned of the fraud and so when the court in those circumstances uses the term fraud well i would prefer the language to be more specific i said i would prefer that they use that he used the plaintiff has actual constructive knowledge of the fraud but seen on the fraud and it looks like our case law appears to define constructive knowledge as when a plane of has enough information to warrant an investigation diligent would lead to discovery of the fraud so how are you reconciling those cases well let me start by saying that the the in in better let's let's focus on living designs because it's  telling the language in that case is not as precise as i would like i acknowledge though if you think about the analysis that i've just given you it's apparent that what they're talking about is injury not fraud but those aren't the only cases decided by the ninth circuit since we're tele crown chevrolet pin k all of those cases repeatedly make clear that that the engine discovery of the injury is what triggers the starting of the clock for statute of limitations purposes and if you look at it living designs as well it was a discovery of the injury there that triggered the statute of limitations to the fact that the injury what disk was discovered at the same time as a fraud raises a outcome here in the end you know the case most carefully aligned with this one and most closely aligned with this one is worth tell itself you know in rip teleplay plaintiff's rico claim was based on an allegation that is a result of a fraudulent conspiracy he had received improper medical care including confinement in a mental institution for over a year and he argued as plain of still here that his medical treatment had been dictated by defendant financial interests rather than by their by his medical needs the parallels heeler her striking and how did the court how did the supreme court address those issues a unanimous supreme court held that the relook rico limitations period begins to run no later than when the plaintiff learns of his injury and then the court affirmed application of the injury discovery rule which focuses exclusively on when the plaintiff knows of his injury and express rejected an injury and patrie pattern discovery rule under which the limitations period would be would begin to run only when the plaintiff knows of both his injury and the pattern of racketeering acts that may have caused it and in reaching this decision the court analogized medical malpractise claims recognizing that a person who received in adequate medical care is responsible for determining within the limitations period whether his treatment was malpracti appellants theory of causation rests on a similar assertion that each had suffered injury the end of his football career due to deficient medical care accordingly this case which resembles rotella so closely on the facts fix now glee within the decisions letter spirit and rationale and appellants never come to terms with the appellants never come to terms with rotella or even discuss ratel in their reply brief after we had devoted the bulk of  i asked them what were the allegations about diligence in their attempt to uncover the scheme and we got the best answer in this particular situation it seems to me that what they're suggesting is that they have injury but they are injury does come until later and what they're really suggesting is that it doesn't come in until later because what the n f l did is the n f l frustrated if you will the discovery of their injury by the fraudulent concealment they're off and therefore they were as diligence as they could be but because the n f l was progeny only concealing what mentioned to doug to judge callahan in addition to for alleging affirmative acts if you will to to cover up the allegation one must also allege that he is unaware of the facts that will underlie his claim and argument the plaintiff no playing of can make here because of the events all happened right in front of them and they have to demonstrate due diligence and there hasn't even been a suggestion here that in the ten years following the or the twenty or thirty years depending on the plane of following the the occurrence of their injury that any went to anyone went to another doctor or sought relief in any kind to determine whether or not the treatment they had received from the from the unofficial club doctor things went to other doctors and then the n f l blocked giving them they you know they wouldn't give them records to you know medical comply no it's not there in the complaint that i'm just trying to say but what kind of particularities you're talking about i mean they at least need to go to a doctor you're saying to start the ball rolling as i say they need to go to a doctor they should have gone and that's an example of what they failed to do to support their due diligence climb and all i was trying to do is i mean when i'm talking about profit and concealment whew you have it just like i do we've got to allegations we've got to maybe one of those allegations has to be about the diligence and so the only response to there are no allegation about diligence really is that because of the fraudulent concealment and the frustration there are by the teams they did all they could under the diligence and that's all i have a year refund to your honor i seems to me there be there only allegation that there is no other allegation your honor if i may for another thirty seconds given the court's last questions i know i'm over time but i should know that plant that appellant's do not allege here that the district court erred in not denying them erred in denying them leave to amend their complaint as judge such a such a course would have been futile in that regard i invite the court's attention to the fact that as the record below demonstrates more than five years before filing their rico claim each appellant other than evans who passed away in the interim filed a worker's compensation claim for the very same injuries asserted here attributing those injuries to his club employers so any suggestion that there might be an opportunity there so that they should have an opportunity to read their to ripley their you want to like to begin by simply correcting something my opponent mentioned if you go to paragraph one one for the complaint there is a specific allegation regarding seven hundred forty five medical records and how many of them never even mention the medications and never mention the dosage so we do have evidence of fraud the medical records in paragraph one fourteen your honour's all the cases are clear that the statute of limitations doesn't run until you have two different things knowledge of the harm and knowledge of the defendant's wrongful conduct and sometimes they phrase it differently sometimes they say who inflicted the injury sometimes they say knowledge of the fraud compton versus i uses the word wrongful conduct but they all require both the district court here never looked at the second problem never looked at whether they had knowledge actual a constructive knowledge of the wrongful conduct of the defendant at best it's constructive knowledge of wrongful conduct by the doctors we didn't sue the doctors we sued the teams we can sue the henchmen we sued the people who started the enterprise who profited from the enterprise and who maintain the enterprise your honor every case cited from rotel on down has something that showed knowledge of wrongful conduct by the defendant in a private filing a prior lawsuit or being given a written annual report or something that revealed the fraud that's what keys constructive notice we have none of it here your honor there was no indication given to these players by anyone that the teams were in fact masterminding th