eight good afternoon yawners my name is greg blankenship representing the plaintiff and may it please the court under andersen versus liberty lobby all that is required to defeat summary judgment is to proffer sufficient evidence supporting the claim factual dispute that plaintiff is done here st plaintiff theory with respect to cupcakes is amply grounded in the evidence whole foods has a unit uniform computerized procedures and recipes that ensure that cupcakes  weighed in labeled in the same way therefore if thirty three dollars packages of cupcakes at two different stores on two different days are all underweight by more than twenty percent and if ten packages of bonilla cupcakes and yet another store on a different day are also underweight then it stands to reason that other packages of cupcakes made using the same computerized recipe and uniform procedures will also be underweight plainness theory with respect to cheese is similar and also grounded in the  using a standard computerized procedure whole foods employees cut a piece of cheese placed it on the scale at a standard care way using the computer program and then they attach the computer generated label to the packaging by packages of cheeses at five different stores on different days we're all underweight it stands to reason that other g s a whole foods will also be underweight and the reason is that whole foods uniformly fails to account for moisture loss when it's setting tear or the amount that is attributed to the packaging are things that are not actually the weight of the product defended counters this well grounded evidence by suggesting that human error is the reason all thirty three packages of cupcakes are underweight and that whole foods doesn't leave its cheese on the shelf long enough for appreciable moisture loss the question then on this appeal is whether the defendant's evidence of human error and the rapidity with which its cheeses are sold is so overwhelming that no reasonable jury could agree with the plaintiffs that defendants uniform practices resulted in under way to cheese and eggs and respectfully the answer is that that evidence is not so overwhelming so to get into the details  has produced ample evidence to whole foods uses a computerized cupcake recipe that and that it uniformly trained its employees to ensure that all cupcakes weigh the same testimony from seven executives and  store managers including miss christy taylor testified that that whole foods maintains uniform procedures at every store with respect to weights and measures and three of those deponents including this taylor specifically testified the whole foods trains its employees to use standardized recipes for cupcakes miss taylor never once suggested in her testimony that these procedures were ineffective at preventing human error and in fact not a single one of the defendants witnesses ever suggested that human error was the cause of under waiting and if they had depended most assuredly would have highlighted that testimony regarding regarding the cupcakes the district court cited to four proofs to support the human error theory st was the testimony of whole foods employees but the only person the district court cites to is christy taylor and specifically her declaration which was submitted only on reply but when i asked miss taylor at her deposition if she could explain why so many packages of cupcakes rendered wait she confessed that she could only speculate as to the cause true that question was in the context of bonilla cupcakes but it's reasonable to infer that if she were speculating about why of no a cupcake would be under weight she would likewise be speculating about why chocolate cupcakes are underway and mr testified that she had not had any discussions with any whole food employees were guarding why there were so many underweight items found by the department of consumer affairs yet somehow she definitively knew on her reply declaration that it must have been human error from under scooping batter or using or using too little frosting that testimony is simply not credible and i would respectfully suggest that it was error for the district court to have relied upon it without at least giving the plaintiff the opportunity to submit a reply on the issue and potentially read a post missed a nd district court relies on its own live kitchen experience but of course there's nothing in the record about live kitchen experience and we're talking about a professional kitchen run by a large corporation using computerized recipes and uniform training programs we're not talking record he says it must have been human error because only two of three hundred and sixty four lots that were tested were underway either he thinks that there were three hundred and sixty four lots of cupcakes tested and we know that can't be the case because there were could not have been more than thirteen was tested because they only test one product at each store and there were thirteen store inspections or dr offerman is referencing other products within those three hundred and sixty four laps and all parties agree that the weight of one product is irrelevant to the weight of another type of product and finally the district court cites to the consent order between whole foods and the department of consumer affairs but of course that's just whole foods self serving statement and a settlement it most certainly is not the type of evidence that's cognized on summary judgment now with respect to cheese cleanest evidence the whole foods practices of not accounting for moisture loss uniquely compelling indeed whole foods executives other explanation for why fifty five dollars packages of cheese were found to be underweight more than the allowable deviants instead whole foods contend that she has recently cut might not sever krishna moisture loss and it speculates that all the dozens of cheeses the pla bought over the course of time might have been freshly cut when he was purchased but the fact that all of the cheeses in the audit test that the nd test that the d c s spector's conduct all of those were under more than the allowed variants and this disproves in other words dependence theory might explain why one or two cheeses in a lot might be under but an inspector might just happen to grab the one or two that were under in the oddities but we would expect that most of the rest of the cheetahs in the audit test would have passed the fact that every single package is a package and all seven locks were found to be underweight is a strong condemnation of that theory and as we laid out in our pre the district court conclusion that she's only left for two dollars to five d reason why plaintiffs can plaintiff argues that that he was injured when we were on the motion to dismiss obviously we didn't have any discovery and it was our view that because the dca had indicated that there were such a large number of underweight products that it was plausible that plaintiffs also purchased an underweight product we are not we are most certainly not arguing that we can simply make  statistical extrapolation between the number of disparate products that dca found to say that well all products must if they're for been underweight rather all we're relying upon is the simple fact that we know that a number of cupcakes  cheeses were underweight we know that they're unified practices and it's the unitary practices that draw the link between the test between of the dca two plaintiffs injury it's not a statistical probabilistic extra say that it all cupcakes were under twenty percent some more under twenty percent than others but therefore there could have been some cupcakes that were overweight i think that but back to your your argument rests on the uniformity the cupcakes were is simply a reflection of the fact that you know it is or is why there are allowable deviations nobody suggests that you know when anybody's weighing things they're going to be exactly the same to the to the micron there are going to be some differences and that's why there's a maximum allowable deviation to account for that fact and i think it's reasonable to infer that the difference is under that twenty percent were within that you know maximum allowable deviation but if all we know is that cupcakes were all under twenty percent it's i would suggest that it's not reasonable to infer that there might be that there could have been other packages that were you know to this one hundred and twenty percent the other way so that they weren't underweight given that the variations were not in that twenty percent range have any basis one way or the other to say whether it's fraudulent you know it could have very well been an error in programming or you know somebody wrote down you know when they did the testing of the recipes to see how much the weight was they just reach the wrong conclusion you know we don't know there it's curious to say the least that whole foods and ion able to produce any discoveries about the process by which it went about actually weighing the  cupcakes to determine what that declared minimum weight is but there's been no there is no discovery at least the statement to date that indicates whether it was intentional or a mistake or just a computer error but it has but but i guess either your argument has to be either a mistake or or something intentionally fraudulent right if by the stake you mean a mistake in the way that the computer is programmed to spit out the declared minimum very the whole foods was unable or didn't produce much of any discoveries regarding that process by which they determine what the recipe was supposed to have come out with it it could be that the person who programmed the computer to print out the declared minimum weight made an error it could be that there was a tree there was an area and you know how the results were been turned into declared minimum wait perhaps it was intentional there's there's no way to know but what we do know is that their uniform practice is in place uniform recipes extensive training to make sure that those are off alo indeed that's the reason the president i guess i guess that's why question uniform practices i mean we had a district court explain that the way they calculate the declared minimum weight is they make several batches of cupcakes according to the recipe and they weigh them and then they record uniform procedures and will it's done i don't believe so your honor i think the answer is that they're the answer is what peter or mon testified to that if there's an error in the data including for example error in the data that used to print the labels and to determine the declared minimum weight for cupcakes then that error will be multiplied across all the stores whether that error is a result of intentionally using a low nobody has ever testified that the computers in different wholefoods areas have errors or in the fact that there were three batches of cupcakes and three different stores that were under you just told me you just told me a moment ago when they did the initial batches to calculate the declared minimum weight it could have been an error in the calculation so why is it possible that there was an error there if you're saying if there's an error across of whole foods it has to be uniform so you're saying when they when they bake the cupcakes to decide the clear to minimum weights there might have been an error that was limited to that computer but when they calculate the weight of the individual stores it could not be an error that was limited to their computers as well you're saying no your honor i don't think i was clear and i apologize for that when whole foods determined what the declared minimum wait for cupcakes were that doesn't happen in each story each store doesn't have separate reprogram computers that happened in corporate headquarters at some point where all foods developed the recipe and then decided what declared minimum weight it was going to attach to that recipe that happened one time and one time only and i agree with that that's right but i guess what i was saying that since you were saying that maybe the way we got a whole foods arrived at it incorrectly or going the way to is because the way in machinery we need the product kind of error that here the initial laying back could have been an error that happened that you know that one time i mention when it was initially determined you know corporate headquarters were never happens that might have been one of the causes it could also be that when the person programming the computer which is the same computer in all the stores using computer program did they miss program didn't result in the wrong way it could have been intentional you know it's again we just haven't had there's apparently no as i said has been much of the putting aside such as just putting aside the possibility of intentionality like some kind of fraudulent scheme on the part of ho those your argument does seem to require that either it was intentional fraud or there was a serious departure from the procedures and practices of whole foods and somebody you know is the record reflect that there was a serious departure from based on human error from whole foods is procedures and practices then why is it that when we talk about the procedures and practices at the individual stores it's not credible to say that that that you know you haven't shown that there's no human error that the that the practices were so were so tight as to preclude the possibility of human error when in fact you argument depends on there being you know at least one serious human error to begin with because there's but there's a difference between the human error that might have occurred at corporate headquarters or in computer programming when the uniform system was being set up in the st place versus human error that occurs by what do you think what they're doing what they're doing that headquarters you know the conditions of the lab because they're setting a policy for all the stores that that would be subject to many more controls to guard against human error than what they're doing when they're taking cupcakes at every individual store cross the country i'm confident that if that were the case defendant would have been more than happy to proffer evidence that they actually did a great job in the st instance of figuring out what the declared weight was and programming and i think it's notable that the defendant has not produced any kind of evidence there's there's nothing in that the only the only evidence in the record about how whole foods follows uniform procedures has to do with the training of employees and the fact that the computer spits out the same uniform declared minimum weight label there's nothing to suggest that whole foods you know has is incapable of error at its corporate headquarters and the fact that there were so many there used  so your argument is that you put in lots of evidence that they have very strict procedures that go against human error at all of their stores but it might very well be the possibility that corporate headquarters when they're sitting waits in the lab they do not cupcakes is such is that the recipe was incapable of producing a cupcake that was properly weighted or overweight right so like so every every package that reached the shelves would have been the low weights right that's your arguments i think that's a fair characterization are but then but then with respect to the cheese you don't disagree that tradition you're right so then an argument about the cheese then you know even if even if it's a minority of cheeses there's at least some number of cheeses that are on the shelf at some time that are properly weighted right because right after it's cut and labeled it's properly weighted well your honor i don't think there's any evidence of a record that any of the cheeses that by the time a consumer actually buys them have been separate appreciable moisture loss and i think the fact that seven different walked in fifty five different packages of cheeses were all underweight by the wind more than the allowable deviation that is always underweight your argument is that the terror doesn't account for the moisture loss and so after some period of time after it's cut it's going to be below weight but your argument assumes that it's going to be properly weighted at the time of cutting because there isn't waste or loss at that time so there is going to be at least you know some cheese that's put out that's perfectly legal wouldn't that just naturally be the even if it's even if it's a small fraction because maybe most cheese success for a while i don't know how long it's out on the shelf but it's gonna be some jesus probably waited right that that theoretical possibility i suppose but again there's no evidence that that ever happened and if that were more than a very small fractured of the cheeses you would have expected that not all of are not every single package of the seven lots right there but as i said but it's just that you noted and it is in a case cited by the district court ultimately all evidence is probably the question is whether a jury could reasonably infer that it's more likely than not that some of the cheeses that m sean john bought over the course of many many months and dozens and dozens of purchases might have been underweight and the fact that there were all of the cheese no i understand before but we're talking not just about what a jury could find on the merits but plaintiff doesn't have to show to one hundred percent certainty that the reason why he slipped and fell on a piece of the felt was because of a piece of rice juries and judges can draw a reasonable inferences without knowing to one hundred percent certainty that something is the case if it plaintiffs had to prove causation by one hundred percent without any chance of their theory being incorrect no plaintiff would never have standing for any that's there but do you agree that it has to be it has to be known speculative there has to be a basis for concluding that mr john actually did purchase underway cheese i would have yes your honor i would agree that if all we have are speculation that would be so if we were if we were back at the motions to dismiss age i know that the truth percentage is not eighty nine percent and it's more complicated than that but let's assume that all you had shewn at this stage was that you know eighty nine percent of the products were under weighted which means eleven percent were over weighted with that and that's what you had established with that be enough to show injury direct direct injury are all cases where there is a substantial question about whether you know what percentage or how much of the group of products actually has some kind of de i respect your honor i wouldn't agree with that i think the fact that every single piece of cheese that has ever been tested there's zero evidence that any cheese is ever ever not properly properly weighted i think that puts us over the bump of being you know probabilistic or percentage and put you into certainty if whole foods had some evidence that any of us cheese any of the cheeses were properly weighed that would be one thing but it hasn't it hasn't property anything to support the notion that everything so i agree with you because you know the question of the cupcake you know you've put forward a fury that shows that every cupcake would be underweight and if so then they would have to show that you know the recipe is capable of producing overweighted cupcakes but on the cheese i think you agree with me that even your theory acknowledges there are some probably way to achieve this but i think we're i think i have the argument so unless there's something notices do not show the probability that a large percentage of prepackaged items were underweight all the notices show is there for once a lot in one day and one store on one day there was an  dca did not find a single sure way package of cheese or cupcakes that either of the two stores where mr john shopped other than argument john has not offered any facts at all to connect the d notices with his theory of uniform practices the ca acknowledged in the consent to or that it is not trying to any systematic violation with respect to the cupcakes there were only two lots of chocolate cupcakes found shortly after all the inspections of the whole foods stores in new york and those are the two other stores where mr john didn't show up as judge lo a just pointed  theory of a uniform error was contradicted by the dca inspection results themselves which showed inconsistent errors on the two lots of chocolate cupcakes they come out with different weights that is not evidence of a uniform practice which results in a uniform error it was no testimony that there was a uniform error in the weighing of the two cupcakes no documents in this case ever showed any data error with the cupcakes it was never any testimony suggesting that the recipe produced a short with cocaine no one on the plaintiff side ever tested the recipe there are no facts suggesting that the declared minimum weight was incorrect a clear minimum weight for a package weight in accordance with their recipe with respect to chinese most significantly there's no way to know if john purchased a package of cheese that experience moist you'll occurs over time if a customer purchased freshly cut she's soon after it was put on the floor as your honor just explained in your questioning that package would not have experienced any moisture was at all john has no way of knowing how long any piece of cheese he buy had been in the store before you buy the wayne errors were found with respect to cheese and only seven individual lots of she's out of all the stores in new york city neither of those none of those was at either of the stores d where john shop over food always heading miscellaneous terror that always accounted for moisture will there is no evidence of as judging the myer pointed out there was no evidence that it would have been enough moisture loss any package of cheese to overcome the miscellaneous to miss doane preventing plant the sexperts the only way to know if a package of cheese experience moisture was is to weigh the package we submit that under the post discovery i can stand for standing john has to show specific facts injury in fact that he has and now i would like to address some of the points that my opponent just named prompts about a human error and his view that we had to stablish that it was human error we submit that we don't have to address that issue and we don't have to prove there was human error we accept for purposes of this appeal that dca from the errors in the specific packages that they w is that john henry showing any evidence of a uniform error that would permit the inference that he was asking for it which was that there was a uniform practice that resulted in the under way across the board of cheese in th any uniform here or all the ribs in this case sure is evidence that they found two lots of chocolate cupcakes that were miss weight for whatever reasons it doesn't matter we accept that they were this way in seven lots of nothing in the record on that and there's nothing in the record that says that the recipe was incorrect or does nothing in the record that says that the minimum depleted weight on the chocolate cupcakes was incorrect  submit you don't have to address in any respect any of those people's testimony because it doesn't matter what the error was just like it doesn't matter whether the whole truth knew about the fact of moisture loss d or not we accept that moisture was ultimately occurs over time but in the period in which whole foods cheeses are sitting on the shelf which is two dollars to five dollars days there was no appreciable employs to us and whole foods did this informal test and if you look at the informal test within the st week it shows that there's no appreciable moisture will lodge with respect to any of those cheese and my opponent just argued very strongly with respect to the cupcakes that all the cupcakes that were waiting were more than twenty percent off that fact is totally under true in there's no way that you could read the testimony of director  because it doesn't mean anything means the packages of cheese that we've already found were underweight are still under way we measure them in a different place in the room i mentioned your response were to date error it would affect all the items but he never said there was a data error he was questioned at length and there was no testimony anywhere in the record that there was a dated error of any kind in any computer my opponent says in response to the panel's questioning that he is no longer arguing that it's simply a statistical extrapolation but it's clearly extrapolation because without that you see a result he doesn't have anything to argue over and it's clearly based on statistics d and the statistics are really very meaningful is recognized by the cia when their own people before they issued the whole foods report that ultimately live to the eighty nine percent number in the press release question the reliability in the fairness of using that number were only took account or he's arguing here is based on conjecture and speculation with respect to the weight disparity in the individual packages of she's there we can't extrapolate so we have a's only director of in force and who says you can't extrapolate i would never do that so we therefore submit to you your honor yes there were the seven lots of cheese that were mislead we submit that that is just a bridge too far and the only way you can cross that bridge is based on speculation that you would say yes there must be a uniform error but there's no reason to think that that same  that the other explanation is consistent with commonsensical live kitchen experience but he was not comparing the equities in wing on one side was a say uniform error you know on the other side was  a human error and then coming down and deciding it's a matter of fact it was human error all he was doing is saying john hanson offered me any fact other than speculation order that there was no systemic violation i got all of those things in my own experience is consistent with them but he wasn't saying i'm relying on my own experience he was simply saying properly three believe that mr john hasn't shown anything other than speculation to support his guess that there must be human i'm sorry there must be a uniform or you do not need to decide that because there's again you would only need to d decide that if you decided that you were going to rule contrary to what all the witnesses but i don't have to get to that issue the only issue is has mr john who has the burden here shown any basis for you to think that it's proper to confer that there was uniform error and he hasn't thank you thank you just a that recipe and the procedure right and do not dispute is a uniform practice and i do not dispute that whole foods people are schooled in the uniform practice and are supposed to follow the uniform practices and are given recipes and it's the same recipe in all the stores and they each bake them individually in the store there's no dispute about that issue that i think if there's a uniform and then you have a point you made was that it's not accurate to say that didn't record it and so they might very well have waited a bunch of products that were above the weight but it is true that the only the only evidence in the record or the of weights that we have of a cupcake below weights like twenty percent or more that the this recipe is followed in people of producing a properly weighted or overweight cupcakes is there anything i mean that's a dispute right like you think the recipe can produce a way to properly weighted cupcake and they say that it cannot is there any evidence in the record that shows that one can apply this recipe and generate a properly weighted to predict yes there is and i believe you were the one who asked of my opponent in the questioning about the testimony he said there was no evidence and there was lots of evidence about the on your point that my that john basically argues that the recipe could produce these different results you can argue lots of things but there's no evidence there was not one fact in the record that suggests that doing that recipe properly producing this weigh cupcake that is different than the minimum declared weight there was ample evidence from the record that during the product development process all foods really makes an effort to get it right and bake says many batches of cupcakes says they have to and ways each of the cupcakes and takes the cupcake with the lowest weight of all of those cupcakes that the big and sips that is the minimum the cleared weight that's ok so you're telling me that stared then that would  evidence of an application of this recipe that led to an above weight cupcake so you know i teach at the whole foods just described generally the process by which they decide on a minimum weight but  which was about how we come to the minimum declared weight that's what she was questioned about i sat opposite mr blankenship for a whole afternoon we went through the recipes in the baking process and he asked her how do you know about you know what is the minimum and how did you get there and she told him this was not an abstract discussion about taking you know products in the abstract that the questioning was mainly about cupcakes it was also questioning about other products like the loaves of bread that were d baked and in the stanford connecticut store where she said he had a consistent problem with shrinkage which they couldn't figure out and they finally went in and they realized that the that the locus of bread that they were baking in that store that would have been with a and a recipe to the loaves of bread were coming out i believe twenty five dollars or fifty percent every year and they were supposed to be so the customer was getting more than he was supposed there are there is evidence in the record of individual human error all our position is that this court doesn't have to decide that issue and judge angle mater didn't decide that issue all he decided was that other than theory conjecture speculation mr john hasn't already i guess i mean it does seem to me it does seem to me that if you have evidence in the record a uniform practice that it that it's a natural inference that you might lead to some you could argue their argument is that every cupcake we know of that was generated by this practice that minutely followed uniformally has led to a cupcake that is at least twenty percent underweight but i think i think you know as you pointed out i was focused on this question about the declared minimum weight so if there's evidence in the record that indicates that whole foods follow the recipe and generated an abrupt wakeup then that might might be evidence pointing in the other direction but you can if the only evidence we had was any cupcakes that we generated by this recipe well below the weight you could see how that would suggest that all the cupcakes were blown away wouldn't you or would you still think that would be an impermissible inference and your honor we would submit based on really the undisputed evidence of the witnesses on both sides that you can't extract a lake from a dca inspection result of one lot in one store to any other sort even as not only as to a different product but even as to the same product i believe that's what all misty over doing also said in her testimony therefore i agree with you that the only evidence of specific weights that exist in the record of the  weights that they measured but again we're talking about what you do agree with me or i thought you said a moment ago that there is testimony that wholefoods flight this recipe and generated cupcakes that were above weight in order to catch and they declared minimum weight yes yes but i know that's not a direct measurement but it's something i don't have a direct measure of the testimony of mr taylor who in response to my opponent's questions i believe underweight why that an extrapolation that other ones would have been underway why isn't it just a conclusion that the way this recipe works is generates cupcakes that are twenty percent or more we accept that these two let you just you just told me that if you took the recipe to the lab to a lab and showed that it generates a cupcake that's below weight that would establish its case we don't have the theory that that must somehow be a uniform error and there was testimony in the in the record you're on now i said but that wasn't my question let's forget about the two locks for a nd let's say oh we had was the testimony that you follow a uniform system for making the tough and they say this recipe can never result above cupcake and you say oh yes it can i mean that's a dispute about how the recipe works and so wouldn't someone have to show whether it can or can't and how do i decide on this record that is look at that dispute as a result that there's no ongoing dispute about that  question when i was about to say was there was an if i believe that this would be germane is there was testimony about even with the uniform practices and even with uniform methods everybody doesn't get it the same then we had testimony from henry opperman weights and measures expert about how different people may hear instructions differently their level of attention may be different they may follow instructions differently hundred pounds i think you would agree that this recipe would not be key people no matter what the level of human error of ever generating a batch of cupcakes that meets that we threshold so the there is a point at which we can say there's a question of whether the recipe is keep a bowl of reaching a certain weight isn't there that that is at some point a fact question yes but not not just based on conjecture there was no testimony that the declared minimum weight was in any respect incorrect no evidence whatsoever in the record of for your one hundred years and i was listening to your questions of my opponent about the computer issue and all that our view is it doesn't have anything to do with the computer issue it has to do with that that that those cupcakes were baked in store by some person in that store we don't know what he did but it wasn't anything in the computer wasn't anything on the label there was no testimony about the number but you know the declared minimum weight was a lot of the problem with that particular lot was that it didn't weigh what it was supposed to think  defendant's concession that it doesn't want to or can't defend the notion that human error was the causes of the cupcakes being underweight is fatal to his position the only basis but under which the district court rejected the plainest theory that uniform practices were in place and therefore some cupcakes were underweight kept pace right away was human error that's the only thing that the district court pointed to to counter the evidence that that point is the proper one and i think we've done  pretty thorough job of going through going through all that the other other thing i would just like to briefly point out is that mr salinger seems to imply that there must have been some cupcakes and cheeses that passed the initial audit test but that's just rank speculation there's nothing in the record that support that claim and there in fact is information in the record contradicting that claim both the district court and the defendant agree that a lot is