south dakota lawyer she's the one that wrote all the briefs and i think laid out all the positions that i'm here to articulate or try to i just trying to hit a high note that i hope that we can consider here today  we're asking you to undo what happened in this jury trial tort damages were given to the plaintiff linda miller on a contract theory and i think that's partly that certainly not the way the case was submitted not your it was submitted both on contract and defamation and those were the two causes of action when you sit when you just said tort damages you were not counting that you  you were i thought picking up on the argument in the brief that this is using three hundred and forty seven of the restatement to award tort contract tort damages for breach of contract well i think that we're wondering how you can have a breach of contract which we lose and then a defamation case which we win and then the jury winds up giving all those damages they're available only under defamation the image that that was consistent the anguish was taken away correct with the understanding and in agreement of all a lawyer is that it would be and that way the jury was not given two different damage verdict was it yes it was given to well it was it was given to different liability verdicts but it was given three packages of damages that awarded on both counts correct and maybe that shouldn't gone down that way but i don't think it's that i don't think it is your why why not i the you know one of the one of the issues as i looked at it you're looking at there is a claim that consequential damages ought not be recovered under south dakota law in south dakota law like north dakota law appears to somewhat have conflated consequential damage have had a history of allowing am actually flowing damages to be recoverable which is an awfully broad statement and broader than what you ordinarily see in damage restatements for for contract claims right now at that point isn't be you as a lawyer who's representing a defendant to say judge i want the damages to go to the jury a clearly defined and i want the tort damages calculated separate from the contract damages and instead what happens in this case is the issue is raised and it's raised as to mental anguish and there's a discussion about the future damages future future earnings capacity but it's never nailed down and  the end the answer is ok we'll leave it to you judge well it seems to me that pretty much like a waiver of those claims at that point why not because it would be unfair and contrary to south dakota law they you cannot i mean if seeming illogic of the tube the two are the seeming inconsistency of the verdicts you want to push that all together on appeal and get a reversal some out but i want to distinguish between the bad wound argument and the and the your your view of the definition inconsistency thank you ron i'll try and i think that the mushing together kind is what happened when the verdict came in with by that was this judge or hicks and points out what the what the lawyers agreed was going to happen here well we agreed you know and then i was thinking about this the jury instructions that were given are legitimate jury instruction i did they define lost wages well they just in the construction that was given to the co on the breach of contract it's that an enforceable contract that she breached the contract and there's what damages flow from that breach and then that's kind of empty it's open but everybody talks about we had five or six hundred thousand in lost the same contract three year term renewable obviously yes ed had a provision at saying that thirty days but before the end of the term if the employer decides not to renew the contract the employer shall provide the employee with an accurate performance summary of the summary of the employee's performance over the term of the contract which the employee may then use with prospective employers ok and the employee and the employer said at the end i'm not giving you that because you want to work for my competitors now under your interpretation a bad  the award of the damages as i read your argument is zero that's a that's a freebie that breach of contract well that it's a freebie in the sense that we pay fully paid her for what she would have received if you know he reached the br serious commitment in the contract correct we should have given her a shared it damages under south dakota law as good as to find and lamar she should get the damages caused by that br which obviously don't begin until the end of the term of the country judge respectfully it give me a case that's contrary to what might be what i'm positing i guess i'm saying if that's the thinking then anything that flows after the breach of a contract i went home and got dust mites in my house because i wasn't at work you owe me for that or i got mentally ill because i was so upset about not being hired that's all over just put of the parties at the time that the contract is entered into were reasonably foreseeable from the breach of the contract and here's the thing if you breach this contract in the fashion that's alleged in this case and the jury obviously found that their breach had taken place  obviously found that these damages flow naturally from it why are they not just ordinary damages that were forseeable at the time that the contract was entered into because of the statute in question here twenty one dash one dash five kind of defines what you can give no person can recover a greater amount of damages for breach obligation than he could have gained by the full performance thereof on both sides and i've looked for different  assessed the employee to get a new job if that's the case if we're going to accept that and that's where you're going why are we not immune under him for we now we now we now we jump the gap to the other half of the if we look at the context i want to know a case from anywhere that we're interpret would apply your interpretation of bad law to my hypothetical and say that is a freebie breach of contract well your honor perhaps i'm not understand your hypothetical correctly but i think that bad wound and the gold case that followed from that and even the lamar case are all cases that say the limitation of the term of the contract puts a fence on where those damages are going to  the renewal cataract but it has to be renewed we didn't have to renew and that's where you say that it sounds good if it's your case well but it but judge me doesn't fit my notion of  baseball player and i have a five year contract in the five year contract comes up i may renu it i may not the team a renewed may not the contract says we promise not to blackball you and in the major league baseball if we don't renew your contract and that's what the team then that images from that explicit breach would be post term and if they are they are totally rejected by the immunity theory the jury found we did not defame d criticized here you know we we will not blackbody forget about blackballing doesn't it isn't lim isn't that isn't the only limit only defamation it can happen a lot of different ways i think your honor to respect that these are you're talking about we won't defame you if that's what you're saying then we're jumping into the total immunity that we have under him and we have like three why can't the jury decide this breach of contract was not the family tory but it was a breach of contract that caused these reasonably foreseeable post term damages because those damages are not available under south dakota law under the breach of contract if that you know you were back on the my side employment contract for a fixed term i'm looking for a case and a warning waiting for my opponent to cite a case that stands for the proposition on the other side where's the case that says you breach of contract but you can have future wages you can have kind of a claim what they're saying is that the breach of the contract was what the breaches you were not afforded the process required under the bylaws and the jury necessarily found that that was true the nd thing the jury necessarily found was that breach caused consequential losses that included lost earnings capacity and lost future earnings right they did erroneously i'm arguing  knowledge all right what they're saying here is that maybe you didn't have the knowledge but you also didn't provide the process and because you didn't provide the process which would have yielded a separate result these contract damages lol that is i've suffered a loss because you've reached that contract well i guess we get back to my main argument if this court upholds this verdict i think we've gone into a new place in which a you can have a contract but somehow you're going to get all kinds of consequential damages and i thought are aren't you conflating the surgical agreement with the bylaws well your honor what is the purpose of the surgical agreement but to define the term of the the employment but that wasn't how it was presented to the jury it was that there was a violation of the contract which was the by laws that then resulted in harm to her right maybe as a result of the report which opens up your other argument about immunity but but i'm i'm i'm not seeing why you have to conflate those two and keep keep them as a package i don't think the jury saw it that way i presented it they saw it that way and i don't know that it was presented that way well you know we still have to come down to what are the facts and what is the law and as i look back on this and i'm wasting all my can i just please retain the last minute and a half or any rebuttal you you're in control of your time well you can cut off an answer of a question and i wouldn't ever do that well i'd like to stop right now and say for reebok thank you very much our lost wages defined for the jury your honor lost wages were defined in this way they were defined as past loss wages and future lost earnings to support those damages we presented the testimony of our economist dan franken feld who calculated that there were five point six years in the past that linda miller lost in terms of lost earnings and that she'd lost seven twenty six into the future so it was a definite term to get to the point is some of the jury was was the jury found that she would have worked for seven years past four years past the end of the term for your for your on regional center precisely your honor that was the evidence that was presented in it and the foundation for that evidence was presented through primarily three witnesses those witnesses where st dr hunter who talked about the sham peer review and what the effect of an adverse action report has filed into the data bank the nd was from carol cards who was an expert in dr recruitment emplacement who said that in recruiting a doctor an adverse action report has a profound effect on a doctor's reputation and we're talking here about a professional license we are not talking about an employment contract so then you're talking about the damages that flowed from the filing of that report to my right and judge kelley that is exactly right it is the contract that was formulated by flatly contrary to b she did she said that this is why bad moon doesn't apply st off it was for a definite term that is bad it was for a definite term three years and we did not sue under the surgical services agreement that is getting confused with bar breach of contract the surgical services agreement is a contract between dr miller and the hospital for services that she's providing under the hospital and i didn't get that story but it is ok i can go ahead but here's my issue at that point if it's not for the breach of the surgical agreement it's not for the breach of the contract but instead it's a you know the process violation right and then all of a sudden i'm going to ask you like well why isn't there immunity right because at this point if there's no showing that the act acted in bad faith and there was obviously no showing of knowledge otherwise that the defamation verdicts inconsistent with the contract burden unless it failed on knowledge right all right and so if there's no bad faith and there's no knowledge how statute says what equips says is that you cannot find liability based upon a question but it doesn't say anything about the damages that may flow from the filing of an adversary not based upon the statute uses a much broader term than that can you really divide up liability from damages like that well what wealth what would liability mean except the damages judge kelly with respect to any report ok i get that as bro contract claim then herein regional or any other hospital can violate the terms of a by law contract in south dakota and there is absolutely no consequences as a result of it because have not if you are not  claim and that is at that because they violated the the by laws they did not provide dr miller any due process at all what they did is they set her up during an eight month process that began in and ten they set her up the board of directors met and they got to talking among themselves and the facts were that they talked about a couple cases this is mostly a labor what would there be other damages that might flow from the denial of that kind of process other than the filing were reports such that a person in that position would not be without any recourse that if if defamation would be then the jury found in this that there was mental anguish and ordered two hundred and fifty thousand dollars on that claim of course we had to give that up but the answer to that question is yes but the answer to the question as to contract damages the answer is no were confined to what she would have earned for the maybe maybe i'm not asking it right but if the damages flow entirely from the filing of the report the plain language of the statute strongly suggests that there's immunity there eleven asking is there is there would there be other kinds of damages someone like dr miller might suffer from the denial of the procedural process do her course of that that would not be related to the report because it conceptually but those issues were put before the jury was only the breach of contract and her loss of earnings was the was the immunity ever rd by the by here on regarding the contract claim prior to the appeal no it was not and that's our point is lesser plain air this court must affirm that the district court judge fryers order denying new trial and we met a chair and the read because there wasn't a compliance with rule fifty in rule fifty one those rules mean something that is that those rules say that you have to make an objection so that the other side has an opportunity to defend that issue and there was never summary judgment or a motion for  directed verdict on the evidence and as a result of that the motion really before the court on that issue is under rule fifty nine but fifty nine prerequisite to rule fifty nine   st you have to make a record and then when you were in when this was presented to didn't try or if i'm remembering correctly she concluded that the that the damages from the breach of contract the bylaws was as a result of the filing the report am i right that that is true that is correct that was in front of the parties at that at that time if it was in front of the did she identify any other damages other than from the filing of the report card on the breach of contract claim and if t reviewing all of her cases she was told about it after the fact they reviewed one hundred percent of her cases and found nothing wrong so they decided send the m e c the medical executive committee back to the book drawing board and we're going to do another three months at the end of those three month period there were two cases that drew concern or at least concern board of directors of the corporation of pure and regional and so they had a discussion with her and that discussion was through dr blessing ger the facts and seems like and the jury could've found that the senate and behaved very well but that's not what we're talking about and i don't understand that weren't the bylaws and implicit are a part of the contract fresh license right but it's got to be incorporated to the employment relationship through the surgical agreement doesn't it judge erickson absolutely in fact we said that in our briefs that i'd only the surgical agreement not only the byelaws but the rules and regulations those three documents comprise all of the contract the portion of it that we allege that they buy late and where the bylaws for the reasons that you understand from the facts and that was as it doctor blessings are said you you show give up your privileges your professional privileges or you're going to be fired and this will prevent you and this is important this will prevent you from having a adverse action report filed with the national practitioners data bank how it's prince and it was everyone in agreement that these would be considered contracts or was this presented at trial as and the bylaws being one portion of this bigger contractual arrangement all three segments of the contract were presented judge kelly as part of her contract there were we didn't we discussed all three of them we can tell you that the circuit surgical services agreement was really ancillary in terms of the evidence that we presented because we said this is this is the document the bylaws that perfect that affect her professional reputation and as a result of the filing of the adverse action debating the general principle we're debating how it applies to this breach of an employment agreement from from the standpoint of damages that are awarded and if you had said my hypothetical would have been what it would have said you would have said that you would have to find lost wages as the an ability to obtain and successive employment by reason of the breach of in my apathetic only promise to provide successive employers with an honest appraisal of performance right ok but when you don't say this which you say is we get four more years of damages as though those that are continued to employer and that to me bad faith malicious deprivation of a contract all right or something torture is breach of contract right which which you know states haven't recognized although it seems a kind of a weird theory to me but but that's not what happened here what's happened is you say there's a clear breach of the contract in these damages flow naturally yet there's a whole body of cases alter that say these are damaged reputation cases and they're speculative why is that wrong because it's the damages th foreseeable and i think when opposing counsel is up here you use that word and i think it goes back to our law school days when back to blass and gail when anything that is a consequence of the debt the foreseeable damage of the harm done even in a breach of contract case right goes back four hundred years and that's a basic principle that that contract damages include those damages which are forseeable and we presented adequate ample evidence to the expert witnesses  wasn't refuted and the important point here has a set there wasn't a record made to object to it so that we could somehow correct an area if there was one and so this is not a plain error case and so what we're asking for judge  what you claimed they were ordered provide for lost wages for years of pay for medical center after the after completion of the three year term of the of the under a new agreement if that was a mistake of law under bad the answer is no but at its core that statement and the defense's argument is that there are no consequential damages a flow from a breach of contract and that simply is not the law isn't really what they're arguing aren't they arguing instead that they're that the consequential damages that were awarded in this case are so remote so as not to have been within the contemplation of the parties or reasonably forseeable or thirdly speculative i'm happy to entertain that that thought because if it was that he still had to make a record and present evidence they had the opportunity to cross examine judge erickson extensively and i can tell you very capable consulate sitting at that other table and they did have an opportunity to cross examine and the jury did consider and weigh what the right thing to do is and what is the truth and they decided to to approve damages in the amount that they did slightly in the neighborhood of eight or nine hundred thousand dollars in addition to the fact that they also said that there was mental anguish which of course we couldn't keep and interestingly they also sent a of a note back to the judge asking if they could award punitive damages on a breach of contract which of course was handled in the appropriate fashion but that tells you that the jury certainly saw in this case that justice was not done and that justice was to be served that's all i have please the court in my last one minute and twenty three seconds i've asked the court to keep that same collective mindset that we have when my opponent was arguing as i make this final plea to you  when this case was the jury came back with his verdict it was only at that time that we got into this what i call a piggy back there e of the breach of contract that the plaintiff won on now in but braces everything else this is really not that law shouldn't happen and again we have immunity there's no question if we're not defaming dr miller we have immunity there were a lot of discussions about the facts in this case and now wait a minute wait a minute the breadth of some of the arguments made this morning that the immunity is without knowledge of the falsity of the information contained in the report  is much broader than defamation but there is there is knowledge of false information that would not be deaf to family that when that that the concealing of which would not be defamation well if you can't link defamation didn't do the immunity provision i think when the jury says we didn't defame her then how do we not get immunity where's the finding that we falsely and knowingly not and it's what the plaintiff is asking for now is when there's a plaintiff's verdict on a breach of contract that somehow we're going to get all of these damages and we had no way of knowing they were going to make that claim until after the verdict came in but what about their claim that it was that you waived because you didn't raise it in your post trial motions i don't know how to what extent the records going to show that we did object and insist on immunity because i don't want to mislead the court on that one but i can tell you our position is that we don't know about this defamation damages linked with a breach of congo you didn't know that till you got the verdict form i get hold on wait a minute but i don't know i can't know the record well enough to tell you exactly how we put that but i would say this your honor no matter what the statement of the law that i think we're hear about is that a breach of contract is pretty well defined in south dakota it's limited and it should only stay within those limits and what happened here is something outside of it as we look back at every case i've ever done i think why did we do this why didn't i do that why did we do this there's a lot of