turned on the determination of a single fact and that fact was what the plaintiff the need a militant told the defendant's decision maker the sole decision maker linda miller about whereabouts in the week of september fourteenth two thousand and nine the jurors almost without question decided the credibility of these two individuals the plaintiff in the decision maker defend incision maker as well as the reason specific reason for the firing based on what was said during a conversation on september fourteenth two thousand and about four o'clock either either the plaintiff lied to her manager and said she was a jury duty when she wasn't jury duty in this build in an effort to steal some benefits from her employer or issue she told truthfully told linda miller the manager that she had called in sick to jury duty had left multiple messages with her employer calling in sick and asked if the employer which is of a doctor's orthopedic therapist would write a note for her is impossible to overstate and significance of this particular factual issue also important in the context of this is that the defendant had it made it that the plaintiff was not under consideration for terminations prior to the plaintiff having told the defendant that she the plaintiff was diagnosed with a mass on her pancreas the week before and was suspected of possibly having pancreatic cancer but the the plaintiff maintained a diary a contemporaneously written diary and there are two entries in the diary which were of critical importance in this case the september fourteenth diary which documented a conversation between the plaintiff in the manager they had monday afternoon and these following day of september fifteenth entry which documented a second conversation now truck at during the course of discovery greenleaf said in the manager testified they at what happened was she couldn't recall speaking to the need to miller on september fourteenth her recollection was she didn't think she spoke to her but if they did have a conversation it was only with respect to the need to miller the plan of picking up a check or arranging to pick up a check to pay for a cat scan that was her testimony at her deposition and she went as to say that she assumed the plaintiff was a jury duty and with a plate it was seen driving around that following friday and they called and found out she was not a jury duty they fired the plaintiff or no call no show and she denied ever talking to or on the fifteenth the next day giving her a few days off then they came with a motion eliminate and barred and the judge granted it and barred the contemporaneous diary  entries which documented what was actually said documented by the point in her handwritten diary document on what was said documented a week before she was fired before she had any reason to think there would be any case or have any cause of action it and it did it it indicated in the diary of the september fourteenth century which was which was never admitted into evidence she said called in sick work in jury duty and then it won't look beyond they had said called linda linda the manager said she got my message i reminder i had j d this week she said are docs wouldn't write an excuse for me hopefully might your papers will be enough and then there's the fifteenth the other entry called in sick today asked linda if the white could pick up my check instead of mom she said ok leave with the front desk also ok to have a few days off i told her right before coverage she said that's fine now the september fifteenth century the one i just read if as a result a multiple motion for reconsideration we were allowed to produce step but only briefly in rebuttal and not during the course of our case in chief and the jury and when you asked to publish it and there was an objection judge overruled the objection to suggest that oral testimony was better and you said ok so the ruling did go in your favor mean you got it well it was it it was there was testimony about it we were now allowed to show it to the jury and ultimately what happened is i think it was greatly to our detriment because what happens the jury was informed there was a diary and so they did see or didn't see it but they heard about this september fifteenth out of context in rebuttal only but they put this on they knew there was a diary but weren't told anything about it diaries ackermann easily he conversation you said ok that the court would let the testimony coming orally issue that came up with a doctor said that her handwriting so bad that he that he couldn't read or messages so she was a receptionist at this practice for three years and apparently had illegible handwriting and that surfaced at the trial so in terms of an ancillary issue we thought the jury should be able to see your handwriting which is legible but the key thing is the jury them learned there was this diary but they heard nothing about a september fourteenth diary and then what happened at trial is linda milledge change her to hurt her testimony for she went from i don't think i spoke to her but if i did it was only about a check she changed it to oh yes we did speak and she told me she was a jury duty and they had it and then she went on to say so when we saw her driving around found out she had not been to jury duty that week we knew she had wine so she went with her no call no show and then they turned around this this branch of emotion limited in turn from a she'll into a sword and change their entire defense during trial and should change her testimony from i don't think i spoke to her and if i did it was only about the check to yes i spoke to her she told me she was a jury duty and she won right  can i ask you i always thought the one of the purposes of a diary is to reflect on the day's events would you agree with that i think there's many purposes for a diary i don't keep a diary so it's i certainly think it is one of reflection but i think it also tends to track events and this is that by removing my problem is with your present sense impression ok are you me which i find pretty hard to satisfy with a diary that's going to be prepared at least hours later with the benefit of memory reflection setter and i really don't see how that satisfies our gloss on the rule in boyce and would saying right there's no opportunity for reflection calculated narration i think the i think the testimony  indication was that it was substantially contemporaneous the judge found does that mean well i think same day you know within i don't think there's a time frame specifically i think the judge in his ruling keeping it out held that it was that it was used contemporaneous i don't think there was any dispute about that but we think certainly it is a prior consistent statement and in not hearsay and admissible substantive evidence and that really is your stronger argument it by far absolutely recent improper influence or motive in test the form so they changed at trial changed their defense changed the reason they terminate her changed her testimony regarding what happened in this conversation and made her a liar and then you have this prior consistent statement written at the time contemporaneous without any motive for falsifying and were barred from offering it to the jury so the jurors were left to find out to figure out who was telling the truth in a vacuum good morning your honor may it please the court catherine wyler on behalf of greenleaf orthopedic plaintiff linda miller seeks a new trial because she argues vociferously she was not allowed to present evidence of a diary entry which she insists would have corroborated her trial testimony and because another diary entry which was given which she read to the jury what she testified to may somehow have changed the jury's impression of her testimony in this case but that context is the key to understanding the issue on appeal in this case the plaintiff was allowed to testify to all of these matters the plaintiff was allowed right hell they're sure that the diary which she isn't that recent fabrication the should should be have under that because judge that the language in the specific diary entry at issue so this is the september fourteenth diary entry is entirely consistent can be read in a manner entirely consistent with the plaintiff's story and also in a manner entirely consistent with the way in which windham miller testified the office manager i couldn't come in and then it could be argu because you know you could put your spin on it before the jury but certainly showed it mean the whole issue was this you know what were the conversations it was all of he said she said she said  was first of all judge it wasn't only she said she said there was ample evidence that greenleaf had ongoing performance issue concerns related to the plaintiffs and that this particular incident where plaintiff was a no call no show was the as they said the straw that broke the camel's back but to directly answer the court's question the distinction here is that the plaintiff already had the opportunity and took the opportunity to testify about exactly what these conversations were and this evidence to the extent that it should have been admissible which under the rules and as justice hamilton said it's not a present sun's impression it's certainly not a prior consistent statement because it's too ambiguous this particular statement or that you're that you re too ambiguous but it could be written more favorable toward or it could be and it could be read more and there is a difference from someone just testifying in saying this and actually the jury in this diary entry called in sick today work and jury duty and then the plaintiff's ads called linda she got my message i reminded her i had jury duty this week she said our docs wouldn't write an excuse for me hopefully might your papers will be enough what the plaintiff is arguing these words say is i need a miller told the office manager linda miller that i was too ill i go to jury duty and i was too ill to come to work and i needed some time off that is not what this diary entry says and that's not what ms miller what linda miller testified linda miller testified i spoke with the plaintiff she told me that she wanted an excuse from our doctors for jury duty i told her that i wasn't going to give her an excuse and there was also some discussion about an advance on her vacation pay that's what linda miller testified the conversation was about the needle miller testified to the contrary she said no i specifically informed the office manager that i was too ill to go to jury duty that i was too ill to come to work point being that testimony went directly to the jury the jury had the opportunity to hear that and the district court properly concluded that this diary entry because it was ambiguous and could be read be consistent with her testimony even though and also consistent with someone else's testimony i understand the testimony was inconsistent with her employer not that it is not our position that it needs to be consistent with all of the testimony given at trial but it is our position that the testimony needs to be consistent with the party offering that testimony to the with the party arguing that this is an well she reminded her of jury duty that's correct and that is a fundamental distinction your honor this isn't a case where the diary entry states i told linda miller i was sick and i was too sick to go to jury duty what the diary entry states says i reminded her i have jury duty this week and again that's consistent with what linda miller testified to and it's also can be read as consistent with what the plaintiff testified to the jury had all of those facts and the jury had the opportunity to weigh that testimony and ultimately make a credibility determination about which witnesses story the jury believed and the jury did make that determination the jury didn't agree with that with the need to miller's position and it's understandable you look at the facts more broadly as they were developed over the course of the trial this isn't a case that was exclusively about whether or not the media miller called linda miller on september fourteenth there was ample eviden trial about a variety of performance issues related to the need a miller there was ample evidence presented at trial about the alleged discussions or about both sides explanation of the discussions which occurred on september fifteenth greenly where the other the other facts are fundamental because this isn't as has been suggested a case where the only the only thing that happened that was different from say for example from before the time that the plaintiff got her diagnosis and advice for employer until after the only distinction was this particular incident there were a variety of issues that had come up and that is why she ultimately was terminated but in addition to that the incident or the skin of the facts of september fifteenth the testimony that came in about september fifteenth is actually more critical to the plaintiff's case and she was allowed to develop more completely exactly what she actually said when credibility was such an issue the jury was the miller read directly to the jury the exact language the exact diary entry from september fifteenth that  fact does contradict directly the testimony that was given by linda miller so in that situation you do have language in the diary which is directly contrary to other testimony which was presented at trial and the plaintiff had the opportunity to testify about that language to say there was a diary here's what my diary interest country stated it stated that i spoke with linda miller and that i told her that i was not going to jury duty she was given that opportunity and she informed the jury of that that is totally different from the september fourteenth diary entry which was not given to the jury the september fourteenth diary entry does not include language which directly contradicted linda miller's testimony that's why it was an appropriate exercise of the court's discretion to not allow that into evidence in addition to that it's important for the court to to remember that any error in this case is necessarily harmless it's necessarily harmless for the reasons i've already discussed because there was ample evidence in this case that supported greenleaf's decision to terminate the plaintiff's employment and because the plane ticket was given the fruit kills were there are those who pretty serious credibility issues on your side of the case given the changes and linda miller's testimony that's not correct your honor for two reasons one is the testimony that was given at trial was not as inconsistent as has been suggested today the testimony in deposition was ms miller didn't specifically recall what occurred during this september fourteenth conversation the testimony at trial i see that my time is up if i make the motion the testimony that was given a trial was that ms miller linda miller after going back through the records after trying to recall exactly what happened she did have a recollection of the context of that conversation as a time or fourteenth conversation and she testified about it that's an issue that's issue number one with ms miller's testimony issue number two is the plaintiff was given the opportunity to go back to that that's a pretty big issue now she recalls what is what is quote the most critical sation and i understand this is due after they review period everything it helps them to member things but clearly her credibility squarely on street i mean that was really you know whether they bought her that all of that cost her the call or was she actually fabricating that's correct and that actually is exactly my second point to judge hamilton your honor is relates to that the counsel was given the opportunity to repeatedly examine ms miller specifically about that point she was recalled so that could be addressed and that so i mean it just shows how critical that testimony was i mean the fact that he was he was a that opportunity at i agree that it's not all national saying its credibility was the big issue in this case credibility only correct and the jury made a determination about that credibility and on that basis the trial court's decision should be affirmed if there are no furthe take issue with their characterization of the record i took the depositions i tried the case at the deposition linda miller was asked if she spoke to benito miller on september fourteenth she said i don't believe i spoke to her if i did speak to her it was with regard to that check that's her deposition testimony at trial i said to her so when you talk to her in the six minute thirty one second call for zero nine in the afternoon there was no discussion whatsoever about jury duty sense of number fourteen answer she said she couldn't pick up the check because she was asked jury duty could her mother pick up the check so she told you she was a jury duty that week yes that's why she couldn't come get the check that's when we found out what the defense accused of being of a basically committing fraud but what you just heard from the apple lead is that the jury the the september fourteenth diary is consistent with linda mulisch testimony that's absurd she testified say called linda said she got my message i reminded her i had jury duty this week she said our docs wouldn't write an excuse for me well i think there's also a second sentence in there thank god for thank god for letting jury the stand that's that when she spoke to you personally person in that in the afternoon on the telephone she told you that she was not in jury duty she needed records for jury duty asked you if one of the doctors at greenleaf would write a note for her isn't that relatively contemporaneous diary entry and that's what linda miller did not and then so there's no there's no evidence about the fourteenth that's the seminal fact issue here that's the key conversation and the jury unfortunately found out that there was a diary