dissenting:

I respectfully dissent.

The majority opinion correctly recognizes that both this court and the district courts have viewed the admission of polygraph evidence with disfavor. United States v. Demma, 523 F.2d 981, 987 (9th Cir.1975) (en banc) noted that, “Our circuit has been inhospitable to contentions that a district court has abused its discretion in refusing to admit polygraphic evidence.” On the other hand, prior decisions of this court have also firmly established the district court’s broad discretion to admit or exclude polygraph evidence at trial. See, e.g., United States v. Givens, 767 F.2d 574, 585 (9th Cir.) (“broad discretion to include or exclude polygraph evidence”), cert. denied, — U.S.-, 106 S.Ct. 321 , 88 L.Ed.2d 304 (1985); United States v. Falsia, 724 F.2d 1339, 1341 (9th Cir.1983) (“The precedent is clear____ [Ajdmission or exclusion of the evidence is in the sound discretion of the district court.”); United States v. Ferris, 719 F.2d 1405, 1408 (9th Cir.1983) (“admission of polygraph testimony is within the discretion of the trial court”); United States v. Eden, 659 F.2d 1376, 1382 (9th Cir.1981) (“whether to allow polygraph evidence is clearly within the discretion of the trial court”), cert. denied, 455 U.S. 949 , 102 S.Ct. 1405 , 71 L.Ed.2d 663 (1982); United States v. Estrada-Lucas, 651 F.2d 1261, 1264-65 (9th Cir.1980) (admitted polygraph evidence so as not to deviate from the law of the case); United States v. McIntyre, *1399 582 F.2d 1221, 1226 (9th Cir.1978) (“wide discretion ... in admitting or excluding polygraphs”); United States v. Benveniste, 564 F.2d 335 , 339 n. 3 (9th Cir.1977) (“This is not to say that admission of such testimony would have been improper. At a new trial, admission of ... the polygraph results ... will again be within the discretion of the trial court.”) United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.) (“polygraph tests may be admissible”), cert. denied, 426 U.S. 923 , 96 S.Ct. 2631 , 49 L.Ed.2d 376 (1976); United States v. De-Betham, 470 F.2d 1367, 1368 (9th Cir.1972) (“We do not hold that poly graphic evidence is never admissible”), cert. denied, 412 U.S. 907 , 93 S.Ct. 2299 , 36 L.Ed.2d 972 (1973).

In my opinion the district court did not abuse its discretion in admitting the polygraph evidence. The court gave careful consideration to Brown’s motion to exclude the evidence, holding two hearings, considering numerous briefs, and receiving the testimony of five experienced expert polygraph witnesses — two on behalf of each of the parties, and one appointed by the court following the first hearing. The court relied heavily upon the court appointed expert, Alvin Burdick. Burdick advised the court:

and,

Three of the experts vouched for the reliability of Brown’s and Darcy’s polygraph results. All experts testified that, administered properly, polygraph results prove highly accurate. Accuracy estimates, as noted by the majority, range from 70% to 95%, most estimates fall within the high 80% bracket. 1 •

Introduction of the polygraph evidence at trial did not unduly infringe upon the jury’s role in determining credibility. Each expert was subject to cross-examination concerning his opinion. No expert testified that polygraph examinations were infallible. The trial record discloses disagreement between the qualified experts. The jury could either believe the testimony of the three experts finding the polygraphs reliable, or the testimony of the other two experts questioning reliability of the polygraphs in this ease. The jury was never confronted with an “all or nothing” choice. 2

Notably, the initial polygraph examinations of both Darcy and Brown were not administered in preparation for trial. *1400 Rather, the polygraph examinations formed part of the operative facts of this case. Darcy volunteered to take a polygraph test following his written report to Motorola on the May 15, 1980 meeting. Motorola then interviewed Brown and Fullam. Following its interview with Brown, Motorola arranged for Gilson to administer a polygraph examination. Motorola based its decision to terminate Brown on the results of both polygraph examinations. 3 As in Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.1983), cert. denied, — U.S. -, 105 S.Ct. 380 , 83 L.Ed.2d 315 (1984), and Smiddy v. Varney, 665 F.2d 261 (9th Cir.1981), cert. denied, 459 U.S. 829 , 103 S.Ct. 65 , 74 L.Ed.2d 66 (1982), 4 cited in the ' majority opinion, the polygraph examinations were administered prior to an event (Brown’s termination), the explanation of which was critical to this case. It is impossible without evidence of the taking of the polygraphs to place the statements of Darcy, Brown, and Fullam in proper perspective. Absent admission of the polygraph results, the jury would obtain a distorted and incomplete view of the parties’ conduct. Moreover, the results of the polygraph test administered to Darcy by Gilson provided probative evidence that Darcy believed his statement to be true, an essential element in defending Brown’s action for libel and slander. Thus, the polygraph examinations, in my opinion, became an inextricable part of the events forming the basis of Brown’s suit, and the district court did not abuse its discretion in admitting the polygraph evidence.

Nor do I believe that the court erred in refusing to instruct the jury that Darcy’s statements concerning the b,ar bill, Brown’s abusive manner, and Brown’s gambling debts provided independent grounds for recovery. As noted in the majority opinion, the defamatory nature of these remarks presents a question of state law reviewable de novo. Forsher v. Bugliosi, 26 Cal.3d 792, 803-05 , 163 Cal.Rptr. 628, 634-35 , 608 P.2d 716 (1980).

Corman v. Blanchard, 211 Cal.App.2d 126 , 27 Cal.Rptr. 327, 332 (1963) (emphasis added). See Selleck v. Globe Int’l, Inc., 166 Cal.App.3d 1123 , 212 Cal.Rptr. 838, 843-44 (1985). 5

Darcy’s statements must, thus, be viewed in their entirety. The gist of Brown’s claim is that Darcy falsely accused him of soliciting illegal payments. Each of Darcy’s statements was made to buttress that charge. Darcy noted the bar bill and the abusive language only to better describe the details of the May 15,1980 meeting. Darcy never stated that Brown was intoxicated. Brown, himself, admitted to drinking alcoholic beverages that evening. Likewise, the reference to Brown’s gambling debts tended to prove Brown’s motive for soliciting illegal payments. Viewed as a whole, Darcy’s statements with regard to the bar bill, abusive language, and gambling debts were merely collateral to and further supported Darcy’s accusation that Brown solicited an illegal payoff. The statements were not in and of themselves *1401 reasonably susceptible of defamatory meaning. 6

Appellees, additionally, contend that since Brown did not allege the defamatory nature of Darcy’s statement regarding the gambling debts in his amended complaint nor later in the pretrial order, the trial court did not abuse its discretion by excluding the statements as independent grounds for recovery. In accord with Fed.R.Civ.P. 16(e), the Ninth Circuit has upheld the finality of a pretrial order. “[A] party need offer no proof at trial as to matters agreed to in the order, nor may a party offer evidence or advance theories at the trial which are not included in the order or which contradict its terms.” United States v. First Nat’l Bank of Circle, 652 F.2d 882, 886 (9th Cir.1981). The falsity of Darcy’s remark concerning Brown’s gambling debts was not placed at issue. The pretrial order merely included as a question of fact whether Motorola believed that Brown’s gambling debts interfered with his ability to perform as an employee. 7 This question of fact was listed among other questions of fact which needed to be resolved in order to understand the events that took place before and after the May 15, 1980 meeting. Even liberally construed the pretrial order did not place at issue the defamatory nature of Darcy’s alleged remark concerning Brown’s gambling debts. The district court did not abuse its discretion in refusing to give the requested instruction.

I would affirm the judgment of the district court.

. Counsel laid an adequate foundation. In addition to testimony concerning the reliability of polygraphs in general, the experts testified that Cy Gilson was a qualified examiner, used a proper instrument, and administered an accepted zone of comparison test.

. In addition to the testimony of the five expert witnesses, either by deposition or at trial, 22 other witnesses testified at trial. The transcript consists of over 2,000 pages, of which approximately one-fourth consisted of the testimony of the polygraph experts. The district court observed: "The matter of the polygraphs on both sides ... was almost irrelevant in terms of reaching the decision that was reached.”

. Motorola also requested that Fullam submit to a polygraph examination. Faced with the decision to take a polygraph examination, Fullam resigned. Fullam died prior to trial.

. I recognize that these cases are factually distinguishable, but the polygraph evidence here, as in those cases, was an integral part of the facts which formed the basis of this action.

. Corman and Selleck dealt only with libel claims, while Brown asserts claims of both libel and slander.

. Moreover, Brown was permitted to argue to the jury that Darcy’s statements about Brown’s abusive manner, gambling debts, and the bar bill were false and that if Darcy were untruthful about these statements, he may be untruthful about others. The jury was not allowed to evaluate these collateral statements as independent bases of liability.

. The pretrial order preserved as a question of fact: