let everyone just get settled just a second  damages question in the question of replacement cost if you'll indulge me in in some math metaphors i think math terminology is a useful way of understanding the doctor and in this case i'm three points starting with the mathematical equation which will concede is the before and after test second i'd like to talk about what the before variable in that test represents and then third and not to bury the lead talk about how replacement costs sho inform the value of that variable so to start at the top of the equation here is not something that is disputed at this point between the parties appellant is prepared to concede that the before and after test is the mathematical equation by which damned is should be measured why we can see that that is the rule in mississippi that is the rule under the restatement second of torques and section nine twenty eight that is the rule in the admiralty cases including kingfish that we cite in our brief there's no disagreement than about what the math is it's the value before hand minus the value afterwards there's also no dispute about what that second number is the after value is found by the jury was two point seven million dollars and that's not contested on appeal all that remains in dispute on this appeal and a trial below was the first value and in that regard this case in this appeal is much like the appeal this court heard in factory mutual insurance back in two thousand and thirteen and that cited in our twenty a j letter earlier this week in factory mutual as here there was no dispute what the mathematical equation was there was no dispute what the after so you was the only dispute between the parties was how to value the before value and i choose that case because ultimately this court sitting in diversity applying texas tort law applied what we say should have been applied below the replacement cost test so to turn to the second question what is the before variable it's a mathematical question i'll give you a lawyer really answer which is it depends but here it depends on a jury finding that they weren't allowed to make and that the answer is that if the jury was convinced that walk of leasing had a legitimate need for a ten seat cessna that was the plane that was custom made and destroyed chant as opposed to the usual eight as well as if that's exactly correct or on or ten as opposed to the usual eight then the before value must be sat before variable must be set at the value to walk up or some other business entity who likewise had a legitimate need for a ten seat cessna the reasons that walk of leasing you needed a ten seat cessna are laid out in the dark walk of declaration at eleven o five of the record in paragraph six and the reason that this is the test is it this is the test applied in mississippi and in the common law you go back to the mississippi supreme court case of nine hundred seventeen and involved a very nice dog that was run over by a train and the disc the trial court awarded the value nominal value of a dog but it was a blue blooded hunting dog and when the mississippi supreme court reversed it said you applied the wrong test the question is quote how much a man who wanted to buy a dog like this one would pay and that's the same question here how much somebody who would want a ten seated sesno would pay for it that rule is reflected in section nine eleven of the restatement second of torts which provides that actual value should apply in cases of items we act with unique attributes and section nine eleven of the restatement is what your honor applied in this court applied in kingfisher marine case the parties does talk a lot about in their briefs and argued below kingfisher marine is an animal to case but one that held that if there was a legitimate commercial need for a feature on the vessel that the vessel should be valued from the standpoint of someone who shared a legitimate need for that attribute and we know from the panel denial over hearing that section nine restatement is the test is the common law test that this court applied in kingfisher marine because it said so and that's at seven twenty nine at second three fifteen this court said it was applying the section nine eleven test of the restatement that's footnote one same test was applied to e i dupont and both of those cases rely on what this is court has called the seminal case which is that the president madison case out of the ninth circuit from  thirty seven which talked a great detail about this test and it said there that the value question is not quote whether the last vessel could have been used in other services right not whether there's a market for of course there is but the value question was quote whether the item could be purchased in the open market to replace the lost vessel in other words whether you could find a ten c cessna and how much of that would be valued to someone with a legitimate commercial need now will concede there are some limitations on this actual value standard there are three one is that it can't be speculative another is that it cannot be sentimental and the third coming from the kingfisher case is that there must be a legitimate commercial need one of the reason we know this is for the finder of fact is from the denial of or hearing of kingfisher where this court said that if the plaintiffs can convince the finder of fact that its value to him was real and not speculative or later derived he should recover it so that was a question that should have gone to the jury there was sufficient evidence in paris at summary judgment for that question to go to the jury so then the last question which gets us to replacement cost is how to calculate the before variable that's the question the jury should have been able to decide and the jury should have used the jury instruction in that walk of proffered which is the common law test the common law test for calculating value is follows if there is a market price for the item with its future than the market price governs if there is not a market price because there aren't pre owned ten seat cessna's on the market if there weren't then the jury should be able to consider replacement cost that's the rule in section nine eleven of the second restatement on towards it's also the rule that was aptly described by this court back in two thousand and thirteen in the factory mutual insurance case and i'll read from that case because in fact three mutual this court was in applying m l t law it was applying tort law it was a negligence case this court resitting in diversity applying texas state law which is far as i can tell is no different than mississippi state law and this court said the test was as follows if a market exists i think comparable sales are the usual measure if a market does not exist however then replacement cost is the appropriate measure that is what the mississippi model jury instruction on page forty two of our brief says as well that there's a market value the jury can award the market value if there is no market for the the aircraft with the particulars seating configuration and there wasn't then the jury considered can consider replacement costs this common law rule is reflected in the mississippi cases that are cited throughout the briefs and stewart and dell in austin and there are a couple other mississippi cases that that lead guidance here to the same result of using replacement cost there was a mississippi case from one thousand nine hundred five the sears roebuck case which specifically reserves replacement cost as quote something that may be used in appropriate case as an aid in computing value which is what we're asking for here and reflected and the mississippi model jury instruction as well there is a case called thomas vs global boat builders cited in the twenty eight which is the restatements before and after tense and if the law quotes and says these are the rules in mississippi and that blockquote includes the term value which under section nine twenty eight of the second restatement is defined by section nine eleven and that value definition would allow a fact finder to look to replacement cost terrific illustrations of how this applies are the it was fair is it was rationed with watercraft we're talking about an aircraft a unique sesno with a ten seat configuration there aren't a lot of cases we can see about aircraft in this context but there are a lot in admiralty and as we know from the kingfisher case they are not to test is no different than the common law test applied in the state courts the sawyer brothers case was the case of our twenty eight j letter earlier this week it's useful because in that case a nine hundred eighty seven ma truck with a special configuration was lost overboard that's why it's an admiralty case it's a first circuit case and it was replaced with a two thousand and fourteen truck a much better much newer truck with the same configuration the court affirmed the award of replacement cost so they went from a nine hundred eighty seven model to a two thousand and fourteen model that's much further than the two thousand and seven cessna our client lost to the two thousand court same with the president madison case i cited out of the ninth circuit which is really the seminal case and that case there was a boat that was specifically designed to sail i believe it was made in the columbia river but a river in the pacific northwest it had a particular depth that was of particular use and value to the owner and when that was lost the court said replacement cost was the appropriate award another case i don't believe we cited but which is useful is the in the margate shipping case it was the government the united states of america that asked the court to use replacement cost to value the lost the last item at it in all of these cases the fact hammered  almost exactly the same as the fact pattern here in the following way in the case is the fact pattern is an allegation that a particular piece of property had unique attributes that ha legitimate commercial value to its owner that that was destroyed or lost and that the owner then went on to the marketplace to see if he could find here she or it could find something of equivalent value and could those are it wasn't a stipulation that the removing this question from the jury of violated walkups rights and the objection was preserved to start with it wasn't a stipulation stipulation is where one side of the v asserts a fact and the other side agree agrees with it right that's a stipulation this was a joint defense contention they contended that millionaire had twenty percent liability and that the united states had eighty percent my client disagreed that it usually resolved through a trial or differences that make to it that the imposition of interest well it's the fundamental reason and i'm sorry on it that the fact that the government is not required to pay interest is that what bothers you about the eighty twenty that's one of the problems but it's more fundamental than that your honor the the interest here is a fundamental interest in going to court when a civil litigants brings a lawsuit their goal against each defendant is to get a judgment a money judgment with the highest number on it possible we were deprived of that opportunity with millionaire instead of having that full damages or mount or is nearest to it on a money judgment against millionaire our client had it reduced to merely twenty percent of the judgment that is that is the core of civil litigation there are also real life prejudicial effects which is collecting that some versus the united states is going to be a different and much harder endeavor then against a private entity we can send a sheriff out to collect against the united states there needs to be a congressional appropriations for the united states to pay us there's also no close judgment interest against the united states of america where there would be against against another that again and this violated the jury rights as briefed in the papers under the seventh amendment we brought up the seventh amendment right before trial at page two zero two zero four nine of the record on the before before trial with the other unless the plaintiff articulated some prejudice that's not the way it works and a pretrial order there's a section of stipulations that the jury gets to hear about what the parties agree and then there are sections about contentions and the plate of never has to agree to those contentions that's their right not to agree to it to get a trial on that secondly even if you were to accept the government of the defendant's argument that there they had to articulate prejudice we did at the right time the very first time that the defendants asked for separate judgments not a joint judgment but separate judgments that we had to collect against separately was after trial and a motion to amend the  which is filed in the record the plaintiff wrote over and over again it's objection to these contentions so in in that in plaintiff's contentions we took the opposite position i like asian as you would expect from the since the main issue there is regard to the jury trial and there's no jury trial against the united states however should the court have any questions for me on that issue i'm happy to answer them in regard to the the measure of damages in mississippi the district court got it right the motion for partial summary judgment solely related to the plane the claim for full replacement cost in the complaint and that was what was being addressed by the court the issue seems to be ready for a nd by walk up on appeal as far as evidence that should have been considered by the jury or that it is an element of damages that could be considered in the jury instruction however in the complaint in the motion for summary judgment and the issue before the district court was whether plaintiff or whether walker could recover full replacement value as it claimed in its complaint and that's what the court was addressing in the motion for partial summary judgment and mississippi law which is a pluggable here not admiralty law or something else has been very clear for a very long that where you have property that has a fair market value the measure of damages  and after all and there's there's no dispute about that mr feldman contends that there was no market for this so you can't really determine that that's interesting and that's new many many months before the filing of the motion for partial summary judgment disclosed an expert in aircraft appraisal he performed a market approach appraisal where he looked at the market for system citations offerings he didn't add any value or take off any value to the aircraft based on the number of seats he came up with a fair market value of eight point five million dollars he that's in the united states free for we take some citations from that expert mr du four from his report in fact had a business need for this type of the aircraft it didn't establish and there was no evidence that others would not also use the aircraft in such a manner and have ten seats in the aircraft to the contrary again the expert on  as we've discussed in the brief here that the eight million dollar question walkable would be placed in a position of eight million dollars greater by an award of full replacement cost in this  the most recent submissive the supreme court to tell a court case to talk about the policies behind that is the ballard case i'll just point out that again the mississippi supreme court says that the before and after rules a proper measure of damages where property has a fair market value this aircraft had a fair market value there is an exception to the rule it is for household goods and personal effects state stove the opinion from the mississippi supreme court from  sixty six discusses that exception and it is sort of outlined in the in the jury instruction number eleven thirty two which was discussed earlier as well the title of that jury instruction however is property having no market value and then it goes into the factors that would be considered by a jury in placing a value upon property that has no market value and you going back to the case of the blue blooded hunting dog courts long ago were faced with  dilemma when someone had property that didn't have a market value and yet the court realized this party is entitled to some compensation for for its loss and that's where the exception came from for the household goods and personal effects these are items such as a painting the famous you know family painting grandmothers diaries the artificial sample from the restatement that's simply not what is before the court in this case or what was before the district court we have a commercial aircraft that was appraised at eight point five million dollars using a market value approach there's no evidence that there was no market for this  and again that's the policy issue in the admiralty cases where the deviation from the general rule of market value the courts say that's appropriate where they're just simply isn't a market to value a good the unique has or the barge that's been modified to carry a certain amount of cargo and that may not be worth a dime on the market but it's worth a lot to its owner in the courts came up with ways of valuing it it's generally the value to the pla depreciation walk and never ask for that below they merely asked for full replacement cost with no offset and and the district court properly denied that claim in the motion for partial summary judgment court should not extend mississippi law beyond its present boundaries and so the united states asked that the court uphold the district court's order granting partial summary judgment and again as to that the second issue and the stipulation and the appropriateness don't see how the public can argued to you in good faith that they replace a two thousand and seven aircraft with roughly fourteen hundred hours on it with a brand new two thousand and suggestion that it was after truck after truck yes it was a one to one issue was raised and i submit to the court and we did in our brace it that's not the proper  avenue to raise it nor they had it the time to raise it and that's what i'm pointing to the time to raise it was january the sixth two thousand and seventeen and that's when we filed our motion to pre preclude the pre judgment interest i think it was ruled on a couple weeks after that that was a time that walketh in their power should have at that time submitted to the court and and every issue every defense they had as to or even argu and that there should be a stipulation or there should be a trial as to the liability question that when the time it didn't happen then and it didn't happen to add to the truck so we've said in our breeze and over and over more than once that in essence they waive that so they can't come to this court now in argue those issues that one before the district is there need to be an act of congress or whatever mr feldman said before you pay th judgment when your program and i'm sorry to something happen not after not have to happen legislatively with then the government before you actually pay your part of the judgment  and i can address other cases all these cases basically a nutshell say that this issue these issues at the organ now were not before the court at the proper time and one before the judge so i basically coming back up and it's about the payment mr from ins contended that you need some sort of legislation or something before you actually on of the judge or i'm not familiar with the ins and outs of all those details you're on about whether they're collecting one dollar or ten million dollars against the united states they have sued the united states and they will have to be paid by the united states through the judgment fund i have personally been working at the department of justice for almost fifteen years i've never come across a case where someone was not paid because of a misappropriation any problem like that we submit our payments to the treasury and the treasury makes the payments and mike when you heard their leadership were you ok mr feldman you save time for about three points quickly i'm damages first in talking about the existence of a market that the error that the government's making is conflating a market for a cessna six eighty only the form that there was a fair market value for a cessna six eighty second asian sovereign not that any market existed for those who are looking for ten seats because no market does exist paragraph seven of the walk of declaration defined in section nine eleven of the restatement exchange value what the government in our experts role talking about the open market value and actual value and what this court held in kingfisher marine was that actual value the higher number not the number the experts opine on as to fair market but the higher number because there is no market for that unique feature on the barge or the ten seater cessna that's what you get as replacement cost the second the claim here that there's no evidence that there was no market is wrong the evidence in this case is exactly like the evidence in all the cases we cite where replacement cost were awarded as in dupont as in kingfisher as in sawyer the fact pattern is almost identical item has a unique is one seat it's one or two seats your honor which i understand means rebalancing of the plane it's not as simple as an after manufacturer modification and ultimately we're not asking this court to agree with our position that it's a legitimate commercial use but to send that question to the finder of fact below and the finder of fact didn't find the man summary judgment the finding wasn't that we provided insufficient evidence of that position it was simply taken away from the jury as s aware of this is a it and he referred to the motion for summary judgment on prejudgment interest when the government defendants move for partial summary judgment of pre judgement as they did not ask for an allocation in fact if you look at the district court's opinion one of the reasons they won that motion was the district court recognized that our location remained hotly contested that's in the district court's opinion on the partial summary judgment motion or like recess before hearing the final two cases