breach of contract at trial so the little bit of background on the product the product was a refrigeration control system that fit into a refrigeration system of controlled the temperatures and the humidity in a repeats a made factory facility what happened was that the ridge refrigeration control system froze up and didn't communicate at times and for trial was simply didn't function therefore the defendants breached the contract well there are a few salient points that concern a circumstantial case like that first of all in this case of course it was a component part when a component part is placed into an environment the component part might fail but it also might be something in the environment the cause of the component part does not communicate secondly the product worked for a month  this is something that the district court found the opposite in for of her opinion she pointed to the testimony of three witnesses who said that in the her opinion said that they had indicated that it failed right away but the actual testimony at trial was that function for a month of course in a circumstantial case that suggests that something went wrong after a period of time that the product actually performed as it was expected to do the third point that i'd raise is that the cause was never determined these three things put together blow holes in a circumstantial case now i'm not disagreeing that if a product fails to function that you can prove breached use of circumstantial evidence however where equally plausible explanations for the failure are presented then it would be it would be improper for the district court to find speculate that one of those causes what cause of the product fail in other words it was it was it was improper for the court to find that the defendants breached the contract when there's equally plausible explanations in the environment that i just described where there are isn't that what does to courts down with the tire fact it was nothing in other words to resolve find that one of them was the cause where there's equally plausible explanations as to why the refrigeration control system lost communication then the plaintiff hasn't proved their burden of proof of proving breach the  position as well there would be the there is something wrong with the refrigeration control system but if there are six different tensional causes that were presented to trial by the expert as to what could have caused this product to fail then  elation for the district court to find that it was the product that was defective well she had conflicting testimony didn't she as it was a question of how soon it occurred that there were two there were three witnesses one was a startup  technician that was employed by the defendants to come in and start and he did indicate at his deposition that was admitted to trial that he had communication problems that start up but he also said that that's not uncommon and that there are lots of problems when you get a piece of equipment like this in and they get things going but the witnesses were the plant manager and the maintenance manager who both said that it operated for a month prior to it having problems so i'd although it facially it looks as though there's a if there's a conflict as to as to how long it took before this stopped operating the people who would most likely know specifically the plant manager joe burress who said it operated for a month find the four it started functioning and so the dual temps argument in its brief was simply well that it didn't work and our response is well if it did work if it hadn't worked from the very beginning if there is evidence that it would be a defective product or that the defendants breached the contract would be a lot stronger paraffin that indicated that this is the very point where there's equally plausible explanations for a breach it's speculation for a trial or effect to determine that one is was the cause and one was  didn't fact do so by finding that there was a breach here based on the testimony from do attempt witnesses including an outside mechanical fifty to a richer choir's a district court to set forth the reasons for her fighting the district court did addressed our expert but what she said was that the plaintiff attacked his credibility so that he was on pain medication and sure rejected that argument she didn't say anything else about the expert and i would expect that if she found that his testimony was unbelievable or if she was going to reject it she would put that in as a basis for her ruling the expert report that you referred to the a m s report does not come out and say that the communication problems were due to the communication the refrigeration the troll system what they say is it has something to do with the software and then what they say is what should be done is this the specifically the there is either a problem with the software or there's a problem the software receiving data the data is transmitted by the way in the wiring was not installed by the defendants the a m s report is ambiguous about it doesn't specifically come on say that the that the control system was defective it says it has something to do with the with the software and they even suggested checking of the line for noise will the line is the wire connecting the sensors and the components to the control system the wire is not part of what was supplied by the defendants the wireless installed by the plaintiff in their subcontractors checking that for noise suggests that even the person that they had come up to check the system and find out what the problem was agreed that it could be something else some of vironment a factor think your honor is good morning me please of course the standard of review is a very high bar it's clearly erroneous to was the district court clearly erroneous and stating  that in finding that the defendants breached the contract and the case law it is in this circuit is clear where there are two permissible views of the evidence the fact finders choice between them cannot be clearly erroneous and there was a mountain of evidence there was four and a half days of testimony and a number of depositions indicating all the different mountains of evidence showing where  product just didn't work this was a pizza manufacturing facility and because the system had to communicate with the outside world and say if there was a change in temperature that would ruin the product it had to tell the people who are monitoring the system hey there's a problem temperatures going down worse there was a moment there was a this was an ammonia based system and without communication it's a disaster you don't know if there's an ammonia problem if it's not communicating you don't know if there's an ammonia leak in the system or the a m s what would mr holmes time of the m m s report the only independent report which was a mess hired by the general contractor attempt was a subcontractor who hired the defendants m s s in conclusion is the opinion of a m s mechanical the communication failures has something to do with color mr which is a software program contained in the product in the paragraph above above that it says the wiring is would not cause this kind of problem so it's it was not wiring that was done by somebody else  expert threw out a bunch of possibilities that could be this it could be that based on certain documents that he reviewed from the defendant's counsel he was never out on the premises he never called a home run to say hey have you experienced a problem with with the electronic interference with the power surges with this with that he never did that it was just throwing out possibilities the fact that he was taking painkillers had just had surgery when he wrote his report the judge found that the challenge to the intellectual rigor was unavailing but not that you accepted his testimony the system that was in prior to this system there was never an issue there was no issues evidence showed no issue with these external causes that were raised by the expert and the system that replaced the hench system was installed same wiring same environmental conditions never had a problem from day one through the trial not one issue so when the system had to be removed because home run in said we can't deal with this  continuing lack of communication constant every couple of days you don't know when it's going to happen they said get it out of here and rested the report and then we brought in select technologies mr staley who owns select technologies testified asked about all v c atmospheric conditions he said they didn't affect his system it didn't have any issues so these are ready hearings what's clear is that there was a problem with the software what's interesting also and why no the courts reviewed all the briefs and the arguments that the context is important here at the time the dual temp was negotiating with mr henchy who was the original owner of the company he was sick unbeknownst to do attempt at the time he was selling his business he was tired he testified he he was getting ready to retire he was a mix of financial difficulties he wanted to get out of the business and he started shopping his business around he hired headed inexperienced sales rep who had not sold anything for hench before you dealt with dual temp he the sales rep asked hench do you want the specs on the prior system so you can see what they want done he said not only did i just need you to fill out this questionnaire because it's just a matter of screws and connections then and sells the company before the system was even delivered to power it was not the ship to tell them once a month after the sale while hench was on a part time basis his role was limited which he testified to he hands over the task of loading the software or loading the system onto a computer to a brand new tech who hench says was not very good it was prone to mistakes he sent the wrong software he sent the wrong wiring diagrams and he didn't do any testing and hench proudly stated in his testimony that he did testing before the product went out in this case it did not he did not do the testing now the new owner mr vandeman had absolutely no experience in the refrigeration and what ever and ironically he was the one trouble shooting the system the recipe for failure was complete if a system runs for a few weeks it didn't there were problems at startup which council acknowledged and then it ran for a few weeks and then after that it didn't run more than a few days at a time it is that delivering a working system it defies common sense it just defies common sense and based on that you just briefly your honor that clearly erroneous standard read that that applies here but that when a evidence is examined closely and the testimony of the expert is examined it's clear that the district court and that's highlighted by the fact that in the district court's opinion there were there are she cited two testimony that states the opposite of what she said that it help she said that the system failed immediately in the testimony that she cited to all said that it failed to weeks afterwards and that opens a hole in the circumstantial case the only other thing i would mention that the council address was th report first of all there were two reports both are addressed in the briefs one was this that was independent by a mouse hired by the general contractor and the other was a an expert in glory a who was hired by the defendants to find the cause of problems they reached conflicting analysis but the a m s report to be fair it does say in the opinion of amos mechanical based on the above observations the creation problems has something to do with color master it is either a problem with the software itself or a problem receiving the data from controller number one to color master so in their very report they say it may be a part of the problem  software or it may be the software itself it may be in transmitting data from a controller to the computer and to the software that is there you bring in the possibility of another cause something other than a defect in the system how is that data transmitted through the wiring the expert testified faulty wiring may be one of the things that causes a problem in the color master was part of the hench software right at stats correct that's correct and there are experts at it as something to do with it but it may be the software itself that may be a problem with the with the garbage in garbage out that's what you're going to get right but either way it's on you i'm sorry but the material point testified about all sorts of different things that were occurring at the plant power surges and drops faulty wiring they added a bunch of different things onto the system other than what they quoted of them what they specified to d  temper to two hench they added all these things and all these different things happened after or happened after the system was was install so it can't be on the manufacture of the control system when the customer takes the product adds a bunch of different things doesn't install a proper a uses faulty wiring and then it doesn't work well that's what the expert talked about and he didn't need to be there to know that he was an expert in  he understood how compressors and sensors in the wires work he was able to say and he didn't say this was caused by something else he simply said here are six different things that could have caused this problems or six different things that could have damaged the software so that you have the problems later even if you fix the wiring and even if you fix something else now all the evidence taken together i think presents an equally plausible explanation other than a breach by the defendants and we'd asked that the court