which then led to the ruling on the summary judgment and then the other one would be an issue of whether or not our clients have a right to have the property at a minimum clean what i'd like to say is it was a stipulation in the record that the parties agreed that this broken structure that went on for a year and a half next to the restaurant the dust and debris from the road construction migrated into the restaurant there's no question about that so that happened and so know the parties really ever said that they didn't although there is some issues of some testing have been done so i wanted to just go quickly through the experts and i'll go as quick as i can and what i'd like to  say st is an expert under the rule seven hundred and two has the ability to be qualified based on their experience they don't need to have a scientific basis no real dispute about qualification right this is a methodology no it's not about it's not about the qualification that's correct about methodology this is a st party insurance claim it's not a medical malpractise claim it's not a product liability claim these are very straightforward issues as it relates to this construction debris which is limestone cement concrete and dust going on to the property and hearing on to an outdoor way that the restaurant set up is there's an outdoor part of the restaurant you know what i think in the limited time you have is that you barry's for dust and debris in the past sixty years in various cities miami new york and boston and this case why did the district court abused its discretion to deciding that he is use of this listen and look methodology wasn't reliable what he said was that the the listen look was not reliable the point is just so it's clear again we're going back to the st party case the expert mr livio just went in and walked through and listened to the system our expert went through looked at the lighting looked at the l a de boards saw that all the lights were out sawdust in the lights  and his years of experience because as a master's and his undergrad in in sound engineering was able to hear that there was no filtration of dust and to the speakers that was the sound was tedious distorted and hard to explain in words as correct that could describe my singing well the point is you're i don't know about your singing but i do know that he's had these twenty describable he said tedious i don't know if i can give you an exact word hard to explain in words it's distorted just kind of like i know it when i hear it you know it's distortion i will tell you that a fourteen year old kid who plays guitar national can tell you in speakers blown out it's not that difficult to do and that's why i'm going back to the issue that this is a st party case and based on his experience and hearing these he was able again experience to be able to make that decision discern that that how did the district court misapplied daubert in this circumstance because rules that misapplied it misapplied i think because it did not and i think it quite frankly not taking this as a st party insurance claim and understanding that in many of these types of cases this is the type of analysis that is done and it was proper in this case if their expert could just come in and walk through and say i listened to some music i was kind of low or medium and i can make a decision that is just fine our client went in took out beakers looked at them and tested them and you challenge their experts yes we did we did chances are experts it wasn't ruled upon because the judge ruled on our experts in order to get to the summary judgment so that's mr posada challenge their methodology yes yes we did it we did be in there they're on expert when in and uses normal visual senses quote unquote experience in the awning business and he didn't know lab testing nobody did and he led testing there let me just ask was s sense and the issue here on this appeal is that is the district courts occlusion of your experts to judge joe flats question so you know the delbert court gives us these factors they're not sort of you know right that the gospel but they are factors that inform our decision so for any of your experts where the methodology is that they were using believe and well it was in deposition testimony i had and i understand that we're talking about fact findings now i understand that kay the court had testimony before about methodology correct found that wanting and i understand of whether or not the court committed clear error which includes rejecting the credibility of the statement of the expert ok he and i stand there and just make this point he testified that tactile testing that he had done was common within the industry that wasn't so to to reject that were there was nothing that would based on his ability as a judge not being someone who studied cement as mr briggs well had done or construction debris and how it affects properties i don't believe that he could inherently without some other testimony to rebut it conclude that the test in the methodology was incorrect when when the industry allows for it so that would be my answer to that question there's not some competing methodology this is this is thirty three years of experience you've got an engineer professional who has done this type of work before this is this is easily the issue in your case though as the walkthrough is two years after the construction correct and the teenager in cleveland rock and roll hall of fame can say that speakers blown but can't necessarily say why that speaker is blown the methodology here had to connect it seems to me the sedentary or dust from the construction two years before to what was wrong with speakers currently and i'm just curious why the district judge erred in saying the methodology was not sufficient to connect those two because st of all water would not have affected the speakers there outdoor speakers and that was testified to the only thing that infiltrated which everybody agreed was the dust and construction debris into the property and so again going back to what you're saying experts come in on st party cases and they come in a year after two years three years after this is not an uncommon thing that experts do and st party claims because it takes a while sometimes for a denial of a claim and for it then to find its way into a place where an expert is going to be in analyzing it for the st time and so that would be my answer to that question this is typical within this type of litigation and st party claims that it isn't after the fact something they're not going to show up the day after hurricane and go look at your roof that's not how it happens they may be there a year and a half two years later and they have a certain methodology they're going to go through to determine that everybody agreed that the dust and the construction debris came out of the property and he testified that it here to it and the only other one was the man who installed the on things and he had also testified in a case in a deposition and he also seen he had stalled them and he had also seen other cases where construction debris had affected the aunties that he had installed or otherwise he had inspected i do have one other issue that i do need to address with the court and i'll do it on my well you can't do it on rebuttal because he will have a chance to  address that so i want to you take book out take the time you can we at him for one minute ok so give us the highlights so he'll highlight the highlight is the cleaning of the property and in the contract of insurance contemplates that interior dust there i'm explaining their exclusion with regard to interior dust they did not exclude the exteriors dust which everybody agreed migrated on to the property on the outside and has affected the on ing railing and the railings the awnings which are retractable for this outside area the restaurant and so that was not something that everybody knows it was there and it needs to be clean in there was a cleaning estimate of sixteen thousand dollars some odd dollars which was made it was the exterior dust was not excluded and it is something that should have been covered and it a minimum and it's got to exclusions or limitations right just an address them no no he didn't he didn't get to the issue of that particular issue of the cleaning because he said the cleaning had to be the result of a direct physical losses the restaurant was open each day parts of the restaurant were closed off mr snyder the owner testified that there were parts of the restaurant that were regularly closed off and were inaccessible he had a full time crew in the restaurant and then he had an outside company come in on a daily basis to clean it in the also test that he never had turn anybody away people did walk away but he didn't personally turn somebody away he wouldn't do that but people came in and walked out after seeing what was going on he was giving people mask free drinks where you could to keep them there and then just one other issue  and so there was a methodology that showed the damages due to the restaurant being slowed down and mr snyder testified that there were times where they closed off areas of the restaurant and so i will reserve the balance of my time you'll have the during its opening argument st the district court properly exercised its obligations under dobber and conducted an exacting analysis of the experts methodologies as proposed by barry's the district court has wide discretion under  to determine a what it looks looks at when analyzing those methodology s and b the conclusions that ultimately comes to now that discretion is broad and by precluding barry's experts the district court made the next step which is because barry's was relying solely on those experts to prove any actual tangible damage to the restaurant when those experts were precluded there was no evidence at all for the tangible damage claim and summary judgment was properly entered on that  nd all that was left after the preclusion of various experts was its claim for cleaning now neither the policy language itself nor the case law in florida or any other jurisdiction has ever supported the proposition that expense associated with merely wiping a foreign substance off of undamaged property which remains in use constitutes direct physical loss or damage under a st party property policy and if it pleases the court i'd like to address each of the experts that were precluded one by one in the order that they that are or clearly it wrote me correctly or or a finding of law one of the other or what or if i supplied that one of the other correct either misapplied d'albert or one of his factual findings was manifest erroneous based on the record and i don't think there's any any anything in this record that would support the contention that the district court's findings of fact as to what the experts did or did do was manifestly erroneous for example mr posada the audio and lighting expert he testified that the only methodology for determining the cause and extent of damage to audio and lighting equipment was a q c diagnostic test a test which actually involved opening up the materials running from through a battery of tests and then determining the cause and extent of the damage he conceded multiple times it was the only methodology but he didn't do it instead what he did was a perimeter walk around this outdoor restaurant years after the construction listened to some speakers not all and visually inspect the components from ten to fifteen feet away there's nothing in the record upon which the district court could have found that this was a reliable methodology for diagnosing damage to audio and lighting equipment frankly i think it would have been an abuse discretion to let him in on this record  there was a point made during argument regarding our audio and lighting expert and i believe his report is in the supplemental appendix and i think looking at his report as opinions closely indicates that what he was doing was not affirmative representing hey this specific thing caused damage which i'm now hearing years later what he said is visually i don't see anything wrong with this and to the extent that i'm going to determine what specifically is wrong with it i need to open it up so i think you need to understand the need to be a distinction between what their experts were testifying to the ultimate conclusions which were very specific and all rebuttal expert which essentially just said i don't see anything wrong with this and i need to test it to find that out i correct in understanding there are three cleaning claim which is alleged to be a form of direct physical loss or damage there is a later claim for actual tangible issues audio and lighting on equipment which is also a direct physical loss or damage claim but it got brought into the case much later after the case was already ensued and there is a rd claim for business income that's how i categorize them each one of those require a showing of actual physical loss and all of it to pay dirt on they do they do your honor so the way this policy works it's not an uncommon type of policy so it's got various coverage forms one coverage forms for direct physical loss to property itself which courts have consistently held that what that refers to is some alteration to the property itself  there's the colombian it case it's i think it's a district court case out of maybe oregon we cited in our brief the court case as it perfectly it says the mirrored here it's of molecules to a surface without more is not direct physical loss or damage to that property because there's no tangible change to i think the universal images case which is a i think it's a six circuit case out of michigan says something similar that just mere cleaning of something with a luti scientist or a judge would characterize that as we are at here ends of molecules which are your honor and the record here is clear that once barry's experts were properly precluded within the district court's discretion all that was left was the cleaning claim which was not direct physical loss or damage it was it was expenses associated with routine cleaning using what barry's owners and even its main person maintenance personnel described as their regular cleaning materials dust rags  blowers misters all the stuff they normally clean the restaurant with just more frequently that's traditional economic loss so turning back briefly to the to the experts mr thompson the awning expert although he was qualified we're not we're not challenging the district court's findings on qualifications his methodology was essentially non existent his opinion was that dusty observed years after the road work was in fact sediment from the construction and when asked what's the basis for your opinion he said well i'm assuming it's the road work because i had at the restaurant when asked well what mechanical components of using damage he said while i saw dr damaged well why do you think the construction dust damaged the drive belt i couldn't tell you seriously it's not a methodology at all it was pure speculation and it was properly precluded mr briggs whalen similarly was precluded for having no methodology at all he walked around the restaurant again years later and i'd like to point out that there was a stipulation that dust migrated during the period of the road work into the restaurant but that's not the same thing as saying that the dust that these experts are finding four years later in an outdoor restaurant is the construction dust from four years before but that's exactly what these active are saying mr walker on the restaurant for about an hour his report indicated that he had seen damages a variety of building components but during his deposition what he testified to was that the only thing he saw was some dust on framings which hadn't caused any damage and some what he characterized it as a huge paste on a railing which he touched it to determine that it was construction dust from four years before now there's nothing in the record to indicate that that's a reliable methodology for determining what damages occurred as a result of construction dust that's been in a restaurant for four years and another point that the district court made which is that even if that methodology was reliable which it wasn't he essentially had nothing to say about the damages in the restaurant mister you couldn't with any degree of burden is to show is some direct physical loss or damage during the policy period itself and the policy period i think was september of thirteen the september of fourteen as of four years later when the actions inspections i think there is a way lho was in december and for that that was the same thing erd the policy correct and i think the fact that none of these experts didn't need testing is important because what you have here is a significant analytical gap between what they're seeing in the restaurant and what their conclusions are and that gap is an appropriate thing for a district court to look at and conducting a dobber analysis i think that's i think your honor you made that issue in the in the u s b frazier case that's the analytical gap between the direct physical loss or damage in the st instance so if the order on appeal is affirmed asked of the cleaning and the tangible damages presented by the experts the order should be affirmed as to business income because there needs to be some direct physical loss in the st place what that type of coverage is for is say a fire in a restaurant damages two out of three pizza ovens and as a result the restaurant is unable to meet the need to produce the same number of pizzas that sales go down that delta between what they were selling before and after versus what they're selling while they're getting their pizza ovens back on line that's what this type of coverage is for it's not for just a loss of sales due to some casualty outside of the restaurant so as a threshold issue there needs to be some direct physical  damage and once that's met the insured berrys in this case has the burden of showing that the loss of sales or whatever the business interruption that they're claiming is is caused a leap related to the direct physical loss or damage and that was an independent basis for the summary judgment on the business income claim and looking at this record i've gone through with a fine tooth comb there's no evidence on which barry's could rely to prove whatever it claimed was direct physical loss or damage actually was the cause of their loss of sales as opposed to the fact that there was road work going on fifty feet outside the restaurant that the main ingress and egress out of the restaurant was severely hindered it was never blocked  missed feltman five minutes thank you with regard to the issues as it relates to the case law on the direct physical loss in the issue of cleaning which i think is covered because it's not excluded the extra cleaning under the policies and all response see we started to cross link which is a case of the northern district of georgia which was construction and there was dust and it was covered and there was payment by fidelity in order to have that cleaned we also cited western fire shares company versus st presbyterian ice out of colorado that was gasoline vapors which needed to be cleaned and these are things  oregon supreme court one thousand nine hundred and three and the had somebody would rented a house and they had a methamphetamine lab in there and then it left the smell in the vapor from methamphetamine and the cost of removing the odor was found to be a direct  physical loss we also like they have the case law nationwide is sort of set up sort of coalesced around one of two tests rather one if we if we look out there one is whether or not there tangible damage and the other is whether or not the property has been rendered unused unusable do you contend that this fits either of those tests is not known because it does in the cross link and in the other cases that i've cited it's not necessary the property was rendered completely unusable is that there needed to be cleaning i mean you could go and live in the house that smelled like the person who had rented it run or methamphetamine lab lab in it but it certainly wouldn't be certainly wouldn't be melon which is out of the new hampshire which was one that was just a cat urine odor from another condominium unit and that needed to be cleaned because even though it didn't fall into what the defendants talking about was this direct physical loss or damage a i'm talking about this now because i stand with the court position is with regard to the experts and that is something that is loss of a direct physical loss under this case law so there is there are two bodies of case law in the united states that hasn't been settled in the state of florida and some of them require do require this this this direct physical loss which we thought we had shown to our experts and then there's this other loss by way of the cleaning which is not excluded which should be covered i wanted to just go back and i did and i understand the course position with the experts i do want to just make a couple points neither of the parties as just to be clear i don't think that we have intended to communicate a position about it we've just trying to ask sort of difficult questions about sides ok thank you your honor the the issue of the q c diagnostic on the sound and lighting system our experts testified not only was the lights not working and the speakers were felled but that it would cost more money to do that diagnostic which their expert didn't do either then it would be to replace the system because of the these have been felled by construction debris and had knowledge and experience in being able to assess that type of damage whereas their expert had no experience in that and kind of went in and order to be able to present your letter that he is to court made a mistake it's findings of fact regarding methodology correct because our our client our defendants had the experience and did do the typical testing within the industry or had experience in construction losses before whereas none of their experts did and they did what they testified they had done previously and then finally on the issue of  e mr briggs well as test which what he testified he's a member of the of an institute with regard to cement and its testing and he talked about the tactile test their expert his test he went around with his finger and he licked it he had a lick test quote unquote i'm not kidding he did a lick test and he said no this is all from the biscayne bay it's over there about a  mile that was their expert so i am saying is in these type of cases you have to look at the experience of the experts these are st party cases it's normal that they come in time passes and they come back in and look everybody stipulated that this is just action dust migrate on the property and our experts had the expertise and had done stipe of work before whereas their experts had not and i think that the judge should have looked at this and understood that this is the fact finding in the methodology