morning james harris repellents there are too many issues to argue here so my intention is to focus initially and the new trial issues that affect the compensatory verdict against both defendants and then focus on the new travel issues that the jury not to war damages what the trial court overlooked was that evidence about workers comp settlement amounts was relevant not only to damages but was critically relevant to both liability n p n the damages supervisors and managers who actually assigned work all testified that they were given no such instruction and they never did anything along those lines so the point is that in many respects the evidence as to whether discriminatory acts occurred and whether they were motivated by by age turned and the existence of the incentive that the plaintiffs attributed to the defendants and in this incentive was irrational from their point of view with evidence that a single substantial worker's comp claim could blow the entire work comp budget and therefore the defendant had no such incentive the jury had no idea something like that low three hundred and so how much money would the company your company have even taking that into account by getting these guys off the payroll where they wouldn't say anything i mean take a look at mr january thousand dollars for mr january alone the differential between a senior work going to junior workers only ten thousand dollars a year so it doesn't make any sense to spend three hundred thousand bucks on a particular claim to try to stable little bit of money by hiring a replacement that's going to save you ten thousand dollars it doesn't make any sense but you can't make that argument without being able to put in the amount of money that it costs for a substantial claim without that the jury is just going to nothing that's why you should believe their testimony they said that's why you should believe that the incentive existed well three hundred thousand dollars for a particular claim it's not minor it's not a drop in the bucket it's a substantial amount of money that no manager quite differently they could have very easily come out on our side so i think that that's the fresh old issue and if you agree with us on that we're entitled to a new trial and everything we also because it was based on an expert report that was based on assumed facts and soon facts we never put into evidence and the eight hundred thousand dollar most of the stress word is inappropriate because the judge ruled that mr january couldn't recover for his depression but then allowed him to testify in graphic detail about the effects of this depression and that's the only emotional stress test when it was put in that the only motion of the stress argument that was made to the jury i have i think those issues are fully briefed and i don't intend to say anything else about them except to put them in context the context is mr january's entire ward compensatory award was a million forty seven that was his judgment the eight hundred thousand dollars  the stress and the one forty four for the lost income comes to nine roughly nine fifty that's ninety percent of his award if you agree with that if you reach this issue and you agree with us his award basically at most comes down to about one hundred twenty five or  not necessarily of dr pepper but that they had an employee relationship and that was explained by defense counsel and the initial instruction conference which occurred three or four days after the judge issued her orders which was the first chance of the way the judge was reading it if and there are three or four or three or four steps in the factual chronology that i just like to highlight if you look at the removal papers ten fifteen twenty different representations are made to dr pepper was not in fact statutory employer set as each it's stated to dr ration to stated in the papers stated over and over again next event is on september twenty sixth the defendants proposed their initial instructions the the american bottling company and then the party sign and the parties submit this proposed order at the pretrial conference for four days later the defendants get up and say there should really only be one defendant the only employer was was american babbling company plaintiff saying i'm quoting we don't have a dispute if the early american babbling company we don't have a dispute if the employer is american balin company that's fine if that's the employer november second the district court does two things first it's time for the proposed pretrial conference order which contains the ambiguous stipulation i talked about and then it denies the defendant x party based in large part on the stipulation so you've got the gist of court doing contradictory things at the exact same moment on the one hand it's saying i'm going to deny the motion to have only one defendant and then it like defendants perl to eliminate their obligation to prove that they were employees at all that was the and the not necessarily imply that they were employed by someone of the if someone was identified in the situation then there were two parties there yes ambiguous to me well but the next point in the analysis is four days later defense counsel the first opportunity to talk to the judge they go to the judge truck consul goes to the judge and says this is not what we meant when we say when we signed  stipulation it's contrary to our entire position it's contrary to all the evidence you should relieve us from the stipulation and there is well settled law in this circuit the macgregor stipulation is signed by the parties and submitted to the court several days later defendant's move to enforce the plaintiff's representation that there's only one defendant november second the court the nice that motion and signs the pretrial order that she and she reached the pretrial orders as containing the stipulation that forecloses defendants motion that's november second november tenth is the instructions conference that's the init event it's contrary to our position and it's unfair the p s g is not a statutory employer and we should be relieved of the stipulation and under well settled law the macgregor kicked case from this court and the rathbone case where the fifth circuit if  stipulation is would cause a miscarriage of justice would be it is contradicted by substantial evidence a party should be released from the stipulation and that's the case here if you look at it you know we weren't allowed to put in a full blown presentation and d p s just relationship with these employees but if you look at the evidence that's in the records when you say conference yes did you make a i don't believe the word motion was used but it is clear from what you defense the trial counsel told the court that that she had misread the stipulation and that it was contrary to d p s g s position and  order the court said that it concluded that it was not a miscarriage of justice and this is this is case the court concluded it was not a miscarriage of justice to hold the p s t to the stipulation because d p s had the p s g had repeatedly told the facts just under two minutes would you like to see let me thank you important to note that there was direct evidence usually inference is that the battle of trying to infer conduct in intent that goes on in employment cases is required because there's no direct evidence and so we have as a substitute a variety of shifting burdens etc that law allowed the jurors to draw inferences about conduct and that's the kind of thing he's talking about well when we did this and this and this was it because we're trying to maximize finances or with some other reason in our case as the judge pointed out in her motion her order uniting defendants to try and j m o l motions there was a wealth of independent suggest why the defense doesn't put on its defense well the defense though itself is irrational in a few different ways first of all the premise of it was the council kept on spoke to sing on the huge size the two hundred eighty nine thousand dollars award that went to mr january by everything else in the record that was an aberration no aberration lehi award if you look at the five awards that went to the plaintiffs in this case the other four total two hundred thousand exclude all of the workers comp evidence by a long shot there was a wealth of workers found evidence that came in with regard to historical amounts they were paid etc for example michael o'leary testified on cros defendants that the state of the t and now for two thousand and six for the san fernando branch show that the actual year to date expense many were prescribed expense was two hundred ninety thousand dollars and the plan for the year was one hundred eighty three thousand and about the worker's comp as part of their budget etc the one thing plain anything about the worker's comp to the point of scott no not just the pretty significant no no but the whole premise of their the whole logic that they have there is that the defendants would not have purposely injured these people or done things that injured these people because they would have run up their workers comp expenses and they couldn't they could make that argument pointing out that they were already over budget et basically saying that because this is a mountain counsel kept on stressing what a large amount this was and cetera they're saying because this man was so large obviously they wouldn't have had actually let me back up for a second that there's a fundamental point i forgot to make the fundamental the fundamental point i'm sorry i'm working on limited sleep because my father died a few days ago and i've been cramming trying to get this argument together so please bear with me if i'm not as focused as i would have otherwise life  the fun for the fundamental point is that they're arguing backwards from the twenty ninth he said this this aberration we high thing happened and we would not have gone i remember they are the fundamental point i'm sorry the fundamental point is that their strategy did the memos that were introduced into evidence etc the direct evidence we talked about was not that they set out to injure these people the evidence showed that they set out to get older people to retire and the plan was to move them out and the plan was to make work as discouraging and hard and miserable and disheartening as they could and then as a let at what been fully half the argument the other half was going to they were trying to encourage older people they were throwing hard jobs at them to make them want to quit right and then they said and if they don't quit we're not this question is not concerned with that part of the argument it's concerned with the other part of the argument actually having people seriously injured like that two hundred nine thousand dollars that he wanted to introduce that was not that was like collateral damage the plan was create hard working conditions make these people do physicals things that are taxing that they haven't done  specifically cited four zero three concerns in her in her new trial motion i have and and so she had a chance in this order to fully revisit that decision and she reaffirmed that that was part of her thinking as well and that is part of her thinking for a few reasons first of all the only thing worth here to talk about is the  two eighty nine thousand which came in for mr january and as i said that amount was was far in excess of what anybody would have expected so we're talking about a fluke that happened and they wanted to ride that horse now if they had known in advance that their conduct was going to produce a two hundred eighty nine thousand dollar hipped then maybe they would have had second thoughts about it but that's very different they're trying to argue backwards from the fact that after they went on their scheme of trying to drive these people out to to quit and then maybe they'll get injured but again getting maybe they'll get injured might mean that have a twenty thousand dollar injury or forty thousand dollar injury which was the average injury as they said when you look at  was just the beginning of the other yearly wage differential older compared to younger was ten thousand dollars is there evidence in the record i don't think that's what they would have counsels here correct me if i'm wrong but i don't i don't recall there being any kind of such offer proof i think it's more of a generalized they want to argue that there's another important point but if they can tell me if there's something in the record that suggest that that tells us t which differential is didn't hear but there's another important point which is there would have been undue confusion caused by getting this information it was two forms of undue confusion and or prejudice there was a jury instruction that specifically told the jury you were not to consider whether or not these people got any money that is a history that was never challenged on appeal so that that is agreed and binding on us in terms of that was properly before the jury so i one hand would have had the jury told you or not to i'm sorry please repeat that i can hear that their vision argument as to why they want that worker's comp evidence in this is not just a calculation of damages but rather as to whether or not there's liability in the first place and what the motivation is but the instruction is limited to damages instruction says you are not to consider whether or not any payments were made so the jury would have had instruction that said that an evidence that this guy received two hundred ninety nine and that would have created some kind of terrible mystery furthermore if the evidence came in then there would have been the danger that we would have known whether the jury did or didn't factor that into their thinking when they were assessing the damage or so there was a danger of prejudice from that as well now there's nothing in this case i think there's nothing that defendant sat down and talked about that we're not going to do this because it's going to be too much money in fact they denied doing it altogether so they're kind of this is an after the fact relation of how we can get the worker's comp materials in before the jury but has nothing to it's creating stipulation well there's a there's a number of fundamental problems first of all he he he claims that this is a typo or you know how to how can we explain what this this was when you look at the stipulation south if there's about two or three different places in the stipulation used later on for a purpose that was maybe much greater than what they really saw they were stipulating to is in the in the jury instructions the court it begins with several propositions for the for the jury and tells them those propositions are stipulated to didn't exist and everything is an appellate asked before but that was not raised at all during the trial in fact if you look at the closing statement of defense counsel he specifically referred in handling the investigation of age discrimination etc so the lawyers on their side thought that this was basically a single entity and then and quite the case on that theory and then when when the case is over and the and what they didn't have to do now the chronology we have about supposedly this was inconsistent with everything that the defendants did it is completely inaccurate just the opposite is true the consistent position the they then proceeded through the case they engaged in the government they brought a town or claim they never spot summary judgment they never once during the entire history of the case until we got to the  they never tried to get out of the case so for them to say now that they you know their position from day one was that they didn't belong here every action they took other than running in and left me with the ex parte they request that the situation that they had signed be changed other than that everything part of their entire course of conduct was inconsistent with the claim that they didn't think they were defendant and belong in the case would there have been any other basis for them to be in the case as a defendant other than being employer now now this is an employment case and that's the only way they could because if they were the employer and basically as i said when you read the ten k in their own language they say we have been doing this for thirty years they saw themselves in dealing with the investors in dealing with the f c c and deal which is regulated by the governor i mean they saw themselves as a single enterprise and all of the stuff about well there's this guy and he's got a title with this company but not with this company all of that is after the fact and they also don't mention in their theory why d p s sitting there sending instructions so there could be other theories many could think there could be some an issue of success or viability there are other theories under which dr pepper might be liable without without having to be the employer but once again and so there are reasons why they might not have might not have chosen  i don't know whether the court wants me to address the these specific compensatory damages things and i mean i can do that really quickly or i can go back and visit the other issue which you seem to have some concern about which is the worker's comp so please tell me what you'd rather have me do with my last one minute and it seems to me that with the direct with the it's impossible for me looking at this record as the judge said the judge's order said there was an overwhelming amount of direct evidence of discrimination including by third party witnesses given all of that it is just impossible and as i said there is plenty of information about how much workers comp in general costs and that they were over budget so they were free to make all of those arguments the only thing they couldn't do is say and friend of or in this case there because she doesn't say they're on some other western france base no i think that basically she made it clear that she believed this was a for all three if that was an independent basis for for reaching the same conclusion and i think the four three issue should be reviewed in that way and as i said the most important thing is if you consider the totality of the evidence in this case including the what the judge referred to as the overwhelming or i forgot the exact agita evidence of direct intent it's hard to believe that had they been able to mention that one number without even showing that they knew that it would be that that would happen that like i said that was a fluke it's hard to believe that that would have changed the result and that's really all that matters thank you thank you very much and i started you make the argument to her that you're making to us oh yes well then she heard it but if you left she's totally stupid she understood it rejected but her grounds for know she was focused on the damages from the get go she said when she first ruled against us if you tell the jury the companies are to pay for this they're not going to work any damages for things that have already been paid that was her mindset from the beginning and that was her mindset all the way through out it came up several times during t and she kept saying the same thing over and over again she was very much fixated on that point with respect to  was in but we weren't allowed to put in any evidence about the amount of the settlement or even the existence of the settlements we're simply allowed to say we except that that we accepted their claims which the plaintiff turned round against us and said well that knew they were responsible but it didn't show anything about whether we had any kind of incentive to the evidence we know that the jury knew that the wage differential per year was ten times only ten thousand yes we know that strange submitted worker's comp claims yes we know that the worker's comp the dreamlifter the workers comp claims were made no no there was no discussion that they were paid simply that they were accepted but now was no differen theory well there was an indispensable part of their theory that another indispensable part and we were that permitted to put in the evidence that would have shown that it was irrational from our point of view and because we couldn't