[00:00:01] Speaker 01:
And that will be case number 25-3093 Stewart versus City of Topeka.

[00:00:13] Speaker 04:
Do you want us to switch tables?

[00:00:14] Speaker 01:
No, just keep the same table.

[00:00:15] Speaker 01:
It's fine.

[00:00:21] Speaker 01:
We do have different people arguing, so we'll go ahead and excuse counsel from the last case.

[00:00:31] Speaker 01:
We'll let counsel for the appellant.

[00:00:34] Speaker 01:
Go ahead and proceed.

[00:00:36] Speaker 03:
Thank you, your honor.

[00:00:37] Speaker 03:
May it please the court.

[00:00:39] Speaker 03:
My name is Amanda Fogelsberg and I represent the city of Topeka and Brian Wheelis in case number 25-3093.

[00:00:44] Speaker 03:
I'd like to try to reserve three minutes for rebuttal if I'm able.

[00:00:53] Speaker 03:
As you guys know, this appeal arises from a trial that went far beyond the only claim left in the case, which was the 2021

[00:01:01] Speaker 03:
major promotion decision, and whether or not that decision was discriminatory.

[00:01:07] Speaker 03:
Instead of focusing on that decision, what the jury heard were facts and allegations that were anecdotal, that had no nexus to the decision maker who was Brian Wheelis.

[00:01:19] Speaker 03:
Excuse me.

[00:01:21] Speaker 03:
Facts about the 2015 promotion of Michael Cross, facts about a 2018 investigation into Kim Hanneke,

[00:01:30] Speaker 03:
And Jerelyn Willis and whether Kim Hanukkah no longer was a person who was in connection, who worked contemporaneously with the DEA, which had nothing to do with Brian Willis as the decision maker.

[00:01:47] Speaker 03:
It had to do with the former chief, who was Bill Cochran at the time.

[00:01:50] Speaker 00:
I think the real question that we have to answer right off the bat before we even get to any of that is whether or not you preserved

[00:01:59] Speaker 00:
your objections, your error here.

[00:02:02] Speaker 00:
We see in the briefs where you point out several places we're able to go back and look at some of the transcripts and so forth.

[00:02:08] Speaker 00:
I'm telling you, I'm having a hard time finding the specific objections that were made at trial that would have preserved this type of error.

[00:02:16] Speaker 00:
You, for instance, state that you had a standing objection.

[00:02:19] Speaker 00:
Where in the transcript can we find where the district court agreed and recognized a standing objection

[00:02:28] Speaker 00:
to any of the testimony that you are now saying he erred in allowing in?

[00:02:34] Speaker 03:
We pointed to that in the motion to reconsider argument portion of the brief, which is in volume 8, pages 15 to 17, the standing objection.

[00:02:44] Speaker 03:
There was further discussion during that moment about the motions in Lemony and the arguments on the motions in Lemony where the judge referred back to those motions.

[00:02:54] Speaker 03:
I think you have to look at it in context.

[00:02:56] Speaker 00:
But in the motions in Lemony, and even where you're talking about with regard to the standing objection, the district court kept saying, well, we'll have to wait to see, or I'll make that ruling.

[00:03:04] Speaker 00:
I forgot the exact words.

[00:03:06] Speaker 00:
But basically, he was saying, we're going to have to wait till trial, and then you can make further objections if you like.

[00:03:11] Speaker 00:
He didn't make any definitive sort of holdings on that.

[00:03:17] Speaker 00:
He didn't make any direct orders on that, as far as I can see.

[00:03:21] Speaker 03:
Your Honor, he did make a definitive decision that Kim Hanukkah, Donna Eubanks, and Jennifer Cross were MeToo witnesses.

[00:03:29] Speaker 03:
And the whole objection with regard to MeToo incorporates that Rule 401.

[00:03:36] Speaker 03:
Is it relevant evidence in Rule 403?

[00:03:37] Speaker 00:
They were fact witnesses as well, right?

[00:03:38] Speaker 00:
They were fact witnesses as well.

[00:03:40] Speaker 00:
That's correct, Your Honor.

[00:03:40] Speaker 00:
I think Cross and Hanukkah were both fact witnesses.

[00:03:43] Speaker 00:
So how could he, first of all, rule on a motion of limiting to completely exclude their testimony

[00:03:49] Speaker 00:
when there's going to be some part of their testimony that's probably going to be admissible.

[00:03:53] Speaker 03:
Correct.

[00:03:54] Speaker 03:
But under MIA, and under the case in MIA, you're looking at whether or not that motion and limiting preserves that continuing objection and doesn't make it repetitive and disrupt the trial and continuing to object about the main issue, which is, is this proper background evidence?

[00:04:12] Speaker 03:
And I think there's a balance between how far do you let background evidence come in?

[00:04:18] Speaker 03:
And I think the test circuit has said, okay, we've got to review all the facts.

[00:04:23] Speaker 03:
It's not just, it's very fact-intensive review.

[00:04:26] Speaker 03:
One of the things we look at is same decision-maker, the relevancy of time, and more importantly, what type of claim is left.

[00:04:35] Speaker 03:
This was a disparate treatment claim.

[00:04:38] Speaker 03:
And I think that's relevant when you go and look at the other cases that appellee cites to on when background evidence is allowed to come in.

[00:04:46] Speaker 00:
But you have to object.

[00:04:48] Speaker 00:
And there's places in the record where witnesses go on for an hour before there's an objection.

[00:04:53] Speaker 00:
And I question whether those are really objections to begin with.

[00:04:56] Speaker 00:
For instance, I think you cite to page 174 of the transcript for what you claim is an objection to the testimony.

[00:05:04] Speaker 00:
And looking at it, it's clear to me that it's not an objection.

[00:05:08] Speaker 00:
It's a colloquy.

[00:05:09] Speaker 00:
It's a binge conference where the lawyers are sort of talking to each other.

[00:05:12] Speaker 00:
The word objection is not even stated in that whole colloquy.

[00:05:18] Speaker 00:
How can you make the argument that that was an objection and the district court erred in ruling on that when he didn't even make a ruling because there was nothing to rule on?

[00:05:27] Speaker 03:
I understand what you're saying, and you're right.

[00:05:29] Speaker 03:
There was no terminology that was verbalized as objection.

[00:05:33] Speaker 03:
But what counsel kept coming up to the bench and what everybody knew at that time was the city of Topeka had a fundamental disagreement with

[00:05:45] Speaker 03:
Appellees on what was proper me to or background evidence and when it evaded into Pattern and practice type evidence that was improper when it was evading into section 1983 evidence they're discussing the context of that relevancy and whether it's probative versus prejudicial in the context of what they were discussing and I think the judge

[00:06:09] Speaker 03:
was continuing to just simply disagree with the city of Topeka's council.

[00:06:13] Speaker 01:
So let me, let me stop you for a minute.

[00:06:15] Speaker 01:
The problem is, is we don't know that.

[00:06:18] Speaker 01:
We only have what's on the paper, what's in the transcript and the transcript's equivocal.

[00:06:25] Speaker 01:
The transcript has, and look, I understand the position you're in.

[00:06:31] Speaker 01:
Of objective having to object all the time and, and disrupt the flow of trial, irritate the trial judge.

[00:06:38] Speaker 01:
Cause you won't let any testimony come in without an objection, irritate the jury for that reason.

[00:06:43] Speaker 01:
I get all that, but ultimately for purposes of review.

[00:06:47] Speaker 01:
When you're at a bench conference and you say, in fact, you don't use the word object usually.

[00:06:53] Speaker 01:
You're a judge.

[00:06:54] Speaker 01:
This is a so-and-so.

[00:06:55] Speaker 01:
And it's me too evidence.

[00:06:57] Speaker 01:
And it's outside the scope of the summary judgment order.

[00:07:02] Speaker 01:
And he equivocates.

[00:07:06] Speaker 01:
And nobody says, judge, I have an objection.

[00:07:11] Speaker 01:
I need a ruling.

[00:07:13] Speaker 01:
So we have a bunch.

[00:07:14] Speaker 01:
And then we have, where you did object, he mostly sustained the objections.

[00:07:21] Speaker 03:
Correct.

[00:07:22] Speaker 03:
But we did ask to strike Jennifer Cross's entire testimony, at least twice.

[00:07:26] Speaker 03:
And he overruled that and, or just didn't make a ruling on the record in one instance.

[00:07:32] Speaker 01:
Right.

[00:07:32] Speaker 01:
Well, that, I mean, but, but that's an extreme, uh, I mean, you wouldn't, that's a very hard case when you didn't object to most of it at the end of testimony to, to move to strike the entire testimony.

[00:07:46] Speaker 03:
Well, your honor, we objected about six to seven times during Cross's testimony.

[00:07:51] Speaker 03:
And at one point he told

[00:07:53] Speaker 03:
plaintiff's counsel to move along because it was very often to non-relevant, repetitive type of testimony that wasn't even related to Hardin and Stewart's promotion claim.

[00:08:07] Speaker 02:
And counsel, I think what I'm struggling a little bit is in responding to my colleagues' questions, you're both trying to say how often you objected

[00:08:18] Speaker 02:
and that you didn't need to object after the district court definitively ruled on the first day of trial in response to the motion to reconsider.

[00:08:26] Speaker 02:
So trying to make sense of what you understood the law required, it would seem that if you're arguing 103B here,

[00:08:37] Speaker 02:
And your argument is, we got a definitive ruling as to Cross and Hanukkah and Eubanks.

[00:08:43] Speaker 02:
And as the district court said, if Joe Smith shows up, then we'll have to deal with that then.

[00:08:48] Speaker 02:
But you understood you had a definitive ruling.

[00:08:52] Speaker 02:
I'm trying to describe what I understand your argument.

[00:08:54] Speaker 02:
Correct.

[00:08:54] Speaker 02:
And that would, under 103B, relieve the need to have to object again.

[00:09:00] Speaker 03:
That's correct.

[00:09:01] Speaker 03:
And that aligns with the Miha slash Alcorin case on

[00:09:07] Speaker 03:
If it's definitive if it was clear from the pre remember this is not remember the context just less than 30 days before trial you had motions and limiting filed counter briefs to that emotion limiting argument and you had a pretrial brief all setting forth the same evidence that ended up coming into trial.

[00:09:25] Speaker 03:
that went well beyond the pale of the background evidence under Mia.

[00:09:30] Speaker 03:
I'm sorry, Your Honor.

[00:09:31] Speaker 02:
I think you're being very helpful.

[00:09:33] Speaker 02:
I appreciate it.

[00:09:34] Speaker 02:
I think what you're saying, if I understand correctly, is that if you're relying on 103B and you got a definitive ruling on the first day of trial, you didn't need to say anything else ever again.

[00:09:45] Speaker 02:
Is that your position?

[00:09:47] Speaker 03:
Correct, although this court has pointed out it is prudent for counsel to continue to object.

[00:09:53] Speaker 03:
And as the trial court explained, we're not picking on the trial court.

[00:10:00] Speaker 03:
The trial court was put into this position because we had a change of judges probably right at 30 days out from trial.

[00:10:09] Speaker 03:
This was not the same judge that ruled on the summary judgment brief, but you're right, Your Honor, under, well, at least your point is right.

[00:10:16] Speaker 03:
Under Rule 103B, it states that if you don't make the objection on specific grounds, if it's apparent from the context, you've preserved that objection.

[00:10:27] Speaker 02:
And that's where the Mia... I'm not talking about context.

[00:10:29] Speaker 02:
That's different.

[00:10:30] Speaker 02:
I'm talking about once you receive a definitive ruling.

[00:10:34] Speaker 02:
Where I'm stuck is,

[00:10:36] Speaker 02:
trying to understand the district court's first day of trial ruling on the motion to reconsider as a definitive ruling.

[00:10:43] Speaker 02:
And if we agree with you that it is a definitive ruling, then it seems that you have an opportunity for preservation here.

[00:10:51] Speaker 02:
Correct.

[00:10:52] Speaker 02:
I mean, maybe that's not the best practice.

[00:10:56] Speaker 02:
And I'm sitting with a district court judge and a former magistrate judge who know far better than I do what good practice looks like.

[00:11:04] Speaker 02:
precisely under the terms of 103B, it seems that would give you an opportunity to preserve your claim.

[00:11:11] Speaker 03:
I agree with that, Your Honor.

[00:11:13] Speaker 03:
And keep in mind, his ruling on the first day of trial was definitive.

[00:11:21] Speaker 03:
It was, I'm going to allow these MeToo witnesses, but keep in mind, counsel, this is interlocutory.

[00:11:27] Speaker 03:
We could hear different evidence than we anticipate hearing that may be relevant or it may not be relevant.

[00:11:33] Speaker 03:
He was trying to avoid mistakes that a lot of trial court or some trial courts have made of having a per se rule going into it.

[00:11:42] Speaker 03:
And so I understand what he was trying to balance.

[00:11:44] Speaker 03:
And I think, again, when the court's reviewing this, it's got to review the entire context, the procedural history, which is very key to this case, as well as the entire trial testimony which came in, which was overwhelmingly about Jennifer Cross's claim.

[00:12:02] Speaker 03:
overwhelmingly about the dismissed Section 1983 pattern and practice type of evidence of the city having a policy of discriminating against promoting women.

[00:12:13] Speaker 03:
Those claims were dismissed.

[00:12:16] Speaker 03:
And more importantly, on our motion in Lemony, the court granted that part of our motion in Lemony saying, yes, pattern and practice in Section 1983 should not be admitted into trial, but if

[00:12:30] Speaker 03:
And I see I'm almost out of time on reserving my three minutes.

[00:12:33] Speaker 01:
I'm going to give you a little latitude, so go ahead.

[00:12:36] Speaker 03:
But importantly, on those motion and limiting rulings, those are critical.

[00:12:40] Speaker 03:
Because on one hand, we were told in his rulings, both on the motion limiting and the motion to reconsider, he's going to allow the plaintiffs to present background evidence.

[00:12:54] Speaker 03:
And MeToo witnesses, although I don't think they were MeToo because Judge Broom's already ruled that wasn't discrimination.

[00:13:00] Speaker 03:
Kim Hanukkah was more about nepotism.

[00:13:03] Speaker 03:
Definitely not about discrimination.

[00:13:06] Speaker 01:
If we look in the record and Hanukkah was testifying about her nepotism related issues, are we going to see a definitive objection to that testimony?

[00:13:17] Speaker 03:
No, you're not, Your Honor.

[00:13:19] Speaker 01:
You're not.

[00:13:19] Speaker 01:
So that's problematic.

[00:13:22] Speaker 01:
I mean, this is the thing you have to, as at trial, you have to presume that there are going to be attempts to put things in the record that you don't want there, and you have to be ready to object.

[00:13:37] Speaker 03:
Your Honor, it's problematic if you don't agree with our position that under Rule 103, that was preserved.

[00:13:43] Speaker 03:
It's also problematic if you don't then go to Plain Air Rule and see how harmless and substantial and interwoven

[00:13:51] Speaker 03:
the edge over.

[00:13:52] Speaker 03:
I mean, it went right off the cliff from background evidence into trying the entire case that had mostly been dismissed at the summary judgment level.

[00:14:01] Speaker 01:
Let me ask you one more, and I'll let you sit in.

[00:14:04] Speaker 01:
But I'm just curious.

[00:14:07] Speaker 01:
Take Cross's testimony at trial.

[00:14:11] Speaker 01:
I mean, what's objectionable about that, at least in part to the extent she gets up and says, listen,

[00:14:20] Speaker 01:
My husband, he doesn't even want to come to work.

[00:14:25] Speaker 01:
These two are better than he is.

[00:14:27] Speaker 01:
They show up.

[00:14:28] Speaker 01:
He doesn't show up.

[00:14:30] Speaker 01:
He's got these problems as a cop.

[00:14:32] Speaker 01:
He's not the best person for this job.

[00:14:34] Speaker 01:
I mean, that seems like pretty good evidence of their claim.

[00:14:37] Speaker 03:
What's wrong with that?

[00:14:39] Speaker 03:
There's nothing wrong, but that was about 1% of her entire testimony.

[00:14:43] Speaker 03:
The rest was about the union negotiated labor agreement that did not apply to management level employees, and that promotion process, which would confuse and prejudice the jury.

[00:14:53] Speaker 01:
The other part... Let me just ask you this.

[00:14:55] Speaker 01:
So was it like the union testimony?

[00:14:58] Speaker 01:
Was that part of the motion in Lemony?

[00:15:01] Speaker 03:
It certainly would have been part of that pattern and practice section 1983, which the court granted should be

[00:15:07] Speaker 03:
should not be allowed into evidence.

[00:15:09] Speaker 01:
I mean, these are all nuanced items where it comes up at trial.

[00:15:14] Speaker 01:
OK, so you get a ruling.

[00:15:15] Speaker 01:
OK, yeah, you're right.

[00:15:16] Speaker 01:
I don't want any pattern and practice evidence.

[00:15:18] Speaker 01:
So she starts testifying about union practices.

[00:15:22] Speaker 01:
And you say, objection, that was ruled on at the, which you didn't, but that was ruled on in the motion in Lemony.

[00:15:34] Speaker 01:
And then the next step is the other side gets up and they say, no, no, Judge, this is relevant background information.

[00:15:41] Speaker 01:
They make an argument about it too.

[00:15:44] Speaker 01:
And the court has to decide.

[00:15:47] Speaker 01:
I mean, I'm not trying to pick on everybody.

[00:15:51] Speaker 01:
I was equally, equally tough with your opposing counsel on the last case.

[00:15:57] Speaker 01:
It's terribly difficult to review these things where they where the rulings are equivocal and There aren't contemporaneous objections, but I'm going to give you a little time for rebuttal so thank you I say I'm out of time and I appreciate that time for rebuttal it is difficult, but under the rules you have to look at

[00:16:16] Speaker 03:
Is it harmful and is it substantial?

[00:16:19] Speaker 03:
Thank you.

[00:16:19] Speaker 01:
Thanks, counsel.

[00:16:20] Speaker 01:
Another question.

[00:16:21] Speaker 00:
Oh, OK.

[00:16:21] Speaker 00:
Hold on.

[00:16:21] Speaker 00:
Oh, I'm sorry.

[00:16:22] Speaker 00:
One more question, sir.

[00:16:23] Speaker 00:
You just stated a while ago that with regard to process testimony, at least part of it was relevant and should have been admissible.

[00:16:29] Speaker 00:
But then you moved to exclude the whole testimony.

[00:16:32] Speaker 00:
And you're sort of complaining about the judge denying that.

[00:16:38] Speaker 00:
So this is a problem.

[00:16:40] Speaker 00:
is if she also has relevant and admissible testimony, she's a fact witness, on things outside of what the motion and limiting might have addressed, wasn't it incumbent upon you to object when it got into those parts of the record?

[00:16:53] Speaker 00:
I just don't see those objections, those clear objections.

[00:16:58] Speaker 03:
The record is what it is, and maybe those objections weren't as clear.

[00:17:02] Speaker 03:
The objections were relating to the motion in Lemony and the discussion from the motion in Lemony, and they were phrased as, this is not a MeToo witness.

[00:17:11] Speaker 03:
This is not relevant.

[00:17:13] Speaker 03:
And it ties back into those decisions that were made on the motion in Lemony and motion to reconsider.

[00:17:18] Speaker 03:
And under Rule 103 and Mejia's interpretation of that rule, that should stand.

[00:17:24] Speaker 03:
Thank you, Your Honor.

[00:17:26] Speaker 03:
Thank you, Counsel.

[00:17:32] Speaker 04:
May it please the court.

[00:17:34] Speaker 04:
Christina Nielsen on behalf of the appellees.

[00:17:38] Speaker 04:
So under this court's abuse of discretion standard, we look at what the trial court did, right?

[00:17:48] Speaker 04:
What did the trial court consider?

[00:17:49] Speaker 04:
And what opposing counsel stood up here and said was that the trial court looked at the motions in limine, the counterarguments, the arguments at trial, the arguments at the pretrial.

[00:17:58] Speaker 04:
And initially, when we consider the abuse of discretion standard,

[00:18:03] Speaker 04:
That is just the opposite, right, of arbitrary, capricious, or whimsical.

[00:18:07] Speaker 04:
The trial court clearly took a very, very close look at this issue.

[00:18:13] Speaker 04:
Then it came down to, OK, did the trial court make a definitive ruling that these witnesses should not testify?

[00:18:21] Speaker 04:
And I want to point out briefly that in the opening brief of the appellants, they say they preserve this through their motion in limine, initially.

[00:18:29] Speaker 04:
That's one of their arguments.

[00:18:31] Speaker 04:
But in their reply brief, they seem to have stepped away from that, or I think they unequivocally stepped away from that.

[00:18:36] Speaker 04:
If you look at page 13 of their brief, they say, the motion to eliminate does not meet the preservation requirement and triggered the need for contemporaneous objections.

[00:18:46] Speaker 04:
So then we look at the record and what contemporaneous objections were made.

[00:18:49] Speaker 04:
And I think that this court has pointed out in questioning of opposing counsel that those objections simply were not made.

[00:18:58] Speaker 04:
At the beginning of the trial,

[00:19:00] Speaker 04:
The defendants again objected, based to Hanukkah and Cross's Me Too testimony.

[00:19:08] Speaker 04:
Again, the trial court did not make a definitive ruling.

[00:19:11] Speaker 04:
It said, I don't know what the evidence is going to be.

[00:19:14] Speaker 04:
And that makes sense, right?

[00:19:15] Speaker 04:
Because as this court has noted, both Hanukkah and Cross, and an opposing counsel admitted this today, both of them were fact witnesses and

[00:19:24] Speaker 04:
Me too, witnesses.

[00:19:25] Speaker 02:
Counsel, what is equivocal or not definitive about the district court's ruling on the morning of trial responding to the motion for reconsideration?

[00:19:34] Speaker 02:
What is not definitive about that ruling?

[00:19:37] Speaker 04:
Because the trial court said that the evidence would need to come in as it comes in.

[00:19:42] Speaker 04:
We'll take a look at it.

[00:19:43] Speaker 02:
He did say... He said you identified the three witnesses, meaning Cross, Hanneka, and Eubanks, but also you may have other concerns for other potential testimony.

[00:19:53] Speaker 02:
And so with regard to the three witnesses, I think that they have been established as sufficiently relative to the two particular plaintiff's claims.

[00:20:00] Speaker 02:
I mean, what is not definitive about that?

[00:20:01] Speaker 02:
I understand that you have other arguments about the need for contemporaneous objections, maybe in response to sort of the evolving nature of the appellant's preservation theory.

[00:20:12] Speaker 02:
But as to that, why should that be anything but definitive?

[00:20:16] Speaker 04:
It's definitive that he was going to let them testify, but it was not definitive as to the scope of their testimony.

[00:20:25] Speaker 04:
And that's reasonable.

[00:20:26] Speaker 04:
And as we know, and as you just pointed out, Judge Rossman, that these things develop in trial as the case is presented.

[00:20:34] Speaker 04:
What testimony comes in?

[00:20:35] Speaker 04:
What testimony doesn't come in?

[00:20:38] Speaker 04:
And there were no contemporaneous objections at trial.

[00:20:43] Speaker 04:
Even when Hanneka and Cross were called to testify and the defendants stood up and made their me too objection, the trial court again said,

[00:20:53] Speaker 04:
I can't give you a continuing or standing objection.

[00:20:55] Speaker 04:
He didn't use those words, continuing or standing objection.

[00:20:57] Speaker 04:
But he said, you have to object as the evidence comes in.

[00:21:00] Speaker 04:
The defendants understood this, but they didn't object.

[00:21:06] Speaker 04:
Now, what I also find curious about the appeal is that today was actually the first time that I've heard what testimony was actually, they claim, was objectionable.

[00:21:20] Speaker 04:
In their brief, they just say,

[00:21:22] Speaker 04:
Well, in the motion for new trial, they say that the trial court should have struck all testimony of Hanukkah and Cross.

[00:21:30] Speaker 04:
But on appeal, they say the trial court should have aired when it did not strike the MeToo testimony of Hanukkah and Cross.

[00:21:37] Speaker 04:
Two points with respect to that.

[00:21:40] Speaker 04:
One, we pointed out in our brief, we don't know what testimony you're talking about, right?

[00:21:45] Speaker 04:
Because they were disclosed as a fact witness and as a MeToo witness.

[00:21:50] Speaker 04:
So help us out here.

[00:21:52] Speaker 04:
What testimony do you find objectionable?

[00:21:54] Speaker 04:
And we didn't get that in the reply.

[00:21:56] Speaker 04:
What we got was today, the testimony that it claimed was objectionable.

[00:22:00] Speaker 04:
Now, it occurs to me that when a witness is both a fact witness and a B2 witness, that the need to object, to contemporaneously object, and specify exactly what that objection is, is perhaps even more important.

[00:22:18] Speaker 04:
And that's what happened in this case, or the lack of objections.

[00:22:21] Speaker 04:
in this case.

[00:22:23] Speaker 04:
So the other point is, in their brief, they talk about the testimony of Hanukkah and Cross and others.

[00:22:33] Speaker 04:
But we don't know who those others are, right?

[00:22:36] Speaker 04:
Again, what testimony, what witnesses are we talking about?

[00:22:40] Speaker 04:
Now, the defendants make this point about their motion to strike Cross's testimony.

[00:22:52] Speaker 04:
and which was made at the conclusion of Cross's testimony.

[00:22:57] Speaker 04:
And I would point out in page 20 of our brief, we set out what exactly that colloquy was at the close of Cross's testimony.

[00:23:06] Speaker 04:
And that is the defendant believed that there was no specific objection.

[00:23:12] Speaker 04:
They objected.

[00:23:14] Speaker 04:
We object, defendants say, because the testimony of Cross showed nepotism, not discrimination,

[00:23:20] Speaker 04:
and asked that the MeToo evidence be stricken.

[00:23:23] Speaker 04:
But again, what evidence was the MeToo versus what was the fact part of her testimony?

[00:23:30] Speaker 04:
It was unclear to the trial court, or may have been unclear to the trial court.

[00:23:33] Speaker 04:
It's certainly unclear to me looking at the cold record, which is what you have in front of you.

[00:23:38] Speaker 04:
I wasn't part of the trial team.

[00:23:42] Speaker 04:
But not only did their unspecified objection fail to satisfy the Rule 103 requirements,

[00:23:49] Speaker 04:
for specificity, they don't object based on prejudice.

[00:23:54] Speaker 04:
They don't object based on lack of probative.

[00:23:57] Speaker 04:
They don't make any 401, 403 objection.

[00:24:00] Speaker 04:
So the trial court properly denied their motion to strike.

[00:24:05] Speaker 02:
Let's assume for argument's sake that the city adequately preserved its claim of error here.

[00:24:11] Speaker 02:
Is there any portion of either Cross or Hanukkah's testimonies that

[00:24:16] Speaker 02:
would not have met our standard for admitting anecdotal evidence?

[00:24:19] Speaker 02:
I mean, is your position that everything was wholesale admissible?

[00:24:24] Speaker 04:
I believe it was.

[00:24:25] Speaker 04:
Well, two things.

[00:24:26] Speaker 04:
Yes, it was.

[00:24:28] Speaker 04:
Because it related to the same decision maker, cross-testified factually about how the promotional process occurs.

[00:24:36] Speaker 04:
Then she talks about her promotions, her lack of promotions.

[00:24:40] Speaker 04:
And all of her testimony, as I recall reading the transcript,

[00:24:44] Speaker 04:
related to the same decision maker.

[00:24:47] Speaker 04:
So her testimony.

[00:24:48] Speaker 02:
So there's a lot of her testimony.

[00:24:51] Speaker 02:
With Hanukkah, I might agree with you in terms of answering my own question.

[00:24:55] Speaker 02:
But with Cross, there's a lot of information in her, and she testified for many, many, many transcript pages.

[00:25:05] Speaker 02:
She did.

[00:25:06] Speaker 02:
But some of it is not temporarily relevant.

[00:25:10] Speaker 02:
Some doesn't involve chief wheels.

[00:25:14] Speaker 02:
So the question then becomes, whose job is it to sort through all of that in the absence of contemporaneous objections, I guess?

[00:25:23] Speaker 04:
Well, I think the lack of contemporaneous objections is indicative of the fact that defendants deemed it admissible.

[00:25:30] Speaker 04:
They didn't object.

[00:25:31] Speaker 04:
So it was properly admissible, and it was properly considered by the trial court or by the jury in this case.

[00:25:38] Speaker 04:
And as you said, in Hanukkah,

[00:25:43] Speaker 04:
She did testify about wheels, but her testimony was like five pages of the transcript.

[00:25:48] Speaker 04:
So to say that that permeated the entire trial is, I think, a bit of a stretch.

[00:25:53] Speaker 04:
But as far as Cross, yeah, Cross did testify extensively.

[00:25:57] Speaker 04:
But again, the lack of objections.

[00:25:58] Speaker 04:
But not only did much of her testimony involve the same decision maker, much of her testimony was regarding the boys club.

[00:26:10] Speaker 04:
that was existent in the police department.

[00:26:12] Speaker 04:
And again, she referenced the Boys Club, but that wasn't objected to.

[00:26:15] Speaker 04:
So her testimony is not only admissible based on Wheeles, who was the decision maker, but her anecdotal evidence of what happened to her at the Topeka Police Department.

[00:26:34] Speaker 04:
The last thing, if I may, would

[00:26:39] Speaker 04:
And this addresses your question, I believe, perhaps slightly more, is that the defendants don't dispute that there was a prima facie case made.

[00:26:48] Speaker 04:
They come up and say in their brief and they said in post trial motions that we proved that there was a legitimate nondiscriminatory reason.

[00:26:59] Speaker 04:
Because it boiled down to pretext, that's the other reason that Cross's testimony was admissible, was because the two plaintiffs were entitled to use whatever evidence might show that the Topeka Police Department's explanation was unworthy of credence.

[00:27:20] Speaker 04:
And this comes up also in the defendant's law of the case argument.

[00:27:26] Speaker 04:
And I would note that,

[00:27:28] Speaker 04:
With respect to the law of the case, if you look at volume 6, pages 143 and 144 of the record on appeal, which is the judge's order on summary judgment, if we're going to look at the law of the case, the law of the case, one, as explained in our brief, it doesn't apply.

[00:27:54] Speaker 04:
But if there was any credence to the defendant's argument that there was a law of the case,

[00:27:59] Speaker 04:
The trial judge found that the defendant's explanations were unworthy of credence.

[00:28:06] Speaker 04:
And the judge laid out those reasons.

[00:28:09] Speaker 04:
So if we're talking about the summary judgment argument or the summary judgment order being the law of the case, then why is that not the law of the case too?

[00:28:17] Speaker 04:
And why wouldn't plaintiff have been entitled to a directed verdict at that point?

[00:28:21] Speaker 04:
But we know it's not the law of the case.

[00:28:23] Speaker 04:
So their argument, their final argument in their brief regarding law of the case about whether or not

[00:28:28] Speaker 04:
The elimination of Cross's claim prevented her from testifying in two other cases.

[00:28:33] Speaker 04:
This court has never required that there be an actionable claim for there to be admissible evidence.

[00:28:40] Speaker 04:
So because the defendants, I think their brief is lacking in the identification of objections.

[00:28:49] Speaker 04:
It's lacking in identification of the testimony about which they complain.

[00:28:53] Speaker 04:
And then if you look at the substance of their arguments,

[00:28:58] Speaker 04:
There is no objection, no contemporaneous objection.

[00:29:01] Speaker 04:
They were not granted a standing or continuing objection at trial.

[00:29:05] Speaker 04:
And the jury properly considered the evidence because they didn't deem it inadmissible or that it shouldn't have been admitted.

[00:29:13] Speaker 04:
So for all of those reasons, judges, we ask that you affirm the verdict of the trial court.

[00:29:18] Speaker 01:
Thank you, counsel.

[00:29:19] Speaker 01:
Any questions, Judge Rosman?

[00:29:21] Speaker 01:
Judge Williams?

[00:29:22] Speaker 01:
OK.

[00:29:22] Speaker 01:
Thank you.

[00:29:24] Speaker 01:
Counsel, we'll give you a minute and a half.

[00:29:26] Speaker 03:
Thank you.

[00:29:30] Speaker 03:
Your Honor, you guys can decide whether we properly cited to the record on appeal in our brief, which I believe we did.

[00:29:37] Speaker 03:
We cited to the objections.

[00:29:38] Speaker 03:
We cited to the objection even before Hanukkah was introduced, where counsel came up to the bench and said, we're objecting on the basis of MeToo relevance and repetitiveness of Hanukkah and Jerry Montesmith testifying.

[00:29:53] Speaker 03:
And the judge again ruled, we're going to see what comes in.

[00:29:58] Speaker 03:
We believe those objections were preserved, but even if you don't... But that was before they uttered a word, right?

[00:30:07] Speaker 03:
That's correct, Your Honor.

[00:30:08] Speaker 03:
That's correct.

[00:30:09] Speaker 03:
So even if we don't, where does that get us?

[00:30:10] Speaker 03:
It's the plain air.

[00:30:11] Speaker 03:
It's, can you say for certain that the jury got a case that was relevant, with relevant information that was not interwoven into non-immissible evidence?

[00:30:25] Speaker 03:
And I don't think you can.

[00:30:26] Speaker 03:
I think it's harmful.

[00:30:27] Speaker 03:
I think it clearly outweighs what this court contemplates on background evidence, given most of the time it's a disparate impact case or a class action lawsuit where a court lets opposing counsel venture that deeply into dismissed claims.

[00:30:48] Speaker 03:
For that reason, we ask that you remand back to the trial court for a new trial.

[00:30:55] Speaker 03:
on the 2021 major promotion.

[00:30:57] Speaker 01:
Thank you.