because one four dash four zero eight eight dino rico's at all versus p and g or argument fifteen minutes per side mr murray for the morning runners america start by thanking you for your indulgence for how the weather here yesterday appreciated certainly your honour's plan seek to certify a class consisting of all consumers of a line on the basis that a line does not provide any improvement just of health if the product advertises it does your plan has refused to have this court or the court below even consider let alone rigorously analyze the experience that those many want eline consumers were satisfied with the product and purchased it over and over the unique experiences of each along consumer mean that plaintiff's claims are atypical and that individualized issues predominate making this case inappropriate for class treatment like i gather that their theory is that does not produce digestive health benefits to anyone that's right your honor and i isn't that something that should and could be decided on a class wide basis because our evidence shows that it doesn't quite work that way it's not as simple as that for example in the duke's case they put in all sorts of record evidence saying this is a binary point that either these people were discriminated against or they weren't and the court said no it doesn't work that way there are a whole sorts of situations in between and following to six that's what courts have to do and here duke's arguably is different in the sense that duke's is involving individual employment determinations promotion determinations which could vary by store or could vary by employer whereas if the plaintiff's theory is correct a line does no good for anyone and the fact that there are benefits that some people think they're getting is all according to their theory  placebo effect now again there's no evidence on the placebo that was consuls argument but our point is it's two ends of a spectrum there are those who claim they get wonderful benefits from wine not placebo of any sort they're on the other end people like the plaine who say we get no effect at all and then there's a whole jumble of people in the middle that get some effect it's maybe partially maybe partially not good but they get some effect and that's why you can't just say that this whole class of plaintiffs can be stuck together like glue such that if one plaintiff wins all the plaintiff wins they're typical of the commonality problems and in holding that would there be hypothetically i understand you might not agree with this reality but could there be hypothetically  uniform scientific studies that this particular product has no benefit whatsoever if hypothetically there were uniform scientific studies would you agree that class certification would be appropriate partially i'd have to say that it depends i mean here all of the evidence in the way of scientific studies came from procter and gamble not from the plaintiffs so if the plaintiffs were to introduce those sorts of studies i think we'd be in a very different ballgame i can't say for certain that we'd be but the game would be over but for example you could have a class action where if he and she saw a health supplement and they promise that there is ten percent of bacteria in it and it turns out there only five that to me sounds like a class action or at least a lot more than the facts we have in front of us today so your honors turning first to whether plaintiffs had proven commonality and typically there's no question that duke's informs this case here again there were lots of evidence supported in the record in duke's and yet the supreme court said it wasn't enough that you need to sift the evidence rigorously to make sure that in fact there was a cl i also point to this court's decision and whirlpool to suggest we want to run away from whirlpool quite the opposite we'd like to endure in brace whirlpool whirlpool has exactly the facts that this case does not in whirlpool there was scientific evidence from engineers and others that said that every washing machine had a defect a propensity to grow more in the washing machine and because of that defect there was typically the in commonality in the class and that class could be certified and was correctly done here you don't have that scientific evidence that every aligned pill is bad or that every consumer who picks up a line person a line pill is being defrauded you have everything from like i said those who get no those who get all help and that's the difference whirlpool was absolutely decided this case not so much you know typically also a line works for many consumers the three named plaintiffs are not coextensive with the class they represent and now they say it's not useful so they want refund the problem is if you look to comcast the refund obligation has to match whatever the alleged harm is and refund obligation they're asking for here is every dollar for every bottle of line ever spent by anyone that can't possibly why doesn't that their theory is correct that this bacterium infantilized thirty six three five six two four we call it by fight over sure ok fido does not work if their theory is correct isn't their theory that everybody should get a refund a correct theory so doesn't this rise and fall on the first point that you don't think their theory is correct i'm not even sure well if their theory is that nobody ever got any benefit from a line yeah maybe that could be correct the problem is that all the evidence is that some people got at least some benefit from a line and giving them the entire dollars of money back for the bottle they bought seem totally inconsistent with comcast and others words that say you have to model your damages model around with the alleged harm is maybe in response to that argument we'll expect to hear from the from the plaintiffs that that even though they think they got the benefit absolutely nobody got any benefit because it's snake  so does your argument cover that absolutely and i would just direct the court to the declaration of dr mearns steen dr mearns team went through both animal studies and people studies i believe in forty one and forty two of his declaration and showed that absolutely people got good results in fact plainness own expert dr kamari you may remember from the briefs testified that he had no opinion and had not formed any opinion on the line and its effectiveness but he gave it to a number of his patients and believed even one of them had good success with it but then didn't he backtrack a little bit and say could have been a placebo effect after he was out of doors and the lobby was counseling came back and he did try to walk that back but the original testimony stands that's what he said and that person there's no distinction but that no disagreement at least as i said here that the person got that stuff and what's well there my understanding of their theory you know judge cooke used the word snake oil which that these the active ingredient is of no use and the inert ingredients are no use and they're all in a pill so there's no it's not like a yogurt where you can say well you're getting calcium or something from yogurt  and if if their theory is correct it would seem that they should be able to go ahead now you're saying we should look at dr mearns dean's statement that some people certification issue how far do we go into evaluating the merits at this point in time and that's exactly where i was going next thank you your honor the i was going to say the point of all of this is that dr come ari's patient who lives in illinois  the plaintiff is successful here what happens is these drugs go off the shelves they are no more because any time you sell another one of these drugs you're potentially hit for the full purchase price of the drug so you know in a strange resolution here dr kumar's patient is out of options  is is it the case that every time an online product is sold that it's as you say snake oil of course not we have evidence of you know eighty five people eighty five percent of people excusing me who ribeye this stuff that there class why if there is a claim it is class y no your honor they make a lot of that in the brief what he said was if there is a claim it can be scientifically evaluated that just means you can use principles of science to figure out whether it's true or not it doesn't speak to whether you do that at a class action time or at merits time and i don't think i answered judgment i'm sorry ok i don't think i answered judge moore's question which is yes this is a good sense of when class for it occasion stops and when parents start but here we never got to class certification we had planned of saying this is our class it's anyone who ever bought the thing between two thousand and nine and the first notice and that's it that's our class and we're going to go forward and three named plaintiffs for five states will be the champions of this class three of whom thinks that there's no benefit at all to this stuff the problem is they didn't come with evidence they came with attorney argument and all of our evidence shows that in fact they align does do good helps people some people more than others but it absolutely helps people how did the district court reconcile your evidence he mostly took the playbook of the plaintiff's evidence there are a couple string cites of evidence within the opinion but mostly he took the attorney argument from my brother over here and you know wrote about it in other words member whether the district court ever wrestled with your experts did or the or the studies now and  i don't think the court ever quote refers to the line of supreme court cases that pretty much change the terrain with respect to brit the class action so and that's where the district court fell into error given the facts we believe the district judge was let in the air by the players that he it's not that he didn't try which that he did not apply this most recent line of cases duke's halliburton comcast and had he done so he would have seen that this case is just not right for class treatment i see my it please the court timothy blood for the apple lease it's undisputed and it was underspin to the district court that the only reason one would purchase a wine is for the digestive health benefits then the question is whether or not a line as a matter of medical science provides those digestive health benefits in the words of duke's wal mart versus duke's the supreme court case that was just mentioned the determination of that quote little terminations of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke therefore it's an appropriate class determine a class act class case for certification i'm wondering mr blood is that where where is at what point does that scientific evidence need to be put on the table is it i mean it seems that the cases from the supreme court beginning with wal mart's say that the court has to scrutinize and look for realism about the claimant that sort of thing it strikes me that the judge black didn't do that here no i judge black to do it now first of all judge black relied on one hundred eighty five exhibits and about one hundred fifty pages of briefing his opinion which is thirty eight pages long doesn't cite any allegations it cites the evidence throughout and judge black weighs evidence so this is an abuse and his opinion is cut and  your opponent specifically told us to look at the declaration of dr murray forty one and forty two that says according to my notes from him people got good results so if if that's true would that not show that your theory of the class is wrong and the class certification should not grant know the ultimate the ultimate question in the case is whether a line works or does not work as a as a matter of medical science merenstein did not did not testify either by declaration or of his deposition that are only works for some people and that the advertisements a sect effectively falsus to other people that is not what he said what dr  and the only citation for this by palin's is to document science inclusion at page forty six of the record entry one fifteen he quote and i quote while a line is efficacious and produces a positive health impact the effectiveness of probiotics varies from person to person as in the case with all supplements and drugs including over the counter drugs he did not testify that it worked for some people but not for others he testified that it worked for everyone it's just the effect may vary at his deposition and this is in the sealed appendix at nine fifteen question and your belief is that ali advertisement claims are true for the general population right dr merenstein quote i think they are true structure function claims for the general population yes that what does that do the plaintiffs the name plaintiffs or the complaints in the in the effort so far do we see any evidence from the plaintiffs oh yes so the plaintive submitted most of those exhibits most of the  evidence and the evidence consists of scientific i'm sorry mr blood scientific evidence yes the plaintiffs are the ones that submitted all of the all of the clinical studies that are that were utilized in the case all of those clinical studies every single one of them showed that a line does not work the evidence the studies that the opponents are referring to are not scientific studies of a clinical nature dr merenstein cites to some animal and in vitro studies but the studies that were referred to an oral argument just now those studies are they're not really studies they're report they're marketing studies of whether or not people repurchase the product are these the studies that were done by the manufacturer yesterday gamble so that's that i'm saying what evidence did the plaintiffs independent evidence that not garnered from procter and gamble the independent evidence that was submitted that illustrates what the issue is on certification and whether it can be proven or disproven in a class trial are the our clinical human trials of a line in that or the bacteria it's an ally that we're we're that it four by g some were paid for by p and g and some were not even the ones that were in a paper by the plaintiff i'm still trying to get evidence that the plaintiffs saw before they filed the those clinical trials not the evidence you you have the evidence from p and g and that set it up for you the independent clinical trials and then also the clinical trials that were paid for by p and g and those those paid for trials by p and g those are typically in the world of science the suspect wants and those show quite clearly that a line does not work that's what the a s c bash one study that was a study paid for by procter and gamble the conclusion of that study was as a matter of medical science a line doesn't do anything ok so so you're saying first of all in answer to the question did you have evidence to support your theory that yes you do have scientific evidence to support your theory i correct in my discussion with your opponent that your theory is that a line produces no actual benefit except for a potential placebo effect so people think they're feeling better and therefore would buy more alive because of the placebo effect but that the scientific studies say that there is no actual benefit apart  from that and that's your theory as to why a class should be certified and be why your damages remedy is an appropriate remedy absolutely your honor and the issue on class certification is whether that issue can be tried on a class wide basis not whether plaintiffs or the defendant is is correct on the ult on that ultimate issue and i also at the trial court level though this is they proctor and gamble took a different tack than they did here at the tr court level they said that the merits should not be reached at the classification stage precisely the position that we are we have taken both down below and here at page id six four nine nine the court asked mr ireland one of procter and gamble's attorneys so to dye certification do i need to conclude that a line doesn't the line does what it says it will answer you don't have to reach that question also at page id six five zero two the court when do we try the issue does a line work as advertised with the trial on the merits mr ireland well like i said it depends on what your decision is with respect to class certification if you certify a class then yes presumably that is where you would deal with it and that is that is consistent with the supreme court's most recent  discussion of this issue in the amgen case where the ultimate question for the court should not delve into the merits of the case on classification except to the extent necessary to determine whether the issues can or cannot be tried on a class wide basis amgen versus connecticut retirement and that follows wal mart versus dukes to a degree halliburton discusses repeats the same language but but it's i think it's so it's not right if it's as a set up by the plaintiffs this argument for certification is set up if the one person actually  benefited then that defeats the the class certain the appropriate this of certification no i think that the question the question is the every person that's why i'm putting it that way  don't i don't i don't think that's the issue the issue is whether or not the advertisements are likely to deceive or deceptive that's really the question so if there was somebody with an unusual physiology that's never been known to humankind before was benefited no that wouldn't defeat anything about the advertising folks i b s the advertisements and this is under spew the advertisements the product is directed to healthy people in the general population not disease people so if this so this has to provide digestive health benefits to the general population of healthy people not diseased people and that's undisputed from that there are cases in the false advertising context that have dealt with these issues in the issue of science the leak case is federal trade commission versus pan tron one it's a one thousand nine hundred four case from the ninth circuit f t c cases are important in this area that case certainly wouldn't take into consideration the development of the law since then by the supreme court what it well it wasn't a classification issue so on the issue of classification it doesn't address that at all but the question of but it does go to the question of  satisfied customers of the the repeat purchaser issue and there are there than the ninth circuit said under the f t c act that satisfied purchasers not let the false advertiser off the hook but that is not the type of that the fact that the false advertiser was particularly good at falsely advertising the the product does not mean that they get away with it that the f t c cases also by the eleventh circuit involving a probiotic case on class certification in the fitzpatrick vs general mills case now that case was a case involving play yogurt that was infused with bacteria that they claimed was probiotic there the district court certified the class the case went up on a twenty three f appeal and the eleventh circuit affirmed that determination sent it back for a fix on the on the class definition that is not relevant here but the court when the eleventh circuit went out of its way to say that the district court absolutely got that analysis right now says that is identical to what was done here and also found citing to the recent supreme court cases that that the ultimate issue of whether or not the bacteria provide a probiotic effect or not was a question of medical science the ultimate issue in the case evaluate scientific evidence in this context the fact that there are disputed issues of fact is the reason why there are trials so one would expect that a trial would be had a classic battle of the experts in this case where one side would say this is the out this is the this is what the medical science concludes and the other side would say no the something else is what the medical science concludes and then the fact finder would determine that they were looking at whether or not the certification has to occur at the certification stage absolutely and down below that oh yeah absolutely that well down below remember a jumble of this was not a contested issue this is something that was created on appeal this was never an argument that was made below down below there's an opinion from the district court about certifying it's the court did make a judgment about that right down below procter and gamble said this works for everybody downbelow plaintiff said this doesn't work at all that is the kind of issue that can be tried on a class wide basis the question is not who's right or wrong on that ultimate issue the question is can that be it can that issue be adjudicated by a trier of fact on a class wide basis and issues of of medical science are prototypical issues the determinant to forward determination on a class wide basis because from a matter of medical science it's true either for everybody or for nobody when that when you look at what the population of everybody is and here is the general population of healthy people and that's what the studies that plaintiffs submitted below talked about these are studies that were done for the ultimate two to look at the issue of whether the bacteria in a line works now most of those studies concluded there was absolutely no benefit to a line there is a study that concluded that there was fairly significant statistically significant benefit with regard to some other aspects of it but that study has never been repeated now what study was that one that was can ok but it's in there it's the studies are actually discussed in our briefs on our in our brief on appeal so but that's an indicator the fact that it was never repeated again and the statistical significance was only slight is an indicator that it was a random finding and that it's not a true finding and that's the nature of science and that's why studies are done repeatedly in your red light and i'm sorry thank you very much nothing for th good morning again your honour's three points if i may one you were asking my brother over there what was the best buddy for us that's the o'mahony study it was i b s but it was the placebo gold standard and that's one of the studies attached to our one fifteen second i didn't argue about the class being overbroad or not having article three standing in my opening so i won't do it here but as an officer of the court i should point out that the tyson case from last week from the supreme court actually granted review of this article three standing  so for the court's indulgence that's that last point i wanted to make was as judge cook asked where was the district judges head and what is being told to him and i'm reading directly from page twenty six of his opinion he says the resolution of these questions does not rise or fall on the individualized conduct of class members but on defendant's conduct and the objective medical science of whether a line works these questions are binary either the advertising message was made or it was not and the digestive health claim is either true or not full stop so that's what we were advocated by my brother to the district court and that's what he held and that's what fundamentally we don't believe can control this because again there's a range of folks who take a line good bad everything in between and what the court has further questions what would you say you did wrong why isn't it a binary question because there are lots of people for whom it either works great for the variants but it is that and a quarrel with the general proposition that if the placebo effect varies as among them to mean that it has to be placebo some of the maybe but again that just creates more work individualized issues and we're doctor but he argued for these things and it creates independent issues that once again would need to be tried in individualized trials and that's again not what class certification is for thank you your honest thank you thank you both for your argument the case  submitted with the court called the next case