device right yes if this is not working for you will you let us know when we can adjust the placement and i thank you all right now you certainly welcome and direct question presented by this appeal is whether this court can allow a jury verdict to stand based on knowingly perjured and demonstrated testimony which i'll get into in a moment the testimony relating to the one hundred loss all this project can this quarter allow further a jury verdict to stand based on the unjustified exclusion of critical witnesses who would not only of the bunt apply tax substantive claims but shown mr downey their principle to be an abject liar and finally your honor this court must decide whether it will allow a jury worded to stand we ate the most critical piece of evidence in the case without which quite tech cannot prove corps ation or its claim was admitted when it was classic hearsay simply because as the judge ruled that is my adversary repeated in his brief a document that's received in the regular course of business and kept by the receiver or in the regular course of business qualifies as a business record that could not be any for the truth from the truth of the war and finally i want to just by way of an jury and the evidence to prove that there was corps no corps ation was missing are you talking about mr young i'm sorry one are you referring to mr young and that last point about the person not being permitted to be called as a live witness i'm actually talking about miss yes mr young and then ms yankee your honor was mr young listed as a witness side the answer is yes i'm glad you asked me course the facts with respect to mr young's exclusion just jumped out at you is wrong let me briefly explain the month before the trial commenced mr young was witness listed as a witness by ply tech at the time he was listed as a witness mr sharon served a subpoena on mr young at is of an excess of caution to make sure that he would appeal live three days before the trial you want to on april th two thousand and eighteen the parties exchange their witness list quite tech tactically removed mr young from his their witness list at the same time mr sharon on behalf of my g m listed mr young as a witness april th the following day didn't you list mr young as you are going to list mr young as a witness for impeachment or rebuttal purposes only not on your initial witness list no your honor he was listed as a witness for apply tech no i understand i'm talking about your client mr i'm sorry i'm talking about your client can you hear me now i can thank you no your client did not list mr young on its initial witness list that's correct because supply tech and i understand that but your your client then listed mr young impeachment rebuttal witness list that's correct after applied tech with drew him a couple of days i understand but that isn't that really a trial strategy they have the right to make a trial strategy you can put mr young you could have put mr young on your mr young judge williams doesn't decide that issue until the middle of the trial and that's may rd two thousand and eighteen and grants the motion and then refuses to allow mr young to testify on the ground among others he was deposed in this case and the interesting thing about this case you honor is that the critical errors that were committed below  testimony and plight exposition as later urged to the jury that they suffered six hundred and thirty thousand dollars worth of damages because they lost the contract on one hundred loss all this not testify why the most critical witness in the case couldn't be who wrote the e mail the single piece of evidence in question that would approve chords asian mr sharon as a courtesy to mr young in his counsel these are not disputed facts you want to cause chemist mr young's employer's counsel cass mr utley and says i just want to let you know the judge did not allow mr young to hundred and thirty thousand dollars in profits because or in the contract profits actually be course they were not selected for the bid when the bids one even sent out yet so mean i why isn't that something as a as a party why isn't that something as a party to the case that it was it was your client's job to suss out during civil discovery and there's no allegation that any information was hidden or or any discovery requests not responded that last all this was was one hundred us all this was listed as one of one a baby six product project initially that they potentially would lose the bid that was subsequently reduced to nine by specs from the architect by the way the architect who never testified at trial the developers who never testified to trial the general contractor who never testified the prior the only people who finish so who it is is clear evidence that downey implied tech knew before that there were claiming damages on of a job that hadn't even been digit but he learned about that two weeks before look two weeks before the trial thousand dollars in damages the jury awarded three hundred and ten thousand dollars in compensatory damages and they didn't break it down by project i mean the the verdict form didn't didn't allow them to show what damages they were trying to which project and i got that right no you have it right but the judge george williams refused to separate projects but if you ask yes we did your calculate precise calculation of damages we don't know why the jury did what they did but we know one thing had they produce presented with evidence as they should have been that they were asked to award six hundred and thirty thousand dollars on damages for the failure to award the las olas contract to ply tech that not only would have reduced what was before them but it would be destroyed literally destroyed the credibility of mr downey their principal who was the only witness your honor at the trial who testified for the but for element and frankly he shouldn't have been my client my colleague did not object but the judge allowed mr dunn to say not only dead he didn't get the objected to you it did the they did object to the verdict form and request that it be broken out a by project our position was that it didn't need to be and that was appropriately to be argued by them in their closing that ruling was made in our favor and they didn't appeal that ok right there's no mention of that at all anywhere in any of the briefs that's a different issue certainly they do appeal the sufficiency of the evidence supporting our damages which was the basis of the rule if the a motion a trial as well and the record here demonstrates that the evidence was more than sufficient to support the damages the jury awarded i mean factually the records full of the evidence about margie ams malicious intent in its malicious conduct you don't really need to look even beyond the words that they put in writing in their own e mails after the relationship between the parties and did in the summer of tw march him made clear in writing that it was going to react in an extreme and unpleasant way it was going to bury ply tech it was going to launch a blitzkrieg attack was to take it out of ply tax hide and cripple the king referring to paul downey i mean that was that was the evidence from margie m's own words in e mails that were never objected to when they were admitted  trial and then we know that margin m actually set out to do what it said it would do in critically margy amps bar gems manager jim  series of mouse including emails to cast which was the construction arm of a major south florida developer with which ply tech had a track record of business we'd already been used on for projects involving class a that evidence was on contradicted can you i don't want to interrupt you but can you address the delay that air front of the other table stated for the specs for the project which were subpoenaed on the t from them we had a subpoena them for deposition in a a motion to quash was filed we had a hearing we took the deposition and cast didn't provide those specs until later and we were also able to get them independently through the architect s b architects and as soon as we obtained them within a matter of days we provided it to the other side and this was well in advance of the trial and i also want to emphasize that those specs came into evidence not just through mr downey's testimony but our expert mr shuttle qadi reference the one hundred dollars loss a list specs in his testimony as well which as an expert he's allowed to do in that testimony was given without any objection at all that's that's in the record it's i'm glad you mentioned that is it does not seem to me that mr testimony established those as business records well i mean look it's a it's a hearsay objection right in the case cited by the other side the langford case i think is really instructive on that it says the the touchstone of the business records inquiry is reliability in the trial court has broad discretion in determining admissibility here the testimony from mr downey this was specifications in the ordinary course of its business these specifications were prepared by the architect as the architects and that's in our view sufficient under this rutger for the court to downey's area of knowledge of how those documents were created and are known it wasn't they weren't admitted for that purpose i mean in a sense it's a verbal act it's not hearsay it's just the fact that  specified not how or why or what led to it that that wasn't the point of the admissibility of the documents so certainly it's within ply tax business practices and day to day operations to receive copies of specifications for projects from the architects and just to be aware of the fact that ply tech had been specified for this one hundred dollars los angeles project and there no dispute about that there's no there's nothing in the record at all to question the reliability of that document or the fact that plug tech was specified in that and any of that i know i believe that objection was raised by a marg trial but was an objection reiterated in the mission for a new trial it i believe in the in the motion for new trial is really based on sufficiency of evidence for damages because this is more an  is is let's to stand by the district court judge requires deference to the district court judge's decision and again with respect to those specs i want to emphasize the x spurt you know who under rule seven two with out any objection at all so the suspects are in the record in of course the other two sets of specifications were in the clips that marge and themselves played of the zach young deposition so that's that demonstrates the reliability of these specifications and again it's just the fact that ply tack had been specified by the architects for these cast projects and so we know ply tac this is this is not a case involving a new business with no track record the case is relied upon by marge m r primarily that type of case like the alpha med decision by judge all tonight so here clyde tech had a track record with cast that's on contradicted in the record the testimony was that ply tech product was used in all prior cast projects where it had been specified by the architect that's mr downey docket entry three hundred and forty nine page sixty line fifteen and then the testimonies also on contradicted that after the law suit he asked didn't use any ply tech product even when it was specified and we know ply tech was specified on three specific projects we have that testimony not only from the from mr downey and from the expert who relied on that and the evidence at trial showed that mar jams conduct was responsible for our product not being used by cas we have the the e mails that marge am sent to cast we have the e mails that circulated internally inside cast after mitt mr metcalf's e mail was received and then we have plaintiff's exhibit sixty three the e mail young who's the vice president of cast and this is as his deposition shows not a clip that was played but the depositions in the record as as an exhibit to two  terms were of voiding apply tact so this decision was made at the upper level of cast by the vice president who nd in command and as a result of that no more ply tech product is specified and that vice president even refuses to meet with mr downey or our distributor i w t tile and those are the the unanswered letters that we sent are in the record as well so based on this conduct we were blacklisted and our expert testimony provides more than a sufficient basis for the amount of damages as well he started with eighty six dollars projects we did it down to the three projects where ply tech was specifically specified he did an analysis of the revenues based upon the  contradicted numbers for the project he reduced it for the incremental costs that would have been involved in fulfilling the project and he also applied a discount rate best based on a federal index to account for risk in the arrived at the at the figure of one million six hundred and eighty thousand dollars that's what we asked for but there was also evidence in the record that with respect to the or a c side project where we were the only company specified that that project involve a loss of one hundred and sixty six thousand so there's a range of damages in the evidence between one sixty eight our number and one hundred and sixty six thousand the jury comes back with a compensatory damage number of three hundred and ten thousand which is entirely within that reasonable range we cited the u makes clear that a jury's free to listen to the testimony reject the figures offered by the parties in a rival to figure which seems reasonable to it that's exactly what happened here and that figure again to quote sullivan was well within the range of damages that the evidence would support the g m brod case which we saw which we cited to involve similar issues about damages the court holds the jur confirms she was coming in to provide substantive testimony she's not an impeachment witness she's a substantive witness on you know the basic issue of damage and loss and she's on disclosed there's no dispute about this until sunday evening before the th the day of trial the last day of evidence so this is a situation where the prejudice to us is going to be pronounced we haven't had a chance to depose this witness and we're not going to be able to and there is no justification at all for the delay and that's what rule thirty seven c one provides they have to show that there's the failure to disclose was substantially justified or is harmless and they didn't show either here it was no abuse of the trial court's discretion to refuse her to allow to her to testify and again just to put this in context mr young the vice president who made the decision at the upper corporate level this is a project manager who's presumably to come in based on her affidavit which was filed late or not before the court at the time she's going to come in and testify that it is possible that ply tech may be submitted that's docket entry th dollars page three paragraph six i mean this is not what margin seeks to color it has it's there's no good reason for the disclosure fact zat young was specifically asked that his deposition about the status of the las olas project and he testified that construction had not started and yet they nickel acted even to play that clip in effect a deposition mr they know they knew this all they had to do is drive by the project in fort lauderdale mr metcalf could it testified about that or they could have asked mr downey about that but they didn't they didn't cross examine him at all as to the status of construction of cast and we were blacklisted at the upper corporate levels we weren't going to get any cas project and we didn't get one hundred loss all this anyway i guess my time's up i'm happy to address any further questions but we appreciate the argument thank you honor i believe if you're really the deposition transcript that of mr young you will find that he was not asked about one hundred last all of us and with respect to the other projects he testified it wasn't cass's decision what underlaym product he use it was the decision of either the architect the developer or the owner and it's interesting that mr kaplan just reiterated the fact that mr downey spoke to the architect mr downey had this relationship with cass he spoke to the architect he knew that one hundred dollars law so this was not even big yet they presented to the jury knowingly false testimony i notice that mr kaplan has failed to address that i don't think you want as well let me answer a few of his of the points the specs the admissibility of the specs coming in that's not true he objected to all three and the site to that your honor is that page ninety one thousand nine hundred of the record tab three forty nine dollars at page eighty four dollars so that's not true my client my colleague objected but then he says mr schulte the cauchy also confirmed the authenticity of the specs was to show the cauchy was only a damage expert he took  downey said and then determine the amount of damages but he also compound of the error of mr downey's testimony that was let in and yes on objected to by my colleague in which mr down mr downey could said but testify he would have told the jury live in in person and yes in this day and age it was a judge's discretion for sure but in such a critical piece of evidence the only piece of hard piece of evidence they had that they were not awarded the contract be course of what more g m did the key witness was not allowed to testify live now with respect to  captains argument that after the lawsuit chaos didn't use apply tech well miss yankee in the certification that was submitted in support or application the letter testified actually said that was being considered at that very moment for the job and she would have testified had she been permitted to as she said in her certification or affidavit or declaration that email from margin would have had the nd in command and that my client could simply have driven by the project to know that the bid for the on the wyman on the floor had been selected i think the stating that proposition answers itself mr young was not asked about the law sold his project when he was deposed in two thousand and seventeen b course the specs had not been issued and the specs had not been produced to my client so that is not accurate as well honor and by saying that if you step back from the fray in question you look at the question what was the evidence that an email from cas written many months before these contracts were awarded who was them not to have kept these contracts when there were alternatives and all the the people who made those decisions didn't testify what was the evidence you know mr kaplan my adversary remarks in his brief that the test is not the greater weight of evidence in terms of a new trial it's whether it's not it's whether there was sufficient whether the greater weight of the great evidence while i submit to you that was no evidence no evidence of course zation thank you thank you