upon reflection in preparing for this argument it became clear to me that our point warning to in our opening brief a really interesting one and really should really watch it for twinings and really should be considered together so i'd like to dress them those two points in focus on that because i think that's the core of our argument and i can i can  those two points to four cents one the parties were engaged through their representatives and when i say through their representatives we've chosen lawyer by plaintiff and  husband and ethic cons attorney but they were engaged in an agreed upon process in an interactive process that was agreed upon in which both parties were waiting for the point to get clarified medical restrictions from her doctor so that's point one the second point is that provide the information that both her lawyer and the consular thought would be forthcoming you're basically arguing that the jury got it wrong i'm sorry you're basically arguing that the jury you got it wrong and it ought to be reversed for two reasons one a jury got it wrong because the evidence as to the agreed upon process the interactive process that was agreed upon by  process that's precisely what the interactive process is all about and that was agreed upon and the constituting at least in one sitting there expecting that point it is going to come back with an answer and a question in terms of the with when your friends across the aisle say well no actually we made an offer it was it was rejected out of hand and then we and then we were basically terminated and that's that's all you need to know no didn't grab it out of thin air when you accept the unrefuted on contradicted evidence that lisa warner and ellis is lawyers we're talking about getting rebuys restrictions and then you couple laugh with the fact that i wasn't able to cross examine the plaintiff or present evidence that i should have been able to present through her lawyer because of the attorney client privilege where as the plaintiff and her husband are getting on the witness stand and telling the jury i didn't know what was going on you didn't judge will soon try to did she say that ok ok i think she tried to do it but it didn't work and she even acknowledged that it didn't work because in her opinion on the post promotions she in fact set that plate of the jury could have exactly why i say that my points one and two need to be discussed together because what happened here is because i was hamstrung because of the attorney client privilege plaintiff was permitted to say don't know what my lawyers were talking about i didn't know that was a part time job i didn't know that that lisa warren and and my lawyers were talking about getting additional medical information and that they were going to  willing to sit down and talk about that stuff gets to keep point and that's that's the core issue in this case and that's why this judgment ought to be ended for ethicon or at least a new trial because that's when you put those two issues toget the un rebuttal evidence that the parties through their representatives were engaging in the read upon interactive process and then you have the plaintiff over my objection being permitted to say that they didn't know what was going on between their children representative and at the con and i can't get into that and show that that's a lie the way i should have been it because they waived the privilege but but permitting the plaintiff and her husband to drive home the fact that they didn't know what their lawyer was talking about and as they said you need to look at the judge wilson's own statement the only evidence in a record as to her qualifications was that she needed her doctor said she needed to work from home three days a week on a permanent basis and i know there's this issue about what a permanent doctor mon vs the watchman but fact of the matter is it was doctor of mine who was the return to work doctor he was the one who was making the call on what her restrictions were returning to work if you know it's very difficult to assess this because this a second it's very difficult to assess this because that precise question was put to the jury where she qualified that you said yes but you're really arguing the evidence presented to the jury it was i'm reluctant yes i'm real you're on your argument essentially that evidence was just not sufficient to support the jury's verdict exactly exactly because it's on it's a matter of law working the the facts are under skewed it that the company would have had to have we assign the core functions of the job yeah but didn't say well perhaps we could have assigned some of those couldn't the jury have concluded from that statement that perhaps some of those reassigned duties were not essential function but  know what they could have concluded was that since travers boone was willing to do it on a temporary basis that she should have done it on a permanent basis and that would have been an era as a matter of law there is no requirement at stats that requiring more than the company is required to do the law is clear that if if the company is willing to do more than the law requires that doesn't mean that the and may have please the court first i want to thank the court for giving the clinic an opportunity to work on this case while not representing this our personal way representing her interests unfortunately all the students that worked on this have now graduated and are studying for the bar have not been barred so i didn't have an opportunity to try to have one of them but i thank you for the opportunity to do that this court has a little long record record is critically fission of the minimum quantum of evidence in support of the verdict in i'd like your word better where there is nothing in the record to support the jury that's when you reverse revisit the jury verdict interactive process and the attorney client privilege issue judge wolf's on an early motion for summary judgment thought the evidence was so compelling that she enter judgment as a matter of a law in support of miss alice and then f a concept but what you're on there there's a question of fact that is a question of fact and judge wolfson reconsider sent that issue to the juror and wilson got it right the jury got it right i want to respond to you and could you talk talk a little bit about the fact that there was an offer made to her and offer part time work that she rejected and was subsequently an offer of her job back you can have your job she said no twice once i think there are two different levels she worked at both levels are offered to her and she said oh well just so there's there's no confusion a want to make sure i mean answering your question there are two separate issues there's the part time job for which the jury heard and rejected as a reasonable accommodation or reasonable engage but not in terms of the want to make you can write on a record that's ok all right i don't fight on the record moving to read leaf there's evidence that after there was an order of reinstatement there were pills on it poses about the a b a being a comprehensive mandate but let me walk the court through this the the issue that i think is the heart of the issue their point is the jury instruction and it couldn't be clearer in addition to considering any communications between the parties regarding the accommodations in two thousand and one you should consider any communication between the attorneys regarding accommodation attorneys or agents other clients except this circuit in several cases a rule that if you give a correct jury instruction we will presume that the jury follows that instruction they  appendix one fifty seven sixteen plenty for now is the judge told you this is as if it was being offered directly to the playing of because lawyers are agents of the client's goes on to say it doesn't matter says hey i did know about it my lawyer didn't tell me that doesn't matter as the judge instructed taking it a step further miss alice's counsel in her doesn't mean she doesn't answer the question she doesn't try to come up with an accommodation to patrice a back to work what she does isn't this is an important time thing she acts like this is some great thing if she offers her a part time job and i submit you that he parked on job is not a reasonable accommodation alas they've exhausted the possibility of putting her back to work in a full time job that closing argument exactly tracks the jury instruction cut at that point continue start and she submitted a proposal i mean in terms of the interactive process and she did she say to the employer this is what i can do this is what we can well this is what will work through her doctors she came back and said that because of the substantial limitations of my condition i need to work home three days a week and i need a job coach muesli summarise and the response was we can't do that you are being processed for process for long term disability which is the a functional equivalent of terminations and at that point she was terminated from the job on on another level and we covered this he says she was terminated there was no actual letter saying you are hereby terminated right now there was no actual water saying she was terminated but they record is very clear on that point and i mean going to is is the operative time or date when she goes up to full time disability or the long term disability rather that's when her job ended and in fact if i could refer to join appendix four eighty six and this is one of the correspondence prior to the terminations from at the current medical manager where she says at the bottom please help as soon as possible so the plaintiff this not have to go to straight long term disability and quote lose her job so i think that's a pretty firm statement that her job was terminated she's in a different state but the one point i don't  the jury came back with a very specific question and nurture question was would be a combination half the been proposed prior to october twenty second that's the date she went on long term disability in order to be considered as an a dation or can we consider any combination proposed on or after october twenty second very clear questions not indicating much confusion the judge says october twenty second is not a cut off it is few the jury to decide whether any accommodations proposed including after october twenty second only thing that happened after october twenty second is the part time job offer were part of the interactive process based upon that very clear understanding the jury said as they failed to engage in the inner activity process we ask a question what evidence is there in the record as to why the plaintiff did not give the medical information that was asked for later medical information of this that was asked was was there no evidence on that there's not significant evidence as what was happening i think the is is that one of the things that miss alice talked about was once the doctor entered and once the doctor came forward they were stricken and she was now being forced into a retirement and the point i don't i don't want to lose it's in the brief but i don't want to belabor it because my clock is ticking very quickly and i do want to get the relief is we actually don't believe that the interaction between miss warrant and miss alice is counsel is the interactive process all because the chronology was basically telling the employee whatever your doctor there's a discussion our position is that's not the interactive process that's settlement discussion and we don't want to turn the eighty eight into a vehicle where we don't accommodate but once somebody or your stop then w traverse said we could get somebody for a while but there was an essential function and was there enough evidence in the record that was presented that the jury could conclude that she was qualified to perform that essential function and if there was not you know is in this case then we have to reverse this as a matter of law on the basis of a lack of qualifications no your hon indeed there is evidence for mr traverse saying two things two things that are very important and they all really interactive process the first one is that well i could have probably done this on a limited time basis assignments from job duties that is a reasonable accommodation now whether that would become permanent we don't know because there was never the interactive process there was never a discussion with miss ellis wait a minute you know if you're getting hung up on this interactive process it's important but if she's not qualified the absence or the failure to comply with an interactive process doesn't matter but your honor of the point i the reason i get hung up process we have them basically saying that being there twenty four hour or seven days a week for five days a week is the essential function the job but the jury heard that heard her qualifications and came back with a finding but on that point there was never a discussion of whether that was truly a central function of the job and our brief discusses that in pretty great detail in terms of what the evidence supporting and i would be really remiss and not representing this l s s interest if i didn't at least get to the relief which i think is the important part and again citing actually that this two of you on the eshelman case have a term in there that if you have given the the a b a has given district judge of this great discretion to extraordinary amount of disharmony and ill will that jumps out from the pages of the breeze you think that's a good idea i think it was at the time that judge wolfson heard few is the hardest part of this case here we are ten years after miss alice was terminated four years after a sickly four years after the reinstatement or with a condition that is fluid a medical condition that is flu approve that approve all of judge wolfson's remedies the fifty thousand dollars everything that you order and order or immediate reinstatement with one caviar a limited hearing on how much she isn't titled the receipt from that time that they're there motion to stay the reinstatement order until the actual reinstatement so you're running from about two thousand and ten to the present have a factual hearing on that not the emergency contempt hearing the judge sheraton but have a limited determination on that they will of course argue that they already complied with the order and she's a limited amount of damages but at least they'll be a factual record from a district court to be able to make that determination and some amount of justice would be accomplished  closing judge fisher you wrote a recent job law review article that appeared in the villanova law review and you say the all that bears no relation to the world we live in lacks any semblance of rationality and good law requires on a number of these issues and one counsel says nothing happened after october twenty second other than the part time job of that's not the agreed upon process the way ethicon through then they would come back with whatever information and then they would discuss it from there and until that happened it was premature to be discussing any other role purchase the time or for was not the chosen representatives with the idea of trying to explore alternatives and that's what direct the process is all about that's what they were doing and just imagine what was going on here ok the way this plays out and you have to look at the timing i suggest you have a plaintiff in her doctor's dragging their feet towards the end of believe period and they did not give the medical information the final medical information to temper sends them an email telling them that they were trying to reach without and with the coach off too much hypothetically speaking if we were to affirm the verdict we have to reach remedies we could you spend little plaintiff's back pay was cut off because she had been in the workforce and if she wasn't entitled to front pay that was not appealed plaintiff did not appeal that so that can't be disturbed in terms of the reinstatement issue we offered  reinstatement twice and they rejected it she rejected i don't know what was supposed to do but getting back to this issue of the interactive process what happened here and had i been really doesn't solve the problem because if it had if the jury had listened to that instruction and understood it correctly then then why was judge wilson saying well maybe the jury believed that undisputed evidence was that in fact at the con was willing to discuss further accommodations and at the con weeding for the plaintiff to get back and had i been able to get into all that on that day the spike b tourney client privilege which was where i would have