a single injury and a single damage is based on the same misrepresentation misrepresentations your honor were made to different people separated in time by three years or entirely different purposes and produced exactly opposite and that's important whether or not this is an issue for the four or for the juror and he found based upon sound third circuit precedent that no that is a decision that i have to make that you all have said to him you make that decision so he was faced with that and he made his decision he looked at the facts he said proximate causes what's a lot more different than then but for cause he said what do you do the third circuit has told me and i had cases in the break a look at look at that point that much more strict point nine million dollars in that in that litigation we were told by mr ongar return the money every bit of money back to god now as you recall the finding and this is a finding by stipulation  twenty three point five percent of the shares of the governors in return for his five million dollar invest it was this and that your honor first of all in the brief or in the complaint it says boris invested five million dollars in the project specific questions on that you recall stating that you felt you taken a risk correct what what was that risk i invested five million dollars in the project not in god and so he said and thankfully here is my point five million dollars but he didn't get six and a half million shares in the project to get six and a half million shares in governor's bought with the director of your honor that the money go directly to and be channeled into the project and what i just thought you're on what evidence is there in the record he accepted the money from the arbitration in essence governors went to bat for him there brought the money back to him which he is accepting his fortune so the only reason for the short for two purposes while a diversion that they shortfall is just two parts whether there's other diversions probably there are more than one three five x your honor but the ones that are in this case as proven facts under the testimony and the stipulations the other stipulation is simply this mr colleague mr grayson diverted the one point three five million dollars without authorization of the governor's order direction that's a stipulation that mr ball and i worked out together so the fact is your honor there is a shortfall and  i cut down the tree and i close the road with negligence that i did or miles later somebody has to go on a different road and gets in an automobile accident or someone runs a red light i may be the but for cause but i don't believe on the proximate cause and falling third circuit precedent i think i have some solace that i'm probably not and i'm probably a kind of person or cut down a tree and make it fall on the road but you have syria brings up a more sophisticated argument is that representations were made directly to him to his client how do you respond to that they say that these representations of my client aside from anybody else is it is it is a substantial factor in closing or last plate of sloss how do you respond to that or good a good question judge again as i think  cause secondly the american role applies with respect to litigation costs that's the other part of their damages that's that's our case we think it's right have the right to bring the action and that's what judge was specific like that so we're down to the question of whether or not the misrepresentations made by cmu was the proximate cause of their law that's correct satisfaction in it aren't you ahead of the point of what you should be arguing i if they if they can prove that the misrepresentations by cmu caused them to invest five million dollars they're entitled to that five million plus any other isn't really the issue as as your honor indicated the notion that this was some kind of special pot of money and that that pot of money with which as a result of the arbitration is is wrong mr or yeahs and his company a stock there was no earmarking there was no no designation no snow sort of constructive trust no agreement there is nothing in the record that would have allowed as a shareholder to stand in front of a as and manipulated the result somehow so that mr barr is didn't get what he was title to then my clients cause of action would be that then then there would be an argument that his damages would be diminished as well forget manipulation what if what if it's a five million dollar ward and they send they send your client a check before million with a cover letter that says we won the case we're very happy about  it here's your check for million we know that you invested five million but we spent a million on legal fees hence you're out a million dollars would you have a pause of action for million dollars against him absolute absence and isn't that an end run around the from your perspective i guess you could say it's an evil inherent in the system because the injured already as a goal go to all the time all the effort bring a case by the case when the case and you're still not made whole because you incur all these legal doesn't that doesn't deal with the question who is responsible for the shortfall got schwab defined proximate cause in a way that that made it impossible for us to meet the burden he said you've got to have a different cause then the misrepresentations that were made to you because those misrepresentations will only support one injury and one day and one damage and in this case representation injured two people in two different ways and support two entirely separate