at the next case united states versus ignacio this has been submitted on the briefs same with us later versus morton saying the bar was removed from the calendar held in abeyance remind you but keep your eye on the clock place yes as consumers rely on companies such as toyota to give us accurate and honest information so we can make an informed decision on whether to buy lease or how much to pay for council help me with a preliminary issue for c s i understand the general purpose of tort law and the complaint was very warm and frankly it's hard to find time to read this sort of thing rule eight a requires the complaints be concise i was wondering why it was so long and going through it there's all this press release type of language instead of legal need the whole phrase all you needed in that sentence was toilet or was aware of the soil wiring defect in its consequences one of the three sentences there you don't need with anything else there in every paragraph i look at is that why there's always junk in it frankly if i were the district judge which i'm not and he's entitled to exercise his discretion and not mine i would have stricken it is not concise and granted leave to amend to file a concise and clear complaint that i had a couple of really people questions and the answer may be in there and i can't find it in the key question for me is is this kind of what is the evidence on whether this wiring attracts any more rodents then the old fashioned type of wiring with plastic covering maybe it's in there i don't know of things too long for me to find it is there evidence of pleated is something pleaded some facts to show that this wiring attracts rodents more than others the number of cases was so in significantly tiny maybe a few hundredths of one percent of the vehicles it it didn't look like anything i can't tell your honor there is ok tell me what paragraph i can't i'm not i don't have the complaint in front of me you don't know but the you're just saying it's in there somewhere and i should dig through two hundred and fifty pages and you take a step back your initial question is why why do the complete no no my initial question is when i got to the question after discussing the problem that i had that prevented me from answering it myself this is where our fracs pleaded to show that this kind of wiring attracts more rodent problems then the old fashioned kind of wiring it it it's indeed the emissions from toyota's employees it's from the admissions and no no it isn't i think what you're referring to there is a couple of service advisors mentioned it but that's not the same thing as comparing how many rodent problems you get with the new wiring and how many rodent problems you get with the old fashioned wiring well your honor there's also a market impact summ report that we cited in the complaint that was a speculation on how many people wouldn't buy these kind of cars if they knew about the change in the wiring all that and i know that there has been an increase steady increase in road and damage as a result of the soybean wiring defect and also in that way where's that this could be helpful were worth it i've got it right here just tell me where in the complaint there's there's a table of contents that identifies it's you don't know either you know i think i do your honor i know we i would think you have a yellow sticky on the back because it's developed in the arguments the allegations are in joiner we say that toyota has no since two thousand and eight that the class vehicles have been  the wires pretty basic components as well correct that's correct so if i understand judge crying foul correctly there has to be some type of allegation that so base components attract rats at a greater rate than the old wiring would have yes your honor and the the complaint makes allegations that are supported by documents showing that the as a result of the soybean wiring that there has been as a result the language that matters here look everybody's had ordinary experience i mean my puppies warped animals cause trouble without soybeans so i want to know that it's worse with the soybeans and and i want to see the facts pleated that show that it's worse with the soybeans yes and the complaint does have that your hon we included statements from national care represent as is from toyota admitting that the soybean wiring and since you can't tell me where it is and i can't find it i guess this is just going to be a in the opening briefs your honor we synthesised all of the allegations relating to the steady rise and rodent damage we we pointed to the statements from national care represent of some from service advisors and meeting that there is soybean in the sleeping in the wiring and that it is attracting rodents we pointed to a september  th market impact summary showing that there is a steady rise and increase in wrote it down as a result of this so i've been wiring the fact and that it's increasing the cost of ownership of these vehicles we've already we've all we've already somewhere i don't remember where you referred to some within toyotas document about how somebody wanted a study to see whether the chewing problems were any worse with the soybean wiring than they had been with the plastic coated wiring but i never saw anything saying that soil that toyota had gotten an answer to with that said yeah it's worse to a statistically significant degree did you plead that is your honor the meat and i know what you're talking you're talking about the may two thousand and eleven chewing chop test that was ordered by one of the wiring suppliers a toyota and that the purpose that's right was to show which one which wiring did the and did you don't mice what more and did you plead what the pack showed either from that test or a test your own experts might have done the complaint was of course in a huge class action like this you probably had your own experts did you plead some discovery of statistically significant evidence of differen no you are not at this stage you know not rule eight neither rule eight no rule nine or any any authority requires the plaintiffs at this pleading stage to support their allegations with expert opinion well it's not enough to say the cars are getting her by animals i mean the biggest animal cause of car damage in my state is they hit a moose but there's not something bad about the cars that are tracks mo and i understand the rules are very simple we cannot make conclusory statements we cannot merely just parrot the elements of the complaint of the claims we must you know under we must support the facts with allegations and in this case we did and we have in missions from toyota's own employees saying that the wiring had no that's not it that's a service advisor visor saying he thinks that rodents attracted to the soybeans and they're getting these soybean wiring rodent problems but since we already know that rodents are also attracted by warm cars and by something pleasant to chew on we don't know if this is this if it is a statistically different statistically significant difference and that's what the service advisor can tell us  but there was also statements from national care representatives from toyota making the same statements but so you're you've got a lot of statements here saying that well since the switch to  based components rats are attracted to it because it's just the sweet smell is basically bringing in rats but i'm kind of focused i guess on the same issue that judge kleinfeld focused on which is is are there allegations that it is statistically significant or greater than the rate of failures due to rodent damage prior to the use of soy based components and if there are allegations that there is a statistical significance an increase in damage to the vehicles that have products or to the components that got switched this way based products then how how much is that disparity so those are allegations i would focus on and to the extent that it's deficient in terms of allegations then would you have a ninety problem in terms of specificity and you don't have to point me to the paragraphs or anything like that but just because your time is short sum up for me the best allocations that you have showing that there's been an increase in repairs we have the september th the september two thousand  market impact summary that identifies the vehicles who are being affected by these soybean wiring and also discusses the rise the steady rise in rodent damage and the steady rise in costs of owning the class vehicles because of the rise in rona damage following the september th two thousand september two thousand and ten market in summary then there may two thousand and eleven chewing test that one of toyota's suppliers order to determine which mice adult mice liked better soybeans or traditional plastic wiring that you can get the results you want to right now i understand that but what i want to do is if i run a search of the complaint into these key areas that you've identified that would address causality i would be looking for the september two thousand and ten market impact summary and that would show me allegations of the rise in damages and the rate of repairs i would be looking to the may two thousand and eleven test but that's really you know inconclusive because there's no there's no result and then i the june two thousand and fourteen field report along the lines of well now there's been because of the increase in damage or repairs we're going to have to deal with that anything along those lines and makes area i mean there was discussion in the reports about redoing the design to prevent rodent damage now what what that design may be or what that tofu dinner better than a dinner of plastic and copper included including but not limited to mice and rats but i've got to find out whether the rats and mice are discriminating enough to say hey here's a tofu dinner we'll all go to the car with the with the soybean what wiring insulation instead of the car with the old fashioned plastic wiring and i can't i still haven't heard it well there's statements from consumers that say that they that there are vehicles that are parked inside outside their home that the toyota vehicles are the only ones being attacked their wiring the the admissions we were there we were lawyers be before we were judges in a big case like this typically before we even would file a case we'd consult some expert and find out whether we had a case and you're not limited to what toyota has do you have anything where you hired somebody and they did it test easy to do it with rats and mice because nobody cares if they live or die to see whether they're more attracted to the soybean covered in the soybean insulation wires and the plastic eleven tooling test that you're waiting awaiting the results on and see what the results show whether the more attractive the soil you wires or the old old fashioned liars but i see you are questioning took you well not out of time but really eight substantially into the five minutes that you wanted to reserves i'll put some time back up on the clock  to the thai restaurant near near my chambers and sometimes i order tofu it's a whole lot better than plastic well i only thing i disagree on that with you about your honor is is that it is a plausible theory language from those cases and i guess i'll start with my analogy which is if a rain maker comes to town and a few days later it rains that doesn't mean the rain maker had anything to do with it it's not impossible but no one should have to wrestle much with that theory of a case you know anyway damn much i agree with you correlation is not causation there's a hilarious book of graphs called spurious correlations to demonstrate that however you look at medical research a whole lot of it is nothing but correlation to a statistically significant degree to i guess the st point i would make is a plaintiff is supposed to be able to allege a plausible claim without needing access to discovery the kind of pre filing investigation you are was talking about here they did have some discovery because the case had gone on so long this was the th amended complaint and as a point of saying their briefing they had reviewed seventy seven thousand documents which is where some of these came from but and the documents that you were asking about there in they started page four hundred and seventy five of the record for seventy five before ninety six and you should look at those because those are what point of counsel was relying on and for example the market impact study does not show that there is a dramatic increase after two thousand and eight or in any other particular well let me reference you to and under the heading probable cause toyota acknowledged the harness for the speed sensors is being damaged by rodents and it references a design disadvantage that allows rotten damage that occurred more easily in the issue continues to of the case is that there is a defect in the wiring insulation across all these vehicles and all the wiring in every vehicle but that the report that they're citing that's not across the board it's only the tw ninety two thousand and ten corolla and the matrix which is related but it's so it's a narrow it's not all class vehicles and in fact when it is pointing to this to the design disadvantage you're talking about it doesn't say what that is but it specifically distinguishes that from from other vehicles that are also experiencing issues of road and are you saying that there are other vehicles with soy base components that weren't experiencing the same problem so that undercut because ality argument no i'm saying that there are other other vehicles that the document doesn't actually link it to soit doesn't say that's the design disadvantage it references a consumer report about soy but it's talking just says design disadvantage in that one particular model and if it was it may have plaintiffs were right that all the  vehicles have some kind of soy component in it that the wiring is insulation is all made of that then it wouldn't distinguish between this vehicles and other and other vehicles that are experiencing rodent damage in other words the inference to draw from that document is that there's some other reason in this there's some other reason that this particular vehicles are experiencing it and i can only get two things one of the destroyed being covered  soybeans in the insulation a little bit in nutrient value and the other would be if there's a plastic cover or something over the wiring harness in one kind of vehicle and not another there are probably other things i haven't thought of right and the engineer could do better and maybe it could be also that the vehicle maybe the road has easier access to the vehicle that yeah that are covered and the end of there talking about a particular that's another inconsistency they're talking about a particular but what i want to know is  does this report distinguish between vehicles that have the soybean insulation and vehicles that have the old fashioned plastic insulation or doesn't it no it doesn't it doesn't  should emphasize the fact that plaintiff's position here well if it's not the case i wonder if they do have enough if if if only the toyotas carolled and toyota matrix have the soybean wires and the toyota corolla and soy and matrix have more rodent damage to the wires why isn't that enough to show that  there's a plausible theory of causation and not merely a few tiny number of cases for the soybean wires attracting world it's well i would look at the document because it doesn't it doesn't sh ok the market impact summary is at for seventy five dollars or seventy seven of the record and what it's talking about is a report that there's been reports with the speed sensor in the with damage to the speed sensor in the twenty million ninety two thousand and ten so this is basically a response to that customer complaint about his toyotas being damaged by the road well the market impacts the summary is saying there have been more more than one report the only connection to soy is that that is that one single anecdote that they have here otherwise this is just showing reports of here so i mean this undermines point a series of because it in fact it says when compared with other models with reports of rim damage these have a design disadvantage that allows the damage to occur easily we doesn't say what that is and there's multiple explained possible explanations this looks like it's mainly explaining to the service people how to fix it right th about the plaintiff's descriptor or label for that test that should be under seal i frankly i don't know the need needed to be under seal you are well why is it under seal did did toyotas seek to whoever put it under seal we did i think out of an abundance of caution these are trying to dock what what conceivably is confidential or proprietary about a label that plaintiffs attached to a test i think someone it was just any reference to the document the it was redacted from the public filing i don't think the doc right it is quite descriptive why why would toyota be interested in a chilling test well st of all there weren't some issue that the engineers were concerned about don't know we don't know when or i mean and i should up make clear that which is mentioned in the document it's supplies it does supply toyota it and a lot and every other manufacture  it is does not supply is not toit is only supplier for wiring or anything else so it's just one snapshot but then i think a more important something provoke something pretty stimulated it hypothesis that doesn't mean you agree with the hypothesis it means you're testing we don't even know if i don't know what this test was ever carried out or if there are results this is a price quote for a proposed study  that would they were going to test not cables but samples that i mean it's hard to tell what they were going to test but my but my main point was if you're right they were going to test whether rodents were more interested in the soy based wiring than vinyl chloride wiring was and that was and that's what it really is about well yes someone was was planning to test that but it doesn't provide much if any support for planners through that this was a real problem they're not test results and testing hypothesis doesn't mean that you agree with it or that you think there's anything to it  it just means you're testing it and and i also want to point out that we are using the term soybean wiring or story based wiring those are not ac the fact the plaintiffs position and the literally their position in the complaint and before this court is that the wires are wrapped in soybeans that is literally the meat that's not something the court has to take seriously and that they not just because common sense says so but because plaintiffs have there are pictures of the wiring in the complaint that shows it's not made from soybeans now it's not literally made from soybeans what is it they never say the reason they never say additives that include for color flexibility lots of different type of things that may not be true to depends on the application but but it absolutely is disputed that that all or potentially any of these vehicles have not just some soy or plant based additive in you know in the wiring but certainly that it would be enough to have any effect on a rodent and as you're on a pointed out they you counsel couldn't even going to defy any allegations not that you need a study in every case but there are many of these complaints we see where they do they have consulted an expert and they are at least able to cite  some facts supporting their belief that this is actually i had trouble reading the graphs on page for ninety well it's a run from one ni forty three and it looks as though those graphs may be suggestive upon which cars attract the most rodents what they're apparently doing is searching through field reports that relate to red damage not damage that necessary relates to destroy or anything else in the insulation just wrote you're looking deeper and so hondas and what they did is they wrap paper with red peppers that are around the wiring so the and the rats don't like such spicy food well sure yeah i mean there are there is that there is a problem with trying rodents but the issue for this case is a plan of selection a five showing that it's increased as a result of so i'm trying to figure out whether this is going to be the showing of some it says it appears that they searched for and searched reports of damage for keyword road right and they got it looks like five hundred and sixty hits so five hundred and sixty is the number then if you then they say any they separated out by model reports promotable and it says any generation over fourteen reports was reviewed which i think means they looked more closely at any model that had more all these vehicles this is over a ten year period so if you look for example at the four runner this is on page four hundred and ninety this is showing nine reports of rodent damage in the four runner over almost a decade now there are more reports for things like the camry you would expect that because there are a lot more cameras on the road i think there's thirty five of that so the yellow bars on page ninety are the ones that they're looking at more closely or rodent damage not necessarily linked to insulation but just  what percentage of the vehicles is this it's tiny i mean that's struck when we're talking about nine cars and this is a big international magazine after the point i would make is the plaintiffs they've done a flight three hundred consumer complaints and they have about they're about thirty thousand three hundred and fifty that they're going to fight here this is for you know there are fifteen vehicles in the class and this is over more than a ten year period and the class includes the camry the carolled the the new the raf for that the camry alone the camry has been the best selling car in america for the last sixteen or eighteen years and so there are millions of these vehicles on the roads and so this is not this is not a dramatic this is not a problem of epic proportions and there is no plants of the ledge any facts that show a dramatic increase since two thousand and eight or any it whenever they're inconsistent as to when this transition actually happened but they don't show to show any facts that i demonstrated a magic increase as you would expect to see if it's actually be caused by by something on the wiring concern about whether anything was labeled c e o of the got to us i think that some of the i think i would agree on with your honor on the with judge pauley on the chilling test i believe the market impact summary the feel quite those are i think more proprietary internal toyota documents and we would at least want to chance to revisit that but but those i think the how much time does he have left let's put three minutes on th really at the pleading stage i mean to require the plaintiffs at this stage to show how likely the defect is go manifest itself if it just doesn't seem possible without discovery and a th circuit authority supports that position because for example in wallan this circuit held that the manifestation of a of a de facto nord the rate at which the defect is going to result is necessary at the class certification stage because that goes to the extent of damages but your consumer protection claims are subject to the heightened pleading standard under rule nine be correct correct so under rule nine be all we have to her for fraud ordinarily you need to say what the fraudulent statement was where it's an omission as you claim you have to show why there was a duty to disclose which is ordinarily some fiduciary duty u nder that's where i feel like more specificity is maybe needed under the nd factor of le monde re a defendant has a duty to disclose if the defendant has exclusive knowledge of material facts exclusive knowledge i mean but i have consumer reports talks about it and your submission well not the september two thousand and ten summary in fact even the counsel indicated that he would like not these hundreds of consumer complaints are not accessible to you know to consumers therefore there is always some but you put in to evidence this consumer reports article how to protect your car from rodents which has the red pepper what wire to it it's from april two thousand and fourteen so the public already knows what you're saying should have been disclosed actually that document is being cited in one of the reports it's either the market impact summary or the field quality report i thought that was a magazine i see of the grocery store the check out the consumer reports and that isn't that consumer reports the public magazine that consumer report is but what i'm saying is that the reference in the the referrer reference and that article was include was inside is either the field color or the market  and so the good the argument is they have exclusive facts the question is whether these omitted facts are material and whether or not an opinion that is material is whether a consumer would deem important in determining how to act in a transaction an issue i think having disclosed to consumers that the wiring contains soybean which increases the likelihood that this will chew on the wiring i think in the consumer w all right thank you very much counsel for both sides for your help arguments in this matter the matter will be submitted