as the court knows by reading the briefs there are many reasons why the appellant's seek reversal in this case the primary reason is that we think we are entitled to a judgment as a matter of law  main reason there being that we believe that p p d committed material and incurable breaches of the contract before we terminated and that we were there for a title to terminate the alternative reason is that once the case did go to the jury the court the district court allowed to receive forward to testify to some things that allowed the jury to ignore the the expressed terms the contract and then if there is no reversal we have some other arguments about recalculating the pre judgment interest award and assessing costs today i would like to go through just a couple of  these issues that we think are kind of the cleanest easiest to prove arguments and the the st one is for the j m a well then and for the j m a well there's we've got four different breaches that we talk about in the in the briefing there are two in particular that i'd like focus on because i think to be clear and both of them have to do with unauthorized  disclosures of confidential information in the st the st of those two instances involves an g domain and by the way when the court goes through the the briefs you see a name that appears to be angie domingo's but my understanding is that the preferred pronunciation is doing so well and you don't mean is the principle of p p d when she signed the contract with maaco she essentially ended up serving two masters one was may go and one was make those direct competitor a company called court at some point the score in sales decreased in court and began to ask questions  they became dissatisfied and they demanded explanation demanded an explanation of why these numbers were so low and ms domain gave them that explanation unfortunately when she did she disclosed some information concerning the procedure for humans which in the contract is expressively defined as something that is confidential and whose disclosure expressly constituted  a material incurable breach that entitle maaco to terminate the contract immediately and this is all in writing so corrin asked of ms domain for an explanation and she told them in one of her monthly reports in agreed at trial that this did in fact constitute procedure volumes and it is again on the screen it was confidential and that it was in fact as close to performance was not meeting with makers and strikers approval and so they concocted a strategy maaco and stryker concocted a strategy to find other people with whom to partner and other doctors to replace dr kreutzer now as you can imagine this is a very sensitive issue and it's a strategic issue it's it has to do with business strategy again this is exactly this will stay between you and me so mr workman said also in writing in the same e mail chain i will formulate a list tonight and converse with angie ms domain tomorrow to ensure i'm not they divulge that you're talking about they could mint there that's correct at trial so just for that purpose you just did it and of course this is not to take away from any of the other points that we not find out about them until litigation says it's i should point out here that the agreement when we're talking about material is material incurable breaches the company to  your but i believe it had to do with oh a failure to promote maker products but be that as a bag of some of these the the two reaches that i mentioned today came to light during litigation in fact the disclosure to the coroner concerning this procedure volumes which by the way really are they they really are a secret those of oh we didn't get that information we believe that it was absolutely appropriate for ms ford to give parole evidence concerning things that were said during negotiations previous drafts of the contract what she believed people meant when they said that  it's under florida law which governs the country it should never have committed but even worse than that ms ms ford was allowed to testify about the law as a legal expert she was never she was never designated as an expert but when she took the stand she started talking about things like the f d a is definition of label and you can't issue what opinions specifically i understand your your grievance here on appeal is that there's expert testimony that wasn't designated prior to trial as it probably should have been in the opinions in the basis for them was not disclosed and of course the purpose being that you would want to call an expert to countervail the testimony so what specific opinion as you mentioned in f d a some f d a testimony what specific opinions from her testimony you think are outside of the scope of her laying witness testimony i understand your other issue with her testimony is that it's an unambiguous contract but we talk about whether or not she testified as an undisclosed expert we're talking about opinions that were offered that were not previously disclosed and right that's what my question right the learned intermediary doctor it in made quite a point about how doctors which is true doctors are perfectly allowed to prescribe whatever they want even if it's not on lab and that's true but it's but it's ultimately irrelevant here because we define it with the term it is another thing that she testified to was she testified that this definition is documented that i've referred to testified that it wasn't one this only she testified it was part of the contract and then she switched back and said no it's not part of the contract so these are things that are out of it gave the jury a hook to  them or none of them can support such a claim as a matter of law then we took some very very limited evidence that people either produced in discovery and read and dissected what i don't know how support your contention that under fifty four dollars d there could be a designation of multiple prevailing parties in the case and in this case in particular where they were talking about subsidiaries and related parties honor i'd like to you i had planned out my whole argument but in might have counseled argument i'd like to address a few issues st of all i think it's extremely important for the court to understand the background surrounding this contract he enterprises is  a distributor of medical devices and implants they distribute for koren they distributed for make go and distribute for other fitters what's important to know about this contract at the time that it was entered into between p p d and make go may go with a sole separate entity striker orthopedics acquired diet and since he months after so i think the contract started in june  october striker acquired that strike rate koren most certainly our competitors but current and make we're not competitors in fact the evidence before the jury that's in the record before this court w so throughout the record you'll see where it talks about non may go branded corn and plants may go brand and corn and plant i think it's important that the core understands that from the get go in connection to judge hard questions regarding the germination streicher clearly did not like the fact that p p d had this contract and they did not like the fact that she was selling born so on may th in the record you'll see there's an co no one to st time that p p d found out anything about this alleged incident was after the term of the contract when they said why are you doing this so if it was so bad additionally the other reason that was listed in the letter was this failure to report which they didn't even talk about and the reason why they didn't talk about it is because there's plenty of evidence to support the jury's finding that that was a bogus excuse and you can see throughout the record that they were basically that was a concocted scheme to try to see if they could set her up but everybody testified she always provided all the information that was requested i want to talk about the confidentiality but i need to address of the immediately and i guess it relates to the confidentiality but i don't want this court to know that the st time that myself as a lawyer who's been handling this case now for almost four years has everyone heard that the conversation between paul hell sure angie jo maine and mark ortman that took place in april of two thousand and fourteen let me tell i know the court knows that was the stryker manager angie domain as our principal mark workman is her sole employee in april two thousand and fourteen after stryker took over the contract paul helped her set up a meeting with them was basically hey let's get to know each other maybe his testimony is in the record it eight hundred and eighty four thousand eight hundred and forty nine dollars he says it was just a hey let's come together let's figure out how this is going to work angie domain recollection of that meeting however was a bit different hers was telling her i don't like the fact that you sell kumaran you're on an island by yourself i won't do anything to put a dime and your pocket that's her recollection of the me however there is no way or in the record before this court and again the st time ever heard a story about they had this conversation about how they were going to replace dr kreutzer and how they were they were unsatisfied with him that is not in the evidence before this court and has never come out as evidence and i don't know where counsel gets any support for that position because that has never been a that there were no business discussions again in this domains testimony and it was just basically very uncomfortable and he was telling me how much he didn't like my business and paul hell sure was it was just a hey let's get to know each other so as far as whether or not it's a topic until both certainly it wasn't and moreover remember this the question to the jury and this the point contested issue of fact in the was did they have a legitimate basis to terminate the sales representative agreement on october th two thousand and fourteen that as of that time they didn't even know about that but they knew about that meeting moreover in the contract or honor which is most important it specifically provides that certain information is not confidential and most certainly a story get to that counsels that indicated as i understood his argument that it was it was understood maybe even expressly stated by all parties prior to trial the fact that the contract was on ambiguous is that or a description of her testimony what would be the purpose of her testimony over and above the unambiguous contract in other words what did she say to the presentation in the order of  understand and is that on december th two thousand and seventeen not long before trial started is when the defendants st produced this suppose a bulletin that supposedly didn't find the term off label this bulletin was never attached to the contract it was and nowhere in this agreement does it reference that specific document now in the end in the backward list training deals with whether or not p p utilize commercially reasonable efforts it's not whether or not p p d promoted off label that issue to the jury was did p p utilize commercially response effort in their cell so it's really a peripherial issue however we knew it would be a confusing one to the jury because even as the lawyer it was confusing to me so we designated mrs ford she had already been previously designated as a witness with about the definitions bad f d a not only did mr jacobs talk about that but miss domain address that as to dr currents or so you know really any alleged harm from her is frankly harmless  as the doctor they i get to choose what product they want for their patients whether it's off label or on legal it's what's in the best interests of their patients to your question  i asked to the contract itself it is not a violation of parole evidence rule so long as it doesn't vary or contradict there were e mails between mr ford and melissa bill of a says who was make those attorney by the way miss fil a basis was listed as a witness for make up they never called her even in light of mr ford's testimony they never called her but there were e mails between them specifically there is a said specifically that p p t could not utilize or sell their implants meaning p p d would have been prevented from selling any koren implants that were not on may go branded that provision was delayed it was deleted so that miss domain could continue to provide her current employer which is exactly what the contract seth nothing and this contract came out it's gone and moreover there's a subsequent email where this bill a basis says here mr campbell he's the maaco guy here mr campbell here's the current draft showing where you accepted these changes everyone knew miss domain p p d was going to sell current implants that's why make gowon it or and in fact it makes sense right because make those getting ready to sell they don't really want to keep buying court is clear that there is no report required as as part if she is a part of ongoing sequence of events and personally involved before the commencement of the suit what we did do is we had her listed as a fact witness that she was counsel for p p t negotiated the contract in our expert disclosures we didn't reserve the right to elicit expert testimony from any fact witnesses who had  any prejudicial effect or harmful effect was nil because dr chords are testified about the same thing as did miss domain moreover maker didn't do anything to combat that they had melissa van bella bass is listed as a witness they didn't call or they did nothing to try to alleviate any potential harm and they had every opportunity to do so moreover no you say that she wasn't as an expert witness but i believe in the transcript of the closing argument it's argue that we had one lawyer that specialized in this area tell us about corban branded products not being awfully so it sounds like when you're arguing that the witness specialized in the area you're relying on specialized knowledge is that does that concern you that the witness may have i understand your argument that it's harmless but seems like we were a little past the point of her being purely a fact witness if we're arguing to the jury that she has specialized knowledge that the jury should appreciate that ve won i didn't do the closing ok well but the record says so mr i understand but what's notable about that record they did not object at the time that that statement was made there was no objection from a co at the time that that statement was made moreover maaco did not request any curative instruction be had to the jury up i had already objected during her testimony that it was expert testimony isn't isn't a true or my mystery i have a copy of the have i think i've already large that objection on the record while she's on the stand testifying as an expert improperly as an undisclosed expert so i'm not so sure that during closing argument it's incumbent upon them to stand up and object and make an objection that they've already well but i think at that point in time i mean i don't think it i think at that point time it they're saying because remember the standard view is the prejudicial effect and i think they can't just sit back moreover i think in closing you do at least i know in texas you have to object at the time that there is air supposedly happening and you're closing and you have to request an instruction at that point to the jury or it's wa i can't say for certain and that's the law of the fis circuit right now said certain but i most certainly can't imagine that it would be different as the judge pointed out that judge smith when he was ruling about the expert testimony i have to remember all this off label stuff came and on december th two thousand and seventeen that was about a month before trial started we were well past expert disclosures and so you have to remember this off label was dropped a bit as a bomb on p p d and we were having to deal with it and we did but the bottom line is everything that miss ford testified to was based on her knowledge as a lawyer it was what she thought what she believed it was that here's the most important thing that mr ford's testimony was right they're not saying it wasn't right they're not saying it wasn't true he even said it was sure he knew and there were other witnesses  is excluded is confidential information that is information that is in the public realm and information that can be disclosed by a rd party and this domain testified as to dr currents or who was the head of the study that won the number of cases the volume of cases in that study was public knowledge to she missed domain and dr currents or both testified that the volume of cases that that were happening at that time that information came from dr kreutzer and dr crater could provide that information to her because he relied upon her so based on the contract there was nothing  precluding her it was not confidential information that was given and all she says hey listen guys my two k s are going to go down because dr kurtzer has eight or nine cases for the team which is information that dr her you know frankly out of time there was a lot to talk about i hate that we could not get to my across the pill but i will say this they did not meet their burden and the easiest place to look to see whether or not they did  is judge smith's orders they raised those statutes and said hey these statutes cannot be relied upon and satisfaction of the unlawful element of the tortious interference claim perspective business relations and a tortious interference of contract they make the point and say look you can't complain officious not fair right but if their conduct is unlawful then most certainly you can complain well  i think is the end re memorial hermann case because remember there's no there's really no pieces that are spot on on any of these statutes there's the reliable ambulance opinion case which was a long time ago but it doesn't start with the contract again i don't want to repeat myself but if we start with the contract it's pacifically to find certain classes of information that must never be disclosed and then if if the court looks at the actual testimony which is cited in the brief the court will see media only that the the mr workman in his domain respectively admitted that this was just that kind of information   my friend miss home mark said that the contractor did not prohibit p p d from selling or or promoting corn products to an extent that's true but it is absolutely untrue when it comes to operations or surgeries using this real robot system the real robot system is an invention that maaco came up with cutting edge it allows unparalleled precision in joint replacements it's very advanced technology the contract was specific that it is an off label use to take a maaco implant and use it in conjunction with a real robot hip replacement so i just want to point that out other than that yes everybody knew that they were selling corn but that was for other operations not for the real  the definitions or were open perhaps opened the door to ms ford's legal testimony legal expert testimony at no point did he ever try to interpret anything the only thing that he did on the record and we talk about this oh you know or in our brief is he read from a document he was asked to read from the document and that's it he didn't interpret anything barring any questions from  court of why was bill of a so not if whispered as a witness as counsel has indicated why was that witness not called after miss forged testimony i think that would have put us in an impossible situation here we were saying that this kind of thing was not what was not admissible was it totally inappropriate we would have risked waiver if we we would have done  any further questions i will take my leave thank you very much thank you for the case committed we will take a short recess for the hearing the rd and final case of the morning