a portion of my time for rebuttal the the defendant's interpretation of the facts and circumstances in this particular case are objectionable to me and i think that the not correct that's correct so we take the allegations in the complaint is true and we ask whether or not there's any plausible set of facts that would entitle you to relieve that's right yes it's well settled as i understand it claim and a nuisance claim on behalf of this minor child that's correct yeah correct yes now the district court focused on injury that's correct contaminating the environment in which this child plays the playgrounds the streets his own home and the schools they can manage that is injury the injury is an injury in fact known carcinogens in jet fuel well let me ask you this did they spill the fuel nearby yes they actually ran a pipe under a grammar school that has a two thousand fold increase incidence of and so the injury is the injury was at the time the fear of developing cancer and the increased risk of developing cancer ok now is this is your claim addressed this particular type of negligence going own it's yes it's an ordinary negligence claim yes and  i i think the dillon may be it a case that would be similar i suppose in that these people claim that they were exposed to secondhand smoke and they needed medical monitoring for the adverse effect of being exposed to these to smoke even though they did not know they had the disease pro you still have to have a cause of action in the dillard that's correct and potter they said that if you can if you can establish more more probably the not that this person was going to develop disease from the exposure than medical monitoring is a below decision the court did say that medical monitoring is a viable remedy for negligence it's a viable remedy for concealment which we have here it's a viable remedy for nuisance which any rate the language for the end of the opinion where they say without input from the parties we declined to consider this overwhelming a ray of cases of causes of action to which the remedy of medical monitoring could attach moreover we need not consider an issue that has not been fully raised by a pouncer meaningfully briefed by either party that i read that it's saying we don't decide whether medical monitoring is a recognized remedy or not well in the end the decision day they state very clearly that medical monitoring is a viable remedy for a cause of action in negligence what they do state is that medical monitoring in the state of nevada is not school this is a case of first impression i would guess but on the other hand if you look at the dell the dealer says that medical monitoring is a viable cause of action in the medical monitoring is a viable remedy for a cause of action and negligence but in that case they said we're unpersuaded on the facts of this case which is the second hand smoke exposure to recognize the cause of action or remedy fuel the court very clearly states that medical monitoring is a viable remedy in the state of nevada and it's a viable remedy for a traditional negligence traditional consumer as i understand what they some reason or other this is the fuel actually you know all over your body and it caused some physical reaction to your body and used nonetheless you still have concern about getting cancer down the line from your body seems to me in that instance in men in nevada as part of your relief in addition to whatever damages you might be entitled to for the fuel directly you know with there is no it's certain actions and the complaint does state that the child played in the soil that the defendants contaminated and the complaint also provides in controversial evidence  back in two thousand and one that's number one number two that the state of nevada has received a grant from the c d c which is the federal government to screen for people at increased risk of exposure to radiation which is the same issue the concern that we're wrestling with about the actual injury directly to u g the injury is an injury in fact just like with well below and also with all of the other a more concrete set of facts and presumably you would be in a position to better brief the issues than the parties in the deal or were able to do i yes  united states enjoys constitutionally protected property interests in the home he lives in the streets he walks on lawns he plays in the parks he plays in the schools he attends requires some sort of an  so the each and every defendant's conduct allowed jet fuel to permeate uncontrolled into the child's environment and the use enjoyment of his particular property was negatively impacted and when i find the nevada statute i will read it to you and then we go to the concealment of fraud and indeed by the way medical monitoring is a  remedy for fraud and and concealment and fraud ok the third in a complaint clearly outlines to time date and person and subject of the concealment in this case and th act of relying as a result of his reliance he suffered an injury in fact and by nevada pattern jury instructions nine point zero three the the  to play on the contaminated property is reliance and there is there is a recognised remedy for fraud and medical monitoring  of leaks so the transport of one hundred gallons of fuel although it's hazardous it's not ultra hazardous the transport of thirty million gallons of fuel is not only hazardous but it's altering hazardous so the court heard by dismissing the strict liability the city is engaged is responsible for the transportation of the materials through the city plus it routinely monitors the transportation of jet fuel through the city there was a whole pipeline board that was responsible there is but the is also responsible to maintain the integrity of the environment of its children and the city's responsibility is not preempted by the federal government and the city has never has never alleged that it was preempted by the federal government they first of all with regard to the nuisance claim know that it does not recognize a public nuisance so all we're dealing with here is a potential private nuisance in order to maintain a claim for private nuisance as a matter of law the plaintiff must have suffered a special injury different in kind in nature to that allegedly suffered by the community at large contrary to that  community under the same conditions exposed to the same cars and carcinogens as the children who constitute these clusters quote unquote that alone takes this out of private nuisance it is even if increased fear contract and cancer which is different in kind than the fellow down the block at the park it's rights don't it's really the basis for it it's not his really subjective intent on the special injury element of a private nuisance if a pipeline were run through the town for example that may or may not affect the entire community there is no specific injury to this individual wise plaintiff in other words for example if we took a landfill as an example the residence that abut the landfill may have a particular injury or landslides or something like that that would be different from the surrounding community at large who perhaps are upset that the fact that the landfill exists but there is nothing here that even indicates a particular special injury time and i'd ask the court to go ahead and take a look at that complaint i mean i frankly i was surprised because i hadn't read it in the complaint and i'm not sure where that comes from right i don't know you are but let's just think and i just follow up on that what do you what if there nuisance claim on the theory that they were particularly the direct exposure was different than the guy down the street potentially the problems with alleging a nuisance cl all even under those circumstances are the property interest issue which the courts are of the form in there is the special injury issue which we've touched upon a little bit you know itself that's enough to dismiss a nuisance claim  that there is no injury here special or otherwise again enough to dismiss that caused by the negligence caused her act and i will certainly get to that the with regard to a nuisance it's undisputed appellant has no property interest that was affected and i want to simply touch upon that the statute that mr levin was referencing was the nevada revised statute it's forty point one four zero excited in the briefs the fact the matter is the statute appears in the nevada revised statutes under actions and proceedings in particular cases concerning property the second i don't here is nevada's been clear about the category of matters which fall within the statute they are not personal injury the fog case in the coffin case both cited in our briefs state that private nuisance is an action client on strict liability the nevada law recognizes the criteria set forth in restatement section five twenty four strict liability claims there are a variety of we'll spend a lot of time on this at all but the operation of a pipeline is not as a matter of law and ultra hazardous or abnormally dangerous activity the with regard to fraud and i actually would like to back up for brief second i want to make sure we're clear is this claim was brought by the guardian on behalf of the child for which i was seventeen months old at the time the complaint was filed at the time the alleged statement made by kinda morgan representative that occurred this child was eight months old time i do not believe and i respectfully disagree with mr leaven that the guardian's reliance if there was any play and there has not been is sufficient this individual eugenio god was the only plaintiff in this case the briefly touch upon the fraud there's certainly no our allegation that eugenio god was ever heard the statement that there was any reliance any change of position any defend or any responded ever intended to induce any such reliance and again there is no damage on never jance the we disputed that there was ever any allegation that a duty was owed to the public at large certainly damages and injury are absolutely required to maintain a claim of negligence other than a vast claim of injury is the increased risk of fear of cancer or fear of care for this sort of indirect exposure by walking on the sword and remedy known about a supreme court or otherwise has ever addressed a theory of cancer claim it doesn't exist currently in the state of nevada it has not been suggested and has not been ruled upon in any fashion the big deal court on the other hand addressed whether or not a medical monitoring cause of action existed it clearly stated that such a cause of action did not it suggested that perhaps a  remedy for of medical monitoring could attach to a cause of action i believe by implication back cause of action if in fact any medical monitoring remedy would attach to it would have to be viable in and of itself current and as part of a viable cause of action injury must be play now further the callaway case and the hov us case both side in the briefs  physical injuries required to prove to a tort action caliph are rather nevada unlike some jurisdictions that have not required a present first present physical injury for maintaining a medical to first the question i don't believe that this record provides any additional information the court expressly rejected consideration of whether or not medical monitoring is a remedy and by extension what cause of action would it tach do on an insufficient record i don't think we have a record here i don't think we would expect a different response well let me think if we certified it they'd simply say we don't certification question in video was a bit odd because it can join the two and i can see why the nevada supreme court decided to answer the first part of the question and leave the second i mean we could frame the question pretty specifically but that doesn't address your concern which is the record sufficiently developed right i think frankly that even if the even if we assume today based on certain then a complaint that a medical monitoring remedy existed in the state of nevada i think that the second question is would a present physical injury be required i think the answer in the valid would be no reason for that would be reason we foreseeable that children playing above where the pipes are money might be exposed to serious talks and it's hard to answer that if there was an allegation in the complaint that in fact a leak occurred under a school or somewhere else i could respond to this much more effectively but without that it is i mean if that were to happen is there a duty i believe that there is there's no allegation that happened i mean it would almost require proof that the pipeline company didn't adequately send pigs through the pipeline to inspect the seams and that sort of thing but you still would need an actual advance you'd need to discharge that's exactly right it please the court don latin on behalf of the city of fallon and as the court pointed out earlier the city has some different unities which we are alleging as to as matters of law why we should be out of the case and the two that i want to address our first of all the discretionary function i mean unity and it is clear by the state state law that we cited in our brief that we this is a discretionary function the monitoring of hazardous waste in the state of nevada are monitored both by the state of nevada and the federal government it's it's soley within their purview to do that the city has not taken on any responsibility to monitor those activities so under the discretionary function doctor and we would have that immunity as a matter of law regardless of what the facts are in addition to that there is what the court has talked about already the public duty doctrine and the city regardless of the duty to the private entities the city's duty is to the public at large counsel for the appellant has talked about bad fa that is not a legal exception the only legal exception under nevada law to the public duty doctrine is if there is a an affirmative cause of liability or some special relationship neither one of those were alleged and there's nothing in the record that was support that there was an an affirmative cause by the city that would give a duty to this individual so under the public duty doctrine the city's duty is to the public in general there cannot be liability on the basis of negligence for an individual so under public duty theory yes under the public duty theory now with regard to with regard to the fraud claim as the the lower court indicated there were three different times when he had the opportunity to allege these with specificity with regard to what he alleges to this that the city did there was a public meeting where the mare and the city attorney allegedly made some statements this was done when the child was nine and a half months old now there was a question is it sufficient for the guardian to have heard these statements i agree with what counsel for the other respondent can do morgan indicated but in addition to that i would like to state there is nothing in the complaint that indicated that the guardian was at this meeting heard the statements even if the law did allow it so he did not allege with specificity despite being given three opportunities with regard to what the city's fraud claims are with regards to the medical monitoring claims and with regard to the question as to whether or not this court would certify to the nevada supreme court i do not believe that this is an appropriate case to do that and the reason for that is there is not a viable underlying claim to which the medical monitoring remedy can attach and we've gone over the negligence we've gone over the nuisance claims that under the current state  of the law in the state of nevada there has to be a viable remedy to which medical monitoring or a viable claim back yes of excuse me a viable claim cause of action to which medical monitoring can attach we don't have that are you saying that he would have to allege actual physical injury yes under the habits case and the other cases that we've cited there has to be physical injury in the state of nevada depends yes but but my point is is that for the medical monitoring remedy there i do not believe the supreme court of the state invited would dread addressed it and last this court found that there were viable causes of action to which that remedy could attach and they said you need a viable cause of actuality for the remedy to attach to the question is do they have a viable cause of action here in negligen and we have the underlying court district court judge man saying that there were not viable causes of action right but we reviewed that determination i understand that that is legal question for you i understand that but i believe and i agree with counsel from tender morgan that the state of the record in this case is not nearly as sufficient as the badillo court case was and they didn't accept it under that case and i agree that the question maybe wasn't as artfully set forth as it could have been but they still had the opportunity to take it under a set of facts that there was a better more well established record which we do not have in this case and i agree with the arguments that have been made previously by counsel for the other defendants is that nevada has long recognized that there must be a present manifest physical injury and in order to recognize or to rule for the plaintiffs in this case court would have to change that requirement for any tort claims then brought under nevada that is a requirement and i agree with the previous counsel of this case should not be certified to the nevada supreme court for the two reasons given there is not a  record this any better than there was in the video case and also because there has has to be tied if there is a remedy at all to underline tort cause of action then there must be at present manifest physical injury and the mere exposure to contaminants is not sufficient and there's one case i would like to point this court to which isn't a very similar posture to this case and that was the four circuits decision and paul versus joy in which the plaintiffs thought both emotional distress and medical monitoring under west virginia and virginia law and the court the federal court in that case said those states have a long standing present physical injury requirement and we're not going to create a a new remedy and do away with that requirement and they were seeking both medical monitoring and emotional distress and that in that case and the court referenced numerous courts which have held in similar circumstances which is alleged exposure to contamination that the mere exposure is not a sufficient injury under state tort law to sustain those type of causes of action so in this circumstance this court should defer to them about a course and to their longstanding requirement that there be a present manifest physical injury that has not plaintiff's complaint and therefore this court on this record can affirm the district court for that reason and must the court has any other questions i'll just leave it at that thank you can somebody have just a few minutes two minutes for rebuttal first of all the better advice statute forty dot one four zero states in part and part the action need be brought by any person whose property is injurious lee affected or and or is underlined whose problem whose personal enjoyment is lessens by nuisance so the owner means that it's someone who is not a property owner who can bring the or is any person either a property owner or not a property owner and that's very clear in the absence of an injury how the infants use and enjoyment of the property been interfered with here well i don't think that you would like your child to be i know we're not talking about the guardian here we're talking about injury to eugene you know it's the increased fear of cancer and the unequivocal how can he where there is a direct injury to the child yes but my question here is you're trying to impute a mental state the fear of cancer to an infant that probably can't doesn't even know what cancer it's not a mental state it's the reliance it's the act ok so what's your best nevada case ugh i can just give you the the the nevada bajaj the nevada pattern and jury instructions any other any other any other point you wish to make in your meaning moment seconds yes in terms of the notice of the meeting the meeting meaning that we described into in the