sufficient to reverse remand this for a trial i would tell you that predominantly what is being presented are issues of fact that is the actual factual arguments involved in the case one of the few legal issues that i would raise is the difficult did not even address at all what i would call a vanilla breach of contract claim it is not addressed in the motion for summary judgment but diversified is not addressed in the dish of court's opinion and what i would call a vanilla breach of contract claim is something as simple as did you get what you paid for if i order a pizza what exactly is your bridge a contract claim because sometimes in you briefing it seems to be they did nothing at all in terms of repairs other times it seems to be they didn't do that at some stuff but not an engine overhaul so which which of those two is your client but let me let me address that it's both  one reason we focused so much on the engine over home is because it provides an objective measure and objective measurement of showing the what they said they did they did not in fact did i hasten to add it is not the only thing that they did also claim they did nothing at all i will tell you that i do not believe and i don't think that the record reflects that they did engine overhauls or rebuilds that's correct to say they did not let me put it this way your honor if i were a pizza with the works and you see me a plain cheese pizza you breached the contract you didn't give me what i would or didn't give me what i asked for and on that issue what it is that i ordered is itself a material issue  in this case you don't have to look the north sounds like the claim is we didn't get an engine overhaul that begs the question and it's difficult because there's no written contract but what is in your view an engine overhaul well your honor that's delineated in the expert reports and what types of specific things are in fact replaced and not replaced but going back to the question that i was about to e m c for you is what is what is it that we actually ordered that is fundamentally disputed in the case and you don't have to look any further than page forty eight of my opponents brief because on page forty eight they acknowledge that the scope of diversified contractual undertaking issue of fact they also acknowledge whether o t m authorized all of the repairs recommended by their diversified or in fact authorized those are two significant just beaded issues of fact and the reason significant by way of background what originally happened is before there's ever a purchase oh g m goes with the president of diversified to go look and inspect these particular  word go which is why there isn't a written contract saying precisely what will or will not be done because the scope of their undertaking was to identify everything that needs to be done to these votes and if the scope of work was to do everything that has to be done to make these vessels operational and they fail within two days you've obviously breached the contract that in itself number one is a material issue a fact well  it was my understanding that independent claims you refused certain repairs were and you're saying you didn't so my we got a genuine disputed material pack right here but what they want repairs on they claiming you just to point out the fact of the material issue of fact it's actually embedded on page eleven of the district court's opinion in a single sentence he says o t m cites the deposition of its preferable gonzalo martinez and nothing more to submit that ot him allowed diversified to make all of the repairs that it recommended but work ticket showed that certain repairs to diversified recommended were rejected by him so in a single sentence in the district court's own opinion on page eleven he very specifically identifies a material issue of fact as to whether it was authorized or not authorized i will tell you that in the end the party that that o t m in us not to do these repairs he's not our agent he's not our employee and the record evidence is that he was not in fact authorized to reject anything in fact we authorized everything that was ever quested now turning to the attention to the question of the overhauls and whether there was an overhaul and whether it ever some repudiation that's the whole that was their hope basis of their argument was well all of these experts who said that there had not in been an overhaul folded like an accordion under cross examination and completely withheld there completely changed their testimony i have it more ked this is what is an overhaul i i'm not an expert and i don't want to sit here and try and tell you in technical terms what is and is not a an overhaul what i will tell you is what the experts testified to and each and every one because they have reports that they made and for the and stevenson and they go through and they document with photographs all of the different things that are present that they see and so the testimony and i apologize and have a name for it this way but the testimony is what is the photograph number mr santamaria mr guerrero and david marion who was the vice president of engineering of detroit diesel now he was our repaint expert who's coming here and explaining all of these details they're still trying to suggest that they got a complete repudiation of his opinions as well and he's offered two significant opinions and that is with the mr marriott he is an expert in detroit he says in his report there is no evidence that the two engines from the mary todd were overhauled and the one engine from the thomas tied with rebuilt there is evidence from the surveys in columbia that the subject engines were not overhauled or rebuilt secondly because their argument or their contention was well they were perfectly fine when they left here but operational issues that happened during the voyage is what caused them to look like what they look like when they got to columbia he says the voyage from louisiana to columbia cannot explain the absence of evidence of an overhaul or rebuild as indicated above so we don't just have one expert judge costa who is saying there had not been an overhaul or there was not evidence of an overhaul and you know what council is pointing to is literally a single comment from mr marion that there had been some work at me just tell you week i will tell you there had to be some work done to the to those three engines because they were c sed they were at work and that was the whole point why they had then applied those three as needing to have an overhaul or rebuild and so yes was there some work done to the i'm sure does that mean that you have not breached the contract if you represented to me that you did a full blown overhaul and it turns out that you did not and i have four people who say there is no indication of a recent overall that's sufficient to create a material issue a factor in who are trauma even even if that is so and there's a fact issue as to that i don't see any kind of a fact issue as to causation that is to say whether any allegedly inadequate or nonexistent work on the engine cars the engines to fail at a later time well and i take issue with the whole premise that i have to identify the precise reason for the failure of the engine as opposed to you didn't do the work at all and let me just give an analogy is pretty simple if i take my car in the car shop and i tell the guy my brake heads my brake shoes are bad i need to have a brake job and he says great you're good to go charge me my fee and i leave and my brakes fail ok reliant upon him to fix my brakes if if the forensic exam after the fact demonstrates he didn't fix my brakes i have a breach of my contract i don't have to prove what about the other claims th conversation there right but i understand you are in but what on what i'm talking about here is do i have to prove the precise reason the brakes failed or is it sufficient for me to prove the brakes failed that's that's that is the that's the did what we're talking about here is do i have to get down to say in terms of the engine the number three viles is what ended up failing or isn't sufficient to argue and to present we good what is the distinction you're making that let's assume you can't prove causation that it's what caused the boat to fail out in the on the journey back to south america is your theory that you might not get the damages related to the failure but you would get your money back for paying for what you receive at an absolute minimum ok and but not a yes correct if i order a pepperoni pizza and you give me a plain cheese i should have to pay for the plain cheese at the minimum i should get the difference between the pepperoni and the plain cheese because normally one is different i should absolutely get my money back for what i paid for but did not actually get and so in the distinction also if you have deficient work because they said what if you did the entirely get my money back on that gun of course i am he did not actually fix it correctly it was deficient work do i have to prove now if i'm going to get to tear ration based upon the continued ongoing leak sure i'd have to prove causation but just to get my money back for deficient work that clearly doesn't match up in any real standard i don't have to prove that i want to ask you this before you call your count but run out assuming we find genuine disputed material fact and remand for a bench trial how will your evidence and the bench trial differ from these depositions taken to perpetuate testimony where you have additional witnesses or when you just read witness the trial court never evaluated the credibility of any of those individuals mr mr boudreau is saying something about what the contract was and gonzalo is saying one hundred eighty degrees the opposite has to be a credibility termination casa they are making a breach of contract claiming for the first time today we're hearing that they're emitting that so many work was performed before today that is never been said and we've gone into these depositions that has never been told to us before in the briefs one of their first contentions is we have four points on this no work was done the first point is is that they say the judge feldman did not address this when you look at page eight and nine of judge feldman's decision a believe it is section b little i he specifically addresses the contract claim and the no work and he goes through in detail each expert and how they talk about they have no evidence that no work was performed based on that he said because of the sworn testimony of their experts that they will never be able to prove that no work was performed so he did address it he didn't just miss it he specifically addressed it in went through detail with their experts page eighty nine section b would align the second point on that no work was performed mr guerrero mr santa maria mr hoyer has all testified that they had no evidence that no work was performed they would have to do a more in depth analysis and they spoke about exactly what they would have to do with the marion in his testimony i asked him that exact question on the no work was performed and he said exactly what counsel said here today when asked and said you know these these engines were in louisiana for years without any means or anything these engines were pretty deplorable condition and so when you take those engines that way that won't even turn over and you can get them actually run that was the question i was asking mr marion because their position up until today first argument was you did no work at all second arguing as you did that work but right now i'm just talking about the first one so i asked mr marin that and he very clearly in his response to me said no they obviously changed part c went through some of the parts that they had changed and i'm talking here about wreck dock six one seven five page one sixty nine of mr marion's deposition  that they've changed some parts obviously they did some work i'm not saying that they're not he admitted that and so that's what we gave to judge feldman and when judge feldman be little i have his decision looked at the no work argument is there with their own experts or  in that work was done and then he goes on to be two i was the work that was done good work that's where we get to the causation argument sticking on the no workers before more diversified third argument on it martinez he admitted that he came louisiana several times and each time he was here he was at the yard every day watching the work he makes that admission so if the claim is what they're saying now maybe we'll to see whether they said it before that well some work was done but the engine overall wasn't assume with me that that is the breach of contract claim why isn't all of the observations that were made when the boat got back down to south america about corrosion i mean there's there's various thing the the rings were warm oil in water leaks from the engine block injectors stock all these different dishes that their experts said maybe they couldn't conclusively say but were indicative and now we're into the position of was work performed then we start getting to discussion of does it rise to a level of an overhaul when you look at mr marion's deposition oh i got into that exact specific issue with him and it's not that those experts are saying what they performed was a condition survey and they were looking at the condition of the engine which after everything that encountered i would note that would be deplorable conditions at that time based on everything it went to  with the overheating and overspeaking and all the other problems now what of what relevance is it when you're talking about if their contract action is no work was performed if that is going to be gone are we now into the warranty of workman like performance the work you performed was either not good or you should have done some additional items and so it's a don't understand how they're trying to make both arguments and when that with their own initiative with their own expert testimony once they come over to the maybe you should have done something else maybe you should have changed that which maybe could have prevented some type of failure we have now walked over into the warranty workman like performance claim which because they started getting into this overall semantics discussion i think when they saw the previous testimony from the other experts and i asked most americans so if you're talking about an overhaul what is an overhaul define it for me right and he said well i know you would replace the liner in i'm not really sure i didn't investigate that sort of what's in an overhaul kit because that's our understanding or no overall is we get those so even on the issue we're talking about your question about what is an overall which is a great question for us lay people in an engine world even their own expert who in defense to him they only gave him a week for providing the information asking for an expert port do know that the engines failed between the new orleans area and columbia what put that distance nine hundred miles believe those six hundred all right fifteen or miles prove what caused the failure that your burden if you don't do that you don't get to the other side and if there's alternative causes that can knock you causative you cannot do a residence argument in that case we had a similar situation where we had you started talking to them about what the the theory was they said well improper alignment caused by the computer is what caused the failure ok so they had a very had experts wind up computer whiz fail computer overhaul was performed and the proof of the putting it was the indians broke down on a relatively short journey and far less time than the five thousand hours needed to run an engine before you need to know another overall exports examination of the engines we are as those experts can you tell us that engine overhaul was not performed in the said we need to show this to geisha and we only did a conditional survey to tell you what the condition is today circumstantial evidence and things like that they have the direct evidence they have each part we put in there he's a serial number a day in manufacturing they still have these booms are parts we put in there are still in there i don't know why we're talking about circumstantial evidence they had the direct evidence in their hands that's a great argument about what are you so so you're saying there's nothing if i understand you correct me if i'm wrong you're saying there's nothing in the summary judgment record to support that exactly right there's nothing in there support no overhaul was done there is information in there to support some work was done and then there's also for years and for experts of litigation there is no causation that's what's different from them said we don't know we would have to do a further investigation on forgetting about causation again for a second just going back to the issue of whether an overhaul was performed i read the down cross examination you got some very good questioning and you got them to admit basically basically i read it the experts to stand cross examination yeah without undue you know getting in there looking at the entire engine and pulling it out i can't affinity of lee say that there was no overhauled but is the standard that they need to have a testimony with one hundred percent certainty that there was no overall why isn't all the circumstantial evidence they've identified of corrosion and all these other observations they've made why didn't that at least created an issue of material fact the fact that they're saying that they cannot say with whether an overhaul was done we also asked them questions on how do you define an overhaul and they couldn't even tell us they couldn't tell us some were in such a semantics game you made it really feel like a moving target the beginning is case look at the go play that says you didn't do any work then as we could kind of went on it started become the semantics game of you did not do an overhaul but there's nothing in the record saying what in overall is and by the way we use the overall kids from interstate mcbee which is also in the record all of those records are in their home i mean that's the the problem we have here with the with what both sides agreed to on this moving target contract to go through and as you go along tell us what you need to do and we'll decide whether or not to agree to do it and apparently they agreed to all request concerning the overhaul in your honor that working like performance causation is essential element cannot use reserves as per do most as well as the other one to cases and they can prove miles ation as they are also making a claim for breach of contract and judge feldman did not rule on that and they removed fo he's because he says and the start of part b a little too odd page nine as to whether repairs were performed in inadequately o t m alleges claims for negligence and breach of the implied warranty work unlike workman like performance well implied warranty work man like performance may be a term of art for breach of contract but he never mentions breach of contract or the elements or what what their breach of contract claim may have when we look at it look at it it's the sins right after was adequate they goes into one nine well he's now again that i'm just trying to keep a straight on this argument at cap b at page eight he says o t m contends either that diversified did not overhaul the opinion and the summary judgment matter ahead is entitle to no deference because we'd engage in an over review here but just appears that the breach of contract claim whatever that was was just totally overlooked including for repairs to the exhaust pipe and we brought that point up in our opposition to their motion because their contention was that a lot of the damage that was ultimately discovered was caused by the exhaust from the piping and we're like well we don't agree with that your experts have said why but if you accept your premise of your expert one reason for that damage is because the exhaust pipe in that you repaired was deficient and that deficiency was very clearly delineated to m deposition because he said he's describing it they have taken something that is leaking and corroded in they have doubled it and he says very very blatantly that is an improper repair so their own expert identifies exhaust as the problems it is the source of the problem with the with the engines they repaired the exhaust and mr hoyer said the way they repaired the risk of the the exhaust pipe in was was improper  will not shy away from judge feldman's decision on page eight of his opinion i think very significantly about the middle of support i he says they meaning the experts were never asked whether the engine showed signs of a recent overhaul well that's just flat out untrue and i pointed it out to him repeatedly time and time and time again mr santamaria went through chapter and verse  individual parts they were included in an overhaul kit it wasn't what is an overhaul you don't even know what an overhaul is this is the vice president of engineering for detroit diesel for god's sake the man in our brief is not the one that my paralegal copy for me yesterday but if you look beginning around page fifty nine forty four and these are this is his deposition has four pages on page one hundred thirty one of his deposition in line six and seven i'm not going to read all the observation these types of observations lead me to believe that the engines were not overall i don't know how much plainer he wanted to do that at the bottom of page one hundred thirty eight which is on record fifty nine forty five but even with the without the benefit of a micrometer device used to measure just the thought that it's crap that it has a scratch indicates something doesn't it yeah the scratched and medical  metal to metal contact to me that's an indication that that engine needs to be overhauled which is that which is another indication that it wasn't overhauled ten days before that i don't know how much plainer you get than the next b who's written a report saying there is no evidence that it was that it was overhauled and there is evidence that it was not overhauled and then he testifies very explicitly this tells me there had been  overhaul it's it's straightforward how that doesn't give rise to a material issue a fact i don't know i could certainly point she and i had this originally record page thirteen zero nine my law partner john shall downey's ask him a question at line eight mr santamaria also testified in his earlier deposition that these reports indicated that the engines did not show any evidence of having recently been rebuilt or overhauled would you agree with that answer yes because of the physical inspection yes again  litigation expert a real true wise detroit big soap technician who was retained at the very beginning to do an evaluation goes through in detail and says there's no indication of an overall