problem concerning the respect catalyst just i noticed that the district judge with just the simple one word resolves the question is whether or not there's mine but even on that issue i think i fully briefed in the court and the panel is obviously much more familiar with the concept of collateral stoffel even though we have argued that it didn't apply even if you did whether that motivated them was an issue that was relevant that wouldn't even have implicated collateral startles certainly it was an overlap even if you want to argue that there was the court had made a finding which i there any way in which those two concepts went you know swallow up all the evidence that you want to put on that or that means i mean that's basically our our position and i think that's what i violation the only point that i was trying to make that even if you wanted to argue that there was somehow some collateral estoppel p cause there was some evidence that mr mcdaniel has complained about those policies so for circulating e mails talking about spent countless policies the employees could not have known that a state court down the road was going to find them guilty or not liable so the issue of whether it was on their minds mr mcdaniel  not in the refinery i think he's trying to do some things which is sponsoring creative artists in the music industry and things of that nature you are also running i think believes a nursing home with  but you go back to your question here and so therefore are your your sexually saying there really isn't a connection to the disability claim which is well let that went well here's the connection the connection is that at trial couldn't make an accommodation because in order to work in that area you would have to wear a respirator and they were arguing back and forth as to whether dr weintraub was saying that was for a while future or not the real point of the matter was if mobile cleaned up much but the ten hours and it was almost like a clock and the judge would announce things like you've got seven hours left and after this or if this raid mr leader's case michael weeks before he had that you're no longer going to argue what he thought he had preserved the most for summary judgment hours left if it was an impossible situation and for whatever reason the judge just didn't want to hear that now i'm not i mean and i apologize for that that's true but i mean sometimes it's interesting you know the ethical argument and i should have known little bit more about this unfortunate this is one of those cases where i was in the trial attorney and so but i think the record is pretty clear is that on any other questions i'd just like to research and re en intentionally injured mr mcdaniels or proselyte leach concealed from him the circumstances of his injury it had to clean all the evidence that established that it had complied with the law that he had followed the proper procedures and that was the evidence  easily readily have for three issues because at a status conference well before we have filed our collateral estoppel motion in limine and he issued the order on the time limitations you know three motions him to be decided there was a workers there was a very lengthy worker's comp proceeding ye the evidence that came in during the workers comp proceedings went to the extent mr mcdaniels injuries to his lungs i don't believe that it's dead the workers count the record in the workers carcases i recall in about a deposition of mr mcdaniels and a deposition of mr white as to the way that the accident occurred the worker's comp proceeding had to do with the injury to his lungs and not with respect to how the accident had occurred but i want to address are i believe there is it was very difficult to get the workers can't transcripts i remember that i believe there is i believe this but i want to if i could i want to go back and address the point that you just me which was that ordinarily you're ok but if what i mean what i want to say is that you know well well it wasn't being handled in the abstract it wasn't when judge hatter issued his rulings that the trial was going to be limited to twenty hours that was in december of two thousand and three i believe following a mediation that we had and it was after the court had denied our summary just no motion and we had filed all of our pretrial  there must have been karma the point i want to make is that at that hearing we're judged how limited the time we quote is this in our brief he said we're not going to have any many trials on other people's was that during his late duty period he spent calloused in little dishes and he never told anyone at mobile that he was doing and then only after he filed his talks toward actually did he reveal that he had catalyst because none of this evidence was put in front of the district court well the district court had it not before the jury now before the jury but judge however knew about it because what mr daniels complained about during his employment were actually only a couple things one he complained about his physical ailments to he complained about whether the assignments that he was given during his light duty period complied with his doctor's restrictions and three he may have complained the ins and incident or an accident at the torrance refinery the procedure for the incident investigation was that the incident investigated would collect witness statements from anyone who was directly involved in the in the accident and in m decisions that were made in the case so keep implying that he had been asked for a witness statement but the evidence at trial should not only that he was asked for one but that he put one in and he gave it to someone who had nothing to do with the employment decisions so if the complaints and that's something that i just want to emphasize is that the evidence that mr mcdaniel says he was denied from putting in is not evidence that supports any back but it doesn't go to cloud the rhetoric it's going to be because it shows how prejudicial that evidence is because if you don't complain about something and then you try to put in evidence to support of retaliation case that  that has nothing to do with any complaints by the collateral sablon for all three motions but things were happening at a rapid pace as you can imagine under the time that it so we just used the shorthand version the consequences are entirely different and the determination at a particular objection might be different depending on whether it was a collateral estoppel determination or for all three determination well i don't i don't agree with that because i think that i've read parts of the transcript where these collateral estoppel objections are made i have to say they sound like collateral estoppel objections they do not oh absolutely i mean i believe that the collateral stoffel determination needs all of the elements of the collateral estoppel rule first the issues were identical in the toxic tort case i think because they only and which is not relevant to the question of whether he complained about something that was going on in the plant it could have been complain about something that wasn't intentional and because there was no this discretion the concealment in which is very narrow and basically says there has to be the concealment of that particular person's particular injury and that has to have exacerbated his damages and you know it and he could have decided that it didn't exasperate the damages not would have nothing to do with anything so some things going on that plant was spent catalyst that people were complaining of him well there is there is no record of any hearing but the evidence that was before the state court which was the evidence that was submitted by for mcdaniels went to whether we had plans beyond the environmental regulations whether we had ignored complaints about step catalyst whether there was a nosebleed incident whether that was unfair that if i could just make one final point and i will keep you very very it relates to the strength of the evidence on the disability discrimination claim and we've devoted a great deal of attention to that in our brief for a reason because we wanted to put his terminations in context after conclusion of mr mcdaniel is to leave or like to do the work period while his injury was going to influx to permanent his doctor issued a very severe and stringent restriction that said that he could not be exposed to any gases odors heat cold humidity and that was the basis of their decision to end his employment times when you have to lift up in an emergency you may have to lift a respirator to tar kind of walky talky so we could not guarantee that he would never be exposed to any gases gastric ulcers we simply couldn't do that and that was the reason for the decision to end his employment we could not reasonably accommodate the very stringent requirements that dr rice had placed on him and we noted this in our brief then we said that even that dr white had never came back to mobile and said i think you've misinterpreted my restrictions i never met this man to not be able to work in the refinery did you people have conversations with dr when he did dr jean had several conversations and i was testimony at trial and that you talked to him several times and exchanged correspondence with him ok he used to say the same thing cut it short we had six kids we had about five minutes didn't complain about anything that was it next but as far as the collateral from discussing that but the point that she's trying to make that oh he never complained at the time when mr leader tried to bring that up he was stopped from talking about mr mcdaniels argument collateral stoppel he was not allowed to talk about any of the safety co