six circuit thanks for braving the cold to get here we're doing arguments indoors today which i think everyone is happy about cook may call the first case good morning your owners district judge in this case tossed aside plaintiffs scientific evidence the defendant's flea and tick products are absorbed into a pet's bloodstream instead of as defendants claim migrating across its skin and granting summary judgment the district judge called that evidence a red herring here's the irony in that conclusion in his may second order he said quote the key issue is whether defendant's products truly perform as claimed namely whether the product after applied as directed migrates across the pet's body aka translocate without getting into the animal's bloodstream which would require f d a approval so in the end the district judge disregarded evidence on the very issue that he himself declared a key issue in the case and to make matters worse he allowed the defendants to submit purported expert declarations on that issue but he refused to let plaintiffs depose those to clarence to make matters even worse than he would have adopted what about to you know a lot of people think the federal court litigation would work a lot more smoothly if district court judges were more actively engaged in case management this was a district court judge who was very actively engaged in case management and tried to put his finger on what the case was really about and i think everyone would agree in fact i would guess most both lawyers sets of lawyers in this case would agree that in the abstract we need more of that rather than last so he gets this thing boiled down  at that point it seems like the defense is the one concerned about how aggressively he's managing the case but it's seems you know it doesn't seem this is what he says he's trying to avoid discovery for two years and a lot of expense in both sides so he boils this thing down he gets the consent to let's get these tests done and then move to go with what the tests say and everyone seems to agree on it and it's not you it's i think is mystical mako that agrees to that and then  it doesn't follow through a duck he doesn't follow through entirely he does allow some discovery but i don't know it just seems like what the whole case is about actually i think judge there's a there's a cut off point ok you get into the summary judgment and let me explain why i think he didn't follow through at the right time because under his plan it called your agreeing initially he was doing the right things in your initial agree that everyone agreed that that approach would work and i mean that kind of bound themselves to that including down themselves in terms of what discovery they'd be entitled to later on it was silent as to discovery the ari seventeen is silent as to discovery but i take your point they did agree on what the issue would be that they would explore through these studies defendants were to come forward with the studies that substantiated what i just read but they didn't completely do that he recognized on aug thirteenth that pages five and six that they didn't completely do  defendants came forward with their studies to refute he gave some examples of how you do from understand your first theory of the case and even on defendant's terms even a defendant's view of what happened even a defendant's view of forfeiture and waiver the district court judge was still inconsistent that's your first argument he was he was inconsistent because he didn't recognize that the defendants fell short of what he was expecting of them the plaintiff did produce the study scientific evidence that shows the this  into the pets bloodstream and then being excreta through the urine and everything like that they did the test they presented the studies what did defendants pretty present well first offenders didn't say anything about the bloodstream and then they came back august thirty first with mr davis a supplemental declaration in which he said yeah it does get into the bloodstream but it's insignificant so now we have experts saying the opposite things one saying it's biologically relevant not mere trace some amounts and this is this is  how it's working in the bloodstream that is mr dr jones in the experiment report and then on the other hand defendants supplemental declaration saying ok you got it it does get into the bloodstream but it's in significan have the battle of experts there what does he do well his original order doesn't really speak to what's going to happen in the event of a battle of experts it just says if the defendants don't have such studies we're going to go to a neutral lab and do that rather than forcing that on the parties which point of we're all in favor of in the september fourth conference he tried to get the parties to agree to that something that already agreed to he tried to get them to agree to that a sort of a settlement well that's not the way to follow through with the may second order and so what what he allowed defendants to do was to squirm out of giving their direct response to the bloodstream scientific evidence that the plaintiffs had had presented and then when it came to september fourth he said take two weeks and think about whether you want to agree to this plaintiff's come back they agree to it as they had all along the neutral the fairness said no at that point the judge had not followed through with his may second order that was his fault and then he said ok we're back to square one and that judge and i think it's when he instituted the conventional approach of ok we're going to do summary judgment when you do summary judgment under ordinary circumstances it opens up the possibility of discovery again because there hadn't been any this goes back to your point that you original case management order doesn't say anything about discovery but it seems to me it's implicit the whole conversation is about if we do this we won't need discovery and all this other stuff through but the then what he does at this point is consistent with that well it is except that words it would have been ridiculous to have that original case management order get the test done of course it's appropriate after the test is done if the parties can't settle to do some adjustment or stand what else what other options did he have i think he was right to try settlements i think that's what he thought would happen once we have the test we'll all agree what it says than and that was maybe naive in retrospect but ok so now he calls for summary judgment motions and affidavits i don't understand why that means everyone now can do full discovery well we're not talking about f discovery in fact if all you want to give in this is that dr davis who was the expert in the supplemental declaration who came forward and said yes it does get into the bloodstream but it's in significant doesn't mean anything if all they got with was dr davis's deposition as they requested i be making a different argument but he didn't give them that so it wasn't full blown discovery relooking for it was just enough to respond summary judgment but let me make one other point just because not only did they did defendants depart from the original plan by refusing to go to the neutral defendants on page one of their it back to the scope of the the original claims for the all the dispersion claims they made when they did that they opened up the opportunity for plaintiffs to refute all of those dispersion claims and you know include the if that so i don't understand the way well they do enter into it judge white because if you track the defendant's theory and i have a science it's a theory the show paid study says it is thought to be carried by body oil so if you track their theory it's carried by body oil and it gets into the glands and then the the glance constantly replenish and here's why waterproof is is important because if the glands are replenishing waterproof doesn't matter it doesn't matter if you wash your pet if the pets glands or earth are going to be doing that our study disprove that or at least challenge that and what we need what we needed to do as we said in the request for production of documents we needed to get the documents you had on all of those things translocation in the in the what you're saying that your waterproof claim was based on the theory that even if it was red across the skin it still wasn't waterproof no even if it is this your honor if it is spread in the bloodstream as we say then it comes out and waterproof miss does matter if it's their theory their theory is water proof this doesn't matter ours is what i don't understand about that is granted it seems like you had several different claims that you made in the complaint but they seem to all get subsumed within the one issue the judge stated and that is does it spread over the body without getting in the bloodstream that's the way he said it well i don't think that's i don't think that was the issue in this case because so tell me why i'm in error if i am the advertising here doesn't say that it that it does or doesn't get in the bloodstream as i understand it actually mary has said that for years there's an already fifty nine exhibit for there's a there's a document that says  made the claim on its label that this is absorbed is not absorb systemically in the e p a comes back until it's them it is absorbed systemically you stop saying that in their website they say i know what we have some examples of what the actual ads were right looked at in the in the record and i didn't see anything in the advertisement that you're complaining about this is false advertising case the right says whether it did or didn't get in the bloodstream it says it disperses across the body so my wrong on that it says a disk disperse across the body but those two things are inconsistent is there any and that says it gets in the bloodstream yes that's excuse me that's is there any ad that says it does not get in the bloodstream it says it what the ad says is that it because what that's that's what bayer says that it is then it's whipped all over all of the surface by the body oil so but but stopping right there i thought the whole point of this was the manufacturers claim that it wicks across the body right you say it gets in the bloodstream right that all gets subsumed do that into the into the single question as i understood to be framed here as to whether there was a good faith belief that the defendants had in this case based on legitimate studies that it spread across the buds across the body right the fact that it might also get in the bloodstream in terms of large amounts or small amounts seem to me to be  the the narrower issue that you would conceded was the dispositive issue in this case so where am i going wrong there we acknowledge that that there that the translocation theory that they espouse is incompatible with the bloodstream theory and they acknowledge that as well that's why i'm trying to understand this question answer i think what judgement he is saying is this turns and what came out of the case management order and your client's concession that this is what this case is about and i thought at that point the issue is does it spread over the the top of the pet's body that where's the scientific evidence that it spreads over the pets but was it right had nothing to do with  entering bloodstream oh it did it did that in some so just tell me read read from the case management conference where it says that the case management conference has has innumerable references to the you're quick answer to judgment is both issues were left in play after case management both issues they repeatedly talked about it entering the bloodstream and mr majoris on behalf of bayer said it does not enter what you repeatedly without getting into the animals bloodstream which would require f d a approval that's why i just spent so much time talking about it in the case management conference because this is an e p a regulated product inconsistent right so it's not that you have a separate claim that it gets into the bloodstream you are not maintaining that as a separate claim you're saying as an evidentiary matter if it's in the bloodstream that is evidence that it is not travelling across the skin that's right ok now i know you have joan saying that it's in the bloodstream right did you make it clear to the judge that this was not a new argument that this was your proof that there are study was inadequate yes in our submission we pointed out that their studies did not test for translocation studies didn't test for that you'll notice the show paid study and show paid in his co authors were bayer employees so let's just call it the bayer study the bayer study on two thirty eight i believe it is says it is assumed currently thought that this is passed by body oil well we refuted that with the blood evidence but the market just to make sure i'm getting the case management question right in the response of judgment key wasn't the case management order not just what the single issue in the case is but how we would test that issue it wasn't there agreement on that and the thing that i think people are thinking is unfair about your client's approach to this is once you got back the test and didn't wasn't the way you were hoping it would go then we started doing your test and let's not start doing it skiver my wrong about that it was exactly the way we hoped it would go because it showed that it's absorbed into the bloodstream which is as i said incompatible with it wicking across the surface and that it's excrete it back out to the urine that's that's a key factor from the experiment dr jones a study that he says he's showing it goes into the bloodstream and from the bloodstream it goes back out to the urine and to the skin that is a contrary theory from what they are espousing now what's the basis of their theory it's the show paid study but it doesn't test for translocation all it says is it is assumed that is carried by body oil that that is what we have just said and i know this court is a stickler for science we have the science on the plaintiff side they did the blood study we don't have science in the show paid report because it's an assumption the show page report wouldn't even pass analysis if they tried to get it in because they themselves say it's an assumption and then when when dr davis comes back and he says yeah it does get in the bloodstream you're right but it's insignificant he offers no science to back that up and that's our complaint when you've got their study why didn't you have to discover or at least to depose their experts at that point why did you wait until the deadline it pass well you wanted to do that that is because under the order we were obligated to refute their studies and what we did in our submission was to say number one none of your studies test for translocation so there's no scientific proof of your translocation theory in your studies and moreover finding that their submissions satisfied their initial did you object to that he said that a day after receiving it but before receiving hours i can't tell you what standard he was applying but what i know is when we did our submission on july thirty first we pointed out the ways in which their studies never tested for translocation and in which our st refuted translocation that's what we were supposed to do and that's the order in which we did it if we could have objected sooner you know i think it would have do d rail the plan we were living within the plan at that point  and the defending i want to make sure i'm grasping with your view of following judge posters order you know judge coulter was thinking you were going to come back and explain why the studies were defective right you didn't just do that you got your own experts and he gets frustrated by that but i take it one of the things you're arguing today is we can we can win even by knowing our own experts yeah i take it that's one of the arguments if you look at your experts things get even better for you is your view but that gets you back into what the case management order really required and so forth and so on and i take it part of what you're arguing is a listen even under the terms of the case management order followed to a t ignore our experts we still so there's a problem that's right because i know that you don't have to you to me just a moment to adjust the podium here and return good morning in may it please the court there are a number of places where i can start this argument i think the court appreciates the active case management of judge poster so i think i'll jump in by responding to questions that have been raised about the blood stream issue judge white my friend told you that the blood stream issue is the obvious of the translocation issue and i think i need to correct the science on the record on that because that's not correct marial  invader have never said they have never represented to anyone that their product does not ever in any way get into a pits bloodstream of course it can it can get into the bloodstream in any number of ways and it was even recognized in the earliest e reports in fact those were relied upon i believe by dr jones the question is not whether it gets into the bloodstream the question is whether it would work but the systemic leak which means by going into the bloodstream if i could just explain what systemically means that means that a drug gets into your bloodstream like an antibiotic and you can't just take it once for example that's why you have to take antibiotics for fourteen days so you can get enough of it into your bloodstream so that it will actually work now the representations of this goes i think to judgment kids questions about the rule sixteen order in the bloodstream issue it is true the judge poster in the may second order mentions bloodstream but he is focused on the truth of the two quoted representations one from bayer one from mary and those appear bridging pages one in two of them to work in those representations say absolutely nothing about whether a product gets into the bloodstream it only says that it works by what's called in one case the term is coined translocation and the other is move just moving across the skin now that's exactly what judge posters order goes to because he says at the end that whether the the detection of some product in the blood stream is irrelevant to the question of whether it works by translocation and then he says to the plan is evidence of small amounts of product may be in the blood doesn't prove that defendant's dispersion claims iraq that's the  argument that he's making so little better actually refutes the obvious arkwright but even from your perspective if you look at what the plaintiff's expert show does is there any evidence in this record whether you agree with it or not is a different question that says that if it does get into the bloodstream in large or small amounts that therefore that means it can't or doesn't work by translocation other words it one excludes the other no i don't see anything liar actually that may have been the that may have been the assumption the working assumption the do not asking you to assume anything i'm just asking you in the record are you aware of any of any place where the plaintiff's experts say that well let me i think the answer is no and let me back up an answer why the answer should be no if you look at what judge pollster told the plaintiffs repeatedly he said plaintiffs you need to show me after bear in mariel produce their studies and he found them that on their face they sustained the written claims that he set out in that may second or once he said that and once he said that the face of those studies show paid and in our case the dike dissertation which is a lengthy document  support the representations then the plaintiffs were obligated to come forward with expert scientific evidence the term scientific was used to the case management conference and he clarified that with the word expert in one of his later orders after the five to order and he reminded them after they sought more time to put in their testing that he believed that they were not doing what they were supposed to be doing which was actually addressing the bear in marial studies not putting forth a separate study that comes up with some different conclusion well in fact that study did not come up with a different conclusion and i'll get to that in a moment but let me go back to the jones declaration because that's the or the jones report because that's the only place where you could plausibly say that the plaintiffs tried to satisfy their bird as agreed to and as set forth by judge bolster of coming forward with scientific expert evidence and if you go to pages i believe it's six in seven of the jones report it's number docket number thirty five exhibit four and then there's an amended version of it which does not materially different for purposes of this argument and docket number fifty nine exhibit t it's then it's attached to their response to our summary judgment motion at page six and seven jones lists out a number of bullet points these bullet points are the only place where they ever through an expert attempted to say anything at all about the bear in marial studies everything that my friend talked to you about the in his argument this morning was attorney argument which was unsupported by any citation not even incidentally to the jones report that was strictly attorney argument in their summary judgment motion docket number in the summary just response excuse me docket number fifty not so i can walk you through each of these bullets and show you why these don't do not satisfy the burden judge pollster put out for them  to start these bullets are going to in a section of his report that purport not to say that the bear and mariel reports are wrong that they are fraudulent false in adequate unreliable for purposes of these representations those pages of the jones report simply purport to show why his study with experiment was superior to the studies that just pollster required us to submit is if you gave us the the consecutive page id number it's a lot easier for us to find your arms i'm sorry about that your honor so to talk about the bullet points to respond to the key ones he's using well i'm not sure which ones exactly he's using i think he's not he's not really separating them out but so for example in the first boat joan says the baron marial studies were performed by the interested parties themselves conducted by their own employed scientists but you know i must i must tell you i point there's a little bit something to their their complaint it is it is a funny case management approach that says ok here's what will do we'll figure this is a false statement place we'll figure out if it was really true and we'll let the defendant do the studies and then you know we can all agree we can either just settle the case after we've seen the studies because we can all agree for better or worse or you can file something just responding to the studies i mean now i think your obvious answer to that is what you agreed to in the case management order so you've no right to complain but it is a funny argument to them and in fact we i know i know i know you're the ones who didn't want this but i it is still funny that this is how it all played out that the way i just record judge i'm going to figure this out is i'm going to have the defendant do their own studies and they whine as if you don't like it and it's didn't we're not required in fact we're not allowed to do their own studies we had to produce an existing study within the timeframe that you have yeah ok ok so i guess that's good in one sense but bad in another you know the defendants in control of prior studies they've done you know i don't know i just i think i think it it completely eased their case because they were the ones who had to make a prima facia case and judge post to relieve them of that burden the initial burden on us so i think one of the more strange part of the process is is they put up their reports that substantiate their claims that that makes some sense to me then there's no discovery i mean that seems like a really odd way to manage a case there's an important point to keep in mind and i think judge white brought it out in her questioning of my friend on the other side and that is as my friend said documentary number seventeen said nothing about discovery so it was their desire to i think there i mean i don't want to put my words in their brains but i do think that their desire was to try to resolve this case quickly get a settlement and be on their merry way and it didn't work out that the proof supported th there was nothing in that case management ruling that for bade them asking for discovery in fact i will confess the our counsel were quite surprised that on may third or may sixteenth rather after we had submitted our studies and they've been found acceptable by the court that we weren't served with discovery requests but they didn't do that so under this court's case law the timeliness there they had the opportunity to take discovery absolutely and in the summary judgment stage they in fact did get some limited discovery let's go back to john's reports are stacked with you a little bit because that's ok i'll i want to make sure to get through all of these so we start with the first one and there is the first bill it is an observation that the baron marial studies were performed by the interested parties themselves conducted by their own employed scientist i'm going to put aside for purposes of this because it's summary judgment of that statement isn't in fact true the doc study was an independent graduate student in two of the six authors of the show paid study were not bare employees but that said what does this tell us it tells us a factual observation it doesn't follow that by saying and therefore it's unreliable and therefore they have cooked the numbers that they reported they didn't do that we move on to to bullet the observation is made that there was no heard about before and he then goes on to say however visualization of radioactive compound in the blood then you'll within the dermis hair follicles and sebaceous clams and by the way the blood v newell's that's the that's the tube that's not inside the vein that's just it's he says it's observed from a picture in one of those articles on the face of it and that search his comment on show pig now again i'm going to put aside the fact that there in fact was a quantitative measurement certainly a pages one a weight in one hundred nine of the dike dissertation but in any event this is the suffers from the same problem it's an observation it doesn't give an expert conclusion that and therefore the studies are inadequate incomplete false or fraudulent that was the burden that they assumed with enthusiastic agreement from the initial case management conference let me move on to bullet number three then again keep in mind the whole point of the section of bullets is would have picked up more translocation not less and in fact his study does show translocations we put forth a brief so let's move on to bullet five in the jungle in the jones report jones tells us that he used to differ breed of dog  shown for say a little dog instead of the standard laboratory test dog which is the beagle which was what was used in these other studies and he justifies this choice because of an observation bear exhibit a that's the show paid report again or the ship shall be an article that quote the mechanism of action for the dermal location and distribution of these agents in dogs has yet to be fully characterized now he's my friend has relied on that statement a fair amount by saying that they don't know how it works and to say that it has yet to be fully characterize is not to say that we that we're just making translocation up quite the contrary there are still questions to be answered at the time of the show paid article and that's the basic scientific observation but  sensitivity of the dog breed as the e p a report he relies on shows this has to do with the adverse events things like rashes things like skin irritations that qualifier is other th certainly wouldn't show they really wouldn't show the inadequate incomplete false or fraudulent falsity or fraudulent of the baron marial just issues a basic question which maybe has i hope a simple answer you know judge poster obviously thought his case management order meant that what the plaintiff's burden was was once you produce these studies it was their job to attack them or why they didn't work and if they didn't work you'd go from there and he seemed to assume that didn't mean hiring your own experts to do their own studies but just a case management to really say that news or is there something in the case management order that makes it clear that the plaintiffs could not respond to your studies by doing their own studies and using those studies to show how this can't be right i don't think it does it but i think that's the important point that these this study doesn't do that all it does is it effectively except for the bullets that i'm walking the court through here completely ignore the can i just follow up on that at the point i'm making is you can create a material issue of fact by having two sets of studies who kill who can i mean if you if your study doesn't proceed along the lines of you know attacking every single thing the defendant study did you could it's still possible to create a material issue of fact i don't think i don't think that's what any of the orders here anticipated because this is just poster pointed that was the point of my  perhaps understand it better now your honor so is just close to repeatedly pointed out the question was whether there in marial had studies that gave them a basis for making these assertions in their packaging the assertions that are in the five to the may second order pages one and two and he said repeatedly that the consequence of failing to disprove that would be five times he said it in the may we can't do nothing for statement that's the point i'm sorry that proves it can't be a knowing false statement right that shows it's true or not well i don't think that's quite right i think he said that there had to be a basis for the assertions and i think you see him saying that there was a basis for the assertions i think you see him saying that there was a good faith basis for the assertions but all that said is that he's what he's really trying to do is get down to brass tacks ok i don't see why you're making assertions that it's spreads across the skin their position is that it reach you you come up with the with the study that shows it's presence all across the skin they come up with an expert who says look those studies really don't show that it's spread across the skin it just shows that it's spread but it's spread not how it spread and i've done a study that shows that it definitely spread throughout the blood system and we don't get measurements on the skin that you would expect if it was spreading across the skin and therefore as an expert i conclude that the most likely explanation for how this is happening is that it's spreading systemically and not across the skin i think it's very hard to tease that out of the jones report here and i think if i can go through the rest of the bullets that will help to answer your question well but i'm happy to answer if you have a specific point part of it you'd like to point me to are you saying that the jones study doesn't say what i just said  i don't i don't read it as saying that i say it is as saying that i've read it as saying that i've done some tests and i think that my tests show this of the problem is that of course the facts of his test the tables that are set forth that i believe  pages ten and eleven if i remember correctly of the jones report show in fact that it is moving across the sky at five minutes at an hour at twenty four hours and remember that against best practices dr jones and experiment have tied up these dogs for the first twenty four hours and they can't move and it is actually spread the table shows tip detail all he all hugh have in his report the best they have i don't see how someone can look at these two reports and come to the conclusion that jones doesn't have doubt on the conclusion that it's  reading across the skin by a process that is writing a quest it's good not into the blood and then coming out but i think i think actually i disagree with that because i think that the only place where he does that he does that in completely conclusory unsupported by any reasons for him but beyond that judge white i think you have to come back to what the bird was under the case management or it was to show not that i have a different study but to show that the bear and mariel studies were inadequate incomplete false or fraudulent where in the bare study or the mariel study is it established that it's  paid it says that the test quote demonstrated the migration of the radioactivity because remember these are the substances radioactively tags so they can track the movement across the skin from the application sites to distil areas of the canine hair coat and skin that is exactly what the claim yes that is it is moving across the sky the air code in the skip the dyke dissertation which is a quite lengthy dissertation contains that same conclusion having  across the skin from the place where it was applied and vengefully reaches the tail i'm not sure how that doesn't meet our burden of showing translocation fact i think that demonstrates it pretty darn conclusively but did once we didn't have we not being dispersed through the bloodstream i don't think either study looked to that specific question but it is it would be impossible for any substance to be applied to the skin and move through the bloodstream and back up through the skin in that fast way that's again where i started by trying to give you a little explanation about what's the stomach means and that's why we take antibiotics for fourteen days instead of just one shot  although i guess they've now come up with some of those that supposedly work ok and you have an expert playing that we we were put to the initial burden of showing existing studies that supported our advertising representations we didn't have an expert except for well actually we did put forth experts but that wasn't ever our burden our burden was to put forth the studies their burden was to refute the studies they didn't do it can can i can come back to the only places where they even tried to mention the baron marial studies but my answers on the rest of the bullets with regard to the bear in mariel studies are going to be the same and that is that the the jones report offers observations those but not but not anything that is actually even remotely close to sustaining where they were going to the order of the court of the order the question was falsity not knowing falsity according to the order the question was whether this studies the defendants had supported their claim that this drug worked trim by translocation across the top of the skin the so the issue then becomes you meet your burd and i think i want to raise you met your initial bird in the way the order worked of showing that was true with these studies but i what i'm curious about i want to make sure i'm grasping a really basic point here is that as judge poster saw it the question was whether your studies were whether it was a falsity because the players could come back and say well you said this but that's just that's not true here's here's why those studies don't support the claim or raise the question knowing fal the i think that's in lightened that the understanding of the may second orders in lighting both by the conference that preceded it as well as the orders and conferences that followed it and there's another aspect of the case that the court may have picked up in at least looking at the transcript of the may first argument in that there was a reference to a a dan in case this was one of the reasons why the plaintiffs advocated so strongly to get the m d o panel to put the case before judge pollster well danon case as we understand it to the judge followed a very similar procedure and that procedure yielded a settlement some changes in the representations that were made and the attorneys got some fees in that case and so if what both mr clarke oh who i guess was involved in that case was very knowledgeable about it as well just poster were trying to get at was something where something similar to the dan in case in fact if you look at page fifty eight of may first transcript mr klock oh says referring to the dan in case that that issue was clinically and scientifically proven and you presented the same challenge to the den of defendants that you presented here and we said if they can substantiate we'd walk away and that's that's how that's really sort of how we got to this case manager and order was a judge poster had a previous experience following a similar procedure it had yielded successful result nothing to do with knowing falsities just whether it's true or not well i think but i think that what you is i mean i'm just my very basic common sense question which i think has a quick answer i just don't know it right off the top of my head is it's fine to tag someone with false representations when they actually have something supporting what they're saying that it turns out after the facts someone can prove might not be true but that's not normally thought of as a false representation because the state of mind of the individual was hey we here's our studies that show it this is what we thought we were advertising here's why we thought we're advertising it hey it might be your studies maybe going forward we need to rethink this right and this is a retroactive place where i'm trying to get to the may first in the later case where we get to pick those inform you that just pollster even so he might have not used the term c enteral he might not have used the term intent in the major second order that followed the may first conference that's clearly what he meant in certainly what he said he meant both in the may first conference because it had to do with whether we had a basis for making the assertions he was not that demonstrated by the fact that that it's a retrospective looking quote present where you go back and look to see if there were studies that backed up the statements made at the time exact even though current studies may theoretically show that those studies were wrong and and in fact the representations were false but they were believed to be false at the done exactly and that's the way you think about the case this isn't about bear and how careful jones was or was not and how much he substantiated or didn't substantially it's whether what where the defendant studies gave a reason for this representation if they give a reason for the rest of representation the other side's burden is this one hundred i know that's that's ridiculous you said this but you knew that wasn't true and here's why which is what every different inquiry from an inquiry over who's right about this what well we're just we would be in violent agreement with that view of the case and certainly that's the way that we have briefed the case in in in our red brief in this case but what i wanted to make sure of was that the court did not think that in adopting this i think the term that we used at the time of the it was an unconventional procedure but a very active case management procedure in narrowing the issues under his rule sixteen power to a single issue which is this representation in this representation supported by these studies and finding that they failed to  in what i wanted to try to do by walking for the jones report was to answer the question the remaining questions that you might have about the state of the record in answering that question i totally i totally get it we appreciate it and i think i think thank you thank you for your time and i think what i'm going to do is give mr de marco seven minutes rebuttal to start and if that runs out and you you frown at me aggressively or violently to borrow a term i will think about it if i could just add one last point judge with very few depending clauses there are fifteen seconds the claims about the waterproofing and all that those were already out of the case at the eight thirteen conference because of the case management order all right and the judge was just trying to find a way that some change could be made and the settlement could be accomplished without going down the road that we're ultimately on it thank you thank you for answering our questions we appreciate it mr de marco so set up for seven minutes and then look to see if there are still questions and have a few other cases thank you you're ok can i say ask you about this last thing i was saying i mean if you're thinking about it in two different ways again you know maybe of just a real quick reason why it's good to get me off of this but you know  when you have battles of experts you know one way of thinking about it is who's right you know what's really going on here and i'm just wondering if that's and that's that's a part of the way you've argued it and i'm just wondering if it's fair to look at what judge poster was doing is ok wait let's just find out if they have studies supporting these statements they produce these studies supporting these statements and i'm just wondering if you have to burton's burden one is to show those to the studies actually don't support the statements and so you couldn't possibly say this in light of the studies or if the studies do support the statements you know very effectively fraud because how can you possibly rely on that given how sloppy and so forth they are i guess i think you're arguing the cases if it gets to a jury if you've got something that undermines the validity of the study but i think the question is does it undermine their reason for relying on the study in this representation as to how the drug worked i think it falsity no i do not see i do not agree with that point because we are here under any number of states garden variety consumer protection laws and those are about falsity they're not about knowing fal those are about making misleading or deceptive so those laws apply when someone makes a representation and their representation they have a study an internal study that supports that zaki what they're saying they can be tagged after the fact for false representation after the fact if it turns out that study is not true if if they if they make a representation as to the characteristics of their product can't be challenge if they do a flawed and if they do a flawed study or rely in correctly on information in a study yes under state consumer protection laws they have mischaracterized the characteristics of their product and they can't be held liable it is and it's liable not just for falsity but it's for deceptive misleading misrepresentations so to the extent judge poster picked i would substantiate i read your studies is saying ok fine this thing migrates across the top of the skin it may be does work that way but we can show it also works by going into the system right how is that how is that necessarily this i don't see what kind of a false representation is that when it still does migrate across the top of the skin you're just showing it does both well we're showing first of all this is what show paid their study says about trans luke about the about the mechanism of distribution across the skin first of all it says the exact mechanism and i'm skipping some words of distribution of image backlit printed in canine skin still remain subjects of interest for further investigations so they didn't test for the mechanism of  distribution so if they are then went forward and said hey here's how it it it distributes over the skin it trans locates this does not so the study does not support that so we come back and in portions that he read you dr jones says hey that study didn't test for trans location the way you're describing it didn't test for that and furthermore we did test our blood borne theory and to go back to something the judge white pointed out here's what dr jones said happens systemic absorption into the bloodstream of fip or no imidacloprid was demonstrated along with these are key words  surface so what dr jones believes he's proving with this is you all didn't even test for this i tested for this and what i found is it gets absorbed into the blood and then back to where you are finding it in the hair in the skin after the blood from the blood and you're taking credit for this wicking process that's wrong and so he's saying i have better evidence you didn't test for it all so i think you know just so we're in a position where the plaintiffs have the better of the scientific evidence here now to come back to your original point about deception what would have been your theory of the case management order if they had not been able to produce prior studies they just didn't have them well or they or what they have are studies that just didn't bear on the question but then after they produce that they said or maybe best of all for you a study that actually support your theory the case let's let's let's think about it that way so a study that supports your theory of the case they say after producing that study but but your honor you know this was done a while ago we really don't think it was how to design the ball we wan do our own studies on this right we your would your view what would your view of the case management order have banned with respect to that request by the defense they could or could not produce those create and then produce those studies in terms of deciding what happens if someone could give you my honest of the of the order it did not would it or could not it did not say if there is a if there's a tie that he breaks the top it says if they can't produce studies substantiating their tran location you know their self dispersion then it goes to the neutral it didn't say what happens in the event i my hypothetical is the study helps you all they have is two studies and on balance they have you they say let us doing this study because we think it'll show we're right would you buy answers to saying it doesn't speak to that or that was the case management order would have allowed them to create new studies at that point time substantiating their theory of the case i think that what the case management order trips off of is their failure to substantiate so under your hypothetical if they failed to substantiate their studies it didn't matter what the plaintiffs did whether the plaintiffs came forward with hey here's the one nine hundred ninety study that you did that actually substantiates our blood born under the case management order that would have that would have gone to the neutral they were going to produce new studies that point to your view of the case a neutral would have produced the study yeah and they would have been bound by everybody would been bound by the neutral but they in the end rejected the neutral i'm just trying to give you the reading of the case management because i think when you take a careful look at it some of the scenarios you're laying out just aren't addressed in there but to to to to get to one  other point that they made in terms of good faith basis we have to come back to the case management we're going to live with it we have to live with it but it's a substantiate it does not say good faith basis it does not say subjective belief or anything like that and substantiate to us means to to prove and that's what dr jones was talking about in his report when he pointed out that they didn't test for four translocation  he was fair because he says it's good faith belief you lose if it's good faith belief i don't even think we lose on that because the show paid study says this is yet to be tested so they a theory of translocation that they don't have a study to back up shope a doesn't back it up show paid says thought to be by body oils that's not scientific now dr davis comes back and he tries to clean that up by  saying you know here's how it operates it doesn't go through the blood and all the blood stuff it's insignificant but he doesn't cite any science at that point that i think that's a key point i think i think we've gone there and like any last really killer point you want to me let me see if there's anything that's the absolute we need to to say i did want to point out in response to judge white's questions paragraph fourteen and fifteen of the jones report get it exactly your what you were talking about why he thought the blood evidence was so compelling and disproved remember the last line of the the jones report is that the self dispersion claim is disproven by his data thank you very much than so much for excellent priest in the case excellent oral arguments for listening to him answer our questions we really appreciate it and we're going to work through the case thank you thank you very much the case will be submitted the court may call the next