facility in malibu and it and its competitor defendants have a similar drug addiction treatment facility called cliffside as between passages in cliffside the parties have four claims for false advertising under the lanham act all four went to a jury and all four were decided in passages favor passages of he'll focus is on the st jury question and the jury question that there were focusing on has to do with the passages review page one was that there was a false implication of fact that people would read those ratings and understand them to be based upon clive surveys and that would be bolstered by the narrative which in fact had go to web sites and see ratings it is presumed that those are ratings are based upon information by somebody who's actually experienced the product but that's not actually were the jury racket i talked to two people instead of fifteen and they thought the place was terrible and i said the place was terrible it wouldn't be a false representation of webb those two people said but it would be sound one person is five people ten people it doesn't matter how many to say that passages was terrible though they can represent on the passages website that it was terrible and they can give quotes about its terrible ness but the undisputed evidence was the facts look for notes surveys witnesses information and had absolutely no evidence whatsoever that anybody from passages had inquiry was made by the editor in chief in two thousand and sixteen and it was prompted by an inquiry by passages about why its review remained that we believe that they do from the moment is that they maintained what we contend is an advertisement they need to have some sort of substantiation for the  well i i don't know we have to lay out a massive lay billet he begins in terms of who we're going to get to later i believe the last is argument because passages didn't you know that this was a commercial advertising by their competitor but certainly review of passages was substantiated but certainly have some time soon after their purchase particularly given the number of inquiries by passages about taking down the river you know put them on notice that there was something wrong with surveys and care because of their comparative advertising scheme which is to use their own inflated rating of five stars and to superimpose that or place that right next to court messed up one hundred and ninety two thousand people one hundred and ninety two thousand customers came to this passages review page during the period of time that it was maintained by defendants these are not one hundred and eighty two thousand passive customers in the way there's somebody in mind be watching a television show and a commercial comes on and people aren't paying attention to it they're not interested in  two was passages so why were these people putting passages so frequently in the browser is because passage is the brain and in this passage is spent tens of millions of dollars on advertising mostly television advertising so people would know the passages name and passages brand and come to passages what the defendants did is use the passages advertisement suggesting that if own clients gave it one star when in fact that was false and then they would superimpose or put next to it their five star rating was that bad but i want to turn briefly to the trial court orders the trial court did not let passages precede on its damages claim i think it's because the trial court believed that becaus there must be a causation expert testimony of cause nation must come from an expert excluding dr williams claims as economists the district court said that he was not an expert on causation because he didn't have experience in the addiction treatment field in fact many decisions from this court recognize you don't need an expert in causation the district court compared this case to a toxic to case and of course it should be undisputed that in a toxic tours case that a jury can't be expected to have common knowledge of how chemicals affect the body and cause harm here on the other hand example for of a marketing strategy of other facilities he doesn't account for the lawsuit or the negative publicity that flowed from a lawsuit unrelated to this when a patient died a have to go to a jury just because the parties want to the jury of the evidence is insufficient to them in a rational finding by the jury on the point and basically the court said no jury could come to a rational conclusion about what flows directly from these falsehoods and i guess what i'm trying to figure out is whether you think dr williams did in fact show what would flow directly your element then really could be expected to make a big difference and us firm it is an expert opinion saying this is a really call important causal factor now i still think that would go to a jury and explain to a jury but it's possible already that the judge could say that that variable in the evidence for the variables so powerful that the evidence the failure to account for it disqualifies the expert but there was no such evidence of such a powerful causal factor evidence not just speculation but hard evidence that the expert has not a talent for the variables that a reasonable expert would account for and in fact dr williams explaining for example why the published city of the before and after the publication of this website should be presumed to be able i mean how does one actually waive the a fact of publicising the district's cords defendant i'd like to begin with what claim was actually tried to the jury because what my friend from representing passages tells you is demonstrably false so in this case there are two surveys star ratings come out now mr levin tells you that the st is brief he says that the st question that went to the jury wasn't about the process statement which only a few one hundred people saw but rather was about the review itself that is totally false and i'd like to walk through the record and explain why so a special verdict form was given to us before passages closing you'll find that in f f e r fourteen to seventeen it had only two liability question one is about the process statement one is about the mission that's not surprising because that's what was litigated the entire case we filed many motions claiming that if they were arguing about the review that would not be then argued after mr levin's closing that the process statement claim should be time bar and the reason i argued that is because the process statement as i mentioned a moment earlier says that the owners of the center will distribute the surveys and passages admits that from the minute that statement was up they knew it was false because they knew that they didn't select along i to give them surveys so in response to a spontaneous the judge divided i divided what was one question before into two because of time bar issues so i want to just put that out on the table because it's really important a lot of things flow from the fact that the only thing that was  their argument we didn't write this it's something that was written before we never change the word and so we had a host of arguments about successor liability and they disclaimed that argument and i think if you quotes from the court's order not focus on what the lawyers argue i want to make sure we're understanding what the jury found in a special verdict form because to me it's immaterial necessarily you will argue it whether there was a finding in this case against your client based upon the process stated correct yeah that's correct ok and what do you understand was the specific finding from the jury was it not that the fix falsely advertise that the review of the of pastors on the fixes website was based on surveys from clients a passages is that that's what they found and they're grateful so why wouldn't that final necessarily implicate the quality of the review itself why would we necessarily focus just on the nature of how the survey or  it's actually part of you otherwise it would be false in the context of the manner so why would we focus on that rather than what you all are arguing was litigated so i don't disagree with anything you said except that there are specific legal implications on questions of causation throughout the case from when you on this issue because if only a few one hundred people saw the process statement and therefore understood the review to mean that it was based on surveys that's very different than trying to say two hundred thousand people saw the review if in fact judged the quotes are true the quotes happened we never had an opportunity t that and we would have the issue that was presented and design decided by the jury was whether the process was false so with that said let me turn to some of the legal issues that flow from that and i would like to begin with the exclusion of passages damages expert so both dr williams and passages counsel told the court that he would not testify about causation but dr williams intended to testify that his regression showed that our client's false difference is in the data are explained by the model i don't see anything in here that says that the methodology is so often turns a regression analysis was incorrect that there wasn't multi clarity there wasn't linear dependence there was in the types of methodological that the model itself of the methodology in terms of regression analysis itself was incorrect but i see your choices about variables so let me try to understand action but that that would based upon our case go to issues about the weight of the model and whether or not it's persuasive so why would we reverse on the fact that there was there is no explicit finding that goes to the actual regression methodology which would deal with this is just a modeling itself ok so let me take the question on directly what dr williams offer here was exceptional it's the type of regression that the supreme court in days more labeled quote so incomplete as to be inadmissible as irrelevant now i appreciate that there is a line beyond which it's an abuse of discretion for a trial court to exclude but there are many cases that find regressions that fail to control for any pertinent confounding factor to be irrelevant that is what happened after question how do we know that in fact when the district court judge actually show that in fact that we don't have anything on here it's very important that i explained the facts on the record on this because i appreciate your question but this really is an exceptional case so this is a case where dr williams did not use variables that we then disputed he chose no variables and let me explain what i mean by that st he showed up and he said i'm not testifying about causation that's a red flag when an expert says i'm not testifying about causation that maybe he didn't consider confounding factors next your honor his report didn't attempt to address any confounding factors let me explain what i mean by that if you assume that nothing else impacted pass business anything that happened in two thousand and eleven the fukushima nuclear disaster in japan would have accounted for sixty five million dollars in lost profits now i get your question i get your point if he had said well i consider it a couple of other things that were possible and i didn't think that they were significant then where in the world of oh maybe it's an abuse of discretion because it goes to weight and not admissibility that's not what happened here how many variables that he included in his model very and then he says i'm going to assume for the buck for forecasting period the same the same profit margin ok that's reasonable that's the experts do that but we pointed out to him again at the th hour you know he didn't this that in two thousand and eleven the very period where the break is in his model passage just fundamentally change their business model and started expecting a massive number of lower profit insurance clients but i know that you guys will continue this conversation indefinitely but i have a question on another matter and that i'd like to raise before your time is and that has to do and thank you from there so the short answer to be perfectly honest judge graver is i don't know on his feel warrant it clearly is finding that this is not an exceptional case was not an abuse of discretion when it was right with regard to cost both sides moved for costs and both sides made arguments that we are entitled to costs and i haven't considered carefully the question you ask as to the level of discretion and detail that a didn't meet its burden to prove with certainty what the profits were so that gets us to the zero to sixty thousand dollars range and the reason we think isn't necessary is because a judge wilson said he would award sixty thousand  on but it would it would have to be under sixty thousand dollars though because he goes into great detail to explain that none of the measures the passages puts forth establish causation so they did not prove them out of profits or disgorgement he used his equitable discretion to pick sixty thousand so if your point is in a post w damages claim for the review alone the nd point i'd like to make and this has to do with whether dr williams looked at bad publicity he did i refer the court to our one