good morning everyone we have five argued cases on the calendar this morning and one submitted case the submitted cases glad the new york city metropolitan transportation and we will take that on submission five argue cases a rather long calendar so we're going to be watching the light a little bit today i've been told that counsel is present in all cases except for the nd case and we're  missing one lawyer so we're going to move that case to the end of the calendar that so tomba the bar in otherwise will dispense with reading the calendar or reading the schedule this morning and we're ready to start with the st case that's water pollution good morning your honour's my name is martha ghaith wait now represent the water pollution control authority of the city of norwalk connecticut the court committed an abuse of discretion and manifest error when it excluded our experts in this case the court then compounded that error by granting summary judgment largely because we had no experts the experts should not have been excluded judy hodgson the w p c as princip expert is a professional engineer she is not a professional witness she approached her assignment in this case with the same methodology and scientific rigor that she approaches her engineering work with she is the only expert in this case who performed a physical forensic examination of the pump seals in question and she explained that based on that forensic examination the seals could not have been run dry she is such a scientist that she insisted on coming to the depositions in person so that she would have an opportunity to ask me to ask additional technical questions she wrote one of the things that the district appointed to was obviously operation was a key issue and the district court pointed out to the failure to look at the daily books and the other materials related to that issue what yours monster that's a manifestly erroneous conclusion by the district court to put this in context your honor the system in norwalk is monitored by a computer software program is called she then analyze that in fact in her report she ends up with a figure i think it's figure eighteen where she analyzes the data the actual operating data on the day of the  catastrophic failure in august you mentioned that data in your opposition to daubert motion i thought i saw that that was even something that was pointed to the district where your oppositions your honor in terms of the skater data it is throughout her reporters throughout her  transcript that the court said that the court had read it is pervasive in the report it is pervasive in her deposition testimony she said on page six hundred and fifty dollars of the appendix that one look at  her that the theory that the pumps ran dry just could not be true to put this in context the operators that sit in front of the computer screen in an office that is five stories above the pumps they are looking at the skate data that comes across their screen they then make notes about what they believe that skater data shows to put this information that is essentially derived from the skated data the sixteen pages and actually the only four pages that actually talk about the pumps but those pages are random notes taken by operators not pump experts who are looking on the screen at this skated data judy ho expert she's not an operator judy hussian is the expert that they brought in after the fukushima nuclear powerplant failure to have her design seals so that there would not be another disaster like that in the future my hope question is that is it our testimony was excluded largely because what she was testifying to was survey results and characterize what she was offering as survey results and that it seems pretty clear that whatever increase she made does not fit the requisite procedures for a  year and we have no objection to the court deciding to exclude the survey information but ms hodgson was perfectly clear both in her deposition and in an affidavit submitted in opposition to the motion to exclude that she had not relied on the survey data that's at the pentagon to thirty so there was no basis for saying that she relied on it she relied on her knowledge she relied on the forensic examinations she relied on the she one hundred and six dollars page report the issue is di lie for all of the issues on which her testimony was offered on the inquiries that she made among other purchasers of this product no if she explained in her deposition your honor she only made the survey inquiries because flo survey taken the position that must be your fault no walk because we never had a problem we never had a problem that you could she has said in her affidavit in her deposition that's why she used it she didn't form any opinions based on it you can exclude the survey data it does not affect her opinions one way or the other but to get back to the court's question about the logs and the fact that this woman with this background read the actual skated data were available and would be available at a trial to be introduced in evidence i take it i'm not sure that these particular logs would be your honor i don't know that the satisfy the business records exception here we have people who are operators and identified operators in some one page it's a post it note that they say that she should have read and relied on so i don't know that it would meet the business records exception and that's why we objected to that proposed use of that evidence in opposition to the motion for summary judgment so it is similar to saying that a c m running out of time so we don't think she should have been excluded there was no basis for excluding it she provided all of our calculations you provided thousands of pages to closer of counsel but even if we don't have an expert we still have a right to a jury trial on the unfair trade practices claim that records are passed dixon's testimony as well for a few moments i mean the exclusion of that testimony as i look at the record it doesn't he testified he didn't review some of the invoice is related to the repair of a couple of the pumps and that the imei operation and maintenance contract i mean did he how is it an abuse of discretion to exclude his testimony given what he reviewed and in that review he has very limited testimony your honor and vigorous cross examination could expose any failures in his opinions but basically said you have a license you have to protect the environment you have to make sure the air reliable pumps they spent close to four million dollars on replacing the pumps i think that that was a reasonable thing to do given the fact that if these pumps fail sewage backs up in expert found in this product was that the heat the insulation guide did not advise as computing products did that a venting system should be installed shafts were undersized with the problems of the coolant system with the problems of the sensor system you basically aren't doing a band aid approach and you can have a catastrophic disaster if you if the venture would not prevent all of the wholesale problems that she we also believe that the we are entitled to a jury trial with respect to the unfair and deceptive trade practices we believe that the facts support that it is not preempted by the connecticut product liability act as the court of supreme court of connecticut said in the gary decision they are not intending by passing the connecticut product liability law to preempt the unfair trade practices act in addition the garrity court explained that just because a claim under the unfair trade practices act is based in part on the sale of a product it does not mean that it's preempted your expert  and is the one who offered testimony concerning damages if his testimony was properly excluded and daubert grounds would you on summary judgment have been left with no kno case you have a problem with the contract like no your honor because we actually have the invoices we actually spent the money this isn't some hypothetical economists saying this might cost assists in the future we have the actual  invoices of what we spent for analysis for reconfiguration for replacing with the flight pumps that are working perfectly fine without any problems at the city of norwalk we would have the factual evidence to be able to present to the jury the time  raised in terms of the scattered data that was brought up the scattered data measures the flow the flow through the plant that was not included in the underlying briefing in the district court it was not mentioned it should not be included in what's considered here further the operators are actually by the pumps if there are issues they can see things that the computers cannot that's what's recorded in the o m i record that's why the on my records are important in terms of the on my records they were not brought up in the lower court in terms of miss them they're brought up in this court for the st time in terms of an objection there is is argued that they were objected to in the summary judgment motions that may be true but the summary judgment motion has no impact on the dogbert motion they were objected to in the rule fifty six dollars statement the local rules say that objections are admissions or denials are only relevant to the summary judgment motion waiver arguments in there and they're very ably briefed that could you just address the argument that there was not a need to look at the allen my records because the skated data was enough and elaborate a little bit more than just i understand the point they're the they're there they can go down and examine the computer is just measuring one variable but why what was so important about looking at these this particular data and arriving at the expert's opinion or miss hodgson has the opinion that pumps were not operated and there was not operator error how you get to the opinion there was not operator error without looking at what the operators were saying and doing is the problem and that's what these laws reflect and that's why they're important and for her to have that opinion without looking at those goes to the reliability of her opinions and supports the district court's position that they should system the i would rely upon the clone case for that the case was settled the it's in the district court's discretion whether or not to have that hearing and here we had a very well developed factual record  miss hodgson was deposed for the full time limit allowed by the federal rules of seven hours she did issue her one hundred plus page report she issued a rebuttal report we had all the underlying documentation that went with all of that so there was there was no need for the court to have had a hearing on that the record was  in terms of the damages issue that was brought up the issue there is that the invoices were not part of the record on summary judgment  evidence relating to damages in the district court was from a self serving affidavit signed by the w p c so there is that lack of damages that an affidavit is self serving that's usually what affidavits ar agreed but not always they don't get submitted i'm sure yes but i think that goes to the you know the sham affidavit that wasn't submitted until following the briefing  there is the better evidence of the affidavit or the actual invoices that could have been submitted but was not  the good part of this hobson's testimony was excluded because she characterized some of what she did is a survey and you self's self characterized if you if you excise from her testimony the opinions that were based upon the activity she described as a sort of it seems from quite a lot would be left i mean she identified a design and  manufacturing defects one of them i know you know was based on a survey but the other eight don't seem to have that whether i believe it i believe it was more than one that was included as a result of the survey further the survey is so intertwined in what she's done below if you look at her deposition transcript she says the word survey more than fifty times if you look at the one hundred plus page report that she issues it's woven in throughout it's not just one individual section and it may not say the word survey but she may go and say a review of user guides or a review of this that comes back to the survey you have a certain argues that that that what what she and we probably could be characterized as a survey was admissible to rebut your client's position that they never heard of this problem and this is you know there's nothing wrong with it and  and to indicate that in fact it's a you know it's a problem that has appeared has appeared elsewhere and if miss hobson had done the survey in a scientific way then that would be a different conversation have to do in  scientific way i mean we call an airline and say my seat was too small we say well we never heard of that before you know and then but and that seems to be the kind of thing here would you say we never heard of a problem with these pumps so somebody makes a bunch of from calls talks to customers and finds seven or eight of them have the same problem that that refutes that would refute your client's litigation position that  you don't have any problem and you haven't heard any complaints the problem that she has with the survey is one that was taken under false pretenses she lied when she called and said she was looking to purchase pumps to slow serve manufacturers a variety of pumps the pumps that we're talking about in this treatment facility are the largest she could be calling on a different type of pump there was nothing to indicate that these pumps are similar and so that's why it lacks the repeatability we can't go back and say and there's no recording in terms of something that can be analyzed we can go back and say oh this is right or this is wrong because she did x there's a smattering of handwritten notes that are absolutely unintelligible and what she records relative to her service and so there's there's no way for us to examine that or explore it or even for me to cross examine her when i was able to depose her because it's just nonsensical and that's the problem that goes to the real reliability factors all right thank you given being the one count against my client by the way relates to breach if you do sherry duty and the district court's ruling was correct and there is no evidence in the record of any self dealing whatsoever and even if there were into two thousand and ten well after the application was submitted to the clean water fine right there are your honor and i would submit it doesn't there be an issue of fact on that if there's this ongoing e mails negotiating this term even if it was n right is that it's not one of their purposes the whole no europe the whole package is submitted to secure funding which includes all of the various bid packages the terms and conditions that folks are had when it's a minute it's been packaged or all put in and certified by the p c a to secure the funding so that the project can go forward so at that point your honor the man's hands are tied to the flow sir it can't change that absent some other change in the contract indicates at any time that the w p c i was threatening damages because the project was falling behind and even if it were falling behind and there was a change to a different pump provider there's a provision in the contract that gil being out of any liability responsibility for that delay that would be a design issue that would be the spirit dr i cite in our briefs is well settled is accepted in connecticut and essentially if there's a design change i briefly or honors with respect to wear where this data is displayed it is displayed on a computer screen that is in an office five stories above the pumps them selves and that's it appendix one thousand five hundred and thirty seven sean jennings the maintenance manager testified that the operators do not go downstairs it's a maintenance people who go downstairs the four of the sixteen pages of handwritten notes talking mainly about people who are out sick there are four pages that even mention a pump and i would suggest that this is similar to a situation where if somebody is fluent in greek they decide that they want to read the iliad they read the iliad and then they are told that their translation and understanding of the story is unreliable because they did not also read the cliff notes these operators are not comp experts this world class expert is a pump expert she analyzed the data and with respect with the data shows it's clear on the appendix at six hundred dollars the disk a data looks at all of the operating parameters of  this pump facility it shows what the well level is it shows that the that the wet well did not run dry and as explained in detail in her deposition there was water being brought into the facility at all times during the events with respect to gil bain there is a clear factual dispute with respect to whether gill bang had actual express authority to enter into this limitation of liability language it did not there is no record evidence from any one saying yes we got this authority with respect to the ratification question your honor asked in march of two thousand and nineteen months after the clean water fund act application was submitted there was a letter an e mail from the folks we don't have authority to do this you submitted a public bid you were held to the terms and conditions of the public bid and we're not going to agree to this on the document that allegedly the ratified the front page of that package says by submitting a bid you were agreeing to the terms and conditions of this bid those terms and conditions did not include a limitation of liability clause and contain languages favorable to the w p c a there was no authority the fact that there may have been a counterproposal of the back of that package does not constitute to execute this limitation liability clause they didn't know anything about the limitation a liability clause in and furthermore flow serve new based on the scoping meaning that needed express authority for all those