may please the court i represent sunrise a holdings seemless arrow and melody or take i thank you for granting my motion that allowed me to save time using zoom by showing you one of years later in two thousand and fourteen when plane of us were in the midst of selling their property to trammel crow a developer who insisted the sales price be reduced by up to three hundred thousand dollars to put into an escrow for environmental remediation automatically one hundred and eighty three thousand dollars of this escrow was used by trammell crow for remediation projects it shows to undertake specifically putting a vapor barrier over th contaminated ground water not dirt but contaminated ground water and under the mixed residential commercial development on the surface in dismissing the case and this map here shows the circle  in dismissing the case on summary judgment after the witness list had been prepared and filed and entered in the pretrial order the magistrate made two critical but erroneous findings st he confused the damages that my client's incurred which was the one hundred and eighty three thousand dollars reduction in the sales price he confuse that with the damages the tr the the big developer incurred which was the remediation steps that they chose to take what trail a crow did with the money was its choice in plain and simply plain of sales price than an expert right because the main issue that you all are deciding is c a vigil excuse me the magistrate make a mistake by imposing too exacting a standard in dismissing the case because and seventeen says that an individual owner can testify without an expert if they have personal knowledge of their business and the factors that lead to the loss profits and if that valuation the loss in this case this is based on a straightforward common sense calculation and certainly my clients were aware of the documents which led to the reduction in their sales price it was  the rd amendments to the purchase and sale agreement and then it was the right amount reduced from escrow nothing could be simpler and also my clients have that straightforward calculation so they met the requirements wise master finding test and they should have been allowed to testify at the trial which was a mere few weeks away and and yet the court imposed a standard which even you on the panels you've been with have said is too much individuals do not our cases don't need an expert at every stage and judge judge determine what the losses from the best evidence the nature of the case of mets so we know that there was a trespass that's what the court below found that's in disputed that circle k gas station put benzene under at least a portion of my client's property and my clients have the ability to testify that they lost sales in the case should have proceeded on that ground alone now reasonable and our belief as yes they can make that argument and they were going to make it with their expert and then we had a rebuttal expert lined up kat wilson probably knows more about vapor barriers than any expert in the state was prepared to rebut any of the allegations or excuse me any of the testimony that the expert gave on how large a vapor barrier was needed you may remember from the map i showed you there was testimony that that the contamination didn't cover the entire footprint of the site well if that was the argument that circle k was going to present in district court then we had a rebuttal expert ready and prime to respond to that but what wasn't right was that the magistrate again said that we would have needed an expert in our case in chief why wasn't it right it's not right because we had factual experts to demonstrate one to trespass which we obviously meant all elements and sue that that what was chosen hass family environmental rd one and forgetting right now all of those individuals could have testified that there was contamination that it's customary to put in a vapor barrier and automatically the jury would have determined the extent of the damages i have seven minutes left i'd like to turn to another issue for us and that was did the district court of discretion standard on this next issue i'm going to raise to be candid with you and that issue was did the district court err by not letting us bring up the issue of lost opportunity depositions after discovery cafeteria it would have been easy to cure any prejudice you know the argument is that my is that we put in the last opportunity damages on the last day of the of the discovery area and it is a strategic decision on the part of litigants as to when you have depositions  and and the argument that the court made was that the depositions had already occurred but in reality that was a choice that circle k made they could have held depositions later and in fact there were depositions scheduled as i said through just for comedy and and then the doors open a little bit try to rush in with a bunch of additional damages which was the substantial increase to circulate exposure you know to it you know from mike my clients or the little guys and so yes one hundred and forty thousand dollars additional lost opportunity cost damages you know are a big percentage of the total but that th expand the scope of the case that much but the reality is you know we look at the woodworker supply factors do we shut the door entirely just because my clients put in at the calculation of the damages on the last day of discovery and you know we frankly we we met the requirements we we submitted the supplemental disclosure pursuant to the to the time deadlines to the case management order and if there w prejudice it could have been cured is it your position you know there were there was some additional discovery on other categories of damages is it your position of the really not meaningful difference between  discovery or complexity for a lost opportunity versus the other other categories in other words there functionally equivalent rather different rather than different kind of you bench we had given all of the documents related to lost opportunity damages early in the case what we did in our test ten supplemental disclosure is we provided a number related the amount of lost opportunity images in hindsight i probably wouldn't have done it because it did raise the issue that it was late but the reality is all of the information related to lost opportunity damages occurred earlier in the case and all we did was present a final number which you know apparently caused the magistrate to say yes we're we're increasing the complexity of the case significant but no i don't think the complexity the case was significant that number was predicated on the additional time it would have taken to close on the purchase and sale because of the contamination and so there is a lost opportunity damage associated with that additional extension easily said from the jury could have dealt with and easily something we could have dealt with in depositions if i could reserve the remainder of my time for rebuttal i greatly  st discussed the issue of whether that district court abused its discretion when it ruled that an expert was required to establish proximate cause of damages and then i'll go to that later witness issue that the plaintiffs raised and then finally all discuss the issue of striking that plaintiff's late disclosed or untimely disclose damages so st on the on the expert requirement you know this is a case that arises out of a petroleum  spill gasoline from underground storage tanks the plaintiff alleged in their complaint that that under that spill migrated laterally reach subsurface groundwater under the edges of their property and caused residents of the property so this is not a situation of you know a cow crossing a fence where a lay person could identify it the plaintiffs specifically alleged that these chemicals in the petroleum caused significant environmental and health hazards so the core of this case from the very beginning when they filed their complaint was involved complex questions of environmental science  and although circle k didn't dispute that the petroleum had been released and that it migrated under the surface through the groundwater mostly because circle the expert circle k had hired told  not circle k disputed the scope of the release that disputed whether the least caused any environmental or vapor hazards importantly before the plaintiffs filed suit five  tested and analyzed the contamination and so resist counsel you know held up that piece for the record app at the in the appendix showing a map that map was based you know there are cases under the life wise standard that an owner of a business can testify as to loss loss profits if the owner of the business has personal knowledge of those lost profits and it's a simple calculation this is neither st of all the one hundred and eighty three thousand that was ultimately spent from the environmental escrow was not spent by the plaintiffs the plaintiffs didn't control those funds they didn't they didn't authorize how those funds would be spent they didn't  evaluate whether those funds were necessary for the contamination those funds were all spent by trammell crow and in doing the remediation so the st standard under the lifeways doesn't apply because the plaintiffs don't have personal knowledge of those specific funds and how they were spent they were spent by trammell crowe's expert to do the remediation the nd was it wasn't a straightforward calculation it wasn't easy to determine the one hundred and eighty three thousand is for this in this in the us and so we can  you know evaluate those damages and even if both of the life wise standards were established they still didn't establish that the remediation expenses that trammell crow agreed to pay from this environmental escrow were necessary to resolve the health and environmental risks that they alleged existed from the petroleum can tammany oh so can i interrupt y have to reject that buyer and find another one that doesn't require that regard the circle case position was the vapor barrier that kara khan had recommended was unnecessary based on the other experts reports and indeed trauma crows initial expert had said it was unnecessary but that's not an answer my question should i think it's a fair question and sure and be answered directly which is circle case and to these  we reject your buyers condition and so go find another buyer for the same price circle k is saying that the buyers position was for business related reasons and no caused by the contamination which mr shell testified to in his deposition he said we we wanted to do this extravagant vapor barrier to have a clean package in order to sell the property later whether it was necessary or not because it was such a big you know they plan on one hundred and twenty million dollars development so three hundred thousand dollars to two dollars tram a crow was a very small margin and it was worth that margin to not have to answer questions later on about what you know what did you do with any environmental risks if there were any that was a business decision and you know if circle k were in that business in that position to make that decision or i were in that position i very well may make the same business decision but that doesn't mean that position was caused by a need to remediate it was made because trammell crow wanted a clean package in the event that they ever sold the property in the future so i think those are very important points and that's what the district court identified in evaluating that proximate cause ation piece of it under the under colorado law specifically articulating that you know that businesses are maybe perfectly appropriate but it wouldn't be the proximately caused by the petroleum spill because it was a was a decision made for other reasons heavily disputed whether any vapor barrier was needed at all even the colorado division of o p s miss frazer from o p s had indicated that a vapor barrier may not be needed at all so this was a question of you know did the spill cause health and environmental risks and you had experts that disagreed on it it's something that's beyond the can of an ordinary juror and it's something that would require expert testimony to show that the petroleum spill caused health and environmental risks that needed to be addressed or remediated and that's how the plaintiff played their claim from the very beginning they specifically alleged that that the contamination migrate this is in paragraph twenty two of their complaint migrated onto the impacted properties and created environmental risk and health hazards to the impacted property so they're drawing a chain of causation to we need to read mediate the property because it c health risks and that question whether benzene and these other petroleum contaminants would cause a health risk when it's you know hundreds of ground hundreds of feet underground through groundwater was a question that was beyond the count of ordinary jurors and required expert testimony and you know this court has applied a similar standard in that magna tech case yeah and mitchell versus jan corp which was a case where a judge court held that proving the level exposure from flammable products such as xylene hexane and happen required expert testimony because the question of whether exposure to those chemicals would be hazardous to human beings at what level and for what length of time required expert testimony and that's the way the plaintiffs frame their case from the very beginning is that the exposure to these petroleum candidate ten minutes and benzene was so significant it required that it resulted in health hazards to human beings and therefore needed to be remediated that was an issue that was disputed but more importantly that was an issue that had to be addressed by experts and the plaintiffs conceded that in the in the scheduling or that they filed  that was filed the plaintiffs conceded that they would need an expert environmental consultant or environmental engineer to evaluate those risks to evaluate the size of the exposure what would be necessary to address the exposure an extensive hearing and addressed all of the woodwork fact woodworker factors but let me get to that to the prejudice the plaintiffs knew about their damages from these that delayed closing in june of two thousand and fifteen to twenty five years before they even filed suit  the trial was set for november two thousand and nineteen in that final pretrial conference the case at the point the court ruled on this was already over two years old there had been hundreds of thousands of dollars incurred in discovery but as the as the district court recognized this theory of lost opportunity costs was based on a theory that had the plaintiffs had the money to begin with they could have reinvested it in other real estate and the real estate rose in prices or increased depriving them of the ability to gain higher profits from reinvesting in that real estate w had already denied the plaintiffs the ability to have a diminished value expert in october of two thousand and eighteen and then so by february of twenty nine thousand when the court's holding this hearing and saying i already denied you the ability to have a good mediation value expert this kind of expert looking at real estate property market conditions would be a new expert with a new round of expert disclosures circle k then you would have had the right to and probably would have hired an expert to respond to that expert and you would have had additional depositions for the expert discovery in addition to mr lew sorrow you have also had you know that the substantial costs associated with that and importantly that th district court's decision you know applying to woodworkers factors is reviewed for abuse of discretion the question is was there a manifest error in the court's determination that there would be significant prejudice and respectfully i don't think there was a manifest error because the court said was worth one hundred and eighty three thousand so if we applied the proportionality factors and didn't you know higher extensive experts to look at damages and that sort of thing by the time the courts evaluating the woodworkers factors in february of two thousand and nineteen the plaintiffs had tripled their damages completely just increase the size of the case it would have had to we would have had to start a lot of discovery from scratch and the idea that the plaintiffs just print were providing a calculation at the end of discovery is inaccurate it was it was predicated on an inability to use the money for other real estate investments there were no documents disclosed about what those other real estate investments were what the increase in prices w those sorts of things we've had in gauge an additional round of discovery in obtaining the documents and that sort of thing and the plaintiffs knew about this in two thousand and fifteen and they didn't disclose it until december of two thousand and eighteen and there was no explanation for that and so the court applies all of the prejudice isn't the only wood workers factor that the court needed to apply it applied all of the factors but it found based on with record support that circle k would be prejudiced if it had to  have it exactly right if plaintiffs hadn't agreed to put up to three one hundred thousand dollars in escrow then the deal would have gone south korean intro trammell crow insisted that the money be put in escrow ultimately one hundred and eighty three thousand dollars was taken from astro and that's my client's images and i disagree with mr rakim suggestion that my clients didn't have knowledge of that loss of course they had no knowledge of the loss their check was smaller it was one hundred and eighty three thousand dollars smaller so of course they had knowledge of their damages and once again it was a straightforward calculation misimpression that there were no residential units on grade at this property which was a misimpression that circle k gave them and we believe you know at the trial the jury could have heard testimony fetter out the truth of the on no trial date was set you're absolutely right matters could have been cured and then we hear mr rapkin say well we need a new expert new experts would have been in new reports what we're finding in this case and lots of cases is frequently a defendant who's well healed says we need an expert for every facet of the case to show lost opportunity damages wouldn't require an expert there is that wonderful case from judge martinez o best evidence because experts tend to sway a jury more than factual determinations do frequently so no please don't get sucked into the notion that we would have needed a whole new round of experts a whole new round of reports on this one hundred and forty thousand dollars in damages it's not three times the damages the last opportunity cost damages were only one hundred and forty thousand dollars yes it was a lot more but it's not something so incredible that that the synthesis of the woodworker supply factors specifically no prejudice shouldn't rule the day on this issue thank you so much for your time your honour's your time's expired we appreciate the arguments against i think we understand your positions the case will be