the point that i want to make an initially with respect in particular to what i think it's probably the most important issue here which is the treatment of the affidavit in this your countrymen is a sham affidavit is the stark and very important contrast between testimony in the context of the underlying state court action and the testimony or affidavit that clarified that testimony for purposes of coverage matter before the district court in the state court action the only issue that was dealt with or needed to be dealt with or that was necessary for the fermentation in the there was no issue whatsoever that needed to be presented necessary to that determination that the damage started within the policy period that was for scottsdale coverage relative to  mr marino it was simply not necessary but causation is a common element move well that's true we don't dispute that causation is an element of bull in fact we don't dispute what i believe my colleague has indicated is that the fact that there was causation between the debris and the sinking was in fact determined and is reached you're caught or at least collateral stock left of the parties involved in this case causation between the debris and the sinking was established surely there were dates alleged in the state seating for sure there is testimony with respect to the timing of when the debris came in contact with the facilities there was testimony and it's not disputed by appellant in this case there was testimony by mr countryman that the critical event and the most i would say most significant events ultimate the ultimate damage that occurs does not have to occur during the policy period so long as damages occurred or commenced during the policy period and that was the and on that issue he simply testified and frankly clarified the fact that once the log was in place and restricted movement up and down with the river and stand at the mechanism of the dock the dock the sill of the visa to be the pilings depended upon the free movement of the piling rings up and down to accommodate river level fluctuations and in order to do that once the log was in there and there was restriction to that ability then he has testified in his affidavit that there was damage being done first of all because of the restriction itself and also because of metal at that time he did not say that there was a breach within the policy period at that point time but the fatigue contributed to the ultimate breach which is sufficient to trigger coverage docking mechanism this mechanism between the pilings in the barge and the piling rings was compromised and restricted as soon as the locks became wedged that is independent of the testimony offer standard for testimony and complete disregard of essentially an unopposed declaration by an expert is appropriate in this case and i think it's particularly inappropriate because of the differences between the state court action issues and the actions presented here with respect to the coverage issues and aside from that point i think that it's an inappropriate because they're simply not directly contradictory the i think it is clear from the record that the matters raised by mr countryman in his affidavit are clarifying of very vague testimony that occurred and was not significantly cross examined for good reason in the state court what's your view on the broader theoretical question whether the same exception should apply to testimony in another case  of why it's dangerous yes because you can take it as was not the case by the way in the cases cited by the at the lead in this case but if you take a situation where the context is different and the approaches and the importance of the issues is different and then you characterize them as inconsistent with in a different circumstance related to a completely different issue which is the timing versus causation itself in this particular case it's i think runs afoul of the cautionary language that appears in almost every case that applies to shamble it sounds like your argument if i understood it correctly first a point that mr newman appeared to avoid is that we are here on an abuse of discretion standard and the district court wrote a thirteen page opinion that very carefully distinguished between the  testimony that was elicited from the expert mr countrymen in the liability action as compared to the two affidavits that he submitted in support of mr harvey's motion for summary judgment and after carefully considering those two contradictory sets of testimony reached the conclusion that the affidavits were in fact a sham and we are here i'll be the ultimate question of whether summary judgment is appropriate or not that harvey has not met his burden of proof on the abuse of discretion standard and that in fact the majority of mr countryman's affidavits are thrown out as a sham and what were last with our mr countryman's testimony at trial which was clear that it was a single point which occurred in october i believe it was one nine hundred ninety eight when the river draft and then in november when the river ro the the whole purpose of mr harvey bringing his lawsuit against scott still insured was not because a log wedged in his dock in july it was because his dock sank because of damage that took place in october i suppose mr countryman could have perhaps chosen to testify more vaguely in the trial of the liability action that i'm here to discuss causation it's my opinion that the in there period and if the jury would have been satisfied with that perhaps mr harvey could have prevailed and then we would be here litigating timing but unfortunately for mr harvey mr countryman went into more detail than that in the liability action probably because the jury wants to have more of a basis for that expert's opinion and it's so the fact is that mr cranstoun was asked both on direct and cross examination when did the damage occur i mean that issue maybe it didn't need to be addressed in the liability action but it certainly was addressed in the liability action and mr countryman was very clear in his testimony in that regard so under the circumstances of this case we don't need to go any further no without if we don't if we put aside any of mr countryman testimony it doesn't and that's why scott still defended this case under reservation of rights because the bare allegations were insufficient to determine the timing of the property damage and whether it occurred during the policy period or outside of the policy i guess i still don't see the inconsistency my recollection of the state court testimony but when he was asked to try to give a narrative he started between the barge and the pier but what he said was that the river stayed constant through july august september and october and although there may have been cyclical forces that was causing the the somewhat of restriction of the doctor that isn't what mr harvey sued mr marino of course he sued for the sinking of his dock and he clearly testified that there was really no significant damage done to the dock and that the dock would not have sunk but for the fact that the river dropped in october and it was at that point that the log actually caused the damage to the bars and then in november when the river rose that the barge ultimately we try and we try a hypothetical with you i take my car into a shop to repair the trip or something like that the brakes were worked ok up until the time i thought it meant my garage but then when i come back start the car charge the battery and drive up the street i try to use the brakes when i get involved in an accident and that doesn't matter when the a legit occurrence i e the negligence of the repair shops took place it's when the and that's because the policy language specifically states that the property damage must happen six months later drives it up and down some rough roads in the crack experienced brakes and has an accident coverage or not if the hypothetical is that there was a can that started out as a small crack in over the course of facts than the second is because in this case although there was some alleged cyclical forces that took place during the policy period that's not what caused the doc to stink if we were here  predicate then if so it was established that there was continuous and progressive weakening of the bars system then there would be more of a potential for coverage in the circumstance but that's not the factual predi and isn't that directly contradictory to his testimony at trial when he was asked was this damage caused by a continuous force or was it a single occurrence and his testimony was it was a single occurrence it was when the  river dropped in october and there by the barge draft and then when the river rose the barge couldn't rise with the river and that's what caused it to sink it was so clear in his trial testimony the tiny of the property damage and and the district court clearly caught on to that that mr cutler was in trying to backpedal in order to attempt to obtain coverage for his client in the in the subsequent coverage action that's a couple of points in rebuttal first of all the testimony by mr countryman in response to questions along the lines that were just discussed were anything but directly and reached directly responsive to those questions and i think i'm not going to reread that testimony but it's highlighted in all the briefs i think any reading of it would indicate what we've said from the inception of this argument that that was not the issue that mr countryman was addressing at that time i also want to point out that at least one of the arguments with respect to the standard of abuse of discretion on this affidavit issue i don't believe applies i don't i think that we're making a legal argument that the court and i take cognizance of that in this particular situation it's not appropriate to apply the the chant evidence rule in the he's talking about and i think it's at least if it's not perfectly clear at least another interpretation is appropriate that what he's talking about is a location on the barge pole a single location where loading a curse he does not address the idea of whether or not it's cyclic prior to that because it's not germane to his original testimony in the state court action he clarifies that in the affidavit that there was pre represent mr moreno in some of the questioning that there was a at least a one foot fluctuation on an ongoing basis and during the policy period while the log was away and the fact that there were forces being applied fifty time chain on the opposite side of the barge which broke and again i don't think anything has been addressed as far as the holy is concerned with respect to the testimony from mr harvey that in fact the dock connection the rings in the log restricted movement that's testimony exists aside from anything that mr countryman said and mr touch woman was completely consistent about the mechanism of failure here that wants the river dropped dramatically and in this particular case not that the same mechanism didn't exist before but when it ruptured river drops dramatically the log does not permit the rings to go down with the river level the weight of the barge then comes in direct contact with the log and in that particular instance with enough force to actually rupture the metal metal hole at that point that does not preclude processes metal fatigue i think the example your honor gave with respect to the brakes is perfectly appropriate to the situation clearly there was a mechanism if you accept that testimony river fluctuations the fact that the log was applying this load to it there's nothing inconsistent about the idea that there was metal fatigue that contributed to this ultimate failure ok thank you for your argument