and let everyone get settled mr crawford good morning money has taught crawford i represent market transportation in connection with this matter this is principally an appeal of the damages award made by the district court i think it's important at the outset for the court to understand that the plaintiff elected in his case in chief not to present any evidence of the repair cost to the damage to his vessel he relied soley for his damages on the testimony of h i will call his litigation support expert which is gentleman named col smith mr smith opined that the quad which is the name of the vessel was worth between eight hundred fifty thousand and one point five million dollars the trial court rejected mr smith's opinion finding it not credible and not supported so in the end the evidence that the plaintiff actually presented did not carry any burden as far as the court is concerned and the first error i want to talk about is the court awarded the court fail and that the a quota was a constructive total loss even though the only evidence in the record of repair costs was less than the value assigned to the boat by the judge the definition of a constructive total loss is by definition the repair costs are greater than the in the value of the boat the judge failed the value of the boat was four hundred seventeen thousand dollars the only evidence in the record of repair costs comes from the plaintiff's other expert larry strauss the first expert that he retained to go out and look at the a quote in june of two thousand and eleven within the first month of the incident mr strauss said the his best estimate of the cost to repair the vessel was two hundred eighty five thousand dollars he very specifically said it could be more it could be less now you can search long and hard in the record that was the only evidence of the calls to repair the a quota that is in the record now that that testimony comes from the plaintiff's own expert mr strauss he is he was retained for that specific purpose and that's what he don't now significantly on rebuttal plaintiff didn't come back and say oh no but there were more repair costs that we haven't addressed let me show you that evidence so in the end absolutely without question the court's initial finding that this was a constructive total loss because the value of the vessel assures me that because  evidence is there about the value of the vessel i mean if he purchased this vessel i guess this isn't an arm's length transaction three years earlier he got that vessel for two hundred thousand dollars his testimony is that he had purchased a vast old previously i want to say i can two thousand and six for two hundred thousand dollars that is what his supposedly it's an arm's length transaction at least there's nothing in this record that suggests there was anything odd about the purchase right except you wonder having read what i've read why anyone would have done that but there's there's a i take it there's no question here that that was an arm's length transaction your honor i will tell you that there's no that was not litigated in the in the court below i don't think that there's a lot of evidence corroborating that's all right so we have a willing buyer and willing sour hypothetically and he paid two hundred thousand dollars for the vassal well i guess in the end what court what we're really talking about and i'll get back to your question if ok let's say he paid two hundred thousand dollars for the vassal and the court let me b back i don't know only an expert can say that's the answer to both questions ok so when i asked the plaintiff tell me what your boat was worth his answer is the only person that can say this is an expert so that's why i take issue when the trial court starts taking all of the individual pieces of the of the of the plaintiff's testimony and says well he paid this forty cents invested this for it he says he paid laborers this much for it so i'm going to take all this and cobble it together and come up with a value and the reason i have take issue with it is because the plaintiff himself and his discovery knowing all of that information chose to limit the evidence that could be considered on that issue to expert testimony then the expert that he retained to come opine on that the court rejected but just on this first point before i before i move on no matter what the court says it's worth four hundred seventeen thousand you don't get you get the lesser of repair costs or the value at the time of the incident the repair is to eighty five so without question it has to be reversed on that basis so that the next issue though that i want to do that i want to talk about at and before i leave that they they talk that probably the have come up and say well strauss didn't consider everything he didn't drive doc that that's all there were some other damages maybe that he could have seen if he'd done all of that i want you to know number one when he bought the boat he didn't drive up that mr much did not drive up the boat when he bought it it had never been dried dock it had never been seen strauss told him if you want me to look underneath we got to go drive up this boat much chose not to drive dock the boat so what we basically have is the judge saying well i'm going to assume there are more damages that nobody saw because he didn't drive off the boat but no matter what there's no value associated with these unseen damages there's no evidence in the record that would say this is how much those damages work and when they're criticizing what strauss said and so forth what the repair costs are concerned i think we're missing the overarching point and that is very early on he realizes this boat is not worth nearly what it would cost to repair this but ok so he says strauss says it's worth the cost to repair if you are in a five thousand dollars in strauss's opinion remember this is the plaintiff expert we did not hire this man he was hired by by much within a month of the incident he tells munch i think it's worth probably one hundred twenty thousand dollars some strauss nerves immediately this is a construct of total loss why because he says is worth one hundred twenty thousand dollars macof repairs to eighty five so he's like look why do we want to spend a lot of money fine tuning whether it's to seventy five or t ninety five if we know it's only worth one hundred twenty thousand dollars according to strauss so the second i think more significant issue though is the judge refused to let me get that opinion from strauss into evidence and the basis for his denial was to say well it's not in strauss's report and so i'm not going to let you go into that because it's not in strauss's report well there are couple of fundamental issues first one is strauss's not more cats expert it's true after we took his deposition and he disclosed that his opinion on the value of the acquired it was one hundred twenty thousand dollars it's true that at that point we also listed him as an expert to ensure that we had the opportunity to present that evidence at trial but listing him as somebody that we may call is an expert doesn't magically transform him from the person that was retained by the plaintiff to somebody who's retained by market now district courts have wide discretion to control questioning of witnesses and with experts it's commonplace to limit their testimony to the subjects on which they a in the report so what what where precisely you're saying that rule doesn't apply if it's not your expert that you can start asking him about anything about that you absolutely have absolutely say that judge cost and the reasons he says well let me let me explain why a similar case that first i don't have a case or for that proposition but i'll tell you why if you're going to tell me that all you have to do to prevent me from talking to you about adverse testimony or you know bad sax for you well i'm sorry patients health condition that's all relevant and he's a pint on that in his report certainly you can cross examine on anything relevant to the person's health but if you certainly you'd agree if you have a medical expert up there you see you can start talking about  the amount of one of vessels worth well except that they designated him as an expert as a certified marine appraiser that's what they say that's what they sort of fight him as and they are designation he is a certified marine twenty two what's in the content of the report is to avoid surprise and prejudice strauss told mr munch this is my opinion in june of two thousand and eleven strauss testified much told me do not include this in your report i don't want it in my report so respectfully judge costa when somebody tells you i don't like that opinion don't put it in your report i'm going to turn around and pretend that you can't ask somebody that now let me also take in this free trial i presided over there always are these little fights about is it in the report of the beyond the topics of the report every civil case has its endemic lawyers love objective on that stuff and district judges have to draw fine line because you're right you're obviously time to cross examine the person on adverse evidence but what's the standard of reviewing that applies to that to him limiting those questions absolutely thing strauss and since him out to the scene of to do as investigation and provide these opinions the plaintiff himself designated him as a non retained expert that's what the plaintiff designated him so when the plaintiff says i'm going to designate him as a non retained expert under rule twenty such as no report required at all but beyond that in his designation he said he the plaintiffs much said not only will he testify about his report he will also testify about opinions described during his deposition so he the plaintiff identified the scope that he would solicit testimony on what happened did turned around and was soliciting testimony from that witness from his deposition now it here's the fundamental problem this is not my x park i can't go to him and say would you please issue a supplemental report and putting it what your opinion is on the value of this bustle i can't at the please go and say hey my opponent's expert who i took a formal deposition of so i could find out what you have to say about this issue would you please come tell me would you please write a supplemental report i'm not at liberty to go do that so let me just back up there now this judge then not only ok prevented me from soliciting testimony from strauss that the bet was worth only one hundred twenty thousand dollars he then turned around and said in fact you're your handling of the case was so offensive i'm going to cash you in judgment for attorney's fees to the two to close to three hundred thousand dollars now listen you can tell me you think it's harmless error you can tell me you think this is within the discretion of the judge to control but certainly when marquette is going into the handling of this case it's free to think ok they're the only evidence of repair costs two hundred eighty five thousand dollars that's going to place an absolute limit if the judge bites off on cow smith's opinion that this thing is worth somewhere between eight hundred fifty thousand in a million dollars two hundred eighty five thousand dollars is a maximum possible recovery part of where he posed the attorney's fees because the experts you retained i'm your sloppy including relying on a source that they thought was this vessel but was for another concede your expert was looking at the wrong relying on a report for a different he did initially that's true he did correct that however he had the opportunity and did and said it didn't make any difference in his opinion the point i was trying to make is that cause smith's opinion even if you used the lowest value possible lets off more dollar wise than our experts reports were and if you used the higher version of one point five million it's about four times what the judge ultimately found it was to have the plaintiffs and i think it's important well let me start by just telling you that i'll be discussing the damages issue first and then i'll get into straus and then the attorneys fees i think it's important to clarify the nature of markets argument on damages the district court didn't misinterpret and misapply the law of damages the court and the parties all along have always agreed that a total loss results anytime that the property is either under parable or the cost of repairs exceeds the value and that's exactly what the law that the court applied here what it did was it made a finding of fact that the cost of repairs indeed did exceed the value of the property  market isn't making a legal argument here they're challenging factual interpretation by the district court as your honour's know that's reviewed under clear error where the district court is entitled to any plausible view of the evidence as long as the record supports it so in other words back up as to the evidence that supports the court's finding here on valuation and we know under the grid case that the district court is entitle to consider any and all evidence that it deems appropriate to come to a fair valuation of the deisel and in fact in that case which we cited in the brief the court applying a similar formula it was purchase price plus value with improvements so we have evidence in the record here that supports cost certainly yes and in our case we have a purchase price of two hundred thousand dollars and it's important to note that that was just for a barenaked halt we also have testimony that there was two hundred seventeen thousand dollars in equipment or materials that were used to improve the vessel which is supported by other documentary evidence that was admitted without objection and that is an itemized list of all the equipment and the value of each list that that after he paid two hundred k for it and then he added another two hundred plus by way of things to it that that increase the value of the vessel well i think that's a factual determination for the district court i mean certainly the value of all of that equipment the itemized list that was admitted into evidence was as i said specifically in response to mark's question mark at question about the value of that equipment so there is there is a value correlation there and i think the district court was maybe going to have to buy you have to buy that he put two hundred thousand in it to buy it and then he spent more than two hundred thousand or forgotten what that exact amount was to fix it up and that then is somehow value of the vessel before the allision and that's a factual determination within the district court's discretion and that's exactly what happened in greer that was a purchase price plus cost of improvement and that resulted in a value determination by the district court it was up sell upheld by the fifth circuit later on the show was that was that finding specific here in the way that judge king those components in the court was within its power to make a valuation determination based on that evidence as to repair costs it's true that strauss testified that it would cost two hundred eighty five thousand dollars in repair costs but what's also important is that that was with respect to just the whole it didn't include any of the unity of the equipment or materials that were installed to improve vessel most importantly the two volvo engines that alone were worth seventy thousand dollars and in fact the district court found that there was one hundred twenty three thousand dollars worth of equipment in materials installed don't prove this  or that were lost as a result of this accident so when you combined the two eighty five with one hundred twenty three you get over four hundred thousand dollars in repair replacement costs and that's sufficient to sustain the court's finding that this is a constructive total loss so moving on to the strauss argument now i have to say that when i was preparing for the argument based on the briefs it was a little difficult to tell which arguments are still  play and which arguments are now either conceded or abandoned because marquette made two factual arguments as to strauss and why he should be considered a non retained witness they said first we didn't designate him that way and second we didn't hire him and they did that he's provided no legal authority for that proposition but we've pointed out in our answer brief that the record proves based on their designation that they actually did designate him as a retained expert and that rule twenty six doesn't turn on who hired and paid him and in the reply brief we got no response to those arguments at all but more importantly those the factual basis for those arguments isn't even correct we know that they argue in their brief that this was munches expert and they only called him at trial under cross examination and we also know that they they did indeed designate him as a retained expert but at trial markets counsel clarified this is a page four forty four that will tender him as an expert in the field of marine surveying and appraisal and then he'll cross them on the experience and so forth during his cross examination so the only two factual basis from our kids are aren't even accurate and i'll just touch for a minute on the attorney's fees and all along from the inception inception of this case market consider this to be a total construct of last case and they needed to to because of that that fair market value is going to be at the heart of the case and the district court found that the fair market value of it and the market put forth was so lacking in any factual or rational basis as to be offensive to the court the court used the word offensive which i personally don't see very often offensive to the court and offensive to the parties as judge tossed a pointed out that referred to the wrong vessel the wrong dimensions the wrong type of vessel and they also hired these two experts to opine on valuation and they never gave them any information about the perfect purchase price gave them no photographs of the vessel before the illusion to make that determination to terminations the experts also didn't do any research to support their decision i think bright testified that he simply just came up with it but these were all matters that were clear on the face of the reports throughout the entire litigation in the court found that to have no basis in rational thought or fact and therefore found  those references and then when we thought a motion for a new trial in pointed out that that was improper for him to consider the settlement positions of ordinance the court basically wrote the same opinion but just deleted that one reference there's really no other finding that supports a finding of quote unquote bad say but let me just tell you this that the argument was that we litigated this to the point of the plaintiff's insolvency and what i think is interesting on that point is as i told you i asked two questions and i have to few more but what's the cost to repair what's the value of your bet i don't know i don't know that we don't get an answer to what the value of the boat was until two full years after the accident ok not he doesn't even tell us until june of two thirteen june of two thousand and thirteen on the eve of his expert designation deadline now i took one deposition in this case i took the deposition of larry strauss and the reason i took the deposition of larry stresses because i'm new strauss was not going to support the opinions provided by cal smith the litigation support expert in and course he did not he said no what's more the hundred  twenty thousand dollars i told him as much and then we went through chapter and verse with all of the different boats that smith listed in his report and we said look at these comparable to the quad and he goes no are these comparable the quad and he says no and he does it over and over and over again so what we did with strauss was to demonstrate that the other expert plaintiffs other experts could not be relied upon to be to be accurate and say what you have then is you had a cap somewhere between our exports opinions of fifty thousand dollars and strauss his opinion of one hundred fifty thousand dollars where the case should resolve and we tried to do that we invited claims to go to a summit conference and they refused to do that and so what's interesting is they're telling us that we litigate the case in bad faith when in fact even knowing that there were a pair cost us two hundred eighty five thousand dollars their last demand to us was six hundred seventy five thousand dollars so the maximun really had two attorneys fees  in the revised order which didn't include the some of the stuff you're talking about the judge first of all cited this business with the experts you've already talked about but then he said you contested liability even though you had no good faith basis for doing so was it was  place ok so he went forward a thousand feet allow the river to push him back down that's all traffic ordered him to stop he repeats this for about an hour successfully only obviously the last time because the time it happened he goes up just slightly farther than he had beforehand he catches it and it pushes his whole barge towards the bank where the act it happened he doesn't he first see these patients is like he sees it for the first time what he does is he boat in the protective position where it put it on its own but see it put it out the word furthest out so that if there isn't a lation it's going to be hit versus if you have a steel barge we could have had a steel barge all day long and done little or no damage versus you put a fiberglass boat on the outside like base and did and you had to crunch it and the district court agreed with us when it denied summary judgment for basin so certainly there's a good faith basis but let me point out we didn't sue base  issues judge cost if we were sued for putative damages ok i certainly don't think that you would expect me to stipulate to liability when i've been sued for peanut of damages we were also sued for loss of business revenue even though this boat had never operated under its own motive power never heard any money i see my time is gone but that's that's my answer for your question all right thank you and i do apologize