i'm to do that i'm fine your honor it's good to see again this appeal focuses on another and the ordinary proceedings below that underscores the need for a new trop the difference between the volunteer status both dr mores who testified as plaintiffs experts and defendant's paid experts was a recurring theme in the proceedings below a suggestion by one of the defendants experts that all the experts on both sides were compensated  immediate objection and an emphasis that the mores were different they were volunteers in arguing why miss doctor met matthew moore he could provide expert testimony without complying with rule twenty six plaintiffs told the judge and here i'm quoting it is very important for the court to know and for the record to reflect that dr matthew mori was properly untimely disclosed as non retained we have no economic arrangement with him we do not fund him and quote and plaintiffs return to theme again in closing argument contrasting the mores with the bought testimony of defendants experts we now know that this was not true we now know that dr bernard marie dr maurice sr was promised a ten thousand dollar contribution to his charity of choice before he ever testified we now know the dr matthew morey expected to be compensated all alone and asked plaintiffs counsel where to send his influence after he testified at tr we now know that dr matthew morey was paid thirty thousand dollars for his testimony and we now know that dr bernard morey was paid thirty five thousand dollars on top of the ten thousand dollar contribution in what my friends on the other side described in their own brief as quote thank you payments how did this information come to light this came to light in the discovery in the third case and particularly in the deposition and the letters that the letters essentially from mr linear to both dr maurice came to light in that process and then we brought them timely to the district court's attention but by that point the principle killed already been filed that's why it style know that they were going to be paid only for clear i think it is probably a clear error standard but we think this is the recounts high hurdle in district court and then it's a double high hurdle to us because he he heard what you're saying and you know i was the judge in the best position to tell and i think the mores they got a lot of money in the end which they were happy to get but it's like again in a criminal case cooperate codefendant says i'm going to plead straight up i got no promises but i sure would be happy later if i got less time well to go misrepresentation things your honor i don't think that analysis works as to the charitable contribution and there's nothing i mean your plan to clear your standard i suppose but there's no analysis that the district court judge doesn't mention the charitable contribution i mean if you did you could say i think a charitable contribution to a third party as a matter of law isn't a payment that's relevant for purposes rule twenty six i think that that would be wrong if the person chose the third party correct which we think it's clear from this record that that's exactly what happened so that but my point is i don't think because the district court said essentially with a wave of the hand i don't think there's anything here and doesn't specifically address or even offer a theory as to how in particular the ten thousand dollars charitable contribution means that the statements were accurate i mean i  think if you my humble point is i don't see how a court could address the accuracy of that payment without articulating a fear as to how that doesn't count and that would either be flat wrong as a matter of fact or flat wrong as a matter of law now to your second point whatever is the context in the criminal context in your honour's more familiar with that than i but i sure hope the rule in the civil context is not that this can happen and i mean at some level that's the question for this court and i suppose you know that i'm a hopeful person so i'm hopeful that you're going to grant a new trial on an independent ground as well but i think this is a basis for granting a new trial here but whatever else emerges from this appeal expert payment always grounds for a new trial you have sixty three cases that say that no no i don't think it i was it is i think it depends i mean you know obviously if you had an at what i would sort of describe as more of a technical rule twenty six or you know and then i think you might have a situation where it doesn't meet the sixty the three standard i think the cases that we cite to you which are district court cases and they're not appellate courts reviewing them under a deferential standard but the district court decisions i would say in the context of those trials yes it was sufficiently prejudicial for sixty three purposes because what those cases have in common with this case is the difference between the plaintiffs witnesses and the defendant's witnesses was averted to more than reverted to here and you know in the synergy case for example the court makes something of the fact that it came up in closing argument which of course it came up in closing argument here but what i would say is that i think with respect to dr bernard morey senior in the ten thousand dollars charitable contribution i don't think you have to even get into the issue of can it really be the law that you can say they weren't paid a dime and then pay him later for dat dr matthew maury and for purposes of the thirty five thousand dollars payment to dr bernard morey you have to address that issue and whether it's the basis for granting a new trial motion or whether there's a new trial motion granted on another grand and the court just clarifies it boy i hope the court clarifies that this can't happen because this does seem like something that th the system shouldn't tolerate rule twenty six and if rule twenty six had been complied with here there would need to be a disclosure of payment the rule twenty six language talks about the amount the expert is quote to be paid dr bernard mori for example you know he he was we we did not depose him originally in part because we didn't actually think that he was going to test when he did testify it was made clear what he was going to testify and that was going to testify as an expert of course first we're told we don't have to comply with rules twenty six because he is a non retained expert and we objected to that and the court relying on the representation that he wasn't paid said rule twenty six does not have to be complied with then we objected to what he was going to testify on on the eve of his testimony and we were given two things we were given by the district court the opportunity to depose him which for reasons i'm happy to get into the details of but in the middle of trial we didn't think it made sense to depose him and distract our attention from the trial and we also thought there were tactical reasons not to do it because the district court had made clear that not only would we get a chance to depose him but the mr lanier would get a chance to do a direct videotaped deposition of them they could then use in subsequent proceedings and so we are reasons for not wanting to be deposed at that particular time but then the district court ordered that an expert report be given since he already had said that rule twenty six doesn't apply because he's a non retained expert it was not an expert report that i think that i think you know doesn't look anything like an expert report compliant with rule twenty six should have and that's part and parcel that doesn't say anything about the compensation so if this is been done right and truthfully from the beginning we would have gotten compliance with rule twenty six and my point about rule twenty six is that rule twenty six by  language i think for closes this testify as a volunteer early pay me later and we can all make this look a lot better for the plaintiffs than the defendants rule twenty six i think forecloses that by asking about the amount to be paid the jury the jury instructions hear about fredricka and i want to get them you know exactly right the jury was expressly told that they could quote consider any biased evidence that the expert witness has been or will be paid for reviewing the case and test so i think the law appropriately is not concerned about when the checks are cut they're concerned about truthfully disclosing whether or not you have a paid expert or a volunteer expert and when one side makes repeated references to the fact that their experts are volunteers and are therefore more credible than these paid mercenaries from the other side they can't convert their own volunteer type of humility barrow let me try to answer that this way judge barksdale i think when the court is evaluating sixty b three and whether or not this error deprived our clients of a full and fair opportunity to put on their defense i don't think the court has to look at this in asylum i think it can avert itself to those other considerations and the way the rest of the trial proceed i am pretty firmly of the view that you don't have to do that here because i do think that in the context of this case when there were when i mean you know this isn't a case where you have to take my word for it that the difference between paid status and volunteer status is important because counsel for the other side told the court this is very important and i want the record to reflect this is not a case where you have to wonder whether this is something that was a recurring theme because it absolutely was and you had this you know in my view relatively dramatic incident where one of our experts says you know i'm paid like everybody else and oh no objection objection you know dr morey wasn't pai maury wasn't compensated and then if you look at if you read on for a couple of pages in that sort of testimony of our expert i mean our expert apologizes three or four times for making a mistake i mean you know the idea that this didn't have a material impact particularly when it's picked up in the closing argument even considered alone i think is just wrong but i do think in looking at outcome the test is your presentation of strauss trying to create exactly exactly  then to look at the next round when you knew they were being asked did your presentation change well i do but i don't know that i mean i don't think you'd want to build that into your test because in most other cases you're not going to a next trial and even then i think you sort of have problems because even in the next trial we still don't have even though we have better disclosures we don't have a fully compliant rule twenty six expert report mean you know i'm going outside the record here but my understanding is that there could be no thank you payments of course everyone feels that's important but but but there would have to be a nexus to the witness making a misrepresentation of the time in other words wouldn't the law require that he knew he was going to get the good i don't think so i don't think he's going to help with this because it would seem to be recurring a lot you know experts all the time if you don't have to disclose their money by just saying we're pretty you later i think if this were permissible it would happen all the time i think the system is operating on the assumption that of course you can't do this i think that sixty three i think refers to fraud misrepresentation or misconduct i think it's subsequent payments even if they i mean you know i think i can argue that the subsequent payments make the representation a misrepresentation and there's a little bit of a time warp there because maybe it was not a misrepresentation when it was made but if you don't follow my time warp argument on the misrepresentation gox it's got to be misconduct focused on the attorney or the witness i think it can be either and i think here i think here and look and i think it can be either i think if you look at the cases that we cite like the synergy case in the it's a vioxx case i mean in those cases it's sort of a combination the courts are mixing essentially what the witness did and what the counsel represented about their payments status coterminous letters that specifically say this is not to pay you back what's how do you handle right well  saying we sure now in hindsight think you did a good job of thirty thousand thirty five but we are not paying you because that was the arrangement right i had i think read the letter say that your hon i can't imagine that makes any difference whatsoever i mean because then you know otherwise i mean if you want these letters to become form letters that are going to be used by plaintiffs and defense lawyers going forward because these letters are artfully worded and allow you to evade rule twenty six and deposition for the younger the son he says he asked where do i send my inverse and they don't say hey you and they might my friends on the other side do a nice job of trying to inject confusion as to which side would compensate him i mean first of all whatever's through the deposition before it's clear that he's going to be their only expert to take issue with our warnings i mean after he's testified the idea that we would pay dr matthew more for that testimony is with all due respect sir but in all of the ants we know from his testimony he knew he knew who to ask where to send the invoice and it wasn't the counsel for the defendant so i see my time's  without the need for popcorn and do it as best as i can in an appellate voice but i do do feeling gauged in this so with apologies beforehand here i go bernard moore he was the father of matt mori he agreed to meet with us and where does all this on the record yes your honor it is and in fact you not only have the record of the trial but you have the subsequent trial part of that record as well because as judge smith had asked how did you know about this answers we gave all of this to them and we told them this and we we cited this in the next trial in testimony when i had that witness on the stand that you  and i asked him how do we pay you for your time he said i don't take payment i won't take payment i said is there a charity that i could give to and he said well if you want to  school he said it is a charitable endeavor there was no discussion of an a ten thousand dollars to that no discussion of an amount at all how does that not pay then when he says i'm on paid but you had a discussion before trial and he chooses t over and over again i'm doing this because this stuff is terrible i'm here for free right you're impeaching their witnesses saying they're bought testimony they're bribed and you know that you discussed with him and i asked him for a charity and then  thousand dollar check no your honor that is not the way it unfolded at all what happened is i asked him would you come testify and he said no he met with the other side and the other side had a meeting with him without us there and he told this me wouldn't testify either so any comment i made about giving money to a charitable endeavor that he's got an interest in was it was one you think he assumed you wouldn't so when he gets on this and says i'm not being paid he doesn't think you're going to then do it later and your mind you haven't decided if you're going to pretend i think it had left both of our minds to be honest with you i asked him when he came to the stand would come testify for three hours and he came for three hours but it stretched into a day and then beyond that the other side said they wanted to take his deposition and so the judge made him get killed another day for his deposition they backed out the night before the judge and the other side wanted to report so he issued a report which we cobbled together from his testimony and then and thirty thousand dollars extra as as what's wrong with calling it a thank you payment why isn't that just what is why given that uncertainty would you ever send a witness thirty thousand dollars after the trial what we did is we realized that we may need him to come testify again in another case but if it reflects payment for the past yes sure what it does is is he said he wouldn't take any money and he meant it and we sen it to him in hopes he would so that maybe next time he testified again and that's what we clarified with everybody on the record we self or ported this they didn't find this out in any other way other than me saying hey look you're testifying again and we need to make sure this jury and court understands and that's when i laid it all out exactly how it unfolded they had the expert that i was concerned about on their side there and time more was dr kay to live ransom who they paid over nine hundred thousand dollars to he charged fifteen thousand dollars a day and what i did is i thought well we know what we did it was a corporate decision we want to try to get darker more to testify again this turned into a three day fiasco not a three hour fiasco totally messed up his schedule he's not going to be friendly to us at all what can we do well let's reimburse him for his time we can reimburse him on the level of  even though he's much more qualified but if cato charges fifteen thousand a day we'll do his based on ten thousand a day they had another expert that was in that same ballpark and so we paid him and he for experts any money at all a penny for an expert is a very dangerous area to be in so an agreement before trial ten thousand dollars when it goes to a third party and then later a two thirty thousand dollars check that's that's a complicate there's no agreement no meeting of the minds that we're going to pay no discussion of an amount none of that have occurred at all make mistakes accounting for payments all sides everybody so so what's your best i really like case law what's your best case that an undisclosed payment to an expert is not a sixty b three reversible and i can't find any case law one way or the other your honor there were a whole bunch of district opinion cited what you what's the one you think most dance for the fact an attorney can talk before about money later sent trial but that's not it disclosable paid i don't have a case or on of that can say that but what i can tell you is that every word that i heard was true you say that i read the district court's order and it seemed to me he pretty much jumps very quickly to the disc you know this didn't change there this didn't prejudice their eyes or small amounts they got big amounts and therefore it's really not that egregious i don't think i would agree that he immediately jumps to that's at the very end of his opinion but beforehand one hundred cases no your honor he doesn't he does cite rozier and some other cases in the process of the opinion for what his standard of proof is and and what he has to do but that's a different issue and  the bottom line is is everything that that we did everything we said to the jury everything that that doctor testified to was absolutely dead on truthful and he would not take any money from us to confirm who the it was made afterwards and that's certainly what the testimony is on the record from the doctors understanding i don't think i'm not sure when how where any of us knew they had because of the process of doing something like that but it would help me to have been made before hand when there was no consideration that he'd come testify but i can't affirmatively say that it was i just don't know but i can tell the court this that the discussion was not one where i ever told him an amount there was no we would definitely do i'm walking out the door of his house and i said man i just feel bad watch made it happen by force all of these how long did you mean how long what was the period of time between when you met with him and when he took on a trial i met with him in august the defendants met with him in december he testified in the trial that started in january and i think he took the stand near the end of january or maybe it was into february but i met with him in august and asked me for the sign saying i did expect to get that was news to me that the best that i never dealt with the sun your honor to be candid with you mr yet right i met of the night before he took the stand he says i expected to get paid and after the trial he gets thirty five thousand but the argument is here he was on retainer son got thirty father got thirty five just for the records to say no your honor what it looks to me like  my best understanding is the defendants and this was news to me paid him ten thousand dollars before his deposition and i didn't know that when i said he hadn't been paid i didn't know they'd paid him ten thousand for that day of his deposition but the defendant to tatum it's in the record that they had i've attended the deposition i'd have known it but i didn't read the deposition and see that they had paid him ten thousand or so in his mind he never testified before these guys aren't the professional witnesses neither one of them testified and so what he said is  y i guess i don't know who he was talking to but what do i send my invoice and he's thinking that he sends it to diffuse because we won the case and they must pay because they paid for his deposition i would think if you have a very rare expert that is completely voluntary because it's in jelinek and it's not dry when he says where do i send my invoice you've got to look him in the eye and say there is no payment we you took the stand said that was crucial to our presentation to the jury you don't say don't worry about it but i can i think then pay him well i think frankly i think in regards to him i think his thought was his clinic has to be paid and so he suggesting and if you look carefully he doesn't ask that until after the trial so again this in my brain is not anything there's no all but i had a ton of experts and i paid a ton of money to put dr morey on the stand i said now how much we have we paid you june well and we walked through all of this and that's how it ended i and i in each of those trials and how much we're going to pay you now well again i don't come here for the money you pay me whatever you decide to pay me as it is would it of all to the presentation the trial and i don't see that you bolster them over and over again these are volunteers and then you discredited your opponents these people their testimony is bought it even bribed all over the world the contrast just is extraordinary it's a brilliant strategy but it it doesn't bear out if you're paying him afterwards no your honor with due respect to the world stuff in the bribery all over the world and their patriotic wall and all of that stuff aside what i did in the case is is the truth i mean if i had stood up instead i'd do i zero problem said hey we made a ten thousand dollar donation to a charity because he wanted us to he didn't want us to he didn't ask us to if i had said that it would have been a lie and it would have been wrong if i had said hey it turns out instead of being here three hours because of the way this is gone down you're going to take three days out of your life and it's a whole different scenario than what you agreed to because the judge wouldn't dismiss you and let you go after three hours and so as a result of everything you dead i'm going to i'm going to i'm going to probably pay the doctor if i had said any of that to the jury i've been arguing outside the record and so you know we're sitting here in a situation where frankly we never thought we'd have to we didn't even see the doctors again until it became apparent that we were going to have multiple trials and then it became apparent of obscene man with the kind of bad we said can you give us three hours and they turns into three days so let's send it and hope that they'll take it and say that it's payment let's describe it very carefully in the letter so that it's documented for the file so that we can give it to the other side so we can give it to his honor so that anybody will know transparency is the key and let's be real clear and we did that and we sent a copy to the other side this is all for the third andersen trial yes your honor everyone saying you did it perfectly there but the deposition exposed that there were payments so it's pretty obvious you're going to happen we have to do that no your honor we wrote those letters before the depositions we wrote those letters very clearly when we sent the checks two of those in those letters accompanied the check wanted transparency wanted it real clear and then we have targeted really sent those to the other side before the depositions as well and the other side then took the deposition of maurice sr up in rochester minnesota purpose of transparency is that the jury deciding the case here is that the jury didn't get those letters that hey we are going to pay you thirty thirty five thousand here thank you because at that point in time neither doctor to my knowledge and certainly dr bernard morey never expected  and that's what the jury was under the impression of that's what i was under the impression of that's what the doctor was under the impression of and to suggest anything else to the jury is kreskin in the crystal ball because no one no one he specifically said he wouldn't take a dime even when i asked him about a charitable endeavor that's as both sides admit he was not in a position to neither of us thought he was going to come testify that certainly was not a this was the district judges conclusion right absolutely and he wrote a very clear opinion on it and so you know you you wind up and you look at it and every fact is true the way we do it now you read their brief and they assume that there was  ten thousand dollar agreement to pay the charity beforehand and that was in your brains when i started this that agreement is not in the record that's not what dr morey said that agreement did not exist like that there what is in even agreement to pay a charity for him i simply ask him is there a charity you support maybe since we've taken some of your time i could do that as well but i just want to be sure this is retracing a little bit of what we've just been talking about i want to be sure i understand you you can't tell us right now as you stand here is an officer of the court whether that payment to the school ten thousand dollars was before during or after a trial no your honor i cannot i can probably go try and it was not a tit for tat and it would not have been a payment for him to testify he had said he would not has fact the only time he decided he would testify was when i called him and ask him gee they committed fraud which is going to wrap it the logic doesn't make sense to me don't i mean i don't mean to be sarcastic but you're not saying if he chooses a charity he gave you the name you can pay them and that's somehow not a payment him that's not your position is it well actually it depends on how that goes down a bit more like he's got to raise some money for a charity i'm going to help him out no of course not but but i mean there's not a funeral in the world who are in lieu of flowers you can't give money and that's not a payment i mean it's an honor ring absolutely and i don't even know that i gave it in his name i think i probably did it into his honor when it was finally done because i just asked that it be done but while i can i can tell you that there's a very clear rule about judicial ethics which is that you cannot in one of giving an honor it to a judge offer to send a payment to the judge area that's considered a direct payment understands a different situation but no no i agree judge and i would love to have a good answer but i can tell you this both sides that payment was never made for him to testify both sides never thought he would testify until i call them and ask him is the fraud they did on where you were the president of the american academy of orthopedic surgeons is that an ok thing to do and he said they did what i said they did this and he said i'll come tell the jury that's not right and that's when he decided to calm down the record yes your honor it is it is and and and your time now has expired stark very briefly your honor the context i think is important and judge can cade's opinion is important the context is an ardmore a renowned orthopedic surgeon is not an expert witness he record in light of the testimony that he was chosen by billy graham among others to perform his surgery that he's been the president of virtually every orthopedic society member of the hip society and president of it and so forth so th record i think is quite replete with the distinguished nature of his career and the one that meeting happens and legrange it was a conversation the result of which was he spent three and a half hours and made it very clear he was not going to testify when did he get on with your when with the check to the charity i rely on mr wood near for that and we're going to confirm that with the twenty eight day well you know if judge smith forgive me not part of the record with the court it is it is my understanding that it's not we also can check the record and the next trial which just your colleagues remark i would think you'd want to hope that the check is much later still like the thirty thousand in the thirty five it was an after thought if the chicks deeded before he takes the stand it doesn't matter whether  both spies didn't want to exist fight right he then is testifying and and i read the directive him he is magnificent and everything was how voluntary how p he had to come it would be devastating impeachment to say but isn't it true in light of what the record will show about bernard mori and his contributions to orthopedic surgery over his lifetime that what he sought to do was simply i think respond to a sense  obligation of mr lanier i have taken up so much of your time i should do something for you and dr maury went to this catholic school in fort worth and so he mentions it but there was and this is now i conclude with us judge can cade said there was no agreement the evidence just is not sufficient to conclude that it is an agreement and that i think should reassure the court the district judge who again presided over the entire trial heard all these experts and the like and who has now heard bernard mori in trials three and four were talking about trial two i think that what my brother's on the other side of said i think we have a nice argument here but it goes against i think the morality of the relationship that here was this magnificent surgeon at the record if you read the direct testimony including the cross examination am sure you will all fair minded persons will come away with the view that bernard mori is beyond reproach in terms of ought with us that's who we were dealing with the very very  we we do not he has not written which was fully made at what we felt in good faith was the appropriate time judge barksdale which is when ok we're going to have another trial and there was complete transparency so the idea that there was some effort at all to hide this ten thousand dollar contribution to a catholic school and then yes it was made in good faith then it takes care of the fact that they were prejudiced because they didn't get to say to you you're being paid this money no a for that i'm relying on the that there is no agreement that's the fundamental point this is these are human beings dealing with one another and coming to a moral judgment as to what is the right thing to do we judge can kate in terms of a matter of the law said there was no agreement and i think that should suffice to conclude this aspect of the litigation i think the court are thinking mr starr yes let's go ahead  receive the twenty eight jail interest to me a little bit different thing as a fact when it's an officer of the court telling us what went on in the in the proceedings of the matter so if you go ahead and submit i would submit and of course the other side would have an opportunity to respond if they wished mr coleman five times yes thank you younger sister a few points and rebuttal first of all judge take insulin i was with you i don't seem to me that from a timing standpoint it's worse if the check was cut before the trial because then the statements in the trial all of that testimony about the volunteers all the objections it's just not accurate at that time of the check sorry thing cut but i do want to follow that up with the observation it's only a little bit worse if the check comes at the time of the trial i mean it becomes a month later you still have the same basic problem which is you just i don't think it just doesn't seem right to me that the rule can be that you can do all of this at the trial and even if at the time of the trial it was ok you can't follow it up with checks after the trial that make it all ineffective misrepresentation ineffective disruption of the defendant's opportunity to defend themselves and all judge compete said on the factual point is no agreement and you would have plausible argument to say no agreement of the check like the thank all afterwards but that whole notion of no agreement means nothing if the checks cut before he says i'm not paid because it's him right there it doesn't matter if there's an agreement or not it's a full statement made by a witness i don't disagree with you i'm just saying i mean you know it's the difference between sort of game set match in the one case versus whether you still have a problem that this court ought to address on appeal and i still think you do i also want to be clear though even if the check doesn't come until later it's not on all fours with the thirty thousand dollar and the thirty five thousand dollars check because you still have the exchange the takes place before where it sure based on the record sure seems like there was an agreement and if there was an agreement that the charitable contribution would be made the fact that the check isn't cut until after the trial doesn't make that agreement go away now obviously i'm operating in a different world from my friends on the other side i can't tell you what happened in on a december or august day in two thousand and fifteen i have to go by the record but i think if you look at the record that's developed in the second case about this meeting it says as follows mr lanier says i tried to pay you for the time that we took in you would not take the money dr bernard memory correct i asked you is there a charity that you support that i could give you some give some money to answer from dr morey yes question and that was st rita's grade school is that right yes now and then says so i sent them a check because of the time you gave us it was a generous check because it looked to me like they could use some money now i think there's enough for an agreement right there i don't think i mean unless the amount they agreed to was zero i mean i don't think the fact that it wasn't ten thousand dollars like sixteen it mattered all right i just a matter of the witness then gets on the stand says i got nothing and the lawyer who sent the check knows that he did send him ten thousand dollars why does it matter if he agreed i don't think it does your honor but my point is i mean one of two things happened either there was an agreement that had already been consummated with the check or there was an agreement and there was just you know that somebody had got around it with the check but either way that makes you something other than a volunteer you're either there because you've got an agreement to give money to your charity or you are there because you already get the charity already got it and of course if they disclose that they could then talk about how it was a wonderful charity and in fact mr dr morey would be there even if they didn't do that and he could testify or they could you know explain how this is still worlds different from what those paid why it just seems to me that it is true that we paid him for his time at his deposition at a point where it wasn't clear he was going to do all the expert testimony because his principal reason for getting involved in this case is because he was one of the treating physicians in the surgery so when we're when we're taking his deposition that's focused mostly on that aspect we're going to pay him for his time because he's a fact witness essentially not an adverse expert witness by the time that he comes into trial and testifies against us as an expert on all manner of things i don't think that he is such an innocent that he really thinks that we're going to cut him the check and the evidence shows that that wasn't the case because he didn't ask us where to send  somebody on the plaintiff's team where to send the influence and so i'd just leave you with the thought i think there are multiple grounds for a new trial here and perhaps j mall as indicated in the other trial i think whatever else happens though it should be made clear