good morning your honour's richelle bird please the court on behalf of plaintiff and the proposed class i'd like to reserve about five minutes for rebuttal please certainly the physical examinations at issue in this case are the same examinations that just one year ago this court in man vs county of san diego found to be unconstitutional when the supreme court denied certification in that case just last week this court described those exams as significantly intrusive because children are forced to undress and are inspected by strangers in their most intimate private areas this court stated that the county's continued failure to provide parental notice and obtain consent for the polanski medical examinations has harmed families in southern california for too long in light of man the county has practically conceded liability but it wants to avoid compensating its victims by arguing that a class action is inappropriate however a class action is the most fair and efficient way of  this controversy the district court denied plaintiffs motion for class or vacation in november of two thousand and seventeen on the sole basis that damages determinations would be clarified that council because  want to argue against and correct me if you think i'm wrong but the scope of the peel and the scope of what we're talking about today is really the denial of the twenty three c four liability only class that not correct you're correct that the order granting permission to appeal only specified the february two thousand and eighteen order that order however incorporates by russia france a lot of the reasoning and the holdings in the prior order and because both orders rested on individualized damages determinations that the court felt probably prevented it from certifying the classes so i would also point out that if the court does want to consider both orders they can do so you need permission to appeal and the scope of the permission to appeal is tied specifically to february to two thousand  eighteen it isn't general language such as we grant permission to appeal the district court's orders denying class her facial it specifically sets out the order at issue so let's focus on that order and tell me individualized damages determinations prevented it from certifying a liability only class but damages issues are not material to the issue of whether a liability class should be certified  i mean i took part of it took the point of the district court's order to be saying you know if you have individuals damages issues and you have not very much to say on liability  the only class is not going to materially advance the terminations of litigation and i guess my question is what exactly would there be to do with the libel the only class because as you said a moment ago the county has basically conce where the defendant conceded liability and the nd circuit said regardless the court should have certified a liability class and the court should consider a certifying damages class because the question is not whether it's going to take you longer or it's not an issue of time involvement whether common issues predominate over individualized ones it's a mix a question of cohesiveness and so the the nd circuit rightly  found that the defendants concession of liability did not factor into the analysis at all and i would say that here as well but there are other reasons why the liability class would still litigation in this case it's basically a superiority analysis and the courts task is to compare a class action versus the other and that's what the district court did its looking at for purposes of twenty devise imaginative solutions including bifurcation appointing a special master and it went through and it's at each of these options i'm paraphrasing each of these options really isn't satisfying because what you're really doing is just  that is an error in the analysis such that we can say it's an abuse of discretion well that the court did make some errors of law the primary one being that individualized litigation would be just as efficient because people can use the plaintiff judgment or maybe the man judgment as residue to conduct the county but it's clear under mendoza and and subsequent authority that you can't use collateral stoppel against a governmental entity that's one the nd is absent classification and notice procedures most of the class members will likely never know that there consequently established constitutional rights were violated i think you said that in light of man in particular and i was on the man panel some well aware analysis as well it's not really certifying a liability only class is really not going to help achieve in the traditional economy because i'm really looking at damages and how do you plaintiffs propose to really resolve that such that sort of filing a liability only class is helpful but it is helpful because binding precedent is different than measure the cottage the county will still want to really negate and try to distinguish man and plainest will still have to take a discovery and will still have to go through all of the same procedures even though there's a binding th circuit authority that's highly highly persuasive it's not ready to caught and i think there's a difference there and even when defendants assert wrester cotta it's still not an efficient mechanism for all there's for all the reasons we lay out in our briefing but in terms of the damages analysis i think the court also failed to recognize that there is a common human dignity damages element here and human dignity damages it's it's the injury that we all suffer when we have to expose our naked bodies to a stranger it's that embarrassment or it's it it's what necessarily flows from the injury it's a common general damage there would be separate special damages that could be dealt with on an individualized basis which is what judge hurley in the eastern district of new york did in the nassau county strip search cases he tried the human dignity damage on a common basis for the entire class he took evidence about the nature of the strip searches he specifically excluded any evidence of personal the a personal impact the searches had on individual people he reserve that for separate litigation and he'll warded he ended up awarding five hundred dollars per class member for each strip search and that is the the path that we pointed to in this case because they are so similar that was our damages methodology that we proposed let's certify liability class once we get through summary judgment let's certify human dignity damages class let's have testimony on how these searches leaves of carve out the emotional distress is what's left you know which what you're calling human dignity isn't that really just exemplary damages for a constitutional violation which the supreme court in the memphis community what it says what what it said was you cannot award damages for the abstract value of a constitutional right but where you have injury as here and as this court found in genuine injury that people would suffer it seems like what's left really is just the abstract value of the constitutional right and you're just applying the label of human dignity to it no in fact there although this circuit has not directly addressed the issue the district courts have wrestled with this issue and two district courts in the central district of california who had their own strip search cases did side with the plaintiffs here that there is a common human dignity damage that can be presumed from the violation itself much like this court did in his will be crowfoot in the nd circuit did in kerman those who are in apart from emotional distress yes yes there are general compensatory damages that necessarily flow from the injury and then there are special damages above and beyond that they need to be specially pled and proven would you say that i mean does any th amendment damaged by the child pornographer and then strip searches as another common one so i don't think it's a foreign concept that when a person is forced to expose their body and to be touched by a stranger without  you know their parents presence or when it's a violation of a constitutional right it causes injury and it and it's  like the court in hazel said just the fact of the violation is proof of injury it's a new in the nature of i presume damage and i just say sometimes yes thank you may please the court thomas blanton on behalf of the county of san diego want to get right to the st issue of what the court is actually review reviewing here there are two orders one denying a b three class action one denying class action the court granted permission only to review the socket moreover the court doesn't have jurisdiction to review the st because that was not they did not seek twenty three f permission to appeal the  decision within fourteen days they cite a authority that says well if you follow a motion for consideration and then you appeal the motion for consideration reconsideration that that might count but that's not what happened here in fact the county argued to the district court hey this is just a disguised motion for reconsideration and they in opposition to that when we got to the renewed motion said no it's not we're not seeking review of the determination of no b three class we're only seeking to certify a c four class and the district court agreed with that and said that's all they're seeking here so there was no motion for reconsideration the court doesn't have jurisdiction to consider the st argument so just for clarity sic on that with respect to the c four decision by the district court the statutory or the language of the rule itself refers to the ample discretion that the district court has under these circumstances and the language is when appropriate action may be brought or maintains a class with respect to particular issues so obviously ample discretion in the district court found that it wasn't appropriate here under the circumstances given the fact that there would be a need for the key i believe there is a jury demand with respect to those in the county certainly would have the right to have the damages determined by a jury in valentino there's a suggestion that valentino that this court adopted a broad view of class certification and the question of whether there's a broader narrow view focuses on whether there is need for common questions to predominate over individual ones merely in the specific issues that are certified or whether unique common questions predominate in the entire case itself valentino was decided by judge shrader schroeder of this court also participated in the panel on the raman vs mots decision unpublished decision upon which the district courts bases its determination that you need to show some methodology of being able to compute damages on a class wide basis in order to get a c for  liability class certified certified obviously if judge schroeder felt like the unpublished decision somehow went against her opinion in the valentino case she would have said so in dissented from that she did not the raman versus mots case is perfectly consistent with valentino in part in valentino it was reversed the class certification in that case was reversed because the district court did not discuss whether the juda cation of the certified issues with significantly advance the resolution of the underlying case same issue here without a common methodology of determining damages other than thirty seven dollars individual damages trial there's no indication that certifying a liability only class would materially advance resolution of the case under the circumstances here so the district  acted well within it's discretion in deciding that this does is it going to materially advance resolution of the entire case is the court pointed out man is now the law in the circuit the district courts are bound to follow it with the with the issue of non mutual offensive quadrille stoppel there is still an open question as to whether that applies to local governments as opposed to state governments in may and the court didn't actually resolve the question just said here we choose not to apply it is just to just clarify his at the county's position if an individual member of the putative class were to bring an action against you for their individual damages would you concede liability in that case i think if it's based on the normal circumstances that were examined in man yes if there's obviously if there's evidence that somehow there was valid consent given or that the person was a ward of the court and therefore the parent's consent was not needed something they can see they would not be a member of the class under those circumstances but yes if it's the normal case yes now but let's just talk briefly about this issue of presumed damages or human dignity damages and again they may label it as human dignity but we're still talking about the same thing which is a plaintiff does not actually have to prove that they suffered an actual injury in fact or damages we can simply presume that those damages flow from the constitutional violation itself that is an exception a extremely narrow exception to the rule laid out by the supreme court and which is practice every day in federal courts and state courts across this country which is that plaintiffs who actually have to prove injury in fact and the damages that flow from that the application of presumed damages and they say under the circumstances you know they knowledge that in vote right to vote cases and in defamation cases they've approved the presumed damages theory but nowhere else and in the request to apply it to the facts of these two particular cases one involving a procedural due process rights of children in kerry and in memphis where a teacher was suspended and allege amendment rights were violated as well as due process rights the court said now no presumed damages available here you have to prove your damages and we see no particular problem with you being able to prove your damages here if this caused you the only circumstances in which you can get presumed damages is where they are virtually certain to cause serious injury and the injury is extremely difficult to prove well these injuries are proved by every day what's the effect on the person who received the medical examination you know did they suffer emotional distress what was the impact to them of it it's commonly occurs every day in courts around the country and the strip priem court has never outside the context of the right to vote and defamation cases approved of presumed damages neither has this court in trevino versus gates a case that was not cited by our opponents in their if the court was specifically asked to approve a presumed damages in the context of a case involving excessive use of force and the appellant argued that the jury should have been instructed on the availability of presumed damages and the court said no it shouldn't that's not true because in that particular case the jury was properly instructed that they could award damages economic and non economic damages that flowed from the unconstitutional conduct in that particular case this court has never in any case excepted presumed damages hazel cro case that's referred to our opponents is a case where the court granted a neutron all basically saying well the jury was mistaken in concluding and not awarding any damages on the search under the dignity damages and then certain other class members on top of that are going to have individual trials where they request emotional distress damages so it of itself those separate trials are enough to  district court's ruling here that it wouldn't materially advance resolution of the entire action i would add however that the argument that you get presume damages on top or on you to presume damages is the base and on top of that you get a motional distress damages flies directly in the face of the of the supreme court precedent where they say presumed damages is not is does not allow  you to to be compensated and it's a substitute for compensatory damages you don't get double recovery here under the circumstances so if you get presumed damages according to the supreme court that's all respect to this argument on human dignity damages and the effort to to say this is exactly the same as the strip search cases that warm both may be a constitutional violation here they're not the same there are benefits that flow from having the medical examination given to you by a pediatrician there are reasons why parent pay money to doctors to have their kids examined by a pediatrician it may be a constitutional violation here but you can't say that it necessarily flows and is the same grade of conduct as a strip  prison officials parents pay for these things they can have a benefit because they determine whether or not there's a health condition of the particular child in question i'm not aware of anyone paying to have a strip searched done by a prison official there is no benefit to the person who's being strip searched of that particular strip search so they most may be constitutional violations but to equa and to say that two cases are identical merely because the individual may be naked in both cases really is just not is not true under the circumstances they most b cases may be constitutional violations but the potential benefit and the harms that flow from each are quite different here and to equate the two really is not accurate here just briefly flowing back to one of the issues that was raised that the question is kind of separate apart from damages will it materially advance resolution of the entire case even on liability as the court points out we've got the man decision it's binding this circuit we also have the potential use of of collateral stoppel here under the circumstances so even as to liability kind of ignoring the damages question it's not going to materially advance resolution of the entire case now we've heard the argument from our opponents that well with out class certification these potential plaintiffs are going to know that there are constitutional vite savan violated and they won't be in a position to br an action hero under the circumstances well that's putting the cart before the horse the question is whether or not the requirements have been satisfied for a class action under sea floor and that the notice provision would would be something that would be done if the plaintiffs have met their burden of justifying a c for liability class i would also note the plaintiff's bar has not been shy in san diego in publicizing through free media sources there are lawsuits on the various kalinski medical exams and getting some coverage in local newspapers as well and nothing prevents the plaintiffs from taking out an advertisement asking for folks to contact them if they've been subjected to uplands q medical exam they could do that in print ads they can do that in television as there are other ways in which the word could get out if they chose to do so  and i would also add this is a case under nineteen one hundred and eighty three dollars were attorneys fees are available to successful litigants who litigate these cases so this is a typical case involving a class action where the widget wasn't quite as good as it was supposed to be and under the laws of the state you get the difference between what the widget was supposed to be and what the widget actually was and that's all you get there is an incentive here for plaintiffs to bring these cases because their attorneys fees by times almost up i just want to conclude by saying the district court determined that it was not appropriate in this case to certify a class action under c had broad discretion in making that decision and the court did not abuse its discretion therefore we asked that the corps affirm the ruling of the district court denying to certify c for liability class thank you i just want to emphasize that the district court's denial of class certification of any kind leaves this class without any real remedy and that is what the class action mechanism was designed for cases like this that are meaningful we're not talking about would before that and a couple more before that that didn't prevent the county from continuing to litigate constitutionality of these exams he may stand here today and say oh no we won't use collateral stoppel but the fact is they're going to use any defense if they're good it's not for close thing they can always distinguish me and well here we had this consent form or here with them with that with my understanding that there was a consent form that would be a member of your quest anyway well the county has over and not tell people that you're going to examine their children or ask for your can stand or tell you that you can be there and despite those holdings the county continued to litigate the issue and that's the point is without this class action t litigation has the potential of going on and on but importantly class members will not know that they have a right to litigate this and it's going to be difficult to find an attorney willing to take the case for just human dignity alone the cases that were filed and there were only a handful of them were coupled with more valuable claims like wrongful removal and so they were worthy of a an attorney's time and attention investment whereas here in the strip search cases for example the the verdict was five hundred dollars per search i mean that's material to a class member but it may not be enough for an attorney to invest hours and hours and hours int class and the reasoning in that opinion is very very analogous to what's happening here but at the end it's suggested that the court consider certifying a damages class as well and what happened was he the court judge hurley did eventually certify a human dignity damages class and by the way the class members in that case were at liberty to bring individual claims for special damages and we were only able to locate t this there is not going to be thirty seven thousand dollars jury trials and damages here if we follow the path that we've laid out a following after the strip search basis thank you thank you very much counsel to both sites for your argument today