on three points one the contracts pacific fees and royalties awarded by the jury including n you will license fees are direct reach contract damages to the jury's damages a ard is supported by ample causation evidence three it was well within the court trial court's discretion to allow mr beeton plaintiff's expert to testify at trial edgell log in this is the industry cover fees are specifically called out in the parties agreement royalties under sections four point two four point four in fees and license fees under section four point seven damages they sought specific contractually mandated fees or real g s they are only lost profits that because like in any direct damages case edgell is not entitled to recover gross fees or school district gets a license label pays the fee edge law gives a license to the school district in the school district as a one year license that's undisputed and at the end of that one year license if the school district is to remain licensed laidlaw pays the annual license fee under section four point seven again levar pays that fee and the school district gets another year of the voices that is undisputed that was the trial get the benefit of section four point seven point three and to have it live it and it school district both access the software they had to pay that  licensed you get your lodge use the software you will get every upgrade that is offered during that time you're entitled to maintenance from measure log during that time that's true under the initial license that you pay and it's also true with respect to the fee that section four point seven point one fee and that's for if only laidlaw is going to use a software school districts not allowed access the software a lot pays a one time one thousand dollars fee for laidlaw to be able to use the school the software for the district the northwest are one school district south kingstown rhode island school district and the school name school district and so on and on and on these are all school districts were laidlaw admits the school districts left it to us to implement software they didn't use any effort to promote i thought only because gee if we do that we're going to have to pay a funeral that's the necessary result of the breach that's correct that's those are direct reach of contract images i'd like to talk just a little bit more about presentation in addition to specific school this which we have several general statements made by laidlaw employees the top two employees in our computerized writing division the head of their computerized writing division made it very clear that laidlaw customers look to laidlaw to make decisions with respect to how to route whether to implement software this is late last responsibility for example he says when it was appropriate to communicate with our school district customers about what we were doing specifically in a running capacity we did so but in most cases our customers look to us as the routing experts and they depend on us that's levo to determine and to determine and implement and utilize a solution on their behalf and mr parker could not think of a single instance which a school district had ever objected to laidlaw proposing the use of edge log writing software not a single instance no exceptions and reply brief you'll see a lot you know we have this information as well as other information but if you look at those excerpts of record you will find this testimony it is very clear and it's the it's undisputed mascot question  this box or do they fall in that box and that wasn't determined before trial however during the discussion of the jury instructions i notice that there is some discussion about whether you should have a consequential damages instruction which just from the outside it would seem to make sense if you have to know is it in this box of that box you might have such an instruction but then there's this colloquy between th court in the parties and the court says well then the licensing maintenance royalty fees are not consequential damages and then there's talk about well if i don't give a consequential damage instruction i don't think this one is necessary either and basically although a consequential damages instruction was proposed it doesn't really get offered in the end why not right well so from our perspective none of these denizens were consequential damages laidlaw had a consequential damages instruction laidlaw with through that consequential damages instruction it's their burden of proof they if they want to argue that their consequential damages they should have submitted the consequential damages instruction so now and that's my other question is since it wasn't in the jury instructions and it doesn't find its way into a special verdict form in any way question laid laws own citations support this for example the class electric supply case out of the district of oregon the court says the proper characterization of a particular claim of damages as either direct or consequential is an issue of fact which the jury must decide that's at star three the only where the evidence is clear and undisputed and the law is clear cut me the court rule as a matter of law well here the evidence is undisputed but the evidence is undisputed that the parties for example on these in a license piece treated them as section four point seven point three fees they were fees that were paid by laidlaw at the end of each year in order to allow the school district to remain license trial and we have they had an opportunity to make that point they had an opportunity argue that's the jury and they didn't do that to evidence summaries and school district license license values and he calculate a specific net wast fee in a world he for specific specific laidlaw customers why did he do this he did it so that if the jury determined that lie billion causation had been shown for any specific made law costumer the jury had the damage number for that that related to that specific  his calculations were not particularly objectionable after mr bean laid the foundation for what he did his school district specific spreadsheets  objection and the jury had the school district specific numbers and they took them back into the jury room with them and mr beeton left he he left the choice of for which school districts them issues would be appropriate to the jury he was asked about this why leave us trial counsel question you haven't presented the jury with any middle ground on this right it's one hundred percent or nothing answer no they have that choice i'm not saying it's hundred percent or nothing when one test by ultimately it's going to be the jury's decision on what it believes is appropriate for the circumstances that we have here based upon not just my opinions but all the information that's been provided here so the jury had his unobjective to school district specific spread chee the jury had a school district specific why building causation evidence late last lawyers had the opportunity during closing to talk to the jury about the school district specific libel the evidence about the school district specific causation evidence and about the damage just fig the jury received instruction on causation and damages laid last instruction the judge went back to the jury room they had all the information they needed to apportion damages on a school district specific basis that been established by the evidence and clearly they did that they asked for seven calculators and they didn't award one hundred percent and they didn't award the zero percent mitt requested by laidlaw they ran their own numbers and came up with the calculation if you w is to judge the reasoning used in forming an expert conclusion the test is whether or not the reasoning is scientific the judge the trial judge make the terminations this scientific is this appropriate for ten years from two thousand and three to two thousand and thirteen what is the record show they had five percent they went down to five percent you had your client had an opportunity to cross examine him on that and it was put to the jury and  guess i'm struck i have an art and see why this is an abuse of the truck or speak class the trial judge did not make the initial determination that this was scientifically based it was simply an opinion that the expert submitted the expert said in my opinion if laidlaw had submitted it provided its best efforts then all the school districts would have benefited it's that simple it's just an not ninety percent of the market keep in mind that laidlaw is only and ten percent of the markets and the other ninety percent of the edge along with the ninety percent of the markets presumably they had every incentive to try to sell and during that period they only findings the jury heard all of this they heard where you know laid low said it wouldn't happen would happen and they came out with numbers and they came out with findings about you know best effort so what the expert dean was just given opinion his opinion on what would happen one of the factors that juries could consider why is that an abuse of discretion to let that happen because the judge is obligated and a case like this to make sure that the opinion of the expert is based on there for a verifiable scientific evidence and economists who are russian analysis the way the way one typically does it is you look at other companies in the field look at the alaska the marketplace to what this particular plane of could have done here there was nothing done and in connection with looking at what historically edge a lot had done they had gone in there ninety percent of the market through a fight there's always a fine line of course between what do you need for the scientific basis versus whether you just attack that basis you let it in and it goes to wait because you're not required to have an economist and it's not uncommon for companies to use c p a s to present this kind of information it may not have been the most sophisticated analysis but you're basically asking us to say that the district court used its discretion happened and two thousand three hundred one and then they assume that even if a school district had no intention of buying or having installed bus ronnie software because a lot of them don't only twenty five percent minors there was no basis for that and you can't do that you simply cannot do that if the total end run around the statue of limitations how can you have an expert assume routing software every single one when the facts are that one edge a log had the right and they had the right to run the entire period of time ninety percent from ninety seven nine they had one hundred percent of the market when they were stealing it themselves they had percent market share so that fact i think makes it very clear that the basis of his opinion was pure speculation it was pure assumption it wasn't based upon any analysis the quotes recognize again there's two ways to do it look at what this particular plaintiff it elsewhere that's a really good way to do it so if edge a lot was getting ninety percent of the market elsewhere seventy percent of the market  that case the plaintiff really only has five percent of the market here it's worse here mr beaton sat one hundred percent if you it was if you build it they will come i mean i know my correct in assuming that gatekeeping function i mean the supreme court made that crystal clear and albert is esther and i make a suggestion i looking at your time and i'm not sure you want to use all your time on this or let me let me address the consequential damage just and what you would address the question i have which is it appeared that was consequential damages instruction which made some sense to me but then it was withdrawn so the jury was that said that laidlaw didn't use best efforts and if we bought into your argument that despite that you're a verdict these are all consequential damages what damages could we cover well they could provision the you see anything any even remotely resembles the kind of damages they're talking about lease agreements talking of personal service contracts he really think those are analogous to the kind of damages which talking about  the definition of a consequently damages are damages that are foreseeable but not necessarily foreseeable but not necessary and that typically is lost profits damages and the judge's analysis was there loss profit damages that are expected from third party contract that's correct your honor they're not lost profit damages that are the direct inducement of why these parties made an agreement your honor these parties made an agreement if you look at section four point one it says that the inducement was for the non exclusive it was one point five million dollars and remember your weiners they received edge a large received one point five million dollars up front upfront was they already received one and a half million dollars when they entered into the contract that was in advance payment laidlaw had every interest to try to sell some product as they were out one point five million dollars on the non exclusive portion of the under the u c c there was no exception for and if the consequence of damages no exception but even if there was and i don't like this very briefly even if there was the the requirement of the green versus respectfully you started out when you interpret a concert with a contract say what is the one of the parties mean there's an integration clause in this contract testimony by me doctrine when the principle of whatever edgel like yes he said there were other things i was thinking about but it's effective in hand you have to look at the contract you have to see what the parties agree to and the trial judge respectfully is not at liberty to change the deal and he's not all there will be to accept all the evidence thank you we're talking about here are laidlaw customers for example a customer that might become accustomed two thousand one remains a customer today and laidlaw says well these these these customers show no intention of wanting software well guess what leave us making decisions laidlaw says all school districts are better off with writing software but they have a policy of not promoting the school to search never even offered software they weren't told what they were missing that's on laidlaw that's not  stinks we're not going to use that for our customers this isn't about the market this is about labels own customers and late last internal memos not for customer site or not for site it endorsers actual edge law is the best product