thank you may it please the court andrew kinsler here on behalf of dr martin i did like to reserve three minutes for rebuttal seven minutes for the argument obviously this case is lumbered versus t s i and it's perhaps comes before this court on a somewhat unusual posture because neither of the parties is here on appeal it's my client dr martin an expert witness in the case who is challenging a sanction that was issued against him in asking to have his good name returned to him dr martin is challenging the finding by the trial court that he committed something that was tantamount to bad faith or expert misconduct the issue presented is whether an expert who testifies as to his own opinions and conclusions must disclose in his report that another person provided the expert with some publicly available information that was fully disclosed to the publicly available information was fully disclosed by the expert in his report  you could zero in on the portion of your client's testimony that caused i guess essentially set off the alarm bells for the district court right because it was his i think it was on cross examination he said something in reference to another expert type person oh yes and on this particular case i consulted with that person and i think that's what triggered concern on the disk records part so maybe you can zero in on that absolutely welcome that opportunity it's in the evidence record at pages sixty seven sixty eight transcript page sixty three and sixty four dr martin was asked about whether he had designed a wet electrostatic precipitator i think i'll just call it a product from now on whether he had designed the product since two thousand and ten and he said no he hadn't designed participated in designing such a products and to thousand and ten and then he was asked another question about it and he gave an answer and then he was asked the following question and that was before two thousand and ten correct and then he he's he's sworn to tell the truth the whole truth and nothing but the truth in answering questions and so he's now being asked on cross examination a question about the design of the product which he did not testify to on direct on direct his testimony was limited to the trade secret issues in other words was that where the trade secrets claimed by  lundberg secrets or were they publicly available information and he went through and disk and described a number of patents that were expired the and therefore become publicly available information these expired patents that demonstrate all of the elements that were claimed as trade secrets so he he testified in his direct testimony about those that publicly available information but now on cross he's being asked about design and what information what exposure he's had to design and so he was asked whether his design experience was before two thousand and ten and he said i have to correct my earlier statement swear to tell the truth the whole truth and nothing but the truth i need to correct my earlier statement i've continued to be in contact in fact i consulted with that individual on this case as well an individual who has direct experience on designing the product and it was prior to his report so he said i consulted with that individual on this case well ok but just so stopping there i mean you can understand why the district court might have had some concern because he said the court the judge says look i got the report here and i don't see any reference to that consultation and then he was questioned in detail on this issue by the court and he said the that person didn't do any calculations didn't provide him with any information nobody did that he said he didn't think it was important enough to rise to the level of an expert giving me his opinion and me testifying as though it were mine in other words he's given a report that's limited to the publicly available information about the design and then on cross he's asked about something that was not in his report that was not part of his opinions that he had not considered in giving his opinions and he testified honestly about something that had occurred and what he testified in he didn't testify but when he was questioned by the trial court he said yeah i talked to him about a sharp edge standing to appeal this striking what's your authority for that well dr martin has testimony has standing to not to attack the striking of the testimony but the sanction that was put against him the finding that he acted in that he conducted he his conduct consisted of misconduct or bad faith he was told that he would have to if he was told this is the death knell for your career as an expert witness and then he was told that he would have to report that going forward now the court vacated that portion but then said however to the extent that your professional ethics require you to do is to disclose that you still have to and he believes his ethics require him to still disclose that so he believes under his ethical rules that he is under an obligation to disclose this and he has lost his career as an expert witness which and lost his good name which i believe gives him standing to to then attack that ruling by the trial where you go how do you get around this court's holding that reputational harm does not confer standing what other injury has dr martin suffered as a result of the guess the court striking his system or any well the injury that he suffered is the injury of of being required in the future due to his ethical standards to disclose this finding and i think if we look at the trial court's ruling on the motions from windsor is if a finding that you're referring to it what words were used by the district judge initially the district judge as the initial ok he said to the extent required by your professional responsibilities you make you will still have to disclose this disclose w transcript the fact that there was the disagreement with you know they had a disagreement in terms of the materiality of his testimony your client was hired three days before the expert report was due correct and  the district judge made a finding of bad faith but right upon omissions in something that was prepared in a during a three day interval correct correct i don't understand the materiality of the alleged omission of the particular expert or person that he talked to concerning the sharp corners because to me if you do something that you should have you don't disclose something you should have you want to know how important it was so was it material no ok why it was because it was not part of his opinions so it was not material under rule twenty six a to b it was not his opinions the basis for them and it was not part of the facts or data considered informing them so it was not material and yet the trial court when we explained this in detail in our motion for reconsideration the trial court accepted that dr martin listed all of the materials and performed his own review and analysis of those sources and yet said the a mission of the sub contractors constitutes conduct tantamount to bad faith and so ordered on the motion for reconsideration and that is i think if we look at rule to point to court ever make a finding that connected the omission with materiality it's bad faith because this was significantly important enough that it had to have been disclosed was that connection ever made i don't believe so but the finding was still made that my client committed conduct tantamount to bad faith which i believe is unsupported by the record as you want a question of research down that will give you a couple minutes for bank on the standing question your client was also ordered i think to repay the fees that he had earned does he do that in fact happened yes that it ok so if we were to overturn the district judge's ruling i suppose that there might be some prospect that he could dr martin is is that yes ok thank you all right let's hear from the other side good morning may please the court my name is tiffany scott connors and i represent appellate on burg the issue before the court today is did the district court abuse its discretion in personally sanctioning dr martin the court does not have to address the striking of dr martens testimony i will discuss that today and i will also address the materiality of dr martin's reliance on another expert to ask you one plymouth very question if we were to conclude that we don't need to as you just said worry about the striking of the testimony that that issue is sort of off the table at this point then you don't really have any reason to be here right you could care less i assume whether the sanction stands is th protecting the integrity of its trial record so yes our limited interest here is in the striking of testimony all that we're here to do today is to support to drop parts decision to exclude the testimony under the federal rules of appellate procedure standard also provide some instruction here i think because that says apart nonparty although we're a party it's an unusual context may appear when they have an interest in the appeal which we do again protecting the record or you don't if that's what i was just asking if we because i don't frankly see how we could touch the exclusion of the testimony of the party who was harmed by that is not here has an appeal the judgment become final as i understand it's been paid so there's no unraveling of the final judgment but i think we could we could order and if that's the if that's true i don't know what my colleagues think about that then you really don't have any interest in being here right for luminary we agree with your assessment that the striking is not at issue direct i don't know how it could be that's then then i can sit down i'm also happy to provide if you're here you like to hear from you i just want to get that straight that's the sole extent of your interest in being here is to make sure that we don't say something about the testimony shouldn't have been excluded that's exactly correct but that's your with regard to the cop your question about the context and the materiality i think that's a crucial point here is to understand the context of dr martens testimony and how judge o'barr characterized it the reliance on this other expert was material on direct examination dr martin said i went to the patent literature myself and i examine the patents and then he proceeded to walk the jury through all of these patents that he said were relevant to lundberg my client's trade secrets and then on the first question on cross examination was essentially which is essentially asking him well you haven't really worked with this technology have you he said i have done so but only through my consultation with my colleague so it's a little bit like a sword and a shield right it's a question tim he said i understand the dilemma here it's of the nature of another engineer working as my report so it was me asking him to do work as if he were my report again not to us is material rather than clerical or administrative and so i didn't really answer the question of materiality you just sort of stated that you think it's material but it's not unusual for experts to consult treatises to talk to people they can do a lot lot of things the question is really was the bad faith and was there omission that rose to the level of you know misrepresentation and i just i'm having trouble understanding the connection in the abstract right i think the issue for judge robert was he said you know we don't know whether any of this is reliable now because what he said was at this point i have no idea how accurate this is or isn't because he doesn't bother to tell us how it was developed and so it was the context of this consultant this  technology is important right dr martin says well this expert was an expert in electrostatics i didn't talk about electrostatics at trial but the trial was about protecting trade secrets in a what electrostatic precipitat spend dr martin was the technical expert on that technical subject so it was the foundational theory behind the technology itself and when you know when judge robert was talking about that he says it's taking information and then not well that's that's the problem i agree with you we don't know what conversations took place and so it gets this threshold issue of reliability in the in the trial court did not get into details about making that nexus correct that's i don't believe that that necessarily opens the door to interpret in the bounds of rule twenty six eight to be two which is a very specific ingreat that dr martin has redirected the court to now judge robert didn't get into specifically that portion of the rule i think the overall point was whether you want to say that this was an opinion or the basis and reasons for the opinion or the facts and data considered it's somewhere in this broad duty to disclose and that was what bothered the district court duty to disclose beyond what rule twenty six explicitly provides right there's no some other source no it's yeah so ok so i don't understand how could how could the judge make especially how could a judge make a finding of bad faith on dr martin's part if we didn't first figure out what is the rule required to be disclosed i think part of that was going to rule twenty six and saying no matter what kind of semantics you want to sort of play to say what's an opinion or it's a fact it's it's somewhere captured in rule twenty six in the broad disclosure requirement but also the motion in limine a order which judge  mentioned several times and the motion in limine order was that if it was not in dr martin's report he was not to testify to it that was right i can remember was this your witness on cross it was not because the colleagues yeah it's your opponent you're correct in saying that actually the thing that he was asked about on cross examination that caused alarm bells to go off in the judge's mind that wasn't even part of his testimony is that accurate i don't think that that is accurate this was the first question on cross examination the first question was the first thing i wanted to ask you about is your experience with what electrostatic precipitators and that was the technology at issue whether lundber trade secrets and that and he said isn't it true that your prior experience with what electrostatic precipitators was to consult as to a fire or an explosion in other words in a different context separate them what is this trial is about and in response to maarten went to the patent literature on what electrostatic precipitators as this expert in electrostatics and pulled the patents that he thought were relevant and what dr martin says is some of them i found helpful and some of them i didn't but he did the research for me through those patents that were identified and explained to you by somebody else by someone who the expert himself says well he's really the expert in electrostatics yes i do believe that  that twenty six eight to be requires this is there any case out there that supports your view again limited to these facts i can't point you to one case that goes one way or the other what i what i think so judge i mean rule twenty six is meant to provide disclosure disclosure is meant to be broad disclosure is meant to prevent exactly what happened here but to surprise a trial  and under the guidance from rule thirty seven and if you didn't disclose it you can't use that right so sticking to the instruction of the law and that's what that's where we are today again we're only here on the striking of the testimony which i'm happy to hear that the court does not believe is it issue on the bounds of rule twenty six we also don't think the judge robot committed in a piece of discretion there but we take no position as to the personal by the court and well examined i would just like to respond to some of the colloquy that just occurred in i think we're just in wishing between the discussions that the judge had with dr martin at trial and then the motion for reconsideration when when judge roll bart had time to read an exhaustive declaration and he said that dr martin has has comprehensively explained his actions and decisions then goes on to say dr martin listed all of the materials in his report and performed his own review and analysis of those sources that's the finding we have from the trial court with respect to what dr martin did and there's just when you read rule twenty six a to b i just don't see that there was any more that dr martin needed to disclose with respect to his opinions and that his report did not constitute misconduct or bad it was posed or he testified correct and could have been asked questions about did you talk to anyone that certainly was fair game theirs and theirs and that did not happen in other words they didn't ask him those questions and that's not