when the bags were made of polyethylene they were then changed to polyurethane the testing again indicated that the bags leaked they leaked again in the position preference testing that had been conducted earlier on and they leaked after the devices were sent to find after the agreement was entered this is all before they will assign the first three were before the agreement was signed after the agreement was signed have been or tray packaging the other ones were in the book packaging and not sterilize that type on sorrow had requested the evidence is under spewed that the devices that were in the ship the product and in the process of trying to determine what kind of packaging would be used one of the theories was that there was something in the in the packaging that was up in the corners or working the seams are now on the sailing banks you're on and there were problems with the packaging and the packaging was subject to a different warranty under three point nine instead of three point one six of the asset purchase agreement but the evidence is that the packages are that the bags leaked under any and all conditions so regardless of whether the pact whether it was in the kif on i'm sorry but regardless of whether it was in the pan packing or in the packaging the bags really did it primarily liquid it was what was being shipped after the if he was signed after when he was signed the only evidence is that a week after it was shipped ok so the problem seems to be the packaging and the shipping not not sort of a free standing device that all of us on is just leaking on a hospital or representation that the bag would be changed anyway right it was sent in agreement or representation after it was brought after sorrow recognize that there were leaked then they were not very happy obviously with the ban and tried to come up with a fix they talk to pull aizen who was the company that sold the bags they did the blue dye testing in every way they could not they could not resolve the problem it was not it was not the shipping and just show you one other piece of evidence that that reflects that in the months after the shipping mr starke sent an e mail that said he recognized and acknowledged that the scenes in the bags were faulty so from the band's own witness the bags the seams were faulty the welds were faulty they did not have bags that so it's our position of course that there's no substantial evidence to support the jury's finding because the bags were defective and have a new they were defective and had warranted that they were not defective so here's what happened new first of all it represented that to the actual knowledge of happens three because i'm sorry just just make sure i understand where you're going so right now the argument that you're that you're presenting to us is that it was error for the  the verdict if there's well when you think could not find because there would be no evidence to support a jury or is it because instruction was wrong or both so we're entitled to judgement because there was no evidence to support the judgment and then if the court disagrees with that we're entitled to a new trial because of the weight of the evidence and also the instructional error with respect going back to the judgment again pavin warranted that to than actual knowledge of its three designated key personnel that the device was merchantable free from defects and suitable for use on patients and that wasn't true of the three key personnel two of them knew that it wasn't saleable to physicians for use on patients and said so and testified so and the other one didn't have any idea what the answer was where does the for use on patients of mine which arise that free from defect and suitable for its intended use was the was there a dispute though as to whether or not that was for use on patient was at issue that the part of you know you did not at all your honor in fact the physician preference testing that have been had conducted agreement the nature of the system could not be used commercially to could not be sold to physicians commercially for use on patients bill stark the individual in charge of manufacturing testified  not meet the reliability level necessary to be sold commercially to physicians for use on patients and again larry green had no information whatsoever that meant that contrary to the band's expressed warranty none of the three had actual knowledge that the system was merchantable of commercially acceptable quality or saleable to physicians and two of them knew for sure that it wasn't so the warranty was breached and as a result the agreement provided  provisions first of all it says that charles going to pay eighteen point seven five million and then there are limitations that restrict to breach it can't get that money back that money goes to peven regardless of t as to whether or not that warranty would be breached if the key personnel simply didn't know if it were if the park was perfectly fine but the key personnel didn't know if if the key personnel didn't know of any defects then of and there were no defects then the warranty would not be breached but what they but they didn't simply warrant that there were no defects what they wanted was something affirmative and that's what the real problem is here they warranted that the system was merchantable and suitable for use on patients and you can't warrant that you can't warrant that unless you have knowledge so you can't say oh i can warrant that and then if i don't know anything i've met the warranty you can some affirmative knowledge that the system is in fact merchantable and suitable for  was affirmatively merchantable to physicians and suitable for use on patients the district court instructed the jury that if they found that the three key personnel did not actually know that the nature system was not merchantable not free from defects and not suitable for use on patients they must find that pad and did not breach the warranty in addition to being confusing and misleading this instruction effectively unsupported by the now did you object to having production district court on the same basis that you're objecting now yes we did your honor they they said that we didn't we proposed in it first of all we proposed an instruction that was based on the knowledge of the three affirmative knowledge of the three and did not have the misleading double negative that the district court included in her own instruction after she proposed her own instruction we again objected on that basis and we also objected to come up was there most of what i heard from my opponent today about what's in that record is just not correct there's no other place way to say this it's not true at all the evidence if you look at the evidence throughout our breeze this product was a product we developed over a period of years in ninety eight two thousand and six we tested a polyethylene bag we discovered that would work we switched the bag material in two thousand and seven a year before this contract saw it and tested the polyethylene bag we tested it for performance testing is the undisputed evidence is that it passed every one of those tests once we put the poly your three bag into the device church was successfully then deployed and used it thirty actual patients surgeries successfully there wasn't one single bag failure and clipping the trike had their representative and heikki who user device he said nothing but a lot of tory things i heard my opponent say that this leak during the physician preferences this leak there is it's just fabrication there is no with nothing in the record that shows there was any problem this bag after the is being done with that's due diligence teams of twenty to thirty people from the tronic visit at least two or three times our facilities are going through the device it comes to june of two thousand and eight we receive an e mail from the corporate headquarters of the tronic a video apple's saying they want us to ship twenty of our guns to them which we did for testing so we sent them twenty yards after we did our test been tested and pass those tests so contrary to the suggestion by my own that all of the undisputed evidence is that the bags never lead never had a problem and i'll get on a actual knowledge are well recognized under delaware law where you have to prove two things we've cited there's no country has fought where were the burden is on the warranty in this case the tronic to show a defect and b that we had actual knowledge and if they can show both they lose and this case they could show either that there was a defect in the sailing bag or actual knowledge so now let me turn to the post closing evidence that i was yeah they found some water so this is the continual problem that we have with the record this case they sell there was water there was a leak therefore it's so facto it's packed there is no it's so facto it was a silly bag evidence in this was the lead test engineer or metron it was after they put it through their testing so when you talk about what they did which was vastly different than what we did we tested the device in a what we call the our current configuration is single device package on the eve of closing as referenced by my opponent we discovered that our packaging task fell we call the media and they said we don't care we're not going to sell your device in your packaging we're going to well big companies got lots of the good stuff to sell at the same time but put it this big box with all this other big tropic stuff we sell because we can solve war make more money doing it that way which was their profit and that was fine so when they closed this transaction they knew they were going to take increase of the radiation go to those cities by forty percent the vibration factor by fifty percent the drop test how far they dropped it by fifty percent the weight of the box as we know is far heavier and bigger we actually had the box in front of the jury back this is a case frankly with the evidence that was a deuce the trial we could have probably secured summary judgement there was no evidence whatsoever of a defective bag until such time as they ran it through their in their words overly aggressive past which was not part of our warrant they can do that all they want we didn't warrant that so what they destroy when they when they took our device they put it through some thing that we didn't know anything about that was on them that my recollection of the record is that they they we sent them the guns and they received them for that and tested them and that's the other part of this when they  kind of the fire is common sense in that logic which was something we pointed out to the jury they expected them because they opened these were not any kind of container they were in a box they were put it at the reason they want those guns because they needed t tests so there's absolutely no credibility to the statement that there was any issue with the bags at the time there was some evidence that the caps fell off we we call them they admitted in fact evils that yes that there is because of the bulk shipping that there well one drop maybe two drops and just by that this is in the record a drop one milliliter which is very small quantity equals thirteen drums so if you're saying one or two drops you're talking about basically point water point two successfully which it did and to see how you can enhance the design of your problem so before we ever sold the device to them that the when tip valve that she's referring to the evidence that she would refer to  connection between seeing some water and and the back he finally said well yeah i think i saw some tears at about shipping he's the only witness that even hit this so that's the only evidence the great weight of the evidence is as i described first off he's contradicted internally second even if you never sent an email or made any report of assailing bagley when he opened up these shipped devices never sent any contemporaneous documents something important like that yet you he said yes we normally would i just didn't do it so we know that and then on top of that mr donovan at the time of the trial was a former employee of the longer with i phones are all but they brought him in on or their case and i had the opportunity to system without putting inside of a valid package so when they bought the trade system they understood they were getting something that they could put inside of l t to patch the system of whatever design they want it but it could be sold immediately so of course definition was a proper was being requested in part by them see they've never challenged they never asked for a jury instruction that saleable commercial all these words that are in their brief ready to sell i mean this concept that this had to be ready to sell the minute some witness pops up and say yes the bird was on them and that's what all or all says the words you've heard that is the show actual knowledge a defect number one in actual knowledge number two and we have plenty of good case authority both in our brief summary so moment work for it so if there's anything else i can siege things that i would ask the court to look at our reply brief that page nine with references to the record about leaking begins in late two thousand and seven physicians involved in the testing reported leaking of the sailing bags and we have the sites on page one i won't burden you with them at this point in early two thousand and eight leakey sailing bags continue to cause the device to fail the then right before the due diligence meeting that they refer to the bags the tolerance level for the bags was changed so that the they could say that the bag had passed the tests nothing had changed except that the tolerance levels had changed after the the agreement was closed i didn't hear anything that talked about the devices that were sent in the pan packaging they incorrectly i read the record before i came to the court and the record reflects that medtronic i'm sorry on sorrow went to provide him with the blue dye and asked them to put it in sixty devices and send those packaging leaked so to say that that's not in the record is simply not accurate and then he doesn't explain how on august twenty seventh two thousand and eight twenty days after the agreement was signed and after all of the problems with the bags had been brought to the attention of pan bill stark the director of manufacturing stated that it appears that the welded seam on the sailing bag is faulty that's what we're talking about here that's what the evidence is it's not the smoke and mirrors of packaging or vigorous testing it is the fact that the sailing bags leaked from the beginning they leaked all the way through the process and for that reason