stewart hearing on behalf of the appellant's the district court's ruling in this case prevented the jury from hearing the whole story including critical items of evidence th directly undermined the plaintiff's theory of the case and to highlight this i'd like to focus on the events in the testimony that surrounded the plaintiff's absence from work in the july and august timeframe because i think th trial he testified that at the beginning of august he called up john reilly of the of chevron's employee assistance program and explained that he had been given a couple of assignments in southern california and that his medication dependants so the story that the plaintiff was testifying to was that he went he was absent from work and he went to this rehabilitation clinic in this critical time period right before his terminations to address the pain medication issue resulting from his back pain that have been exacerbated by his previous two assignments at the end of july so in california and then there's testimony then became the  prejudice here because the plaintiffs counsel use that to say he had this great work history he never missed work repeatedly in the closing argument the theme of the closing argument was the plaintiff had never missed work intill this is how we know that he is back problem was caused by had become a serious of the playing of claimed it was and that it was caused by things happening at work including this assignment in southern california at the end of july was that despite this great work history and despite having not medication that was the theory of the closing argument plaintiff's counsel argued he never missed work this is what caused him to start missing work and have all the problems that led to this man's downfall and the players council also argue happened during this time frame and the only evidence is that it happened from these events namely what mr p could testify to that he did have back problems occurring at work that led to his dependence on pain medication which then caused him to start missing all this work it was it was a circumstantial case evidence that isn't the case you have the declaration of his former spouse in the context of a child custody dispute she r perhaps two as i recall he only legal substance about a neighbor's house right you would know it was a little more than that i mean it was it was more than that and that's this i think is the key point your honor in contrast to mr peaks testimony about his conversation with mr riley in which as mr peet portrayed it it was all about pain medication resulting from his bad back that have been exacerbated by the july assignments mr riley's notes said the employees said he wanted to get some help for his alcohol problem this is that page one forty of the excerpts of record he said he stated that the stress of the divorce scrutiny by the court and his physical problems that led him to drinking in an abusive way and that he wanted to get help he also indicated that he has used the prescription drugs for playing pain medication with out of control now that he is in stark contrast to mr peaks testimony that it was all about his use of pain medications and that it all resulted from his back condition exacerbated by conditions that work mr peake was allowed to put in that story chevron was not allowed to put in this evidence directly contradicting it's the alcohol problem which he mr riley's notes indicated was wasn't it using alcohol in an abusive way and then there was also a couple weeks after that there was another conversation in which m mr riley that he found himself drinking more and gradually fell into the use of the illegal drugs specifically cocaine which he states that he used on several occasions right so it was the use of cocaine on several occasions but also the to find primarily from the medical the marital disputes because this is what these notes reflect what you're saying is that because the district court would not allow your evidence is allowed council to here nothing in the record in the back problem knowing that you can't do anything about it because the district judge didn't allow the facts in that show exactly the contr i read the argument of counsel and it concerns me as a former trial judge that the types of things you hope you never see but did you object to the argument i don't believe that during the closing argument there was an objection your honor that's true no objection during the closing argument was or an objection after the closing are the the as a matter of law i'm going to deem them to have to have been submitted to have made and preserve all of your arguments that would support a new trial or judgment as a matter of law and that's in the record there's an order from the judge specifying all of the arguments that we were deemed to have made and that she rejected your your understanding is that that preserves the issue of whether the argument of counsel disregard certain statements he the trial judge has the opportunity to try to cure any and any unfair advantage that opportunity at that time and that was never done well this was the point i wanted to get to  judge wallace the the error here and the prejudice was the exclusion of the of the evidence during trial preventing us from arguing and preventing us from cross examining the plaintiff on his version of the that theory the argument was that the conditions on the show on the ship had caused the back and dish and which led to him becoming disabled and the and the the point i'm making i have been making here is that this evidence was relevant to the jur determination of whether there was negligence that caused the condition being complained of and the and we were unable to present our version our story that said that the reason he was missing work was not because of a back problem and simply because of pain medication problems but it was because of these under other events going on in his life and we were prevented from making that case that's on the negligence and i'm seaworthiness that you're not claiming that the incident was caused by  right i'm just not precise for me when you say that it's related to the negligence to me it seems unrelated it's related to the issue of injury and causation this all had a back condition that  existed for many years and the question was did was the back condition the back pain that he was complaining of did it result from these events at work or did it result from other circumstances going on  other state of circumstances going on in his life and let me explain that they didn't make that very clear the the the the theory of the plaintiff's case was a look at our absences from work plaintiff got on the stand he said look i was i was even if there were even if the plaintiffs counsel had not made those are highlighted this the way that he did during the closing argument we still have the testimony of trial of the plaintiff himself attributing his absences from work  his back problem and using and giving that to the jury as a basis for why they should conclude that two thousand we started missing all the work show that it was these events that happened in two thousand as opposed was present in condition so you're not asking us to change anything because of the argument if i understand your argument you're saying that you're only pointing this out to show the necessary prejudice because you have to you have to is that you feel you preserve the jury argument because the judge made a ruling that you couldn't bring a motion yes after trot you asked your honor whether there had been an objection after  to the the argument itself i think that's correct your honor that we're there's a number of cases that say when we're trying to figure out when we try to evaluate the prejudicial effect of an evidentiary ruling one way to show the importance of that  case is to look at the closing arguments of counsel and that is primarily the way we're using it i think i'd also like to make the point that if you read the transcript of the arguments at the beginning of the trial where the judge excluded this evidence she made it very clear ask question what evidence are you talking about what how were you going to propose to introduce whatever evidence it is the principal evidence your honor it would be the testimony from john reilly about these communication conversations that he had balding that taking the illegal drugs a few times and having an alcohol problem and having alcohol that's it and that will that that's the principal evidence and i'd like they weren't here say they were business record they were recorded recollection they were commissions against a party interest so i think that was admissible and mr riley was called to testify he was he testified on the stand and he could have testified to these events furthermore mr pique was on the stand giving this you version testified about taking illegal substances on a few occasions and why was that relevant to anything in  and the plaintiff is taking illegal drugs on a few occasions with neighbors have to do with that at all i'm going to stand and i make myself clear on this let me try it again the the the plaintiff at trial to prove the causal connection said look look at what happened to me my life fell apart i started missing all of this work that shows you the jury how serious my back injury was and the timing here i would been sailing on all the way up until the beginning of two thousand and and then all the sudden i started missing all this work and that shows to the jury the argument was that the it was these were conditions caused my my problem right in the jury was told that he was addicted to painkillers have become an abusive user of painkillers right yes knew all of that they just didn't know about the two examples of the illegal drugs right correct as well and the alcohol abuse is not just two examples of using cocaine alcohol abuse in the context of the domestic relations dispute which occurred later the domestic relations dispute was going right in the heart of this period in which she says that it was they could produce from that was that it was pain medication which played right into the plaintiff's theory that all of these problems he was having related to his back problems and the ensuing need for pain medication and what we wanted to explain to the jury was that he was having difficulties and he was missing work but it wasn't because of his back problems or because those have been caused by conditions at work it was because as he told mr riley it was the stress of his marital disputes that's what led to his drinking in an abusive way more than just cocaine on a couple of occasions but an alcohol problem and that is why he when the evidence that he missed work because he was under the influence of alcohol that was not argue your honor what was the argument was that contrary to his assertion that he missed work because of his back problem and pain medication problems he was missing work because he needed help with an alcohol abuse problem that stemmed primarily from merrill disputes not from work conditions or a back problem that he'd already admitted that he missed work he went into that program for a few as a result of substance abuse and the only evidence the jury was allowed to hear about substance abuse whether it was perk of them so for the jury from that would logically conclude will perk it and this just shows how serious his back problem  plaintiff's counsel hammered on that all through trial that the the use of her going and was the barometer for pain and it showed how serious his back injury was and i'd like to too my time is rapidly running out here  that that he had violated this zero tolerance policy because he self admitted i think it says the youth taking it to perfect yeah that's the reason that chevron itself terminated him correct th the meaning and the interpretation of the greenman the understanding reached by the parties and it's much more believable to a jury that chevron would impose that type of an agreement an absence agreement if the jury understands the broader cont that the reason why that i'm going to be out of that was explained to the person who terminated him it doesn't need to have been explained to him because the the question is what are the agreement mean and the person who who negotiated agreement and who made the decision that had been breached it's true that somebody else decided ok he's going to be terminated because he breached but mr reilly made the decision that had been breached and it was mr riley who had been involved in the negotiation of the agreement then who who knew and who did have this background and was in the position to know why and what the terms were in the context of the of the broader substance abuse issues for which he had just come out of the rehabilitation clinic i see that my case that need to be addressed before i talk about relevance in the four zero three issue which i've had for years and has commented on a couple of things first of all that the issue of marine safety obviously is very serious and something the captain peak took very seriously but i want to point out that that was never an issue in a case we for example never question chevrons right to withdraw captain peak's clearance for her safety sensitive duties captain peak at the time never resisted exactly cooperated with the entire process the question was whether and only whether the chevron had a right to terminate this individual rather than accommodate his problems and his disability and that was the question that was post ultimately to the jury number one number two there is no evidence that the captain peak ever as much as took an aspirin on one of these ships in fact the evidence is he was a person who had took the eight hour rule that chevron imposed and imposed a thirty six hour rule on himself never  near his duties on the influence of these medications i think that's very important that we that we clarify that because the concern about environmental catastrophe is something that is so serious that i fear that it may influence the court subliminally and so i want to put that out the second thing is and this is this is equally critical and that is that the question of whether or not mr peak was an addict whether he was depending on pain medications whether he have used was never an issue in the case in fact we conceded that and were open about his dependants we acknowledged doctors that we called his pain management doctors testified that from the time mr peake developed his back problems through the post surgical rehabilitation period he used and at times was physically dependent on prescription medications now the jury did not hear about the fact that there was additional components to this about some alcohol abuse and non prescription drugs but they were never an issue in the case i don't know where that ever would have gone anywhere and there's this idea that wallace that somehow i took unfair advantage of that well what i was responding to was the argument that chevron made consistently chevron chose to make mr pease character a big part of this case i did not do that we did not do that they attacked mr peake from the beginning to the end they claimed that he was not injured they claimed that he was mulling going and that's what we responded to in the context of why was he taking this prescription and so it was out there at all times we were open about it and it wasn't an issue whether he was dependent or whether you want to call it an addict judge patel at some point said what does his status have to do with anything and we agree with that so again the idea that somehow we repress that has no bearing no relevance because it was not an issue of any consequence in the allegation in part maybe you could explain to me when you argue there is no evidence here that there was something that he was doing just for fun and of course they had kept out evidence of recreational drug use yes you are the point then there's a comment you'll see no evidence this guy ever taking medication when he didn't have a back problem and they for fun for recreational purposes certainly no evidence at all that he ever took perception pain medications for anything other than a medical problem and a very predictable and common physical dependence which the pain medication doctor said l is addiction it is bad it is something where if this individual is doing this with no medical problem they would seek treatment but here it's a necessary evil because we're compassionate and we treat pain and what i was saying was that the allegation remember that the jury never heard about any recreational drug use so what they were saying is he was using this prescription medication implying he was doing it for recreational purposes and that's what i was saying was not true and how did we do that we argued the medical evidence i mean i think chevron was took a very dangerous if not reckless position in this case to take an individual who had radiological studies done at m r i's x rays he had a very serious back problem the jury so found by the way and that finding has not been contested by chevron he had a serious medical problem that's what we did we went back into look he has a serious medical problem he did not do this for fun and if you look at the dent only at the e a p files one of the one of the claims is that is that john reilly says this is an excerpt one forty two it all started with physical pain he needed help to manage his pain pain management was a big issue for mr p reilly repeatedly stated in his notes in a trial captain pete had a quote severe pain problem and if you go back and look at this that's exactly what happened this man had an injury he began to take prescription pain medications other problems ensued so my argument to the jury was consistent with that record and was fair we are not in a situation when when an adversary when there's a ruling that some evidence is excluded and an adversary then makes an argument in this case  have a legitimate injury that he was mulling going we are not at that point balland and and therefore not allowed to argue the balance of the evidence nor we well you certainly can can argue the evidence but it does seem  that you could that you could make the statement that there is no evidence of recreational use here when sure on and you know that there may be some evidence that chevron would like to introduce argument and my intent was to work within the confines of what they were saying which is he never took this medication this claim that he was doing this for fun is unfounded there was no evidence there was no evidence that mr peake was taking these medications for fun or for that matter drinking abusively in fact he was he was repentant in his response to the inquiry from chevron he went in there and came clean and said i feel terrible about this this all arose out of my problems with my back and then my divorce and my point was when when chevron came in and i and i represent semen all the time this is one of the most heartless i felt ways to treat someone who was was a was a lifer with that company he was devoted to that company had a spotless record and he developed these human frailties and they went after him relentlessly and all i did is said that was wrong that was unfair and this was all this was not because he was out having fun and it was the medical evidence that we relied on to rebut those allegations and there is no the medical evidence t findings of causation although obliquely referred to have not been contested by chevron have not been appealed there's no claim that the finding of a severe medical condition of medical causation of manifestation while in the service of the fleet seaworthiness of work methods which evidently violated is the this argument within the context of model rule model instruction one point seven of us suggesting that the standard in frail or disabled individual in fact we argued and showed they violated the national standard for safe lifting practices their own standards none of those things have been contested and that's what we argue to say there is no basis of this and i did never and never stated and we never argued that this man was a paragon of sobriety as suggested or that he had never in his life used illegal drugs or that he never used alcohol in fact the jury heard about alcohol use medical records several years later there was evidence that mr peet had gone in for treatment and he had been there that he was appeared to be intoxicated i don't know if there was a test done or whatever but the chevron certainly went out and tried to find evidence elsewhere of alcohol and anything else they could find but again not the point is and i do think that critically and i'm responding to this because i listened to argument earlier i think a lawyer does now and should know what's where the line should be drawn and i try to be very careful about that i'm passionate about what i do i was very passionate about this case and if my passions got the better of me i apologize but i'm responding to that to just say that was never and if it was a free punch it certainly wasn't  was no intent to do that and the increase for example with the coworkers was directed specifically to people who had no social relationship with this individual to deal with the implication that there was a safety risk that this individual is using these substances at work that's why we went into that we tried to be very careful and tried to model our our response to blow by blow block by block to what chevron was doing and it is difficult and we do this all the time when we try cases you can't an insurance so often the insurance adjusters up on the stand and everybody tries to work around the fact that well why is this individual testifying what is their role there becomes some level of art officiality that we have to deal with and that's inevitable when you take a piece of the puzzle out because it's deemed to be wherever it's privileged or it's prejudicial but we certainly never tried to do that and i don't think there's any instance where for example evidence was admitted that was was not true we got witnesses and it wasn't true and we never intended or tried and i don't referred to this already a little bit but but what is not being appealed and these are the issues that i'm saying i don't think are really part of a case a dispute about mr peaks of sobriety an issue of whether he was an addict marine safety but the issues and i've gone through these a bit already that were found and it's important to to to acknowledge this because chevron implies over the causation was weak or or the finding on scene where this was weak well none of that has been appealed and i can assure you i soon that if there were any  indication that the record was insufficient that evidence was insufficient to support those findings those issues would have been brought up on this appeal and again so what we have is is an ad an affirmation that the jury found that he was injured and these are facts we must deem has been as having been established and all the talk about how it may be or in my view was not impacted by the exclusion of this evidence but he was hurt these are now facts this injury was caused by his work this did manifest in the service of  went to work the testimony was he was it suffering in agonizing pain and took no medications they took him from the ship to the hospital for injections because he was so devoted to this company he loved this company and this was never disputed and this is a guy who actually has a surgery stops taking any medication wean himself off the medications and is back working during the trial so yeah i was i was i was impassioned and if i took a few free shots it wasn't intentional it was a byproduct of the fact that i argue what i believe in on relevance i share judge progress in this concern i don't understand it i really don't see the the argument is that the jury didn't know why he was off work they most certainly did they knew exactly in excruciating detail they knew that he was off from in february and march because he was not fit for duty because of his back injury they knew that in the june or july timeframe that he had been taken off an administrative leave to investigate allegations of substance abuse and we did not argue oh well that's what they said but really he was off because of his work there was the jury saw every element of this man's medical history what doctors he was seeing at the time what the doctors were saying at the time that's what we relied on if i had relied on the absence of somebody at work or a doctor who testified it is my believe with a reasonable degree of medical probability that this condition was caused by this accident because he wasn't at work that would have been a fuel of  all of that on hard solid evidence he spent a great amount of time a great amount of money to do that right and i don't see any any argument or even relevant connection or explanation as how he was off work because of his drug or alcohol use or that the jury didn't know they knew exactly they knew he was that he or and again we are allowed to tell the remainder of the truth it's true he went in to the treatment center because of his his concerns about his use and abuse if you want to call that abuse simply means that he's taking a lot of these medications he's doing there all prescribed by the doctors he was concerned about that he was concerned about pain management riley's notes reflect that and the mere fact that there's something else doesn't mean we can't tell the rest of the story it doesn't mean we can't defend the client or explain the evidence and that's what we did we explained the rest of the story and we did our absolute best never to misconstrue anything the question is why did why did maybe it'll tell us how the real question of whether his condition manifested in the service of the fleet i don't even understand that how would that be there's no evidence that he was intoxicated when he was this accident or the typical thing was that i don't i don't understand there's no connecting the dots and there's really no connecting of the dots even on the argument is made it's convincingly made the arguments are put forward in the very first the first point employee was using drugs and alcohol when he was terminated for violating a drug and alcohol agreement you would say certainly seems like that would be fair this doesn't seem right but when you look at it because it was in the e a p context no one who made the decision to terminate individual rather than put him on disability any thing about it and in fact the response to that they knew nothing about it they also importantly the the  fleet manager said and that we don't consider anything we don't consider any individual characteristics pro or con and we did not consider them so on one hand we didn't consider his background as clean record is his excellent review a month before he was fired but we also didn't consider anything else so the argument is well riley knew he went to the formation of the contract riley said and this is again in the evidence which was excluded peak peak again so he had no opinion there was no evidence that riley felt that that maybe the fact that these activities had taken place impacted what the punishment should be he had no opinion on on the the on the penalty and that's what we used we said wait a minute don't return him to going to see that's fine in fact we argued he was physically disabled from that we've certainly never contested chevrons right to say you're not going near any of our ships when you're taking these in the whole dispute the jury decided was that what was the proper remedy riley knew nothing about that riley had nothing to do with that that was all chevron management who knew nothing about it so i start by talking about the things that maybe hit me in my heart when a judge wallace says he's disturbed by my conduct and i'll remember that and i'll remember that in my next closing argument i take that to heart but the fact is this was not relevant to anything in that case it did not tend to prove anything in the case and that's what justifies judg  and again when you look at the standard here it was her decision beyond the pale of reasonable justification only without logic or reason should we send this case back for a two week trial thirty five more witnesses all of those party and judicial resources this is the balls and strikes call maybe you each of you would call this differently but it's well within the bounds of basic discretion when you look at these questions of relevance when you look at the potential prejudice when you look at all of the things that i've