that that's incorrect because the existence of a substantial risk depends on at least two things first it depends on individual health conditions that's something that this court recognized in fall second it depends on the effectiveness of effectiveness of mitigation measures varies among class members we know for example that mr santi who is young and healthy he has testified in his deposition that he has not experienced anything related problems and in his experience other young healthy and needs don't suffer from the heat the mitigation measures are effective now even if that's not true for other members of the class we have such a variation in susceptibility heed that the here ball and gates simply didn't permit the district court to find that there was a substantial risk to every member of the class despite reserve is your point that they should be doing sub classes for the sick and the disabled and the elderly and what life and i mean what is your point well when we have such a variation of risk that would be something the court would have to do the problem here though is that as some classes the district court's order doesn't even talk about the subclass and what risk lay face so you're not disputing though that the sick in the elderly and disabled face a risk they're not at all know of course not and we're not disputing that as a general matter heat itself poses a risk that some disputed the question is are the mitigation measures in place sufficient to reduce that risk to an acceptable level don't we have a whole bunch of cases though that say that they're not for a particular plane of so ready that the you know that we have a lot of cases where these i see in the the fans and not eyes in at this and that are not good enough and i mean we're starting to get more more but we've i think we had just a couple of these last year class numbers the fact that there may be a risk despite the provision of mitigation measures for some people that's not enough to certify a class we have to look under twenty three to say the question are these mitigation measures effective is the answer yes or no as every class member here we know even if there is a substantial risk to some class members we know that there is not for us and there's just a second layer that this problem creates an be a perfect fit can't i'm not sure that it has to be a perfect fit but it has to be it has to be at least close enough where we can be reasonably sure that within this bro class there is actually for a general class like this yes i mean the actual would have to be yes or no so if one person is not affected by the heat because they have some genetic hardiness or  something then you can't have a class is that it's not the is that what the law says i don't i'm not aware of any law talking about people who are superhumanly now and i'm just i'm just it's a bit for whatever reason if one person i cannot think of a specific case now but i can but walmart versus juice clearly establishes that this has to be a yes or no answer and it has to be the same for the class so here we've got at least one class number who faces an obviously different level of risk given indication measures the second layer of problem that this creates comes under rule twenty three b two to certify a b to class the district court had to identify specific relief that would provide that would provide a remedy for all of the class members the question is not whether the class is subject to a common practice that would just be a pleading standard the question is what specific remedies are appropriate and cannot single injunction provide relief to all of the class members or will the class members require different remedies here the district court didn't it didn't say it identified two possible remedies one would be facility why the air conditioning the other would be quote less drastic measures and quote we know the facility why the air conditioning is not acceptable for the entire class that follows from ball there the court  vitally everybody paul said the air conditioning was not required even for the two were not healthy the three inmates there had they all had hypertension or other disabilities and the court said th properly define and certify a subclass the court would have to make some determination that whatever however that some classes define its members face a risk that is substantially similar enough that we can be sure that a single remedy will provide them really here if there is a problem because not only did the district we're not getting it so we don't was someone with another the addition it's a state in the right now might have ten times the risks as a normal person there was also testimony from dr ryder that even people who had the same condition diabetes for example they might have vastly different risks depending on what type of diet he said hal how advanced it is what kind of organ damage they have and it might be that someone with diabetes faces the same risk as a song without someone who is relatively healthy and this creates a serious problem going forward because we have to ask what does this injunction look like if this class goes forward what is the injunction doing and here concerned that you define paul and gates saying that air conditioning is never required or something to that effect i don't think the ball or gates in this ever call we were some of us were on them pay and all but regardless we can all read the case even if we're not i don't believe it says air conditioning is never required it just said in that case where there could be it's easy less expensive more easily done measures though should be considered and those hadn't been rejected yet been in the case where if you had tried all the measures that anyone could think of except air conditioning and the so they do not say that air conditioning is never fire and that's not what we are just as in the case where there might be some things that we're not sure from the record they've been tried yet there could be some record development on whether those things work it doesn't say that air conditioning may be required for the sickest most heat sensitive people even in this class right it might very well be the problem here is that we just don't know because the district court offers nothing to allow this court to consider why or to what extent that kind of remedy might be appropriate and for whom and so that's why the some classes don't really help but that's your argument that we get to take the place certification will apply the p l r a restrictions because that's the substantive law and then determine that the remedy is one that relief for example the court would have to consider that if they try to certify people to class we're just saying that here we know once we get to a remedy there is going to be a substantive restriction that should at least factor into the consideration of what kind of relief will be available to this class and will it be will be permissible if we if the simming our new endo that we were would agree with you and this is hypothetical that the entire class that it was too broad or not specific but that the some classes seemed perfectly appropriate would we be able to give any type of hybrid order in that situation you would i i would say that in this case though it is a general matter yes in this case though i don't think there is a basis to affirm the subclass is specifically because the district court simply hasn't supported indeed one person is not at risk is it improper to certify the class is there a case that says you know at the margin you men might have some difficulty that we're looking at the poor what you need is a uniform policy or a uniform manager act in forcing the discrimination you do not meet it wouldn't be true for instance if wal mart had a uniform policy of not discriminating against a minority class and one minorities what but what they said to one minority we won't discriminate against you he or she is not affected that can't be the law can i point you to something that i frankly posit that that is thank you for helping me there judge read well yes he could simply take him out of the class that's correct i do want to get back to the issue at hand here it isn't in it is been written in the briefs that there was no uniformly according to the texas department of criminal justice policies under wal mart again if she is not whether there was an actual common injury but whether there's a common course of conduct or there is that it leads to a substantial risk of horror here the testimony that the court considered court did not base its decision on the police the court went well beyond the p held four days of testimony it heard testimony from one of the leading at the genealogists in the country on the issue of heat the former director of the c d c or or director of the c d c as it applies to environmental and my simple point of that is that even in a testifies he does not believe he's affected by he he is not an epidemiologist he is not a board certified emergency room physician he is not one of the leading people on the issue if he  is at risk whether he chooses to acknowledge it or not the test the testimony here is unequivocal all people at the paki unit face is substantial risk of horm from the conditions to which they are exposed namely dangerous levels of heat and humidity inside them to do in the brief and today the state has acknowledge that the temperatures  given the twenty people that have died inside the system simply because they had the misfortune of living in housing areas that are out of the on air condition what they're instead saying is well look that's true there is a dangerous condition that we know about but our negin measures they did reduce or eliminate that risk such that it's no longer a substantial risk well again that's why they can make that argument but this court needs to be aware that it is not supported in the record and it was too regularly refuted ack the class certification hearing there's testimony from multiple plaintiffs experts that the mitigation efforts were insufficient there that said the district court could choose to rely on that even if we were the fact finder and were the absolute opposite that act not unless we think that's clearly work to the record on appeal ninety five ninety seven ninety six seventy five and more particularly ninety six sixty one to ninety six sixty three when dr salo is asked point the way even with the mitigation measures in place do these inmates still face a substantial risk of harm yes the maids are endangered despite what they're doing that's what the experts said now i don't mean to suggest that the plaintiffs have to win their case during the class or if occasion feel the reason that i'm bringing this out is because what the twenty three requires is a rigorous honestly don't know if we're if we were to live i don't want to concede that i don't want to see them because i don't know and that was an issue but in all likelihood that is broader than the class that we've sought so i don't think it's an issue i probably should concede frankly but what what what what what is it issue here is with the more interesting question your honor is there even foreign policies at t c here and what distinguishes this case from a case that very likely maybe could be brought is that we've isolated this to one prisons housing here such that you can say definitively that each of the inmates are affected uniformly by the condition of confinement now it is it is a probably a closer question in terms of the battle of the experts whether the so called young healthy face a substantial risk but that is not for this court to decide certification that is for judge ellison to decide in a trial on the merits in play to support for ample evidence to say exactly that and defendants have put forth zero evidence to rebut that in fact the expert that  shows to rebut that was labeled by was dismissed as incredible and i believe the exact quote from judge allison was frankly unbelievable so in terms of your assessment of should we certify this as to everyone the evidence is overwhelmingly shows that all inmates face a substantial risk therefore you don't even need to get into should we be doing classes the question as to the surplus is isn't even close everyone including t c g is own policies in knowledge that for a particular diseases like with diabetes aren't at a risk well that's nowhere in the record or and to the extent he's relying on dog the riders testimony at best it's a controverted piece of evidence the fact is  disease is on a quickly a high risk factor but the issue the issue is now is someone with diabetes more at risk than someone with c o p d or is someone with diabetes more at risk than the so called young and healthy the issue is what baseline is very substantial risk of hormone for instance the testimony again unequivocal in this case is that everyone  is at substantial risk of course the fact that some inmates have diseases or disabilities that render them even more at risk of hor just goes to the urgency of the situation and the urgency of you lose today know right if we believe different than the tenth circuit that we should take into can account the healer a do you lose no no no we know we do know only no we do not lose because in the recommended well again the issue is i don't believe it's before the court but the issue that the court this court would have to decide i suppose if it chose to disagree with the tenth circuit if it chose to would i would say actually writing that the time which is appropriate to be addressing it however what all the poor we need to do is discuss what instruction jealous and to impose the least restrictive remedy if the court wishes to weigh in on that that fact now i suppose if i suppose it could i don't know why i choose to do so without a full record but we'll keep just happened that equally does it make sense to allow a case to be certified under twenty three b two based on injunctive relief that the district court would be categorically prohibited from awarding into the p l r a if that were in fact true does it still makes sense to want to allow the certification of air conditioning is so important ball does not hold as my opponent or my my esteemed counsel acknowledged that air conditioning is not an appropriate remedy and in certain circumstances here is very likely likely could be but if judge ellison decides that ultimately it's not there are several other remedies that that that he couldn't hoopy couldn't pose for instance having to do with policies or rewriting their mitigation efforts again as a practical matter at some point the text form a criminal justice needs to reduce to the temperatures the heat humidity inside to eliminate the substantial nature of the risk i suppose it's theoretically possible that they could do that without reducing the temperatures however the evidence is pretty overwhelming that that with temperatures this high and so the remedy that was sought is is a temperature or heat index below eighty eight degrees which is no different frankly than the injunction entered in the gravy arpaio case in which the court the ninth circuit up held an injunction saying that people on anti psych psychotropic medications would need to be housed in conditions under eighty five degrees i think i think that the significance of that is it points the court to say other courts have ruled that injunctions reducing temperatures to a certain level  are valid in fact in ball although that was not a class action this court said temperatures need to get down to a safe level how that happens is up to the core in what i think the p very clear about but beyond the tenth circuit i think is a matter of logic in order to address whether or not a remedy is the least restrictive means possible you need to have a fully developed record and you need the court to actually tell you what it is belabor this but it was more than four days of testimony it was more than the state putting up an unbelievable expert who denied reality and said that no temperature is dangerous judge nelson actually went to  he experienced it first hand in the sun i mean to suggest that he didn't do this job but he didn't conduct the requisite analysis it's simply belied by the by the record and again what i think is really important for the court to consider is the plaintiffs do not need to prove a deal at this stage we just need a common course of conduct which is should be undisputed of a heightened risk which again should be undisputed and then any answer to that question which can dispose of that bullet in the claim is only in weirdly it's appropriate for class action and similarly they would need to make sure that it didn't go beyond the particular plaintiffs to make sure that they it was a broader than that and if the court did go beyond that then they could appeal that at that time  are apropos of the class and once the point of getting a class certified is that i believe that that everyone becomes the plaintiffs and then the court needs to fashion a remedy that is the least restrictive so that all members of the class and the sub classes are protected and at that point with a fully developed record factual another was the court would be in a position to evaluate now to the extent the court wishes to suggest to the state in no uncertain terms that air conditioning isn't appropriate remedy under certain circumstances you know why don't we only why would we need to make suggestions it seems that the state is already aware that that may be the situation well i don't doubt that the solicitor general's office sitting here when court when crossed by by this court acknowledges that fact but i but i think there's been a powerful misreading and of this of course opinions and while that this is not the  you know germane necessarily to this appeal it is very germane to the health and safety of the prisoners going forward i will tell you firsthand there is a misread of your case law eighty and it is it is been articulated and rejected time and time again a little directness from this court might go a long way and i say that with respect to the understanding that it's and i didn't mean to imply that i was cross requires and that's what the court did not do you hear the quirk throughout two possibilities one of which is so vague we can't even tell what he means by what's going to happen if this case goes forward as class is that the court down the road is going to have to draft he policy for the prisons we don't know what that's going to look like maybe it will have tears relieved maybe somebody some people might be allowed are entitled to air conditioning we know that some people want the expert testimony that my cozen counsel refers to the bulk of it the only specific testimony that they offer related to the general  risk posed by the heat to the extent they suggested that they were talking about mitigation measures they had no basis in fact there's no basis in the record because they needed they didn't consider the medical records of in  it's a b to class the plaintiffs are asking for an injunction we don't know but you talk about the injunction that would come it big in the liggett exactly the district court referred to less drastic measures but he didn't elaborate on what those might be so what we're about what the outcome is going to be in a case where you're going to take the position that they're not it entitled to an injunction at all that's right and we need to be worried about this injunction that they're not going to get a few way then we need to be worried about what the relief may want to address the question of whether a single class member could defeat class certification first that's not what we have here it's not just there's a single outliers the court doesn't have to decide that question as it's not presented but the word as judge legally suggested the district court does have some authority to modify the class definition so if that were the case that there were a single outlier who might already lead a few certification the court can modify the class and i i would suppose that if their worst someone who were so anomalous there would be a reasonable means to do so but i thought you argued that because the represent the person who gave the testimony they were anomalous and so therefore it was inappropriate to it's not as though we just had a single person he represents a general class that couldn't the court have determined that he's incorrect about whether he faces a risk or not and isn't that within the prerogative of the district court after