fifteen minutes total on well i'll let you know when you have to but keep track of your time thank you your honor i'd like to focus the vast majority of my argument if i can on the issue involving the evidence involve noses missed work in the past and how that affected the jury's verdict and also on the award of fraud pay well on the front page just their semite circuit twenty sixteen case front pay i think a jury can award five pay but i think a jury in order to do that there has to be finding first because the principle behind front page is there front pay is a substitute when reinstate not possible and the issue of whether reinstatement is possible is something that a judge and not a jury is capable of deciding that was what the what the tracks a case stood for was that when you're dealing with reinstatement that is it's an equitable reinstatement as an equitable remedy and reince and if reinstatement is not possible and that can be lord largely because there's some type of hostility or anonymous between the employer typically you see that in a harassment case or something like that then i think i think counsel that you've got a decent case that friendship a is equitable in nature but my problem really is that it can be said to jury the parties can agree that that right and in this situation i don't really see where it was really preserved or or presented to the court to why isn't this an invited error situation and let me let me tell you what i'm concerned about because the  parties worked on and submitted a joint pretrial order stating unequivocally this is going to be a jury trial there is no indication in that pretrial order that there were equitable issues reserved and that you're asking the court to basically reserve some issues for later determination there were a jury instructions that the party worked on jointly and submitted to the court that covered front page as well and the first time this was ever alerted to the court that there may be an equitable issue as to from pay is really in was it your motion for judgment as a matter of law and so i don't think that that's really the way to bring it up to the court to tell the trial judge in all fairness  judge to say your honor we're asking that this issue be reserved because it's equitable nature in that brief it for the court so why isn't it an invited error situation at this point it's all done you verdict on the issue ok but in the motion for judgment as a matter of law it was presented to the judge for the judge is a bit the trial court judges ability to say in order  to this verdict in order to find that this award of front pay is viable i first need to find that reinstatement is or is not possible and so i think as a practical matter that is the issue gets resolved i don't think that it was invited i think i need to really review the record to be perfectly honest with you but i believe i am certain that we raise this some point during the trial and i asked the judge to and i thought there was a motion in limine a in fact on this as well all right maybe you can point me to the record where it was really properly person or when you come back up on the bottom ok thank you your honor but be that is to be that as it may the court could ask the jury to decide the front page and then accept it as the judge's equitable remedy and you never offered to reinstate anybody or told anybody that you were going to reinstate him we didn't did we did know offer reinstatement no they did not indict all the court you were talking about reinstatement you it was a damn money damages case from the beginning until the end until then you decided wait a minute that's an equitable issue and i might give reinstatement i mean that's the first time i've heard this argument about reinstatement honestly respectfully on i think reinstatement always a possibility and i don't think that the law requires this is there are lots of possibilities in every single case you've got to bring the issue ruling i understand what you're saying i think the evidence in this case was actually pretty clear that muskogee you know it's like her job very much the company every witness to testify testified that they liked her very much the way it wasn't like a sexual harassment case where there's extreme acrimony where it's clear that people can't work with each other that they could never get along and that it's there are irreconcilable differences between the parties but she was terminated unemployment was terminated after a long abs absences from work wasn't allowed we weren't allowed to present that to the jury in her deposition and in the documents it was clear that in almost every year preceding the year that she lost her job she had missed an extended period of time in two thousand and five two thousand and six two thousand and seven two thousand and nine two thousand and eleven in two thousand and twelve and in the god har case from the ninth circuit the court said that a plaintiff's past work history can be relevant to calculating if you know an award of future damages the issue with front pay just in general is the front page is necessarily a speculative for a parameter with back pay you're out looking back in time so you can say the person missed a certain amount of time it's finite we can calculate the precise damages with front page it's necessarily speculative remedy no one got hurt they said that they would not the that the work history was not relevant because in that particular case the two issues that arose with the plaintiff's password that the plaintiff had cut their finger one occasion and that there had been an isolated disciplinary instance and so they said that in that case the issues were so isolated and so unique that there was no way that they could get a jury could possibly conclude that they would that they would affect anything in the future but in this case it was much different there was a much more there was a history of chronic illness and if someone with chronic illness is claiming that they're going to be unemployed for a period of time in the future th you don't you're not tying that to her claim to begin with her substantive claim no no your honor that just a minute just heard that's precisely right this is purely as to damages and it is possible that a jury could hear all of those things that she was absent on all these times and it's possible that a jury could conclude you know in two thousand and five that was an isolated incident and so on and so forth what the jury should have could that wasn't her medical condition litigated during the course of the trial her medical condition in two thousand and thirteen the last year for employment was litigated so that was litigated but her medical condition and and her ability to work in the future was not raised during the medical testimony well  it was not it was not and her expert well first with the econ expert her economic expert said he didn't take medication into consideration that developed either during director cross or both correct about the medical side with the medical side not the medical side that was precisely what we tried to get into evidence and what the judge did not allow into evidence where we specifically asked and frankly we told the jury because we knew in the opening statement because we knew that this was relevant to damages you're going to hear that in years past so you're saying you never got any mitigation evidence i beg your pardon you're saying that you never got in any mitigation evidence during the trial we weren't able to was it was it your strategy to basically try this case ass both past and future economic damages but that argue that she didn't sufficiently mitigate damages if you lose on the liability yes it was and we did offer evidence about mitigation of damages about her efforts to find work it seemed to me reviewing the record that that was your strategy because after being a specifically asked to put injury instructions that included front page issues as well and that you were going to try to mitigate the damages if the jury ruled against dean on the liability portion of it so i still don't understand why you're arguing about the front page issue here maybe i maybe i didn't understand your question correctly your honor but we did argue mitigation so i view this as two separate indiscreet issues one front on the issue of fraud pay and this is what judge battalion was saying on the issue for pay we believe that her past work history the the chronic absences that she had due to medical conditions in the past are relevant to the quantum of fraud pay that should be awarded if you miss a month or two of work to be truly in the past it's safe to assume that that will happen right you that i should all i'm jury we did and we knew it would be tried on the mitigation issue judge when you were pointing out we did offer evidence about her efforts to find work after her employment you know you put it to a jury a last well that and it's a tough try to push uphill when you have been you know it's different as summary judgment people are talking about what are you had your jury trial that's what you all want to read and the that's true but on the issue of the evidence and what was allowed in and what wasn't allowed in i think that is a different story and i think that's a different standard and then but then you have to show that something that wasn't allowed in but it changed everything right so how would that have changed everything but i think it would have led a jury to believe that she was have been truly absent in the past for long periods of time and that in the future the same type of thing was likely to happen the truth of the matter is why did the  what was the wane that the court did in saying that why while it might have some relevance why did the quite not allow it and what's the standard for him there was there was no on the first question there was no explanation as to why the evidence wasn't allowed in we asked the question we were told to move on we were he sustained an objection or tell was it eleven it was right in the trial correct correct ok did you try to bring it up otherwise  yes and we raised didn't post trial briefing and when we raised yes we don't want to the court sam that the court felt that i don't remember off the top of my head but i believe the court just felt that it was a relevant and the reason why by the way your honor that this was not an issue of harmless error is we raised it in our opening the judge didn't let the evidence in and then in closing argument they specifically alluded to the fact that we didn't present any evidence about her past work history so in the abstract i think you're right judge callahan that you could say how would you how would a jury how can we you know how can we surmise what a jury would have done in that instance but when we mention it we're not allowed to produce it and they specifically pointed out in the closing i think that's a different story i don't like to see my yellow lights out i'd like to reserve my time thank you worked one job her whole life she started there nine hundred seventy nine in high school she got married when she was there she had kids and she was there and she planned to retire there until you know fired and they did that because of her disability and the jury unanimously concluded that counsel on the other side didn't say anything about this but i'm interested in the jury question so talk to me about the jury question as a backdrop to that in a minute to answer that question under california law reassignment is an accommodation of last resort so what the evidence would have to show is that she was concluded she couldn't go to a position before they got that now in the evidence if you look at e r nineteen ms flores who was the h r person there was allegedly talked about offering her a secretarial position but she admits that when that topic came up they still had made a conclusion whether they could or couldn't accommodate ms goodling in their position and that's at nineteen  so you're saying that the reassignment was never actually offered that testimony missed yes that's that's the testimony trial there was testimony wasn't offered to her but it's undisputed that even alpha dina's position i just missed it's unquestionable that they did offer or did not offer it's disputed ok whether they offered what's undisputed alpha d m it's that when this topic came up about another position they hadn't decided whether they would or wouldn't let her turn or a position so there really wasn't even evidence for a jury to conclude that an offer of reassignment because it's an accommodation last resort in they have addressed her position first instruction and it's a it's not an inclusive list that there could be other combinations they could have presented a special instruction about in an offer of reassignment that instruction specifically talks about reassignment and he limited his answer to that specific instruction and not necessarily tailored to what the germ may or may not have been talking about in general they as court trial on that was that i don't recall i was one of the trial attorneys i don't recall so i don't have an answer to that but certainly not the record but i do want to address that issue of offering evidence about prior absences and his counsel said they want to say because she was absent from work in the past for medical reasons that means in the future she would be as well but they had they had doctors on their witness list they never called them as a lay person you couldn't you can't say because someone was sick in the past they'll be sick in the future they didn't have any medical evidence to support a theory that because of past absences should be apps in the future it's going to be there won't but there was medical testimony correct no medical testimony and off from either side now but there went there was whitney and there were witnesses that were included in the defense and there was an independent evaluation of her and all of that they never did have a medical they never did they had doctors i know on the list but they never called them and the doctors were treating physicians or did the doctors were independent traders they're all traders and they never called any of them right and you didn't either well because you didn't need to we called a psychologist an expert ok and a psychologist did the psychologist offer any opinions about her future mental health obviously did because you got a big job got no break he talked about the impact of the loss of a job after thirty fact that you commented on the absence of evidence of housework and that wasn't fair because they attempted to bring it out presumably during cross examination and that was the objections were sustained when you when you reference  closing the absence of past work that's what you were talking about what we were talking about that's a little bit like you keep out someone's felony conviction and then when you argue the case you say all they have a perfectly clean record that that's not fair i agree that wouldn't be fair that wasn't the case here that they had on their witness list treating doctors that could come in and talk about those prior absences in their medical opinion that those would occur in the future and she wouldn't be able to work or her work would be limited they didn't do that they told the jury that they would call and present evidence about that but they never called those doctors at all so that was somewhat to the ink objection prevent he said there he asked a question there was an objection and so he couldn't go into it but to the objection present they just want to present evidence that in the past she had medical absences without any expert testimony to explain that yes because she had a medical problem  past therefore that medical history would continue the future there was no evidence so am i understanding your position to be that they weren't prevented from presenting such testimony but they couldn't but the court denied them doing it in that aspect expert and does to five about what her future condition would be because they never did that evaluation right there were there were dozens percipient witnesses right and so they wanted to get into some information that they didn't have any medical testimony or medical support at the same sound ok they talk about how that's a that's an issue for the jury under california law there's also a california case cloud versus casey that says the same thing there's actually california form jury instructions with juries on wrongful termination claims about front pay and back pay and the case of tracks or that deals with organ law and the f m l a in the f m a lay they specifically list out certain elements of damages that you can recover and say everything else is what a court could award and they conclude because front paying back they weren't listed it's equitable and only the court can do it teach you ok so what the jury's question was that out that question that the district court informed the jury that i had to actually assign cardenas to an alternate position and that so you're saying the district court's answer was correct based on the evidence that was in that record or might i don't i'm not sure what both so what was the jury question whether that term meant actually resign or an offer of reassignment and what that jury instruction says is reassignment but it also states that a c non exhaustive list of  accommodations and they were asking the specific definition of that word and judge lou talked about how he didn't want to open up a can of worms with having to put other instructions and they had that opportunity if that was going to be their argument that it was an offer of reason simon think they could've done a special instruction they didn't but beyond that the testimony there's no evidence that an offer reassignment was made before a decision was decided whether miss green is could or could could or couldn't go back to her job and california law it's in a brief accommodation reassignment it's a combination of last resort so  not a reasonable accommodation if you hadn't made the decision whether she can continue working her job so it's technically correct definition and the evidence wouldn't even support a funny for a jury based on alpha dina's witnesses saying that ok the last point is probably the first point they talk of what we're talking about front pay back pay but it was a general verdict and we put plenty of case authority in our brief that the judge did his discretion he can do a general verdict with one line of damages they talk about how revealing courts can't speculate about what the jury awarded the they talk about an award from paperback they we don't know it was a one line for general damages they could have given all emotional distress damages are going to give her a dollar and lost any we don't know we have one line for damages so it's speculative we're talking about front back pay whether that was even  and the general further because you're asking us to consider how the jury are arrived at a general verdict right so what's your best authority for that so if you give me one second your honor i apol there with me one second your honor i apologize yeah it was apologize your honor was the porterfield case in one thousand nine hundred seventy six from the ninth circuit said that the general verdict is is perfectly fine but in that case the jury or the ninth circuit wasn't going to engage in guesswork or speculation as to how the jury arrived at the verdict in that case it was something with like a formula where they said the total damage is that the expert testified to were x and they awarded ten percent of x that wasn't this case this case was a lot different and to be some bacchis doesn't really help you know i think it does help us because in this case here in this case there is no formula that needs to be applied there's just numbers there's just an expert who testified in year one the damages are a near to the damages or b and it literally went the way i figured out what it was was sitting in my car after the trial with mike i phone calculator i added up those numbers and i came up with the number from the verdict form was actually very simple so there's no i think the case that case porterfield put a field says that basically you don't have to be a detective we don't have to be a detective we don't have to sift through breadcrumbs to figure out what the what the what how the jury reached a number what it doesn't say is that we have to hide our heads in the sand and we have to pretend like just issues of just very simple math adding numbers on a calculator that that's the that means that we're incapable of these one minute we've already gone over so i'll give you one minute rob thank you your honor a sign and so when the jury asked me what is reassign mean i have to tell them if the instruction says reassigned so that's what it says it doesn't say and offer to reassign and that's how the judge did it he felt handcuffed by  clearly under california law and offer to reassign is a sufficient form of reasonable accommodation and we argued to the judge that he should add that to the response to the jury's question in