[00:00:19] Speaker 03:
May I please the court?

[00:00:20] Speaker 03:
Good morning.

[00:00:21] Speaker 03:
My name is Tom Melsheimer on behalf of Rembrandt.

[00:00:24] Speaker 03:
This court in a prior appeal set aside a judgment in order to new trial under rule 60.

[00:00:31] Speaker 03:
It did so because it found that this was one of those rare cases where the professional and academic fraud and concealment of an expert hired by one party so tainted the trial that Rembrandt was denied a fair trial.

[00:00:47] Speaker 03:
Upon remand for that new trial, the district court prohibited Rembrandt from using the very evidence, the concealed evidence, that this court had concluded justified a new trial.

[00:00:58] Speaker 00:
Isn't it true that the court discussed that at length and said nobody is going to mention that expert's testimony?

[00:01:07] Speaker 03:
Your Honor, it's true that the court said that no side could mention it.

[00:01:10] Speaker 03:
Of course, that's part of the problem is that if you're talking about the district court, in this case, part of the challenge was is,

[00:01:17] Speaker 03:
We weren't trying, Your Honor, to recreate everything that had happened with the fraud.

[00:01:23] Speaker 03:
We weren't trying to recreate that the man had lied on the stand or anything of that nature.

[00:01:26] Speaker 00:
Sure, you just wanted to have your expert say, oh, we now think that his theory makes sense because we think it supports us, right?

[00:01:32] Speaker 00:
So you wanted to be able to have your expert talk about it.

[00:01:35] Speaker 03:
We wanted to be able to have our expert talk about the data that he did not have before when he- I'm sorry, but when I looked through the transcript and I saw the back and forth with the judge on that very point,

[00:01:46] Speaker 00:
It seemed to me that you had conceded once you heard that J&J was not going to rely on that expert's testimony.

[00:01:54] Speaker 00:
It seemed to me as if you said, OK, that's fine then, and you withdrew this objection.

[00:02:00] Speaker 00:
Or at least it wasn't clear to me that you maintained your position that this was a problem for you.

[00:02:06] Speaker 03:
Respectfully, Your Honor, I think we did maintain it.

[00:02:08] Speaker 03:
I acknowledge that colloquy with the court, but here's how we maintained it repeatedly.

[00:02:14] Speaker 03:
We submitted to the court our assessment that the new trial should be based on the old record and the Rule 60 record.

[00:02:22] Speaker 03:
That's what we told the court, which would have included this data.

[00:02:25] Speaker 03:
We also submitted a supplemental expert report of Dr. Beebe, where he laid out in detail his desire to use this information and how he would use it.

[00:02:35] Speaker 03:
And, Your Honor, that expert report is in the record at 12759.

[00:02:39] Speaker 03:
So it is not the case.

[00:02:41] Speaker 03:
Now, it's true, Your Honor, there was that colloquium with the court

[00:02:44] Speaker 03:
when it looked like he was going to exclude it in its entirety.

[00:02:46] Speaker 03:
But we submitted and pushed for Dr. Beebe to be able to rely on this data.

[00:02:51] Speaker 03:
Now, we don't contend, Your Honor, that this court's prior opinion absolutely compelled the district court to admit that evidence.

[00:02:59] Speaker 03:
But we do contend that the exclusion of that evidence under these circumstances was not based on the analysis required by the law, was an abuse of discretion, and it prevented Rembrandt from getting the fair trial to which it was entitled.

[00:03:13] Speaker 03:
Two of the claim issues.

[00:03:15] Speaker 04:
I'm not sure I just understand the timing on something.

[00:03:17] Speaker 04:
I just don't know the answer.

[00:03:18] Speaker 04:
Yes, Your Honor.

[00:03:19] Speaker 04:
You had this colloquy with the court where you appeared to acquiesce in the idea that no one was going to be able to refer to this evidence.

[00:03:27] Speaker 04:
And then you said, yes, but we should have put the court on notice by virtue of our, was it your expert report?

[00:03:35] Speaker 04:
What are the documents that you say should have put the court on notice that you have to continue to contest whether you could

[00:03:41] Speaker 04:
utilize this evidence.

[00:03:43] Speaker 04:
What was that evidence?

[00:03:43] Speaker 03:
It is 12759, Your Honor, which is the expert report of Dr. Beebe, which was the subject of- Was that expert report submitted before or after the colloquy?

[00:03:52] Speaker 03:
After, Your Honor.

[00:03:54] Speaker 03:
I believe it was submitted afterwards.

[00:03:55] Speaker 03:
I believe that was an earlier pretrial.

[00:03:57] Speaker 03:
I can check the record on that.

[00:03:58] Speaker 03:
We had an earlier pretrial where we talked about things generally.

[00:04:01] Speaker 03:
The court ordered there could be some additional discovery.

[00:04:04] Speaker 03:
And I believe that what took place was we submitted a supplemental report.

[00:04:08] Speaker 03:
Because at the very earliest pretrial,

[00:04:11] Speaker 03:
when the case was sent back on remand, there was all kinds of discussion about what was going to be allowed or permitted.

[00:04:16] Speaker 03:
And again, our statement then was only really related to the notion that we weren't trying to get in every possible thing that we might get in with respect to Dr. Bilowski.

[00:04:27] Speaker 03:
But we absolutely sought to introduce the testimony upon which Dr. Beebe wanted to rely.

[00:04:33] Speaker 04:
So there's- You directed me to 12-759, but that's page one, the cover sheet of his expert report.

[00:04:41] Speaker 04:
part of the expert report in particular, because it's definitely not that page, since it only says his name.

[00:04:46] Speaker 04:
So what part of the expert report in particular is it that you think absolutely puts the court on notice that you had not, contrary to your discussion directly with the judge, you had not acquiesced?

[00:04:56] Speaker 03:
Your Honor, it would be 12783 and 12784, paragraph 75 and 76 of Dr. Beebe's proposed supplemental report.

[00:05:13] Speaker 03:
The data concealed from the first trial, as this court noted in its prior opinion, was testing done on behalf of J&J in connection with this very lawsuit of lenses sold by Bausch and Lyon.

[00:05:26] Speaker 04:
I don't see anything in 75 that satisfies what you're talking about.

[00:05:29] Speaker 04:
So what precisely, what sentence?

[00:05:33] Speaker 04:
Tell me out loud, please, the sentences and help me understand how these put everybody involved on notice that you were basically taking back your earlier acquiescence.

[00:05:44] Speaker 03:
I don't know if I can reduce it to a single sentence.

[00:05:47] Speaker 03:
Your Honor, 75 sort of talks about the study, but let me take you to 76.

[00:05:52] Speaker 03:
He says, JJVC's depth profiling experiments further validate my service analysis methodology presented in my 3 October 2011 expert report.

[00:06:03] Speaker 04:
And what is it that he excluded that you think is a problem?

[00:06:07] Speaker 04:
Did he exclude the depth profiling experiments?

[00:06:10] Speaker 03:
He did not allow

[00:06:12] Speaker 03:
Dr. Beebe to look at the concealed data and say basically this.

[00:06:17] Speaker 04:
No, but what you mentioned in this thing is their depth profile experiments validate his analysis methodology.

[00:06:24] Speaker 04:
Did he exclude any discussion of the depth profiling?

[00:06:27] Speaker 03:
He did, Your Honor.

[00:06:28] Speaker 03:
He absolutely did.

[00:06:29] Speaker 04:
So this expert couldn't then testify about how those depth profiling experiments did in fact support his methodology?

[00:06:37] Speaker 03:
He was not permitted to do that.

[00:06:38] Speaker 03:
That is correct, Your Honor.

[00:06:39] Speaker 03:
And just to clarify,

[00:06:41] Speaker 03:
This was depth profiling analysis that he had done of the C-Bivision Bausch and Lomb lenses, which were agreed to have the fringing surface layer.

[00:06:54] Speaker 03:
And he was going to use that to say, this has the same profile that I found in the J&J lenses in terms of the data.

[00:07:02] Speaker 03:
And he was not allowed to do that.

[00:07:04] Speaker 03:
And the fact of the matter is,

[00:07:07] Speaker 03:
That was independent corroboration of his overall testimony.

[00:07:12] Speaker 03:
And one of their big attacks, which they spent a lot of time in their brief talking about is they attacked Dr. Beebe's use of something called cryomicrotomy.

[00:07:21] Speaker 03:
This data was independent of cryomicrotomy.

[00:07:24] Speaker 03:
In other words, they were free to attack his use of that technique and say he didn't do it right or was misleading or whatever.

[00:07:31] Speaker 03:
But if he'd been allowed to rely on this data, which had been concealed from him,

[00:07:35] Speaker 03:
He would admittable say, independent of my cryomicrotomic analysis, I also have data from J&J's own retained expert that supports my conclusion.

[00:07:44] Speaker 00:
This was... Do I remember correctly that the reason why the district court didn't allow your expert to rely on this methodology is because previously your expert had said that this methodology was erroneous and not reliable?

[00:07:58] Speaker 03:
There were two reasons, Your Honor.

[00:07:59] Speaker 03:
That was one of them.

[00:08:00] Speaker 03:
One of the reasons was that he said that Dr. Beebe had somehow flip-flopped.

[00:08:04] Speaker 03:
I challenge that for two reasons.

[00:08:06] Speaker 03:
First, he testified about this methodology in the first trial.

[00:08:11] Speaker 03:
It's not like it had never come up before.

[00:08:13] Speaker 03:
He was critical of the way it was done.

[00:08:15] Speaker 03:
But of course, he didn't have access to the concealed data.

[00:08:19] Speaker 03:
It's not fair to hold up that criticism of the study and then say, well, now that you have something

[00:08:24] Speaker 03:
that wasn't revealed to you before, you're stuck with your own criticisms.

[00:08:28] Speaker 00:
That's point one.

[00:08:28] Speaker 00:
So you see that as an abusive discretion?

[00:08:31] Speaker 03:
Yes.

[00:08:31] Speaker 03:
And point two, Your Honor, Dr. Beebe testified that in the interim between the first trial and the second trial was about five years.

[00:08:39] Speaker 03:
And he testified that he had learned more about the procedure.

[00:08:43] Speaker 03:
I don't believe that's an appropriate.

[00:08:45] Speaker 03:
The court cast it as a doberr ruling.

[00:08:48] Speaker 03:
I don't think that's an appropriate doberr ruling, because if in fact he'd said something different

[00:08:53] Speaker 03:
He could have been subject to cross-examination on it because this whole sputtering technique was introduced without real challenge in the first trial.

[00:09:02] Speaker 03:
There was no down-bar challenge in the first trial about this methodology when J&J tried to introduce it and did introduce it.

[00:09:07] Speaker 03:
So this is not some sort of junk science question.

[00:09:10] Speaker 03:
He was critical of it.

[00:09:12] Speaker 03:
He didn't have the full picture.

[00:09:13] Speaker 03:
Once he had the full picture in the intervening five years, he said, you know what?

[00:09:17] Speaker 03:
This data actually shows me something that is useful and it confirms my own view.

[00:09:23] Speaker 03:
And your honors, it was important, especially because the linchpin of their defense in this case was that their lens was different from the Bausch and Lomb and Seba lenses.

[00:09:36] Speaker 03:
The whole trial was filled with the notion that those lenses were so different because they were coded.

[00:09:41] Speaker 03:
But this concealed data, which related to the Bausch and Lomb and Seba vision lenses, actually would have allowed Dr. Beebe to challenge that and say, no, that's not right.

[00:09:52] Speaker 03:
they have the same kind of profile.

[00:09:54] Speaker 03:
So the other reason, Your Honor, just to follow up on my previous answer, the other reason that he excluded Dr. Beebe from relying on this concealed data was he said it was beyond his portfolio.

[00:10:10] Speaker 03:
It was gone beyond his original brief, so to speak.

[00:10:14] Speaker 03:
That's just plainly incorrect.

[00:10:16] Speaker 03:
He didn't do that kind of testing.

[00:10:18] Speaker 03:
He did TOF-SIMS testing, so-called conventional

[00:10:22] Speaker 03:
conventional TOF-SIMS, the testing that was at issue here was this soft-sputtering TOF-SIMS, but it wasn't beyond what he talked about.

[00:10:30] Speaker 03:
He had talked about that information in the first trial.

[00:10:34] Speaker 03:
But it was beyond his expertise.

[00:10:37] Speaker 03:
Your Honor, it was not beyond his expertise.

[00:10:39] Speaker 03:
He was very familiar with TOF-SIMS.

[00:10:42] Speaker 03:
He was willing to criticize the Bolowski data, which was incomplete.

[00:10:47] Speaker 03:
And he was willing to say he wouldn't have done it himself quite that way.

[00:10:51] Speaker 03:
But once he saw the data that had been concealed from him, he said, you know, and five years intervening, he was willing to say, look, now this shows that my original analysis was correct.

[00:11:03] Speaker 04:
Wait a minute.

[00:11:03] Speaker 04:
He also testified the underlying data was based on a technique that was not available when it was allegedly performed.

[00:11:09] Speaker 04:
And he also testified the whole experiment was poorly designed and he wouldn't rely on it.

[00:11:15] Speaker 04:
I'm supposed to conclude the district court abused his discretion in finding Dr. Beebe's reasons for switching his testimony unpersuasive when none of your current arguments seem to go to those points.

[00:11:25] Speaker 03:
I respectfully disagree, Your Honor, for this reason.

[00:11:28] Speaker 03:
I think it is very unfair to hold Dr. Beebe to every word he said before on what was available to him when the expert had deliberately concealed unfavorable data.

[00:11:41] Speaker 03:
So yes, he was critical of that expert.

[00:11:43] Speaker 03:
and some of the methodologies.

[00:11:45] Speaker 03:
But he was looking at an incomplete picture, a picture so incomplete that this court concluded that it's so tainted the original trial that it required a new trial.

[00:11:54] Speaker 03:
I'm going to yield the balance of my time for rebuttal if that's appropriate.

[00:11:58] Speaker 03:
Thank you.

[00:12:05] Speaker 02:
Thank you.

[00:12:05] Speaker 02:
May it please the court, I'm Greg Discant on behalf of Johnson & Johnson Vision Care.

[00:12:12] Speaker 02:
and I'll focus on the issue the council just addressed.

[00:12:15] Speaker 02:
Before I do, the court remanded the case with direction to give Rembrandt a chance, developed the case as it saw fit with all the facts in front of it, and the district court completely permitted them to do it.

[00:12:30] Speaker 02:
They proposed new expert reports.

[00:12:33] Speaker 02:
The district court agreed with that.

[00:12:35] Speaker 02:
They proposed depots of the new expert reports.

[00:12:37] Speaker 02:
The district court agreed with that.

[00:12:40] Speaker 00:
They proposed... Both sides have

[00:12:42] Speaker 00:
new experts or new experts in addition to previous experts?

[00:12:46] Speaker 02:
They proposed that there be no new experts and no new testing.

[00:12:51] Speaker 02:
And we agreed with that with one exception.

[00:12:55] Speaker 02:
Obviously, we weren't going to call Dr. Bilowski again.

[00:12:58] Speaker 02:
We substituted, however, Dr. Bradley, who had been disclosed in the initial case, had put in an expert report in the initial case, had been deposed in the initial case.

[00:13:08] Speaker 02:
So it entailed no new discovery.

[00:13:10] Speaker 02:
We just had

[00:13:11] Speaker 02:
a fully disclosed expert.

[00:13:13] Speaker 02:
Beyond that, on their demand, basically, there were no new experts and no new testing.

[00:13:19] Speaker 02:
So we were limited to what the remand order suggested.

[00:13:24] Speaker 02:
And Judge Corrigan allowed them fully to develop all that they wished.

[00:13:29] Speaker 02:
On this subject of the, I call it the spluttering data, it's also the depth profiling data from the University of Texas,

[00:13:38] Speaker 02:
This court, that data was incomplete and not fully documented.

[00:13:42] Speaker 02:
This court suggested that Rembrandt take depositions of the people who had done the experiments so they really would understand what they were about.

[00:13:51] Speaker 02:
They chose not to do that for whatever reason.

[00:13:53] Speaker 02:
I don't know.

[00:13:54] Speaker 01:
What exactly was Dr. Bisbee troubled with, with respect to the sputtering?

[00:14:01] Speaker 01:
Dr. Beebe?

[00:14:02] Speaker 01:
Yes, Dr. Beebe.

[00:14:03] Speaker 01:
Now, was it the results or was it the methodology itself?

[00:14:07] Speaker 02:
was the methodology itself.

[00:14:09] Speaker 02:
He testified that it was inappropriate.

[00:14:10] Speaker 01:
It didn't matter what the underlying data was or anything.

[00:14:13] Speaker 01:
It's the methodology that he disputed.

[00:14:16] Speaker 02:
He absolutely said the methodology was inappropriate and unreliable.

[00:14:21] Speaker 02:
And he repeated that.

[00:14:22] Speaker 04:
And he said that after the remand.

[00:14:23] Speaker 04:
Yes.

[00:14:24] Speaker 04:
That's the thing.

[00:14:24] Speaker 04:
The thing I was quoting from on 1377, I went back, look, that's post remand.

[00:14:28] Speaker 04:
That's just the recent testimony.

[00:14:30] Speaker 02:
After the remand, he said it was, he actually said, after the remand, he said,

[00:14:35] Speaker 02:
The right equipment to do that experiment did not exist in 2012, but now he wanted to rely upon it because he learned more stuff.

[00:14:44] Speaker 02:
We said, what?

[00:14:45] Speaker 02:
He couldn't identify it in his deposition.

[00:14:48] Speaker 02:
In their reply brief on our Daubert motion on this, they said, well, these two are- I can't figure out why he wanted to rely on it though.

[00:14:55] Speaker 02:
I'm sorry?

[00:14:55] Speaker 04:
I can't figure out why he wanted to rely on it because he went on to say how bad it was.

[00:14:59] Speaker 02:
He wanted to rely upon it, the judge said.

[00:15:03] Speaker 02:
I used to think it's terrible, now I think it's great.

[00:15:06] Speaker 02:
He wanted to rely upon it because he wanted to do a know-nothing analysis of it, and that was the second reason it was excluded.

[00:15:14] Speaker 02:
It was excluded both because of his flip-flop, but the other reason it was excluded is in this sputtering technique, the beam goes into the polymer and sputters.

[00:15:25] Speaker 02:
The first 5 to 10 nanometers are unreliable data until the beam settles down.

[00:15:32] Speaker 02:
He wanted to, and in his earlier testimony, he acknowledged that the early, the initial few nanometers of data are unreliable and cannot be relied upon.

[00:15:42] Speaker 02:
In the expert report that he submitted supplementally, he ignored the transient region.

[00:15:49] Speaker 02:
And so basically it was junk science.

[00:15:51] Speaker 02:
And, you know, you could just look at the Judge Corrigan's decision excluding it.

[00:15:57] Speaker 02:
It's on four and five of the appendix.

[00:16:00] Speaker 02:
Now, first he talks about his flip-flop, which is an independent reason under 11th Circuit law.

[00:16:06] Speaker 02:
And then he says at the end, the court finds Dr. Beebe's reasons for altering his prior opinion unpersuasive and, and, this is the transient region point, the manner in which he proposes to use that testing is inappropriate under Daubert.

[00:16:25] Speaker 02:
This is meaningless data.

[00:16:28] Speaker 02:
We made both points in our Daubert

[00:16:30] Speaker 02:
Either one was sufficient to exclude the data.

[00:16:32] Speaker 02:
It was not an abuse of discretion.

[00:16:34] Speaker 00:
One of the questions that we had asked was the relative timing of the discussion before the judge in the flip-flop of position versus the timing of the updated expert report.

[00:16:48] Speaker 00:
And I understood from counsel that the colloquy occurred before the expert report.

[00:16:56] Speaker 00:
But I think I'm not sure that that's correct.

[00:16:59] Speaker 00:
You agree?

[00:17:00] Speaker 02:
Yeah, that was the initial conference.

[00:17:03] Speaker 02:
And we had this described.

[00:17:05] Speaker 02:
Excuse me.

[00:17:06] Speaker 02:
He may have said, the judge may have from time to time said, I don't want to hear about Polowski's name.

[00:17:11] Speaker 02:
And everyone agreed with that.

[00:17:12] Speaker 02:
So possibly you're looking at something from later.

[00:17:15] Speaker 02:
But it was never a surprise to us that they were going to do this.

[00:17:21] Speaker 02:
It was in his expert report.

[00:17:22] Speaker 02:
We made a dowered on it.

[00:17:24] Speaker 02:
The judge excluded it properly for the two reasons I identified.

[00:17:28] Speaker 02:
And there was no gamesmanship on that issue.

[00:17:30] Speaker 02:
So I agree with Ms.

[00:17:31] Speaker 02:
Reynolds.

[00:17:31] Speaker 02:
Thank you.

[00:17:32] Speaker 02:
I'm happy to address any other issues that are on the court's mind.

[00:17:35] Speaker 02:
But basically, we tried a fair case.

[00:17:38] Speaker 02:
Judge Corrigan granted some motions that they made and granted some motions that we made.

[00:17:44] Speaker 02:
And they say he had prejudged the issues.

[00:17:47] Speaker 02:
Boy, we were hoping he would just reinstate his Daubert excluding the Short D testing and grant a summary judgment without trial.

[00:17:56] Speaker 02:
And he denied that.

[00:17:57] Speaker 02:
You let them go to trial, they lost fair and square, and this court should affirm the judgment.

[00:18:03] Speaker 04:
Okay, thank you, Mr. Diskin.

[00:18:04] Speaker 02:
Thank you.

[00:18:05] Speaker 04:
Mr. Melshawner, you have some rebuttal time left.

[00:18:14] Speaker 03:
You may please the court.

[00:18:16] Speaker 03:
Just to put a button on Judge Stoll's question, the conference with the colloquy that you've mentioned was, I think, at 1.31.

[00:18:25] Speaker 03:
November 8, 2016.

[00:18:27] Speaker 03:
The expert report, in any event, was January 20, 2017.

[00:18:33] Speaker 03:
I don't think there was a dispute that whatever that colloquy meant at the time, we certainly were trying to push to have him be able to rely on this data.

[00:18:43] Speaker 00:
Judge Moore?

[00:18:44] Speaker 00:
Just so you know, the part that I was looking at is on page appendix 33, and it's from a July 27, 2017 hearing.

[00:18:52] Speaker 00:
That's what I was looking at.

[00:18:54] Speaker 03:
So Your Honor, I don't know if the court had ruled at that point on Dr. Beebe's report coming in.

[00:19:01] Speaker 03:
It may have been that at that point he had said it's not coming in.

[00:19:05] Speaker 03:
But it was pretty clear, and I don't think there's really a dispute about this, that we put this in his expert report.

[00:19:14] Speaker 03:
He was deposed about it.

[00:19:17] Speaker 03:
He gave a clear intention of what he was intending to testify about.

[00:19:21] Speaker 03:
They moved to strike it.

[00:19:22] Speaker 03:
under Doe Baer, and the court granted and said we couldn't talk about it and said we could not talk about the concealed data.

[00:19:29] Speaker 03:
It was never our position that we had agreed to that.

[00:19:32] Speaker 03:
If we had agreed to it, we wouldn't have pushed so hard to have Dr. Beebe talk about it.

[00:19:37] Speaker 03:
I certainly understand the court's concern, given some of these questions, that Dr. Beebe was critical of the methodology.

[00:19:47] Speaker 03:
I think that is something that is fair game for cross-examination.

[00:19:51] Speaker 03:
It is, to me, a remarkable result that the data, the concealed data that caused this court to grant a new trial, could not be used topside or bottom by our expert in the new trial at all.

[00:20:08] Speaker 03:
We weren't asking to put in all the evidence we could have put in.

[00:20:11] Speaker 01:
Perhaps it's because that data is a result of methodology that your expert said was faulty and defective.

[00:20:18] Speaker 01:
And it's kind of like an axiom that all

[00:20:21] Speaker 01:
defective methodology is going to produce tainted data.

[00:20:25] Speaker 03:
I think your honor that in fairness to Dr. Beebe, he made those assessments, at least initially, without exposure to the concealed information.

[00:20:37] Speaker 03:
And the fact is, whatever he said later, he said in his expert report and intended to say in the trial that this information was corroborative.

[00:20:46] Speaker 03:
Because if it was worthless junk science,

[00:20:49] Speaker 03:
then the concealment of it shouldn't have prompted this court to do the extraordinary remedy of a new trial.

[00:20:55] Speaker 03:
So our position is that he should have been allowed to rely on that.

[00:20:59] Speaker 03:
I haven't dealt with the modulus information.

[00:21:01] Speaker 03:
That's pretty well briefed.

[00:21:03] Speaker 03:
We don't believe that we got the fair trial to which we're entitled.

[00:21:07] Speaker 03:
I know this court is no doubt finds unappealing the idea of having this retried a third time.

[00:21:14] Speaker 03:
This court has, in fact, done that before in the Colmal case and other case.

[00:21:18] Speaker 03:
And to me, it's not a question of whether this case has been tried three times or 30 times.

[00:21:23] Speaker 03:
The question is, has it been fairly tried with all the evidence available to us?

[00:21:27] Speaker 03:
We don't think it was.

[00:21:28] Speaker 03:
And that's why we think this court should reverse.

[00:21:30] Speaker 04:
Thank you very much.

[00:21:31] Speaker 04:
I thank both counsel.

[00:21:32] Speaker 04:
The case is taken under submission.