may please the court good morning morning preserve four minutes for a bottle well my name is donna jean evans and i'm representing jane miller in this case today we are here to appeal the district court's grant of memory judgment to the apple e can't pack group incorporated the district court's grant reason for summary judgment was that the court felt that we could not prove causation to link the damages that miss miller incurred to the advertising representations of the apple a just your credit it's ruling misconstrued the nature of the damages that we asserted and that led the court to come to its erroneous conclusion this is a consumer protection action and it's filed under the iowa private right of action for consumer may ask you about ok i had my share products cases and practice why in the world we have iowa law law the manufacturer state applies in a case where a person claims to have been injured in ohio over in alabama i can assure you they're not applying michigan law down there so it just seems extraordinary so what why why isn't it ohio allows to it's a law well when we brief the issue in the iowa law it's a very fair relatively new law and that in fact i was was the last state to enact a consumer protection statute the i don't want the attorney general has used the iowa really done a choice of law analysis here to make sure that we're applying the right law because it doesn't seem like we are the judge all over did and he ruled that we could years the iowa act for our chip that applied in this case to residents outside of iowa based on the wording of the aisle and it doesn't limit it like that the ohio consumer protection act limit residents of ohio specific kind of begs the question i mean in terms of what law cause to be looking at what the iowa law said so in normal short choice the law there are set of principles that govern which as opposed to just some statute says it applies but i don't want to take up too much your time we'll see what the other side has to say about that as well ok thank you well i can't manufacturers this cat litter and i can't like i said is an iowa corporation the cat litter is called world's best cat litter and it's represented to be flushable among a whole slew of other things our plaintive chainmail are bought the cat litter when the plumber came and cleared out her drains he realized that this cat waste and cat litter was found in her drains and miss miller had no knowledge that maybe she shouldn't be flushing the cat litter she eventually learned that due to cont conditions in her own home plumbing that flushing was not something that she should have been done but there's nothing on the world's best cat litter bag in the advertising that unequivocally says it's anything but flushable so we filed this action as a claim for misleading and deceptive advertising understand the record just because some rather than an old tree in the backyard ok well first of all it's not necessarily a defect in the cat litter it's the representation in the average or however you want that's possible and our contention is that would not have flushed it had she been aware that imus simply conditions in her plumbing would would allow it to build up well she's got a problem with a tree root in the backyard that has nothing to do with  representation made by a manufacturer as to whether cat litter is flushable for pipes that are in good condition would you're a tree with that sure ok so you move there yet it was not say that but it was your burden while the cat i mean i'm sure didn't say this stuff is flushable no matter how bad your pipes are and how blocked they are by other structures right all it says is flexible that's all the bag says now if you go to their website now after we found this last year they have a representation on there that it's flexible in well maintained system i guess i get what i'm saying then obviously what other folks s questions is it seems to me that the potential gap in your proofs is expert testimony that would that is credible enough to allow our jury to find out that the pipes with the stuff got clogged in there because the litter was not as represented rather than by some problem with the pipes the problem was with the litter not with the pipes i'm just soliciting your your explanation of what that evidence would be the evidence that we have is that moment first of all miss miller was not aware that she had any problems with their pipes and the only way that she became aware was when the plumber put a camera down the pipes in videoed it and kent and the plaintiff's expert agree that the only way that you can find out these latent defects is to put a video camera down your back your pipes and can't contain concludes that that's should be part of regular maintenance now like you said jane millard never did that she never considered that it's part of regular maintenance and if it is true that the only way to find out if your plumbing would be safe to flush world's best cat litter is to put a video camera down it and inspect it periodically the consumers should be aware of  is that if indeed the only way you can safely flush it is to conduct regular video instruction and inspections of your plumbing a consumer should be aware of that before they flush it but that's just one of the things that a normal consumer would not think now i said miss miller's plant during lines after an inspection were found to have a dip in the line and they were corroded metal pipes and there were training routes out by the street so it was like i said that until she had a back up she had no idea that this could cause a problem to turn to  in like this said the prohibited practice that we're looking at so does that impose a but for yes warrant you're conceding that it is a but for requirement absolutely ok and your theory is that the  company made in misrepresentation that this litter was flushed yes that is that the misrepresentation misrepresentation is the a mission of the it's we see is if they had information which was on the bed that would have alerted her to the fact that it may not be flushable in all situations and she may have had to seek additional information before she flushed it what evidence that you one category of damages that were alluding to the other is to praise premium damages and that is also very important in the but for analysis wait and turn to prove your expert analysis a marketing expert with using a marketing theory called conjoin analysis that can't charged an extra amount for its product based on the fact that it was labeled as fl and we do have an an environmental engineering expert who review reviewed the results of the testing this testing was conducted for protocols that were developed for the flushable wipes industry and because of that our expert who was actually one of the individuals who developed the protocols for the that specific testing and the industry said that it's not applicable to cat litter and so therefore the test results don't show that it is possible no i know this isn't a case where words were alluding to the fact that there is an at and insufficient information to please the court my name is jennifer masco and i represent the appellee kent just a touch on a couple of your questions that you just had the first is world's best cat litter is flushable there is no evidence in the record to support the fact that it plaintiff's expert only challenge is whether the testing that can did was sufficient to substantiate a unqualified plush ability claim the evidence in the record is that the cat litter meet the causation burden as a matter of law as plaintiff indicated this case was brought to had for cause of action when it started we filed a motion just a mess on all four counts to your honor's point about the iowa statute we did extensively brief whether iowa law should apply that you disagree on we we did judge oliver found that the iowa consumer fraud statute could apply extraterritorial territorially because the defendant was and i am a corporation and so we proceeded on in this case under the language of the iowa private right act you have been raised on appeal this issue statute which requires playing to to prove that but for the flush ability representations she would not have purchased and flushed the product here we have i'm disputed evidence that she purchased the product because when she bought the cat or she adopted the cat the prior pet owner had used world's back best catheter the cat wouldn't use another kind and so she purchased the product starting in two thousand and five and continued to purchase the product to this day currently she still uses world's best catlett she also purchased it for two reasons because she purchased the product because that was what the cat would use she said in her desk deposition testimony she said she also valued the fact that it was biodegradable and there's some ambiguity about whether she understood by a grade level to be flushable but over and over again she testifies that she purchased the cat litter certain conditions that she believes were present so that's the that's the event that we should be focusing on her washing down the toilet not buying it but am i missing something here well there's there's two methods of damage that she talks about here and one is the property damage and one is the price premium model ok and so under the price premium model they just record judge oliver how that she had to prove that but for  damage gases she would have to prove that but for the fleshly representations she would not have flushed down the toilet and here we have evidence in the records that be the product was originally released on the market in the of marketing the product and selling the product they realized it was also flushable so they added a flush ability claim to the representation in in the two thousands of question about the  rely on this fact is not as developed as we read might hope and doesn't give us a ton of guidance which is why be a circuit in the brown case apply the but for causation using the carcase what about the tri prove any and that it's a cause at all regardless of whether it's of substantial cause or you have multiple cars the only the only evidence in the record is that the cat litter was found in a clog in two thousand and fifteen but her expert testifies that anything could have caused it could have been in the clog that the clog was caused our expert says by the tree roots and that anything that backs up after that it's found but it's there was no testimony in the record that it is a cause and all of that clog that happened in two thousand and fifteen so regardless of whether it's a substantial cause or the receipt may be here we just have no evidence that it's any ca whatsoever of the property damage that she suffered and that we not only have not any evidence of that but we don't have any evidence that she relied on the representation as a matter of law  plaintiff asserted two types of damage property damage and price premium property damage both plaintiff's experts and defendants experts conceive that there are significant structural clog in her system not that it did and not that it did in the particular clogging incidence at issue in this case in two thousand and fourteen and two thousand and fifteen but simply that it could have contributed cancer expert on the other side t that it did not cause the clog and said the structural defects dead plaintiff has the burden of proof in this case and the district court properly found that that evidence that plaintiff gave was insufficient to meet that burd as to the second type of damages that she asserts the price premium her testimony is clear that she purchased the product because the former owner used it that fact along with the fact that she purchased the product regardless of whether the flesh ability representation appeared on the label and regardless of whether or not she flushed it those facts and those concessions were sufficient to find as the district court did that miller cannot prove but for causation as a matter of law inside the district court properly found that plaintiff cannot prove causation as a matter of law there the record is clear that claim to purchase the product because it's the only cat litter her cat would use and there's no affirmative evidence that world's thank you i do want to address the but for test for damages and i believe it is correct that the but for test in this situation is but for it would be good but for the representation did miss miller purchase and flush the cat litter if you look at the brown case the test that they use for the consumer protection damages as a result of that protest protect prohibit practice excuse me brown came case formulated the test is brownness prove that he but for the misrepresentations he would have not elected to purchase it and install it in his home so i think the end here is very appropriate when you're looking at the property damages so the test should have been did she elect to purchase the cat litter and flush was there any testimony about her decision to flood she yes she flushed it because it said it was flushable she bought it because it was environmentally friendly and part of that is possibility but she only flushed it because it said it was it was watchable and then put the pin the but for test for the price premium damages i do want to hit that because i think that's one one instance where i believe the district court really got it wrong all the district court said that miller had to prove that but for the flushable representation she would not have purchased it the price premium damages were misconstrued by the court because like i said if if we true that there is a price premium then every single person who purchases that product pays the price premium regardless of whether they intend to flush it or whether they even care if it's flushable so once that extra extra amount is tacked on to the package everyone buys it at that price if you buy their account later and don't want to flush it you don't pay less for it premium was built into the product at the time they didn't lower the price when they when they took it off neither did they increase the price when they put it back not honest i mean it it's almost like a test case you know they took it off when the price stayed the same so why would we attribute a premium to that representation for the price in fact as to whether it was there or not i don't think the question is whether we can attribute a premium is whether can't did add a premium they conducted all these marketing surveys that we got the that are from that our expert used to analyze and part of the factors that they were looking at is how much do consumers value the flush ability of the product and how much willingness to pay they have for that extra flexibility representation this was part of a marketing survey actually several marketing surveys that can't conduct conducted and as part of that we can only assume that they use the data that they paid a lot of money for in coming to their conclusions as to how much to charge for the product so basically like you said the other thing i want to point out very quickly is that the guy who says the city up to mile two however you pronounce that that that you referenced it does say that that you can have multiple causes for a damage for a tort and multiple causes could be that maybe the world's best cat litter by itself made out of cause the damage but in a