please i'm sorry the first set of claims would be the last business damage damages claim and i think the second would be the ongoing property damage claims and so i'd like to address those one at a time starting with status of the development right now it's it's ended it it ended at that time ok and i'm looking at a photo from the record yes the overview of the plot of it's at least several decades old because it's family property and he recalls using that even as a kid i'm not sure if it was initially artificial at the time well but it's not scuse me but it's not spring fed and it does not have some external source of new water coming into it but it does from the fairway drains into the pond and some of the pond water drains out the other side of the pond in towards creek and that rainwater storm water that comes in via the fairway view includes rainwater both from the fairway apartments and also from a golf course that's the only source of water going mean let me tell you what my problem here is i thought that in order to have a real fish pond you had to have some way to airy the the water so that there was an oxygen supply coming in otherwise the whole thing gets covered in algae and that kills the animals underneath so you know because your client alleges that in december of two thousand and twelve it was clear and there were big fish and i was just wondering how they how they how the big fish managed to survive in a pond that had no other oxygen thor's believe that it was the opposite that it had been a healthy fish f and it had been used for fishing previously and that when he discovered in in december two thousand and nine that he discovered that the pond was dead smelled and it looked it was was his discovery there and that was confirmed by the sampling taken at the time t two thousand and two i'm sorry two thousand and twelve and mr winter talks about it right around two nine four zero and two nine five zero it's attached to  know mr winter he testified he went out and he got this report done by sidney marlboro whose presence in the litigation has not been a challenge for trial and when would he receive this report this is long before mr sherman was hired because it was long before the more at least once a month before the litigation got going to dishing to speak to the one other point you mention about where that development project was at that property cannot be put back into commerce until this contamination issue is address and so while it's not that particular project that would probably happen it would be something different but it cannot be put back in unaided now as we sit here today it is that you also didn't did you brief the issue on the remediation amused you had a remediation claim we did and there's a little bit of a blurring of remediation restoration and under the civil code provisions we are entitled to restoration and there is long as there are contaminants that the defendant has discharge on tar property remediation is more suggestive of state standards under the state environmental regulatory so the project is dead and you seek monetary damages for that yes but you also seek either mediation to to get the pond back into a suitable condition where the property and there is always fecal coliform and that's treated water and but the e p a has standards for it and so the level is always but bull below the e p a standard now at what point and for how long if i had all did your water testing exceed it you're saying are you saying that your state standard is irrelevant to your claim  development deal to collapse because that was that discovery in two thousand and twelve right now that in it's not an indication of treated sanitary waste water in this instance it was untreated and it's really a count of he said that people cull form in heavy metals have come from the fairway of the ditch into the cedar lodgepole and that's at twenty eight twenty eight that sewage and other solid waste including solids condoms tampons and various products remains despite the die off feel coliform and that  presumably there's no the fecal coliform are all dead and you and when you're saying a restoration your claim is that they have to dredge the pond is that what you're saying we're saying that there are restoration they will have to deal water the pond and they will have to address the switch contamination that settled into the pond but there are allegations also there continues to be discharge is not strongly corroborated by the evidence of not going to be fishing for the fish and eating fish and we think that they should not be allowed to contaminate our our pond to the point of us not being able to use it for fishing but the heavy metals are an indication of raw sewage contamination and  because you use household but if the fecal coliform are well below then the heavy metals are not an indication of frost right and we think that the people come call form is periodic leap spikes higher than that there's nothing to indicate that it's not a very but this is a very factually intent case with a very long record if so at this point is it fair to say that you're up here solely on restoration and lost business opportunity and there's also  sort of a separate claim there and that's really been the nuisance claim and that's because we seek an injunction to force them to fix the problem with a restoration is a remedy not a claim that yeah it's no restoration is a remedy that we we should get from negligence and i do you do with the fact that the judge said first of all i did i thought he indicated some doubt as to whether louisiana law even has a nuisance claim and then he said it's basically the same as negligent and i have i have rejected you negligence claim why doesn't nuisance implicitly go along with that are nuisance claims space under articles six six seven three six six nine of the civil code they're slightly different but they are substantially overlapping i think he said that they substantially overlap and they do but they don't require that it be currently contaminated otherwise we would have to launch a lawsuit and complete it within the time that  that terri dies off which is days or a couple of weeks what do the latest findings show i mean there the latest findings are not in the records and the latest findings that are in the record are in march two thousand and fifteen  they found eleven of seventeen heavy metal and people call a form constituents and in ten of the there were eight different locations that they sampled in ten of the eleven they found those highest at the spot right by where the fair by mr winter after he walked the property smelled and saw what was happening and he came out he sampled the pond in two places both at the fairway viewed it and sort of more towards the center of the pond and that's when they discovered how bad this problem  metals that you would find in household cleaners and things like that and our experts have battled over the background and what's normal for a background of what you find in other lakes in the area what they ate they sample for both people called home  just wondered i think it would also be a violation of the servitude of drain laws because you're not allowed to construct something that obstructs the natural flow of drainage let me go back so you you're not paying you've got the nuisance claim with you acknowledges stanch really the same and we just have to look at the record i suppose for what evidence if any you have that different because i'm not quite clear on that business opportunity what you know you have the testimony of your client and then on the rehearing opinion judge jackson land pretty i thought carefully whether it was comprehensive can't say but it was carefully through deposition testimony and documents and said well it was actually your client who for when the opportunity to negotiate further because this other harbors parkers there's actually contradictory testimony of harvest partners about causation there but there can be more than one me who is contradictory testimony that would be the testimony of harvest partners in three places the first actually is an email in which they said that the contamination was quote due to the content that the problem was due to the contamination issue testimony was was that well we got ready to go and there was an environmental issue and we had to stop and then all of that but again i mean if i did harvest offered to engage in the remediation process for the prop for the for the pond no they just generally said they were willing to move forward and importantly there is that the timing of this and i think that the the general analogy that i made in the brief is very simpler if you have a boyfriend girlfriend and a boyfriend cheats on the girlfriend and she breaks off communications with him then we really say that a reasonable jury could only find that the sole cause of the relationships collapse was the breaking off of communication no there's reasons behind that there are competing causes and really his cheating would have been competing cause and it's it's well but this is that kind of that thrilling that said that's a that's a adversarial relationship and this is not an adversarial relationship when you're talking about harvest being willing to move forward harvesters willing to move forward but mr winter has to make his own business decisions here and his own business decision he lives in the community he wanted to live in the community and keep a lawsuit on for nine years right can you imagine the headlines if you build a retirement community project here that the the assisted living inside on appears to be about one ten to fifteen percent of the size of the entire project and it's not as close to that pond it's there's a bridge that goes over the punk even if it's a tourist spot it would be a negative if the pond stain that well there's a an assisted living but there's also a retirement center and there's also the commercial this project or was he just selling the product though he's a participant of it and he's he's got a business guy david wall stutterer whom also testified and has the letters showing that he was going to this goes to causation was going to fare way in trying to get them to address the problem in late december two thousand and twelve look at the evidence of context here is strong corroborating evidence that a jury ought to be able to weigh we're talking about m s j on causation i know your time is out let me ask you how critical to your opposition to this summary judgment is the expert testimony because we have the summary judgment rulings and we also have the act rulings by the district judge how much do you rely on the expert to combat and defeat the summary judgment for the last business damages claim that the expert testimony is is not relevant because what we have are is evidence that sort of isolated there in summer two thousand and twelve with the with the sole piece of evidence from any sort of the expert would be the environmental guide that he hired city moreover would come out in his testimony is not the challenge it's the restoration claims where we get into the property damage but we granted summary judgment and smith's the lodge's claims because cedar lodge had absolutely no evidence no evidence at all that it suffered any damages as a result of the alleged contamination of its property i think the point to start and this picks up on the questions  and human waste and that's not true our expert provided testimony through his deposition and also his report that there are other sources of fecal coliform including animals and in fact council referred to a case that they cited in the reply brief united states versus massachusetts water resources already which makes this very point that it actually makes two points that are relevant to this case the first is the court says that fecal coliform is a poor indicator or marker of fecal contamination and secondly it says that in that case the elevated levels the spikes in fecal coliform in the reservoir that was at issue were caused by gulls by purge that were nesting around the pond around the reservoir in that case are going through the ditch you're out of that that yes that that testimony occurs and i think twenty sixteen it's well after the two thousand and twelve date and it's after the last testing that was done on the property that the last testing that was done was done by cedar lodges expert mr sharma that was done in march twenty fifteen and what mr sharma did was he took seven samples of sediment from the pond from the the side of the pond in the bottom of the pond and also one water sample and he that exceeded any absolute bull state standards and the ones that mr sharma had invoked in his is expert report and then he supposedly maintained at least up until the time that we deposed him where the recap standards the screening standards that have been promulgated by the recent apartment in primal equality the pickle col form level at that time in march twenty fifteen was less than five colonies pr hundred mil so if the allegation is that in twenty twelve it was a twenty four hundred it was down below five colonies in two thousand and fifteen and that's the last testing that was done our expert did not test upon there was no reason to because the most recent testing showed that it wasn't contaminated mr sharma also conceded something else both in his deposition and daub or testimony and that is that all these things he was testing for fecal coliform the heavy metals they all appear in also  told mr winter that i've done this testing and my test results show that there's no level of heavy metals in the pond sediment that exceeds the state recap standards  conceded that up until the time we deposed him and we deposed to me all of a sudden shifted and said well i made a mistake i shouldn't compare the levels that i found in my testing to state recap standards i should have compared them to the s t c lp standards the problem with that is that first of all he was wrong on what standards should be applied but he hadn't even done the testing under t c l pay to go offer any opinions and that's why judge jackson when you consider that testimony that it held that mr sharma should not be allowed to testify regarding the t c l peel him it's because anything he would say about that standard would be misleading because he hadn't done the testing  caused by whatever type of a fluid flowed from that there would be property to the cedar lodge property that was the basis for our summary judgment but even if see a lodge is correct that there is some discharge from fairway view on to see relief cedar has to prove some damage and in this case it did not prove any damage as as kelso suggested there is a natural drainage onto the property it doesn't  drain from from fairway to the drains from everything west of us as well one of the things that our expert did was he tested the runoff from a golf course which is on the other side of the fairway the property so further to the to the west  and he found elevated levels of fecal coliform coming off the golf course did the day he tested it was one hundred counties per hundred mil so there is there cannot allow a landowner in the position of cedar lodge to you know prevent the water from flowing through that ditch on his property you know i don't believe there is a categorical prohibition against that one of the things that i don't want to get you off on a rabbit trail at a business opportunity you're saying the only evidence in support of lost business opportunities mr winters testimony and judge jackson lined up you know e mails and so on from and mr jacoby says that those are not consistent and they are not probative but what do you respond to your first well i don't think the mr witter is testimony supports the business loss claim just that in a minute but i also disagree that the harvest partners testimony is contradictory harvest partners testimony came in through the testimony of its principal the corporate presented mr barnett and we asked mr barnett what the impact was of the alleged contamination on the development deal mr barnett said that harvest partners in doing other development deals previously had encountered environmental issues and that the environment issues whatever they were and the hardest part is didn't know the extent to which there were any environmental problems but so those didn't stop harvest partners from being willing to proceed with the negotiations we put in evidence to e mails from harvest partners plainly who was one of the principals from harvest partners  and the first e mail which is dated generally twenty eighth twenty thirteen the day before the lawsuit was filed mr lee said that they had her stand that there may be an environmental issue and he offered his cedar lodges information as it was given and said if that's a problem we will help you work through it about a week later mr lee sent another email to cedar lodge and in that e mail he said that he was going to continue working on the development  documents and marketing a so that no time would be lost in moving towards development while cedar lodge addressed whatever the environmental problem was see a large ignored that it ignored harvest partner's offers of assistance and it took no steps on its own dream mediate the property to allow the negotiations to continue instead what happened was harvest partners continued to said documents to try to document the deal to harvest but to sierra lodge its your lunch ignored it harvest partners prepare a contribution agreement a joint venture agreement sent them all over to cedar lodge and didn't receive any response and what mr barnett testified was that after a period of time and we know that harvest partners worked on this at least into april of that year his partners became frustrated because he was getting no communication no response from cedar mr winters does mr winter have a cause of action only if in his view the pond was the sole cause or could it be one of various causes your o winter didn't provide any clear testimony on what caused the negotiations to end in his deposition we asked him how did they and when did they end and he didn't know what he said i deposition wasn't i was afraid of the potential contamination and what my future reputation would be in the community he said that the negotiations ended because very counsel would not cooperate and by that he meant very these original counsel not not our law firm secondly that harvest partners is going to lot of money on trying to work towards the development and the third was that mr winter didn't see any resolution to the problem that's what he said i mean the problem of contamination i see in the twenty minute but but there is no evidence that see the large ever did anything to determine whether they could remediate the property whether they could build a dam to divert the water somewhere else no that was ever done with cedar lodge decided do instead of trying to work through this issue and continue negotiations in which harvest partners was prepared to to and that was the response and so from our point of view the whatever alleged contamination there was was not a cause in fact of the because harvest partners was prepared to continue the negotiations in addition to that it is not appropriate legal cause of the negotiations ending because what we're saying will we be saying then is that harvest lodge can decide unilaterally to shut down these negotiations even though they could have continued that a negotiating partner was prepared to continue and then seek damages for even beyond that your honor just just to conclude on th come to fruition would have looked like we asked the court to affirm the district court's dismissal of all claims against fair ok your that was any direct argument with respect to dismiss of this ts s t as a small service company that maintained a live station for ninety five dollars a month on the property the court applied the legal standard of reasonableness the plaintiff's own expert mr ferris said that he thought s t s complied with its contractual arrangements what it maintenance include was it a monthly thing with they'd come out and get  irs and make sure trains were open and whatnot yes or it was a regular monthly procedure that they employed to make certain that equipment worked properly this did not include repair what in testimony in the record of some evidence in the record that they had come out more than once a month at a point in time because they were having additional problems that seemed to go above this normal monthly maintenance they had occasionally addressed the problem of his service but the judges finding was that contractually they did what they were supposed to do and they were not legally required to to remedy this system that plane it was complaining and really none of these  more like to us a sixteen is ok so but i mean just from a plumbing standpoint do you happen to know i believe that was on the other side of the ditch which would not have been affected by the live station  jacoby your honor that manhole was not a city manhole that was directly down from the lift station and right at where there is a design flaw that causes sewage to back up and overflow out there's erosion throughout that live station that shows overflowing of sewage because there are streaks from that manhole the code directly down into the ditch to go directly into our pond and the testimony of three different residents right over there is not just that there was an incident of overflow it was that quote a ste from the day i moved in until the day i left and that every day i woke up and i would just about gag they said that that was sewage it was overpowering it was black and blasting out this is that we learned about that later on  by the department of health and hospitals even got involved they sent they had they performed an inspection here not on our request but on the request of residents from their own from from their own of a pair of the apartments they issued evidence  ask about the background levels back home was absolutely nowhere near it our experts are debating that very heavily contamination found in the pond here was nowhere near background and i think i can get into that but i think and i think that it was wrong to apply recap as sort of a standard there because for one state environmental regulations do not supersede so a code that civil code article number one in the privacy of legislation a number to recap itself disclaims the use contaminated anyway it's lower the state standards but it's far higher than what background is for the area and that demonstrates in their own action that's an inherently contaminated it's when you when you damage another person you're not allowed that silicosis i mean just i mean just from my dumb layman's perspective i mean you may have a clear a clear trout stream running through in a in a beautiful mountainous area and right next to it you have a little ditch with puddle the background and what constitutes spectrum which the matter of debate here because if the background says that you can have a hundred people call it says that it's typical to have one hundred people call a form we see people call home going into our pond and we test it and it's you know ex ially higher than that and we should be able to go to a jury and say this is far worse than background and then there are the culprits they're the ones responsible for it and that and not to implement now that said there are regulatory exceed deposition says that he couldn't get along with someone at harvest partners and i can't remember the second point and then no end to the problem so there were at least three articulated ideas two of which had nothing to do with alleged contamination and on what basis did he say there's no end to the problem anyway there's no end to the problem if the contamination was problem happened that you can't remediation a pond if they're continuing to dump raw sewage into the pond and so our efforts to fix the problem was to send a demand letter demanding that they address it and then finally