raising a question of law once it was without against us we could have made that objection but it didn't seem necessary if it's if it's a question of law then help me understand why in your briefing you repeatedly referred to the state of the evidence and we could go through him and look at several pages in the blue brief with the  us all just point out two or three of them i'm involved and go ahead page nine of the blue brief says most of the testimony concerned telecoms alleged trade secrets and their supposed misappropriation the balance of the testimony dealt with pediatrics alleged breach of contract which certainly sounds like a reference to the state of the evidence not to an issue of law on pages thirty three through thirty five you have a series of bullet points the talk about documentary it's like i said that's about two pages of bullet points on page twenty five and again there's more than this but i'm just going to give me a representative sample here where you talk about the claim being based on the same facts as the breach of contract claim and no evidence of separate harm or damages was presented at trial when i read those things i was led to wonder if this is a question of law why do they repeatedly talk about the evidence the evidence here is completely undisputed has the same evidence that was present really in the counterclaim itself from the very beginning it was clear to the extent it's been clear what the alleged misrepresentation was here and how that was related to the contracts because it was claiming that there was that telecom was entitled to get the commercial benefit of the research that was in the contracts we argued before i think it was judged that that was sufficient to dismiss that claim he disagreed with us we considered it law the case we didn't take it back up all of the evidence that was presented at trial is merely confirmatory of that same position there's nothing that contradicts it and so it's the same legal question but by saying all the evidence confirms  as the briefing does too isn't that a just a way of saying had they come up with other evidence we have a different question in other words aren't you commenting on the evidence by saying all the evidence was the same no i think what we're trying to say is this was the claim the evidence was merely supportive of the claim but the claim was that the misrepresentation which allegedly entitled telecom to a tort recovery was in the contract that with the claim there's no evidence they could present one where the other that could change that point unless they changed claim which they didn't it's the same claim so if they had come forward with evidence that talked about a variety of misrepresentations the counterfactual from your perspective but hypothetically speaking if they'd said we'll we met with mr mailer and he said we're going to promise y ten thousand dollars a month for the first twelve months and then it will triple after that for the next twelve months and none of those things happened that wouldn't be evidence of fraud in the inducements our position would still be that wasn't evidence of fraud in the inducement because that would still relate to the contract it would be promises of contractual performance which are not recoverable in tort if they're in the contract but i think if those allegations had been made there would be a stronger argument that perhaps we should object at that point to that issue going to the joy because that would have been a little bit different from the claim the telecom had originally assorted but in this case as the evidence developed the claim did not change don't think that's exactly what i would say ok the oral contract also refers to a promise the telecom will obtain commercial benefit from the research it's the same promise and telecom also in its counterclaim which is a binding judicial mission that the oral contract was incorporated memorialized in the written contract which also specifically says the telecom will we see some of the commercial benefit of the contract develop correct yes one one is to collaborate of the research the other one is to work towards commercialising the results of that we now is there that you were her i guess is it's your client you were hurt because they didn't proceed with the multi patient micro r n a s that basically what was done that was wrong from your life in what was what are you what are you complaining about well we're in language we're complaining about the recovery that was awarded to telecom which is the defendant here but had a counterclaim so telecoms recovery for misrepresentation on the alleged theory that pediatrics misrepresented that telecom would obtain commercial benefit from the research when that didn't happen and when allegedly telling pediatrics never intended to help that happen because that contract that calls that promise that misrepresentation is part of the contract the remedy is in contract and not tort if you want to have a  are you you can get dismissal or reversal of claims there are cases where this court has and i believe we cited one of them sufficiency of the evidence this was not an issue of sufficiency of the evidence this was an issue of law well fifty nine permits you to recover for errors of law and redress those errors and in this case it was a special verdict which the jury issued and the court entered the judgment in accord with that but our position is that the court did not enter the proper judgment in accord with that that he should not she should not have awarded judgment on th jurisprudence of the supreme court this court and other courts around the country that a multiple of seven to one in a case like this is really excessive there is if you look at the reprehensible of the factors there are only two that are even arguably present here there's no physical harm which is a very important perhaps the most important factor there is no repetitive conduct even the district court found that the the case in the district court by the way said that the the economic loss and the gist of the act argument there are really two sides of the same coin certain sometimes the economic loss doctrine is applied in cases involving products liability and just of the action is more ordinarily applied in a in a commercial contract case but they both basically say the same thing in the economic loss the test is whether your entitlement flows from a contract if it does you don't get economic recovery and tort and of the gist of the action it's a question of where the on the ground that telecom should not have recovered on fraud correct your honor that's that's basically it is yes and that would also remove the punitive damages that can tell you have anything else i'd like to begin with waiver and a follow up on a point that judge jordan made observing that pediatrics brief is replete with factual arguments when it's attempting to show of the evidence challenge because whether a fraud claim is barred by the gist of the action doctrine there is not an automatic bar that applies in all cases when ever parties to a contract also bring a fraud claim as this court said even in a case cited by pediatrics that it is often a very fact intensive inquiry with respect to what did the evidence show with respect to the alleged breach of the current duty not to make a misrepresentation or was it about the performance of the contract if you look at in my brief cites all of the pages commercialise rather they long term purpose of the party's relationship was to alternately commercialized and that was the benefit that was dangled before honor the representation again was that these parties were going to have a long time complex business relationship that would lead to all kinds of profits our client could have simply been a sub in that contract pertaining to a covenant to commercialise our client in part upon this relationship gave and gave and gave and got nothing in return ok what americanization apparently was the most patient application is that not correct isn't i mean wasn't tatham the what was happening and what i want is there anything to show that the decision made not to proceed with the multi patient the commercialization of the multi patient yet was all the rage or something like that was not made in good faith as judge conti found there was ample evidence of record the could have led the way to support of the jury's finding that and i apologize i don't have the page in front of me that all along pediatrics did not intend to enter into and continue a long term relationship but when i tell it you have back to my sentence my question my question had to do with the decision not to not to proceed with the multi patient portion of this i mean this was sickle cell anemia but they had done some work and it was they had moved ahead with the single patient and then according to telecom and according to the the briefs there was a decision made that it would not be warranted to proceed with the multi  discuss and in just let me give you a for instance tele cam did everything that it said it was going to do ken mccabe a lawyer for a pediatrics or neo jan who was supposed to incorporate said he had incorporated simply never filed the papers to incorporate it doesn't go sorry well i'm still trying to find out is it seems to me that at the heart of all this is the decision made not to see the multi patient that that would have been might have been martially viable but they decided it was well and i don't see anything in your brief listen list that said that was not a valid good faith decision what the record shows that pediatrics did not make a business decision it's not that it made a business decision not to continue with multi patient commercialization instead it decided that it didn't want to be in business with the flakes from california that's true assume that th that in politics comment accurately reflected the situation that mr miller made what is it in the case where can you point in the record that shows that was nothing more than a decision by pediatrics that well this business relationship isn't working out and i mean we're sure evidence that this was a to suggest that this is what judge weiss is asking but it harkens back to something he what can you point to in the record that ties this to and inducement in other words you're talking about things now that happened after the world contract was for and that occurred after there was some agreement to the pre cooperation contract what takes you back to the start and where you can say here's something that shows it was bad faith from the get go well you know if you look at the testimony of the dr dombrowski the doctor for telecaster excuse me for near john for pediatrics you know he he needed dr he needed dr shame in order to get the grants so they they say it's not the first time it's right that's what they call in that was that was if you had two contacts that was the first one and you are exactly and the inducement began briefing talks about things or seems to talk about things that happened after that that happened in the course of the relationship to show it breaking down but your argument to the district court and here is that the fraud claim entitle to stand because it was a fraud in the inducement i've understood you correctly i'm my question is just one and maybe maybe you've answered as much as you can answer but do you have something in the record that shows here's a false statement that was made to and we can show it was made with bad faith other than to say please for it because later the later the contractual relationship broke down and i you know it's not i want to come back to the waiver because i if you're asking whether there is a smoking gun in the record i've seen fraud cases where they exist where there's a document that's later uncovered that demonstrates that when person a said x and thus and such a date there's a letter or a memo memorandum that indicates that that person was not telling the truth on that day there is not that smoking gun what it is is what happened during the course of the party's relationship which reflected that they must have never wanted to go into business with these people notwithstanding that they bled them dry this is precisely the argument your committee is if this relationship broke down in a way that you the court should in for  contract or whether it's tort is a pure question of why you disputed that question whether something sounds in contract or sounds in tort is a classically legal question it is a question that can be resolved is a matter of lot but often there are disputed there are there are underlying factual disputes ridge can exist correct so if the question the old to me question conference why is that not sufficient to preserve that ultimate question of was regardless of the underlying questions about a couple points and i will ensure your questions first of all they have not appealed from the denial of the honor that becomes appealable upon final judgment but nonetheless upon final judgment one if they want to make they could appeal it and they didn't appeal that second link they didn't i'm going to try and yeah well i think i think the argument i'm hearing is you're saying they needed to file some separate no no no no no in their notice of appeal that oh by the way we're also now appealing our denial of the motion to dismiss now your honor that and i apologize that is that is not what i am saying i'm saying that the cases that they cite they deal with appeals from denials of motions to dismiss actually squarely brought into question in their appeal briefing for instance the denial of the motion to dismiss that is the question of whether the facts as alleged in the complaint sufficiently stated a claim or did not state a claim ok so you're saying that they didn't sufficiently argue in their briefing that as a matter  there is a there's a problem with the gist of the action it was never raised in any way or any manner during the trial and they did not raise it at the pretrial conference all judge conti the trial court asked was folks you need to tell me what claims you're going to bring to the jury are you going to bring a fraud claim or is there just to the action issue we indicated we were going to bring a fraud claim that all she said or did she also say it looks to me like it's a contract that action your honor she suggested that there was the motion to dismiss and that was raised we've been submitted to her the list of claims never once after that did pediatrics raise the question of whether the fraud claim ought to go to the jury whether we a deuced sufficient evidence to take us outside of the gist of the action there was nothing at the charge conference not a peep i am sorry to be colloquial during the course of the entire trial when we indicated to judge conti in response to her request that among our claims we listed them it would be fraud there was no motion nothing ok and i have been holding my  the pretrial conference the five hundred thousand dollars aligns perfectly with what it is the telecom would have received if it had not decided to forgo the sub contract it but isn't that essentially a contract issue i mean they decide they made a decision not to accept the subcontractor deal that was offered and why is that for i'm still having trouble distinguishing between the forward if if that's is that what your expert said i mean would i'm talking about what evidence that you put in one to support a fraud that image buying well the expert talked about you know a lost value in terms of commercialisation ok so that was contract right contract the evidence once again you have to realize if we had not if we had not been promised that there was going to be a long term business relationship we would have taken our five hundred dollars payday and we would have done only those things required of the subcontract  decision made on i guess one could argue that that was a decision made not to enter into a specific contract in missile trying to distinguish between the and i looked at the damages ex your expert and i'm not sure and you point to where the damage experts say this is as a result of the more your honor i'm saying no and as we argued at the post trial and as judge conti concluded that the evidence was in there was if the five hundred thousand dollars that was promised we would have been a sub merger doctrine states that when an appellate takes a no no this is an appeal from a judgment all questions of law presented below come up with that judgment and that this court has held that that lack of specification of well fifty eight below precludes telecom from raising it on appeal well didn't they actually say is a statement in fact that you had waived i mean they made the same way were argument for this report that they're making in front of us or you tell that they didn't use the words rule fifty a and and and think that waiver claim made on duplicative recovery there's not been an argument made to this court that the duplicative recovery argument that pediatrics is pursuing was waived well misrepresentation is incorporated in each contract i believe that the court asked questions about this if you look at page one thirty seven essay the oral contract itself states well there are various places first of all there is a statement with respect to i'm going to do it in order of how the letters came out the letters that documented the so called oral contract paediatric says letter on page eleven fifty part of this oral contract telecom's response of letter of march third two thousand a way a way of dot com will benefit from the residual commercial uses and partnership the written contract i'm sorry let me give you the cite for that last one i guess it is page twelve fifty three a these are all in our brief also print cooperation agreement the written contract page fourteen seventy five a pediatrics is to apply efforts to the commercialization of the new technology well look you may wonder what are these supposed to be selling off because they show you that the misrepresentation that pediatrics told you tell a cam that you will benefit from the technology that is in the contract which is why the fraud claim is not independent it's why it's proposition that if it's a question of law the court can reach it whether it's raised to rule fifty motion or not that case the language of that case says the civically that quote if the legal question legal question can be separated from the factual one then we see no bar to reviewing the legal question notwithstanding the parties failure to raise it in a motion for judgment as a matter of law unquote that's  page seven twenty of that case i want you to explain if you can how the legal question here which i think i even heard your opponent acknowledge is ultimately a legal question how can that be separated from the factual question about that evidence was presented at trial how to how can we look at the one without considering the factual issues which you discussed at length in your briefing perhaps the next citation i was going to give you will help on that when teluk him sued itself for breach of the written contract its allegations stated that neo gen which was the earlier formulation of pediatrics has breached the contract which required that it take all steps necessary to incorporate the new entity and by denying commercial benefit to telecom so that with its claim of breach even as you say this no the site or what you're saying is here look at this evidence i'm you're reading from the record you know i'm reading i'm reading the pleading was not through my understand i apologize i thought you were directing us to points in the record now where you were saying hey see this listen to this it's in the contract which is evidence yes i was showing you that before but my last point was going to be that when telecom sued for breach of contract its suit incorporated the denial of commercial benefit as a breach of contract claim that's what i was trying to get to it's paragraph twenty three of the counter claim and it is on page one forty eight so and you're saying what they they sued for breach of contract they sued for breach of contract for failure to commercialise incorporated what well you are switchin oh i'm not sure maybe i'm being of two so i don't need to be passed around the club if you know if you have they played both things they were covered on both things i understand your duplicative recovery argument i'm not asking about that i'm just asking about waiver how do we separate the factual questions which have been discussed throughout your brief and hear oral argument from the ultimate question of whether this action is ultimately one that sounds in tort or in contract i would think that the allegations in the counter claim are binding on telecom if it's suing for breach of a failure to commercial for claiming failure to commercialise as a breach i think that