is this is ultimately a question of family but it's a question of the lack of question of fact which under the standards for whether or not the district court should have granted the new trial motion and under this court's principles  more than a mere disagreement and i think three admit that point we're not here saying that this court is simply sitting as you know third fourth or i guess thirteenth fourteenth and fifteenth jurors are highly aware of the fact that this is an extremely unusual relieve the j djoko could have solved this problem mediately it could void of these damages immediately and that may very well be the case but that is not under the law the defendant's obligation under the law it is the plaintiff's obligation and this is under oregon law seventy two point illegal and this is exactly what the law says oregon revised statutes seventy two point seven one twenty and seventy one fifty say that the only consequential damages that are awarded are those consequential damages that are reasonable under the good money after bad money well and that's the question is about what was going on here first of all it's spending good money to get one hundred fifty or two hundred thousand dollars a year it's not a situation your honor where the plaintiffs were going to go out there and not get alleging and let me tell you why that's the case here first of all there's basically two excuses for why it was just so that they couldn't mitigate here the first one is the one that the district court years which is basically that the walls didn't do it again because it made sense to continue thousand dollars or so inexplicable if you look at our briefing at the thirty one no seventeen in our opening brief we go through a lot of the evidence that was in the record and this is really the only evidence that's in the record on this question of financial wherewithal is  nat i couldn't afford and that's it but in contrast to that we have the documentary evidence we have the facts that are out there that they spent the money they spent fifteen thousand dollars on a new tack they spent some twenty three thousand dollars on the other home improvements in the year two thousand alone if you look at the evidence that set out and it's described in the quick notes seventeen of our opening brief you can see the substantial amounts of cash that were moving back and forth on the part of the wall says you know the wall specifically in their briefing said oh the question of damages because i want to try to reserve some time you're probably trying lines out the other question is just how much money did the wall system as a general matter even on this question of mitigation the plaintiff is obligated to demonstrate their losses to reasonable certainty and the essential ingredient under oregon law a reasonable certainty is that there has to be supporting data in favor of the allegations of lost profits and i would suggest if you're the only expert testimony that the jury could have relied upon in wording of the future and all we did in this is the testimony at trial is he went into the microsoft it's spreadsheet he clicked on the button that sense that trendline and he chose what is with this called this log normal trend line there's a lot of other trend lines according to the testimony that they could have performed under substantially similar conditions and that is simply not what happened here now i understand the court believes that this information was presented to the jury and even the jury decided otherwise but the question is i walks in there he could have used the exponential trend line instead the waltzes actually last ten million dollars and the jury could have come back and said how well you know i don't think it's ten million it's five million there would be no support for that testimony just like there's no support for the testimony question for trial and then the evidence was submitted to the jury and it was never followed up on the argument was that there was essentially no support for the protection of profits that was issued here and in the district court didn't rule on that and i would suggest that that in fact  you know again that the testimony regarding the amount of lost profits that was out there was no better than jim dickey walking in there and throwing the dice randomly and saying that's how much money they were entitled to e customer service just forgot about warranty them well but again your honor if it's in the alien world view and i agree that it doesn't necessarily make sense in the world but it makes sense for us customer service is concerned but the law does not require the that everything was fine and at that point they tried to use it in a small domestic well it twisted off can the twist is right here where it's put together at that point and the evidence is his life insurance so that he has they have money to continue to operate and to live on and the most ironic thing of all of this is the point that jeff gold makes with such force is well they've got they had sum of money because they had sold their new drill rig ignoring the fact that they purchased a new drill rig so that they could use this very duty drilling equipment to drill the the larger well and that's that's sort of like saying sure you had money to buy a new melting machine because you just told your pal and that's in a fact what occurred in this case at that point they were in such dire stand the record the record says that certain items were purchased a new truck for the business pickup truck for the business effect it doesn't i don't think the record says anything about whether that's credit card a company that has a net profit a little over three hundred thousand dollars a year to your bank credit see and i think they they made some purchases and this was all presented to the jury all presented to the jury on their financial wherewithal and they make  there were three damages experts presented to the jury defense counsel makes the point that this testimony should have been excluded  objection there was no request for your dauber theory for the trial judge to do his gatekeeping function to to make determinations and there was in fact the argument made here which is only one of three separate calculations of damages that was never made in any pretrial motions in lemony that they the motion in limine was made after the defendant had received a very substantial written expert reports of our experts and that motion was limited to addressing the question evidence excluding other reasons for this product why your expert testimony will not time and then a trial taking a very broad hand from the profit and continuing to be successful that there was nothing in the wallaces operation which would have prevented the wallaces from continuing to make a profit and be successful that the wall of the patent efficient operation in mr but it was entirely legitimate in fact much more appropriate to have a well driller they have the largest farmer in the area testify as to agricultural economic forecasts for the area the opportunities in well drilling that sort of thing and it was for a c p a or a business appraiser so that was the issue that was raised on the motion in limine e and testimony it is two years rolling he is in the best position to evaluate motions for a new trial and they said the supreme court said quoting from i think it was the second thirteen page opinion explaining why the defendant's arguments with medications with regard to failure to cover with regard to damages and with regard to other things been prevented prevented as is could not have been prevented by cover the testimony was from our experts substantially over a million dollars in damages the jury came back to a lesser except for this defense witness whose qualifications were the jury was entitle to question her qualifications with not having any sort of occasions or accounting degree years except for her saying that i prefer a purchase well the most comfort we're going to go out and just spend forty thousand dollars or borrow forty thousand dollars and just stop the bleeding and frankly with respect to all of the explanations  is that they didn't have the financial ability but how they were close to bankruptcy about how they were borrowing money from iras and so on and so forth i would suggest that that's not in the record if you look in their read reading at pages thirty to thirty one they talk about this question of financial wherewithal