a case that was tried down in san diego pretty stupid pretty the issues aren't really earth shattering the they mostly focus on whether or not a a jury instruction should have been given and under the a da and the way it basically works is that under the a there are two pattern jury instructions that may be given one of the pattern jury instructions deals with respect counsel as i look at it it looked like instruction number fourteen probably stated the elements included in the requirement that your client had a disability and instruction fifteen  form one definition of disability and instructions were fifteen where was the other one it was it was it was eighteen or nineteen twelve point four and twelve point five i mean fifteen major life activity to two ways there's a major life activity as being major life activity to work and then there's a major life activity to do manual activities and what should have happened is our client should have had only one of those two jury instructions the major the major life activity to do manual  manual things not to not the major life activity of work so you wanted eighteen eliminated joint strike yeah eighteen eliminated yes ma'am i was there anything precluding  a laborer so there was no industry that you could look at across a broad range of jobs and say that that he couldn't get one of those jobs somewhere and we believe that that's what the jury did the jury looked at just there you know because there's two definitions one right after the other and then we believe the jury look at that and the at the ability of my client to be able to get a job somewhere in an industry obviously  could he went on the stand and he said i think that he is a security guard then but that wasn't the test that the test was did he have a a major quality of life  problem and he did he he could not work at at pride under all the jobs that he was asked to work at pride he had received a doctor's note that said that he could not climb and said that he should not be on ladders that said that he shouldn't walk too much as he shouldn't be in the freezer for it for eight hours at a time first kinds of things were going on and that but my question to you is that if your theory was that the major life it to vittie that you're relying on was with regard to the manual task and not work nothing prevented you from arguing that to the jury and the instructions allow for that the district court was quite clear that you could explain to the jury that that was the theory  were lying on we did but the problem we said and then we brought forward evidence of that that he he couldn't he couldn't do the act for the job he had to be given an when the major life activity under consideration is the ability to perform manual the impairment of that ability must and so on and so forth and your argument to the jury was that is the major life activity that said issue here and that's what you should focus on and you're saying well because of the prior instructions major like activities or the normal activities and so on which includes working right so they knew that there was a broader  concept but work as a major you were complaining because work is a major life activity was jus broad did went beyond the reason it doesn't work eighteen says that essentially he cannot get a job across a spot broad spectrum of major life active any slash work and he could get a job so what the what the macdill and the pattern jury instructions for the ninth circuit say they say that the the second one should be given which is the  major life activity of doing something and that walking being able to walk being able to climb a ladder if they cannot do that then that's enough to create a disability even in the pattern jury instructions under their comment they say that those two should not be given together those durian struction and we argued that but the district court yard to thirty responded to city your response they said as far as the plaintiff's concerned to the extent that the plan is theory is that we are not operating on that they're referring to the work that the major life activity is was working so much as tasks manuals task that you are free in your closing argument to point the jury to that instruction and let the jury know what your theory is did you have any problem that you jack to that i did object to it because there were two jury instructions we argued in separate motion we pled it and when all the the only evidence that was in that we had brought out was his ability to work on ships united states ships mean we had no choice because we had to jury instructions we had we had brought forth evidence of the major life activity manual tasks that's how we played the case we had and there's another issue too that i want to get to as well important we but we did not we were not prepared to have to argue the as or issue at the time we tried the mcdonald's he could do those things but he worked on a ship loading ships for several years he made good money doing that then the doctor gave him an unknown he had to have an m r i he had a torn ligament and he supposed to get less work i need to go into a second i impairment that substantially limits one or more of the major life activities of such individual and then it lists who gives a laundry list of the types of major like it life activities that might qualify and they include things such as walking sleeping seeing hearing and among this laundry list are two that are important in this case one of which is manual tasks and one of which is working now importantly though both the jury instructions and the verdict form are very clear that plaintiffs only have to prove one or more of these limitations and i think what carla hall is trying to say is that somehow by instructing on the definition by giving definitions to manual tasks and working bowls that there's a risk the jury only considered working the sided that mr karr bohol was not limited in his ability to work as defined under the da and then didn't even consider the possibility that carbo hamada van limited under the definition of manual tasks and if you look at the instructions and the verdict form there's simply no risk that the jury did that because counsel by the way plaintiff counsel wasn't as clear about this in his closing argument but defense counsel was very clear to tell the jury that you have to first look at manual tasks and consider that i forget the order in which he did which she did it but  very clear that you have to look at both it is you limited in his ability to work or is he limited in his ability to mangle pass and if they prove either one of those then he's disabled under the law but defining working there's no risk that simply including instruction number eighteen would have risked the jury just stopping and saying well you can't he's not limited in the major life activity of working and so we'll just check no and and the case has no no  reason to believe that and i think that mr karr was the counsel's argument before this court illustrates just why the working definition was necessary in this case because in the early part of his argument he said well mr carvalho wasn't able to work at this job he wasn't able to work on the stairs and that was the theme of their case is that he couldn't work on the stairs he couldn't work at this particular aspect of one particular aspect of this job and so there's a risk if the jury just sees this laundry list of things in major life activities including instruction number fifteen and it includes working without a definition of what working means under the statute they might say well he can't work one aspect of this job and therefore he's disabled but in fact that would be an iranian interpretation of the law because the law requires in order to be disabled under the major life activity of working you have to be precluded from working a broad range of jobs so that's why defense counsel asked for this instruction is to is to make sure that the jury understood when mr karr the host counsel got up and said well he can't work he can't work on the stairs can't work on this aspect of pride of his job at pride we want to tell the jury maybe that's the case but that doesn't make him disabled under the definition of working as stated in the undisputed well number fifteen and number eighteen all of these were actually included in the initial joint jury instructions that were proposed by both parties but then toward the end of the case right when it came time to basically settle mr gene together what the commentary subject suggests if you read it carefully is that working from the plaintiff's perspective working should be a last ditch effort to prove disability because there are some problems with it but it doesn't preclude giving working in order to ensure as in our case that the jury is not confused in thinking working is more narrow than it than it actually is not sure that that made sense but so there are some problems with the definition of that he's focused on because he continued if you look at the transcripts of the trial he repeatedly are used to the jury and makes and cobble pacifies repeatedly i'm unable to work on the ladders and so what's working is included in structure number fifteen well then you've got to tell the jury what that means or else there's a risk that the jury will say well he can't work on the latter so he must be according to your instruction fifteen disable from working it's the the district court did exactly what this court in gilchrist told it to do which is this is a notification a violation letter it's not per se admissible you have to weigh the probative value against the possible prejudice here the probe a value was slight and the prejudice the possible prejudice of gilchrist even noted that the jury would just defer to the conclusions of the agency is substantial p letter said about mr carville's disability is that he had one they didn't explain how they re second clues and what evidence there was of that and so the only thing the jury could have looked at that letter for with regard to mr carville his disability would be to say well they concluded it we must to which would be an improper inference so there's really no harm in excluding it and again the the other testimony of the other two witnesses and  of discretion standard i'll point out the miss vasquez had nothing to say with regard to miss mr karr has disability she disclaimed any knowledge whatsoever of his need condition so the exclusion of her at the witness that wasn't disclosed it in as impeachment evidence and the district court it excluded on numerous grounds all of which we believe are proper and even if it was some sort of abuse of discretion it could have been prejudicial because miss lynch had nothing to say about mr carville's disabilit reluctance to define major life activities to include working and has suggested that working be viewed as a residual of life activity considered as a last resort only earlier emphasized if and it been individual is not substantially limited with respect to any other major so i and but i need my interpretation of that is that the court or that dessert and jury instructions should have been in there with respect to the other issues there were there were witnesses that were mounted to come in from the e e o c we received there a copy of the e e o c and determination which there was also a full investigation that counsel surely you can understand why under think it could have been done in such a way that the people who did the investigation could have testified and not shown knowledge absence of mistake motive planning preparation identity intent and it would tell the jury that everything we tried was correct and we only got that report shortly to couple days maybe a week before we went to trial and