i know you're all familiar with the facts and what went on the basic problem in this case is they never proved essential elements required for a disability alcohol yes ma'am and i think the two elements to that one is the method of proof i e what level of testimony is required and secondly did they conceded was that alcoholism is a disability right and isn't a disability by legal definition something that impairs a major life function substantially impairs i maybe we did i don't believe so sir i believe you could have a saying she's an alcoholic how does that person opine what do they use to opine as to whether someone is abusing alcohol or is an alcoholic the answer to you ma lies in the medical knowledge of the person that they are standard tests to determine what the person is an alcoholic i mean are there aren't there isn't that something that's made on the basis of behavioral reports not on some blood test in other words is not a determination of alcoholism made by a physician or some other medical person we can ask diagnose then based on reports from the individual and from family members or for workers who say sally gets dropped dead drunk every day three o'clock let's let's work on a regular basis you can't get out of it in the morning so let's look at the body of what this employer was told and what it was new and what we showed to the court well for those  one there was an incident a year before one day she tested what she all the evidence was that she never she testified that she never told he have slipped off of the kind of the testimony that's needed that is whether it's from a medical professional or not and back to the question of impairment it may be in fact the case that had the defense not stipulated in effect to an impairment that things might or might not have a different who knows but that's water under the bridge looking at the question i understand that he's really worth it is can you make a case for alcoholism in the absence of putting it on iran question isn't so much what the behaviors were right now as whether other people are competent to say the same things and stop because she didn't want to drink anymore didn't want my family have the consequences of my actions i realized what a stroke was going to be because i couldn't stop then she testified that she was in detox she went in she was in detox for a week and she was sick she couldn't talk to anybody to my mind those two things send up red flares from which a jury could say this is not just somebody who was abusing alcohol and again i'm going to center for disease control this is someone who is now and and the jury is that it's a very unique situation it's not the kind of thing where a blood test  or you know and i don't whether it's like depression or probably not as depression is treated with drugs it's now a very unique disease but couldn't a red light go off for the jury and say you know if you're going to toss and you're sick for a was it not yes ma'am ma'am look at this from the employer's point of view for a moment she doesn't tell the employer anything about this you're putting in place your position were you know the reporter is responsible for what the couldn't higher twelve a before the trial so we try this case it was another firm head case long before we stipulate it was sort of left with but we didn't take the stipulation well i've heard the stipulation you know i mean with that i have the regarded as peace whoever it was got something out of it but the point of the matter is you're on that there was no i do not think there was sufficient evidence that she was an alcoholic or question because that is really you put your finger right on it this is a sufficient evidence challenge right yet you get right this case is all about on appeal a sufficiency of evidence challenge so let me ask you this one is the defense  that as a matter of law there could never be sufficient evidence of alcoholism without medical custom that's not your now so i think things should be about what acknowledging that there could be sufficient evidence of alcohol only because that's what this word is little previous jordon asked ask this question again yeah now you've acknowledged if i understand you that there could be sufficient evidence of alcoholism in the absence of medical facts why not talk about this specific case and talk about in the abstract you could have sufficient evidence of alcoholism presented for a jury under an eighty eight claim  following their aneli i mean it is alcohol i mean isn't alcoholism it's fairly commonplace isn't it it's nothing i mean it's there are some diseases where you know the regular person would have no knowledge you can't see it you can't i mean this is because of something people this person is an alcoholic personally i believe that's correct but i but this court has ruled otherwise other with rule yes you've got to come up and say this is not a hole but i think if you're going to say if you're going to say that marin ellie says if you don't need a doctor  understanding of the reasons for our argument that substantial limitation of a major life activity is subsumed in the definition of alcoholism did you treat it as a live issue we did not your honor was me and so let me put it in context at one point during a one week trial the words of sansa limitation were used it was in a colloquy with the court on a separate evidentiary issue of the extent to which we would be permitted to elicit testimony about the physical illness that ms diaz had when she went into rehab and she was during the talks of occasion so during that colloquy out of the hearing of the jury i used the phrase substantial limitation that's a sound bite that the defendants have repeated again and again and so what i would well it's a good sound bite for them right because if you're treating it like it's an issue as if you have to do understand why it was off the table why we can show it was off the table during that one week trial that was the only time those words were mentioned were any evidence was discussed about substantial limitation and i would direct the court counsel for the defendants or myself about substantial limitation or instructions didn't go into exactly your honor and sat on the jury instructions that the parties in the court used the third circuit model instructions to frame the jury instructions as as parties usually do and if if your honour's will compare the third circuit model instructions with the jury instructions in this case the third circuit model instructions have nine paragraphs on the definition of disability six of them six of those paragraphs discussed what is a substantial limitation on a major life activity the jury instructions that were given to the jury in this case had two sentences about disability followed by the language from the stipulation saying that if you find out i'm paraphrasing but if you find that she is an alcoholic alcoholism is a disability under that definition of the a d f a if anyone had thought that substantial limitation of a major life activity was something to be proven we would have been instructing the jury on that and we would have been arguing in the motion a jury why should an expert testimony be provided i mean this is a chronic disease and state courts have routinely held that there needs to be a diagnosis when you have a chronic disease why shouldn't we say that all things considered you should have an expert pine this shouldn't be left to the jury to try to figure out whether this person has a disease your honor i would i would like the court to differentiate between the idea of a diagnosis and a fact finding by the jury we're not asking the jury to make a diagnosis are you not there you're not in fact saying she's not just an alcohol abuser she's an alcoholic that is a disease condition and we want you to say she's got that disease condition well what we're saying your honor is that as many courts have said the jury can consider the symptoms of a condition that many jurors are familiar with and judge rice noted that during the by dear many hands went up on the question of who has alcoholism in their family so that the jury can consider the symptoms and the the in those cases though you generally want to have a expert committed to help the jury understand the evidence your honor i don't think the question of whether something is visible to the naked eye is the relevant question in some arm pain and you can't look at somebody and say their arm hurts but what you can do is understand that when they testify about the symptoms and how it effects our life you can understand because disability not a diagnosis here you say alcoholism oh and you look at what is what is that and the center for disease control has a fine line between abuse and alcoholism the disease for alcoholism and by the way the jury was not given any indication as to how it refines that's correct they were not your honor because the understanding that ruling of the court and the understanding of the parties is that cancer common sense of i mean i don't think you know between alcohol abuse and alcoholism i don't know how much it is within the common sense of a jury well i think it is your honor when a patient has an extraordinary type of treatment for a disease it is a common sense but that was the extraordinary treatment here for this disease also your honor i don't i think that going to inpatient rehab she was ordered by the court i'm ok that is a misstatement of the she went to outpatient treatment attest the record which says that on her first day of outpatient treatment her counselor recommended tour that she go to inpatient treatment she told her supervisor that and then because ms diaz is a woman of limited financial means in order to pay and had no health insurance in order to pay for inpatient treatment her probation officer suggested that the way to facilitate that was to extend her probation so that she could receive public funding for her rehabilitation her inpatient rehabilitation now the the evidence that the defendants have cited to say she was ordered to rehab is simply the letter directing her to go to court and she testified and explained well when i got that letter i was worried because it says violation of probation and she explained that then she was told i understood she was led to understand that the only reason that has a nation was given was to facilitate the financial arrangements needed so some practical reason that maybe we're missing why you can just call an expert in this kind of case so you have one fact to prove it and as an expert you get up and blasted out in five minutes we might have been in twenty twenty hindsight i wish we had and yet it wasn't we meet the question is is it legally required and you know is there an evidentiary rule requiring  alcohol use and what we're dealing with yours chronic assume that that was the this situation we came to are we dealing with the sufficiency of the evidence question here about whether or not you put sufficient evidence in to show that to this jury in other words are we should we be reviewing the record to say for example there wasn't evidence about how much she drank the judge made a mistake when he made reference that that wasn't in front of the  jury what we're what we're left with is she decides to check herself in you know is that how we should be looking at the case well your honor yes it would be a sufficiency of the evidence and the court is well aware of that that the high favorable to the nonmoving party the plaintiff in this case could any rational jury or have made this decision and in fact this rational jury did make that decision well that's that's that's that's the question right when you say impairment kinds of questions in the context of can we look at those kinds of issues again in the context of the sufficiency evidence to show this was alcoholism not alcohol abuse in other of the evidence is that relevant and important that by her own family's testimony she kept the spotless house that she was a good mother to her children that she was late for work only once that the worst you could say about her work was that she was occasionally slow if you look at all that evidence and context is it well can can we look at that evidence when we're asking the question there sufficient evidence to show this it cross a line from abuse to a disease your honor that evidence certainly is part of the totality of the evidence and it perhaps shows that misty has an extremely high functioning alcoholic but the totality of the evidence also to look at the right it's legitimate to look at and in the context of an eighty eight case of course the plaintiff also needs to demonstrate that they were capable of doing the job so that was part of that of the perhaps not case but part of the totality of the evidence is also as she began drinking as a child she got drunk for the first time that she was nine years old that she attended alcoholics anonymous that she went to inpatient treatment and that she was physically sick from alcohol withdrawal so so there is there's a large body of evidence i haven't said at all you know her husband and her brother described her as an alcoholic and in fact during the entire trial as noted in the trial court's decision the defendants argued that she was an alcoholic who did her job so poorly as you deserve to be fired and they took that same position your hon of the person coming in and saying yeah i know i do i know i do my job well and i know i'm a good mom and i'm a good housekeeper and i know i do all the things it would never people do and i do i'm just fine but trust me i'm an doesn't put employers unnecessarily risk of people discomfort and saying hey trust me i'm sick well i have a few things to say that your honor first of all there is evidence in the record that the keystone saturday in patient alcoholic and and the jury and the jury looked at the evidence of that and concluded that alcoholism was something they you know understood well enough and were familiar with and that she was an alcoholic home and they did that and if i just missed it employer is not on the hook unless the jury also reaches the conclusion that the  retaliatory action was because of the disability so it's not it's not that the employer is on the hook for something without any causal basis the other thing that we have here that just isn't going to be in other cases is the concession yes alcoholism is a disability which takes the whole impairment and the actual activity these are the the workplace off the table that's right your honor and it was a significant concession on the plaintiff's part as well to give up the regarded as a claim which may have been and were in easier way to go in this case so there was that it was a negotiated in consented to concession and the defendants never objected to the jury instructions never argued trial all right yes yes yes ma'am if you judge ordered the jury is being asked to make a diagnosis you know one of the things the judge judge rice determined in his opinion mentioned this was a half gallon of alcohol a day the only place that appears the only place was in the judge dealt with that later i think he acknowledged that he had missed a bit but the point that there's a point to this was in it was in the dis arises if that why didn't this is a civil case the defense has access to compulsory process how come the defendants didn't get you to their own expert or get the treating physician in a deposition or on the stand to say she's not an alcoholic maybe an abuser but she's not now your honor i wish i had enough time i asked for an extension they opposed it i asked for a lead a couple of weeks to be able to do all that when i was hired twelve days before the trial the judge in fact didn't give me an extension to move the trial for us i didn't have a chance i would have done i agree with you so that ok well then if you agree with then what we're really dealing with here is not the problem but the of a  high bar from your for you to mount your career yes ma'am but you also have the problem that there is no the evidence is not there you're looking at something you look at the only evidence your honor just cited was what she said and then the testimony the what my pony just said which was uncorroborated she said that we make when when judge zero sent her to to rehabilitation because  of alcohol issue if the question is could any rational jury come to the conclusion what's what is irrational about a jury seeing a person who's  in trouble with the law for driving under the influence checked into detox doing so with the advice of treating physician and with courage one of a probation officer i mean is it is it she gets up on the stand and says you know i'm an alcoholic i've been drinking since i was a child i can't control it i have to check myself and what do we do we microscope and asking a pathologist to give you a read this is a disease which is which is a term and they distance of which is determined based on  l markers and conduct so why is she any less qualified to say i think it is if this is since the treating doctor would be listening for her most of all to decide whether or not she was an alcoholic why isn't her testimony enough standing on its own of the jury believes your honor you're taking psychiatric psychiatrist psychiatric and similar disciplines back a century this i did that this happened to me i did this i've been doing this so she she reciting the behaviors she didn't say trust me i'm an alcoholic in the office but there was contrary evidence as well but the fact is there was not enough evidence to show she had th