should reverse the addition of course finding regarding the duty of care by those because duties went beyond the contract will duties to deliver the refrigerator to hook up the water line which is evidenced by the which also transcend the contract council assuming there were to be consequential damages i'm troubled by the problem of competent evidence to support your claim what what specific admissible competent evidence is there in this record or your frames of the loss of use your honor yeah wow or any of the other claims that you're his statement worth but he's obviously very proper he well you know i'm here that doesn't mean i'm in a position to offer competent testimony telling me that he's there really doesn't tell me why it was i should the court should pay any attention to what he had to say on the subject but he does testify there would be a period of time during the repairs that there would be but that doesn't answer the question why the court should care what he says you tell me what he says what makes him competent to say that you've just told us he wasn't qualified as an expert so why does anybody pay attention to what he has to say well i think in this case the well is a reasonable force outcome of when you have damage to the property you're shifting to a different question we are trying to focus assuming for the moment that we agree with you that this loss of use climb was reasonably foreseeable i look at the record i don't see where it was proven up and so the question to you good scheduled it often gets scheduled when i'm not there and so i haven't heard any answer the question the tells me why the time for repair can't be taken care of when your clients are otherwise not going to be there and tell me is her primary didn't mean  person to be one hundred percent of the time and that's not the snow but it doesn't tell me why work that might need them to vacate the property for a fairly limited period can't be scheduled when they're not going to be there well they are not off island tell you i come into this client having seen it first really as a rental plan which gets knocked out because mali law doesn't permit rentals and so it seems like the theory is somehow shifted but the proof for the shifting theory released kind of tenuous and so in these these questions are sincere but i have trouble seeing how the claim even if legally viable has been proven but obviously this court gutted the ability for us to bring in evidence to prove the loss of use and so at that point in time so if we need to get to those witnesses maybe you'd better tell us why those witnesses provided testimony that should be admitted mr ferguson's testimony goes to  l value of the property as we went through in appraiser he is a real estate broker i think the answer to my question is not whether he's a real estate broker but is he a real estate appraiser no he doesn't hold th e license for appraisal but he has been you know on now for over to the side any particular examples of of homes that suffered this kind of damage and to provide the basis for some opinion there are proposals i guess that just record found out the loads for entitled to have the whole floor removed and replaced even though only a portion of it was damaged once it's repaired i don't understand why there would be any diminish until you for water  cases indicate that it has to be within the contemplation of the parties at the time the contract was entered into and i think that just your court was concerned that even though there might be some damage  with respect to installing a refrigerator it was skeptical that it was in the contemplation of the parties that the house would have to be shut down for a month and there would be cause for replacement housing for the district the district court held that the receipt was the contract and that's a good thirty two and the confines of the contract are based are based on that however with respect to whether it's foreseeable there to protest was for in the parties don't have to have every single measure of damage at the time of the contract the cases are clear that a defendant doesn't have to have a tacit agreement for to be foreseeable other breaking parties own education training and experience also factors into play forseeable in that respect the court also really hinged its head on this special circumstances exception which we've also noted in our briefing doesn't apply here because they the special circumstances they felt weren't the  refrigerator it's really unfair for that person to be placed on on the defendants to say hey by the way if you damage my property these damage are going to be foreseeable and that you're going to have to rip base of six they're expecting most to every man which is not a part of the contract was particularly instructive on this and it says in exhibit thirty three they have it and they put it to their own employees that every precaution must be taken to protect against customer's property special care must be taken all service all services and they must carry all their straight tools effectuate the delivery so they knew the risks own experience they knew these risks and so it wasn't a special circumstance i do fundamentally well plaintiffs urge the court to engage in an analysis of purely state law issues related to what why a lot requires as to the recovery of consequential damages and whether if a claim  which is ultimately based on expert testimony from a construction professional not doing that testimony was specifically excluded for the simple reason that the plaintiff chose not to disclose that testimony as they were required to  court in the primary not there now what is critically important at this point to that point is that the plaintiffs have not appealed that that ruling here so that really is not before the court so what happens here so the real issue here is whether or not that boom flooring expert and his testimony were properly excluded as expert testimony now the plaintiff has taken the position that while the perspex specific provisions of long what kind of construction would need to be done and which would then lead to the question of how long the last use would be you know i consider myself a relatively intelligent person but it is not in my common experience or the common experience of most people i know unless they actually work in the industry as to haul authorities to acclimate before it actually can be installed or how long construction has to go on in order to remove a wooden floor of this nature and what needs to be done in that assessment by the court striking the testimony is joshua white a piece of discretion standard and there was no piece of discretion here the second ruling which is critical to the entire case is the question of the fact that when the judge is acting as his own gatekeeper is the fact that in order to to actually perform that function he had to reshape the report he read the declaration and as part of that analysis looked at it and said this is simply not on nothing there is no evidence to support the claims for loss of use there is no evidence to support the claim for diminution in value which on its face i would i would also argue it is purely speculative eleven excerpts of records a bit of by the plaintiff one sixty seven paragraph so ultimately there really is no evidence no competent evidence upon which the plaintiff's damages claims can be proven did not have to be reached by this in the end it comes down to two key evidence your rulings which are subject to an abuse of discretion standard of all your case and if it's not by any stretch of the imagination shown that those i guess i have one question which is this you know why a law is tough with regard to the requirement to make disclosure and leaving aside for a moment the  quality of the evidence offered up by plaintiffs with regard to the reduction in markets the district court's order cited the failure of plaintiffs to have an intent to sell the property as a basis for precluding that  and i don't understand the logic behind that i mean i own a house here i don't have any intent to sell if something happens to it the fact that i don't have an intent to sell doesn't mean that the future market valu can you explain to me the basis for the district courts are willing to that effect to the extent that there is no proof as to when the property will be sold the motion that the there could be a ten percent diminution in value of the property putting aside that the methodology for arriving at that case i mean i can't get a loss of value if i don't intend to sell i mean suppose i have got i wish i had a great sports car and i get such a good somebody runs into it i don't want to sell it that would alone questionable the bottom line is in this case the evidence that was submitted which was a ten percent reduction and there was no other evidence of it on this issue as to what the loss of use the was that the judge in this case in deciding these issues these issues were raised first on a motion in limine and he decided at that point that he would give the players a chance to prove up their case by looking at the by presenting evidence that their expert was in fact qualified fact never heard any of this the judge in this case read the report the judge in this case got to read the declaration and after having done so decided that it in fact was not reliable that under all the or should be accorded great person isn't qualified whether it's a legal decision in terms of qualification as an expert or whether it's a determination is not very persuasive in the end result the same note he had he would have to hear the evidence and evidence now would be on the record that we did have loss of use and instead he focused in on the qualifications i know might my time is short your honor so i'd like to just point out that under the the under hawaii law of the special circumstances