as to legal claims that have been presented on behalf of a class of consumers asserting claims against a company that manufactures homeopathic products that soiled over the counter the case the legal claims went to the jury and subsequently the district court ruled on the equitable claims the jury found in favor of the defendant the court in ruling on the equitable claims also found on behalf of the defendant there was a subsequent motion for a new trial and we are here today as a result of those rulings we have raised a limited number of issues on appeal but they are significant issues and most importantly in our view is the question of the jury instructions that were given to the jury as we have explained in our briefs but there  was a significant dispute over the use of the word and the instruction that was used to inform the jury as to what they needed to find to establish whether or not plaintiffs had prove their claim and it all devolved down to the difference between cannot and do not grammatically those two words are significantly different if we were to ask e b white i'm sure he could provide the court with a far better explanation of the grammatical differences but fundamentally cannot is a model auxiliary verb and as a result it can imply theoretical possibility or yes it is correct that the court in denying plaintiff's the instruction they requested allowed plaintiffs to argue that and in fact are going to argue the fact that the product being utilized or that a product that may provide some relief as a placebo is not sufficient and it is true and the defendants have cited in their brief that mr gomes in closing argument argued that do not was cannot the problem with that as the court well knows is that the jury is instructed that argument of counsel is an evidence argument of counsel is simply argument and that in point of fact the jury's required to and this is in the record at three e r four five eight the statement is made that arguments of counsel are not evidence at three exhibits a record four five one the jury is instructed you must follow the law as i give it to you whether you agree or not and in the end the jury is also instructed to follow all of the instructions and not to single out one or ignore others so while council may argue at the end of the day when the jury goes back to the legal stamp did not is the word that's used in the case instructions with respect to the california claims that went to the jury were a consumer legal remedies act claim and a breach of warranty claim there was an additional magazine mosque claim those were the four claims three claims that went to the jury for decision almost as to the legal issues and in the case instructions for count consumer legal remedies act the instruction uses the word did not so there is not the use of the word cannot in the state law were to the whole idea of can on command to the pitcher the came about as a result of a decision by the district court on concert of occasion where the words were used the plaintiffs would perceive to prove their case that the products do not and cannot work and i think that exact quotes are in the brief and it devolved from that and the defendant is a very capably enabling my opponent is a wonderful poirier picked up on that and began to drive that issue home that it has to be cannot alternately that became a part of the discussion between counsel and the court over whether or not count was appropriate or not the defendants argued that cannot was the word that was required to be used because it was what was in the court's classification order and if the word do not was used it would undermined the basis for the classification we do you know when i looked at the pretrial what ultimately we are claiming was the incorrect ruling by the lower court on the question of the jury instruction the proposed preach conference order that was submitted by the port parties jointly had plaintiffs position and defend its position this is in the supplemental excerpts of record that the plaintiffs submitted to the court and in that plan issues the war did pretrial conference order that was submitted jointly by the parties and early august of twenty fifteen ultimately the court may have been july ultimately the court made a decision on that and the decision was the word result in our view alternately the decision of the court made to use the word cannot let me ask you this sir was the district court's classification or tied to this whole idea of can in other words in order to make sure that if you prevail that your there would be no indeed there would be no individual concern that was to make it clear just to establish just crystal clear that the products are basically worthless but each class member could recover to answer that question i think it is fair to say that was the court's belief if you if the question is posed to me i don't believe that that is in point of fact an appropriate analysis as to class sort of occasion in other words i don't think that the use of the word do not would undermine the court's classification ruling because do not employ him brings into the equation this court's prior ruling in in the pan time case the f t c case that if something is simply working as a placebo the person may think it is but it's not and to sell a product that provides relief it is simply based upon its placebo effect is not is consumer from god and so in my view the use of the word do not would have not undermined classification i think it is actually fair the court felt it would but if you turn and if you take that and move it on to the other jury instruction the plaintiffs argued  necessary to cure any adverse effect of cannot plaintiff sought an instruction that would make clear to the jury that a product that is simply acting as a placebo should not be considered effective that was the placebo instruction that correct correct and that instruction was rejected by the court the court did allow as i think your honor asked earlier in terms of argument the court did allow plaintiffs to placebo is not an effective product and can should not be used as grounds for allowing someone to sell a product saying it's going to relieve alleviate your cold or your cramp you know standard instruction that should be given i don't believe so i'd although i will say to the court i have not researched that issue i'm not aware of that the issue of the placebo was what to do to pound tron one corp and that is a thirty three f thirty ten eighty eight that was not a jury trial that was a bench trial but there the court in its holding stated that a product that simply provides relief as a placebo does not support or it cannot be sold as being effective and so that instruction a special instruction came from this court's decision in the pan time case and was requested to try to alleviate the concern that it arisen as a result of the court's view that cannot was the appropriate word to use in the instruction on the elements of the claim and i want to stick with a candidate for a minute and tell you how i see the how this problem developed and then you tell me where i'm wrong or where where i'm what i'm missing always tell you like a rule twenty three stage the issue came up whether or not there would be individualized issues if there were then there could be a class so to so to avoid that problem the way the pleading you're pleading had been cast was do not and cannot work so the judge picked up on the cannot part and and said as a matter of science if this cannot work then the entire class could benefit from that that theory and we can have a class so that's the that's the whole premise on which the class was certified ok now we go forward to trial and at the time of trial the judge sticks to that you've got to prove as a matter of science that it cannot work and then you say no maybe and maybe  that's too hard a standard just and and so but that's what the judge decided rule twenty three so if we're going to back off of the the cannot standard maybe we have to say there should and should have been a class in the first place so i can see i've had this very problem myself many times as a district judge that the theory changes between rule twenty three in the time of trial so i think the judge was sticking to what the theory was that was presented for how to avoid the individual as the issues and trying to make it fit the circumstances of the case or it sort of taken too much time but that's the way i see this piece of the problem so and i think you disagree with that i'd like to give you a starting with classification actually the district court classification order used the words do not and cannot in the order as to how plaintiffs would the common issue that would be effectively applied to the class having do not and cannot as the case developed as the court is actually right district court job is the hardest in the world because cases are developing and you're having to make decisions as they are moving along on a continuum but ultimately the court's decision was to simply use the word cannot and to not use the word do not believing no no i don't think it's a question of two i think it's a question of one or the other alternately and as a result the concern your honor has just expressed which is that there'd be some concern that the class would wind up being uncertified or decertified in the middle of trial in my view the use of the word do not in a classification order made clear they do not work and so then you come to the question ultimately of whether or not this in this particular instance the court's decision to simply use the word and not use the word do not ultimately resulted and the jury being misson structed that decision led to ultimately the court's equitable findings which the court said i'm bound by what the jury did in the legal findings we don't that is pretty common law are constitutionally based and ultimately led to the denial of the new trial but they it all starts to flow down from the words do not in cannot in our view the appropriate word was do not if you're going to use cannot then you have to add the additional not i just that's where i disagree and i bet it looks like you that that's a whole nother issue correct that's correct i mean that the district court could have been struck down i do not in the instructions and then there could have been a motion judgment that is correct and that could ultimately have been the outcome that outcome still would have resulted in or would have ultimately resulted in some  do not vs can't walk cannot came from plaintiffs complain and complain as the court will recall from the record said these products cannot work because there is no molecules of anything there was do not encounter didn't know what and can and cannot but they do not because they kept they they affirm as if we took on a burden to prove a negative the products do not work and their choice of doing it in the complaint and in the dr rose's declaration in  support of the class certain motion was that they do not because they cannot because homey out but these biologically implausible and when we argue class certification we had it at that time twelve products with multiple ingredients in them and one of the arguments was there is no common question you know we have different ingredients we're going to have to look at each product we're going to have to look at each ingredient decide does this relieve the symptom that it's represented so relieved and the court the district of these two penned this lehi delusions i believe was the language the products there's not a molecule there the products cannot perform as advertised i did not become the legal standard that was given to the jury pardon me the legal standard with a legal stand the rule that was given to the little rule that was given to the internet in the jury instruction write the instruction was a standard consumer legal remedy act standard breach of warranty act instruction changes and do that was  now if you look at it it's camera well but the standard consumer legal remedy act instruction would be that the representation was made in the representation was false or misleading that's that's the law and that's in the instruction what the district courts did was to feather in the factual it represents a sions were false because the products at issue cannot relieve symptoms as represented right there so that became a legal test it was a thirty five the only effect is a placebo and the products cannot work do not work do not equals cannot the defense did not argue the issue of what do not versus cannot and that that was not the the  yet again if one were just giving a standard just a statement of the law the statement would be the defendant made a state representation the representation was false or misleading and the plaintiff was injured that's that's the consumer legal remedy act the so why couldn't you just submit some special findings to the jury well the you have all the scientific evidence you can submit some questions to the jury you know i guess our position would have been if the co had intended to give a completely vanilla legal instruction false representation false misleading representation relied upon by the plaintiff to injury our position would be that because it's a class because there's a certified question the court must instruct the jury what that question is and so there would need to be a second instruction that says in this case you must find the  you ask the jury to make special findings on issues that relate to the class that could have been done yes it's certainly could have been done the judges preference was to simply wrap the closer into this section you know the jury instructions are supposed to represent the products do not work and ladies and gentlemen we're going to present you scientific evidence that they cannot and you're going to return a verdict in my favor and i believe that's what they said i believe that's exactly what they said but why does the scientific part of it become a rule of law well if no it becomes the certified question that has to be answered by the jury  in order to find liability there are other ways of getting that answer if it's critical to to ensuring that the class action aspects of the case or  respected in to rule twenty three i and i and i don't disagree with that your honor i don't believe however that as an issue of jury four of instruction formulation that it's an abuse of discretion to combine them into one nor do i believe there's a believe that we had in fact so the judge had requested special iraq atari's and i don't recall your honest precisely you want to give there was a special verdict form that we are questioning the court wanted to have a general verdict but add but then as to each product that was an issue let me ask you a little bit different question follow up question if hypothetically we were to conclude that the instruction was erroneous argued this in dr instruction selling the court it's just semantics in other words there and you heard today you read in their brief their articulation of why this was erroneous is abstract grammar that we can't i mean i don't even understand auxiliary helper verbs i can imagine that a jury is confused by this number two mr gomez completely cleared the issue up and explained the theory that they were going on in in front of the jury cannot means do not or do  not means cannot pardon me and the jury clearly understood the whole issue of what the plaintiff's theory was and nobody did anything to mislead them into thinking that it was ok testified that their opinion was that the only effect of the drugs was for was the placebo effect number one number two there were extensive this discussions of numerous placebo controlled trials  in which the homeopathic material was compared to a placebo and was shown either to be more or less more beneficial or not with this a bit of possibility in the jury room that the jury could have gone in there and said well we have to decide whether or not these cannot work but we've heard that there are some patients who think they work and therefore psychologically they do work the placebo effect and therefore it hasn't been proven that the that these cannot work since the placebo effect could the jury on its own have reached out for the placebo effect as a rationale for justifying the product given that the word placebo was used in the trial evidence itself could identify and i think you'd have to speculate to reach that conclusion there was nothing done to by the court or by defense the defendant to suggest that was an appropriate standard the defense argument was always that there was evidence that the products were affective and were not that the effects were not due to the placebo but but judge also  instruction that explained what the plan of suburban was and i think it would have been one sided to give one instruction on the explanation of the effect of evidence i mean the court didn't give any instructions on what the evidence meant but  there were there was nothing done in there was nothing put in front of the jury that would suggest that they somehow went you know off and said what  hypothesizing might have happened in the jury room that issue was never put in front of them well that's true and i think that's true from this record but when trial judges try to give instructions we sometimes on our own say hey the jury could do this off track reasoning on their own solicitor had that off with the with that instruction they do you agree that the placebo instruction was a correct statement of the law it was not a state of the law at all but was it was a statement of fact it was the plaintiff's will to meet their burden it was a it was an explanation of the effect of evidence though i thought that lasy both instruction was meant to say a pollute placebo effect is ok but nevertheless it was the proposed placebo instruction one that would have said a placebo effect is not enough to show effectiveness i did not sure it was quite frame that way i  did not have any argument with the instruction of that instruction at the time the plaintiffs proposed it we didn't say anything that i thought was incorrect fraudulent prong of the u c l and most of the c l array claims the u c l does have the additional unfair and unlawful ron what is your answer to in this case in this case the answer is the same theory if you look at the the trial brief that was submitted by the plaintiffs if you look at the pretrial order every claim was premised on the same theory that there is a misrepresentation the products are effective and that misrepresentation is false because the homeopathically prepared and therefore they cannot be effective so in this case they were all they all derived from the same theory and i don't believe there if you look at what the plaintiffs urge the district court to do in the motion in their post robbery thing as to why there was the court didn't need to follow the jury's instructions are the jury's determination they quoted to a number of issues that the court had expressly declined to certify so that that's what those issues were not right for a class the terminations at that point ok thank you very much on  taking very briefly on and thank you for allowing some rebuttal there are a couple of points that i would like to make and that is that as to the point that my esteemed colleague just made regarding the supreme court's decision in the shinseki versus sanders case which is a case that addressed to be a benefit an administrative rulings a statement is made that that has called into question whether or not this court's prior rulings  case are valid i would only point out that in their briefing defendants have argued that there this court has subsequently had one decision where in a footnote the question was raised and not answered by this court i would point out the two following cases jules jordan video versus one for four and nine for two canada and that's it six one seven third eleven forty six and the pin side is eleven fifty nine us versus bailey at six ninety six fed third seven nine four and two thousand and twelve in both of those cases this court has continued to adhere to its view that there is a presumption of error when an instruction is given whether plaintiffs met their burden in establishing their claims you may not take into consideration the placebo effect in determining whether defendants products provided relief and that's it for  five c's six three six four for the pages what for your one five six three six four five six three six four thank you correct and that i think is as it was being read to the jury from the transcript  that is we know it wasn't read to the jury that was your role but i'm sorry that that's right that was ours i apologize i'm sorry proposed and that was proposed correct i apologize i was thinking of the instruction on the  was going to like the scopes trial that the issue was homeopathy and is it valid or not is that a correct statement i think it is a correct statement that the focus of this case was that the defendants were selling a product that did not do what the defendants claimed it would do and the issue then became whether homeopathy is does provide re y the testimony counsel is correct there was testimony on the placebo effect the only testimony from the defendant as to these products being useful came from a gentleman dr maris all the who treats patients with psychosomatic problems and other than that the other testimony was that t random controlled trials that were conducted there was dispute over whether they were valid or not but ultimately the testimony was that in both of those trials the products did not work any better than a placebo and so that was the overarching issue in terms of the placebo judge also if you raise the question of whether or not the jury might going back in the jury room find themselves struggling with the word cannot and the placebo and i believe that is what happened i can't say that no one can i believe that probably is the underpinning of the court's concern where there's an error in an instruction because you can't really go back and find out what the jury is doing you can only just have to take what is presented before you and determine whether or not there was something that infected the decision as a result of how they were instructed on the law were the when when the of the word placebo came up in the trial evidence it sounds like it came up in a way where the jury understood that if it was merely a placebo effect it had to be more than that so placebo effect was not good enough to be effective other words comparing it to a placebo if there's no difference and that it's not effective i think it's fair to say that was our position  don't think the defendants the defense position on this has been that they are effective that you can get it but didn't defendant ever argue hey look there's a placebo effect so that's all that alone is enough to justify these drugs i do not believe they ever did that arguing that these that the standard is they cannot and they in his view he said there's evidence that they can't so the word cannot came about throughout his argument in the case in the matter submitted