by a s k chemicals there's little dispute in fact no dispute about how that happened we're here today about the exclusion of an expert witness that s k chemicals  hired to present evidence in this case about lost profits that resulted from the loss of the japanese patent i want to point out where i believe the court the district court made certain mistakes that i believe were an abuse of discretion there were only five findings by the district court two of which favored our client  the first one was the experts qualifications the district court found that mr russell was qualified to serve as a damages expert in this case second thing the court found was that mr russell's methodology using a present value calculation based on a discounted cash flow method was also something the court did not have any problem with so that gets to the three things that the court did not walk and thought that there was too big of a gap between mr russell's information that he relied upon and his conclusions in this case the first one was time the court felt that there was too much of a gap in the years because one of the references that mr russell relied on was in one nine hundred ninety eight market survey second the court found that there was too big of a gap in geography that japan where this patent was was lost was not necessarily connected to the european market or the u s market for these products and the third problem that the court had with mr russell's findings was that he relied to some extent on input from the from a s k chemicals i'd like to address each of those three sales figures for the products in question from two thousand and five a believe through two thousand and eleven so he was looking at actual sales figures in europe and in the united states so he didn't just rely on one nine hundred ninety eight information he actually had actual sales figures from a chemicals as to geography when the court was concerned that japan is is not europe or japan is not the u s we would submit your honour's that castings which are the technology we're talking about here metal castings are castings wherever you are in the world castings are castings automobiles trains and so forth are made using castings isn't the issue the in effect the competition that is as i understand the methodology and correct me if i missed the math basically he said in japan this fossil coke company has twenty five percent of the market and in other parts of the world we do forty percent thirty eight percent as well as fossil code so for thirty eight times twenty five is nine or ten percent and that's why i project ten percent of the japanese market is that a fair understanding of that part it's generally fair your honor yes and so the question then is that i think it's pretty clear that in different places in the world these different companies have different shares as i think there's some other company that has seventy percent in japan and he doesn't compare it to that company and why you would think that if you go into a new market you should get the same kind of share relative to one competitor that just seemed to be where the biggest disconnect was to me actually your honor with  and by the way i'd like to point out that there is a worldwide company they don't practice just in they don't sell just in japan right well they have to be because you're comparing their sales to your sales in these other parts of the world right that's where you get the thirty eight percent as good as foster yes ok and i will also say that the chemicals thought in their projections they could achieve a fifteen percent market share in japan and the expert in this case said i don't think so i don't think you're going to get that high i think it only reached ten and did not immediately grasp ten and said that ten would come over time and actually started with a much lower percentage in the early years of the remaining life of this pattern which expires in two thousand and would have expired in two thousand and seventeen but i think is important here for a couple of reasons zero does so in japan and sells in thirty countries around the world according to their website which the expert did cite to their website there's been criticism that he only look information from at ask chemicals or ask it chemicals that is not correct he did look at information they provided he also looked at faucet co's website he also looked at the modern castings census from two thousand and ten a magazine that looked at the japanese market and the fact that fossett co is able to have sales in japan we believe is evidence that a s k chemicals could have sales in japan and i'll tell you wh oh who's larger than us a bigger market player than us we do trail them in other regions of the world we do believe that if they're selling into and we can reach similar market shares in japan because even though their name sounds japanese it's not a japanese company and the japanese company has seventy percent of the market we estimate that meat meal while has seventy percent of market share that's cross the co have a factory in japan and i do not know their plan was to have a factory in china and to import it into japan right that's correct your honor we felt that the most economical way to get into the japanese market would be through a factory in japan after our factory burned down in two thousand of them a discussion about how how favorable the japanese were going to be allowing those kinds of imports that's why i was interested in whether fossick zero had a factory there but i think the key point is sleep in two thousand and eight two thousand i in japan essentially no your honor the sales started back in i believe it was nine hundred ninety nine in japan when we first introduced the product there we didn't hire if your factory wrecked there was a fire in two thousand and three and the predecessor entity ashland just decided let's focus our efforts on europe in the united states right now so you never yes in and i believe your honor that the reasonable standard here needs to be considered in view of the facts of each case and in this case this is a problem worldwide market for castings and we're talking about japan very very difficult to get the japanese companies to come to the united states and say i would have entity that is attempting to sell riser sleeves in japan it has not been met recent really with much success we believe without honestly any evidence to back this up we believe it's because the patent has been lost we can't seem to get a foothold in japan at this point if there is there any evidence that somebody else is selling risers using your p or four patents and even if one of them doesn't exist they can't really copy because they're protected by the others is it thank you your honor they're in this case i believe there's five or six total patents that relate to this technology the key about the one six eight patent that expired here is that it was the grandfather if you will it was the the essential technology the other five are essentially ad or improvements there too so you could infringe the one six a patent could have been friends the one six a patent before it expired without infringing the other five so it the morning your honour's and move please the court jacob cohn for the computer packages inc mr russell was a perfectly well qualified net present value cash flow number crunching expert this case is not about whether or not he was qualified to do those tasks the issue is whether or not the assumptions that he was given were sufficiently reliable to permit him to draw the conclusions that he drew he is an expert who is used to taking real figures real sales and crunching them we just had a long discussion about the fact that there are no sales figures for japan so there were two sources of information fundamentally that the district court found to be insufficiently reliable to permit this expert to crunch the numbers the question wasn't whether or not he's a miller of the question is whether or not the grist was sufficient to permit him to mill it and to declare a number of damages there are to the two issues are the the one nine hundred ninety eight plan fundamentally which was a gee whiz we would like to be able to go sell and we hope that we will have sales figures of x by sometime in the two thousands the actual facts of course are they went in there on a very limited basis started with limited sales nobody knows if they were profitable there was a fire at the top producer the company they paid in japan to manufacture this and they went home for years and years and then around the time that c p i mistakenly failed to renew the pat they got interested in going to japan again and the question is whether or not the district court of used its discretion in saying your you know packet torrie wishful figures from one thousand nine hundred eighty eight and something they refer to as a market survey which is nothing of the sort of if the court wants to look it up the citation is in my brief it's a piece of paper it's like the world on the back of a napkin at the top it says guesses and the deposition testimony confirms these were guesses this is not the sort of basic reliable information that an expert is permitted to use in formulating an opinion this is not like the recent six circuit cases where there have been reversals of summary judgment because the district court didn't like the answer or thought the answer was a little too far afield or sabean to trust cases there's the one case that they cite where there was a future  economist talking about future earnings capacity and it was a daycare worker and and the the experts say well she might not always be a daycare worker want to children or older she might go back to being you know an executive assistant somewhere that's not this case this is basic d'albert kumo this is basic is the stuff that an expert albeit an expert in something isn't sufficiently robot to permit him to give it to give testimony i think parts of the world and the sales there is there are hard sales figures there could see that but the point was and i agree with you're getting to that argument just want to know when you use the word market survey that you didn't you said was just guesses were you referring to that or are you referring to some other i'm referring to as i said literally it's almost like somebody wrote on the back of an that i mean if you have a record entering number for which one you're talking about you have a salute of your own and give me one second the page forty of one brief your honor the so called japanese survey which is caption guess above all the figures and that's already forty six dash twelve that page thirty three thirty five ok thank  you but the larger question i don't want to get lost in the weeds here there are two fundamental sets of data that the district court found or in insufficient to permit this number crunching expert to crunch up the numbers and they were you know guesses and projections from fifteen years ago as to what sales in japan might be and i'll be happy to answer any questions with respect to why the court might have question as to whether or not that was an appropriate use of the court's discretion to say you can't testify based upon that and then the second issue is whether or not european and american sales of a company whose home bases are europe and america are valid compare a tour to sales in a country japan that mr stanley conceded in oral argument below is notoriously difficult to break into and we only have to go back to  admiral perry and eight hundred fifty four to understand that japan is a unique market and again this expert who admittedly had no expertise in japanese markets in valuing patents he was completely dependent upon the information he was given and he was not capable of critically at analyzing it he did not have any pretense to an expertise that would enable him to do so so the court again in the exercise of its broad discretion said you have not given me anything to logically link these sales in other parts of the world to this unique market which is japan and again these foreign companies foreign to japan that were selling into understanding is one of them was in two of them what foster co is not a japanese company that had twenty five percent of the market but the others were japanese company but the broader point is that mr russell had no basis and did not pretend to have a basis to offer an opinion as to the comparability of the markets or as to the ability to to penetrate the market he will for example if if he had said you know i also am an expert in worldwide marketing and foster crow came in five years ago and in five years they got twenty five percent of the market it had that might help it worldwide is the student of the economies of and business practices of countries and he said you know what japan is part of it's in my wheel house i might focus on the north america but i know enough about japan give an opinion you might be the situation where you are with you know in cases where that's an issue of weight and credibility for the fact finder but here you don't have an expert who says i know how to do this you have an expert who sat there to hearing it admitted under examination by the district court now that's not what i do i looked at this it looked reasonable but there's no basis for him to say that look reasonable is no basis for him to have said no it wasn't fifteen percent it was ten of this record because the record here is whether or not they have borne not met their burden of proof to prove that there is a material issue tribal factors we would like to turn to next really could be relevant to that expert's testimony and opinion business expert we didn't do anything like that but the issue then becomes if the court properly excluded mr russell from testifying is there anything left here and we suggest that as as set forth in the brief a force for your eye there is not if this is this information with none of this is admissible all of this is hearsay there are there's multiple layers of why this is not competent evidence the  information that he relied upon you know it obviously cannot go to with jury and the fact that the court found that it was insufficient for the court or for the expert to testify about this is pretty much dispositive of the issue of whether or not there it creates a genuine issue and i would suggest that the only issue again even on that level is whether or not the court in its discretion appropriately ruled that there was insufficient connection between the european and american sales figures which are real and the japanese market such that it would be permissible to just lay them out in front of a jury and say you know make the comparison that there was no linkage there was no evidence of linkage that to point out that by its very nature future revenues especially in a country where you're not presently selling are speculative and the courts have not necessarily excluded testimony because future revenues are speculative your honour's ask counsel about their expert i'd like to talk about there for just a second in a sense they have unclean hands because of the loss of the patent they've put us in this position we didn't ask to be in this position because the last the patent we had to find a methodology to try to ascertain what the lost profits would be because the loss of that patent they chose not to do it and i think the reason they chose is because it's difficult we came up with a way to do it and we believe that way is reasonable considering all the circumstances i would also point out that that as a s k chemicals was making sales in japan before the fire back in two thousand and three so it's not that we never were there we've been there now we're trying to get back in what the percentage of the market was before the fire was very small you're on or not and i will tell you why because we're limit let me ask your question legally about dawber because they come up with this is is your expert standing alone good enough to get in and presumably if they had wanted to get their expert in that the summary judgment they could have been a daughter hearing on that side but i'm i am i wrong that is  hearings usually dueling experts there isn't it is your expert good enough to stay in the game i believe you're right your honor it's not dueling experts and dahlberg but i will say with respect to d'albret and i'm glad you mentioned that have just a few seconds left that the weight of the evidence should not be weighed by the district court the methodology the qualifications yes but i believe dahlberg indicated that the district court shouldn't get into the waiting game of how credible is the seven sets for cross if you hear you use the word methodology as one of the things that was ok but that's the net present value what he called the number crunching the methodology of how you get the numbers to put into the crunching is really the crux of this case isn't it that is how good how expert are the numbers that are then put into the undoubted net present value calculation you're correct or i don't disagree with that i realize my times out of like me just one closing point that even if the expert if the district court was right to exclude the expert   lost profits to your experts calculation there was no proposal that they promulgate it for the district court's consideration as the district court deliberated to decide whether to screw your ex for it is that right that's correct your honor and i think it goes to the point that we have a property that was lost and that property is worth something and they didn't even put forth a number of what that something was even if it was just fifty thousand dollars they didn't put it forth and i think that's a judgment on you by did you try to get back or do you get the did you get back the fees that you paid them for the stuff they didn't do i believe they did return