the morning all our first case for argument this morning is haley versus coldly and colby mill work  morning your honour's susanna the proceedings of the district court took a gotcha approach here it refused to consider the evidence and that it excluded mr will based upon the absence of that very evidence not only with the district court's factual determination improper that the as we know rule seven o two and daubert have a purpose and that purpose is to weed out junk science that's not what the boy did here this court has stated time and again that the district court is not charged with determining whether an expert is correct the district court is charged with determining whether the expert relied upon established principles and whether he is qualified the district court here wait evidence and actually there whether he made a mistake yes we stated in our position on page eleven that even if the statues were painted or sipping and would not change the factual error was on disputed but that even if the sashes were painted most opinion would not change because that was one component of a comprehensive scheme and the district court in finding that there was an  page eleven of your brief in opposition to defendant's motion to exclude where do i see that were should what should i see there i don't have that the actual brief in front of me but i page eleven just restated two things he stated at the end finished and or side was present in many windows and that it was but one component of a comprehensive s factual error to argue that it doesn't matter but my question was in essence can we at least start from the foundation that he was wrong about that he was not wrong and that at the end where did you tell the district judge that i believe correct well i think it means both it doesn't make any difference because if these are finished that doesn't that doesn't cure that the fact because there's nothing that you can finish would with that i'm allowed to sit and watch it but the crux of our opposition was that the district court should not delve into those factual issues and the court adopted that argument and found that the majority of what koby based its daubert motion on with the credibility and weight of weight of evidence so defendant can now cannot now argu error or not it's delving into the factual underpinnings it's the same exact argument adopted by the court in denying the remainder of the motion for them or the district court ultimately decided that will had to be excluded the evidence and to credibility which are issues to be resolved by the jury aside from that the record shows that the district court got it wrong if you look at it if we just look at the report mr will say this can be found in a one ninety three in the record at the end of the introduction where mr wolfe is discussing that one ninety three page five of the report because i think you you see there and paragraph twenty six one two three if you turn then two pages a to seventy four he states you have to look at all facts together you're trying to parse out you know what you're trying to do was parsed out the slope from the gap from the weatherstripping those factors work together no mention of the fo to affirm that it states factors of one two three and four there's no discussion ever of that fourth factor so there was no support in the record for the district court to find that the factors were into related but based upon this court's ruling in cyrus the dist we know that colby places their serial number at the bottom of the sashes and therefore contractors believe the sashes are not to be finished we know from colby's own expert peter lacks that even finished wood must experience rapid water runoff and cannot be exposed to prolonged periods of wet and we know from our expert that doesn't matter if the fin is the sashes or finished because you can't finish as good as anything that will allow its rich sand rot it's in water and in fact in discovery these are this is all evidence that should at minimum have been presented to a jury so that the jury could have evaluated whether whether wolf got it wrong it's within the jury's role to to listen to will and number one determine whether their will stastny and observations of not only plaintiffs windows but of other class members went on it also discussed and compiled hundreds if not thousands of complaints from other customers detailing the same type of issues here water pooling under sashes sashes waking up water sashes riding what if triple the weatherstrip placement or weatherstrip holding back water these were this is all evidence that should have been that that should not have been causing that effect not insulation and not condensation and not pleasing because you would see brought in other areas especially with condensation and glazing you'd see right starting at the top of the sash going down so he excluded other causes that was not that should not have been excluded because the court that the jury would have found that helpful in determining causation therefore the district court not only delved into the factual underpinnings and excluded excluded  i'd like to turn to our due process argument for a moment we've asked that this court approach our due process argument the same man in the same manner that the third circuit in bankers trust in bankers trust the district court excluded evidence curtain another way of looking at this case and i'd like to hear your thoughts about it another way of looking at this case is that it is a big probably unmanageable maybe barely manageable proposed class action involving high stakes capable lawyers on both sides that requires a tight rein to keep it under control we have a veteran district judge who has dealt with those kinds of cases before and who approaches them fairly and who enforces deadlines tightly and doesn't allow second chances you called it gotcha somebody else might call it strong case management i'd like your comments on that perspective acknowledge that the official administration of a case is a concern for district courts but the paramount concern is fairness and here the record before the court was complete the motions had been filed the arguments had been made the district  simply did not consider them did you follow the scheduling order we did your honor we submitted our motions on time we moved to exclude plaintiff's experts on november twentieth which is when they eliminate motions for jew we filed classification on time we asked for additional time but the motion was not heard and so we filed it on on that that line there there was no darn no examples i believe in the record where plaintiffs fail to timely file motions or raise argument alternately had the district court reviewed what was before the argument and your process either would not exist or would be very very different the basis of our argument is that we s arguments but they were not considered due process doesn't just require an opportunity to be heard that doesn't mean it's an opportunity to submit the arguments to past or present the court consider those or arguments and that the court engage in a fair decision making grounds were not addressed by the witness here the district court relied upon its two statements two sentences in an expert port to exclude that expert and deny classification and therefore it was relying upon an expert opinion a defense expert who's challenge to deny classification with two things i believe that messner is saying that where the district court is relying on the experts and hearing should be held certainly here where the district court was seizing on two statements and there was enough in the record to explain those statements the district court should have a minimum at minimum to have had a hearing and if it was not going to have a hearing it should have at least considered will stuck liberation and consider plaintiffs motion seeking seeking to exclude defendants expert due process required the district court had done at least one of those two things at that juncture in the case the district court realized that this is a critical issue in the case so the party should have brought in should have been brought in and mr walsh should have been able to explain to the court why he had that fourth factor what he based it upon and what the relevance of the fourth factor was to his theory and ultimately if he was wrong on that fourth factor it was for the jury to consider there were other examples where the district court overstepped its bounds and seized on arguments and did not give an opportunity to plaintiffs to pursue their arguments or to respond well when you say i didn't have an opportunity  while we submitted arguments there isn't a showing the record that any of those arguments were considered for example with respect to daubert the district court excluded mr wolfson the corporation which contained certain statements that went to this very arguments it should have at least had a hearing at some point plaintiff should have been allowed to respond to the court's concerns regarding this factual error the argument reason the opposition was that factual underpinnings should not be delved into by the district court and credibility and that goes to the jury that same reasoning should have applied to whether or not that fourth factor was premised upon an error and there was enough in the record to show that there was not an error and i think fairness for choir's that the parties  are entitled to show that evidence to i believe to a jury because it goes to credibility but at minimum to the court that the court did not get it excluded that the declaration  report he goes through several factors and one of them is preservative treatment yet is that relevant anymore in this case it was another it was another theory that the experts put forward that  observed problems with their windows and allege that all those problems were caused by the same common defects complaint didn't specify what those comedy facts were we didn't find out till more than a year later when they served their expert report those neither of them method acquirements for expert testimony and a rule set to not even taking those expert opinions at face value the district court also recognized that this case was not a good fit for class certification either when  first moved for class certification the district court analyzed the poet's arguments in their evidence including their expert opinions which had not yet been excluded and found that this case was not appropriate for class certification under rule twenty three b certification under rule twenty three c four that was the limit of the court's invitation to that apologists after the fact it extended that invitation a bit further into essentially a motion for reconsideration of the denial of rule twenty three  what is it issue on this appeal however is the exclusion of the district subsequent decisions to exclude opponents experts to deny that rule twenty three seat for limited issue certification and to dismiss opponents individual evidence to proceed to trial on their individual claims for preach warranty and there are a lot of issues and sub issues in this appeal the most determinative of which is the exclusion of the policy experts and before diving into the details jolts opinion it's worth dealing with one misconception that appears to be at the premise of a number of appellants arguments in this deal namely that the flaws in their experts opinions should merely be dealt with by cross examination front of a jury instead of exclusion by the court that's just not how rule seven zero two works and the admissibility of an expert is challenge for failing to meet the requirements of rule seven o two it's not enough for the responding party to just shrug his shoulders and say well the jury can take that unreliable testimony for whatever it's worth the whole reason the rule seven o two exists is the risk that juries will take unreliable expert testimony for more than what it's worth the real question here is simply whether those experts met the requirements rule seven o two and whether the district court abused its discretion in finding that they did not and they did not hear and i can take i'll follow their lead and not addressing mr colby look at the same service records that wolf are lying down and found that less than point seven five percent of all window orders in the last ten years gave rise to a subsequent complaint of rot for any reason for any window included in that order for those less than two point seven five percent of orders that did have a complaint of rot we'll find that at least some of them are caused by his sil sash interface defect theory and here's how this theory works in support understand of some of the arguments about severability of different parts of his opinion wolf observed in testing that when he blasted colby casement windows with water at least some of the water didn't immediately run cause under wolf's theory when that water on the sill vent comes in contact with the unfinished wood on the bottom of the sash and wolf explain how that damage happens the unfinished wood has these natural capillaries when water comes into contact with these capillaries it can then be whipped upward into the sash through a process he calls capillary action that according to wolf is how water gets from the sill to the sa sufficient volume to cause premature rot casement windows and his definition is very clear about this his definition page eighty one ninety of the appendix paragraph three defines his theory and explains how this works the water waking up word through the unfinished sessions the primary problem with that theory is that it's simply wrong colby doesn't design its windows to have unfinished  fact colby instructs its customers to finish all edges and faces of the windows and it's a warranty makes that a condition of the warranty that all customers properly finish the edges and faces of those windows putting  wolf just got this wrong and appellants they haven't disputed that that's what colby instructs its customers to do that that is a condition of the warranty was just made a mistake in assuming that this unfinished sash bottoms were design feature kolby windows net mistake has implications for rule seven o two in several different ways first of all under seven zero two eight it means that his opinion isn't helpful to the jury wolf gives an opinion explaining how premature rocket can occur and water can get from the silt to the sash and windows with unfinished ash bottoms but that's not what colby designs will screw tickle of an apple but colby designed an orange for what colby actually did design windows with properly finished sash bottoms wolf offers no analysis of how water can penetrate that finish how much water would penetrate that finish how it could be be whipped upward into capillaries and those capillaries are blocked by a proper finish and whether it would do so in a sufficient volume in a sufficiently quick amount of time actually cause premature r analysis just isn't there and therefore it's not helpful to the jury and for similar reasons that absence that analysis also means that to apply his opinion to any finished sashes would also be in violation of let me tell you what concerns me about this i don't know that i've ever seen an expert opinion where there wasn't at least an arguable error in almost every one i've seen there's there is an error somewhere see there might be narrow grounds to affirm that but i'm worried that a broader firm and such would wind up giving judges way too much power to take  ues away from juries so from your perspective what do you see as narrow grounds for office to authorize the exclusion of the entire wolf opinion just summarize for the court earlier and appellants response and the daughter motion was two sentences on that specific issue and the district court actually quoted both of those sentences one to the effect of while this mistake wouldn't matter anyway he would still believe that colby windows are defective without any further explanation or citation to anything and then the second sentence saying that well koby should have  some customers wouldn't have finished the bottoms of their sashes again with no further explanation or citation to anything alan simply did not give the district court the ability to conclude that this mistake was several that it wasn't fundamental to their to their opinion the arguments they're making now on appeal the arguments they made later on reconsideration did not appear in that dr response motion and there was a mention in  its argument and also in the briefs about a declaration that will provided talking about how or giving his opinion that the finish doesn't matter a declaration gave a new opinion it made waltz opinion a pleasurable to finish that is which was well past the deadline for expert opinions to be disclosed but in addition a declaration wasn't submitted in connection with their daughter response brief declaration was actually submitted later in connection with their motion to exclude colby sexpert simply was not simply was not before the court on the pending daughter question and in addition that declaration itself didn't solve problems under rule seven o two it just gave the itsy dixit opinion that well damage would be cause and finish sashes anyway again without providing any analysis or explanation of how wide to what extent that could possibly occur that is the fact that he is unfinished wood and also from his deposition when he talks about the nature of capillary action of his water can be drawn upward into the capillaries of unfinished and grants a void gives no explanation of how it could penetrate the proper other grounds to exclude as opinion under rule seven zero two no i understand russia and i'm just trying to focus on whether what he offered was mistaken or just totally unit inapplicable to the situation would be a problem right right if a user mistakenly fails to finish the underside of a sash you know the reason that it's a condition of the warranty is because that finish is supposed to protect the sash so to that extent you guys agree with  testimony recognize many other possibilities several of them had problems with their home builders where water was getting into wall cavities others complained of condensation which wolf tested to determine that it wasn't the problem it was just a problem of in home humidity but wolf candidly admitted in his deposition he wasn't trying to determine the actual cause of problems in any given of palance windows but he's trying to do is merely determine whether his theory could be a cause by spraying the water and seeing if it it remained on the sill after the fact in addition there's also problems with some of the other aspects of his opinion regarding the still slope and the sash gap any contemporary industry standards or support for that for those with any particular level of sash gap or still slow other than a forty year old publication of the swedish finnish timber coun which by its own terms applies only to windows of redwood in a white wood from sweden and finland wolf is really standing on his own here when it comes to his recommended level of skill slope and the recommended level of skil talk briefly about the due process arguments there are a couple of reasons why those are not not meritorious on this appeal first is that but least as far as due process is concerned that argument was waived they never made a due process argument to the district court below they never alerted the district court that they were alleging some kind of constitutional violation arising out of  as it is self evident that they are raising the due process challenge that the district court needs to deal with the questions of whether there is a constitutional violation occurring they never did that fellow they they argued these discovery motions like any other discover  motions would be argued the district court heard those arguments and made its decisions as the due process issue is not properly preserved for this appeal and in addition second day they haven't identified any deficiencies in the process that they received they have the op the court doors are always open they have the opportunity to file motions make arguments made briefs there's no page limits in judge perhaps court they could submit is much argument are really complaining about is the outcomes of those rulings not the process reached and not the process in reaching those decisions and it a lot of their due process argument seems to rely on some some arguments in discovery they called he was somehow hiding the ball in discovery well that's not the case at all colby didn't even know what kind of ball they were looking for until they submitted their expert reports in the summer of two thousand and fifteen and that the district court evaluated the chronology of discovery i noted that the pace and volume of discovery was was driven by appellants as colby had argued  actually made more than eighty separate productions in this case as fast as he had documents ready and as the magistrate judge ordered parties got together prioritized those documents and gave the high priority items first and on down the not that i can recall there may have been a request for for argument ed in passing and some brief that's not a typical was that it was an issue right and it's not a typical practice in this court either usually most motion right sided as a brief yes so the last aspect of this due process argument at least as it pertains to discovery they haven't explained how it would affect any of the outcomes in this case they're appealing the order on summary judgment summary judgment had nothing to do with any information from colby colby move for summary judgment based on information from the appellant's namely the statue of limitations and what representations they claim to have seen or heard when making their decision to buy colby windows and they don't explain how anything in discovery would have changed their experts opinions whether it be  and therefore should be said minutes jury the proof is in the pudding kobe argues that its windows aren't designed to have unfinished sashes and therefore wolf was wrong but there are facts in the record for instance plaintiffs banks had their that this type of evidence is evidence that was in the back yard not considered by the court and that it's properly should be properly considered by a jury not a district court judge at like to touch on a few things that  stated number one with respect to our due process argument we've we've focused on several aspects of what happened below and in arguing that we are not entitled to a fair decision making process suppose that motion and explain to the court what was happening at that time in discovery that we were being dumped with hundreds of thousands of pages mere days before discovery was closing that motion sits on the docket today and decided the district court also didn't resolve motions to reopen discovery for four months even though trial was approaching the district were also faulted plaintiffs for submitting the wolf that the ration which is believed to be late yet the hearing on the twenty six hearing before a judge or the magistrate judge clearly reflects that cold it states right in the transcript plaintiffs will go first defendants will go second and i quote counsel it would it make sense for defendants to go again after the copies daubert motion so had it been filed with our position the record would have been the same before the court it would not have changed the record finally i would just like to ask that this court view copies waiver argument for what it is it's default argument repeatedly raised by colby not only in this case but in the northeast and it's repeatedly raised by them because they don't have the facts or the law on their side thank