good morning maple leaves the court case and amber on behalf of the appellant the supreme court noted in merchant mutual the bearing that the tendency of an instruction not supported by evidence often is to mislead the jury by withdrawing their attention from legitimate points involved in the issue this is precisely what happened in this case very closing arguments the district of columbia rather requested some instruction to the the district then argue to the jury that mr lee's condition is corrected by medication and meals three meals a day plus snacks thus the district proclaimed in assessing whether mr lee had a disability within the meaning of the eight the jury should answer no because mr lee's diabetes was in control was controllable and therefore did not substantially limit his major life economy he has been able to carry out the duties as a correction officer so i'm i'm i'm not reading i just have some notes so based upon that the jury found that mr lee was not substantially limited in a major life activity but the major life activity that this trip pointed that them to in the major life activity was working but that was not the issue before the jury the major life activity that was presented to the jury to the court was a major life the limitation right the way to address the impairment is through his dive times kind of confused by that i agree that there could have been several different ways your life activities that were argued such as working staying awake taffy the plaintiff's treat treatment regimen allowed him to control his diabetes and generally that involves medication exercise and a pretty regimented eating five the the problem with the sun instruction was that it tended to or not tended to it it's said that if if the major life activity can be mitigated with certain measures then there's no disability and here the major life activity that was at issue was eating and to say that eating was mitigated by eating it circular it doesn't sense mr lee needed to eat at certain times in addition to other things and and the problem here is that the district terminated him for allegedly falling asleep on the job on  day when it was a stablish that he did not have the opportunity and so i think what the jury the jury's determination was that mr lee was able to do his job if he ate and if he could do his job if he interpret it sudden interpret it a person with a substantial limitation on the eating and and found that where the the treatment regimen itself can be what substantially limits a major life activity so what the court and caffie found based upon an analysis of sutton was that although the plaintiff's treatment regimen allowed him to control the diabetes the regiment itself substantially limited the major life activity with you one and i think the evidence in the record established that he did not have all of his meals on that day and that's a jury question and you're climbing a really steep hill to try and convince us to overturn the jury's decision on whether or not there was s evidence that he got the mules which is what the fight was about the jury instruction below and what were your theory was below that is he really wasn't getting the meals that he needed supreme court has said that can be a mitigating factor so the plate was whether he them together they are complete if you start the second by saying whether or not you got the meals is not the question they're completely different and that's what you do regardless of whether he has a regular meals requirement of his real schedule was itself a substantial limitation completely different than the period below what the jury had was a very typical jury question they decided whether you and i would agree with their right or wrong they decided they could listen to the evidence and say he was able to use me was  stop them but i think yeah i think that the instruction was misleading and that and i don't i don't think it's a different argument i i apologize but i do have to apologize i just want you to i'm giving you a shot  a meal or snack it's an eight hour shift runs i did not thought i thought i thought the testimony was that he had meals as he always did but he didn't have meals during work right he had to arrange the schedule no meals during work but that he would snack would have dire consequences to him and this case i thought was about missing the snack but actually isn't this case really about what judge sober mr yes actually very discrete issue here and that is  factual issues there if in the records there factual basis to support the jury instruction and the jury instruction is simply following certain records nothing odd about the jury instruction you may disagree with sudden congress didn't like certain so they they had their way with it but but under certain the question we have to ask in answering whether there's a disability is can the did in the impairment be addressed and as i understand it the only question on appeal whether what was there anything in the record dealing with the mitigation of the impairment or anything at all i don't believe there was i believe that if the impairment was his ability to work and you're arguing the mitigating measure would be if he ate at regular times he could work then yes there would be evidence on the record but here the limitation is the ability to eat and the regimen itself is what was the substantial limitation according to a certain regimen you will suffer dire consequences and what makes this case different from the cases the relied upon by the government and what actually there was evidence in the record mostly independent question  group but that's not the issue that they ring or that he forgot his snack bars but he forgot the snack and then call to ask for relief for so he could get a snack and eat and the district would argue that he fell asleep there's a difference of there's not a jury question that whether or not he fell asleep or whether or not he was woozy yes that's a jury question but whether or not there was no evidence to suggest that if mr lee did not eat his snacks or did not have a meal he would not suffer dire consequences and that's what the question there's a threshold question we're dealing with here writings that is whether he's covered by the act where he's disabled  right and something tells us at least that that period of time how we answer that question correct correct and that question is if there are ways to mitigate the impairment sudden tells us you're not disabled correct and as i understand that was the question that that was that was what framed the jury instruction right now what's wrong with that this is the wall even if the statement of law think because it implies that the treatment regimen itself that the meal plans having to eat at certain times and space and things apart i mean it takes medication in the exercise it's implying that that in of itself is not a substantial time i must admit i don't know what there was a a prior instruction and then the district asked for this instruction after the close of trial for the first time i must admit i don't know the answer but i wasn't the attorney arguing the case so i don't know but i'm sure it's on the record and i can look for that but i don't i don't know the answer to that question can you do further questions will give you back a couple of the thank you from the district of that this was a jury question whether the plaintiff was disabled and that plaintiff had the burden of proof on this issue and that in order for the jury to apply the evidence that it heard regarding indicated measures didn't does justice o'connor point out that there was a balancing test as to whether the mitigating factors were of such a nature as to still constitute a disability well that the instruction that the court be so significant that the disability remains and i don't i don't think that that is inconsistent at all with the instruction that or it was conceded that the instruction was a correct statement while there  merits i'm it was cracked stating the law that was evidence or support for the instruction of the testimony was that if mr we ate his regular meals at his diabetes the under control there's also testimony that he did it is regular meals on the day in question the jury this is a classic jury question the jury was not required to credit mr lee's testimony of the testimony of its wife his own doctor's testimony the interview did not even support mr lee's position in the there was certainly evidence in the record just to address something that plaintiff's counsel said there certainly was evidence in the record that he did have a males the three males that he was invited to have that they've seen in the show  that's correct your honor in fact the jury could have found that diabetes had nothing to do with mr levy in asleep or allegedly asleep at the night in question that is  lee's claim that he wasn't asleep at all his supervisor said he did find him asleep so there you have that conflict in the evidence the jury resolves and the jury could have concluded that this supervisor  point here is that the the regimen itself is what substantially limited the eating and to say that it could be mitigated by the regimen this court i would think to find another way to find that there's no limitation on eating and that it has to be work or something of that nature that's limited i think would be at odds with this court's privatisation in capturing thank you thanks very much the case