caused by failure to deliver timely and multiplying i'm sorry you take the amount of the lost production you value it this is taking up space that you could have made but didn't because i know the material well that argument which defendants made below and they make here isn't even correct factually and that's clear from the macfarlane damage report he calculated the last production based on information that is in the record it was a calculation that was done by greg gosling and then he calculated the incremental cost it would have taken to produce i'm sorry there are two issues that were raised by the defendants motion for summary judgment the first basis on which they moved was that these were special damages that format conclude that they were special damages and we think that that is wrong and the judge was misled by the language in the contract that said that it's subject to the texas law that's an understandable into looking at texas cases about what special damages and watched whatever general damages when in fact there are federal cases in the interstate real context that make it clear what general damages are and they are the ordinary and natural consequences of the breach of the duty to transport with reasonable to suspect those cases are just cited age twenty two of our opening brief and conversely as this court described in the special damages in the contempt of metal furniture against air damages the carrier did not have reason to foresee is the ordinary natural consequences of a breach when the contract was made the product th slow down production if you don't get beat stuff there that's a matter of basic economics so this follows as the night the day that if you don't get the feedstock to the chemical manufacturing plant it's going to  manufacturing plant around the clock and if you didn't have the opportunity to produce the product during that time because of lack of product it's lost forever is there a meaningful difference between special damages as to which there's been sufficient notice given and general damages you know i i don't think they're really just i wonder why i never understood the difficult so i wonder why that's part of the law at all because there are all  what it turns on whether it's you call it special damages or or a general damages years did the person you're trying to charge them with have reason to believe that this would happen and the answer to that is yes when you're talking are asking the question does the person with whom i am going to charge responsibility have reason to believe that this will happen if there was a default that's really the only inquiry and that i judge haggerty got there saying that they were special damages and there was sufficient notice i don't think that they are special family just under the tarmac and then the cases but in any case we come out of the same place the basis on which the summary judgment was granted was that the defendant contended there were no legally cognizant damages because all of the product was transferred to corporate relatives but and the plaintiff's expert reports are legally insufficient and the defendants did not assert a passthrough defense but if their position is so construed the defense would apply and that any loss was really suffered by the corporate relatives not by play of the  self many of these arguments are outside the issues that were raised in the summary judgment motion the summary judgment motion does not require plaintiff to prove its damages in detail point of would need to do that defendants admitted and they did in the response to the concise statement of material fact number twenty that that was not the case and that and that in fact the  those were damages as a factual matter for that product that was transferred to the corporate relatives the foreign reports are more than adequate to establish damages for purposes of avoiding summary judgment the defendant suggestion the point it needed to show how the lost production would have been used is particularly in fact because lost production by definition does not exist so showing how it was used is not a realistic requirement and the fact that defendants caused the problem should not they should  that it is clearly the effect of the position they take it is no part of the plaintiff's claim to show that it was not reimbursed entirely or his part or by a third party for damages that the defendant inflicted the defendant's authority for application of the fans is there purported distinction of all the cases in which it has been rejected as though there were some underlying platonic ideal favoring the pass through the dance but no case has been cited accepting it and in the context of claims were damages for breach of a common carriers duty to transport with reasonable dispatch the rule that the carrier is liable to the holder of the bill of lading reducing that by the incremental cost which they calculated to be a dollar sixty eight upon our position is simply cost it's cost and if it costs three dollars and thirty four cents to produce sponge me that if they were driven out of business if they had to shut down and could not manufacture a sponge it would be an entirely different situation because then they would be hit with overhead costs that they couldn't transfer to the great but they did your honor go out of business several months later for reasons unrelated to this time trying to save you they couldn't compete on the international market which is mostly just just the problem how can it be if somebody is driven out of business and as a result  other creditors and so forth you get a zero there and as a result your client wouldn't be liable for anything when it's on the face of it i have to say it's difficult to fathom the idea that no harm no foul i understand your honor and believe me this is something that i because it just seems that if you were to be late and we contend that our shipments were not late for the reasons that they say but somehow it would seem unfair that somebody could without any multi multi national conglomerates the railroads are also very large all of them are fortune five hundred companies they negotiate their contracts for their own reasons and one of the points does they go back benefits by having this flow through or sponge and sending it out to the corporate relatives at cost if they didn't come to the railroads at that time with a new instance of the rails look we have a new arrangement here we're not in a position where we're going to be able to have any profit or can't imagine anybody would going to talk about how only if they wanted to establish the fact that there was a third party beneficiary relationship but why would that matter why is that a something to take up with the railroad it would be up to them to do that to notify us of this circumstance because right was in a position to suffer damages well or that was illicit in a position to suffer damages at the beginning of the contract when they changed it midstream they lost the ability to either make a profit or suffer a loss that was the decision they issue here is when they suffer any need to do or not in this case suffer any damage or any loss and i think the answer is clearly if there was it would have been with this mr corporations and they would be in the position to assert a client not for me what we have here is not a situation where there's a wrong without a remedy but rather is that wrong without the right party to have to absorb the entire spectrum of cost that one pound would go over the system corp the sister corporation would send back a million dollars would be a book a treat because as we pointed out the folks controlled by the same corporate parent the sister corporation and the work that this is really just a right hand to the left hand and we're not really looking at arm's length for the this is not an arm's length transaction it's between two wholly owned companies with a parent and this is merely movement walk for four things that's the way they structured their organization for dealing with this particular situation and in our position is that in the trial judge was absolutely correct this is a very unique well but i don't think you have to judge i mean and certainly you have the discretion to those stars you want on any of the including the issues that were new there was one issue that wasn't even decided below but we don't believe it's necessary primarily you were referring to the oral argument on summary judgment in the early part where in response to his questions i said something that could have suggested that we were going off on the notion that there was any damage with respect to titanium that was used in our own manufactured crisis in our later on that question came up again and i had the chance to make clear that i have not communicated well the first time agreed agreed material facts that all of the sponge was transferred to corporate relatives and it was in and we were fully reimbursed for our costs and that's how they got to their