the morning may please the court paul hudson on the wayne state university appellants your honour's i'd like to reserve three minutes for rebuttal you may please proceed to your honor's when states defense in this pregnancy discrimination case was at the point a failed out of its social worker program not because she was pregnant but rather because she received poor performance reviews during her second year there the plaintiff argued at trial that the jury shouldn't believe these performance reviews because all through her first year at wayne state she was a stellar student had a high g p a good performance reviews and the only thing that changed according to her was that she got pregnant and so the only thing that explain the book bad performance reviews  pregnancy discrimination the primary issue on appeal is whether the jury should have been permitted to your evidence that something else a changed and something quite significant and that was out right before her second year at wayne state the plaintiff went through an extremely traumatic affair with her uncle resulted in her fiance calling off her wedding and ultimately the plaintiff's being admitted to the hospital for panic attacks and suicidal thoughts this was on august twenty first two thousand and seven classes started the for the second year just a couple weeks later iran as we recognize that the court is rightly deferential to jury verdicts but we asked for a new trial the wedding was called off the the only testimony was that the fiance's husband had left her and this is a critical point i thought that the only thing that didn't ultimately come out was the fact that the person she was having an affair with was the been of her aunt or something like that no your honor and let me be crystal clear all of this was excluded except for the fact that the fiance had left her and the key ruling by the district court and this is key because the plaintiff argues that we could have probe further on this record entry one eighty page seventy nine seventy nine twenty two quote as i understand the court's rulings i also cannot ask questions regarding the circumstances of the break up of of the engagement is that correct answer that's correct and then after the proffer where we set forth the full circumstances the district court again rules the court's finding was all it was also that all of this was more prejudicial than probative that's record entry one eighty six page eighty eight seventy one so none of this came in your honor he went on to say and listening for lacey opens the door that was that was before trial that was a r she had not and so none of this was your best argument for why she did why should your best argument on the record for why she opened the door and you should have been allowed to cross examine her two reasons your honor first is that it was directly relevant to her claim for emotional distress she testified on the stand that she was distraught and devastated by this and even that she didn't enjoy having her son because of the wayne state defendants and under overwhelming case law when it when  plaintive puts her emotional distress at issue the defendant is entitled to rebut that and that's from the big day in other cases from this circuit and cases throughout the country and your rebuttal that she was subject to a broken in gauge moment and a broken marriage did not fully satisfy your ability to show that there was another reason for her emotional distress that's correct your honor because why not because we were not permitted to explain to the jury the circumstances of this when it happened specifically which was just weeks before her performance dropped and so the plaintiff was i able to argue unrebutted to the jury that the only thing that explained why she was so good her first year and then so batter second year supposedly was that she got pregnant and that was that theme they hammered at opening statement they they quoted from her performance reviews the first year and then the key quote from the opening statement is quote but members of the jury then something happened she finished her first year this is where she stood then something happened in the something they explained was pregnancy discrimination so this evidence cut to the heart of thing response is no she had a broken engagement and lost a planned wedding why doesn't why doesn't that give you the ninth sort of response without the prejudicial information that the reason was because she was having an affair with her and thought the the explanation that we should have been able to use to rebut her claim that we made up the performance evaluation was she was going through an extremely traumatic time you know to the extent of being admitted to the hospital and this was directly contemporaneous this was august twenty first her performance problem started immediately on her second year just a couple weeks later just a couple weeks after that here's what i'm confused by my understanding is that you were able to get into the fact that her fiance and the father of her child left or no you're on the jury didn't know that the jury heard i think three fleeting comments that the father had left her and it was sort of phrased as what a minute either they heard or they didn't hear it they heard that yes ok so that they heard that they heard about her health issues did they not know they did not not at all  they did not hear that she was admitted to the hospital that she had mental health issues that she was suicidal that she had called the police too because or and had threatened to kill her they heard not of that ok how about deaths of close family friends family close family and friends do they hear about that i don't believe so you don't know about the birth of her son and her being a single mother yes they heard that yes and they heard that she was that she was upset about this litigation in the appeal yes they heard that so that they didn't hear about the hospitalization correct and there was a hospitalization in two thousand and two right yes that's correct in this this case involved actions in two thousand and one three thousand and seven and the hospital hospitalization that was there another hospitalization that was more aside from the birth of her son that was more close to this incident yes there was a hospitalization on august twenty first two thousand and seven two weeks for the termination of her engagement another was i e the density of the relative that's correct and the the the circumstances of that and why you wish it was so traumatic and why it explained a drop off in her performance immediately in september of two thousand and seven you've got about seven or eight issues whatever the number is that you raised and we've spent almost all of your time now talking because you as you raised it yes talking about the these two or three exclusions from what the jury was permitted to hear is there anything else that you can argue this any way you want but threatening us you want to argue about your honour's i hope to sort of streamline the arguments today we've addressed the other issues with respect to the future damages in the on those unless the court has questions but i think the case here that i get the biggie from your perspective was the in the exclusion of certain relevant evidence yes because it went directly to her claim for emotional distress damages she received five hundred thousand dollars the jury award only for emotional distress and the case law is clear that when a point of puts their emotional distress in controversy that the put the defendant is entitled to rebut that with alternative contributing d except for writing it seems she will direct evidence really unrelated to those particular reviews such a is the her oversight the person charged with her oversight in these two placements you know one of them asked her if she was married and evidently said well i bet your parents are happy about that that you're pregnant and unmarried in some pretty clear direct evidence attributing impropriety to her because of her on with pregnancy and i think that's a crucial point and the standard and i know you know this area of the law very well is is not whether there were comments made about pregnancy even if we think they are stupid the question is whether wayne state failed her because she was pregnant because of pregnancy discrimination but on that read statements you know we're talking about th you know the conceptual basis of direct testimony versus inferential testimony and her allegation is that i have direct testimony in that those words direct statements because they were made by her field supervisors not by anybody of wayne state and they also did feel super well there was a there was a dispute about whether the wine state individual or her feel supervisor is the one who started talking about the impropriety of wearing tight clothes when you're pregnant and weather there create improper consideration by the end of the end wasn't there a dispute on who said that the there was some dispute on who had said it the question of the cases whether they failed her because she was pregnant and on that i mean this isn't a typical employment case where an employer is trying to skirt maternity obligations or didn't want to deal with a reduced schedule  she was pregnant and in our position is that this evidence not been excluded that if the jury had heard another explanation for why her performance dropped so persepolis leader in our second year that this would have honest a different trial because out right there for just a second about whether her performance actually dropped for any reason aside from the allegation of pregnancy discrimination am i right that neither stefanski nor primo kept any notes during this period whatsoever that documented her performance good or bad i believe there were e mails at the time didn't do e mails she didn't do emails that's correct so she could have e mails i think that's correct but it's  understated and am i right that both the director and the dean admitted that they covered up here and that they they lied when they said they did an investigation and there wasn't an investigation no your honour's that's not true no that's not true  the record shows that her performance propriety has surfaced immediately that carole primo the when you say the records show yes yes or no i understand that people said that she had performance problems but every trouble finding records that cooperate that i mean they're saying is we is is early is three weeks before geez that's great i knew you were a star and then three weeks later she fails well they did the performance profile problems your honor went all the way back to the first semester and those are documented in the record by mackie's performance evaluation and it's really a scathing review and that's of the record at fifty six to twelve page id fourteen ten those are exhibits of the trial those were back in the in this mester prior and she said she was disheartened by ms for lisa's disrespect shown to the veterans of the country greatly concerned for the safety and well being of any population with which she may be in contact that's the placement that she was allowed to leave early yes that's correct placement for which they passed or that's correct out of the record shows sort of an active extreme cherry on that she admitted that she could have been fail based on that first semester's poor performance and all of those performance problems surfaced before she even found out she was pregnant before she made any comments about a pregnant see discrimination and then the second semester comes around and she has the exact same problems again with her supervisors not completing assignments anything for the grant bachelor any questions you have no i think not thank you i think you have your rebuttal good morning honors deborah gordon on behalf of the plaintiff pelly my client ms farley c and her parents are here with me today let me cut right through this there is a major miss rose kind of like the two different cases that were being right here one you describe and one mr hudson described well the record speaks for itself and i we have the record completely on our side one hundred percent there is a major misrepresentation going on here with regard to the key issue just raised by mr hudson he wants this court to believe that precluded from getting into other stressors or medical treatments defendants say they were stopped from offering evidence this is one hundred percent in correct they made a strategy decision it's very clear that they were going to steer clear of certain questions now they want this court to misread the record and they want to miss present it to you let's look court speak through their orders there is literally no order in this case of any kind nor request from us in the form of a motion that they could not get into my client's emotional distress other stressors family problems medical treatment and the like there was a motion and we're what i'm just going to get to that we asked for two very discrete things one was on the engagement and we said have at it wayne state my client throughout the trial talked about being left at the altar being ditched those were the way she described it while she was pregnant that uncontested that came in what judge  said could not come in or was the deep background the very embarrassing details about another sexual relationship so that was one point the second point was an old two very brief hospitalization  did all of this by six years those two things alone look at docket number one what was your husband said there was also a two thousand and seven hospitalization right that was fair game that was completely fair game and he says that he was precluded from and says very specifically that the facts behind the breakup of the engagement will not come in nor will the zero two hospitalization come in here's my a there are health records remote to this time having to do with an oath to hospitalization they are very sensitive in nature that's my point number one point number two and that was from he even with hospital seven but objects to any attempt to get into the highly personal whys of that now here's the court's order the court's order at docket number one one eight and says these two things will be excluded evidence of plaintiff's inter i'm sorry they're going to let in the internship number two the judge says you cannot get into the o two hospitalization and you cannot get into the details of the affair ok now let's move forward we're now at trial ok and ms norris now has a chance to get into every other thing that she remotely would like to do and i would like to tell this pan judge goldsmith who originally had this case when ms norris asked for a niamey of my client which i'll be happy to talk about in a moment asked her why didn't you ask the plaintiff fetter deposition why didn't you ask her a single question about her emotional distress damages and she really has no good answer for that now we're standing a trial and we all know what the order says one one eight and ms norris gets up and says ms gordon just open the door and what she means by that is i asked a series of questions about how my client had felt in being thrown out of school and having her dream career go away what i had not asked was are are you under  psychiatric care today for that are you going to be under psychiatric care for life do you have post traumatic stress disorder do you have a diagnosis i can logical condition all of that could have been opening the door in a moment i'm going to tell you what i did ask about because i've got my my questions with me so ms norris gets up and says well i got it right here it stock up one in eighty it's paid seven nine two two she says good morning your honor i understand court's ruling on medical records that means haven with zero two but she uses the term medical records but the only ruling that's ever been made is haven with zero two she uses the word medical records she said i understand the court's ruling i also cannot ask questions regarding the circumstances of the break up is that correct the court says that's correct i think it's more prejudicial than probative distress i've never seen that happen in a trial i was stunned here's what she could have asked about were other things stressful ms farley say ike i understand you've had anxiety attacks am i correct on that did you have a panic attack three days before all of these events were you really upset about being pregnant and being ditched what medication have you been on is virtually see and what counseling have you had were you hospitalized in two thousand and seven what about family problems she did a list that tangentially that there have been deaths in the family but not for emotional distress she could have asked all of that but members of the panel it was  strategy she didn't want to go near it with a ten foot pole she probably didn't want to engender sympathy i don't know or maybe she wanted to be able to come in here and say i wasn't allowed a court speaks through its orders if your trial lawyer and you want to ask about something and you know darn well this is been the subject of motions and there's a written order certainly you would say to the trial judge your honor here's the order these are the only two things i'm not allowed to get into she chose not to do that and now she's here wanting it both ways now let me read you the trial judge's new trial opinion when she revisited this defendant revisited this at trial the precluded questions by the defense regarding the zero seven engagement in the zero two hospitalization the court initially found the evidence well event but more prejudicial than probative the court granted plaintiff's motion on these two issues at trial plaintiff testified regarding her emotional distress as a car as a result of wayne's actions wayne state sought clarification from the court as to whether plaintiff open the door counsel for the parties argued the matter the court ruled the plaintiff did not open the door and she references back the one medical record in the gauge and break up that stock at one sixty nine and she finishes this way back at one sixty nine ph six five eight seven the court did not preclude the defense from questioning the extent of her emotional distress or to test plaintiff's credibility on cross examination a new trial is not required on this issue so everybody seems very clear about what was going on in the courtroom except for the defendants in this case who i really think are intentionally misrepresent this and as i said i've said several times now made the strategy decision at the trial with regard to what they were going to do and not do and i would also like to just tell you for a moment about what i asked my client this go couple of different issues in the case i asked her to talk about how humiliated she felt about being thrown out of the program i asked her to talk about what it was going to be like for the rest of her life to have to this is part of her life story now i was thrown out of school i didn't get a degree those were the kinds of things we focused on in her examination never once did we open the door which was what the initial concern was that she was suffering from post traumatic stress of disorder or something to that effect so that's on that with regard to the credibility defendants make this i think a little bit of an odd argument that they wanted to test my client's credibility because an interactive jury five she had listed all of who are hospitalizations that's a nonstarter first of all they could have asked her about it secondly your honour's the iraq atory asked for hospitalizations from zero six forward this hospitalization was an o to and with regard to their claim that it affected liability like what happened to tina maybe she was under stress nobody in this case has ever argued that tina's performance went down because she was under stress but in any event they could have argued that as well not one of the thing and damages these defendants asked for an independent medical exam and i am me way back in july of tw this case was not tried until january two thousand and thirteen and at that time judge goldsmith talked a lot about good cause and that the elements of the supreme court in the sixth circuit look at and how we don't want to become routine or every time somebody loses a job there becomes a battle of the experts on how upset were you and he were old and at that point look i'm going to deny your motion defendant before and i am me without prejudice without prejudice in the meantime go do what you're going to do i know you're getting all the plaintiffs medical records they got every record under the sun come back just within ninety days before trial members of the panel that was utterly abandoned by defendant so again they want it both ways they had another crack at bringing in their own expert to talk about my client's damages and they chose not to and  to the urban versus west publishing corporation six circuit case your honor well which says very specifically while the determination of the perfect tice amount of the war to front pay is a jury question the initial determination is made by the court here the district court's determination must turn on the exact circumstances of the case and it's a very fact intensive analysis which our trial judge did make here and i would first point out to you that we got i think a modest number in future wage lost it was two hundred thousand dollars even though it's our position in the case that by my client losing her ability to obtain a masters in social work degree she was going to lose significantly more they gave us a modest amount of two hundred thousand dollars so awards of front paying must be guided by certain factors do to mitigate we had a phone book size exhibit i she filed thirty two applications with social worker agencies she had three to four interviews she applied to a place called four chaplains a nursing home that's page seven seven one easter se nordstrom's retail the judson center alzheimer's association she worked to tell but in coach she applied as a pharmaceutical sales rep that's seven seven eight one and she's then began to work with jewish vocational services seven seven eight nine to get placed that's just a part of it so my client who lived with her parents desperately wanted to get a job but she now had this mark on her record that she'd been dismissed from a program so that became a factor there just incorrect we had a lengthy discussion from the witness stand about all of the mitigation in the trial judge of course way that before she made her ruling judge grants that this could go to go back to my future damages the defendant bears the burden in these cases title seven or title nine in showing that the plaintiff lacked diligence in mitigating damages and again why didn't they call an expert if they wanted to say and i've had this in cases you know there's a multitude of things you could have done play enough sometimes people bring in their own either economic expert or somebody that has expertise in job search they chose to do none of that that is their burden there was more than sufficient evidence here for the jury to consider whether she mitigated her damages and i do want to just i want to belie one other thing that defendant is arguing in their record they say that my client testified that for the rest of her life she was going to be emotionally distraught and they say that that was improper and want to let the court know that that is not what happened this now that this chapter is over with this trial i believe i will be able to do better what i said to the jury was it will always be a part of her life story that she was thrown out of wayne i don't know that chill ever get lisi never testified that these damages would haunt her for the rest of her life and i think the reason the jury gave the number they gave is that what happened to me is her lisi at wayne state was so   rageous including the no investigation in spite of multiple filings with the proper authorities being lied about desperately trying to get your one week from graduation it was just an outrageous thing she had to endure and then the appeal and i think the jury really felt for her and that's why they gave her what they did but the jury was thoughtful they parsed down the economic damages right to the penny i think they gave me one seventy two and some change  back i'm waiting for you to pause here and paused thank you thank you your honour's i'd like to clear up the issue of whether wayne state could have a further questions about the circumstances of the two thousand and seven engagement being called off in addition to making rulings before trial and during cross examination that we couldn't probe into these any further with ended an entire proffer on this issue after the cross examination was done the proffer went on for five or six pages of the transcript and then  the court there do you may not go into the circumstances behind the break up of her of her the guy draw for which went on for several pages several minutes related to the two thousand and seven hospitalization mbiguity there that when state was not permitted to ask questions related to the circumstances of the end of the engagement if this is on page record entry one eighty six page id eighty eight seventy one the pro on page eighty eight sixty the whole the whole proffer related to the circumstances of the two thousand and seven and it engagement the ruling was not limited only to the two thousand to hospital ization  honors we think the at a minimum the damages award related to an emotional distress needs to be remitted here because wayne state simply was not permitted to make any rebuttal to the argument that she suffered a million dollars worth of emotional distress due to wayne state and in the in the midday case in the tenth circuit so your curses eight hundred eighty case quote because points of chose to raise a claim of emotional distress it was entirely appropriate for the court to allow the defendants to introduce evidence of alternative or multiple causes of such distress as this court put it in the brian first martinez case side in the brief quote of plaintiff wanted to keep the reports out she should not have claimed damages for emotional distress that's exactly what we have here it's overwhelming authority i think we cited fourteen cases in our brief the only case cited by the plaintiff was an unpublished case from the from missouri and that related to sexual propensity evidence where the the defendants tried to admit evidence that you know it wasn't a sexual harassment hostile work environment because the plaintiff it had sexual relations with other coworkers so the overwhelming case law is that if a point of quote claims emotional distress of any kind and it doesn't matter if it's the garden variety or otherwise the defendant is entitled to  rebut that with evidence that other factors contributed and here it's a pretty strong it would have been pretty strong evidence to counter her testimony that she didn't enjoy having her son and that she was devastated by this to present evidence to the jury that you know there were some extremely traumatic other incidents going on in her life that surely contributed to this all right thank you any questions judge no thank you thank you very much all right that completes the oral argument in this case you both cited to a lot of different things in the record we'll go back and check all of those sites and take the case under consideration the only other case we had argued this morning you ma