good morning ladies and gentlemen we are delighted this morning to have judge bill gilbert the southern district of illinois sitting with us to pursue our common cause well our first case for argument this morning good morning my name is dan stevens and i represent pro life and this case as you know is about windows and when i was fourteen i was took  shop class protests got a d in but recently i took kind of a project of making window frames for a friend of mine's artwork and i went on you tube to learn how to make window frames and i learned that the most important thing in making a window frame is making sure that the parallel parts of the window are the same way in other words the two sealed together we did it with a process that melts the plastic and seals the joint but a window frame is a big frame and then it's got to part it's got council power our time is short we're going to need to focus on a legal issue the first legal issue is whether we have subject matter jurisdiction in this case the the district court explained  after some efforts the parties have explained why they are subject matter jurisdiction with respect pro lites claim i'm worried now about subject matter jurisdiction with respect to the customer's claims they are properly before the court if at all under the supplemental jurisdiction states and that statute says that there is jurisdiction over supplemental claims only if they are part of the same case or controversy could you explain why you think they are part of the same case or controversy the only connection between those claims and the main claims is they essentially involve the same windows that's not what i was asked to well aware of that i'm asking why they are part of the same constitutional case or controversy that is the statutory quest of claims involving vinyl windows that are not part of the same case or controversy i filed this in state court i objected to removal so i have no idea as i'm standing here before you why i should be part of a you know idea is not a satisfactory answer jurisdiction is something that is essential at every stage of the case and it is the responsibility of every lawyer at every stage of the case to address jurisdiction we had a great deal of difficulty getting you to address jurisdiction and this issue seems to have completely missed everybody warranty claims or in pro lites now the expert characterize the air infiltration as excessive and now excessive compared to what are the defendants correct that the expert did not examine the window manufacturing specifications that's correct yeah another words if you could by looking at the window you can see major gaps in the window that allow bugs and air and moisture in the blowers through that can blow out a lighter and move the currents and windows he believes that he doesn't have to look at the specifications to determine if that that is a defective window imply gems response by spending hundreds of hours and thousands of dollars correcting this problem indicates that they acknowledge that this was a problem otherwise they would have done it you know i saw that the expert made an effort to exclude s well what i was trying to explain in the beginning is that if this is basically a window and you've got a part like this in the middle in that you can see that by looking at it the part is too long in that top is bowed in the bottom is a boat because that's the strut in the middle is too long and then you see the gaps around it words too on you don't need to look at the specifications to understand that this infiltration is due to a manufacturing absolutely that's his that's his conclusion because if the parts were there and this is why it went into this thing in the beginning if the parts are cut correctly then there are no gaps but if you cut any of the parts too long or too short and you put them together there are gaps and you know the question is are these gaps excessive i mean they're clearly a manufacturing issue and if the gaps are excessive and there's air infiltration they weren't made right and when they later did the expert compare it with a properly mainly factored window  well if you bought a car there's a big hole in the door and it was that way for manufacture would you have to look at all the other cars to say geez maybe this car should have a big hole in that or not talk about cars well if it were if a window has big gaps and you can see the certain parts are too long in the air comes through there whether it was done signed that way or manufacture that that way you don't need to look at anything else to say this is how windows will remain counsel and i just i must say like the district judge i just don't  show that there is a manufacturing defect seems to me you have to show what they are trying to do to see whether this comported with my client was it had been dealing with with plug in for a number of years in the previous window the classic it he'd sold for like seven years without problems this with this fifteen hundred series comes out in like all new products it comes out with  and the question here is you know it's not that difficult to cut parts of windows to proper lengths i mean that's not rocket science and here these parts of these windows simply been cut to the proper lengths you're not supposed to have all of this air coming through windows even cheap windows i mean the basic window that it's out there  you you say that but that may be your belief but it's not clear that that has anything to do with a manufacturing defect let me put this in a different way have either or the consumer plaintiffs made a claim under the u c c she implied warranty of merchantability no i take it that was a deliberate choice yes because that's that's logical place for it ok yeah our our claim is that we believe the interpretation from the consumer standpoint of the to excessive reoccurring manufacturing product issues that this instant considering the fact that they corrected it within a couple years despite making the parts the right length and then after that the windows goes directly from pledging to the consumer pro life is merely no more in that respect than a service technician for applied they don't issue the warranty they service the war so were they then were they an agent for ply jim or not an simply operated at the direction of ply gem and no they never said look at ply jim you need to go out and replace all these windows which you know because they believe that you know ply jim have the expertise the engineers the technicians they sent numerous people out here they gave them the materials to use the instructed them how to use them and because ply gem is the one that controlled all of the repair process they just followed by jumps directions provided the materials gave the direction work side by side with pro like in attempting to deal with the service issues from the very beginning there was constant contact between pro life imply jim regarding the defects in these windows did plug him abide by the written terms of the contract are you talking about the contract with i have about five minutes left was ok if i reserve that certainly counsel thank you thank you mr stevens mr fert please the court counsel on behalf of m w manufactures in can this matter first of all your honor in response to your initial question about subject matter jurisdiction it's our position that the homeowner claims and deed a rise out of the same case or controversy and here's the reason why pro light has made a claim generally speaking that the fifteen hundred series windows you bought and sold in wisconsin from mike from m w manufactures were defective in their manufacture the homeowners claims in particular the ones that arise out of the fifteen hundred series windows are windows that were sold by pro light to these homeowners and the homeowners are indeed claiming that as they have they have the windows income but is it the same claim as i understand this i'm sorry her whites claim depends on the terms of its contract with ply whereas the homeowners claims depend on the terms of their warranty particular facts about their windows whether they properly notified pajama defects and so on those don't sound like the same case or controversy well i think sound like different controversies that have something in common mr stevens would you city counsel table please your honor i think that they do arise out of the same set of facts which involved the same particular issue s in particular this whole issue of whether nat there is a manufacturing defect in these windows yes they have an issue in common correct but what makes you think that any two cases having an issue in common are part of the same case or controversy for purposes of article three of the constitution because i believe that the same the same set of facts and the the law that that's involved here in terms of  homeowner has any relying on a different you have any case law you're relying on for the proposition that claims in which there is some either factual or legal overlap are in fact part of the same case your controversy i don't your honor but i can certainly will you remove this case you have here to remove it without researching that point well we believe that because of the fact that pro light was the seller of the windows and they sold the windows that were there were allegedly defective in manufacture to the same homeowners that are making the claim that they had indeed to provided the bailiff a matching my ass to concrete question how you could remove a case without researching of vital legal point just having intuiting something you have to know is not a way to figure out what the law all right it's it's perfectly obvious that neither side is prepared to discuss this issue today we will order supplemental jurisdictional groups within fourteen days and the briefs have to address two questions first are consumer claims part of the same case or controversy as programs claim second if they are not was the case removable after all that is could n manufacturers remove a case that was partly within federal jurisdiction and partly not there may be an implied third question there which is if it was removable what should we part of one warranty i have to tell you i was using a magnifying glass but the eyes aren't with they were but they are not a difference between manufacturing defects and effects in a product as manufactured i don't think for purposes of interpret in the reviews warranty as your own or that there is is there a difference between manufacturing defects and defects in material i'm workmanship for purposes of the the reading of that warranty does indeed limited because of the fact that you know the language talks about components that have to have a defect in it as manufactured in resulting in specific manifest ations at least as it relates to the components that are to shoot people and the in particular the fifteen hundred series warty talks about it only applying to defects in manufacture that are you saying the warranty does not include cracking in corrosion no it does your honor it does but it but it doesn't it isn't is brod as pro light is it attempting to claim their patent attempting to claim that it covers any type of manufacturing and how is that to be determined food in terms of some manufacturing defect well i think that the the the language of the them already goes in terms of whether or not it's going to be honored in terms of being covered by the warranty is this something that as prolate attempts to construe it did any of these homeowner smith warranty claims no but your people went out to the location and looked at the windows yes indeed there were there were occasions i wouldn't go so far as saying that the record supports their pledge and went to every home homeowner that's involved in this case but indeed they did go out and attempted to address and look at what these people were complaining about and but they never in a bit there was nothing that would suggest that they did so because they felt that the warranty under these particular circumstances covered those windows as the district court pointed out that the mere fact that a manufacturer may decide to go out and attempt to accommodate its customers and keep them happy and satisfied in some way is not a waiver or a deviation necessarily from the terms of the warning which may apply but not all these customers had the same complaint and they seems to be the become a place complaint and that's what for all that continues to argue both at the district court level and in this appellate briefs that that's the problem that these windows present you know i was wondering why  saw gaps fill the air couldn't keep their rooms temperate and really the primary purpose of a window is to keep out cold air and your neighbors you're right i disagree i think under these circumstances here first of all that argument was never presented by pro light to the district court or to any court in this case that expert testimony wasn't needed but secondly i think under these circumstances indeed it is that it's just insufficient where you're dealing with a circumstance where the claim is is that the window was not properly manufactured in other words that there were manufacturing defects the mere fact that a window may have air infiltration doesn't make it defective the mere fact that a consumer subjectively comes in and says hey i think my windows have more air coming in than my past windows have doesn't establish you  lucky about the plaintiff's choice claim but that's why i raised the question about the implied warranty of merchantability because that's exactly the sort of claim that would be whatever this is he doesn't work as a window fact that in a as i've heard mr stevens indicated in response to questions this morning that this is no longer a claim by pro late that the that the service rebate obligation was breached it's purely  fact that in the briefs a prologue is asserted that there is somehow in this contract a service rebate obligation an indication that there was some level of customer satisfaction which was the purpose of that contract but as pointed out by the district court here i think very aptly you know the arrangement here and that service reviewed obligation was simply to set forth conditions under which the pro life could have a teeny three percent rebate on its overall sales from him in exchange for servicing the windows and there's that particular obligation was in no way contingent upon our made a condition  for pro lites sale of windows in the state of wisconsin and as so therefore it becomes clear at least from a from a legal perspective that there was no bargain for term or  contract which result which would relate to customer satisfaction if that being the case there simply isn't any basis upon which you can claim under these circumstances that there was and of breach of this implied warranty of good faith in windows because that's the only way that we believe that we're going to be able to maintain customer satisfaction or maintain our business that was never done there's no in cation that the pro of that play jim ever  ever denied any such request there's no indication that hi jim ever denied any involvement in your response to concerns their pro light to me have raised with regard to air infiltration issues there was an obligation under the service rebate contract to provide replacement parts and there's no indication that to apply g m did not live up to that particular aspect of the warranty air or that contract and accordingly there's just no evidence in this record as the district court concluded to suggest that there is a young basis upon which to go forward on a claim for failure to  provide good faith that fair dealing in the kind of service related to mr stevens argues that your folks went out to these homeowners helped try to fix these these windles over and over and over again and w people just say hey maybe we need to put a new window in well your honor that there is no doubt that that pledge him indeed to went out and looked at these windows but there was never a need terminations that these windows needed to be replaced whether or not there is some type of a breach of the service rebate obligation i mean that was that was a discretionary call that the contract allowed my client pli jim to make now the words if they went out and decided that certain windows needed to be replaced in full they would make that this they would make that decision and if they requested pro life to do that then they would have had an obligation to reimburse pro light for the from my perspective back to what mr michelin did or didn't do that the plaintiffs experts in other words i think pro lites claims against my client apply jam as well as the consumer's claims the experience somehow is in another self sufficient to allow the admissibility of his opinions but the case law i think is pretty clear that experience has to be coupled with some type of a reliable methodology and appl subject of cross examination i mean aren't these the types of things that go to the weight of the evidence and supposed to its admissibility no your honor i don't think so and here's the on the existence of a defect in this window i mean if we just look at what he didn't do he didn't review any manufacturing or design standards as it relates to the any of the windows in this case he didn't even  inspect any windows example or windows but for one of fifteen hundred series windows that that was an install but when he looked at that window he did not make any determination as to whether the window deviated from design standards what the performance level of that window was or how that particular exemplar window even compared to the windows he had examined in the various homeowners homes he then also recognized that the there indeed arced particular standards performance standards that these windows are sold under and in this particular case there's an energy star standard that was represented to be a political to this window with an accompany test results mr meshal never looked at any of that tested aeration that might be out in the public domain the and he reviewed none of ply jim's test information so he had no threshold to even make a determination as to what the performance level was of this particular window in an appropriately manufactured condition even by his own definition so without that it's nit it's no longer a question of cross examination your honor it's a question of the threshold admissibility and the fact that he had no methodology and did not avail himself of any particular information critical information to come to be able to come to a conclusion that this particular window these windows had manufacturing defects is really what makes his entire opinions inadmissible as a district court concluded and i think that there's clearly no basis for pro life to assert that the district court here abused its discretion as it relates to mesh limbs opinions that that permeates all of the claims whether b p that of the homeowners or the or pro light because there's simply no basis upon which there can be a conclusion that there is a manufacturing frankly i don't think that we needed an expert in this case but you can never assume that to be the case because anybody looking at these windows and if they look at the pictures of mr lowe michelin's report is intuitively obvious what these defects are what the problems are just using our common sense we have all have products in our house that we can tell when they're defective or not without having an expert look at them these are obvious defects that can be seen by anybody with their level of education or now all you have to do is look at the pictures and have somebody point at the gaps and say is this is this acceptable is this normal well how do you know the defect wasn't from the installation by the contract well mr said you said it didn't because you can simply see the parts that are too long or you just said we didn't need an expert right right i agree we don't need an expert but i'm not going to file a case like this without an expert because then i'm going to spend my whole time defending the fact that you can't prove your case without an expert so no i didn't need an expert all anybody with any kind of practical experience can look at these windows and see the gaps and see that the parts don't fit together right this is this is this this isn't rocket science here that's why i brought my little example up here it's the parts just don't fit together and there's just big gaps and then in the winter time really gets below twenty degrees the cold air comes in windows frost stuff they get it in the house condenses and water comes down the windows and rocks out the cells all these people have to replace all of the windows in their house these are brand new houses brand new windows and from day one they haven't functioned and they have to replace them all simply because these minto's because they just came off the line they were a new product they hadn't been tested there wasn't enough quality control and they were defective the parts just didn't fit together right it's it's just that simple i mean if the parts of this just didn't fit together right there are big gaps here here and here and here i would need an expert to say oh geez you know what you know was this a manufacturing issue or what the problem was i can see the gaps let's say i could stick my finger on these cracks here i mean why do i need an expert to tell me that this this podium is defective the windows are the same way and then when the consumers see their drapes blowing because the air is coming through  the bugs come in and they get frost in kind and sation i mean we had an expert because that's just how things are done but the problems in this case do not require expert test and this is mr for tell set mr meshullam so opinions are allowed to stand this case goes forward then everything else becomes questions of fa and that's and that's the issue here could a reasonable jury determine that that ply plied sham reached its warranty with the consumers could a reasonable jury find the ply gem failed to exercise good faith in in honoring its agreement with pro life to properly service these windows give them the right parts give them the right advice and if that's a question of fact and summary judgment should be denied the other questions thank you thank you mr stevens let me repeat my what i said earlier the court directs the parties to file mr stevens the court directs the parties to file supplemental jurisdictional statements on the two questions that i have a doubt they are due within fourteen days and they must address first whether the consumer claims are part of the same case or controversy and second if not whether this case was removed we will look forward to receiving those briefs and when they are the case will be under advisement thank you very much