good morning may it please the court my name is elizabeth fagan and i represent the epilogue in this matter i would like to reserve two minutes for rebuttal this case is about a national youth sports organizations duty to implement generally accepted standards to protect young player from play because exacerbating an injury is not an inherent risk of any sport much less water polo and this primary assumption of the risk does not apply to bar negligence claim second all youth sports disagreed the district court strayed in my belief from the question of duty of care which is a legal question so the question of breach which is a question of law and we can see that he we discussed to some extent the case of wat game but it was a question of fact whether the coach heard the player say that he packed the show there whether the coach could have known that he had popped a shoulder and what should have happened at that point timing and i believe that the district court here straight into the question of sports and we're not going to say that it is unlawful to allow this to go forward when that particular hazard is inherent in the nature of the game and we're not going to change the essential nature of the game by some liability rules and the district judge seemed to agree that some sort of probation concussion protocol that would remove a player who had suffered a hard hit to the head would sort of james the nature of the game perhaps even making it impossible to play because hits are so frequent how do you respond to that sure your honor and in a couple different ways yeah first usa waterpolo had at the very concussion management in return to play protocols that we were advocating for already implemented for it in fact to alter the nature of the game those would not be in place at the olympic and the national level but the failure to implement them at the youth level cannot then be based on the idea that it would alter the nature of the game to get the ok and second as a matter of public policy i'd like to focus on two things first the exceptions to the duty of care should only be applied if it's a matter of public policy but public policy here is reflected in two ways first the recent qualification by the california state legislature of the very  protocols that we advocated for but even prior to that at the time of the complaint about twenty one states had safe harbor laws in place for you sports organizations and the safe harbor law said if you follow the standard of care we will bar negligence claims so this idea that we're trying to create something new whether it is untenable in fact what we were advocating for was actually what's consistent with public policy not an exception to the duty of care understand that for high schools and public private and charter schools that california has had a law on the books very similar to what you're advocating for i think since two thousand and twelve before the injury here occurred that's correct now on the one hand you know you're  g this case that law applies to this conduct here but am i correct that the california law that was in place for schools before this occurred did require coaches to have some awareness of concussions and if someone does have referees for example to identify particular sets of symptoms and as the medical and scientific consensus has evolved those ten times have evolved but so that when these things occur it's not a matter of guessing it's not a matter of you know some coach  physician we understand that but that the education is already occurred baseline testing has occurred so if someone's acting different from the way that they acted in the pre season baseline testing for example that there'd be some at least  awareness of that and that is why the players then removed so that they can then get the proper medical attention and medical assessment then once they're cleared to play by the medical physicians the coaches aren't making that judgment it's that the player can come back and the reason for that and the reason why it's so important particularly for minors whose brains have not yet fully evolved is because there are significant cognitive affects and putting a player back into play who's not fully recovered and it's not just a matter of a get an additional concussion exertion alone can prolong the impact on the young players brain and when somebody's and for us that's the importance of having these in place not just at the highest levels of the game but at all levels of the game argument the person or entity responsible for the safety of the players should have had some sort of concussion protocol in place and that the injury to your client was proximately caused by not having out in place why is u s waterpolo in a position to have that duty under california law because your honor one of the things that the courts look at  and cases talk speak to this is it's important to look at the role of the participant and by participants i mean the defendant the role of the defendant as it relates to the sport is it a cop participant is it a coach is it for example the the poo owner of the pool and so here us a waterpolo is the organization that all teams are whose rules all teams must follow it sets rules on how the game is played its rules on health and safety it sets rules  types of injuries that should be looked up for and in that circumstance what's the rule making body for the sport the only will making body in fact that can set these standards and require all of the referees in the coaches to follow them is us a water required close attention after a hard head hit and took players out of the game in a way that you're recommending should have been done would that have been inconsistent with us what are polish policies there's something they were required required certain protocols for public entities and private schools and so on but has not done so for private clubs such as this to say well you know in order to address the problem we passed  statute suggesting that prior to the passage of the statute is just unwanted and coverage so we now have existing law or the preexisting while that remains governing governing our case that law that they thought to improve by passing the statute what good can it is there something that we need to infer from that the water your client i don't believe so your honor so the current law does also require also govern you that's the nature of the game question that's right your honor and i think that that's our fundamental our fundamental point is that removing an injured player from a game whether it's baseball whether it's water polo whether it's i mean in diving does not change the fundamental nature of the sport longer currently playing she did not have standing for that claim and you know if this is just a an auction for compensatory damages then how are you pursuing is a class action so it's twofold we have a claim for medical monitoring relief and we do believe that medical monitoring relief is  subject to class wide attention and impact how would you but liability it seems like is going to be an individual eyes inquiry for every single one of these players and there will be certainly issues of causation at the very least so with respect to the medical monitoring relief that we're seeking what we typically have done and we've done with respect and c w a is seek twenty three c for certification with respect to the question of judy in the first and since did the organization have a duty to implement these concerns standards and where are the standards and sufficient did they breach that duty by not implementing them in some way ultimately with respect to the answered overlay we were able to obtain a settlement for medical monitoring relief for the four million existing current and former student athletes which consists of certain on line testing and neurological and they're all psychological diagnoses it doesn't involve treatment so unlike some medical monitory in cases involving cancer or that type of thing where there is some type of ongoing treatment this is just in the first instance to determine if you were hit in the head if like the most water polo players you know in some way been are you continuing to suffer from any type of neuropsychological defect that person may have a separate personal injury claim that would have questions of causation and breach or causation and damages that would not be dealt with as part of the class on this particular minors claim under california law and what happened to her and so for purposes of standing we've certainly alleged that she's a member of a club that was subject to usa water polos standards  had the proper concussion management and returned to play protocols been in place that the coach would have been able to properly assess her being dazed and it's plausible she would have been removed whether or not she would have  to respond to something that you judge fletcher just commented inside that the fact that usa waterpolo has adopted rules relating you know based on the new california statute that that apparently solves the fundamental nature of the game issue and that's not accurate and part of that is because the way certainly councils just presented their what they construe as their claim is not the way it was presented throughout this litigation in the district court this case was never about whether or not up an injured player or a player who was suspected of having an injury should be removed because that's what usa water polish rules were before any of this the fundamental problem here is that their argument was that any player who suffers a blow to the head needed to be removed and medically assessed but thought that they limited it to someone who suffered a blow to the head and then exhibited at least one of the signs of potential that's not the way they played it and that would if if that was the case we wouldn't have a problem here b i'm not sure that's right i mean i did read the complaint i missed the part about what the olympic team does but as i read it they said you know we need a protocol that will protect against this sort of injury and they didn't spell out when precise detail the protocol that they thought was necessary w that what their protocol included removing any player who had a head load not merely that there needed to be a quick assessment but it wasn't that there had to be as you know i don't read the complaint is setting out a precise protocol i just read the complaint as saying that there should be a protocol in this are roughly sketched out having to do with going to we're going to protect kids who've been hit in the head and well if that is in fact the way th complaint is interpreted then it fails on the primary assumption of risk because what we're talking about then is minimizing the risk that's inherent in the sport the judge guilford was very clear when he was talking about the distinction that the plaintiffs have tried to talk about in terms of primary and secondary injuries that they still come from the same risks that are inherent in the sport and the plaintiff is and as well as i believe a california case called strapper that talks about the issue isn't the type of injury the issue isn't the manner in which it's it occurs it's the reason for the injury and the plaintiffs themselves have talked about the reason why these secondary injuries the reason why they see the potentially injured player should be removed and the exact same ones that are that the it herit risk getting hit in the head by the ball  erting oneself these are the same things the only issue is that given the alleged state of the person they may suffer a more severe injury the california law courts have addressed that they have been very specific that the fact that there are ways to lessen the severity of an injury does not take you outside the primary assumption that what about the case involving the injured baseball player that seems somewhat analogous as you know because  the core in what the california court of appeal decided was that the player informed the coaches that his he had felt his shoulder pop and as they interpreted the fabs they said the player was seeking guidance from the coaches as to whether or not he should continue pitching and they indicated he should that was what the court of appeal found increase the risk in advising an athlete to continue the activity when there was an increased risk of injury there is no allegation to that effect here you know of his would have to say yes you're right there's maybe not an affirmative advising but there's a certainly a failure to prevent the person from exposing themselves to even more severe injury and that is the essence of primary assumption there is no duty to minimize the risk the risk is there you know these are kids i mean i cannot imagine saying that you know it is inherent in the game of water polo for children kids maybe teenagers that they're supposed to stay and you get hit in the head repeatedly that is not inherently and in the game second i'm not sure i understand i mean the primary i'll give it this is a bit of a gross analogy but if i'm coaching about ask a ballgame kids fall down sometimes and we can't take them out every time they fall down it aswell game but if they fall down in a bone sticking out of her leg then i think we counsel use this term one public policy there's a difference between what is good arguably good public policy and the states have chimed in on this versus what is the legally impose duty and perhaps it seems harsh to say that there is no duty under primary assumption to remove a minor from activity if there's a suspicion that they're injured but you know from the perspective of usa waterpolo they did have a policy in place to address that that if there was a suspicion of an injury they were not supposed to be returned to play until the injury was cleared up well sounds like the dispute here is really a factual one no because then we go back to did the coach i have a suspicion because why is not a factual question well it's accurately evaluate this individual as having the potential for an injury that required her to be removed under usa watercolor standards they haven't sued the co sued the laser's team in the argument before judge guilford miss fagan herself said that if this was an issue of failure to comply with the rules then that would not be a claim against you as a waterpolo that i think they're alleging that whatever rules you keep alluding to were totally inadequate to protect the kids from this this kind of injury well but then you know i i understand the the feeling that there should be a higher duty to protect kids but the bottom line is california law doesn't respect that distinction when it comes to primary something well it might or might not it depends on the vulnerability  children our kids are more vulnerable to the sort of thing and you have traction that's appropriate for you again that's not the way primary assumption has been analyzed by the california courts and the california going on you keep saying to california have theoretically a problem with that i think if the court is convinced that this is a fundamental question of california law then it should be addressed to the california supreme court i don't think there is really that uncertainty in the california is not a theory that has been adopted by any california court so we're talking about recognizing a duty that has never been recognized by a california court and in fact applying to minors and then they talked about three published california cases and one of those published cases involved a fourteen year old wrestler who was injured in an after school wrestling program and they made the explicit argument that primary sumption should not apply and the california court of appeal said yes it does what i guess i'm where i'm still having the problem though is that i appreciate the primary assumption of risk kids play sports kids are going to get hurt and i think everyone c cedes that i think the question is is that if a child is showing signs of injury then what duty is the coach have to remove them or put them back in the game and that's not primary assumption i'm not sure i agree with that but i think your honour's focus on the coach is the key here usa waterpolo is not responsible can't control how a coach or in this case also the referee observes what they seen nobody thought but really if that's true why did you all bother to put in place the same protocol they're advocating for at the national epic well first of all it's not the same protocol both the usa water polo rules and the caliph the current the new california statute  very specific that when there is a suspicion that an athlete has suffered a concussion and so there's that initial issue that there has to be something that puts the coach the referees anybody else who's b alleged that here with respect to this this particular child know they have it that they seem to recall it says that she got hit it was a hard hit to the head and then she was dazed right she just runs over to the side talk to the coach i mean if you don't have a suspicion of a concussion  on based on that you're on your suspicion and ten are working very well now because the if you look in the usa waterpolo rules and i think i'm not sure it's in the california statute this when they talk days it's appears to be days there has to be some outward manifestation and part of the problem here what do you what do you mean as some outward manifestation it has to be observable to an outside person and i first amended complaint and there's a lengthy quote in there that the plaintiffs put in by from larry drum medical director and team physician for usa waterpolo and one of the comments that he makes is identifying and treating a concussion can be difficult and symptoms tend to be subjective and hard to objective lee measure and so it isn't simply a matter of she felt dazed if she doesn't appear to be dazed how is the coach supposed to know that she's dazed i mean this is not flippant but that's part of the concussion protocol where you ask questions you ask what day it is what the score what what team are you playing what was your last homework assignment there are a whole theories of questions that coaches are trying to ask in these situations so it can't just be an eyeball test there's more to it than that and there potentially but ok what did california law unspent on february fifteenth tw fourteen require that there is nothing to that effect and in fact primary assumption says you don't have to ask him any questions at all that may seem harsh that may not seem to be good policy and the california state legislature the twenty six team decided we want to make sure that that is done because it isn't required now and we have to judge this case by the law not by what we think should is good policy  explain again why one bird doesn't control this case because in one burger the allegation was that the plaintiffs explicitly told the coaches that he felt his shoulder pop which is an observ e sign that there's at least a potential injury there he looked to them to tell him whether or not he should continue pitching and they encouraged him to continue pitching again none of those allegations are here and they had of course of course none here in the actual sense this girl's not a pitcher she doesn't feel are so overpower but what's appropriate to disport happened she gets hit in the head she comes over to the coach and just just to say hi well actually this is not in the complaint one way or another but i believe it's the coach went to her and i think we're now punishing potentially concerned coach who having observed you know i'm just reading the complaint eight she swam to the side of the goal and spoke with her coach well so she this is age she did something right but we have to ask the basic question where was the coach with the coach normally be at the side of the goal i suspect not i can't tell you that it but every every sort others all i have and all you have is the complaint right well but now now the court itself is making assumptions here that i'm making no assumption i read the complaint or even if well ok but again whether or not she went over there there is no allegation that she asked anything that or more importantly the key factor  not merely the report of the injury which was obvious to everybody you know she got hit there's no allegation that she told the coach anything we're talking about subjective symptoms she has to report that can i can ask you this just to test your keeper line on this primary some sort of the theory which seems to be completely inapplicable to the kinds of allegations that are making so let's just change the facts to make them a little bit more egregious for let's say that she got hit in the head lost consciousness for a few seconds actually went underwater came up was clear plain as day had no clue where she was was you know just totally out of it you know right or it doesn't isn't even in a position to go and ask for advice hey should i remain in the game should i come out at that point this isn't the failure of your organization to have in place rules to govern that situation a basis for life you know because under the u s c waterpolo rules in existence at that time the coach and the referee should have taken the the player out they didn't need to be under your scenario you need to ask any questions you need to do investigate it's quite obvious that there's a potential for serious injury there and the child need to be taken out that is let's say that she wasn't and they say the reason for that is because the whatever week protocols you had in place were not adequate or not stringent enough to ensure that a person in that condition would not be allowed to continue playing  well i'm just testing the primary assumption of risk you wouldn't say that well being left in the game and being subjected to another hit in the head because you're so out of it you can't even protect yourself you wouldn't say that that's an inherent part of the game right yes but it but i would  the bottom line here and harsh as it may be is the governing law is primary assumption and we cannot evaluate the liability of usa waterpolo on public policy the question simply is was there a violation of a duty owed under the very limited obligations imposed on the primary sumption and judge guilford in the facts and the allegations i believe make it clear that there was no such i just have three points that i'd like to make in rebuttal first and paragraph one of our complaint which is that we are eighty six we say that all your youth ask sorry all the youth athletes diagnosed with a concussion or exhibiting concussion like symptoms during a contest should be removed from play we haven't taken it so far to say that every time somebody is hit play has to stop so we very clearly limited this to you know diagnosis or exhibiting concussion like sometimes the question then becomes one of her see ability and forsee ability one when analyzing that with respect to the duty of care which is a question of law is not about us a waterpolo agency herself it's about you sports organizations like u water polo and players whether they're unconscious under the water whether they're acting days is it perceivable that someone who was injured or suffered a concussion or that hit in the head and is dazed is it foreseeable that further hits to the excessive exertion would prolong the cognitive deficits that come along with that concussion and the answer to that is we've alleges that since two thousand and one the scientific and medical experts would agree that yes it's very forseeable that what we've alleged would happen and finally with respect to what wattenburg are and i briefly made this point on the front end but there the court held that the duty of care exists to protect participants from aggravating and juries and that's what we're talking about here the duty of care the court left the question issue a fact exist as to whether defendants were aware of plainest injury whether this coach was aware of it whether he would have been aware of it had he had the proper training under the protocols that we've alleged should exist is the question the fact that we believe will be addressed later in the litigation but we do ask that the courts reverse the district court's decision to grant the motion to dismiss ok thank you very