restore the emotional distress award and to a man for consideration of punitive damages i want to st talk about the liability verdict we think the evidence was sufficient to show that dr manion was terminated from her position with rockefeller university because of her race or national origin that she was treated under the language of the new york city human rights law less well than other employees because of her race and denying rockefeller's post trauma ocean on this issue the court relied on the nd circuit decision in my heart like two thousand and thirteen decision which made clear that the analysis under the city human rights law is different and less stringent than under title seven  she need only demonstrate under the city human rights law that she was treated less well at least in part because of her race or national origin the liability regards reaction to it there was an addition to that her claim that other non middle easterners were treated much better that she was denied equal resources that she was embarrassed at all and meeting this central  kind of culmination of your research and allowed meeting with everybody in the lab was present where she was ashamed and embarrassed by dr greencard he told her after that meeting that she was not a good scientist and she had to pack up and leave and even though she had been there just a little over a year and she had two years left the fact of the matter is that the evidence show that paul green gore was mentally abusive oppressive and treated her like a slave like she said to rockefeller university when she complained i think you we also can consider in germany and determine liability the fact that rockefeller university really tried to cover up or downplay those claims by not putting it in their official damages even though we submitted on three separate occasions the charges include the punitive damage charge because she we don't it's unforeseen we don't and judge of course judge message no longer with us but we don't know exactly why she did that because she didn't she just said i'm not going to do it she didn't give a reason for it so we were and i think it's a reason inference that she was focused on the federal standard not the new york city human rights law standard would you adequately preserve the not stand up as we quite into roof if you want to after the charges read and object to that portion of it but we think that we clearly set forth on three occasions and that was the charge we were seeking and we believe that any further attempt to do that would have been charge that the judge you know we never really had a discussion about it with there we raised it with her and she simply said no so she said no and so when she delivers the charge you got to check but i think i understand that i understand your point judge i think that under normal circumstances had there not been three separate efforts to submit that charge and had we not had it not been futile under the circumstances at that time to get up and do that it would have changed anything it would have been it certainly would have on the record preserved but i don't think you and me and i think the court has the discretion to make that determination that it would have been futile it was raised it wasn't raised during the charge conference that counsel did raise other issues that the charge conference that's correct and i'm not maybe i misunderstand the record but i mean she says the district says one time at one point based on what i know now i don't think that punitive damages will be an issue that seems to me to leave an opening to raise it again well it was a seven week trial judge three thousand eight hundred page transcript it was you know had we and hindsight we probably should have stood up at that point and said that we based on the on on the process we were going through with judge bats it was clear that she was not going to change your mind and that it would have been futile to raise it the other thing that i think the court must consider in determining whether the liability decision should be affirm is the fact that is something that not mentioned in the defendant's brief which is on their own case and they're directly put on a witness a d miserably on him because he didn't testify in a way that destroyed their entire defense in the case he said i should say their position was she was not a good scientist dr green your brother inter into his office said don't speak don't cry i'm going to tell you you have to leave you're not a good scientist i want to give you a recommendation to anything other than low level teaching university how lucky of your recommendation for research dr reviewed her paper that dr bring i didn't even bother to review and concluded testify that her work was groundbreaking that she her work was of tremendous significance so i think considering all those facts i think it's clear from the facts that the jury did in fact see the reaction of the parties reaction to the verdict is that right well there was in her reaction st of all there's nothing in the record where anybody got up and said this was a reaction so th purely speculation on the part of the rockefeller in their brief there was no i mean aside from like you know what the reaction was i mean just temporarily is that how it played out it happened in a matter of seconds want to go back and deliberate yes that was it they got up they went back nobody reacted nobody actually at our table reacted to that so to suggest that somehow that there was some and the jury left they left the room and found one juror left a bit left the building this all happened right in front of everybody it was very quick it was a matter of seconds i don't think it took one or two minutes actually for them to do that she sent him back they came back they had been there for sixty six and a half weeks almost seven weeks they were in there were it deliberate they paid attention they were a very good  jury and they came back and corrected the mistake they had made i think i think any distribution how it would be rated when they were sent back to fifteen more minutes the record should says it shows there was fifteen more minutes i think any district  judge anywhere would have done the same thing after having listened to twenty witnesses six hundred exhibits seven weeks of testimony three thousand eight hundred pages of transcripts and with the jury still there she sent him  may please the court my name is elise bloom and i represent rockefeller university the appellee and cross appellant in this case i want to start by just answering judge underworlds underwo question about the waiver of punitive damages i believe that that question is answered by this court's decision in the caruso case which is very clear that the fact that you may submit a punitive damage charge in proposed instructions to the judge does not relieve you of the obligation to restate that objection after the charge is given and in this case what judge betts had said during the proceedings is exactly what judge livingston recalled that she wasn't inclined to give a punitive damage charge but once she submitted the draft charge to the parties that did not contain a punit damage charge it was incumbent upon plain just counsel to raise that objection because for all the judge knew they at that point had concluded that she was correct they did not raise an objection to the lack of a punitive damage charge although they did raise a number of other objections to the charge is our position that this court should grant judgment for the university for three independent reasons the  reason is that the jury unanimously concluded that the university did not intentionally discriminate against the plaintiff in its initial verdict each juror confirmed that verdict they confirmed upon being told that that was their decision the trial court abused her discretion in allowing the discharged jury to reconsider its verdict after having been exposed to external influences under the supreme court's decision and dietz the district court has limited authority to allow a jury to rea unanimously university treated her less well at least at least in part because of her race national origin there is not an error here because in question one the only question that asked the jury to decide whether or not the plaintiff had proved by a preponderance of the evidence that the defendant intentionally discriminated against her that was the only question that asked the jury to determine whether or not there had been intentional discrimination and in answer to that question the jury said no even judge batts after the verdict was read my posing counsel objected and we had a sidebar judge bats at that sidebar when they raise the fact that there were there was one answer to the st part of one and then that there was a different answer there was an answer on the liability question it said no judge that said unequivocally but you haven't proved it even my adversary agree is that if there were one question that went to the question of individual liability that was the nd question i guess my difficulty and help me understand how i should be looking at dietz in this context it appears to say that a district court judge has has the power to rescind the discharge order in to send the jury back when there's an error and doesn't express explicitly address our situation but here it seems that the jury itself was calling to the district court's attention that there was an error here my adversary has left out a critical piece of the record what when we were at side bar and it was after the verdict had been read and in fact the jury had had an opportunity to observe the plaintiff's reaction to the verdict the four person said to the clerk you didn't read why didn't you read everything we wrote and it's important to note that this is the four person who had confirmed not once but actually twice that the verdict was her verdict at that point the clerk said judge they've made a mistake it was the clerk who characterized it as a mistake and actually under the law the fact that a jury wants to award damages out of for whatever reason absent a finding of liability it would be a law to do that and this court looked a look only no further than its own decision in limbo nea and in that case the court specifically held that the fact that the jury might write down damage numbers after having found it was an excessive force case involving a police officer but half after having found that there was an immunity the fact that they wrote down a damage award does not the court should strike the damage award that's also consistent with the cl he's a little different than what appears to be an inconsistency here no liability by damages well it's very much like the freeman case out of the th circuit and we couldn't find a case similar in this circuit but was a racial harassment case and in that case the jury had checked a box that said that the plaintiff had been harassed but then as to the nd question about whether or not they improved by a preponderance of the evidence that it was motivated by race they checked no and they still wrote in damages the court held that again that the jury's desire to war damages out of sympathy or simply their desire to award damages to the plaintiff absent a finding of liability in that case the damage award should be stricken and in this this case the only question the only question that went to intentional discrimination was the nd question and to that question the jury answer no with regard to and if the judge if the judge wanted to send them back in to deliberate under dietz it was incumbent upon the court to ensure that the jury had not been exposed to any external influences and we know that by the time the jury went back in to reconsider its verdict we had the clerk statement which was different than what the four person had said and the records very clear on that and then we had the judge adopting what the clerk had said and said to the jury do you want to go back in and make it make a change or do you want to she said do you need to go back into the jury room and straighten something out you need another verdict form picking up on what the clerk had said and without some inquiry as to whether or not the jurors had been whether what the jurors were saying and you didn't read everything that we wrote down was consistent with the characterization of the law the court clerk without some effort to ascertain whether or not the jury had had the opportunity to view the plaintiff's reaction to the verdict the judge we don't have anything in the record about the plaintiff's reaction to the verdict so wouldn't the rule you're advocating for essentially give no ability in the district court judge in a district court cannot prevent the  verdict from being announced and then they're mistaken suing and in every case there will be presumably people in the courtroom who in some way have an opportunity to react to the burning that's essentially all we have in this record that's exactly what was contemplated in the deeds case because in the deeds case the court said you know even you can't record every reaction even a gasp can have that impact the deets case also said even the clerk saying to the jury good job can have an impact the point is the judge should have at least for that reason we can never reconvene the jury you can reconvene the jury and there are cases where the district court does reconvene the jury but if you're going to reconvene the jury you've got to ascertain whether or not there have been extra influences and that didn't happen here just external influences i thought the courts and the suggestion of prejudice from those influences right i'm sorry i don't understand restaurant prejudice from those external influence where you it exactly otherwise it would be anything otherwise i'm sorry to be anything right exactly but the court needs to do you did a court needs to do something to ensure that the jury has not been influenced by either what the clerk in this case sat or whether the jury had an opportunity to observe the plaintiff and whether the jury was in any way influenced by that as well so it's and it's our position that under dietz the court abused its discretion to other quick points that i wanted to make and we do think there's an additional basis to find for the university in this case and that is the plaintiff's deliberate and intentional concealment of evidence that should have been disclosed during the discovery period after the discovery period when she was supposed to supplement her hard discovery and the evidence consisted of the identity of eighteen mental eighteen medical providers and the fact that she also had filed a lawsuit in which she gave testimony that directly contradicted her testimony in this case as to her compensatory damages i see that my time is up to point your honour's first of all there was not one but there were two questions on that very firm that go to the question of culpability and i believe the st question asked  need is that we are going to get in fact in the end the charging conference counsel for them are different than what they're arguing here today they said this on page twenty six of our brief they said that  issue that they talked about in terms of the evidence had to do with the testimony of dr goldstein they made a big point of the fact that he interviewed the plaintiff subsequent to his two thousand and ten when he filed his official report but if you look carefully at the transcript of that you'll see that on your own plain direct the plaintiff didn't go into any of that post two thousand and ten view he might have had about her damages it was brought out by counsel for the defendant across they said and they did it because they wanted to show obviously that he and talked to her for many many years they said  so everything you said about her condition on the witness stand this morning relates to what things were like for her in june of two thousand and ten and she said yes and then rather than settle for that they went one step further and one step too far perhaps staff so you can't tell us about what her mental health is like today dr goldstein said yes yes but i don't know if i'm allowed to so rather than at that point asking for a side bar they went ahead that's when they asked for the side more so my you know your research you know you don't on cross examination you should ask a question you don't know what the answer is let me let me ask a question about  in answer to your question about whether or not it was the st question or the nd question and the verdict form that was a perfect if you look at joint appendix three thousand nine hundred and forty seven what you will see very clearly is that my adversary actually argued that the nd question was the key question and if the court was going to only ask one of those questions then the court should ask the nd question and that the st one was in fact superfluous with regard chair it is our position that the judges were minuter was appropriate and was consistent with the law in the circuit which is what she was required to do  however i would add that given the information that came to light after the trial specifically the fact that although the plaintiff had an obligation to identify all medical providers that there were eighteen that she failed to identify in this case and that she gave testimony in this case as to emotional distress which was completely contrary to the testimony that she gave in a medical malpractise case and the significance is that she was claiming medical malpractise that occurred as a result of a hospital stay in two thousand and twelve in our case our testimony with regard to her emotional distress was that she suffered severe emotional distress and also had physical manifestations that included hair pulling from two thousand and seven to two thousand and twelve and then forward in a medical malpractise case she testified that she had only a little bit of anxiety and i should say the testimony in the malpractise case the record reflects was given in two thousand and fifteen she testified that she had only a little bit of anxiety until two thousand and twelve and that anxiety was ten years prior which would have put us back  two thousand and five and that her anxiety and her emotional distress all occurred as a result of the medical malpractise in two thousand and twelve so this court should not reward somebody who has given contrary and conflicting testimony that is clearly designed to obtain a particular result depending on which case she's testifying in the letter is there any authority for the proposition that  judge should be reversed for use of discretion for imposing to light the sanction in discovery context there's an authority for the proposition that a judge should be reversed but the proposition or case dismissed well there there is certainly authority for the proposition that dismissal is an appropriate sanction based on the gravity of the conduct it may be appropriate when it hasn't been with facts similar to these where a district court judge had awarded a certain type of a sanction and then the appellate court in reviewing that sanction had found that that sanction was not sufficiently severe it is our position though that given the totality of the circumstances that the conduct in this case was very very egregious and that the sanction of dismissal is supported by the case law and that the district court judge should have dismissed this action as opposed to just the lesser sanction but even if you agree with the district court's lesser sanction that is just further support for at the very least supporting the two hundred thousand dollars a minute turner that judge bats had entered which was prior to the discovery of this additional evidence which lets you sanction was prohibited recovering from any damages after two thousand and twelve