i just want to make sure that our recording devices pick everything up in katz v pershing this court stated that the universe is and problems of the electronic age of created new challenges for this court but the venera principles of our jurisprudence can guide us on this frontier this is one of those cases that is that the leading edge of that frontier and it's one that this court and others are going to be asked to address in the future my clients have standing under article three of the standing article three standing has the three familiar elements traceability redress ability and injury in fact there's no dispute that there's no issue today traceability redress ability what we're focused on today is the injury in fact element which requires two things the invasion of a legally protected will interest injury that is concrete and particularized and not hypothetical or conjectural the defendants have alleged that we have not pleaded properly concreteness and th intangible and we have alleged both tangible and intangible injuries for inspiring a tangible injury peculiarity harm the quintessential harm is what we're alleging to which our medical records have been compromised by the defective software we can't rely on them so that the plaintiffs are going to have to find the they're going to have to remediate their medical records they're going to have to go in audit them determine whether they are accurate  and the fact that they're not accurate is itself a harm that gives rise to an injury there are not a simple process i think are used are you saying i mean both of these people are deceased now unfortunate that's right are you saying that the estate there is some kind of ongoing interests and correcting medical records of the deceased people i  think so and for two reasons the st is because the injury occurred not at the injury occurred at the moment that the home that the ever records were entered into the system just as you're answering that just to be precise when you say the injury occurred the injury in fact occurred correct and injury in fact can be actual or imminent that's correct so is the injury in fact that occurred suffered during their ride but that the estate is suffer some anxiety about that and would need to know if the only argument is that there is this imminent need to correct me but once the person is deceased again cancer and in litigating against the doctor they found that his medical records were jumbled and they were able to rely on those medical records in the course of that vacation so they and those allegations are in the complaint mom going back to looking at intangible history or intangible injury spokeo tells us that the court is informed by history and the players sufficiently alleged risk of imminent harm analogous to the risk of a breach victims have players risk being subject to misdiagnosis or mistreatment because their medical records are inaccurate the same way just out of reach of victims are plaintiffs here risk of greater injury this is from the summary and the argument there's never a statement that the standings predicate on the fact that there was an actual harm of the kind you just related  you know again i think the intangible injury still exists regardless of whether they're deceased or not they're the problem if no one you know start i still don't understand what we're looking at our reply brief we use the analogy of defective tires you know about twenty years ago there was the bridgestone firestone debacle where their tires were defective people were on the road using the these tires and think they may st you may end up being injured there hasn't been actual harm there's an imminent harm and which the deceased driver would have trouble bringing  argument that they are at risk of having an accident sure but again i think that with respect to the person who's deceased i think the problem is that they are that the injury occurred prior to their death harm actually occur and the harm occurred while they were still alive the fact that they're deceased now doesn't bear on the fact that they still had the harm at the time well if the but if the harm is a risk of that misdiagnosis and rights you know we have to show that these harms are related to the harm that was tradition is there anything in the complaint that identifies the harm as the need of the state to spend money to correct the record for purposes of facilitating whether there was a mistake you know since i i'm not sure that it's particularly style in that way but we do allege discovered that the records were just right so he had a risk during his life time you're saying yes and he had again he had he was diagnosed diagnosed with stage three b lung cancer and when s was brought they saw that his medical records were listing symptoms in two thousand and twelve that he hadn't actually started suffering until two thousand and fourteen so i think there was there was certainly an issue there and it shifting that now you're making the argument that there was actual harm from other missed diagnosis traceable to the error in the record well i'm in your brief your focus on a risk of a miss diagnosis is that will occur in the future think with respect to a risk of this diagnosis that's going to occur in the future that is not a risk that a deceased person faces i come back to again you know that i i do think possible theory of why ability and injury is not specified with any clarity in the complaint well i think i think it's in there i think that we certainly lay out those situations in there and they are they are i think part and parcel of our claims and i think under the liberal pleading standards i think that you can you draw the inference and that is part of what we're  tire unlike these plaintiffs here didn't get what they were supposed to get not dissimilar in some respects from the situation got this right and so there you've got a situation where the point it has has doesn't have the benefit of the bargain can get the where the where the parties are deceased there can be there can be none and so that analogy just draws into focus why there can't be standing in this case what was presented to the district court alone as the  respect to each and every of the five pounds was identical and it said famous had been injured in that no member of the class can rely on the accuracy and integrity of the medical records that's what was presented of course that doesn't work because the injury in fact analysis the entirety of the skating analysis can be done on the basis of absent class member it has to be done on the basis of the actual part with respect to monetary the allegation is indeed that monetarily died of an event that might have been detected and prevented had the records required suggesting some test should have been taken had it st and  when the plaintiffs are suing about that in this case in this case they're suing about remediation for the class records of people who are still alive they don't really live in the wrongful death case for that matter their own mistake no sense potential for mistake no cysts so what's wrong with that argument what's wrong with that argument among other things if it's not in the complaint and it was never presented the judge correctly but on the merits what's wrong with america it's t you it falls to fall prey to the warning and in the path case privation not being an academic exercise in the conceivable the complaint has to have something for the audit monitoring and remediation of medical records not a claim for money damages for monetary for example who's already pursued a wrongful death case isn't seeking money damages example one of the things it's absolutely entirely absent from the complaint is any suggestion that either the plaintiffs have actually expended costs that would be recoverable what they're saying is we want our cases we want there to be audio auditing an investigation at the end of the case they don't let you actually don't they don't even even mine in chile doesn't have an obligation we spent extra hours to try and understand an audit that that that was the case with respect to monetary money truly includes factual allegations that say the doctor wanted you to have the test to test somehow disappeared from the records had i had requiring someone to conduct some sort of audit monitoring remediation what have you of the medical records for the entirety of the class that can help my child she's got her great reward the imminent harm is if you church spent your correct or the the immediate harm that we allege is that these medical records the errors in the medical records are going to cause some harm to the