when fair contends that the trial court abused its discretion in excluding the expert testimony in this case and on that basis granting summary judgment which end of the case we have pointed out multiple industries of this  i think they could be summarized by saying that under the facts of this case the court found itself taking on the role of expert i say this because the central issue in this case regarding expert testimony was the relevance or the fit of the sort of a question in other words whether it's finally asked the right question oddly that matter i inextricably intertwined with reliability in other words the central issue here of relevance was the reliability of the scientific reliability of the survey in question and here is where the court found itself having to act as an expert and not in fact conflicting testimony of experts let me give the first example over three experts testimony about the central issue in this case namely the flow of the questions and therefore what the last and most important question jay lab meant the court found itself having to act as an expert when it consider what did the question would you take your car to mean and you'll see it was not a question that was not the jackpot question your honor the no the jackpot question know i don't understand i thought you were giving me the survey question i guess maybe you give me the big picture question no i don't i'm sorry i am giving you the survey question and what was the survey question i think you're jumping ahead to the to the ultimate question which is known as jail at eight and yes you're absolutely right in the survey it said would you take your car to the dealer or did the statements cause you to go to jiffy lube instead of the dealer in the september survey statements were would you take did the statements cause you to take your vehicle to jiffy lube instead of a car dealership strong tracking with you absolutely there and i didn't mean to get now trying to lead me there was no not at all reform what the broad legal question or of the evidence you're in question would have to be in terms of the connection with a particular view to yes your honor and i'm afraid i have skipped a step for you that that i haven't made clear i suppose the testimony of the three experts about what those last two questions mean stems from their scientific their technical their expertise on the role of the survey in other words as you see in their three declarations that they are talking about this the jackpot question in fact does ask the relevant question because as explain toaster they say toast and that's because of the the flow of what's happened there are in fact it's shocking to me there are tones and tomes about the flow of survey and that was the expert testimony here about why in the flow the question that was asked the had the dealer or had a car dealership met lanphier what i was trying to get to i looking at that flow that was the scientific question here in looking at that flow the court clearly got matters wrong or took between trying to become an expert itself let me give you the first example which is that the expert testimony is that the question that led to the second survey was would you take your car to referred to we interfere in looking at that the court said well in the flow of the survey the first question as people were introduced to consumers were introduced to the survey was i'm going to talk to you about places you would consider taking your car and it was on that basis that the court said we want you to take your car to play in fear was after the introductory statement would you take your car to would you take your car if i were trying to determine whether or not you would take your car to a lancer dealer shall i answer yes to that question yes that's the next question pertinent to this concern that i would guess it depends on how much detail you want to get into but the next question that is pertinent all is how far away are you in other words what actually raises a concern the concern is one of the things cited by the district work was geography and my wife for a long time drove a car which for reasons i don't remember she wanted a dealership pretty far from where we live and so the part of going back to the dealership for an oil change is kind of beyond the pale that's you asked the question would you consider going to whomever sells that kind of car near by she could answer yes i don't know how she answered so that's i take it that's what the district court had in mind in trying to figure out how did how did this question or whether this  be taking it to the land fair deal that's what we wanted to know and they may add though with regard to geography the court did get hung up on the three call rob awaiting reasons that the experts talked about and geography was one of them this was not in fact the basis for their statement that this was in fact a relevant question but they said it's relevant because it's the flow which we consciously purposely the design and it's beyond question agree that the purpose of the survey was accurately stated by the two people who designed it they know which they got that the purpose right that we're trying to determine if you went to bed at a we answer dealership but these people who testified that we did ask the right question merely said that it's cooperation here's geography here is distance here is the other three factors that they talked about that the court never got to the factor of flow except to get it won for example the court said that the question would you take your car to a lancer dealership was ambiguous because of this question which had preceded it which is i'm going to talk to you about places you would consider your car the court consider taking your car the court acted as an expert all for the controver testimony of the three experts that that question about i'm going to talk to you about places you would consider taking your car does not make the question would you take your car to go into your ambiguous to court where he announced about it seems to me that the expert whose background is in designing surveys certainly you know surveys better than anybody else trying to figure out is is the respondent mind i'm not sure the district judge is a bad candidate to decide with how the respondent would hear that and respond to it in the experts have reasons for want to say what we do is the right thing to do and presumably they have reasons for saying that but the question i asked myself as i went through here well you know would this have gotten off track and i was trying to answer these questions well and i think that the problem is that what you would do i believe is you'd probably call the expert in and you would try to understand the survey in the flow issue which the three experts are testifying you'd probably have a proceeding to do that and what you'd find then is you wouldn't make the other kinds of mistakes to want to mistakes that the court made let me give you the lou which is that the court trying to understand the flow of this just as you're doing in imagining what it would be like the court completely misunderstood the see that in fact is central to the court's opinion the court did not understand the role of the survey completely misunderstood and did not understand that there could not be any answer to that  would provide any answer of we in fear so the court truly did not understand the floor this i understand what you were saying about what it would be like for the consumer but that's where you have to bring in experts and as it is and understand and not having this think about the flow completely flat out mistakes about the flow of this matter remember again that there was we asked for oral argument  misunderstood the questions in deposition if you will kindly take a look at his declaration you'll see that that is not the case at all he did not misunderstand the question he is a gentleman who has a pocket protector at all times he is very serious about his science and he answered the questions precisely as it's explained here to the court moved to things like geography which you can by the way it mishandled each of or anything would have shown that that is that is a complete misunderstanding because the question was instead of a car dealership or instead of the dealer so the corpse misunderstanding about where you didn't you didn't prove the go for example the court decided to respond thirty one did not recall hearing of any of the allegedly false statements and that's actually won exactly our seventy eight responded thirty one did state that he heard two of the state s in question so there just are a plethora of of actual mistakes here that it is our contention amount to an unfortunate example where the court without the benefit of anything else found itself i need to know if you would like to talk about the attorney of the issues also i'm assuming we i think it's the first the cross appeal issue presents quite an interesting  it is the only diversity in which there is a declaration that there's no subject matter jurisdiction and yet one can go on to address attorneys fees there are lots of other cases that make analogies there's the steel case that's been this gus that's a federal question case we get mixed up about other specific congressional grants of jurisdiction like costs under twenty eight nine hundred nineteen and like removal forty four fourteen forty seven there are other specific congressional grants of jurisdiction that allow the consideration of cost or attorney's fees but there is no there is no such independent grant here and so the question before this court is its contents with regard to the unique position of having said there is no subject matter jurisdiction which is the case here and yet we're going to go on fees so that is the nature of our of our cross appeal and i understood that you will make your comments on that and then if we can we can move on to we can ask perhaps for an in court failed to consider these sixteen factors that are still set out under oregon law and i think you'll see in the opinion that that's absolutely not true the court laid out each of the sixteen factors the court specifically stated that it must consider each of the factors the court specifically stated the oregon law that it need not write about or fully address all of the factors that it needs to address those which it deems relevant to the decision so there is no issue with regard to whether the court relates to and allows the court to be guided by what was necessary to achieve the result that was achieved i think that provides a broad overview i would reserve my last two minutes if i might you may thank you on two elements causation and damages we point out in our briefs that the other elements are there as well and the judgment can be affirmed on those alternate grounds i hope the court doesn't reach those alternate routes and i don't think it needs to there and then one of the questions in a case was expert witness where there are expert was testifying about the standard practices in the insurance industry plaintiff in that case it got in a seven million dollars judgment against her insurance whether an expert's testimony is reliable but also in deciding how to determine the testimony reliability so broad discretion broad latitude in come old tired the u s supreme court used the phrase is not my own it makes no difference at all your honor with respect to the gate keeping function i believe was a summary judgment case there have been a number of summary judgment cases in which the question of the district judges gatekeeping function the joiner and income all tire is important is what it said it is what he did in those cases because in both of those cases the district court had excluded expert testimony both gone up to the court of appeals in both cases it as it happens it was the eleventh circuit the eleventh circuit had reversed in both cases saying to the district judge you should have excluded that and in both cases the supreme court reversed the eleventh circuit saying you did not give sufficient  that trial judge it's the trial judge who has that gate gate keeping function so i think it's important to remember that standard overview here your honor and not just to the merits of what the trial judge did the second point i'd like to make is that there is no magic about being a serving surveys are subject to the same our criteria in evaluating their reliability and their relevance as any other kind of expert testimony and that brings me third point what did this trial judge do judge brown didn't issue a two page cursory opinion saying it looks like junk science to me i'm not going to consider it she issued something a fifty five almost sixty page opinion analyzing this in great detail and what mister abbas worst describe this morning accurately i guess is as the jackpot question is the key part of judge brown definitively landes fear overall an alternative dealership if you looked lawyer i think somewhat incredulous that president had made that admission said you're really saying that you were unable to conclude describing actually he knew because the questions as i understand them are being put to the survey respondents and in more hypothetical present tense form yes so he may be saying i'll go back and take a look at that it seems he might be saying look i'm not saying that remember number thirty four was his behavior was actually changed in the past because i don't think the survey could give him that information are you confident that he's actually responding to that question more broadly than than well i'm sure your honor you but she said the survey questions posed to the customers did not track that logic and that we think is an accurate conclusion in fact the jackpot question in the september survey didn't say would you have gone to the dealership would you go into a dealership it didn't even you know refer back to the specific length of your dealerships that have been questioned earlier that have been specifically that there is no evidence of causation and damages they come in with their only evidence of causation and damages being this survey and that jackpot question doesn't show causation or damages with respect to lance or it may have leave the opening questions about my own fear would you take your car would you consider this is the open question would you consider taking your car to llanfair for service well most anybody would say yes live i would consider going back to the dealership for might just a thousand mile checkup or whatever but not for a routine every other month oil change i'm not going to drive an hour with thirty minutes and leave the car to dealership when i not narrow certainly and i ask myself as i do these things ok what i have done at the time i was i was near position not all that long ago what would i have done trying to prove up this if i had a claim like  you're not going to be able to recreate the world how people actually would have behaved if they hadn't heard these ads and so you improvised why isn't this a fair improvisation to try to approximate the illustrate what fairly could expect to do happened better soft it was some other you know you buy something else could your confusion start your buy coke and actually you're buying fancy there are lots of cases like that there aren't many i couldn't find a case right on point with respect to the use of a survey to prove damages i think that in the proper case the survey could be used to prove damages i'm not i'm not here arguing this morning that lengthier should have prayed at the end every one of those thirty four customers and said yes i went to of to lanphier although it does raise the question if there were three for them and they knew where they were why didn't think it the affidavits and say yes i i did i was influenced but let's you know in the abstract i would certainly agree that a survey might be admissible not you know what the end of what they said was did any of these things and that's the wrong way of saying it because these things included may have included background noise all the other weeks and that i'm that i had independently of these it's why i would never go back to geography distance whatever but anyway the jackpot question did any of these things cause you to go to jiffy lube instead of to lend or why didn't they ask that that would have made th wait a minute you've got to give more deference to the trial judge he or she is the gatekeeper what is the point of all that if if we're going to yes the courts of appeal to analyze these things you know i have been focusing on that jackpot question our brief shows that and the list categorically catalogs the various other errors that judge brown found there were alternate grounds even for excluding the survey that she did not the dealership is only open when i'm working you know sort of fluffy rhetorical hyperbole well in line spears transformation of that says the question in the survey was have you heard  to go through that evidence we have it in our briefing room so whatever purpose were to advertise or try to get customers there wasn't anything nefarious going on here so i think there that fundamental ground of that of the exclusion of the evidence finally just let me say a word about the attorney for peel i think fanfares problem there is that it has confused article three jurisdiction with the ability to state a cause a back sion under a statute federal courts do not use lose their article three subject matter jurisdiction just because a plain of doesn't have standing under a statu submitted to twenty eight j letter last week pointing out that in the n t trust case context that's certainly true you know a plaintiff may lack any trust standing because he or she is not within the scope of the sherman act clayton act or affirm the trial court judgment with respect to the merits of the case but to reverse on the attorney issue because we think that the court did have jurisdiction to graft the attorneys fees as judge brown said but that she abused her discretion when she did not award for the full amount of the time that we necessarily incurred in responding to both of land for years claims just one word on that it was a landseer who processed statutory claims it was a lanphier who insisted from first to last that the letter that they had standing to bring that claim and now they're faulting us for having defended against that claim and for incurring your feet attorney's fees to defend well they shouldn't get away with that they they're the ones who are responsible for having drugs they find they lost they should be responsible for our families thank you ask the right question he explains that in substantial detail mr hinkle wants to talk about the fifty nine pages of the opinions there the paint the pages in question here of pages twenty nine to forty two thirteen pages and without going too far on only my bike to say that i believe that each page has a substantial period in which the court is flat out getting the facts of the survey and the results of the survey wrong it's for that reason that i recognize that i'm here under an abus discretion but because each of those pages has the facts wrong it is our contention that in fact it is an abuse of discretion finally i think mr speculation about you know how this could have been done better is in fact the sort of very simple explanation the surveyor likely does not know which in fact dealer that your customer went to so there's a very simple practical answer as we speculate that this could have been done better so we there's a very simple answer with regard to the car dealership use the word car dealership in the second survey also and these things are easily easily determinable and in fact  this case is unlike every other exclusion of evidence which is in this circuit or any other circuit thank you thank you thank them for their arguments