would have proven that the index generator sets were defectively design which is exactly the theory that we tried to present a trial and then finally that the trial court erred in refusing to consider that the third and fourth party defend these were not party opponents to index simply because indic didn't have a pending claims against them and couldn't have brought claims at the time because of statute of limitations issues on the first issue of the jury trial trial the fact that we call count one and we did contractual rescission is irrelevant to the substance of the allegations which plainly allege a breach of contract and the rescission would have required the court to exercise discretion to cancel the contract we were seeking to enforce the expressed terms of the contract we were asking for a remedy that requires the court to affirm the contract and to its enforce as expressed terms in particular paragraph fifteen allowed index to return to the units generated packages in return for the purchase price and all melted paid and we sought recovery of the purchase price as well as interest that had been used to finance the purchase of the goods because the contract said all amounts paid therefore as well as attorneys that expertise specifically under paragraph twenty three of the contract had just been a case of equitable rescission which it was not there would not have been a right to attorney's fees there would not have been a right to expertise i generator site evidence the trial court excluded a very substantial body of critical evidence proving the design defect in the identical model of generators that's ever changing the in the units that evidence would have proven that the index units were defectively designed and certain of that evidence would also have demonstrated that professional power was on notice as early as two thousand and one or two thousand and two a vibration problems on those identical model of generator sets and had notice of the very issue the trial court claimed in dec failed to provide professional power with notice of and so when ruling by the courts the civically refused to admit that evidence on the ground that court said the evidence was not relevant to proving a design defect that ruling was wrong as a matter of law every case to address the issue has held that other similar accidents are similar products are relevant if they're substantially similar to prove a design defect that's exactly what they're relevant for later in the trial when we were making offers a proof the trial court actually acknowledged that the other generators that would have been admissible if this had been what he called a negligent design  and we think that that comment is very important for a couple reasons first it suggest to us that the trial court may have understood the error it had made earlier because even in a negligent design case the other generators that evidence would only have been admissible if the other generators that were substantially similar to they still had to be substantially similar similar to come in and second and even more critically the court didn't appreciate the fact that the in that case the complaint and all the evidence we tried to produce to introduce a and i'm quoting the particular defect or danger alleged by the plaintiff will serve to define the degree of commonality that there must be among the accidents in order for them to be considered substantially similar what that means that what the trial court should have looked at in determining substantial similarity was the generator set component which was our theory of de facto which was affected had the trial court done that it could have come to no conclusion other than the fact that they were substantially similar in fact they were identical they were the same model same a very other generator sets that we saw to it bed it makes no sense to change the index units based on your experience with the other generators that's unless you believe they were at least substantially similar if not identical mouth he component failures just continue in the heat of the evidence what the evidence would have shown has to how they were substantially similar the component failures on the other generator sets and the index generator sets were the same vibration testing data was taken on the index units compared to the vibration testing data taken on these other generator sets again something you don't do unless they are substantially similar and i think i think we've read every case or almost every case  way that that addresses the substantial similarity doctrine and we haven't found one where the goods or accidents at issue were more similar than the goods involved in this case they were the same and maybe that's why the professional power when it filed its motion for summary judgment the incorrect legal standard but i but i think the debate between professional power and indigo over the standard of you here at review here is is is less important when it involves a court not applying the law correctly because failure to apply the law correctly under the case law that we've read is an abuse of discretion itself anyway but but but what you said absolutely correct we are asking that the trial courts exclusion of this evidence did affect the outcome of the trial at least in two critical ways one because the trial court's ruling here is really it agreed with professional powers argument that there hadn't been a defect proven our office the proof would have provided very significant detail and a testimonial and documentary evidence that would have proven wrong legal standard in holding that in one color in detroit these were not party opponents in fact and that willing precluded indebt from offering party admissions that would have proven also proven that the generator sets work effectively design professional power in linde koehler to point these all tried this case together as a group they were going at the hip because they were asserting a common defense against an attack by index on their product index fumi indolence koehler's in detroit diesels liability was wholly derivative a professional powers liability to index their liability was one hundred percent a function of indic prevailing the trial record confirms that the lead of cross examining many of index witnesses and professional power itself admitted that it was in effect relying on them to defend its case against index cla be present at trial we would have called them as witnesses some of them would have been by governor bush and as well around or so he mentions testimony i'm sorry you've mentioned the word testimony correct was it under oath yes it was that was it was it was he the office implicated and expose those other parties a liability and professional power was relying on the evidence in that was presenting in its third and fourth party claims up the chain and so that while the evidence was being used against professional power professional power sold one big product the index which contains subcomponents manufactured by the other's professional power word said that the product that it received from the others and then sold endecott was free of defects the only evidence that we were the and then professional powers intact were the folks whose testimony and documents were trying to admitted evidence at trial but professional power in effect adopted their product they took it and warranted it as though it was their own and therefore we don't think that it matters that the evidence that the because of the absence of illinois case law really directly hitting this issue right on the head we cited some cases from out of state and we think one is specific question of whether a third party defendant was adverse to the plaintiff even if there were no claims between them directly and that's exactly the situation we have here in referring to an earlier arizona case the called minor roof in the court in the fulton homes case seven ninety five and i am going to quote a little portion of it here pioneer roofing addressed the question of adversity between the plaintiff and the third party defendant we held that adversity is not determined solely from the parties alignment in the pleadings but rather must be ascertained from the opposing positions or interests of the parties as we explained the third party defendants ultimate responsibility for the claims asserted against it rendered it adverse to the plaintiff the rule involving third party practice clearly recognizes that third party defendants are in adverse positions of the party asserting a claim for which they may be ultimately responsible in other words even though the plaintive did not assert a claim directly against the defendant the quote that's exactly the point that's exactly what we had here it's entirely consistent with the rationale of this area goes to case and we would urge the court to adopt that rationale in this case just frankly i think  precluding our ability to offer that testimony in the documents and evidence was frankly crippling i'm going back to trial it excluded missions that but for the trial court's ruling could have been admitted as hearsay sessions and without personal knowledge and regardless of whether they were in the form of enough and quote to run it even less than seventy five percent of their promise to pass or else they would quote come apart meaning they vibrate until they fail that's that that would have confirmed index case at trial as exactly what we sought to prove in the case product was defectively designed finally i'd like to briefly address the trial court's ruling with granted professional powers motion for judgment first as to count one the trial court ruled that make the claim was barred by court to sue a sponsor a find the existence of a defense that had never been played if deprives the other party of ever having been able to mount a defense against it or offer evidence against it and that's exactly what happened here and even if you accept the position that latches could apply the court ruled that indicated not timely revoke is to acceptance and we believe that that was also erroneous timeliness is measured by agreement the parties for reasonable this under the uniform commercial code but professional power can't claim that in fact belated giving it notice sites where the the generators were being leased so he didn't have firsthand real time knowledge scuse me of all the problems mr trent himself the president of professional power testified to his knowledge of vibration related problems during the second lease to a company called   but in february or march of two thousand and two in that got firsthand ten jubal information that you'd have a vibration problem that was causing these units to come apart it learned about broken parts of my site or on one unit failed completely shutting it down requiring indic to take it off the site supply to more units at no cost to the customer broken louvres which are these steel panels at the back of the unit again broken metal parts from vibration broken wires for the first time and it was seen these robust steel components shaken so much that they were breaking if you didn't have any prior notice or any indication that the vibration would reach that kind of half but nonetheless despite that experience if you were sugar in february march of two thousand and two in to continue to work for professional power based on assurances that efforts were being made to try to come to fixes for example professional power as the record indicates supplied what are called reinforced louvers they were intended to hold up to a greater level of vibration representative index mr norwood and a representative of illinois were present and both believe from their observations that the units continue to vibrate excessively and after some additional efforts to try to fix them ultimately infect came to the conclusion that a fix wasn't going to happen and in january of two thousand and three a professional power formal notice of revocation of acceptance but the time gap between the when index first learned of the damage being caused by the fiber ration february march of two thousand and two and the data provided a formal notice of revocation was at most ten to eleven months and during that ten to eleven months additional efforts trying to fix the problem were still being had the north american lighting case which the seven circuit case applying illinois law that we cite makes clear that when a party is sure is a party that it is fixing a problem the t invoke the revocation of acceptance remedy is essentially told they're the plaintiff in that case it waited over two years from when it knew it had grounds to revoke acceptance which the court found was still timely at most here in dec waited or eleven months and during that time again as i mentioned that efforts were being made to diagnose and fix the problem and finally regardless of all that profession power again never attempted to prove any prejudice from the un timeliness of notice i don't count one or count two so  in some we believe the trial court deprived adik of its constitutional right to a jury trial on count one made erroneous evidentiary rulings on critically relevant evidence that went to the heart of the case and then made legal and factual errors when it made its ultimate ruling the court granting professional powers motion for judgment and dismissing index complaint in whole edifice of course the main reason we are here today there's no question that the main basis for the court's ruling there was that index  did not provide reasonable or proper notice of its intention rescind the contract to the defendant professional power the evidence never got it is overwhelming and i won't go over all of it in brief endecott knew of the vibration levels which it claims was the only defect of it on these generator packages it knew of it prior to acceptance and you know that right after acceptance when it tested in its own facility it knew of it during the first place during black actively involved in testing them he's testing them themselves he's seeing them in the field they're complaining about certain problems that arose there's no question that in dec was aware of a defect the judge has reviewed the credibility of the its president never said a professional power there is a vibration defect here there's a problem with these machines we're not going to be able to release these out these are on fit for the purpose that you sold them for you need to fix the vibration you need to change the never a notification to professional power of this vibration so called purported defect now because we're also mentioned is that professional power never assured in dac that it would fix the vibration so called set out what the plaintiff in that case did was a withhold some of the paintings and beat the express written in verbal assurances from the defendant the seller that those problems that were evident upon the purchase would be they're going to make sure the vibration levels come back into agreed upon level that you're going to do something regarding the vibration levels you're riders that never happened those those products were sold and except of them they certified that they were ok and even in term nearly two years later was the best to change the vibration to do something about the vibration levels there was no assurances by professional power if you look at index proof your honour's there is some statements and consummated today that said these are vague statements that clearly do not come since we do not come anywhere near approaching the level needed to provide the requisite assurance to avoid to eliminate index need to notify professional power of a the essential requisite element for recision claim notice it needs to be read it needs to be proven and in fact if it did plead that claim they pled in their complaint that they provided proper notice to professional power he also mentioned as a secondary issue that the generator indicated that proved that the generator packages that it pushes were defective and he gave multiple reasons and that a fact and that is a good secondary reason those were the two things and they get to prove notice and substantial impairments injected that prove that there was a substantial impairment they did not prove that again vibration were the only defect in backbencher if they cannot prove that the vibration matters were substantial impairments that cause the generator packages to not be suitable for the purposes intended remember in that least these machines out twice indic made two and a half million dollars less than the one year period on these machines the first lease for six months with the pilots were there for six months they didn't stop in the middle like in the north american case it worked for six months and then they were brought back there was another lease for three months three month peddle thousands of hours put on these generator packages it only two pieces these machines were working fine your honor and they do it by subjectively as evidenced by the fact that they never made a complaint they never made  internal communications there's a problem with these machines they never talk to professional power you've got to fix the vibration many subjective at much suggestive evidence that in day to me they were the objective evidence is the same as evidence by the fact of a massive happened to him that before there was the objective evidence and the took tail of the ending with the fact that again and made billions of dollars on these leases shows that these generator packages were not substantially in here far from it and they provide proper or reasonable notice under the u c c section six or seven of the u c c no robberies and i just meant to mention that and again were the generator packed just essentially impaired again no it's the same evidence and it's the issue this was an equitable claim for recision it becomes more than obvious if you look at index complaint and look at what they were what they were asking for and thirty two and that brings an action in equity for a specific purpose for specific performance so even though the country it says seller must give the property to buyer and the celebration is that's not a rock claim it's equity claim one more example in the only course of talked about this testing method as a trial court said he doesn't need to look at federal cases he doesn't need to look at i state cases plenty of illinois state courts have ruled on this substantially similar issue this test is are we talking about the same product and it was present use under substantially similar conditions of use and in fact there was a case cited by defending connelly versus general motors where the court faced the same question the plaintiff in that case alleged to design defect that was a what the court talked that were these the same prior right or they were the same product if you look at the generator packages they were beset by professional power they were a huge semi tractor trailer truck the generator sets were standing alone the generator packages were placed in a coverings and elaine in any person looking at these two products would say these are completely different products and tickets and there's a reason they look so different because they were used under substantially different condition the reason that the generator patches had wheels because they were shipped all over the country they were driven to the black hills of south dakota back to illinois down to south florida and heats your altitude humidity the other generator satch used by that  s introduce those things were brought to one customer they were affixed into the ground and they were used by that customer as theirs mainly as their sole source of power the generator packages on the other hand were by necessity since they were least ou temporary sources of power backup if you will sources of power and they were they were there for a few months and they were brought back in the main sources of power by those customers were again the used by those customers so the trial records it doesn't matter press releases recall notices about a broad problem the court held no it unless the defendant knows about the specific problems with plaintiff's pride out there is not appropriate notice so therefore that there's no prejudice and in any event the trial court made the proper ruling its discretion and very close it was you or me two defendants one of them is going down being sued by the point it has something to show for liability here was a completely different the only one of the chopping block a trial with respect to him then as professional power professional power was going to go down it had no guarantees that it was going to get any liability from any third or fourth party that had a battle after that in fact the truck or talked about severing the trial at one point doing in depth against professional now and there's no legitimate reason for it to have admissions used against it by third or fourth parties at a trial including those parties and it simply tries to extend the analysis too much if you're going to allow the mission exceptional here's a ru nothing to do with notice but even more importantly is that intent could have called all these witnesses most of the witnesses that in that was talking about not only did they issue a group two or two thirty seven notice till they were sitting right in the court room while in that was presenting its case there was as index sat there was never there was never a notice there was sworn testimony at a minimum these could have been introduced this past recollection recorded exceptions to the hearsay rule there was a new prejudice to end that by denying by the with respect to notice this that kind of ticked off issues and everybody point quickly as i can while mr norway index generator technician may have seen some level of vibration during testing the same level of mr trent the professional powers they both were there neither saw the manifestations of that vibration at a site where parts began to break ever ever until two thousand and two that was the first time anybody saw that and so  in that knew that the vibration level was actually causing damage actually self destruct in the equipment it had nothing to put professional power on notice of and it would have been a thing to tell me wait because mr pratt was there he knew about just as much as mr did if not more frankly because as one of our offers of proof would have shown he knew about what happened with some of those other generator sets which was a fact you never share with index and if you accept professional power's argument that the solo of a product affectively spring a party along to say hey we're going to try to fix this we're going to we're going to make everything right and then when everything isn't made right the party sues and then you get a claim that well you should've given us so much time delayed and therefore you didn't give us adequate notice that would be contrary some length about how the generator packages work great and nobody had any problems with them but the reality is the record and i won't belabor it is replete with extensive evidence of problems of black hills that led uncontrover evidence that led black hills to cancel that contract at six months but it was an eighteen month lease causing index to lose twelve months of the lease and if they had worked so well and everything was ok then intact would have that every incentive to lease those units after experience and i have opportunities in two thousand and four and two thousand and five and that was opportunities were put into evidence and in debt we believe maybe the the appropriate corporate decision not to put these dangerous products back into the or actually didn't really all ned he said we basically just asked for interest if it was justified where it was from well the contest pacifically says return all amounts paid not just the purchase price but the interest used to finance the purchase that's where the interest comes under paragraph twenty three of the contract wouldn't possibly but never ever been able to see those in a purely affable setting it was clearly a legal setting and explain it wasn't title to a jury trial as to the other generator sets other generated stuff we're not somewhere i'll leave it at the fact that professional power itself told the bush and judge in its motion for summary judgment that they were quote identical identical he did say they were substantially similar and said they were identical and to come in now and suggest to this court that somehow they were so vastly different that because in a program you also mention the usage there's actually no evidence at trial that the movement on a trailer from one place to another had absolutely any impact at all on vibration