described and i think it's agreed by the parties that they were called what's called a resident plumbing contractor namely they have an office on the motorola premises they work for motorola sometimes like contracts buy and oyster sensually they were at will they did with motorola wanted them to do on november first one nine hundred ninety nine they were working in an area of one of the motorola plants these plants this particular plant is a plant that motorola redesigned and put very expensive equipment down below and then literally miles of plumbing equipment or pipes of the so the water runs above the expense  we had two people up there they were working they had been told two months earlier because of a symptom for nine hundred ninety nine incident don't touch the valves all of a sudden as they're working a valve pops breaks loose floods and there's damage i'm not going to get into great detail on the facts hopefully you've read the briefs and the end result was a lawsuit by motorola alleging breach of contract and negligence we responded denying breach of contract you knowing negligence also alleged comparative fault because hey you shouldn't put all the expensive equipment down below and then all your water lines up above you're asking for trouble second as discovery was going along we found out that there were waterline part me valves that were bad old and were being replaced periodical instead of just all at one time and as time went on we found that there had been some similar incidents we found out there was one on april ninth about to for i get to the main issue and then what i see is the main issue anyway during the free trial i think it's important to note that we had a really hard time getting material and to this day we've had to file a motion after motion we cited in our brief and a little less than a week before trial the district court issued an order on march eleventh two thousand and four that a fair trial we proceeded to trial and we get to the end of the case and we're deciding on instructions and verdict form the verdict warm and got them here i'm sure you've seen agreed the next day and it submitted to the jury the jury comes back the following day after being discharged the first day and they have a question one question and the question is of the briefs and the jury ask the judge should we award the dollar amount entered on verdict for should award dollar amount entered on verdict form be reflected before or after a percentage of negligence is applied that's the question i ask he can tell from that question what's on their mind negligence and comparative phone the judge properly consults with counsel and says you enter the amount of money and then you put down the percentages if well that's what they did and then handed in the verdict nowt about the verdict form i am that we are not appealing from the verdict form we are appealing from the judgment the situation here is is let's hypothetically assume that an attorney waives by just saying ok go that's fine as to a form of a verdict does that ought that waiver as to the form a verdict if it ends up in an inconsistent verdict does that mean that the judge can then decide you don't get a jury trial he can try the case if only because they filled in the bottom half but if they found a contract violation in the first place that number matches up with a contract violation doesn't know there's a contract violation and there's a loss of profit which i won't discuss with but they what they said was the and warded chiming in seventy one thousand six hundred fifty eight dollars and put yes on a contract and then yes on negligence and then on comparative but in answer your question no it would have been inconsistent and i wouldn't bet here likewise if they had just done negligence i wouldn't event here either but what's the problem with it once they get this one contract it's pretty clear  what happened was the judge took this verdict this is negligence and allocates comparative fault for them took it away and threw it away and says i'm not going to use it i'm going to put it in the judgment i'm only going to make this a case on contract in the trial but that would be valid if you had ethe you would ask the jury to allocate the two million dollar judgment between the contract clause between the contract claim and the and the negligen theories one of their alternative theories on which two million dollars could be awarded under either theory the fact that they found that there were that you had violated both of both of those then i guess the argument is that all of a sudden if  discussed any problem with the verdict the verdict was signed after the jury asked the ok and then handed it to the judge the judge filed it and laughed and we found a motion for a new trial alleging the judge should not have substituted an inconsistent american federal court case and the judge said ladies and gentlemen this is inconsistent explain it they explained it and everything is fine it went up on appeal and was held the judge did the right thing asked him to explain it  there's waived by not asking for an explanation mother dearie i don't think they even argue that i don't think that's a serve and well i think that there is a scenario under which the two million dollars does not represent the the amount the jury intended to award to motorola but there's also a scenario in which two million dollars just exactly what the jury intended to do now the question is is on a is on appeal when the when the when the what are we supposed to do i think under rule forty nine b the jury can't explain it anymore there is a supreme court case in there that says the judge has an opportunity to harmonize the verdict had cited i don't have time now is six minutes and fifty six left but there is a case that is cited i cited it and if the court had harmonizer the verdict he would have read that question that was asked second before the verdict was signed and he would have gone to the negligence because we know that's what the jury intended they wanted a reduced verdict by thirty percent so he not only selected what he wanted  like this that conflicts within itself as a special verdict then you can go harmonize if you can and he could have harmonised because he knew what was on the jury's mind right there at the last second he knew and so all i'm saying is he substituted his judgement for the jury and one of the supreme court case visit case he didn't harmonize the last thing he heard so he committed there and we're entitled to a trial the noble plea trial to know it all comes to the fact that i believe we're deprived of a right in our seventh amendment right to a trial by a jury of the constitution because we have in this judgement the judge's conclusions not the jury that the jury may have written one now and it was hard to read maybe it's inconsistent maybe it could never be enforced maybe it should have been handled with a question maybe a lot of things should have been done but forty nine ve covers that forty nine b says if you discharge that jury and you have an inconsistent verdict then you have no choice but to grant the new trial ok let me talk on the some other matters obviously on the question of concealment of evidence for instance the and i would ask you to look at these issues because i'm sure you hear a lot of field but a week before disorder i just read to you was a week before the trial a month before the trial over a month before the trial we finally got records on the april ninth flood which was a massive flood that closed down the plant and was very similar to ours and was right near ours things were being hidden during testimony mr mccusker an employee of motorola pops out with oh i've been keeping a record of leaks for five years we have absolutely no information about that we are entitled to that we should have had that we didn't have that and all of the to be reviewed for abuse of discretion yes and that's what you cited mr mccusker also gets on the stand and he is not listed under rule twenty six he doesn't know c v is given no reporters written and pow they say in your thirty years experience as a plumber objection an opinion after opinion on page sixteen seventeen and eighteen of our brief he rattles off opinion after opinion after opinion it's error and there was a motion in limine in this case do not bring in insurance they decide to read our experts deposition and the first question why the first questions is a question that has the word insurance in it and the whole thing that's discussed is insurance and it has nothing to do with the man's opinion so throughout the course of this trial we have today as i sit here today i do not know what happened in those five years of my post was talking about as i sit here today i do not know what happened on april ninth six months before this incident here because we only found out about it a little over a month before the trial started and didn't have an opportune do any discover please the court this case comes to this court following a six day jury trial on which the judge and jury heard an awful lot of evidence the jury rendered a verdict the judge turned side post judgment motion and the judgment finally w vs yack if there are allegedly inconsistent verdicts unless it is impossible under a fair reading to harmonize the answers the verdicts must stand here we would submit that not only is it not impossible for these verdicts to be read consistently in fact it makes complete during some jury instruction discussions which you'll find on s c are too old for counsel for defense was very clear there's only going to be one word of damages period and in fact we just heard him say here there is no difference between the damages for contract and the damages for negligence it was one flood when the jury filled out the form they asked the judge let's be clear on this first line up top here what is the total damages and is that what we're supposed to fill in and the judge said yes fill in the full damages after that they went through and found that the damages were  awarded will based both on contract and on negligence there's just no ambiguity here well i mean that's offered as a theoretical possibility it's just not the way the evidence when there was never any if you read the jury instructions the instructions on negligence damages and the instructions on contract damages which are instructions twenty and twenty four respectively list out the same element and there was no idea that the contract damages could be somehow separate from the negligence damages but i think your honor have a point directly on which is even if there is ambiguity if the jury verdicts can be reconciled they should be here there's no question that they can be at most there's a contention that and as i thought i heard counsel just say the jury should just stop when it got done with contract and then there'd be no problem here of course the problem with that is had the jury just stopped and had anything happen to the contract count on appeal for one reason or another then we'd have to go back and have a new trial i mean clearly now that the whole thing is out in front of the jury they should just decide the case once and for all and be done with it that's what they did here on a verdict form that was never objected to by opposing counsel the verdicts can be squared and thus they should be moving on to german custer and his alleged expert testimony  the problem here is waiver the objection of being at an undisclosed twenty six b to expert was simply never made there was one expert made with respect to mccusker it was a twenty six day one outside the scope of the disclosure it was handled with a sidebar about between fifteen and forty four pages in the record before where this alleged expert testimony came up no one ever said a word about an improper expert the objection was not made it is waived moving on to the  alleged discovery misconduct and the alleged newly discovered evidence the problem is not only is it reviewed for abuse of discretion it also just isn't what happened here the district judge on the eve of trial faced with a motion detailing a series of really outlandish allegations of discovery misconduct that this a full ninety nine flood was never disclosed and an order saying this is a fairly compelling showing i'm not going to rule on this now i will allow this discovery to be has allow another deposition and i'll deal with  later and that's exactly what he did and following trial in the cold light of day he looked at the record and on a big us we said two things first there was no willful concealment of evidence here in fact this stuff had been disclosed long prior many times and if there's any question on that you'll find it on page fifty seven of the opening brief where counsel admits motorola suffered in april one thousand nine hundred flood as testified to at trial by at least three different witnesses  cut we did get hit with a twenty thousand dollars in action for the conduct as i stand here before you i can explain why but the point of the matter is the district judge knew what he was doing he took the matter in hand there was no abuse of discretion here moving on to the mention of insurance and this came up as an inadvertent mention of insurance it was a reading of some deposition testimony the other side decided not to call the witness the night before the testimony was horribly put together it was the designations that had made a month before and read into the record while everyone was sort of reading along the objection came up at the end and to be clear what the testimony was was that he had done all of his prior work for insurance companies this is not something where we do extensive testimony on everyone here is insured please go ahead and ward whatever damages you want was never argued to the jury and here the jury would have had to have made two jumps for this to be in any way presidential the fact that he works for insurance companies in the past means he's doing it now and the fact that he's doing it now means they should award damages because insurance is going to pick up the tab again there was no discretion here which moves us to the profit loss again this is not against the weight of the evidence the standard is of course if the record contains no evidence in support of the verdict then again that's just not  here there was extensive testimony put in by those and industry expert in wrath and motorola employee and paul bill and where they talked extensively about contribution margin as being the correct way to measure damages here the problem is that moss six not being the facility within this manufacturing plant where they were making these fabs where the where they were making semiconductors where the flood occurred it didn't keep its own books it wasn't a standalone entity these people testified that in the face of that if you know that the plant as a whole is operating at full capacity three hundred sixty four and a half days a year and you know what the bottleneck was that was caused at this machine how many turns as they called were lost then you can calculate from that what the damages were by this being down for three days going from an average of forty thousand turns a day to something like fifteen twenty and twenty five in the three days following the flood there was extensive testimony on this it can't reasonably said he said that there was no evidence to support the damage and again there was no abuse of discretion here last second lastly the assumption of the risk instruction question we heard council talk about how there were pipes over the top of the semiconductors making equipment yes that's true that's not how assumption of the risk works in arizona as the trial judge was just absolutely right on in and monkey around with a collar valve in a way that they were explicitly told not to that's when you assume the risk in fact the only testimony in the record on this point came out of the mouth of molar of j b our own expert there was a meeting after a prior incident with a with her there was no assumption of the risk here finally as to the award of attorney's fees arizona law admits permits the awarding of attorney's fees in contract actions there's a six factor test that we go through in our briefs i won't bore the court with rehashing it here only to i have none of that information so what you've just heard i think is a little inaccurate  and read this first question question can you estimate percentage of cases where you have been retained by an insurance company that's the question and there's a motion in lemony to preclude insurance and they go on and talk and he says i would equate that with the fence cases and they go on and he ends up as saying all my work is is for insurance company and that's what they want to know what does that have to do with a ploy my plumbing expert piece of paper or one time where we lost any sale and then they say yes we have to lose a sale to lose profit i bring in an expert who said there is no paper and no evidence that they lost the sale so they can't lose profit they bring an expert who says i read a bunch of documents and i find a one point three million dollars worth of lost profits and it's interesting because they had six months to fill out a they have five million dollars insurance with the other plaintiff they took six months to fill out proof of loss and they did not mention profit loss in any way nothing and in the lawsuits filed a year had an option and could do what they and the court shows but i want to emphasize that we are appealing from the judgement we're appealing from the what the judge did the judge was confronted with an ambiguous verdict if the judge had tried to harmonize it all he had do is take that question he got a second surlier just moments earlier and harmonizing and that case he didn't attempt to i don't know how he got to contract but it represents the district court's opinion not the jury's so i have a case here where i try to case for six days and i don't have a jury verdict or anything from the jury verdict except the amount of damages i have the judge's interpretation after throwing away a part of the verdict but this case is loaded with error and has like i say right up until the present moment i've got a