reverse the judgment here for this plaintiff mr morris in this race discrimination case we've made arguments or judgment as a matter of law a new trial plan to start with judgment a matter as a matter of law and at least touch on the new trial argument as an hazardous material and mr morse effectively concedes that the actual decision makers on his term a nation of employment did not act out of discrimination so he instead relies on what's been done to be known as the cat's paw theory concerning one manager mr hendricks who acted mr morris claims out of discriminatory animus in denying what's referred to as waiver or alternative handling of the several problems we've raised with that theory i'll start with approximate and the rationale for the for the for the firing was consistent throughout but i've gotta say i've never seen  operational violations that could implicate safety in a serious way and could justify firing correct no that's that's not correct and that gets into a significant area of  dispute among the parties and our position is that the evidence in fact does not show that there is sufficient comparability in those various other comparable that's mainly a result of your still the plaintiff's burden to prove disparate discipline in this type of a case and sometimes those cases are easier and sometimes they're much more difficult and if the nature of the evidence the plaintiff obtains in discovery to do that is insufficient then it's on the plaintiff to go disabled safety equipment in speeding and fourteen miles an hour limit right right then he got a waiver and was there and then he got a nd waiver for another violation right both of us are under different disciplinary policies so that's one issue but the overarching issue with all of these is none of them were on what's referred to as a constraint in the courts in our briefing on that point the key train is one carrying hazardous materials that is a material distinction under this court cases on what is the proper and what is not a proper compar yes this is judging i wonder whether either side conducted a statistical analysis in this case as you start with the universe of all people who have committed serious safety violations then you look and see which people get waivers and which don't and then you determine whether there is any difference by race in the probability of getting a waiver got about twelve minutes left but i want to make sure we address the rule twenty six disclosure question and i have a question for you why was mr hendrickson deposed so late in the case in february of two firm handling the case for me in s f up until i believe sometime after the summary judgment ruling the new lawyers came in and got up to speed and began correcting some things that we acknowledge were or were not done nearly as well as they should have been trial deposition by both parties does the fact that such an important deposition was allowed to occur so late in the case in your view have any bearing on how we analyze the rule twenty six issue that you raise  when you get into looking at the factors as to whether that was whole arm one of those is can something be corrected and we can move for a continuance but the judge brought up the idea of continuance and our lawyers absolutely were willing to do that to allow some depositions here which would have made sense because as you say we had just had a deposition not long before the house of key witness in the case mr hendrickson opposing counsel said no to that and you know they say that well they don't have to do anything to fix our problems but i think that the rules don't really put it in that category they say is there something there that we want to case to go to trial on a procedural deficiency or do we want to see if it makes sense and is plausible without prejudice to the years believe that is correct i'm going to tell you exactly january rd two thousand and nineteen that's correct and just how should we we should we think about this case does not have a right to be sickly radically restructured the us with new theories let alone entirely new witnesses at such a late stage of the i think it fits in with the cases and it fits in with the language of the role in the comment that we've quoted because this is not a radical restructuring because these are not new people everybody knew that andrea smith was involved mr morris talked about in his way back in his deposition she gave a declaration on summary judgment and she fits squarely within the exceptions to the exclusion of course of the rule it's hard to imagine a more clear situation than andrea smith when we got the exhibits showing her involvement exception being when a witness not previously disclosed is identified during the taking of a deposition i understand that to me when the the identity of the person who has involvement is revealed during the taping of the deposition  and so that's where the comparative come in they don't come in and later in the process the and back to this was the case that i was talking about the very same thing happened there with respect to alleged discriminatory motives in the initial input in the decision a distinction between how proximate causes analyzed in the disparate discipline case or in any other and one of the cases that i'm referring to is to me any old case that we've cited in our brief it involved both a similarly situated question recommendation had not occurred then the then the hearing there never would have taken place and that is the existence of so argument on the other side of the proximate cause and may be a cause a factual cause but it is not a proximate cause in the didn't want to use the trial we found out that he was in montana so both parties agreed to take what amounted to telephonic deposition testimony but was intended to be used at trial it wasn't really a discovery deposition in the traditional sense it was intended to be used for trial and that's why it happened so late because it was for trial and then in connection with defendants continuing argue that this is a catspaw case and and so forth this really isn't a cat's paw case in the realm the relevant adverse action in this case and that was pointed out was the disparate discipline that went on and we're not arguing in a cast the case you would argue that mr hendrickson somehow is what this trial jury trial to a jury was about and an important feature of waiver is beyond ability to abuse away from process because there's virtually no written policy that addresses a waiver for b n there's no written policy describing what it is there's no written policy describing how is to be used and there's no written policy is defined the criteria by which is you nevertheless and as a seen in all of these many of these comparative this was a policy that was frequently used to excuse the conduct of light employees but mr me or whether there was any statistical evidence on our side and he said no i think you just answered that question yet you said that the waiver process was never that that's a different point when i when i read the brief i was thinking suppose this were clane against a car manufacturer that it sold lemons for blacks but gave good cars to wine and the plaintiffs black and got a lemon and showed twenty five people who got cars that work just fine would that show race discrimination and it seemed to me no need to show what percentage of blacks got lemons and what percentage of whites got lemons it wouldn't be enough just to show that twenty five dollars whites got good cards now course nobody's made a statistical argument here but it's the record really shows we have looked carefully at all the black workers who violated the rules and none of them got a waiver that would be very powerful and that's why i was one to check off that that's what the the discovery process we asked we asked them for all the comparison all the people during the same time period and then under the supervision of mr henderson because that's what we're focused on who got waiver and  comparative do you agree with with mr neal that all twenty four involved mr hendrickson the only reason i say that is i'm looking at a chart that we prepared to get ready for oral argument here and there is an employee named james de mayo d mo and i thought the company took the position that hendrickson wasn't involved it's just i  we think he was but he left the company around that time and so we're just not clear if he was still there when that happened the only question i have for you is on the rule twenty six a and that is  how could it how could it really have surprised mr morris that the defendant at trial would rely on testimony the testimony that's been proffered from andrea requirement known to all in the litigation that these were key players but the fact of the matter is that in addition to the twenty six a requirements we also have been in rockets or in this is in iraq for that we've been talking about that was we asked specifically who are all the decision makers that were involved in the terminations and when they answered it they didn't mention smith and jenkins they just said they just said hendrickson was the one that recommended terminations and then in iraq a do with it well so that declaration i mean of course we think there's a possibility with something like that that she might have something to do with it but that that declaration was filed about two years before trial in a summary judgment motion and they never made any effort to make any any changes to their rule twenty six they disclose with all that time they have this in iraq a story that's outstanding and we're for from our perspective we're focused the adverse action that we're interested in which is mr henderson's decisions to get waiver or not and so that's where we're going so they don't say interactive tory she was responsible for anything and they don't say in the in the  rule twenty six dollars a and you know in the course of litigation like this which went over at the time of trial four years there are last and there were lots and lots and lots of names mentions in various contexts there were other declarations that were given not only by them but by us and by the way they kept ruling in terms of that but there were lots of names given out and in that sense and to have a rule that says well if a name is disclosed then you're responsible for being prepared to deal with that person we just swallow the reason for rule twenty rate the issue with andrew smith and also if i may with regard to miss miss she wrote an e mail she wrote a one half a page e mail about this whole situation and she didn't have anything to say about competitors in the e mail she had something to say about ron ron morris and her e mail was in fact discussed by mr henderson and it was read to the jury so to the extent that they say they're totally prejudice about that that's just not true and it's not just more much more she could o other than the fact she does email she said she recommended determination on the e mail so what is that so they weren't totally prejudiced and their failure to disclose her is just a problem that  court starts letting things like this slide then there's no limit to what might happen and then rule twenty six a is going to be good and for that just also remind me for the defendants say the whole case was gutted because of that is just not true because this whole case from our perspective was the adverse action which was to give the waiver or the alternative handling and frankly mr henderson was in charge of that his deposition was taken over seven hours we examined him they cross examined them and he said everything that could be said about it and was cross examined about everything that could be said about it so to say the case was you know gut it was just really an overstatement  throughout the case and there was a period of time where mr morris was pro se but i think you know the answer notwithstanding that change the changes in council am i right that mr morris has core theory of liability did remain disingenuous about saying that our st actions in the case was because they didn't produce the compared or for a long time until after we got involved and kept insisting on it which was getting toward the end of litigation and that after discovery close that it had been asked for that we finally got that information about the comparison about what mr hendrickson did and that was the theory reason i'm asking that question is because in my mind and mr neal can tell me i'm mistaken that's actually material to me with respect to the rule twenty six dollars disclosure issue it makes it makes the failure to supplement della ph smith in jenkins all the more inexplicable to me and of course we agree and that's especially true in light of the  key train issue because they focus so much on that and the issue with the key changes that in fact it wasn't a material testimony in the trial and process my regarding that the ability to obtain a waiver and i'll tell you why because in the in the st in not testify to this as a reason to not grant run a waiver and the question of being similarly situated off it was a jury issue and the jury could evidently did make the determination but not only did hundreds and not testify the key trend was the reason for his decision just went on and so be it and in fact mr henderson in his seven hours of testimony he mentioned the word tea tray i think three just three times in seven hours and he even testified that he doesn't know if the comparative are using key trends or not and in any event thomas lynch testified he was also driving a train that had hazardous materials in it mr father you have you have four minutes left i'm also mindful that you have across appeal action but it didn't explain the basis for this and in fact it was the only witness called by b n in connection with the reinstatement and in fact as the testimony unfolded it was clear he didn't like mr morris clearly but he spoke only for if more it was to get his job back he could easily work for other supervisors and other trained in other locations and he would have to work under dela pietra and there was no testimony out there that he didn't enjoy the confidence and support of other managers in a train company and have him cause an accident and then there's a headline you know ten years later about something like this and the fact of the matter is the federal rules the federal railroad administration after they have rules and they certify these folks and they have to be certified under the federal rules that they're competent able to run friends not only that you have to get recertified every three years the end has their own policies about having pete when people come back in the other own policies about training and things that they have to do to prove that they're fit to run the trains so morris wouldn't be allowed to run run the trains unless he gassed the federal standards and let it pass standards and test and training in connection with getting  you folks of have referred to some with talents miss having done disable the speeding speeding equipment and trying to make a go faster than it was allowed to go and disabling some of the braking equipment and while he was still on probation for that he committed more violations and got more waivers so that's just one of many and so for those reasons we think that there was an abuse of discretion and that letting mr morris  back and finally you know i just want to mention that the lies that mr henderson told and that we don't cover and we've already talked about them which was the change of the interactive story but more importantly mr this or hendricks n did a declaration where he said that the reason for not giving mr morse waiver was that he didn't accept responsibility that turned out to be a lie and he finally admitted on the stand that he did  tori and andrea smith it is true that her name was not in it but it did actually refer to her great innocence labor relations department reviewed the hearing and transcripts and so she was referred to there and that's why it's one of many reasons everybody knew all along that she was going to be part of the case and keeping her out was really more of the gotcha you know they knew it and that's what the rule says close to be an exception to exclusion  everybody knew she was part of the case except the defense lawyers well they didn't list her but maybe the reason they didn't list her is that it was inadvertent because everyone knew she was involved and i'm not defending that but the rules don't call for such a harsh penalty in a situation when the other side knows full well the person is involved and with respect to that point could you address mr fox's point that over the course of discovery litigation a about whether a mere mention is enough they are clear that it's a situation like this when you have a key person who has multiple touch points in the living in the discovery process in terms of people referring to her  morris d that clearly has to be enough and i want to say briefly why she is important contrary to the other side because the relevant adverse action here is not terminations is terminated of employment it's not waiver an alternative handling the jury wasn't asked about waiver an alternative handling they were instructed on terminations and so you have to show proximate cause from earlier discrimination and that's why andrea smith is most relevant because she's the one that injected termination and process and in just very briefly i'm just scouters question just want to clarify when i said that rickson was involved i was saying he was in charge of the whole area but there were a number of these compared  to he said he either was not or did not know whether he was involved so i didn't mean to misstate misspeak and make it sound like he was he was involved in all of them personally and investing my time is about it so i'll just say that we're asking the court to reverse on the proximate cause and compare their issues and render judgment that if you don't do that the innocent really did not get a fair trial here and we're asking that you at least read man for a new tr