this court three issues are before you for consideration one is maintenance and cure is limited by mcclaren the nd is the jones act negligence and i threw in the seaworthiness is kind of a combination and number three a motion to strike a portion of an expert witnesses testimony on future wages about all that my opponent today agree on is the court standard of review we believe the summary judgment on my innocent cure is considered under the de novo standard a light most favorable and with all reasonable doubt resolved to the knob mover the same with the  judgment on jones acting on seaworthiness although there's a slight change in on c and on any motion to strike it would be under the abuse of discretion stand to began with regard to the motion to strike and i will address most of this in my brief and be very brief here because some of the issues really relate as i appropriate them in a more important fashion to the other two we believe that there was a motion to strike that at the st time brought to our attention the issue relative to of our experts and it was obviously incorrect calculation it was based on facts that he did not have they were presented and it was resolved almost immediately in a timely  fashion we requested a opportunity to correct it it was time late the judge denied it we requested it again the judge denied it requested a rd time she denied it we believe that this was an  as it turned out i believe it was timely but aside from that the judge on her own motion in terms of being able to further consider all of the motions before her continued our trial for thirty days so we think there was plenty of time to do this you know we ask is remand for an abuse of discretion and if it's permissible let me mr harrington so doctors for occasional back pain and that was a pediatrician of course the the pediatrician actually sent him to an orthopedist after an x ray was done a few months later and this was some seven years before this accident six and i have just made maybe seven out total all together before his application  ere was a clear x ray read as normal and that's going to be i think in paid eighty nine dollars no problems for his back for five and a half years of hard labor jobs surgery of forward slash injury all that he had ever been told was lumbago and the issues associated with any kind of anything more than that whatever that is  were is in fact something that was fully resolved with two subsequent x rays showing that there was no problem that was apparently st noticed by the pediatrician and we think misread because the quote of dr bennett who was the orthopedist fully qualified some four months later saying that he didn't expect that that to be something that would be there with a eighteen year old  man and tributed most of that to his overweight status so in addition when you start talking about whether there's an intentional concealment because i think that's something that the court should look at and recognize i think the way it was sent out is confusing and particularly to a what is called a functionally illiterate pediatrician again or whatever there are no prior accidents no prior lawsuits no prior visits to emergency rooms no prior visits a pediatrician for back playing rover six years so this is something the judge needs to look at to take the veracity of from the stand and not from some deposition that was not countered it was merely said as a discovery in the light most favorable to the non movement let's look at the facts he's climbing out of a bill to without the latter or assistance he's a three hundred dollars pal man squeezed into a tight hole obviously he was cleaning the village because of the requirement he'd been doing so for four or five days i think this was the th day has he gotten all the way up to crump and that was because of what he was told was and still of fuel oil builders are nasty dirty things if any of you have ever seen them out of i don't think any district court judge who would require an expert for us to testify as to that  four feet into the access hole according to him and then fell when his foot slipped on a round elbow shaped pipe so as he's climbing out he's trying to come out the question is whether he had oil or some grease on his feet possibly he did possibly he tried to wipe it off possibly he could or couldn't help but the real answer is is that there is no way for him to get out because what he's got in it's really easy to look at this i think page seven of the brief of proposition shows you the hole and shows you the pipe the only way that he can put his three hundred dollars pound frame is to put one foot on that pipe it's about a two inch round piece of i can't tell if it's plastic or metal but in that circumstance you can only put a part of his foot on it and it is around surface this is not what any st in designing in grass an eeg rest interior to a vessel would allow you have to have a formal ladder with steps or  worst you have to have something that would give us some help on nonstick surface so the comparison with the builds cleaning the harbor and the other issues of course is there's an alternative way of doing this what you have is a situation where they did this once before in a heart her where the boat was at the dock not a rolling see anything else with help somebody could have lifted him out this did not happen the judge in this case created her own version of proof and said you know why can't you do this or that we think that that's not a an obligation of the  facts were in fact i probably would have not let him do that in i would consider that fraud frankly there are two cases worthy of note one is josh worth nautical services believed before those things are very different here there is no fraudulent concealment there there is nothing in the light of the circumstances to relate to that or any of the other  cases so this was if you look at the actual issue that he had with regard to possible back injury to seven years ago totally resolved by an orthopedist and later read as normal one not one time not two times but two i'm sorry but two times the st time said something to look at the orthopedist said no that's and that's the him self despite his size caused his injury rather rather readily your honor he had no way to get out of the bill without putting himself at risk trying to get out with this piece of pipe and when he had it done before there was one gun a few months of fire where he had health of that person can pick and grab him and help him get out put some sort of fixed plate where he can have a opportunity to actually places but move up so how can that age how can we kind of draw all that and friends that he slept on oil when there's no evidence of oil on his shoes or on the pike at the time that he fell off well i think i think that you don't have to do that when you see that he's putting his foot on a slippery surface to begin with a round surface you can't have a any kind of stairwell or anything on a boat that allows you to use your foot in that system why should i do believe that there was probably oil present on his foot and the testimony i believe in his deposition shows that he couldn't even see the bottom of his seat because of his size and how it was pounded take themselves out there where they come in he said he said something like that and we need to clear that up at trial because in look at the arguments that are being maybe what mr jones is really test mr jones really arguing is that there was some sort of design defect issue with respect to height and how this building was constructed well that's a new argument that was not an argument that was raise before the district courts not an argument that was raised in the briefing what we do know from the facts is that there just is simply nothing other than speculation as to how this accident allegedly happen mr harrington testified when asked directly how did this accident occur he said i don't know and if you look at the facts which are uncontested in this respect you can't make the jump from purely there is a dispute which was an additive to with respect to these motions there's a dispute as to whether or not this accident happened because of the allegations about how he was caught how he possibly could even crawl under the pipe cleaner that said if you look at what he admits to in the statement of uncontested facts which the district court properly treated as uncontested in the stablished then you have a complete lack of causation evidence to satisfy his burden of proof with respect to the jones act whether it's a slight causation or with respect to all and see where in this claim proximate cause substantial fact this leads directly  resolve factual controversies and typically yes you resolve them in favor of the nonmoving party but only when there is an actual controversy we would submit that there isn't an actual controversy when you look at what the uncontested facts are you simply doesn't know how this accident or we're now here in front of this panel with arguments about well he may have could have slipped on this or there was a design putting aside whether or not those issues were waved because they were raised at the district court level we're still at a speculative so we're no further along in determining how this accident occurred then we were at the time the summary judgment were filed at the close of discovery at the time when mr harrington should have come forward with some evidence to show that he could at least shifting gears and let's talk about mccourt an issue because i think there are a couple things that we need to flush out and focus on the point was made that mr harrington is a functional illiterate respectfully that's a subject of arguments that i don't think was properly raised in front of the disparate court but nonetheless that goes into the subjective wrong which if you look at brown versus parker if you look at what sir d kay says about intervening that tensional misrepresentation you point it's a little odd to say isn't this a requirement of intentional concealment but we're not going to look into whether this person had that intent but right the law is what it is what it is and it's an argument that was raised from this report along the same grounds in the law is that you have to look at the fact you have to look at it with an on facts to whether or not there are physical is what wasn't in this case there was so you're dealing with concealment you know the plain fact is is that mr notable that argument mr harrington focuses on this general to this disease and whether or not it was accurately recorded or knowledge by dr bennett or the radiologist that took the x rays well the argument that's been presented before this panel is simply that it's the argument of counsel it's counsel's interpretation of what dr bennett allegedly might have or would have said about this record we don't know because dr bennett was not the booths there is no evidence with respect to injuries whether or not the strength of brown speaks to this as well states the fact that an employer asks specific medical question on an application and that the inquiry is rationally related to the applicant's physical to the extent that there is an issue it was not solely it's just a slight discrepancy with respect to the economic weight loss calculation was a discrepancy due to no one million one hundred thousand hours and it was based on information that was available at the time but just wasn't properly so it's not an issue of whether or not the expert had those facts he did he wrongly interpreted and supplementation is not the well you've come back after the fact and correct what was clearly an improper opinion based upon unreliable and insufficient facts and that was the case then you would sort of for the scheduling order an emotional lemony does not in all that one out of the window because you would always have an opportunity to say oh well when we come back and correct well it wasn't a matter of just simply misstating something it was purely an unreliable indian based upon incorrect facts so you have the wide discretion that the just reports provided they have the opportunity to opportunity to supplement the very last point that i may and i'll be glad to address if you have is that we know evidence that was submitted to the district court simply no evidence of minutes of th that there was an ongoing fuel spill that there was an ongoing unseaworthy condition he was performing he built a cleaning task that he does as part of his general  injury i happen to point out that he testified that he had only done this one time before months earlier at the dock with assistants that's just simply not true for the vessel fact that he had done it four times in the four days leading up to the that there's fuel or oil in the build doesn't mean that there's a spill or at least that's where the fuel and oil accumulates on the vessel it's supposed to sort of after the fact monday morning quarterback saying well we need assistance or you know you should in the back or been sent down there well those were decisions he made you never asked for assistance no one ever told him you got to go stand and milage no one ever said you otherwise all right thank you counsel and mr jones you get the last words well hopefully if you make it is concise is mr logan mr jones had nonskid on the back of the knocks and suggested that maybe sometimes grease from a cable over him would fall on a deck around bare what with no particular connection to the accident he just couldn't connect the dots in that case is really what it is it's not the case and mr hearing tunes facts mr harrington of course had been working  with mr wogan that he had been working to clean the bills for the prior four days of this this was the th day it was a very large spill we might have to look at that is a trial and have the judge determine credibility on that because he's absolutely correct the writ is easily found and we would accept that and agree with it as something that should have been cleaned up and it took a long time to clean it up i think in his deposition he says his accumulated only does that if there's a leak it's not a place to hold it out in the sure you the issue that we're really talking about here though with regard to the jones act and on see where the u s in the jones case and then looking at how accidents happen let's let's look st at the fact that there was no way to have in grass in the grass that's an absolute  interior to any any vessel anywhere any time there is a two ranch round a ninety degree elbow that you have to put one foot on to look at now the easy way to do this is to look at  but that is there and gives you a clear understanding of how your foot could slip off whether there was all or not but to suggest that if a guy's been  building that he got everything off to the point that there was absolutely nothing that extends credulity beyond belief you had to have something there on his foot and he couldn't see it at the time he says that so what we're really looking at is an engine oil spill that was on the th day of a clean up he had oil so pads he had oil rags his blue jeans turned black he was in the bills for goodness a mob a main engine he was in a rolling sea and he had done it successfully for four days so i guess i do admit to that and he was on a four foot drop down from his base elevation in the engine room the he had to step up either three feet or one foot it was very confusing as to where this pipe actually was and then it was almost impossible to keep him from slipping off whether greece was there or not and we think that it was because it's very clearly that's what he was there to clean up the grease it was probably on his feet he couldn't get off and couldn't see it at the time in any case what we have is a case that is not right for summary judged that case that credibility from the witness stand is what is needed the unassailable facts in this matter separate harrington from the cases cited by the plaintiff appellee there is no back injury ever if you based on the corrected information from seven years ago between the orthopedist that looked at it in disputed the initial revelation because there's no way that a guy with this kind of limited education is going to be able to look at all of these  issues and say oh yeah it was somebody said something but he was wrong because obviously dr bennett told him that was wrong he wanted to lose weight he gave him some physical therapy the prior bridge  's job was done at the at the dock without a rolling sea with a helper where he could help him up and help him back and he made it you know you can have it on scene where the condition and i lack of training