good morning your honors may please the course i'm sam stanky the attorney for plaintive carla salman's an appellant in this matter and i would like to reserve two minutes for rebuttal the district court's ruling here should be reversed because it the ambiguous undefined terms beneficial effects and beneficial these term terms that have no precise or generally accepted definition the court determined interpret these as limited to long term beneficial effects now when ordinary reader of this plan would not recognize this limitation in the terms of beneficial and beneficial effects the district court incorrectly construed this ambiguity in favor of the insurer regions instead of the insured my client missed salman's and that violated violated the rule contra five year requirement is in unsupported statement that it's submitted citing citing articles and scientific evidence that it chose to emit from the record so therefore a noble review of the district court should not have deferred to reagents is unsupported opinion the plan requires yes that meets that's beneficial according to an ordinary person's understanding of the word beneficial the plan does not define the term beneficial so an ordinary person wouldn't interpret beneficial to be limited to a minimum time frame planning do you think that in fact beneficial needs to be given some texture by medical and scientific foundation yes and it does here we have and then aren't we in a situation of that it's not so much the plan interpretation but it's the factual development that has been directed by the plan and that's been offered by you and determined by the court we don't take issue with the district court's finding that the t d r procedure is at least as beneficial as the alternative at twenty four months we take issue with with the court's decision that that wasn't good enough to me that was not beneficial enough to meet the plan language to take it out of the investigational exclusion but isn't it is a semantic issue you know how beneficial does it need to be i mean when you say two years is good enough i mean what if the evidence was six months out looked pretty good is that enough of the plain language of the plan yes and just a day is a day enough let's say let's give a month because you got to recover a little man that probably wouldn't have a peer reviewed randomized study that only had results that one day i said a month before or a month but if it did if there was scientific evidence as defined by the plan that is randomized you know published in a peer reviewed journal and it said that yeah there were beneficial effects then that would meet the plans language because the plans use of the language beneficial is ambiguous it's undefined so we have to go with what an ordinary reader of the plan would recognize an ornery reader the plan would not assume that you need at least five articles that are omitted from the record regents did not submit those so under an overview the district court should be given more weight to the actual scientific evidence which it found showed beneficial effects of twenty four months and and should have given that much more we're talking about and you tell us what specific language that you view as and yeah if we yes your honor if we look at the definitions page we're looking at the plan yes we can give you the number evidence and that's important because you jump to the next page where scientific evidence is defined as scientific studies published in or accepted for publication by medical journals that meet nationally recognized requirements for scientific manuscripts and it's of note that most of their publi experts or finding studies or research conducted you know sarah said so but the investigation of the definition says they'll look at scientific evidence as well as information from the treating physician my client's demitted both on her appeals with regents and and the district court correctly found that those that evidence showed that the t r u was or any of the as i understand it if you read the definitions of scientific evidence or health intervention or health outcome in an investigation will and how health outcomes definitions beneficial and beneficial effects are undefined and ambiguous an ordinary person would assume would would interpret scientific evidence that a t d r is at least as beneficial at twenty four months that's beneficial under the plan the plan doesn't say had there's any kind of minimum time frame that the benefits must be shown over here we have benefits showing twenty four months that suffices to take it out of the investigation exclusion the other side said five years and that's good enough well if you look at the definition of scientific evidence in the plan it does not say long term it says published in or accepted for publication by medical care i'm just not i mean just you know universally speaking what does a scientific study usually mean and usually means you know a long term kind of study and we've got scientific studies that deem twenty four months long term enough to publish these results but going back  to the call the definition investigation investigation oh the second to the last bullet points the scientific scientific evidence must show that the health intervention is as you know five to ten years out well the established alternative here would be fusion a fusion procedure and right is good for five years well the scientific evidence in the record shows that t d r is at least as beneficial at twenty four months scientific evidence on the record shows it's as beneficial as the established alternative of twenty four months that should suffice under this plan when you say that should is that just a matter of you know arbitrary you know how you get to twenty four months as it is good enough to meet as beneficial then establish alternative because the plan language does not put a time period on it so therefore an ordinary person wouldn't read beneficial to me and has to years so if yours is only good for two years that means you have to do it you know didn't have time as much well the scientific evidence doesn't exactly show that it shows that the t d r is at least as effective as the established alternative were to hear at twenty four months it shows no harmful effects of twenty four months so therefore it meets the health outcome language in the plan as well its overall beneficial effects on health must always overall harmful effects on health well what you're saying is this all th your interpretation of what beneficial means right yeah because the good land left left it ambiguous the word beneficial so therefore any ambiguity should be resolved in favor of the insured not to insure the district by resolving that  thousand case which in which was also done over review and the you know simkins was also it didn't overall review that was a two thousand case regarding tissue transplant and whether chemotherapy counts as a tissue transplant the court ruled that a person of average intelligence would construe the term tissue transplant not to include stem cells and chemotherapy and it seemed that same analysis should apply in this case which is that an average ordinary person of average intelligence wouldn't interpret the term beneficial to require a minimum time period as long as they would say oh the scientific evidence shows more beneficial than harmful effects of twenty four months that is beneficial under this plan language is beneficial i refuted the scientific evidence that it's at least as beneficial twenty four months they've only said their opinion that that's not long enough five years is longer but they haven't seen any scientific evidence to support the necessary necessity of a five year timeframe either so therefore i i left them i think we still haven't really we haven't determined what falls within established alternatives that's really what it comes down to but rather meets the road here so why don't we ask ok the blue class may have please the court eric linden hour here today representing regents blue cross blue shield of oregon the oregon bakers union trust fund and the trustees of that trust fund your honour's judge simons finding that artificial lumb does fell within the plans investigation will exclusion because the scientific evidence that not permit conclusions as to benefits are best meant detriments beyond twenty four months was not clearly erroneous how did you interpret the exclusion well i can't tell you besides what he wrote in his opinion but what do you make find he made up i need to factor did he make here he make a legal conclusion as to what how the plan should be interpreted he made a finding  it i have a quote on this is in his roll fifty fifty two findings and conclusions benefits of spinal surgery deteriorate over time and complications increase over time and the quote to permit conclusions concerning the effect of artificial disc replacement surgery on health outcomes the scientific evidence must address outcomes at least five years after surgery and quote now that statement is based on facts solicited in the administrative record two places first of all in the medical policy that was submitted as evidence the underlying short term well let me speak to that directly on a cause that's at the heart of the argument if it is ambiguous your interpretation is reasonable his interpretation is reasonable in that instance you give the interpretation it's most beneficial to the intruder don't dispute that at all but let me go to the definition and tell you why it's not ambiguous ok his argument is that it doesn't have any temporal component to it doesn't matter how long something lasts or if over time there are detrimental excerpt of record at pages one through three it's numbered sam x one through three and it's at the in the administrative record at pages zero zero zero seven five through seven seven and what it says is the scientific evidence and i'm quoting here must permit conclusions concerning the effect of health intervention the health intervention on health outcomes which include the disease process injury or illness length of life ability to function and quality of life so breaking that down your honour's one cannot reach a meaningful conclusion on how an intervention affects the disease process without considering how long a good effect last or when a bad effect might occur one cannot reach a meaningful conclusion your honor on how an intervention affects injury or illness without considering how use the example of a new test technology for casting broken bones that intervention might only need to last a few weeks or a few months our example getting away from the disk in this case was a valve were a person might have that for years so you need to know how it reacts over years here we're talking about a disk implant there's no dispute on this salman's was in the early fifty's when the surgery occurred so you know what happens over time is absolutely so it's sort of like the condition specific absolutely you can't you can't set a fixed time period for any condition it depends kind of intervention we're talking about here we're talking about a disc they're putting in your back and this woman's in her early fifty's yeah it matters whether after five years the detriments or what if she was ninety eight and they said this has a good two year run on it lifespan actually she's lived beyond her lifespan but she does happen to be ninety eight which so two years would be pretty good for her would that matter because she's ninety  eight i would argue not because these interventions need to be looked at in the general sense in which they would apply and disk implants are used in younger people and there they need to la t a longer period of time here's the problem i mean how does the age of the recipient have any impact but if if what is the sixty five or seventy or seventy it might because the scientific evidence might ultimately say we only approved this intervention for people that are you know over ninety because in that case they'll probably not outlive its benefits so in that sense it could matter but not you wouldn't apply it person by person you'd apply it to the nature of the intervention here the nature of the end intervention as an implant into somebody's spine and those implants the problem here wasn't you know the just wasn't scientific evidence as to whether it would be good or bad beyond a twenty four month period and again the finding of fact by the judge and yet supported both by the f d a and i haven't mentioned that piece yet as well as the authorities cited in the medical policy you just whether it's a disk implant or whether it's a seven is supported by six footnotes to extrinsic authorities and the policy notes and that the f d a approval for these artificial d required further study the f d a approval so were based on two year studies and they required longer term studies there is not a scrap of evidence in in the record your honor to dispute the finding of fact that it takes at least five years to know one where the other once once you get down to finding the facts then you know the record you're probably correct but mike my concern is that the threshold is how do you is it doesn't necessarily have to be read the way you're reading it well your honor i don't reason but you can read it read it reasonably just as the plaintiff argues well you requiring consideration of whether it last ten minutes six months how is it reasonable insured supposed to know well the reasonable if you're sure looks at this in says knew going into surgery that it was that position of the defendants was going to be that it was excluded she certainly is entitled to challenge that she had the benefit of the policy at that time issued but what he's saying is i think that you had to spell out some time period or you had to use the word long term effects and i would suggest that putting in a time period when evaluated based on this investigation a criteria sort spelling out for each procedure really isn't it really the evaluation of the scientific evidence that comes down to these factual findings here rather than interpretive you know it's taking the use of the word scientific investigatory outcomes and then the question boils down to these factual findings exactly you have to apply that definition and context that definition has to apply to the whole panoply of potential procedures or supplies all of which are defined as health interventions you know that uninsured conceive conceivably ask for so the language house to be general but the now you know it's true that whenever you have a new medical procedure you know it takes awhile to see if it's going to stick so to speak and whether it's going to have long term benefits i think the question here the study with respect to two years out correct correct and so the question is is the standard of efficacy five years where does that come from  policy in in the context of this intervention and that's found by judge simon and supported in the record you don't know with a back surgery whether it's good or bad in aggregate and we're talking about in a population some people are going to be good some people are going to be bad but you don't know overall whether it's good or bad for at least five years because that's how long with the back surgery the beneficial effects tend to need to fade yeah it's submitted in the medical policy and it's also very consistent what with what the f d a did in approving these devices saying we are mandating longer term studies for lumbar deficit was specific in sa five years it was you know there was a range for cervical this but for lumbar just f d a said we want a five year study but you know my problem i that is how a reasonable insured looking at this would understand that to be the case notice from the plant from the from the plan administrator takes their letter and looks at the plan language she would understand that it's not covered government authority essentially paraphrasing wouldn't would an average person know what the peer reviewed literature showed she could have asked i mean there are many ways you could work to ascertain that would you know it just not the face of the language no but that's mean that one might be as a lay person able to draw conclusions simply by the plan definition again this required an understanding of the scientific evidence so i have to go with your honor could i read this and  it know what the scientific evidence showed no but the scientific evidence is available and it's it's known to physicians as known to the f d a it's known to thank you thank you plain plan language number two this five year requirement is not evidence in any of the scientific evidence before the court it's only referenced in this medical policy which cites articles and sound of evidence that reasons chose not to submit it's only in their medical policy that they cite these six footnotes to authorities that they chose not to submit to the court so all the district court had before him was the f d a study which says at least as beneficial at twenty four months i can't find where in the f d a study it says you didn't need five years of results to make a determination no it says twenty four months is enough to show it's at least as beneficial as the alternative fusion in twenty four months the length of time is not stated in the definition it would be very easy for regions to define beneficial or to include the term long term before beneficial very easy if they want to have make it clear their insured that they need long term beneficial evidence so any scientific evidence reasons isn't enough to refute the f d a article just as medical policy which is akin to hearsay it citing articles that are not in evidence before the court the example cited by counsel for joining bad effects of different example procedures not there is nothing in evidence showing that the r procedure has any harmful effects at twenty four months or any other time only beneficial effects that plan can reasonably interpreted to include those twenty four month beneficial effects so therefore under the rule of contra proper anthem the ambiguity should be resolved in favor of my client yeah that's beneficial enough the length of time is not stated in the policy kind of counsels kind of grasping at straws reaching for the other part of the investigational definition that references length of life well that's quite a stretch to say that means a reasonable insured should look at that instant i understand that to mean at least five years worth of studies for the for the t d r procedure versus regions blue cross it's admitted the next case for argument will be class of presidents against wal mart vs the army