you better get i can i don't know how to control it it's it's controlled by you mr benson your machine can you hear me ok right now now i can yes ok i'm sorry maybe i issues that i wanted to address this afternoon in my comments the st is why the damages ward is manifestly it had this case of the nd and why this court can independently order a new trial and the image is only because of two evidence the court focused in on the fact that there was evidence from which we jury could conclude that there was both agreement on price and quantity with respect to the contract and when you fast forward minimum volume commit and so we know that the jury found in favor of national the tiriel on that st play for each country you know it's not like this is a general type verdict where we don't know which plays that national material one we know that the jury returned a verdict on the st play not the nd or rd and we know therefore that the jury necessarily found that there was a minimum only evidence is because when you step back and you look at the defense strategy in this case the defense was that there was no contract at all they didn't agree to anything so it's not like yes i took a position that well we only agree contract it could only find the contract terms were the ones that national material proved in this case which includes a one hundred and twenty one thousand five hundred dollars minimum bottom commitment so you know once you recognize the g s size trial strategy was case was a sort of oh you're either pregnant or you're not from a good defense so the contract issue you come down to the fact that there was a minute breach of contract john who will testify that they said absolutely stop on product from national material in september of two thousand and eight it is understood that at that moment in time national material had eight thousand three hundred and thirty eight tons of specially made products just  so again this six million two hundred thousand dollars figure sits out there the jury's note indicate they accepted it but they didn't follow the instructions that said add those two numbers together you don't take those two numbers find the average and then assume that you would have known about the note before the jury wrist holger discharged do you think that the jury could have returned to the jury room and been told to follow the instructions we have no rule on that now but this was tried before that i do think i have yes and i do think that the jury could have been directed to return drew i'm not sure exactly what instruction would have been given  of discretion which is artist's i mean that's part of the standard of review we're dealing with here you know with can you say that no reasonable judge would have told of the parties before discharging the jury that there was a note and that we should talk about this bulb racial very well done so like to commend you both on us but the my question is assuming that there was no now found but the jury verdict was what it was what would have been the position what would have been the strategy at that point oh i think at that point we'd be right back to the post trial motions and the position that the damages were you know either manifestly happened which we believe they are or just kept absolute no relationship evidence was seduce as as one of the remedies in this case if you pull the verdict into what the jury says intent what's and we think the jury's intent was to award the seven roughly seven million twenty seven thousand dollars about you know ninety five dollars  to create so that that's that's the remedy there but i think you can do it with or without the know either way it's either it adequate or it's manifest it has no connection to the evidence nets the point you can't hide this number i mean spry our experts updated report and that report was kind of critical i mean it was a one million dollars difference to lost profits calculation and what's really kind of incredible body is we're talking about one mathematical change it was the discovery that the cost of the parks was actually zero dollars seventy five cents per hundredweight less than what we thought we were because regional calculations based on winning the entire bid it turned out we thirteen but by the time we you know went through this appeal and trial counsel changed for the case we came back and we discovered that information was missing you know that and i guess this is another point you know the issue in this particular ruling really kind of transcends this case because it demonstrates that the judge did not have a clear understanding of the purpose and meaning of rule two hundred and thirteen are the two hundred and thirteen i requires parties said you know he his reason was that discoveries like x set and and it violates those rules which out without saying what rules he was referring to and so here we were three months before the original trial date with this supplemental report so there was plenty of times it was not you know one late game on the trial and then when the actual words entered are of the supplemental report of january of twenty eight he we were nine need that fix for a man on trial for going to have a new trial and then you know the other issue that we brought up with regard to trial her was the testimony of my fergus who was my friend and again kind of an important issue that transcends this case because the judge seemed to think that if it's expert testimony coming from a lay witnesses are and in this instance it was an expert testimony wasn't technical it wasn't scientific it didn't fit any of the categories of expert testimony it was late opinion testimony by an employee of our companies vice president general manager who had personal knowledge of the figures that you know kept all calculations are off property resale damages leaked to the extent that it would explain why you know that's a big if an expert seasonably supplements his report he's exposed or she's exposed to cross examination and they change their opinion so is to maintain these records to know these numbers to calculate our profits and losses and so on within his personal life it just barbera so i think i was asking whether or not correct me if i'm wrong but i think he was asking whether mr f touch on so let me ask you this is it so it's your position that the court should not order adductor because of the representation is made by  you know sometimes i can drive a resolution because sure it happened that's when i you're exactly right that's what i was wondering because you started out by saying i think we need a new trial but yet we do have the ability in order yeah  event the parties don't agree then yes so what relief exactly would you like to see mr ransom your honor we'd like to see you have to reproduce in the judgment amount to seven million twenty seven thousand eight hundred and not because the judge refused to grant us debt relief of the request for the prejudgment interest i think actually i think this is a number that could be easily calculated we have provided that information in our brief that's one thing that you write down  the jury gathered their belongings and left the court and judge mccain he then noted on the record that he found a piece of paper it was not attached to the verdict form and wasn't even right next to the verdict form despite an here it's not in the verdict i don't know what this means so there's no chain of custody that's been established and we don't know where this piece of paper came from and the piece of paper is i'm fine it is authenticated it is unattributed we don't know who wrote it and we don't know if more than one person we don't know who the we is in the description of the calculation is that we the jury or is it just two three people thirty seven people was this jury used was this calculation used to support a jury vote to convince others during the deliberations if written during the deliberations there's no of two figures and then it said it took fifty percent of that those are two separate constellations and when it came to no actually has a figure that is the result  those calculations the best figure is twenty five thousand and eighty eight dollars off then the county lation described so the description of the calculation is over twenty five thousand dollars difference in the result of the if these were written during the deliberations at all or if they're written during the trial itself we don't know where it was written if it was written with others present if it was written at home during the trial and brought to the injury room we don't know who has written all at once or if a calculation were done in a separate time or place and again as i said the calculations that are described  calculation that were done twenty five thousand dollars and change is a real number and the amount written on it doesn't match the amount written on the verdict the bottom line is we have absolutely no clue about this big piece of paper and even the trial judge didn't know actually physically left the court judge mccain he considered nancy's argument about this piece of paper and post trial motions did not use its discretion when rejecting their attempts to use its excuse to overturn this  assumptions that were given to mr cobb in connection with what contract he was swimming was reached we actually went through and disputed almost all the input he used and mistry then looked at the resale damages and said if you're going to apply resale damages here at most there are four hundred dollars i think it's a little bit less than five hundred thousand dollars or resale but she didn't think there were any resale damages because she's allowed to assume certain things too and her assumptions were that these products were not available when g s i needed the only testimony a trial on the inventory was for mr baker for d s i who said every time i needed a product on that list i went to an mc st and mc either didn't sell it to me because they had already sold it to someone else or it was rusted and they didn't have it available for and so every single time i went somewhere else and so mr i considered that too but she said even if you don't consider that his actual calculation we took for instance we challenge in dispute is use of the highest price for each piece of inventory he actually looked at the inventory and gave it a price but used the highest price inventory would be purchased immediately after that moment but remember there was no notice here that if there was a contract there was no requirement that any piece of inventory be bought in any specific time it was just over two years that was it and so to the extent that g s i would need to buy some this inventory because by any so we did dispute cobbs calculation for instance on price because he looked at one dollar point in time i'm friends which was the highest time the time at which the price was the highest instead of saying well prices were declining what if two years they bought this two months later damages would have been less and we didn't attack each and every one of those also mr t didn't employ the most favored nation laws in the last version of the agreement that the parties exchange with each other there was a most favored nation mr cobb did nothing to look at that he did nothing to see if and them see actually had most favored nation pricing for d s i or if they were giving other customers better difficulty in how an mc a structure this case it's the same inventory that they're talking about the parties have a dispute that any contract existed and then there was this every time it needed inventory that was on that list of pipeline inventory went to an mc st but my i guess my difficulty in understanding this is so this is this is a practice that both parties of both companies have been past bought large quantities of these products they have in their pipeline for when g s i required them so knowing the if you will shelf life of the materials why would an  you know that the scenario that took place not not entirely because st of all this was an entirely new process this was not part of a course of dealing lasted twenty years this is all new senior management all new purchasing agents  what the minimum volume commitment is but they actually said there was a minimum buy i think so now they're saying at the end of the day you had to buy the inventory that was in the pipeline if that's true and if we didn't need it right away there's no understand i'm not trying to get you to admit that there was a contractor to dominate or ny or anything on the record right now i'm just trying to understand if at the time that you're suggesting g s i went to an m g and said hey we want to buy this product and they said sorry we don't have it we sold it rusted whatever was that close to the time of the alleged two year contract or was it months or years after that when they went did you seek to purchase those think it resolved the pipeline in been dres and that's actually pretty important because that's the damages they're trying to add here and they didn't even ask for a verdict breach of the oh my what are agreement immediately after january when it was signed every time we needed a part on that list we would go to an mc and if they hadn't been given to us if they didn't we go elsewhere and their testimony was uncontroverted but that's what we did every single time they also could sell it to someone else if they wanted to and there was no there was no problem but the testimony at trial is that all the nine letter reman absolutely makes clear that even before the rule of evidence came into play in the early twenty levin or so the rule in the illinois high court was in two thousand and five was you cannot consider anything a earlier assuming that the letter is not even there and i don't even find it what with the position of the sneesby at this time and we'd be still in the same scenario you know i think i think i just agreed just as progress because we wouldn't be in the contract with several different terms that were just pewter and justice cain said i disagree with you there is no just you i agree with you there's no dispute that the jury found a contract i agree with there's no disputing that but there is a dispute on what exactly that contract was remember one of the jury instructions that an mc agreed to said here's our contract and the contract they described was minim no mention of pipeline inventory that is an absolute disputed term no mention of it in the jury instruction that they agreed to so the jury could have looked at that looked at the jury so the jury had was not told exactly what the minimum buy in commitment was the jury instruction didn't say d what an mc off the minimum going to was but the only term in the contract as described in the jury instruction that an mc descriptor agreed to wasn't there was a two year degree meant for a minimum tonnage of some amount and the jury that was left with that and left with if there was this other term it was probably waived by the letter remember and they came out with a verdict that is very close to the lost profits that were claimed by an mc there is no doubt that this court cannot change a verdict if it is within a reasonable flexible range of options that were given to a jury and this jury have the option of finding a contract finding either one her or burl terms and then the other term was waived it could have done all of those things it could have found for lost profits of a certain minimum tonnage which numbers vary by and mc's presentation throughout the case and the test and it could have transcript information to the right it was a huge spreadsheet that had calculations that mr ferguson made in advance of trial or the purpose of trial we had never gotten this document discovery and then for years before trial so yeah i mean that that's you know you enter into a case management order and you let it sit for five years and then attempt to enforce it no new case management order the court never met again never revise the order you know having been a litigator long time i find that kind of odd that the parties didn't get together and revise that go what i'm concerned about is that you're trying to implement an order that was out of date basically i mean it was based on litigation that was up on appeal that back and the disclosure was given to you at the time three months in advance which the rule only require sixty days if there's no got up which i couldn't find in the record and then by the time he rules the trial date have been continued like nine months so well whether it was relevant or not whether or not it was admissible or not i don't really know because that was really never  mr materials was never really given the opportunity to have their witness deposed or you would depose and i really kind of wonder what harm it would have done to allow that to be admitted can you help me with the production late production of those documents because they were not seasonably produced and you have to seasonably produce things to them whenever you look around here or in your office the judge barred those documents and that's not part of the appeal and mc never complained about or that issue for appeal at all so and and mr cobb relied on those bar documents when he filed when he submitted in the mended expert and so after that we get this reported revised after orton's fully amended expert report had dozens of new pages we circled the judge or a red line and the trial judge had and i go through that whole process that's a year long process when these were four years too late and i gotta say you know i understand you you have to submit amendments seasonally but it's kind of the seasonable and you have to back to case management i mean i understand if if a cow if the party is going to miss a deadline by a day or a month or for anything less than four years maybe that's a different scenario but you there that would be a very bad decision from the public point to say it doesn't really matter where years later is ok because you have two months before trial to redo your rebuttal expert or to redo all of your and don't forget were that we had to have product ready for delivery on twenty four hours notice we're talking about hundreds and thousands of tons of steel and twenty four hour notice twenty dollars to twenty five day going to their plants so that they can make their product and so when you talk about a minute there's a minimum volume commitment for the entirety of the contract but there's also the need to be able to this is what they call lean manufacturing you've got to be able to have it there on time and that means you also have to depend on the forecast they give you most a modest what their needs are good and so when you talk about that pipeline inventory it is i think it's what you have to have because it takes eight to twelve weeks to get the product that you have to have them placed so you can not be in breach of your contract and provide them with the material on the mates which is what they require and so when we talk about that pipeline image for  forecasts what they need and having it at the ready to do it but you know it's a breach of contract that they suddenly i get which they admit they did and start buying it from a competitor which they also within a day did you know if you look at now exact because it wasn't purchased when it was supposed to and then we do have the letter remits it's entered into in january of two thousand and nine that is an effort to mitigate the loss and that and the pricing on that was lower to try and resolve that single issue but again and you know the jury the jury didn't reach this was but the point is they they continue buying the products from our competitors and that's in the record as well that they did not they bought i would be facing right now is why did you do something to mitigate your loss by selling the stuff the scrap and instead just letting it sit so we did exactly what the law required to try to mitigate they didn't honor the letter agreement you know as and then there was some testimony that i suppose in mc suggested that yes i we decided because of the volatile market at the time that th quarter they went to spot by rather than buy from the contract during that time you know if you had some evidence of such oh yeah let it you know that in the material had bought in august of two thousand and eight expired from the from the from understanding this correctly for the reason that it wasn't purchased in the timeframe that it was expected to be use that's what this that's why they're going to the explanations roland mr vincent what do you have to say about the fact about the arguments that the two thousand and nine letter was strictly about letter repricing pricing for november december two thousand and eight hearts purchased then because that was where they were fighting as you were talking about there was a profit it's a fourteen month period now those prices there was fights over that because netflix lost profits so and they did this throughout the trial you know they play this game where they talk about the cost of the parts and the prices for this deal and it all relates to the letter agreement which was contract and what and you said without making any determination on the merits of any of those issues because it was only before you on summary judgment you said quote as the jury that will decide these issues now that i'm seeing got what it was he got this case to go to a jury but now i want to take the decision as the jury's hands is no credence to any aspect of what the jury did whether be the the what they call the jury note or even just the verdict itself and they want to change the verdict they have not met they stream lehi threshold in doing so the union planners case makes clea that the counsel for an mc in order to be successful must show some prove an element of damages was ignored the verdict resulted from passion or prejudice or the board or or no relationship that that letter really meant was a waiver of the issues at the very least that was a waiver of the high flying inventory to the extent there was a pipeline inventory claim here mc so their general manager and president both said they had disputed issues the parties got lawyers involved a lawyer and they had meetings from the most senior management of both sides and then entered into this latter agreement that mr ferguson's words described as resolving fully and completely resulting all issues and so that but now you argue that no we were entitled to judgment notwithstanding the verdict which in order to obtain met you darn having to say that the jury's verdict apart on their side based on the jury i don't think i am don't know that that's true necessarily i don't place a lot of emphasis on that now well let me let me explain what the reason here's we the parties have absolutely no idea what the jury thought we don't know if the jury thought there was a right it really doesn't matter for you to ask for o j and me on the one hand you're saying a one million and seven is within reasonable range of the other hand you're saying take it away because it's not within a reasonable range i'm entitled the jury basically didn't follow what i said should happen and so i want to jay and that is that what you're asking for well we're certainly asking out across appeal basis or hop you know peavy all of these claims absolutely we are seeking that because we think the testimony was clear that that was a waiver of everything and should have been treated as such and so we don't even think we need to look at what the jury thought because any judge could take it out of the jury's hands by saying there was no testimony that it's anything but