she's on appeal i'll try to deal with each of them in about five minutes and say five minutes for a bottle if that works out which it might not the first question i want to talk about today is whether there was sufficient evidence of bad faith in th well doesn't that reflect on whether there was bad faith your own client was confused about where this came from and make is claiming that it comes from someplace that ultimately didn't come from and there was a lot that was a serious confusion as to what caused this problem inspector and then and then they finally hired them and some completely independent none of whom came up with an answer that indicated that  cost was covered last well your honor certainly by the time the report from mr leary came in indicating that the leakage was from the manhole and that was leakage that certainly triggered the definition of water damage under the policy so even if there was initially confusion at that point in time the insurance company should have paid the client lee started right off by giving him five thousand dollars just pending investigation i mean that's not exactly showing a bad faith either is not a very high hurdle to cross here because we've got a trial judge who understood this case saying if an insured an ice coverage because of a genuine dispute over coverage the insurer does not act in bad faith and then we're told below a factual in this instance a factual dispute over the cause of the contamination was an integral part of a legal dispute between the parties over the scope of the pollution exclusion from coverage in the water damage exception to that exclusion both disputes were genuine what problem with that certainly at the level of at the at the point of the every right but the court who took a look at this said this was a genuine dispute they had a position it may not have been the winning position but it wasn't a bad faith position well this is a question of reasonableness it's a question of law i believe this court and redo everything that's done below and even in cases where we review things going over those mean we ignore a trial judge who spend a lot of time on a case i understand that the facts of this case are complicated the policy is involved there's a lot of report these calculations based on my checks and my bank balance here they are if you want to look at them there are one ninety eight to two or three there in the record all he did was calculate what is sales were and what the cost of goods sold were which is something larger figure for his growth of sales than the one that mr johnson was going to testify to so if there was any refinement the benefit of that would have been lost to mr cooper had mr johnson got a lot  testify and again the later version really does understand the practical effect of this is that the expert doesn't get to testify and they say well you can either beef up your expert or you can test now and they did well no that's not what the judge appealing that decision as opposed to the failure to permit him to testify we've killed the failure to permit them to test to see that seems to me that would be a different thing in other ways if there's evidence in the record from which one you can discount his testimony or discounted but i think awards zero prospects in the case of some evidence in the record then that would be a different point of appeal but that's not in front of us correct troublesome on the other hand and that he entered was the row profits but that's not the issue of course that's appealed and then in reading the judge's order judge is really pretty you know clear about how this all proceeded so i'm having some other i don't i don't like the result i'll tell you that i think that this is you know i don't think it's necessarily fair but the question is is it an abuse of discretion and i think testify in the manner in which you described i know that the alley wants the court to think that that that that was a motivating factor in the judge's ruling i'm looking at in response and clarifying  not at the trial and i don't recall the details and testimony was submitted in narrative form and he didn't include anything in it about lost profits thirty that's because they were expecting johnson to cover that so then he comes in later on at the end of the trial when johnson crashed out and said now can i have a chance in the job of said middle of the trial your honor guard and the judge exercised his discretion and said no that's a problem you had your opportunity and the other side will have to come in and yeah i mean this is the policy th it why this happened i have defended mr johnson maybe he looked at the records and said i'm out of here i mean we don't know i'm not on the stand with them we don't know that either one way or another i mean there's a lot of possibilities the guy got drunk allowed to testify to lost profits like any other business owner in this scenario this is the court certainly had the discretion to permit that the question is was it an abuse that discretion to deny it under the circumstances exactly right and that's what that's what we're the court my name is sam ruby i'm representing travelers i tried this case i can answer your questions about what happened i've marked up the extra records hopefully i can find things and i want to answer some of the allegations that have been made here exactly the problem we had in this case mr johnson entrusted mr cooper's information but he did not verify it it's been suggested here today that the information upon which mr johnson relied in evidence that he's not sure who there was some information presented by mr cooper as part of his direct testimony that did play a part in which to your johnson's conclusions but there was an entirely different set of spreadsheets basically monthly calculations of expenses categorized in certain fashions monthly calculations or revenue that were the foundation for mr johnson's opinion and there are some spread sheets that follow if you will look at those though you will see there are some spreadsheets from historical performance of the tavern under a prior owner there's a comparison of some revenue on certain days and that's it everything else that i question mr johnson about in my void year was not a part of this exhibit now we don't know for sure why mr cooper did not offer that evidence as part of his testimony he was given carte blanche by the court to say whatever he wanted to say in his direct testimony and as the principal witness you had a lot of time to think about what he was going to do in this case for some reason i tac decision was made to allocate the proof between mr hooper and mr johnson that decision turned out to be a poor one but that fact alone does not warrant reversing the trial court's decision the comment that you know this all just went to the weight of the haven't seen the judge should have let me and well of course the court has a gatekeeping function under will seven o two and rule seven zero three there has to be a reliable foundation for in addition to rule in properly on tuesday on wednesday plaintiff comes back and says your honor we've had this setback we've thought about it what we'd like to do is have another chance we'd like to have mr johnson afforded some time to do the verification that he should have done that was in in mission counsel and much to my consternation here on wednesday have way through the trial the judge grants that relief and now i'm looking at having to read oppose mr johnson in the middle of the trial after he does a new work i've got an expert who is already prepared just as all the other witnesses did a written statement of what her financial analysis was going to be that is now potentially out the window based on what johnson is going to come up with in the next couple of days i'm going to read it to the right now from your ten it seems to me we are left with two alternatives both of which i tried to explore one is to have mr johnson go and do the work that he should have done before he tried to testify yesterday and he says he will be able to do that tomorrow the second thing that we did was we had mr cooper sit down yesterday afternoon and work through the night putting together his damages that he is the owner of the business can testify to he's done that he's prepared to testify to that but i think counsel said this two problems with that exist one is we have not presented this testimony to the defense before we have not submitted it as part of the presuppositions and the second factor is that he really hasn't had a chance to check or test it and i'm there i tell the judge there's no question about what happened and then a very interesting thing happened instead of asking for more to time because mr johnson said or he just didn't get through or something they say we think it would be best for us not supersede with mr johnson and they asked now to bifurcate the trial and have leave to call retain a new expert so they have been to mr johnson at this point clearly unimpressed with whatever he was going to be able to quit the gather and at the end of all of this that was the night that was denied and i if anything really i think could have been a proper issue for appeal here that should be yeah i mean once you abandon your expert you don't ask for more time i don't know how you come back and say well you know but he should have been excluded in the first place especially when you admitted in between that he wasn't prepared this allows me to segue into the question of mr cooper taking the stand there's some lack of clarity here as to what he was trying to do at the end of the case was he trying to reopen his case was he simply trying to recall himself to the stand either way it doesn't matter under rule six eleven the judge has discretion to control the order in the mode prove whether you're reopening your case or simply asking to recall a witness because your case is technically still open the judge has discretion whether or not to allow that and mr cooper again had free reign when he took the stand at the very beginning of the trial to say anything you want to say about his damages he commented on some things he chose not to comment on other things and there was no abuse of discretion in the trial court saying at the end of this trial now that that decision didn't work out for you i'm going to give you know the chance to start over let's just we just had a mock trial you had a false start let's let's start the trial in earnest again today friday afternoon that's not an abuse of discretion furthermore a rule for a three plant doesn't get it they harp on the fact that there are cases in which business owners are allowed to testify to lost profits those cases are will seven to one cases where the question is is this lady witness testimony or not is admissible when cooper was denied them the opportunity to take the stand present more testimony was there an offer of proof made as to what he would have testified to had he been allowed to do this nothing i would consider an offer proof you are all well nothing you would consider for proof well i'd just be shocked if you would say yeah i agree but what misapprehension no the the reason is this under will for zero three evidence that is otherwise admissible may yet be excluded if it's probative value is substantially outweighed by one of the he agreed with the arguments that we presented through him that mr cooper was not going to be able to give very reliable information about profits we conceded he could take the stand and this was my revenue these were my expenses but that's just the data then an accountant takes and applying the formula provided in the policy comes up with what is called the loss of business income you need to be an accountant to the court found is here's travelers we've got an expert with a written report who's just going to take the stand and offer it we've been through this case for a long time now based on the evidence was presented and now mr cooper is reported to take the stand at the end or say things we've never heard and on the spot we're supposed to be able to effectively cross examine him go out in the hall talk to our expert witnesses waiting to testify say here's what cooper said can you do your calculations and or all of this is in the shadow of what counsel previous said about the value of cooper's testimony when he made the choice to go after johnson the second time around yes absolutely i think that the trial court's decision not to allow mr cooper to retake the stand could be sustained independently as a six eleven determination of controlling the order and mode of proof or could be sustained independently as a form rule for a three determination that the prejudice outweighed the minimal probative value that cooper was going to be able to offer  legal both legal and factual issues in this case and as the quarters observed the trial court found us both to be reasonable so even if you only agree with one of those all it takes is one reasonable basis to defeat a the comments that were made about travelers experts travelers did have an expert his name was michael blank koski he did offer some testimony on these questions about whether the manhole was cracked how it got cracked you'll find that in the records starting at six o nine obviously they disagreed and frankly the judge sided with them at the end of the day but that doesn't mean it was a position and with respect to the stipulation that we entered into of course this was after cooper tried his case against the p d to a certain conclusion and as a gesture of good faith instead of contesting the determination was made in that case as we might have done because we were not collaterally stop we said to the cooper all right you prove your point we'll accept that is the fact from here on out but we still have some coverage issues so even after the stipulation was reached there were still issues in play and those are the issues that the court found to be genuinely dispute it thank you  point if johnson had done his job perhaps this would have been an issue but certainly the plaintiff in light of the exclusion of his expert on the second day of trial it's not unreasonable for him to come in and say well not ok i have the spreadsheets already in evidence i'm going to now testify to their implications for damages which i wasn't planning on doing previously were the prejudiced and that's the prejudice is to mr cooper this is a case about business interruption insurance this is what the case was about what was his losses during the many months his business was closed because of the expressed fied loss under the policy he's completely prevented from presenting that realistically there aren't other witnesses out there who can testify about this lay not been specifically deposed on the issue of lost profits now so all of a sudden he pops up with a whole new bunch of information no it's not new information he was deposed i think all you stayed up all night prepared all this material calculations your hon