opponent's sprit i was astonished that there was no disclosure in your brief a lack of and structure objection to the instruction and furthermore an agreement how can you argue that it was plain given that we had a president of two thousand who are president in a false claims case that seemed to suggest that the instruction was  you have a split among circuits as to what was the appropriate instruction the somewhat unusual circumstance that since me exactly the kind of situation where it's very difficult considered nassar and gross i mean if you look at the nesbitt decision from the th circuit it goes through all those decisions and explains that none of them actually considered the text of master gross or explained how you could come into the motivating factor in light of master and gross and so you know the question is just whether it's obvious in light of in light of the supreme court's current decisions and given that it's important in burrage said that it insists on but for causality in statute using the term because instruction was who required that was the st clear statement that they were wrong because they hadn't applied the two supreme court cases and we had not address the issue and i tend to agree with you that that was not a holding and our car of allah ok's but in the absence of any st circuit law and in the of trial counsel or even realizing that these supreme court cases may have dictated a different instruction it's a little hard to blame the it's retaliatory animists motivated cold blast it was faced with a difficult situation where had a letter from one of its biggest customers this was a big deal and it bent over backwards to be fair aren't there other accounts that could have been assigned to her both when she was put on the leave and then later when she comes back and what was the company's asked so your honor when she was when she was put on the leave there is no evidence that there were other accounts that she could have been assigned that would replaced byrom which was eighty percent of her of her book and you know accounts are very relationship driven these are the most important accounts in the company and so you know there's no evidence that coal plants could simply have taken other people off of major accounts and reassigned yeah but you keep saying there's no evidence as though and if that was up to the plaintiffs you're the party who knows that information did you put in any evidence that that was not an option burden of showing the alternative was the absence of an alternative she would have the burden of showing that the difference between that there was an alternative and that the difference between that alternative and what did shows retaliatory so and beyond that she hasn't identified a single other account that she could have been given or would have liked to have been given beyond the ones that she substitute account that she was given what i am but i again and am struggling with the question of who had the burden should we show or office evidence from which or jury can find that the accounts given who are inadequate and can be viewed as retaliate as part of a pattern of retaliation all right who the burden of showing that that there was some better recounts that could have been given to or is that who brewed or is that the burden of the company which actually controls the accounts and knows what's available get her it can't just be an open ended complaint wasn't an open ended complaint a good jury accepted her view that the reason she  was put on the leave and the reason that her accounts were demanding it had to do with her filing the key tom complaint against both her employer and the major customer she had enough evidence to get to the jury on that and a jury could have heard from that that the reason was retaliate shouldn't at that point you had the opportunity your company to put an defensive evidence that there were war no alternatives available but you didn't do that ou did provide a explanation as to the a b c account but in the year she was gone was there no growth in the company where there are no new other accounts that could have been given to her and you know i don't know if this was a strategic choice on the part of trial counsel but it does seem to me that the gap in the record could have been easily filled by the company and that it's not at all clear that it was up to the and i don't think that case you just cited to us actually governs this situation so do you have another case i'm sorry judge she just seems to have disappeared we must have lost her in the last minute or two i apologize i'm going to see if we can get her back the i would like i t to please pause the stream forests and  here's where we are we would like you to give us your last argument on the question of the absence of evidence as  to there being no alternative accounts as to both time periods and you have cited one case of two as i doubt that that gets you there are there other cases or facts from the record you want to call to our attention yes your honor so be sure mo there was testimony from colo class that the accounts that they provided to replace a that you were offering to wash and which you offered to the jury you had you had as and as as i understand it the defense that was made was that the accounts were in theory but the jury rejected that it seems to me a gift or an issue as to whether to say look the accounts with the only ones that were available or the best ones that were available and to do material adversity that we've cited they all put the burden on the employee to distinguish or scituate to bear the burden of proof to distinguish her situation from the accounts that for example other people have or are the treatment convinced a jury that she was worse off as a rather result of each of the events are you saying that the country or it's not her status  before she was she came back on the leave and that she then i had a she had to show that she was worse off than the others who got accounts is that what you're saying is in this context yes your honor because i ask you the two accounts that she had before the leave we did put in very concrete evidence that she couldn't get them back that's a b c and byron and we explained yeah but the jury could easily have thought it was retaliating and that your client cooperated and that retaliate and in fact in some ways joined  she specifically said when she came back that she did not want to be put on the fire there was a letter from her attorney and i'll also point to court the archaean and case for the th circuit which makes clear that the intent of another entity that's not the employer's agent as byron was not our agent is irrelevant to the employer's motivation and it's not what i said to your client could very well have been found by the jury to have and any event do you have a final argument for us yes our final argument is that or entitle to a new trial because the testimony of the plaintiff's damages expert dr roberts was inadmissible and there are you here is is the nobu because there are no reliability findings on the record and i want to focus on two aspects of dr roberts model that relied on assumptions that directly conflicts with the factual record and  estimate but for income she cherry picked the two highest paid years before she went on leave and ignored two years in which she earned substantially less there was no justification for this decision other than her assertion that perhaps they didn't thirty seven that she didn't take into account any potential independent trackers and so this renders her money worthless it's like it's like a damages expert in a securities fraud case simply assuming that a drop in stock price on a particular day is entirely tech correct those arguments were made to the jury but the court's cases for example on smith versus cancun's are very clear that the court has an independent obligation to assess reliability and this court in many many have already noted the issue that appellant here is asking for something extraordinary which is for this court to reverse the trial courts so the jury's verdict based upon an  discussion about the lack of evidence about alternative accounts and who should have put in that evidence could you perhaps start addressing that and describing the record which you think shows that the evidence is sufficient even under a bot for standard sure so and again there are two is which typically do not have a substantial amount of work not require the kind of marketing expertise and other skill that a cam is expected to employ for the key account did not select from among the other forty five accounts that that work you count from which that she could have been assigned to you and that would have given her both the responsibilit and i take it that that is the evidence that you are relying on does say you showed there were alternatives and that your argument is by assigning her  simply that there were only five accounts there was actually discussion and money in the record where were all of those accounts are you know there was an exhibit and a witness that testified with respect to the identity of a number of different account are you saying that the company even if for all of those accounts were already assigned to other people that they had to reassign them when she comes back from the leave well reassign accounts it's something that they do and so certainly when she returned from leave she had to be assigned to some accounts and so they had to make some considerations to do that and so yes in effect they were required to let the courts you know is is is to determine when reviewing a stipulation here it is clear ja and i think beyond doubt that the parties did not intend that to resolve the conservation issue that current a need to be placed on leave and in response to that question he said it was the byron letter that caused us to internally discuss what we should do about the situation that was clearly the intention of that stipulation which is why stronger than that i think that regardless of what you hundreds of court works you apply whether it's not a war or motivating factor that this is the stipulation and the issue does not answer that question all protected activity and whether what what it was going to do as a result of that so i don't think that the again i don't think that the stipulation addresses what the cause of their decision once it's really a question or what feels sure sir whether that was a whole thing or whether if it was there any indication that in any event this court has taken the position that the motivating factor standard was of least appropriate in that circumstance court altogether advocated and here or there is substantial discussion on the record that shows that the or did engage in that analysis oh the on the very st day of trial and made in that opinion and she said at that point in time that she understood the problem that the that told us counsel had with that opinion with that she needed to hear the evidence that would come in through the model is the better or more accurate thank you counsel thank you very runny are there any further questions from the panel no no now and thank you attorney theodore if you could on your device and to your three minutes to provide a thank you your honor st of all on the standard that applies to the sufficiency challenge i think it supreme court's decision in bo multiple other stipulations in the list of stipulations that are about timing and they use words like after or following not mean response to and i don't think anyone would say that in response to simply means it started like a chain that led someone to do solely and a response to and i took it as saying yes this was one of the factors but it did not exclude the possibility of here were the other accounts that were possible to give i think it's completely speculative for the jury to have concluded that the account assignments were materially adverse on the plane or standard i think the new argument that  vote and i think the distinction between this case and the cases that they're citing is that in the cases that make it was siting on daubert the expert actually provided reasoning pretty assumptions that the expert made but in this case the expert has provided no reasoning for her assumptions about excluding two years to establish the plaintiffs but more income and no reasoning about her failure to account for the fact that the loss of thank you i will say this who is well argued on both sides thank you we're going to take this under advisement thank you that concludes argument in this case attorney theodore an attorney worth