front end or the back end of the judgment the judgment on the plate and should not be permitted to stand in the face of a readily curable the third the only complaint the fissions the supporting the judgment on the plate i if you want to personal explanation there was a mediation sco don't cyber the parties were engaged in heavily discovery exchanges there were thousands of documents being exchanged  their papers and then talk they protect themselves against running of statutes of limitations and so forth by filing their papers and then proceed to discuss th consideration with addressing some of the material elements of how that was going to be applied in the tort context no but it was it was a record decision that until all were turned w relevant in the the court as i understand it even took into account the fact that this didn't become a record decision with general circulation until about october  thousand and nine and commented that nonetheless there was another four months to file this motion to amend the scheduling order for the date on the decisions july that's two different issues the standard in the sixth circuit for doing something beyond the scheduling order that it could not reasonably present it be presented before the scheduling order if there is a motion for ending the mandate has not issued the decision has not become final to be acted upon if it has not become final to be acted upon is not something you would make a motion not because it's subject to change the sixth circuit itself  not confirm their ruling on worth until october twenty ninth after the motion for reconsideration was the nine on september thirtieth therefore we're talking about this four month period after something to overcome any and expressed finding that you were not diligent well that's one of talking about we have already met the standard required by the rule sixteen in the in the comments comments and is followed by the  time the scheduling order deadline is not a factor because it could not have been reasonably presented within that timeframe so we're not talking about the four months after we've already met the standard for good clubs so we're not taking  mostly why should we why it should be overturned that this is just that's not a system we overturn that decision because it's not an exercise of discretion it's an arbitrary terminations that four months is too long there's no on the objections the discovery a closed because that time yes we're talking about a court process that took an up time to reach that point where the duchess wore at this point now that it's july or august it's now i have to change the scheduling order but were them when the motion was pending and the prejudice was an issue in february march there was no prejudice acted upon and not been rejected because of the time interval but just been accepted because there were good grounds the the decision would have been made the parties would have been added and there was plenty of discovery time to address within plaintiff's control that's not applied to this factor that should be considered the point of this four month period is that it's an arbitrary number there was no reason at the time the four month period was addressed by the magistrate judge that it should have been factored in there there was no reason in the case that in the fact the case of all their point when you're talking about exercising discretion you're when you're talking about a judge balancing some factors here personal factors the balance the judge just decided that i didn't like for months with the judge to point three months with a judge of what two months i mean there's no rhyme or reason why this was explain why if purportedly needed four months to discover analyze and act on the worst decision and it goes on to say based on the record there is no evidence that played have demonstrated not i can't tell you where it is at this point in one of the reply grease there was a discussion of factors of the pending mediation and the exchange of discovery at the time that the parties were progressing towards trial that was put before the judge but that the rule contemplates that the judge is going to define diligence the rule does not contain any kind of a guideline as to whether it's six months or two months this is based on a finding of the judge the judge has made the finding here on what basis do we reject first off the four months of the late without any other reason case that a party movie to amend under fifteen thirty two necessary parties that were omitted because of a mistake in identifying the proper that's all that the court that it was just the sports idea that it doesn't affect the discovery it doesn't affect my trial plan it doesn't affect my case progression i just felt like for months that's not an exercise of discretion well he did there was no prejudice because i met a straight judge says well i'm going to think that there might be prejudice because of the deferred that might have had not at the filed a motion for judgment of the please even the district judge didn't buy that so when you're secondary consideration but we do think their signature got to be prejudiced doesn't there it's a it's a factor and sixteen your honor yes yes and where is it i mean that the discovery remained openly that even after the four month delay or seven month delay whatever it was you still had another four months to go ahead with discovery depose everybody what's what's the prejudice here by this point in the proceedings there had been depositions of labor and you have four months to go back in and ask him one more question that's what it amounts to ask him two more questions and you have to start over he just had to ask another question or two respectfully i think we would have had to start over with experts the parties by this time had gauged experts  yad well you had four months to do it can you do it in four months realistically perhaps i mean and i say that generally perhaps but we would have the i mean that is i'm afraid if i were your district judge and i gave you four months it wouldn't be perhaps would  would do it at significant cost and possibility to do it to the party like it's hard for me to sit here and you know this is hard to explain i understand that if you name the people you want of you're going to have to take depositions about what their particular input was to th particular opinions that are at issue what's the expert testimony here would change be driven by this all of the expert testimony today and all the expert reports at that point had never addressed and somewhat ironically even to this day plaintiffs appellants have never supplied an expert report that said stanley jeff stanley was it was negligent because he did this eric gein was negligent because he did this wessling was negligent because he did this that process would have had to start over  would have had to get a whole new expert or at least a whole new expert opinion and then issue a report to us the whole new expert disclosure report they would have had been generated by the court and then they diverted to suggest families negligent because of this reason aircon for this reason reason it was a like for this reason and then my experts my talk worth this is worth the same questions the kind of questions that were asked already and the only question remaining is ok with respect to the negligence  affiliate to do this that or the other that was discussed before which of the named parties was responsible for that sure i mean you're right that the issues are related your honor i'm not sitting here saying these are totally unrelated but it is a significant difference in our next  little more than just related that's the role stems from the same it's one question isn't it is there vicarious liability yes or no what's your opinion now i respectfully i think that the issue would have been ok mr expert you've generally opined that you think the one thirty one patent should have come out the analysis should have been different on the one patent for example ok tell us was westphalian negligent in that opinion was named people in the complaint whose actions you were alleging made the law group so i can understand feel needed he would need additional information by each of them to determine what their particular role necessarily was but i'm having a hard time thinking what goes beyond that it would be pretty quick you would need expert reports to determine who which of those attorneys was liable and when at that point all of the expert testimony i should say expert reports because expert depositions and up and take but the expert reports at that point had not even touched the issue of the individual liability and actions of any particular attorney and  significant for for other reasons because one of the reasons this is significant is because the person who was the primary attorney that was involved in the underlying actions was also still a nonpartisan and was never even asked to be brought into the amended complaint which is west salem now i appreciate with that is it do you agree with mr stiles comments with respect to the timing if i understood him correctly when they filed this in february if the judge had decided at the same day as opposed to three or four months down the road that all of the pred all that all of the prejudice that the district court judge used when he ultimately decided this question happened between the time the motion was filed and the time of his his decision no i don't for to ask about that i asked about just what happened factually what happened if there was discovery preceding the voyage and that line if that's the prejudice he meant or when he talked about the prejudice to the pardons with regard to expert reports yet at that that was recollection is the depositions and i believe plaintiff's expert reports were generated prior to the motion to file the amended complaint but i'm going by memory so i i apologize if that's the best of my recollection i think what happened was we were we were doing depositions up to the february date but don't hold me to that your honor because i'm going by memory on the dates of the depositions one of the things i'd like to point out to the court and because we constantly talk about this four month time window and that is really putting this case giving every single benefit of the doubt to the appellant in this case the worth the situation was a published decision in the southern district of ohio at the trial court level in july of two thousand and seven we have always maintained and maintained at the trial court level and maintained here that this four month window is a little bit well it's certainly giving them every benefit of the doubt they filed this case in the southern district of ohio back in two thousand and seven the southern district of ohio was on record saying under ohio law you must name the individual attorneys so this idea that this was just a four month time window in our in our view is really giving every stretching decision ultimately came down to the no your honor now we found it in response to their motion to amend the complaint i mean i guess like getting into a little bit of a feel maybe of what the court's considering but our view of it at the time was as the court knows we found a motion for a martin hearing our view was we were going to go in with a motion for summary judgment and raise the the procedural aspects of the case which were raised under work as well as what we felt the court's ruling on prejudice the statement is that any amendment at this state would impact legal theories and defenses and would necessitate further extensions of discovery and expert deadlines and i am i see nothing beyond that simply those conclusory statements is there anything else and i'm missing  i think that's probably it your honor i think it's probably the idea that the case schedule would be pretty obviously there's nobody there isn't it a little a little bit odd that there was no consideration of the extent to which there might be additional discovery needed or the extent to which there might be additional expert testimony given the nature of this case i think judge frost decision your honor is clearly within his discretion he doesn't make i think what could be considered a clearly erroneous decision of fact he doesn't miss apply the law there's i think no factual dispute here that the expert reports and discovery would have changed the case schedule would have changed i did it it  may have been in this case that all of the depositions that were taken addressed all of the actual facts as to what went on and the only thing that would be needed was a nother day of depositions just to say ok what did you do and what did you do and what did you do this isn't a very difficult case they advise there was no infringement and there wasn't friendship what what  become complexity of this well respectfully honor we feel very strongly there was no infringement just the one thirty one patent we believe strongly was not infringed but but the the difficulty would point there is that's part of our point is that the expert i'm starting to wonder of if you were as diligent as well i mean these are the elemental issues you at discovery for some time well we knew the facts your honor about that case in terms of who did what and who did what search and what time those facts were discovered and they they but in terms of an expert opinion saying for example just family has a duty to do such and such search to come up with the four thirty eight or whether west sailing and why they had to do it is an entirely different issue than just a generalized expert report saying i think those design patterns should have been found you know well ok mr expert who should have found out when why which attorney where did that duty come from for that individual attorney it's a game changer and which is really why the worst decision is what it is and because it doesn't change the game dramatically for lawyers and doctors when when attorneys who are suing the lawyers and doctors can't just say hospital was negligent i think the disease should have been found her lawyer was negligent i think the pattern should be found but what is that is that we need the same you saying to the firm you know did you have a duty to do this that or the other or you know was the search that your firm conducted it sufficient did you overlook something  opinion negligent in any respect and all of those questions would it then simply be followed up with a question of ok what what role did you play into in writing that report in conducting th stanley law group was negligent because this opinion wasn't found and then for an expert to say well i think was on this in this date based upon this in this communication with the client should have done this in the search i do i feel it's incredibly significant changes changes legal malpractise and doctor malpractise and insert any other kind of malpractise case you want i think it changes the game dramatically which is why on my side of the fence i always see these generalized allegations and why i think the last supreme court got candidly kind of tired because it does change the game dramatically to say you were negligent on this day as opposed to corporate law firm or corporate hospital as well you don't have to say to a law firm a law firm was negligent that has to be established the liability of the agent has to be established and we would have had do it done started over i should say started over i recognize discovery but we've had to redo discovery and redo experts to establish the liability of what i'm what i'm getting at is is that before the law changed when it when the suit was originally filed against the law for weren't you asking  did you do this on this date did you fail to do this on that date did you fail to look at this that and the other all the specific questions you just mentioned with respect to the individuals or those the same questions that you were directing toward the for sure i had attorney client communications on those issues of course i did but i wasn't putting together plaintiff's case for them in writing their expert reports i mean were there a burden of proof so of course was i having with your adversary so you're right that was not your bird that's a point i'm trying to make his it seems to me in corey's would have been made there in discovery against the firm as would be made against the individuals of necessity simply because that's what discovery is all about you're discovering facts who did walk where when and so the question is and again what additional complexity what will discovery would have would have resulted from the naming of the individual the additional discovery would have been one generating new completely new expert reports for all the parties that did not touch that issue and then frankly having the parties probably having to discuss what their experts well now that we have to establish the liability of just stanley individually or wes a leg where guyon but the duties of the firm would have been different than the duties of each individual member i can't see how they expert opinions going to very much i respectfully i think it would because it's not a question of of just saying so and so law the district judge could well look at this and say they're accusing their attorney of malpractise because he said there was no infringement and yet they abandoned his position by settling so how could there be malpractise in this case when you didn't even really follow your attorney's advice you didn't pursue this to find out if there wasn't a frenchman in the underlying case i know that's outside the record but if i were the district judge i'd be asking those questions that might influence my diligence and prejudiced findings i'm prepared to address that you're not going to get at least i can't do it in forty one seconds go ahead  patents are not infringed therefore the issue on the malpractise case is whether or not the patents are printed this is a clearance letter this is an opinion letter we find out you settle well i'm saying we can't so i don't because the clearance opinion is addressing the pre filing pre litigation status gives us an opinion of the our product as to soon as you didn't even find out if it in french or not and you're accusing them of malpractise for saying it did well the standard is not whether in france the standard is whether or not they placed us in a position of unreasonably exposed to be an infringer or has the i have your answer on that i'll give you a couple seconds to address anything else because i interrupted you right just in terms of defense expert just said there were no infringement at the new address any of the individual parties the depositions of the experts were in june or july as i said that would have been addressed absolutely discovery of the parties took place which was in may or plaintiff and defendants with the post newly questions in the depositions who did what when all of the issues were addressed there was nothing the and the after then the depositions would have been available for the experts that further  assess when their depositions were taken there was no additional steps to be taken in this case required because of a motion to amend by adding the parties in the visually i think it's a red herring the and it comes back to the judgment on the pleading on the general engagement agreement insult because we're talking about three attorneys that are doing different things i'm known to the plaintiff it's not played as burden to determine who was negligent in what particular respect finally