in the marine the three issues i'd like to discuss or the jury's finding related to the a pelleas affirmative defense based upon the macor been case  verdict can be addressed because of the plain error involved in the jury's finding this was an affirmative defense and giving the necessary deference to the jury's finding it can still be examined because to even address something in this context that's not particular that's not specifically preserved so do you have anything i know we've had some cases where we've said well if we did look at plain area and still lose but do we have fact that the court has examined the corporon scenario in multiple occasions why is this case different from jouster some of the other ones that are cited by both parties in this case and i think the particularly unique issue here that i have not seen addressed by th circuit is that what we have here is a prior undisclosed medical fact where the plaintiff had prior complaints of back soreness he sought medical treatment for that in two thousand and eleven and intervening between that time and his an application for employment he sought other employment where he was sent for an m r i which was reviewed and noted as being normal and he was can clear for full duty he also applied with the coast guard first coast guard license and he was cleared for that and so what we have here is a circumstance different than joust different from brown different from a corp and where there was an undisclosed medical fact  been disclosed that he had a prior problem that was something that we do further inquiry on in their further inquiry would be to find out whether or not he had an m r i or a clearance from his doctor in here we have that in the interview time and so that's what's about this case from other cases that the circuit has examined and i think that because there was no evidence put on that he would not have been hired with this clear him arai and that he never missed work he never had a positive in more i prior to this incident and he never failed the physical this is a situation where the affirmative defense was not supported by the evidence and the jury's finding was plain error and so we asked for the purposes of of that was correct to say kind of was there an accident meaning did something happen and the jury said no would there even be a need to reach the mccormack defense because if nothing happened to him why are they paying me in a secure if i understand the question correctly you're asking if there was the first question of whether an accident happened in that condition all the subsequent questions well i'm asking you i mean if nothing happened to him maintenance and cure is a no fault respect to the maintenance and cure claim as long as his injury or illness arises in the service of the vessel which is on the based upon the record of trial he reported the incident reported back pain reported what the the defendant described seasickness and he was  basket transferred off this vessel and then went ashore and sent for medical treatment and a doctor that his employer sent him to who ultimately determined he needed up dural sterile injections and had a herniated disc and so there was  illness or injury that a rose during his service of the vessel when it came to the iraq atory the court chose to balkanize the question two parts and in addition to doing that they conditioned each question after the first meaning if they didn't find that there was a particular pinpoint accident they didn't answer any of the other questions and here the evidence was during the voyage initially my clients to both sarge was at the helm and there was rough seas and he went to open waters and determine that he believes it was too dangerous he reported this to the primary captain captain nelson captain nelson agreed with them at that point they went to shallow waters at which point he was off shift and he was around the vessel in different areas on video and then ultimately went to his bunk rooms the confusion occurred with the jury in that they are part to find an accident  which has a connotation of a singular event some moment in time when in reality what occurred and what was reported is that he was in his bunker and being tossed around for a period of about four hours when he awoke and came up to the home he was seasick and he was having back pain and so there was no incident that he could point to and counsel for apparently did an excellent job trying to exploit that and jury charge and tried to make it look like his report to the coast guar reported back pain was inconsistent with the video or his inability to say it was this hour when my back pain started and we were at this point in the water which he simply could not do and so i think because the questions were segment d as opposed to what i believe contemplated in the pattern a pattern for circuit charge and in the charge we submitted to the court it caused jury confusion and the remedy would be remained for a new trial on the negligence film that he purportedly examined and viewed himself and i want to make clear that there's a difference between looking at the m r i report and looking at the film and i think juries appreciate that as do experts when they're examining a case and what occurred here was dr appel bomb presented testimony where he did a comparison between a prior film and the one following this incident he looked that the pre employment physical from parker drilling which on the report said no abnormalities cleared for full duty and compared it to the subsequent m r i following this incident the problem was it was never disclose or provided to plaintiffs counsel despite mean possession of defense counsel throughout the discovery process it was obtained by the police council and provide problem and he says there are prior m r i is worse than the subsequent how could you not think he must be hooking at a film because a report you said didn't find a problem understood and that's why we were confused when i had never please the court has to pop for descendant at billy's share me marine l l c when you look at the material to the employer's decision to hire there are two cases speak directly to that here in the circuit the first physical ability to perform his duties renders the information material for the purpose of this analysis so that was it the analysis on the second prong material to the decision to hire was did they ask the question request of disclosure been made concealment will not bore the seaman's recovery of maintenance and care that's a lot different then she asked the question and so the question becomes what at what evidence do you assess when you make this analysis on material to the decision to hide and the the brown gives the most simple did you ask the question what is happening what i've see to be happening in the district court says they've gone to this well you would hire them anyway defense of it which requires number one everything to start off with the hypothetical question well if answered yes what would have happened and then what once once you start down that line you're into nothing but speculation and conjecture because obviously it never happened here's a well what if he does answer not be hot we will wait to get the proper medical records and check and see from the that physician is there any work restrictions are there any workers trick since has he been released of course that never happened if those come back and the doctor releases him and he's full duty then yes i'll go ahead and clear now after you get the initial reaction from the company which is company wide and is solid evidence because in this case share me marine they rely on the post office medical examiner to determine whether or not he's cleared or not cleared to do so any yes answer that person is not cleared for d so the hiring process is absolutely prevented and depending on what was old come back it stopped now that one of the it's one of the other issues in this case is he had a two thousand and eleven visit to the doctor's arsenal and those those records were so there's two separate indications of prognosis so the question becomes on the analysis if the employer shows ok i get a yes answer something happens i don't get back the post off medical examinations got to yes on it i just stick it in the guy's personal file and put him on a book if the employer can chill through and see its procedures or through its practice that take this post off or a medical examination means something three since i have another client they have a risk management department every post off a medical examination is examined by the people in the post in the risk department because even if the applicant answers no to everything hypotheses and all that you want to be heard on whether we should even be considering the sufficiency of the evidence from a corporate defense because you didn't really argue it but maybe in a thousand cases pretty clear and it's kind of a hard stop there we can't consider preserved i do agree with the for maybe this is the biggest issue all in the case and but it's not a big issue whether or not we have the power to address as a question but on that word a fundamental like if we don't have power to do some we it is a objective standard not a subjective state because if we let every seaman come in and say oh yeah they asked the question but i didn't think it meant i thought it meant this rather than that it turns in to a subjective which would be this way from a corporate offense the same thing is happening with problem number two but even if even if the court dismisses the appeal because it wasn't preserved you can still speak to what is the proper evidence or analysis on the second for that i would ask that he's arguing we do have the power on planar view to be fair to consider you know the arguments being made here he's saying on planar of you we do have the power so i want to be fair to that's the argument that's for the witnesses supposed to testify and the reports of the m r i was contained within the park of the certified personnel flow of must both sides when he worked at parker drilling company it's a page fifty four of seventy two that made up exhibit twenty one at trial which was admitted in evidence now that was turned over to players counsel january fifth twenty fifteen in the course of discovery so they had to report since more than a year before trial  it's not the reports and a lot of cases i go out and get the film myself because it what is it separate apartments they have a medical records part of they have radiology department so you never going to film from the medical record  you always have to go back to the radiology department say hey we have this report of a film would you please send us to still a lot of actors don't really care about the report they want to see the film direct but you've been out there the whole time and if i went out and got it they could go out so i mean there's a there's a it wasn't in your position so it was a third party you wouldn't got it then the correct was a question of didn't accident happen there's nothing at all wrong with that because the he in a lot of cases there's no question an accident happened it's witnessed you see it the guy and in this case it was on with just what do you think the jury was confused about the term an accident to encompass four hours of being knocked about versus like a car running into you which is sort of an accident this particular trip from zero six hundred hours to about fifteen hundred hours they're traveling out to rick to they have a plane it comes off duty at noon at around three would stand by at a platform titles to the platform they're hanging off their way the captain gets a call a while for fifteen pm from rig to twenty nine captain looks at the weather says i think it's safe to go i'm going to go they banged around the whole time he's got one thing his complaint he yes  was really seasick vomiting a lot and i noticed my back was hurt he doesn't mention anything about it tossed around his book there's a location of accident there's a specific way to do its part to try that he was in his bunk after he of what i remember from close but it was a discrete issue that episode as opposed to four hours of being tossed around sort of accumulating on your back correct and then the seasickness if he had been a title i  if he's trying to defend the maintenance and cure point on the sea sickness that would only get him a day that winning or two that wouldn't get him months and months of that's the back the back is the cut is what would get maintenance and cure for his deposition that the accident happened approximately one thirty two thirty before they got to the classroom and toddles so there was this putting times aside there was this exhibit going back to shallow  to try to turn this into a wall he reported a lot of all the accidents a different times come to trial and say nope i got thrown up thrown down that's what i heard a back and we produced video we have wheel house video on back that video we six times the video didn't show any business at all other times when he said that the seas were twelve to fourteen feet up in his report he said of fourteen hundred hours the seas were twelve to fourteen feet pull up the back flops and he's not holding on to anything and my question to him at that time great you say this twelve to fourteen foot seas i'm six seven show me a wave out there this to me and we could all will do the camera distorts over the so the whole his whole story all run away from the conditions to the time his accident happened to wit none of it made any sense and the but i think the biggest thing is we have a wheel house video and some noon to roughly midnight briefly just to address two issues that council raised looking at the brown v parker drilling analysis and i'm a corporate doctor and it's critical to look at the fact that there has to be a fair disclosure medical facts and what counsel focused on was a yes or no questionnaire and had the medical facts been disclosed in this case it wouldn't have been a yes or no about the prior back pain from two thousand and eleven by itself it would be the prior medical facts which include the intervening m r i which cleared him full duty and the report read that it was normal i would couple that with a pelleas own expert testimony from dr appel bomb who says looking at the m r i is that neither of them are clinically significant and the case application where there was no evidence of a preexisting disability that would render the individual susceptible to future injuries and here we have a pelleas own expert saying the prior m r i from parker drilling's application process was clear and did not render him susceptible to future injuries and so there wasn't an undisclosed preexisting disability there was years prior back pain noted he went and received medical treatment and intervening clearance through an m r i for the same type of work and ultimately he was sent by share me to their own nurse practitioner who performed his own range of motion tests physical examination and when he was  question he was asked do you make your determination based upon the question aaron his answer was no it's coupled with my physical examination and he was asked if you were made aware of the intervening him arrive with that clear i'm through your physical process and  testified yes and yes those are hypotheticals but if you're going to look at the medical facts that were not this close you can't just pick the medical fact from two thousand and eleven you have to pick everything that was not disclose including his separate findings where the allegation was on or about the date of this incident he was traveling rusty sees a stop look at the already was ignored on multiple occasions and he reported back pain when he came back upstairs he could not pinpoint admittedly when this happened on the voyage and at what time and he had stories about what he himself on in a dark bunker room but i think that that was confusing him misled the jury in this case do you think if the jury found he had hit something that they would have answered the question no but also a time of day was i think because of the word accident in the way it was phrased the jury thought that they were quire to find something more in closing i would knowledge that i argued that there was an accident and the accident was what was the in the bunkroom he got tossed around it wasn't one single thing it hurt my back it was more to full impact in the bunker room before coming back