morning mark runs out on behalf of everybody to get settled and i have advised your clerk that i would like three minutes for rebuttal ok i think this case comes on appeal from the district court decision dismissing judicata the trial there have been two prior pieces of litigation involving similar parties including the city of exist or one was a worker's compensation case the second was a two thousand and eight discrimination retaliation case for other retaliation and discrimination committed by the city against my client in ruling in this case the trial court first held that there was some sort of potential race judicata effect of the worker compensation hearing as i've indicated in my brief race judicata michigan law as it is a question of basically compulsory joinder and as as such you can't compulsory join something where the well when there are serial acts of discrimination and retaliation that impact the plaintiffs it will go on i have knowledge this as judgment for some are valid while are you got a judgment for seven hundred thousand hours correct that's the two thousand eight that is correct as collateral stoppel i knowledge the workers compensation determination can in fact be collateral stop ok why would you concede it is your claim now for the retirement disability benefits limited to the psychiatric disability no ok well that's the only thing he's grazed that was the debate i'm getting a little off my topic here but the point is that was the debate between these parties because remember the a stopped i don't agree with us the condition has changed since two thousand and eight no because it fundamentally misunderstands in my opinion the nature of a worker's compensation determination undergoes and williamson in the michigan supreme court it workers can work as compensation determination is time specific it is this magistrate found that is november as of november two thousand and eight he was qualified to return to work that the finding that is the binding finding but when he moves in two thousand of levon for a psychiatric based disability pension that is a very different question is ar well but he's not working after that right he is now he has not work since the day he got his so is his work history but what i was saying is i think that the worker's compensation ruling as to the heart condition may collateral  stop the disability pension claim but the psychiatric claim was although it was raised was not adjudicated not a ruled upon in the worker's comp it was explicitly disavowed under age twenty nine all you got this raises a very serious question particularly in light of composer rejoinder as the background under michigan law for this type of preclusion principle and that is mr mr smith made the request for a pension benefit in january of two thousand and eleven the two thousand eight cans went to trial on january twenty fourth of two thousand and eleven and one week later resulted in  the simple fact is as the defendants have acknowledged in their briefs in the district court his request for a pension benefit was not denied by the defendants until the summer of two thousand and eleven now that happened to be about six months after the jury had rendered its verdict in the two thousand and eight case i think one of our concerns is that it would have been nice for purposes of judicial economy if all the claims that had  was filed after the trial in two thousand and eleven and that's within the timeframe for requesting that i assume that that he wasn't required to file for within six months after leaving employment or not there's no claim on that it just correct you in a minor way the actual application was made about twenty days before the trial he was asked to resubmitted but the point is he's not suing for applying for pension benefits he's suing because they were wrongfully denied and the denial did not come until the the summer of two thousand and eleven no but he wasn't required is there a timeframe for applying for the benefit it's never been claimed never been claimed that i know of certainly not and when the case actually went to trial in january of two thousand and eleven for mr smith to join a case for the wrongful denial of pension benefits that didn't occur until six months later because he had applied that's correct that's correct but he couldn't join it it was impossible the defendants have raised one other point regarding this which is a little off topic but i have to talk about he sued in the two thousand a case for constructive discharge because constructive discharge was one of the his claims he is he introduced evidence of a of an a cause animist who testified to the fact that the constructive discharge had an impact on his pension his future pension the jury then awarded him seven hundred thousand dollars for the retaliation over or discrimination now the fact is the defendants are now suggesting that because pension benefits were an item of damages in his two thousand and eight case there is some conflict here between that and what's happened in this case race judicata is a principle based on claims it is not based on of damages the fact is if in point of fact there is an overlap in the damages under michigan law that is factored into something called a set off and in fact that's what was raised in the trial court that there was some sort of overlap in the damages they can argue set off they're going to have a little bit of difficulty in light of the jury's verdict i can tell you but the fact is that's where this overlap potential overlap comes in in michigan law it is a set off it has nothing to do with the question of whether a claim is barred and that's what race to the cottage is about now let me just talk very briefly about the last issue because the last issue involves mostly the pension fund the trial judge ruled in his original decision denying first denying the motion for summary disposition then on the one thousand nine hundred three case against the pension fund survived did still on the basis of his conclusion that the there are questions of fact of whether the board has ratified the city's unofficial custom and policy of discriminating against african americans and retaliating against employees for engaging in practice protected activity that was the basis for his keeping the pension board in he then decides he has made the district court made this into what is a discrimination retaliation case and sort of a secondary does discrimination retaliation case against the board i don't know if that's what the defendants asked him to do but that's what he did and then he ends up dismissing it on reconsideration he dismisses it on reconsideration because there was no there is no property interest show here as he turned this case whether whether it was that before his original decision he turned this case into a discrimination in retaliation case against the board that's what i was reacting to when i brought this last issue in my brief the it baby confusing it certainly confusing to me but that's what he did in this case what has happened with the application for retirement benefits and  as it been completed there were there was a point where there parties are waiting for a third medical professional to give an opinion i guess and yes and it think finger the big one of us there who's ever hope for that not happening and  i i don't want to say something that they're going to get upset about the whole try to be off whatever the record in there whatever argument you have the fact is what my client saw was tremendous foot dragging there was tremendous every systems to naming a third doctor as you understand and basically he gave up on the process and essence i think it didn't i don't know if but there is an official denial i'm using it thank you there is a denial there is a denial that's correct  we've talked about michigan's long race to the counter which is very clear and in the words of the michigan supreme court very broad it is broadly construed to require that every claim that arises from a the same transaction must using reasonable diligence be brought in the first proceeding and the the reason this is not a rule to trick two thousand and eight and the litigation goes on this case and let me so we've also talked about what transaction means what do diligence means and due diligence was certainly not pursued in this plan that you have to file within six months or a year but if you don't put a timeframe in there why do they have a duty to to file let me try to explain what i believe happened in this case and that is we have a personal decision in june of two thousand and eight that's in does not disputed by anyone from that personal decision certain damages resulted in the opinion of the pla plate of then filed a lawsuit in two thousand and eight symptoms or that went to trial in january of two thousand and eleven as part of those damages although it wasn't mentioned in mr  there was a claim for pension benefits there was an expert witness indorsed and there was an exhibit exhibit trail exhibit thirty nine now what happened was an expert has his role he sees it i'm sure is to come up with that measure of damages that results in the highest number for his client the claimant that is exactly what is done here there are two ways in which pension benefits could be sought in that first trial the way that was selected by the expert and pursued by the plaintiff was i want a hundred percent of my lost wages and benefits until normal retirement age age sixty five and then i want the difference the loss of my normal pension from sixty five until i decease described by the expert in the point of sexpert in his testimony and it was that the subject of aid trial exhibit exhibit thirty nine which is part of the record problem is i mean you're talking about damages  totally correct that if you have damages of the same damages you're entitle to a set off damages it doesn't mean you're litigating a claim because the damages might be somewhat the same or overlapping and the law of the law very clear is that claim includes various theories of recovery well this is exactly why they may get claim of a denial of disability pension benefits in the two thousand a case have did they i'm sorry didn't hear did they make the claim of the denial of disability pension benefits in the two thousand and eight case they'd shows not to assert a claim for a disability pension surely has to go after they had they had they had an applied and they had it hadn't been so i don't know how you could file a claim for denial of benefits that hasn't even been a head in the head and claimed a normal pension either they mean it's a failure to exhaust administrative remedies or that issue was raised by the pension board in a separate motion in the district court they said mr smith can't proceed because he has not person exhausted his administrative remedies judge green said absolutely not he's exhausted his administrative remedies by going to the sea and getting a right to sue letter that's all it's required he was not required to get a denial from the p f i r s before filing a claim when he went to trial in two thousand and eleven he had a choice i want lost pension benefits now which measure of damages gets me the most dollars i can seek a normal pension hundred percent of wages to normal retirement then wast pension or at that point i could sue for a disability pension but that only gives me fifty percent of the final average compensation from the date of injury so clearly the theory is that he pursued resulted in a larger damage claim it was a tactical choice made by trial counsel and their expert they absolutely could have asserted a claim for a disability pension in the good the trial judge give the jury any instructions about damages that mentioned in a thing about disability pension etc no the instruction instructions yes anything's stated about that i'm not aware of any damage x instruction that specifically related to disability pension because the theory that was put forth by the plaintiff was that i'm entitled to a normal pension and you can't get a normal pension and a disability pension there are alternatives any instructions about pensions are all yes to the jury well it was included in the damage calculation the jury was an ass to calculate if there was a lost wages claim and a lost pension claim and they came up with a number what calculation they used is secret in the jury room i don't know what it was but and the boyers argued it to the jury the argument to the jury about damages was there were if that i'm title to damages it consists of the following one of which yes the exhibit thirty nine was explained by the expert to the jury and and he explained how this plane of should be entitled to lost wages to leave sixty five and then the description of the normal pension benefit that he lost was also put in front of the jury and then they took those figures and somehow came up with their seven hundred thousand figures was he arguing for when he argued to the jury about the pension absolutely depends what did he say how much did he say that he was entitled to did he say i believe the total was one point three million and the offhand  i'll be honest with you i don't know offhand here without going back to the record what the breakdown was but that's set forth in exhibit thirty nine which is part of the record because the total wage claim was was at the bottom and then the total lost benefit claim was at the bottom and i was mine is it's clear that the jury awarded something having in the pension we have to we have to conclude that they did that that was what the claim was and then they came up with seven hundred thousand they didn't give them every penny that he asked for but what how they came up with that number i can't tell you but that certainly was presented to them and that was part of the ruling thank you mr ruby i mean would you concede that the judge drain erred in his collateral estoppel rule a ruling regarding the workers compensation proceeding when it's quite clear that the workers compensation magistrate based his ruling solely on the condition and not the psychiatric condition i mean that's a that's right i don't i don't think that's clear from the magistrate so i think it would take it's very clear that although there were a psychiatric evidence presented that there that there was no ruling on  i think there was a definite reference in his  opinion plaintiff to testified further that the psych yet psychiatrist was keeping him off work because of a mental condition which has not been alleged and although these conditions psychiatric conditions may be disabling there  it please the court good morning your honour's katie vandyke appearing on behalf of the appellee the defendant pension board before i get into my argument there was a question by the chief judge as far as what happened with the application and where was the process and if there is a dispute as to why there was a delay and admittedly looking at the record it just looks like two doctors were voting heads and they both were proponents of their own doctors we have testimony in the record from mr smith appoint a doctor under the charter where the she stated this is at page id thirty three zero five six she stated that she was told by him not to accept any doctor ever proposed by the board because he did not trust them and so the third doctor was never appointed which is required under the charter and instead mr smith filed a lawsuit during the lawsuit and this is not in our brief on appeal but it is on the record during the lawsuit i attempted to revive the process and have the third doctor appointed we filed a motion with the district court in order to do so to try and complete the process under the charter because there had been no ruling quite honestly if the board had testified if a third doctor said he was entitled to these benefits at the time they would have given it because they didn't know about the prior trial they didn't know about the jury verdict that's when the city has brought that issue to light during this proceeding so the board at the time was willing to give him his pension benefit if the third doctor said he was disabled and what ended up happening is that mr smith denied to go through the process and we were ordered to facilitate the magistrate judge and the magistrate judge could not get he could not get a third doctor agreed upon or selected i later deposed mr smith on that issue and it's in record entry ninety five at record entry ninety five and it's in his deposition transcript at one fifty three and it's page id three zero five two and i said today the about the exactly yeah the boy the boy didn't send a letter saying because you're not going through the process we're going to deny you again it's the denial from the fall of twenty the fall of two thousand and eleven just stood on its own then and so that there was an initial denial beef or explain that to me because i thought there's going to be a denial for the physicians to get involved i don't know what happens under the the based on a whim oh it first came through there are two parts of the denial process the first denial came through when the boards i need doctor said he wasn't disabled contrary at that point the denial is told his physician never submitted a report what his physician did was sent a letter in as part of the application process when that happens  to continue at that point no under the charter once he submits a letter from his physician saying that this is part of the process and i'm applying for benefits because i have the studio disability the next step under the charter  for the board to have its i need doctor then determine if he has a duty related disability and because the board's doctor did not do so they voted and they denied his benefits based on their i mean doctor's report they also voted to then sent him through the process for the third physician under the charter at that time now if this went before a magistrate why didn't the magistrate point for position if the parties could not agree it seems didn't have the authority to appoint the third physician at the time that was my understanding of a the court said that if you want to have a go through and i need for purposes of emotional distress and damages in this case you're free to do so but we can't appoint the third physician under the charter charter is ok doesn't specify what happens when the two parties cannot agree on a position no it doesn't it's unclear i mean it says nothing about this is a charter from one nine hundred sixty four they're still working off of that so there's nothing that says if they can agree this is the next step it's just you know the next step is appoint a third physician and see whether or not they come up with a disability what the board ended up doing th when it is part of the record is that there is comparative or there isn't a gentleman a police officer from two thousand and five who is white who complained of p t s d and the board actually did grant him benefits and so mr smith's claim that this is race related and he was denied equal protection the law fails first and foremost argument is that he waived that argument on appeal but secondly the only other person  the same saw with p t s d or a mentally related disability they granted him benefits and so during mr smith's application process the board's attorney said to him that dr that found correct you have under the has not reached has not he he has so i under the charter you can you are entitled to retirement benefits when you have the age sixty if you're currently employed because he had stopped working in two thousand and eight the twenty five year rule kicks in that's my understanding and so he's not entitled to retirement benefits until he passes a twenty five year mark not entitle to any disability benefits and first page what the what the magistrate in new did in the worker's compensation proceeding was was going to decide and what was being alleged and what was being alleged was that a physical exertion as well as well as physical and emotional stress related to plaintiff employment caused a cardiac disability that was the nature of the claim that was in fact litigated in the workers compensation what you read mr ruby was from page twenty nine in that's the conclusion basically the opinion and reinforcing the fact that that was in fact the only issue that was presented and let me let me just close by stressing one thing that i think should be self obvious the suggestions been made here that we are here making a claim for pension benefits if this were a if i were in a court making only a claim for pension benefits i would not be in the sixth circuit or the eastern district of michigan i go to old age benefits well i can't i and i understand that and i'll tell you this she knows much more about it than i do so i will take her word as well but the fact is it's not a case involving a just a claim for pension benefits it's a case for the wrongful denial of those benefits in fact a discriminatory denial and retaliate tory denial and the only disability that disability that's correct disability pension but the point is the denial the wrongful denial didn't occur until the summer of two thousand and eleven and since it didn't occur until the summer twenty eleven it couldn't be joined with a case which reached a jury verdict in january of two thousand and eleven that's that's the essence of this case and the suggestion that's been made here that somebody has an affirmative duty forget about statute of limitations or anything else and affirmative duty to present themselves for discrimination to be discriminated against would be a new era of race judicata law that is not what the what the michigan courts have meant when they say was made or could have been made the fact is this allegation with respect  wrongful denial of pension benefits could not have been made if we were to agree with you and rule that judge green erred was collaterals and raised it to rulings we would reverse and remand for further proceedings correct and what would happen the further proceedings well one of the things that would happen is they get to litigate their set off issue that's one of the things that we have what they're set off issue because that's what the that's what they're claiming with respect to damages and then we litigate the pension benefits as well as retaliation yes and i and yes and i assume at this stage obviously the benefits themselves are only one aspect of the damages involved because obviously there are