[00:00:12] Speaker 00:
Good morning, may it please the court, Lauren Goldman for the pharmacy appellants.

[00:00:18] Speaker 01:
May proceed.

[00:00:20] Speaker 00:
This case was remanded by the district court on the basis of the local controversy exception to CAFA jurisdiction.

[00:00:28] Speaker 00:
That is a very narrow exception that is designed to reserve for the state's purely local disputes.

[00:00:37] Speaker 00:
Because this is not a purely local dispute,

[00:00:40] Speaker 00:
The exception simply is not applicable here.

[00:00:44] Speaker 00:
The pharmacy defendants were sued in this case based on the conduct of a company called Old Monsanto.

[00:00:51] Speaker 00:
Old Monsanto was a Missouri company that manufactured PCBs for many years until 1977.

[00:00:58] Speaker 00:
The plaintiff's claims against Old Monsanto are typical product liability claims.

[00:01:03] Speaker 00:
They say that Old Monsanto acted tortiously in connection with

[00:01:08] Speaker 00:
the design, manufacture, and sale of PCBs to what planners call a wide variety of industrial customers for what they say is a wide variety of industrial uses, and that some of those PCBs made their way into Nevada and ended up at the rail yard site.

[00:01:29] Speaker 00:
Those are classic product liability claims against a national manufacturer for conduct that was directed across the United States.

[00:01:38] Speaker 00:
And therefore, this is not a local controversy, and the local controversy exception is inapplicable here.

[00:01:45] Speaker 00:
Old Monsanto faces dozens of cases like this one, where plaintiffs in jurisdictions around the United States claim that the company's conduct in connection with the manufacturer and sale of PCBs

[00:01:57] Speaker 00:
caused harm to the environments and to the plaintiffs.

[00:02:00] Speaker 00:
To be sure, we don't agree with that theory.

[00:02:03] Speaker 00:
But the point is that these cases are all brought on the same theory.

[00:02:07] Speaker 00:
And they're all brought in different jurisdictions around the United States.

[00:02:11] Speaker 00:
So there are three independent reasons why the local controversy exception doesn't apply here.

[00:02:18] Speaker 00:
And I'd like to start with principal injuries, which we think is the clearest one.

[00:02:23] Speaker 00:
The local controversy exception

[00:02:26] Speaker 00:
does not apply unless the plaintiff can meet their burden of showing that the principal injuries resulting from the conduct of each defendant were incurred in the forum state.

[00:02:39] Speaker 00:
And to answer that question, the court doesn't just look at the plaintiffs in the case before it.

[00:02:44] Speaker 00:
It looks at the allegations in the complaint against the defendant and says, OK, based on these allegations, could people in other states sue this defendant

[00:02:55] Speaker 00:
on this same theory.

[00:02:58] Speaker 00:
Oh, sorry, Your Honor.

[00:02:59] Speaker 00:
It looked like you were going to ask a question, so I paused.

[00:03:01] Speaker 02:
I guess I will.

[00:03:04] Speaker 02:
So the statute says the alleged conduct or any related conduct of each defendant.

[00:03:09] Speaker 02:
And your brief doesn't especially emphasize any related conduct.

[00:03:13] Speaker 02:
What do you think is the scope of related conduct under the statute?

[00:03:19] Speaker 00:
Right, Your Honor.

[00:03:19] Speaker 00:
I mean, I don't think that that question is presented

[00:03:22] Speaker 00:
here because this case is about one unified course of conduct.

[00:03:26] Speaker 00:
So if the court looks at the pages in the complaint about old Monsanto, they are just, you know, this is around paragraph 227 of the complaint.

[00:03:38] Speaker 00:
It's just one unified

[00:03:40] Speaker 00:
course of conduct, like they made this product, they knew that the product was risky, they sold it to third parties, third parties incorporated it into a wide variety of things.

[00:03:48] Speaker 00:
Those things made their way into the United States.

[00:03:51] Speaker 00:
The oral-related conduct phrases is interesting.

[00:03:54] Speaker 00:
It came up in a case in the Third Circuit called Kaufman.

[00:03:56] Speaker 00:
And in that case, the defendant had issued insurance policies into a bunch of different states.

[00:04:04] Speaker 00:
So that case came out of New Jersey.

[00:04:07] Speaker 00:
And the defendant issued insurance policies to, I believe, car owners in New Jersey.

[00:04:13] Speaker 00:
And the issue in the case was the plaintiff said that the car insurance policies weren't fair because they didn't pay if you got into an accident and the value of your car was diminished.

[00:04:23] Speaker 00:
And the court said, well, or is in the alternative.

[00:04:29] Speaker 00:
So the plaintiff can

[00:04:31] Speaker 00:
satisfy the exception unless either the principal conduct or related conduct happened out of state.

[00:04:38] Speaker 00:
Our position is that doesn't really make sense in terms of a way to look at this.

[00:04:43] Speaker 00:
I think the way what Congress meant by or related conduct is like if I said to you the groceries are being delivered, if there's any fruit in there like apples or oranges, please put it in the fridge.

[00:04:54] Speaker 00:
What Congress was doing was it was saying if any of the conduct or related conduct happened out of state,

[00:05:02] Speaker 00:
and injured people in other states, then the case is not subject to the local controversy exception.

[00:05:09] Speaker 00:
And that's clear from the, sorry, did I interrupt the court?

[00:05:11] Speaker 02:
But your view, I take it, is that we don't need to reach the Kauffman interpretation of whether or is disjunctive in this context?

[00:05:19] Speaker 00:
No.

[00:05:19] Speaker 00:
No, I was just addressing it in case the court was curious about the Kauffman case.

[00:05:23] Speaker 02:
And what about I mean obviously our status not finding on us.

[00:05:31] Speaker 02:
But the sort of motive analysis that reflects seems to be like you could easily have characterized transportation of asbestos as like a nationwide.

[00:05:42] Speaker 00:
activity but they said well you know plaintiffs are just alleging you know the harm caused by it in Libby Montana so why will be is that different in some way or do you think that's totally different I think the way our stack I think our status right and I think it's totally harmonious with what we are arguing here so what happened in our stat was that the railroad BNSF was accused of mishandling asbestos on a four and a half mile

[00:06:07] Speaker 00:
stretch of railway in Libby, Montana.

[00:06:09] Speaker 00:
So the conduct was the negligence that took place in Libby, Montana.

[00:06:14] Speaker 00:
The NSF didn't really have any evidence that this had happened anywhere else.

[00:06:18] Speaker 00:
It said, well, maybe it did.

[00:06:19] Speaker 00:
We do ship this around.

[00:06:21] Speaker 00:
But the court said, I don't know.

[00:06:22] Speaker 00:
There's one instance here.

[00:06:24] Speaker 00:
It doesn't really seem analogous.

[00:06:25] Speaker 00:
And the court said two things that are really important here.

[00:06:29] Speaker 00:
One is that it said if the plaintiffs were alleging a policy of corporate malfeasance, the case would come out differently.

[00:06:37] Speaker 00:
And of course, that's exactly what our plaintiffs are alleging in the complaint.

[00:06:41] Speaker 00:
They say, you made this product, you sold it nationwide, you knew it was dangerous, you didn't tell.

[00:06:46] Speaker 00:
That's tortious.

[00:06:48] Speaker 00:
That is the exact thing that Arstead distinguished and that, frankly, is in line with all of the district courts both before and since Arstead that have said, if you're talking about corporate conduct, then the local controversy exception doesn't apply.

[00:07:05] Speaker 00:
The other thing that's important about ARSTAD is that they focused on the fact that BNSF had engaged in the allegedly negligent conduct in Libby, right?

[00:07:17] Speaker 00:
There's no allegation here that Oman Center did anything in Nevada, even that it shipped its product into Nevada.

[00:07:23] Speaker 00:
The allegation is that it sold its products from out of state,

[00:07:28] Speaker 00:
And that some of those products once incorporated into the products of third parties, quote, made their way onto the railyard site.

[00:07:37] Speaker 00:
So for those two reasons, this case is totally different from Arstad, and there would be no reason for the court to disapprove Arstad in order to correctly construe the local controversy exception here.

[00:07:54] Speaker 00:
So plaintiffs, and this is related, plaintiffs' main argument

[00:07:57] Speaker 00:
And they rely on, well, a couple things.

[00:08:00] Speaker 00:
I want to go back to the Senate report, which this court found useful in both Benko and Arstead in construing the local controversy exception, because the Senate report makes very clear what Congress intended when it

[00:08:14] Speaker 00:
said that the principal injuries had to occur in state.

[00:08:18] Speaker 00:
The Senate report says if the defendant could be accused of the same course of conduct by people in other states, then the case doesn't qualify for the local controversy exception.

[00:08:34] Speaker 00:
The plaintiff's main argument also comes out of the Senate report.

[00:08:37] Speaker 00:
They say environmental disasters are the archetype of principal injuries occurring in the forum state.

[00:08:42] Speaker 00:
And so I just wanted to briefly address that.

[00:08:46] Speaker 00:
In order to determine whether this is an environmental disaster, the court has to look at the allegations against the defendant who is removing, which here is Old Monsanto.

[00:08:56] Speaker 00:
And at the risk of repeating myself, the allegations against Old Monsanto all revolve around

[00:09:04] Speaker 00:
this allegation that it engaged in a nationwide course of conduct.

[00:09:09] Speaker 00:
So these are standard issue product liability claims based on things that happened at corporate headquarters, not allegations about something that happened locally, like a train fire or a plant explosion.

[00:09:22] Speaker 00:
And again, we come back to the same thing.

[00:09:24] Speaker 00:
The conduct that Old Mount Santo is alleged to have engaged in didn't happen in Nevada, which is why, as to it, it is not a local dispute.

[00:09:35] Speaker 00:
A second reason why the local controversy exception.

[00:09:39] Speaker 01:
Do you think it's a local dispute as the claims against CalNav are a local dispute?

[00:09:46] Speaker 00:
They may be, but it doesn't matter.

[00:09:49] Speaker 00:
Because the point of the exception is that, as you know, any defendant can remove under CAFA.

[00:09:56] Speaker 00:
It doesn't even need the agreement of the other defendants.

[00:09:59] Speaker 00:
And when Congress said each defendant, it meant each and every defendant's

[00:10:05] Speaker 00:
conduct that gave rise to the injuries, those injuries have to be felt in state exclusively.

[00:10:13] Speaker 00:
So what Congress made clear was that even if one or more of the defendants did act locally, if another defendant acted nationally, then the case was not within the exception because the purpose of CAFE jurisdiction is to allow a defendant like Old Monsanto that engaged in nationwide conduct.

[00:10:33] Speaker 01:
What if the conduct is

[00:10:35] Speaker 01:
intrinsically intertwined.

[00:10:39] Speaker 01:
I mean, this is a toxic dump, right?

[00:10:41] Speaker 01:
Part of the dump is Monsanto chemicals and part of the dump is toxic spills from CalNav.

[00:10:50] Speaker 01:
I mean, I'm not sure you can actually separate out which thing actually caused the injury.

[00:10:57] Speaker 00:
Right, but that's why the whole case should be litigated in federal court.

[00:11:02] Speaker 00:
The point of CAFA is to permit defendants in class actions to have their defenses heard in federal court.

[00:11:09] Speaker 00:
It's clear that that is what CAFA is for.

[00:11:12] Speaker 00:
There is this very narrow exception for purely local cases that are brought by a local defendant

[00:11:19] Speaker 00:
a local plaintiff against local defendants for things that happen locally.

[00:11:24] Speaker 00:
If any of the defendants didn't act locally, yes, the case can be intertwined, but it has to be heard in federal court, because any defendant can invoke CAFA, and if any defendant can show, well, actually, if the plaintiffs are unable to establish, to meet their burden of establishing the local controversy exception against any of the defendants,

[00:11:50] Speaker 00:
The local controversy exception is not applicable and the case must be litigated in federal court.

[00:11:55] Speaker 00:
So it's not that we're saying that the claims against these other defendants have to be litigated separately.

[00:12:00] Speaker 00:
We're saying that the case, the controversy, has to be litigated in federal court under CAFA.

[00:12:09] Speaker 00:
Did that answer the court's question?

[00:12:13] Speaker 00:
Yes.

[00:12:13] Speaker 01:
Do you mind if I reserve your time?

[00:12:15] Speaker 00:
Yes, I'll reserve my time for that.

[00:12:16] Speaker 00:
Thank you, Your Honor.

[00:12:17] Speaker 00:
Thank you.

[00:12:45] Speaker 03:
yes please yes good morning your honors may it please the court Lindsey Dibbler on behalf of the employees at Clark County Government Center and at and on their property this court has only addressed the local controversy exception in two cases involving environmental exposure that that case is the Arstead case and the Allen versus Boeing case in those cases

[00:13:16] Speaker 03:
the local controversy exception was found to apply.

[00:13:21] Speaker 03:
And in those two cases, the district court's opinion to remand those cases back to the local forum, the state court, was upheld.

[00:13:31] Speaker 03:
The appellants in this particular case have cited to a number of class action cases addressing the local controversy

[00:13:43] Speaker 03:
But none of those cases, not one of those cases involve environmental exposures or environmental disaster.

[00:13:52] Speaker 03:
What they do is they are putative class action suit consumer cases where the class is made up of individuals or made up of a class of consumers who bought a product out in normal commerce.

[00:14:11] Speaker 03:
That is not this case.

[00:14:13] Speaker 03:
This case is about individuals who were on property that was totally contaminated by various chemicals, including PCBs.

[00:14:25] Speaker 03:
It's not that these plaintiffs bought a product that was in the stream of commerce.

[00:14:34] Speaker 03:
They simply were exposed and were injured by being on the property.

[00:14:39] Speaker 02:
So if we take the text of the statute, you have to show that the principal injuries resulting from the alleged conduct, or any related conduct, but set that aside.

[00:14:52] Speaker 02:
Injuries or principal injuries from the alleged conduct of each defendant, so here Monsanto, were incurred in Nevada.

[00:15:01] Speaker 02:
How is that the case here?

[00:15:03] Speaker 03:
Well, first of all, and I'm going back to the congressional report where it does indicate that exposures, environmental exposures, are intrinsically principal injuries that occur in a local forum.

[00:15:20] Speaker 03:
And the way in which this happens, and I know that the appellants have characterized this as a products liability case, as a strict liability case,

[00:15:31] Speaker 03:
It is not.

[00:15:32] Speaker 03:
The action that's been brought against the appellants is a negligence failure to warn case.

[00:15:38] Speaker 03:
And when the court was talking about being intrinsically intertwined, they had a duty, the duty to warn.

[00:15:47] Speaker 03:
But they weren't warning anybody.

[00:15:48] Speaker 02:
It's not like they warned all the people in California, be careful of PCBs and everybody in Oregon and everybody in Arizona, but they just didn't warn Nevada.

[00:15:58] Speaker 02:
They were, I mean, your complaint goes through in some detail.

[00:16:02] Speaker 02:
They were producing PCBs, selling them all over the country and maybe all over the world.

[00:16:08] Speaker 02:
And if that was negligent, that was negligent everywhere.

[00:16:12] Speaker 02:
And if there wasn't a warning, there wasn't a warning anywhere.

[00:16:15] Speaker 02:
So there were people all over being injured by the PCBs, right?

[00:16:21] Speaker 03:
In this particular instance, the products that they were selling the PCB chemical to, they knew or should have known that those products were specific to the railroad industry and were going to be used by Union Pacific Railroad at their site.

[00:16:37] Speaker 02:
But Union Pacific is not just a Nevada railroad.

[00:16:41] Speaker 02:
They operate throughout certainly the United States.

[00:16:46] Speaker 02:
I don't know if they go into Canada.

[00:16:47] Speaker 02:
But they're all over, right?

[00:16:50] Speaker 03:
Right.

[00:16:51] Speaker 03:
But in the putative class action cases that they cite as support, you don't have to go through the proof that you have to prove in a common law negligence action.

[00:17:02] Speaker 03:
So it's not simply that they created or designed a dangerous chemical and then sold that to companies.

[00:17:12] Speaker 03:
It's the fact that they knew that that dangerous chemical, and this is what has to be proven by the appellees,

[00:17:21] Speaker 03:
Is that they knew that that that dangerous chemical was going to be leaked and contaminate the property and it was foreseeable then that that would affect anybody coming on to the property.

[00:17:33] Speaker 02:
And every other property where it was placed and there were lots of properties where it was used throughout the country right not not.

[00:17:43] Speaker 03:
Not everywhere where PCBs are leaked, does it cause damage to individuals?

[00:17:48] Speaker 03:
You have to show this.

[00:17:50] Speaker 02:
Have you alleged anything in the complaint to suggest that there was something unique about this particular site where PCBs leaking onto the Union Pacific Rail yard in Las Vegas were dangerous in a way that they weren't when they leaked onto other properties that were then developed?

[00:18:09] Speaker 02:
I didn't see anything like that in the complaint.

[00:18:11] Speaker 03:
We have alleged a connection directly between the leak and contamination on the property to the injuries that have been occurred by the people working on the property.

[00:18:22] Speaker 03:
We have alleged that the appellants knew that in closed systems or in open systems, leakage could occur and contamination could occur.

[00:18:34] Speaker 03:
We've also alleged the fact that they knew that these products were going to be used on that site because they were specifically used in the railroad industry, would be used by Union Pacific Railroad.

[00:18:46] Speaker 03:
So these are oils and lubricants that are specifically used by Union Pacific engines.

[00:18:52] Speaker 03:
These are paints that are the colors that are specifically used by Union Pacific.

[00:18:57] Speaker 03:
And these are transformers that were specifically used in Union Pacific engines.

[00:19:02] Speaker 03:
They did have knowledge or they could have learned of the knowledge that these leaks were going to occur on that property and contaminate that property.

[00:19:11] Speaker 03:
It was reasonably foreseeable that it could occur and in this particular instance it did occur.

[00:19:19] Speaker 02:
That's all important in establishing your case on the merits against Monsanto.

[00:19:26] Speaker 02:
I don't understand how it shows that the principal injuries from Monsanto's conduct were incurred in Nevada rather than in all the other places where these things happened.

[00:19:36] Speaker 03:
Well, looking at the Arstead case,

[00:19:40] Speaker 03:
This court in the Arstead case recognized the fact that BNSF Railroad mishandled tainted vermiculite with asbestos in other locations all across the nation and exposed people who became injured.

[00:19:58] Speaker 03:
But yet they found that not relevant because those cases were separate because of the exposures.

[00:20:06] Speaker 03:
Yes, you can have exposures in different parts of the nation, but you have to show in every single location that that exposure rises to a level that will cause injury.

[00:20:17] Speaker 03:
And that's different in every case.

[00:20:19] Speaker 03:
It's different that you have to directly prove that when they are exposed, how long they were exposed, and does that level then cause the injury.

[00:20:27] Speaker 03:
So that's completely different from all the consumer cases that are cited in support.

[00:20:32] Speaker 03:
And it does create a negligence action for the contamination of the property because the Union Pacific used all those products for decades without warning, without information of the dangerous nature.

[00:20:45] Speaker 03:
the duty to warn arises where the foreseeable risk of harm will occur.

[00:20:52] Speaker 03:
So if the duty arises at the site, at Union Pacific site, then the conduct or in this case the failure to warn and which creates the breach of that duty also occurs at that site.

[00:21:08] Speaker 03:
It's not just simply negatively occurring everywhere.

[00:21:11] Speaker 03:
that PCBs are located.

[00:21:13] Speaker 02:
Can you address the Senate report for the benefit of those who find legislative history helpful?

[00:21:21] Speaker 02:
Because the court there distinguishes, you have a leak at a manufacturing plant that poisons people in the neighborhood.

[00:21:29] Speaker 02:
That's local.

[00:21:30] Speaker 02:
You're manufacturing something at the plant that you send throughout the country that injures people everywhere.

[00:21:36] Speaker 02:
That's not local.

[00:21:38] Speaker 02:
I mean, that's sort of the dichotomy that they set out.

[00:21:40] Speaker 02:
Why isn't this in the second category?

[00:21:46] Speaker 03:
Well, I think that in the congressional report, they were very specific about environmental exposures.

[00:21:54] Speaker 03:
That was something that, in passing the exception, they said,

[00:22:01] Speaker 03:
They identified that as something different and distinct between any other product that might be sold across the nation.

[00:22:13] Speaker 03:
Because they found that environmental exposures creating injury at a specific location greatly impacts the citizens of that location.

[00:22:25] Speaker 03:
And so there's great interest by a local forum in those circumstances to handle a case of that nature.

[00:22:33] Speaker 03:
And in this case, it's exactly what happened.

[00:22:36] Speaker 03:
Now, yes.

[00:22:36] Speaker 02:
Well, except that, I mean, it's not environmental exposures as such.

[00:22:42] Speaker 02:
It's environmental exposures that are localized, right?

[00:22:45] Speaker 02:
So if the Monsanto plant had a leak or if, you know, a truck full of, you know, Monsanto's truck full of PCBs fell over someplace, then it was the people next to the truck were suing because they were injured by it.

[00:22:59] Speaker 02:
that might well be different but this is a product this is just an injury from a product that was sold in a sort of undifferentiated way all over the place right so well the fact that it's environmental doesn't seem to answer the question of whether it's localized which is what the the statute really cares about right well I agree the statute does care about whether it's local you know the focus on is it local and this is

[00:23:27] Speaker 03:
To answer that question, I would have to say that the contamination is what I believe is the important element.

[00:23:39] Speaker 03:
the contamination that wouldn't have happened but for the fact that they failed to warn about the dangerous nature of the product.

[00:23:47] Speaker 03:
Now, does that occur elsewhere?

[00:23:50] Speaker 03:
Yes, it does occur elsewhere.

[00:23:51] Speaker 03:
And they have cited to other instances where the appellants have been sued because of PCB exposure.

[00:23:58] Speaker 03:
A lot of those cases are handled in state courts.

[00:24:01] Speaker 03:
A lot of the cases they identified are handled in state courts.

[00:24:05] Speaker 03:
How is it different is because of the facts of the location, how the products were used, how the PCBs were leaked, how the contamination occurred, and the fact of how these individuals, the appellees, were exposed to that contamination.

[00:24:24] Speaker 03:
That's really what makes this all different.

[00:24:26] Speaker 03:
It would be the same in the Arstead case, the exposures that they did

[00:24:33] Speaker 03:
in other parts of the nation of mishandling asbestos-laden vermiculite, but they found that completely different because it was impacting this local environment.

[00:24:47] Speaker 01:
So there is a third prong.

[00:24:50] Speaker 01:
requirement that during the three-year period preceding the filing of that class action, no other class action has been filed.

[00:24:58] Speaker 01:
And isn't there evidence that another class action has been filed against old Monsanto?

[00:25:05] Speaker 03:
The only instance that Monsanto, the appellant, have

[00:25:15] Speaker 03:
Filed as evidence of another class action is the case city of Long Beach versus Monsanto.

[00:25:22] Speaker 03:
That is a punitive class action involving only municipalities.

[00:25:28] Speaker 03:
The city of Long Beach, other cities, counties, states that claim that in their waters they tested and identified PCBs into their waters.

[00:25:41] Speaker 03:
Not one individual is identified as ever being injured by the PCBs that are in those waters.

[00:25:49] Speaker 03:
That putative class and the class members, it's only that they found PCBs in the waters that could potentially cause damage to the municipalities, not to any single individual.

[00:26:03] Speaker 03:
So it's not of the same fact, same facts or factual allegations against the same plaintiffs

[00:26:11] Speaker 03:
or other persons.

[00:26:12] Speaker 03:
And that is the way in which that section applies.

[00:26:17] Speaker 03:
So the particular case or evidence that there are other class actions of what they put forward is simply inapplicable.

[00:26:24] Speaker 01:
So do you think that Art Stead is the most important case on determining what are the principal injuries?

[00:26:34] Speaker 01:
Because principal involves comparative.

[00:26:40] Speaker 01:
And it seemed like Judge Morrison Arstead was saying, well, we had most or almost most of the injury in Libby, so that's where the principal injuries are.

[00:26:53] Speaker 01:
Does your complaint allege that your site was where the principal injuries are?

[00:27:01] Speaker 01:
Because you're right, conceptually, that just because Monsanto sold product nationwide doesn't mean the injuries were nationwide.

[00:27:14] Speaker 03:
That's correct.

[00:27:15] Speaker 03:
In the complaint, we don't use the word principal injuries.

[00:27:19] Speaker 03:
What we do is we show that the allegations are 100% of the plaintiffs are injured from the contamination from PCBs and other contaminants.

[00:27:31] Speaker 03:
In Arstead, Arstead is one case, and I believe it is the most analogous case to the situation that occurred in the city of Las Vegas, simply because the impact of the contamination

[00:27:54] Speaker 03:
and the impact to the individuals are so localized at the government center.

[00:28:01] Speaker 02:
But in our stead, the panel said that BNSF, and I think this is the point that Ms.

[00:28:08] Speaker 02:
Goldman made, BNSF provided no evidence that the injuries suffered in Montana resulted from a corporate policy of malfeasance that affected victims nationwide.

[00:28:18] Speaker 02:
Your complaint?

[00:28:20] Speaker 02:
contains extensive allegations of a corporate policy of selling this stuff nationwide without warning people about it.

[00:28:28] Speaker 02:
So that seems the exact opposite of what our stat had.

[00:28:33] Speaker 03:
Well, definitely in a common law negligence action, you have to show that there was negligence on the part of the appellants.

[00:28:42] Speaker 03:
And that negligence is the fact that they knew about the dangerous nature of the PCBs.

[00:28:51] Speaker 03:
And that and the fact that they you know the failure to warn is that they did not put out the information Regarding that the hazard hazard You know the the basis for the claim is really the foreseeability that was going to harm people where the contamination occurred so

[00:29:15] Speaker 03:
Was it malfeasance?

[00:29:18] Speaker 03:
Yes, but then there's much more that has to be shown in a common law negligence action.

[00:29:28] Speaker 03:
I believe my time is up, but if there are any further questions.

[00:29:32] Speaker 01:
Your time's not up, but you don't necessarily need to use all of it.

[00:29:37] Speaker 01:
Oh, OK.

[00:29:38] Speaker 01:
All right.

[00:29:40] Speaker 03:
Do you have any other questions?

[00:29:40] Speaker 03:
The only other thing, I guess,

[00:29:43] Speaker 03:
I would say the other elements have been met by the appellees.

[00:29:51] Speaker 03:
There was some question or argument that what was used by the district court was a but-for test to establish the basis element that the cause of action against the redevelopment agency was a significant basis.

[00:30:13] Speaker 03:
And that's simply not the action.

[00:30:14] Speaker 03:
I mean, we cited to Banco.

[00:30:17] Speaker 03:
We've cited to the cases of our RA.

[00:30:21] Speaker 03:
It was a district court case, RA versus Amazon, and also to the Allen versus Boeing case, which established that what you have to look at in comparison is, are you making a colorable claim against the local defendant?

[00:30:36] Speaker 03:
and are the allegations against the local defendant distinct or independent from the allegations that you're making against other defendants.

[00:30:46] Speaker 03:
The but-for test in the discussion by the district court was simply to establish that a colorable claim was being made against the RDA.

[00:30:56] Speaker 03:
So it certainly has been argued that it was used to establish that the district court

[00:31:05] Speaker 03:
Did use a comparison analysis, which is what banko requires All right, thank you very much.

[00:31:12] Speaker 00:
Thank you Your honor I'll be very brief

[00:31:26] Speaker 00:
uh... three quick points on the principal injuries point the test is not foreseeability the test is not whether it may or may not have been foreseeable to old monsanto that some of its products would end up in nevada as the court pointed out that the test is whether the principal injuries resulting from that nationwide course of conduct were felt in nevada plaintiffs have not met their burden of showing that that was so i wanted to point out that

[00:31:56] Speaker 00:
During his argument, my friend mentioned some products that he says were specific to Union Pacific.

[00:32:02] Speaker 00:
I don't believe that that appears in the complaint.

[00:32:06] Speaker 00:
I'm not familiar with those allegations.

[00:32:09] Speaker 00:
Second, on the prior class action point, my friend argued that the City of Long Beach case is not relevant because the plaintiffs in that case are municipalities.

[00:32:21] Speaker 00:
But the Supreme Court made it clear in Moore versus Alameda in, I believe, 1973 that municipalities are citizens for the purposes of diversity jurisdiction and so that class action fully qualifies here.

[00:32:38] Speaker 00:
And finally, I wanted to speak briefly about the plaintiff's problem that they have not identified a local defendant whose conduct formed a significant basis for the plaintiff's claims.

[00:32:52] Speaker 00:
We believe the district court did apply a but for causation task, but that's sort of neither here nor there because even on appeal, it's very clear that the redevelopment agency's ownership, passive ownership of the site for a few months in 1992, does not form a significant basis for the plaintiff's claims.

[00:33:13] Speaker 00:
Plaintiffs cited the Allen versus Boeing case.

[00:33:17] Speaker 00:
That case actually shows why they haven't satisfied this requirement.

[00:33:20] Speaker 00:
That case was against two defendants, Boeing and Landau.

[00:33:24] Speaker 00:
The claim was that Boeing had dumped toxic chemicals on its site and that the plume had extended beyond the site into the neighboring environment.

[00:33:35] Speaker 00:
And Boeing said, well, it's really

[00:33:37] Speaker 00:
Our fault, it's not Landau's fault.

[00:33:40] Speaker 00:
We're the principal defendant.

[00:33:41] Speaker 00:
The principal injuries are all from us.

[00:33:43] Speaker 00:
And so there's no local defendant with a significant basis.

[00:33:47] Speaker 00:
And the court said, no, Landau was an agency that you hired to prevent this chemical spread.

[00:33:53] Speaker 00:
And for over 10 years, they failed to do that.

[00:33:56] Speaker 00:
And that's why the toxic plume went outside Boeing's land.

[00:34:01] Speaker 00:
This case could not be more different.

[00:34:03] Speaker 00:
The plaintiffs do not allege that the redevelopment agency contributed to the pollution anyway, that it allowed the pollution to spread.

[00:34:09] Speaker 00:
All they allege is that it passively owned the site for a few months before transferring it for $1 to the county.

[00:34:16] Speaker 00:
They do allege that the redevelopment agency failed to investigate or warn, but they also allege that Clark County already knew of the problems.

[00:34:23] Speaker 00:
So that doesn't, I think, satisfy that amount of time.

[00:34:26] Speaker 00:
Thank you for your time.

[00:34:27] Speaker 01:
Okay.

[00:34:28] Speaker 01:
Thank you very much, Council.

[00:34:31] Speaker 01:
Employees at the Clark County Government Center versus Monsanto is submitted, and this session of the court is adjourned for today.

[00:34:42] Speaker 01:
Thank you very much, Council.