MEMORANDUM **
Chevron U.S.A., Inc., and Chevron Transport Corporation, Ltd. (collectively, Chevron) appeal from the district court’s judgment following a jury verdict in favor of Peake, a former Chevron employee. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.
I
Chevron argues that the district court improperly excluded evidence concerning Peake’s use of alcohol and non-prescription drugs. The excluded evidence included Riley’s notes, which indicate that Peake admitted having used alcohol and cocaine in the year prior to August 18, 2000, as well as Peake’s wife’s declaration stating that Peake “abuses alcohol and ... other substances.” We review a district court’s decision to exclude evidence as irrelevant or inflammatory for an abuse of discretion. See Obrey v. Johnson, 400 F.3d 691, 694 (9th Cir.2005). Except as otherwise provided, “[a]ll relevant evidence is admissible” and “[ejvidence which is not relevant is not admissible.” Fed.R.Evid. 402.
A
The excluded evidence was relevant to Peake’s negligence, unseaworthiness, and breach-of-contract claims. With respect to both his negligence and unseaworthiness claims, Peake was required to establish causation. See Ribitzki v. Canmar Reading & Bates, Ltd. P’ship, 111 F.3d 658, 662 & 664 (9th Cir.1997) (as amended). Evidence of Peake’s work absences after the date of the alleged accident tended to confirm Peake’s testimony that the accident caused him injury. The excluded evidence, on the other hand, suggests an explanation for the absences that does not point in the direction of Chevron’s negligence or the ship’s unseaworthiness. The excluded evidence was therefore relevant to both the negligence and unseaworthiness claims.
Neither the notes nor the declaration state that Peake missed work after the date of the alleged injury as a result of alcohol or illegal drug use, but that is not the test. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401 (emphasis added); see Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 529 (9th Cir.1986). The notes indicate that Peake reported that his illegal drug use occurred only a few times. But a jury could draw the reasonable inference that Peake under-reported his behavior.
For Peake to have prevailed on his breach-of-contract claim, the jury must have found that Chevron did not condition the Return to Work Agreement (Agreement) on Peake abstaining from taking prescription medications. See Cal. Civ. Code § 1636 (“A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting....”). Evidence that Chevron was aware of Peake’s illegal drug [683] and alcohol use at the time the Agreement was entered would make it more probable that Chevron required the drastic condition and that Peake agreed to it. Riley’s and Peake’s testimony on this issue was thus relevant to the contract claim.
B
Peake has not shown that there would have been unfair prejudice arising from the admission of the excluded evidence. See Fed.R.Evid. 403. Peake contends that admission of this evidence would have been unfair because the evidence concerned illegal acts. Prejudice, however, is unfair only when it is based on something other than the persuasive weight of the evidence. See United States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir.2003).
Peake also argues that the admission of either his wife’s declaration or her testimony would have given rise to a prejudicial sideshow, but Peake provides no details as to how this sideshow might have come about. In any case, it is possible that if Peake’s wife had testified to his illegal drug and alcohol use, then Peake might have tried to impeach her testimony by suggesting that she had an affair with a Chevron executive. If this “sideshow” would have impaired the fundamental fairness of the proceedings — and we cannot see how it would — the district court might have been within its discretion to bar the wife’s testimony. Furthermore, this possible sideshow does not explain or excuse the district court’s decision to keep out Riley’s or Peake’s testimony.
In our view, the danger of unfair prejudice did not substantially outweigh the probative value of the excluded evidence. The district court thus abused its discretion by excluding that evidence.
C
There is prejudice unless we conclude that the verdict is more probably than not untainted by the error. See Obrey, 400 F.3d at 699-700. Peake argues that the district court’s exclusion of the evidence was harmless because Chevron was able to introduce testimony concerning Peake’s use of pain and other prescription medications, his wife’s use of medications, his “personal issues,” as well as evidence that he showed up intoxicated in an emergency room more than a year after he was fired. For the very reasons the excluded evidence was relevant in the first instance, however, the evidence was not interchangeable with evidence of prescription medication use and a single alcoholic incident. Because Peake has not shown that the district court’s abuse of discretion did not result in prejudice, we must reverse the district court’s judgment.
II
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MEMORANDUM **
Chevron U.S.A., Inc., and Chevron Transport Corporation, Ltd. (collectively, Chevron) appeal from the district court’s judgment following a jury verdict in favor of Peake, a former Chevron employee. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.
I
Chevron argues that the district court improperly excluded evidence concerning Peake’s use of alcohol and non-prescription drugs. The excluded evidence included Riley’s notes, which indicate that Peake admitted having used alcohol and cocaine in the year prior to August 18, 2000, as well as Peake’s wife’s declaration stating that Peake “abuses alcohol and ... other substances.” We review a district court’s decision to exclude evidence as irrelevant or inflammatory for an abuse of discretion. See Obrey v. Johnson, 400 F.3d 691, 694 (9th Cir.2005). Except as otherwise provided, “[a]ll relevant evidence is admissible” and “[ejvidence which is not relevant is not admissible.” Fed.R.Evid. 402.
A
The excluded evidence was relevant to Peake’s negligence, unseaworthiness, and breach-of-contract claims. With respect to both his negligence and unseaworthiness claims, Peake was required to establish causation. See Ribitzki v. Canmar Reading & Bates, Ltd. P’ship, 111 F.3d 658, 662 & 664 (9th Cir.1997) (as amended). Evidence of Peake’s work absences after the date of the alleged accident tended to confirm Peake’s testimony that the accident caused him injury. The excluded evidence, on the other hand, suggests an explanation for the absences that does not point in the direction of Chevron’s negligence or the ship’s unseaworthiness. The excluded evidence was therefore relevant to both the negligence and unseaworthiness claims.
Neither the notes nor the declaration state that Peake missed work after the date of the alleged injury as a result of alcohol or illegal drug use, but that is not the test. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401 (emphasis added); see Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 529 (9th Cir.1986). The notes indicate that Peake reported that his illegal drug use occurred only a few times. But a jury could draw the reasonable inference that Peake under-reported his behavior.
For Peake to have prevailed on his breach-of-contract claim, the jury must have found that Chevron did not condition the Return to Work Agreement (Agreement) on Peake abstaining from taking prescription medications. See Cal. Civ. Code § 1636 (“A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting....”). Evidence that Chevron was aware of Peake’s illegal drug [683] and alcohol use at the time the Agreement was entered would make it more probable that Chevron required the drastic condition and that Peake agreed to it. Riley’s and Peake’s testimony on this issue was thus relevant to the contract claim.
B
Peake has not shown that there would have been unfair prejudice arising from the admission of the excluded evidence. See Fed.R.Evid. 403. Peake contends that admission of this evidence would have been unfair because the evidence concerned illegal acts. Prejudice, however, is unfair only when it is based on something other than the persuasive weight of the evidence. See United States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir.2003).
Peake also argues that the admission of either his wife’s declaration or her testimony would have given rise to a prejudicial sideshow, but Peake provides no details as to how this sideshow might have come about. In any case, it is possible that if Peake’s wife had testified to his illegal drug and alcohol use, then Peake might have tried to impeach her testimony by suggesting that she had an affair with a Chevron executive. If this “sideshow” would have impaired the fundamental fairness of the proceedings — and we cannot see how it would — the district court might have been within its discretion to bar the wife’s testimony. Furthermore, this possible sideshow does not explain or excuse the district court’s decision to keep out Riley’s or Peake’s testimony.
In our view, the danger of unfair prejudice did not substantially outweigh the probative value of the excluded evidence. The district court thus abused its discretion by excluding that evidence.
C
There is prejudice unless we conclude that the verdict is more probably than not untainted by the error. See Obrey, 400 F.3d at 699-700. Peake argues that the district court’s exclusion of the evidence was harmless because Chevron was able to introduce testimony concerning Peake’s use of pain and other prescription medications, his wife’s use of medications, his “personal issues,” as well as evidence that he showed up intoxicated in an emergency room more than a year after he was fired. For the very reasons the excluded evidence was relevant in the first instance, however, the evidence was not interchangeable with evidence of prescription medication use and a single alcoholic incident. Because Peake has not shown that the district court’s abuse of discretion did not result in prejudice, we must reverse the district court’s judgment.
II
Peake argues that even if the district court abused its discretion by excluding the illegal drug and alcohol evidence on either relevancy or unfair prejudice grounds, thereby prejudicing the verdict, the evidence was otherwise inadmissible. First, Peake asserts that his statements to Riley concerning his use of non-prescription drugs and alcohol are privileged. Confidential communications between a licensed social worker engaged in psychotherapy are privileged under the federal psychotherapist-patient privilege. See Oleszko v. State Comp. Ins. Fund, 243 F.3d 1154, 1156-57 (9th Cir.2001). The burden of proving that the privilege applies is placed upon the party asserting the privilege. Cf. United States v. Landof, 591 F.2d 36, 38 (9th Cir.1978) (so allocating the burden with respect to the assertion of the attorney-client privilege). Because Peake asserts claims that place at issue the rea[684] son for his medical treatment, he has waived the privilege with respect to any statements he made to Riley concerning his need for that treatment, including those statements admitting to his use of non-prescription drugs and alcohol. Cf. Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir.2003) (“[PJarties in litigation may not abuse the [attorney-client] privilege by asserting claims the opposing party cannot adequately dispute unless it has access to the privileged materials. The party asserting the claim is said to have implicitly waived the privilege”).
Second, Peake contends that his wife’s declaration is inadmissible hearsay. Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). “[H]earsay is inadmissible unless it is defined as non-hearsay ... or falls within a hearsay exception....” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 (9th Cir.2002). If Chevron had offered the declaration as evidence that Peake used nonprescription drugs and alcohol, that evidence may have constituted inadmissible hearsay. If Chevron had called Peake’s wife as a witness, however, the declaration may have been admissible for impeachment purposes as a prior inconsistent statement or possibly for another purpose. See United States v. Bao, 189 F.3d 860, 865-66 (9th Cir.1999). Therefore, we may not hold that the declaration is necessarily inadmissible hearsay.
Ill
Because we REVERSE and REMAND for a new trial consistent with this memorandum disposition, we need not address the parties’ arguments concerning trial misconduct, the jury instructions, the district court’s imposition of time limits on each party’s direct and cross-examination, or the district court’s judgment vacating the jury’s award of damages on the breach-of-contract claim.