very much i've asked for four minutes may please the court my name is mark johnson i represent the rivera family in this nevada product liability and part case there is no issue before the court relating to statute of limitations there is no issue before the court of addiction as the injury the injuries death this case arises under nevada law not california law it seems as though i'm trying to distance myself from evidence we can have first of all because because obviously mr of air is deceased her husband they did not meet in one thousand nine hundred six she began smoking at the age of thirteen in one thousand sixty nine her friend in this is this is in the record her friend they say when asked why they began smoking they say it was school it was the culture around the reds it was the horse and the marlboro man naming all of the components of the marlboro advertising programme and i coun she also said flat out in the record this is therefore raised as a fact issue they did not appreciate the health hazards involved so so helen's and want christine hutchinson to lay witnesses evidence was in the record good as gold said they didn't appreciate  marlboro miles so she was a lifelong customer started smoking thirteen addicted the product killed her now i'd like to address a couple order a couple issues  instruction and i'd like to discuss that thanks for bringing that up because it's the defendant's the defendant's whole case and your lawyer with the order of the fraud case was dismissed solely on the basis of lack of reliance no other grounds soley on the basis of a lack of reliance their order they drafted now they serve requests for admissions on the plaintiff in this case like this serve in all these cases and requests for missions it was like number twenty one through one hundred thirty five all had to do with whether mr rivera who was answering the questions for the plaintiffs and the state could point to a specific statement a specific statement that was the language which which caused this is a repair to begin smoking to allow her to continue smoking or preventing her from quitting smoking of course like any body honestly answering those questions you have to answer the question you ask because mass media advertising is not intended to trigger behavior by a single image a single event it's intended to trigger behavior to get the consumer to purchase the the incessant repetition of the message incessant repetition of the message so they serve the requests for admissions on this and this is to answer your question and they in the request for admissions they have in their preamble at the will definitions they stated this is i'm quoting from philip morris was request for admission to the plaintiff and i kind of gave you the clerk's paper number i can't right now i think it looks you are fifty five ok so their request for admissions they said they provide the following definition number five reliance relied or any similar derivation of the word as used throughout these instructions for admission requests for admission shall have the same meeting that the word has in jury instruction nine point zero six title reliance these are their request for admission they provide the definition in the definition in nevada jury instructions nine point zero six which we have in the record says in part reliance may be shown by death case there's almost no other way to prove reliance except through the conduct of the party who is deceased you know that and her friends in this case you know using the key words it was cool it was the culture around the reds the horse the marlboro man where do you think that came from i mean you know that's that's they can only have come from philip morris this advertising now with respect to the court's order and drafted by defense counsel the fraudulent concealment claim in addition to the preemption dismissal they dismissed the case based upon fails due to lack of evidence that pamela rivera ever relied on and he representations made by defendant in smoking and making smoking related accept what it is there is no proof in an internet fraudulent concealment claim of showing reliance on representations because there is no representation that's their order they drafted it so they're stuck with it also they never t when we got to when we got to the argument mr proctor made a passing comment about reliance and they now contend and you can read his brief he put the comment in the brief they now contend that that was sufficient to raise the respond in the opportunity to respond to that project of concealment argument and they also in the order that the order says relied on representations that is not possible in a case of concealment the other the other issue that's race risk by the court's order is class conspiracy claim fails because it is driven out of the other causes of action that's the courts are derivative of the other cause of action they now contend in their and their appellate pleadings that we did not argue we did not preserve that issue sufficiently for appeal in our brief in the statement of issues we raised the conspiracy issue to the court where we stayed with the court and dismissing the conspiracy claim because it was driven to the other claims and we asked the court at the end of our pleading to reverse and remand and that issue we there was no need for us to brief or argue the conspiracy claim the merits of a conspiracy claim because it was based on this is their order soley it was dismissed solely because it is derivative of the other causes of action so if this court finds that any of these other causes of liability failure to warn claim because there is some issue about the ordinary consumer test and again it was dismissed based upon preemption and the and the  it has stuck to what we perceive to be what we believe to be a more pure form of strict liability in that it does not inject negligence concepts into into the analysis it puts the burden on the manufacturer and not on this with this ordinary consumer what do they know not no it does not put the burden on the on the consumer and the lewis first to see rate case that there was no other means than advertising or promotion no other means besides advertising or promotion to warn the public about the dangers of smoking and you know if i came in here this morning and i said to you what they should have done is they should they should have created a research institute they should have created a research institute back in one nine hundred fifty four fifty five in that research institute they should have installed a scientist of utmost integrity and undisputable reputation or whatever the frank statement since if i came in and said they should do that that would be going too far but i don't have to do that because they did it they created the council for tobacco research they've created a cheat i r c themselves and they said they expressed we said this is what we're going to do we're going to investigate smoking in health your health is paramount  all of our other interests and we're going in style of scientists disinterested from the tobacco industry and we're going to research the health effects of smoking they created it that is the vehicle that they could have warn the public and they should warn the public and what they should have done what they should have done if they said we are addicting intentionally minors to our product we are this is what this is what they should have said these are the warnings they should have set and of course you also you know nobody would do that because they would have admitted everything i don't care they were doing it they knew they were doing it they intentionally marketed they intentionally sculpted their advertisements and everything else to minors they knew it was addictive there's a chilling document and in our in our papers in our pleadings which talks about the young child who what the heck you think they are saying they know exactly what they're doing they are going to get you with the horse the marlboro man the culture the cool the reds they're going to die and then they're going to decay and you are customer for life just as pamela rivera was smoking behind her  chemotherapy waiting to die ok so what you should do clearly and unequivocally your honor you should say the counsel for tobacco research this independent research institution which turned out to be a fake a fraud a phony a sham a shill that was the vehicle to warn the public and it is it is dissent and they used it of course just as the opposite they used it to create doubt about smoking and health it was it was a front the product fake a shell a phony in fact it was so bad it was it was dissolved by court order with the master settlement agreement so that is the not advertising on promotion and they cannot get up here and say that that's advertising and promotion because it is the antithesis of advertising and promotion it is a manufacturer an industry coming out and saying it when they knew this well before nine hundred sixty nine the first warning it's come out and say in our product can fill you it will kill you it'll probably kill you once you start smoking you can't quit in two thousand and three what you should do is give us a directed verdict on causation in this case but the order should clearly say to answer your question your honor your should clearly state that there were alternative means of advertising and promotion that takes the preemption issue out of now are other claims fraud no preemption issue we have got tons of evidence in the record about about their conduct we actually have michael hoffman we have mr goldberg two ph d s in addition  to even if you discount the addiction issue let me  all reasonable ethical standards resulting unnecessary harm including loss of life none of that denied for purposes of this motion so i think that four minutes thanks morning your honour's it's undisputed in this case that pamela rivera began smoking in the summer of one thousand nine hundred sixty nine which is after the effective date the amended labeling act and therefore every pack of cigarettes that she smoked for the federally mandated warning label which the supreme court in medtronic characterized as quote both necessary and sufficient close quote in light of that the district court properly dismissed the failure to warn and approximate concealment claims on preemption grounds and then it also correctly dismissed the affirmative fraud misrepresentation claim for lack of a triable issue on reliance first on the address preemption and some of the arguments that mr johnson has made on that issue the primary argument that playing out makes in this case to get around preemption is to argue that it's not with respect advertising and promotion because the warnings additional warnings that he says should have been given i could have been given in other media this argument fails both as a matter of federal law and incidentally as a matter of nevada law because the predicate for it in nevada law doesn't exist let's start with the federal issue even assuming that nevada law imposed a duty that would embrace other media than advertising and promotion that overlooks the plain language of the statute as the court noted in ship alone and then again in the riley case the one nine hundred sixty nine  requirements for prohibitions with respect to advertising or promotion so it only needs to be with respect to advertising and promotion it doesn't even actually need to be itself advertising and promotion and we've cited in our papers have concluded that this other media argument doesn't work although this court has not itself addressed fully and specifically addressed that question in the context of it has been the taylor a case i dressed in the context of pesticide preemption statute in that case any directly analogous argument was made to fight for provision which the court said is an with respect to labeling or packaging therefore it doesn't affect the failure to work claim because they could have used advertising in that case and this court specifically rejected that saying that the claim is premised alternately upon the inadequacy of the product label at page five sixty one that reasoning applies fully under regularly here and makes clear that as a matter of the federal law this argument fails but the predicate also is not there under more than a law because the allison case on which the plaintiff places great reliance and also the sockets case both of which are cited in the papers make clear that nev that this is it a duty that will be carried out through anything other than something that accompanies the product in terms of either labeling or advertising so the predicate for this argument that nevada imposes such a duty simply doesn't  exist the fraudulent concealment claims are likewise were correctly held to be preempted they ultimately rest on the saying notion in the same duty that additional warnings additional information should have been given beyond what congress has held as a matter of federal law is sufficient and the courts numerous courts have held to that a fact as we've cited in our papers the spain and the all good cases in particular has to be a statement that of which the plaintiffs was aware and the nevada power case the district court construing that nevada law also made that same requirement explicit and in this the requests for admission could not identify any particular statement rather in the papers below and indeed in the briefs in this court and indeed again today in the argument there is been reference to the general spirit that was cool right but that actually illustrates why this requirement of identifying the statement that was heard that was believed and that was acted upon is so critical in terms of establishing a fraud claim because a claim that that marble advertising makes smoking look cool isn't fact not a an affirmative statement of fact that smoking is cool as is a statement of non actionable opinion but also significantly it is a preemptive claim because chicagoan clearly holds that image advertising that creates a favorable impression of smoking that makes it look cool or attractive is a pretty is created by thick cloud and that is precisely why it is important to identify which statements we're talking about because actually when you begin to pack the assertion that is made about the beliefs that we had about smoking you identify it comes from a preemptive actionable image advertising theory and so smoking is cool having claiming is your response to this month's ability of the industry in that respect i'm limited by the procedural posture of this case we are coming up from a grant of summary judgment in which the summary judgment was focused on specific the like i am by virtue of the posture i am focused on the issue of actual reliance was there a statement and that that's what the summary judgment was granted on the failure of proof of the actual reliance  other elements in terms of the posture of the caves are ones that are were not specifically challenge we would have things to say with respect to those and we have in cases that have been tried for purposes of this the focus is on what statements did she hear and did it make any difference and it's very clear that she can identify mr rivera can identify an affirmative although the the plaintiff below relied on the one nine hundred ninety four congressional testimony as one of the possible statements that ms rivera heard that point was not renewed in the relevan section of the opening brief if you go to the section on justifiable reliance it is again marber culture and image advertising in any event as we pointed out in our brief the pla minute that those statements had no effect on her smoking behavior that as mr vera said they they were smokers they were going to continue to smoke at that point  also we have indicated in our papers that this activity obviously in the one thousand nine hundred four congressional testimony is testimony to congress and therefore is protected by nor pennington the only response in the reply brief to that court held that more pending can doesn't fact extend beyond the antitrust contacts reflects more general first amendment concerns nor could if it were then any sort of sham exceptions kind of the the sham exception under nor pennington means that you were acting for a purpose other than to secure legislative or judicial action and there's no contention of allegation  certainly summary judgment nothing that has been shown that would raise an issue of a sham and that was actually not even asserted in this case so that also cannot be an actionable statement and that was  was all that was presented and that is as starved may have recognized here it's simply not enough to create a triable issue in that summary judgment was therefore warranted on the affirmative fraud claim it attempted to get around this by suggesting that it can rely on him from says or to me live impact but there is no nevada authority that will support that the committee on children's television cases never been adapted in nevada which was the basis for the cumulative impact theory in any event even within california the committee on children's television case was limited by american essentially to its facts mark and reinterpreted it as a retransmission case you still have to show the defendant made the statement and eventually it got to the plaintiff the plaintiff heard that statement and acted upon it so even in california which is a different standard from nevada because nevada has an adopted anything like children's television even under under california law it would fraudulent concealment because those are a judgment of its judgment in this case can be affirmed with respect to those issues solely on preemption so there there is no need to go to those questions they also of course though provide alternative grounds for a firm and so on those claims the district court correctly applied the consumer expectations test to the nevada failure to warn claim the yamaha the plaintiff must show that the product is unreasonably dangerous and that also looks to consumer expectations as under nevada law so there are four things commonly known common knowledge is particularly appropriate because it's in the context of a failure to warn claim any claim for example on any other strict liability theory was not raised in the opening brief of point that we pointed out in our answering brief and with respect to failure to warn the warning itself creates common knowledge and i think that the p k case i may be mispronouncing that p a p i k this court in the context of another federally mandated warning with respect to tampons provides i think an important statement on page seven forty three the court said to rule otherwise there was talking again about the consumer act expectations test so true otherwise would allow the anomalous circumstance that a consumer isn't peddled to expect a product to grow for more safely than its government mandated warnings indicate and i think that that rationale applies here used you can't say that under nevada law the federal warning is not sufficient to create common knowledge where to set consumer expectations it they claim that allison which of course is a true justice plurality that wouldn't be binding eliminates the consumer expectations test that there is no basis for that because again it is a and in fact the plurality first applies guinness's reasonable expectations test right at the beginning of the case at one ten about seven sixty seven movements did not involve danger that was claimed to be commonly known and therefore frankly never reached this issue would only addressed the issue of whether the warning was adequate to reach a danger as to which no issue of common knowledge had even been asserted and  with respect to the issue of common knowledge itself once we recognize the nevada law does require the consumer expectations test as i said the piqua case does make clear that the warning itself provides common knowledge in the context of the fairly to warn claim here as a matter of law we also cited in our papers and we presented below sort of a belt and suspenders approach that it was common knowledge as a matter of law within the well relevant time period based on all of the case  that we cited solomon spain glassner all good but we also put in as a as a matter of fact declarations that would establish common knowledge within the relevant time period it's important it that the standard in the vonage is unquestionably and of fact if standard which is why it can be decided as a matter of law that's made clear in the lord case and it's this court's decision in the that clearly that influenced these young kids to begin smoking we can't point to a specific statement anybody would come up to this court and say that would you want us to say with them a judgment was inappropriate you  hold them to what they said they're going to do that's all i ask and don't hold pamelor of vera who was thirteen years old when she began smoking was addicted in the year and was addicted her entire life of pharmacologic i physiologic not a psychological event don't hold her to a higher standard than the court the court cites that it thinks it isn't you know it doesn't really know what the ordinary consumer is it's a very it's a vague standard and that's why they want to and they specifically say in footnote eleven they want to return to the principles of strict liability if they are a warrant but you know i mean first try cases sixteen hundred you know some goldsmith sold a stolen from a goat stomach to somebody and that the guy lost it was supposed to be a stone cure snakebite and it turned out there wasn't i don't know i find i guess the causation argument there is you can get by the snake and die but we've come a long way mass media advertising and sex incessant repetition of the message our our brief all attached to the declaration of marvin goldberg how advertising influences children to begin smoking we have we have to note that the statements by mr hoffman about the decade's long  tribal factual issues you know that the council heard tobacco research it's their vehicle they offered up this being an independent organization that went with the discussion and warn people about their health risks of smoking and they didn't do it it