steps that he that had to have been taken in order to make him officially a personal representative that there's not evidence in the record of iran or believe that we did make the  patience of the court there is evidence that he has made the application and the papers that were that were given to him in the state of new jersey were sufficient for him to act on behalf of the estate where we are is it the son of taint was that's sufficient to any who has the any degree in this lawsuit and we argued that it was yeah when i said that it's not there has to be a document so maybe i'm wrong but i was under the impression that there was nothing in the record other than your representation and that might be a problem as a legal matter that's how i understood the point being made but i might have misunderstood or hear from your opposition we may need some supplemental us i mean it was not just the comments it was the pointing it was the emphasis on the word in meetings where where mr barnett was present but for the purpose of what we're arguing here whether or not it correct to say no you can't and i disagree i don't believe back whether or not at that point when he goes to h r because you believe it was a racial and then be retaliated for raising the issue whether it was the issue of a hostile work environment was we had so much proof on this we had testimony what took place that if we did that we couldn't prove the hostile work environment would be more difficult to prove that without relation however  contract you know but we don't play that you know what the authority do you have that would allow us at that to say that at that late stage of the game you can basically repleat basically hear your honour's the fact that  the issue and the testimony that when about what occurred and what he did and what happened in was with went in at trial it was it was tried by consent and under under the rule fift disabled i myself thought that the jury instructions for pretty sparse on perceived disability but that you know that the jury jury found that there was no discrimination on that basis i understand but that the proofs on that the fact that that occurred ok can also be viewed by the jury as evidence for the perceived disability f m l a week and the case was clear that timing alone is sufficient to base the a finding to perceive this ability and did that others have the i mean he had three illnesses he had his leg problem he had here right he had the head the head injury the concussion and he had a left knee so he clearly had lost a lot of work was not on the job doing his job because he had a whole host of injuries but he always came back  to people who took time off and who he perceived were was not were not working for the money that they were being paid he'd be retaliated against and exactly what he did with mr mr molly came back he was yeah and that's and that's that's what ultimately it is he fired him within two weeks of getting there and i think when you look at this this is this this issue in its entirety what he what he did with all the people used to it you know like you've got this thing and i'm surprised to hear you say things that seem to cut against it isn't there anything that you like in the record so he's a perceived disability i believe that mr right it was not and as you know from other cases you've written quoting file where you've quoted that the definition of what is this ability let's hear well if i can read the whole definition if you'd like but what i think is important is part of the definition and that is a disability is a physical disability not focusing that here because we're not talking about a mental this is brain talking festival it's a physical disability caused by bodily injury which prevents the normal took mr manley and said i need a warehouse guy or i need an extra or i need some he's going to be here and do the job i don't need somebody who i need to get somebody else to do their work for him this guy has had too many injuries he's not he's not able not capable of doing the job is the same old he's perceived as being just a walk in the jury rationally find that because the evidence in the record was not there to support it and when you were questioning appellants counsel you you you mentioned that that money was out quite a bit in fact that's not your honor what's in the record what's in the record that he was out for a very short time in two thousand and four two thousand and five i definitely but the head injury he was out a very very short time he did not take any leave with respect at the head injury and the only other time he was out to get around the plant was for about a month and what's in the record with respect to the the injury was actually in the record one of my only testify about the fact memory in two thousand and seven he testified always said about it was that an inflammation in his knee ok will that that that is something the jury heard but the jury also heard that mr maruca said i'm going to think about your request for the golf cart i'm going to consider it the jury heard mr maruca himself testify i told them  right by the shop so that he wouldn't have to walk the jury heard mr maruca had made some offhanded comment about you going to get used to it kind of back up in other words you may have a problem but you gotta learn to live with it that's something they heard and they could draw some conclusions about they they heard him suggest that he could use his staff to show things back and forth on the forklift so that he would have to walk of the jury hears these things a collection of these things isn't that enough for a rational jury to say well you know what i think maruca believed he had an issue and therefore we're going to find from what's what's irrational about a jury who's heard those things coming to the conclusion that there was a perceived disability because we go back to the definition and we go back to  your instruction everybody has the nobody objects to the jury instruction nobody said your honor we want you to detail what perceived means in detail what disabled means we can argue after the fact that they went off the reservation if they want weren't told they had to stay on there actually are proposed varying from some sort of a complete definition but where we're not obviously that's not an issue that we're raising here because the jury found or the judge of grant our motion so we didn't raise that issue but i will tell you what below our proposed for instruction did in fact include all definitions but but there are cases including cases in this court kelly versus drexel university case where the court has said merely because an employer provides an accommodation doesn't rise to the level of showing that people morally but it's more than merely here i've just i've just named for you four pieces of evidence and it and they are not and and it's not just merely providing an accommodation there are statements made why isn't that enough it's a you can see to assume that it's a pretty low bar it only has to be rational right so you're defending this requires you i think to point out to us what's irrational about a jury who heard those four things and maybe others but those are the four i put before even for the sake of argument that you accepted that a prime of a should chase was made out that he still has to show munley still had to show that the determining factor in his termination was the perceived disability and isn't pretext classically a question of fact for the jury and the jury found against you so that the judge had no business walk in and turn it around just because  think is only one way to look at evidence there's more than one way and it's not irrational but what is irrational about what is a rational is that there was nothing that the company is legitimate this is reason for acting here wow you was was was the jury on virtually everything you won and won and once it's not like this was on the jury wasn't thinkin they just started checking the box for once i read the other you won almost everything but on this point of the dent lee they believe the other side's evidence more than they believe yours so the fact that you've got another side doesn't the suppose at this appeal you've got to show that they were loopy to believe the other side and that's what we're trying to draw you out on what what you got and the america didn't consult with anybody in the plant about irrational is there's no evidence going the other way that's one example of irrational right what you've just mentioned is not an right and he says one guy you know was just after a month i don't think he can do that or what's the next injury he's going to have i can't do that you perceive him to be disabled i e not able to do the work again i don't think any rational evidence because that's what it sounds like a little bit to me that you're saying if you look at this piece of evidence you look at that piece of evidence you weigh these things then you should come out this way but that's not that's not our job issue is the question is in the face and and i'm i'm confident there's other evidence that your opposing counsel might point to but we've laid some on the table what would be wrong with the  television said if we take that approach that will discourage employers from providing good working sure if if it were if it were only a matter if it were soley a matter of making an  accommodation here or there there might be an issue but but we have we have a little bit more than that right i mean wouldn't you agree that that the comment you'll get used to it is at least open to interpretation mean a jury could interpret you'll get used to it to mean either you'll get over your injury or you've got a disability but you'll get used to that said that she thought he was joking the jury could have perceived that he wasn't joking and therefore it that's the basis for them to come to the decision that they and of course we don't know the basis and one of the bases  tell i ask you about that mr barnett in the person represented yet because i've got a little bit of a moral we're hearing on the one hand we might you know we might agree with you and say no even on them on the merits you lose but could we even could we even go there if we wanted to if the reality is that there's no case because there's no plaintiff in other words do we have a do we have a article three case  i frankly looked at that notion and thought a little bit of a give me a break you know i mean what is he what hope does he have to jump through at this point is it is it i the merits of mr barnett's case somebody has got to be in the courtroom representing mr barnett case you've taken the position that there is no one in the courtroom to represent him that raises for me at least a just disability problem that i really really need you to help me with so i'm asking you what is it that is not in the record that you say has to be in the record in order for him mr barnett jr to properly be a representative because if you're right that's a kind of a big deal i understand your honor and i can't help you more if this point them beyond what we put in our paper proposing the motion and frankly but i thought at the court out you know do we have one for us there is one and there is no you know there is this in the record and that's sufficient as a matter of wonder new jersey your personal representative in on a procedure and work it's not i think that would be i think the best way for you would file a letter along those lines within a week and then within a week opposing counsel and file and say you know we did everything we have to do or maybe acknowledge that wasn't done is what was going to be done forthwith it seemed to me like you were you were talking at cross purposes you said you filed x and you said you know you need to have a d c and somebody is right somebody is wrong this obviously a law that