thought you understand you have fifteen minutes you reserve some time for diversion of stormwater from corporate streets to private property resulting from the city of chicago's installation operation maintenance of a modification to the city sewer system with in road control device commonly known  rain blocker beginning in august two thousand and one to present the class this class was certified by the trial court december sixteenth two thousand and five in the origins of this case begins when the city try set for trial so discovery would been completed at that time eight years would be about right when that's correct right i mean eight eight years the case is going on there been multiple amendments to the complaint without a  and come back and begin the case trial counsel from what i understand came back so he could not proceed with the case and needed more time to adequately prepare to represent the plaintiff in the class at that point the trial  the rulings of the court in terms of what she wanted done fairly quickly and knowing all that you five year period that's correct your honor and at the same time that sam we did file our parents we did ask to reopen discovery because we did know the posture of the case we did know to release a court that was the reason why that very point we we asked to reopen the case and we specifically asked to reopen it with respect to request of minutes requested to point but we couldn't prove it to the satisfaction the court that we appeared that day when the case was set to trial that given the posture of the case that it was unable to prove the case to the satisfaction of the court for example the court spend some time saying that our expert which we disagree with the court's opinion has had to go out and inspect mrs galveston all as the case was structured the time that we came into the case i'd like to discuss that issue too but let's just so it's clear when you difference in the cases that we cite that do it here is earth season the cases that we cite they're relevant to this issue that specifically the court was looking for information which we sought to provide if there was no trial date that the set we were willing to do it next but i did fashion week to use your own honest words we knew the case that we stepped into it was you know obviously a very very unique circumstance i believe the trial court knew that we we had not worked on the case before no one involved worked on the case before we were trying to both get ourselves from the leader but also provide as much information we could to represent the class and see that justice was done in a way you felt that you needed martin discovery and you didn't get it but testified that one she had flooding to the street in front of our house did not satisfy what i will say the hearts of plan the plan that i was engineering laid out as to how the brain blocker system should be implemented in three we put it next to an expert testified based on looking at the flooding that occurred in zero one zero four and looking at the pilot areas looking at aerial photographs reviewing various data that the flooding that with the data being out the rain brocker system was implemented and as well as the reports from the various people complaining the flooding that the flooding occurred to the best was approximate tool saying specifically that her circumstances were not within the has a plan and then when the expert testified that because of improper implementation of the brain blocker system not according to the hundreds of plan resulted in overland flowing certainty in fact the trial already that there was fraction there was proximate cause to yes not specifically with respect to miss help us to all but the rest krosnick caused the flooding that resulted in the damage that occurred was two things the plaintiffs expert said one that he wasn't in a position to make a determination about what the proximate cause had occurred because he believed that modeling was the term that he used over and over had to occur in order to do th computer modeling and that is what he talked about the time and he said with respect to his critique of our expert was that and once i was going to cross that was that he couldn't say whether or not the installation that i would use of the rain blocker system would cause the overland flooding you couldn't say that one way or the other all they could say is in order to make that determination you would have to use a computer modeling system modeling that he was talking about you would almost have to in two thousand and one start the process immediately after it happened because she would be recreating something you wouldn't have why she had the systems in place at the time it rained you wouldn't have the exact precise way how can we change the judge's decision when there's evidence in the record that show that i would that's what the judge is efficient and one is from your client that they have that she said she had flooded in two thousand and one two thousand and four two thousand and seven two thousand and four she said that originally she said she thought the rain blocker system had been removed from her street two thousand and four she later testified that she wasn't sure it might have been two yes i would say it's something that's correct your honor one of the other issues that we raised was the subsequent remedial measures we brought a motion because all the rain blocker systems did have to be removed because of exactly what we were complaining about the court denied that and said it was a subsequent witness a former commissioner to deal directly with that issue and obviously brought it before the court the court denied the idea of putting in some praise the effort ensured the regarding the preclusion of the it i think we raised it generally run or we did race of the court it wasn't as far as the the major issues that we raised that we did we specifically do raised in the brief answer to your question we we respond to the idea that the trial court raises the issue with respect to misc elvis tool and the removal of the brain blocker systems we specifically do respond by talking about subsequent media motion here we are reviewing her decision and if the evidence is equally split at how do we get past the manifest weight stand why i'd say two things one i would say your honor that the trial court specifically says the reason there is no proximate cause is well she really says twofold one the testimony missed elvis tools so even if you put that aside into the fact that plaintiff's expert did not go up or vide an analysis of his scalp as tools property and i think that brings us back to the discovery question that we raised and we said we would do so it makes it a little unique then if it was here's the interesting thing about what you've just done when you said it goes back to discovery question because you basically  a little that's concerning the experts not going to miss galveston and and i don't know if that turns on the nature of this lawsuit that it is a class action lawsuit where they represent that and the representative seeks to stand in the shoes of those similarly he situated and to the extent that you are going to take this person's case  and extrapolate to the all the other members of the k of the class seems to me that you would want to be able to you he would your bird would include establishing that the representative is a true representative of the class and that would include having your expert review the representatives the problems that she was incurring due to this negligence or  i think the expert did review the problems that this representative and mr krause tello incur just did not go to her house and provide a specific analysis as to how to do it he did it by review of deposition testimonies review  of documents relating the flooding within specific areas he did it with respect to aerial photography of different areas he did not go out with the quarry he did it was was he asked a question and he did he did he say i didn't have to go there because i needed i don't i don't believe he was asked a question i don't believe the issue became an issue to the opinion as far as specifically i don't i don't specifically recall that he was asked the question  court races i do believe he was asked a question about whether or not proximate cause her he was asked a question as to how he believed that there had been proximate cause of this bloody he was asked multiple questions and he was on the stand for two days dealing with all the efforts all the research all the steps that he took to make the terminations that he did and with that i'd like to preserve what other time i left for about a thank you as a matter of fact that the city did not breach any duty ot the point this neither those findings or gets the manifest with the evidence and that alone is enough to affirm in this case well to some extent the way should resolve the proximate one witness says it's red like the other witness has a green light and really no one can really tell me here the evidence either either either there's a connection between the evidence that was presented and the injury that was has the appearance of a question of why think it is with regard to the fact that the court recognized correctly that nor to prove their case with god proximate cause the plaintiffs needed to offer proof about galavis tools specific property and needed to focus on that as the as the panel recognized this is a class action there was a one representative functionally at the trial and that was gal best tool in order to win their case they needed to prove that all the elements of case with regard to her property it's staying up proximate cause they needed to show that but for the installation of the rain block or the inlet control device on kenzie there would not have been what now what they failed to do i'd really end but the court recognized and then perhaps in a sense ruled as a matter of law they therefore could not prevail was to focus on that property and to give meaningful and complete and full some treatment to the evidence or issues regarding that property all they have in the record and all they presented was this is gallus tools testimony regarding one of the many elements one of the many  variables involved in whether or not the rain water system might have somehow if it participated or played a role in causing the flooding that is the i think her and her own first hand testimony that when she when the rain occurred i don't that the brain blockers had anything to do with the water falling off the curb and as our expert testified in order to really know to understand for sure whether or not there was causation at that particular property you needed to consider all the different variables and you needed to actually go out and make an assessment of whether it to what extent the insulation of the particular illiquid part of ice there caused the flood so to return the question of whether  question to our question of fact or intimately it i would submit that it is still question of fact as to whether or not there was sufficient proof proximate cause fifty one fifty one to forty nine showing that was undisputed that it occurred in two thousand and one in the reply brief they'd cite to they put a record cite to apparently uncertainty in the record with regard to the status to his recollection of when the actual then perhaps later in her testimony saying well i'm not sure maybe it wasn't until two thousand and seven down i wouldn't say the court needs to find that the trial court here deemed that second correction amendment of the testimony a lot but sides one that was in two thousand and one one that it was true that seven and they're equal therefore there's no manifest weight issue here and therefore the finding of fact must stand that funny fact again was that they were removed in two thousand  the ray blockers did not cause the flooding the you know the timing of the removal but also you just have a failure of affirmative failure of proof which standing alone setting aside this two thousand and four two thousand and seven two thousand one issue was enough to two up to prevent plaintiffs from proving their case they have one represent a point if they had one property all they needed to do prove their case was to prove that the flooding at that property was caused by the rain blockers and they did not address all the variables they needed to do now it's no use this case in a sense came down to this issue rather came down to a battle of experts and and our expert said in order to to make a meaningful incredible determination of whether or not there was causation of this property you need to study the property seems like common sense their expert said no all i needed to do was consider the general properties and the operation of this rain black or system and i could discern from that that every century every property that was for it was caused by the rain like system now that level of generality was understandably  think legitimately rejected by the traveler and so as a result you have a finding no proximate cause and that and that standing alone is enough to prevent this from prevailing in this case now what i what if what if the expert had testified that going to the house would not have added any information to what he already had that it wouldn't disclose anything short of waiting for  a huge rainfall here short of being there when the flooding occurs to be able to decide where to be able to investigate where the  should be put in the position of saying to an expert that i hear you but i disagree with you i'm ruling that you have to go to the house and this is an expert this is an individual who's been trained in that field why should the trial judge be able to tell an expert how to do his own job but to answer to that justice first perhaps in a situation where there was one expert a plaintiff's expert in the case and had made that representation perhaps the judge would it would be it would not be wise for the judge to say well i got to second guess you myself as a judge i don't think it would necessarily be a proper or grounds for  reversal even in that case because ultimately it is the judge's job to try to just start to assess the weights to give the expert testimony but what happened in this case the second point i want to make is that you have competing experts and so although you had cheney saying i didn't need to go you had nick what i'm saying you did need to go and here's why i'm explaining why you need to go and why you need to know the measurements the various variables here and the judge here understandably once again sided with the city's expert and the determination that in order to prove a class action with one representative plaintiff you need to focus on the representative plaintiff's case and you need to case and they failed to do it and the determination on the proximate cause issue was not against men this way and nor is the aeration of the breach issue although will it stand in their brief with regard to that argument and i would like to touch briefly on the immunity issue because even if you case you have a city official who is in a position to make policy with regard to the operation and the and the and how the sewers are maintained put together and he made a decision that was not an engineering decision it was a political public interest public health decision to proceed he decided to proceed he exercised her discretion in making that decision because it was his job this question was in his office and he let me let me sum up what you're what you're saying is that the immunity issue immunity question was the nail in the coffin but the body was already in the coffin when she ruled when that mail was put that's absolutely right it's belt suspenders and whatever third option one might need to keep your pants up so yes it is not necessary that the city prevail on all three of these arguments two of the three the arguments  honor something brief in my rebuttal as i believe we laid out our brief and we discussed the city at one point commission harz a to provide three pilot studies that provided those studies they acted in accordance the rules and regulations they sample if they follow those those studies or those studies were some point the city made a decision to implement that city why they made that decision we've taken that decision alone may qualify under unity then they established to move forward with a plan to implement those brain blocker devices and they did not implement those run blocker devices according to the plan the cars established and according to the pilot studies they spent years completing in millions of dollars to in so doing i was also at the time that they did those pilot studies notify the city that to deviate from the rules and regulations that they had established could cause problems and could cause overland flooding the city when ford did that using the pilot studies of basis to roll it out citywide let me let me get this right you think that where a city exercises discretion to implement a policy it has to implement that policy by crossing every t dotting every i exactly the way the policies laid out if you don't then you're subject to  i would say the general answer your question is yes but especially in a circumstance like he doesn't leave a whole lot of discretion for the city well the discretion is the initial decision to roll it out and then once you decide to roll it out and it's specially w with here the basis for implementing it citywide was the pilot studies so that was the crux they made the decision to implement it and then when they implemented it so in answer to your question i think if that's the basis then yes you should follow the policies that means is you have to set up a system where you can evaluate if there is no credit for example the people that are out deciding whether to put in there in the rain blockers would make a determination as they were doing that going forward in the pilot studies they didn't just implemented the way this city did citywide the way they did the pilot studies was they did make some a valuation a different size restrictor so they made unique decisions whether put them in certain areas and not that i think is what you would do a city wide basis just what you did in the pilot study the whole purpose of the pilot study is to look at say does it work here it works in these unique circumstances this is how we should do it citywide and so our answer to your question would be you should do it citywide the same way you did it  small pilot studies three years millions of dollars it's not you know just one block where they're trying that and then there's also testimony that the city said that the cost to do this was reduced because the price of the restrictor they were able to essential to maximize its effectiveness maybe i misunderstood your question i'm sorry i was actually the question with respect the company might have actually built the rain block so that's what i thought you respect i was thinking part ok i'm sorry so i was like you were actually asking but so with respect to harissa the all reports were implemented were brought into evidence the various letters i was i would say played a very large these i believe it was fair and obviously we we asked given the ruling that we could reopen discovery it was as fair as reasonably could be expected given the circumstance she did not require us to go forward just with mr chang as our witness  so with that being said we would ask this court to reverse based on the briefs in oral argument reverse the findings and judgments of the trial court and enter in judgment favor the plaintiffs or alternatively reserve reversing the findings of judgment after