diabetic who submitted a claim for accidental dismemberment benefits based on a left a below the knee amputation following years of treatment for diabetic foot neuropathy and diabetic  murray's stepped on glass on in a hotel swimming pool seven years earlier we're not here today to discern whether or not mr murray step on glass rather the primary question for this appeal is whether diabetes substantially contributed to the l procedures footman's and ultimately the loss of his like the medical records are also in accord mr murray says on treating physicians determined that he needed the procedures in agreement that the legal principle that would dealing with is the substantially contributed to the disability concept you're not questioning that you question the application factually on this record like my correcting that assumption fact and law almost all the facts if we assume the glass incident occurred almost all the facts are undisputed whether or not the district corps erred in misinterpreting the standard for stubbs counsel contribution making it a higher standard than it needed to be is really a question of law and that makes that it's a no vote standard i thought that everyone agreed that substantial contribution was the right exactly but if the district court interpret a substantial contribution to have such a high burden for the insurance company to overcome as opposed to something more than more than just amir's philosophical cause than that determination is a legal question for dunno a review that's for sure i agree with that it seems a good deal of the application of that's the end to the facts of this case but i may be wrong but if you think i'm wrong we can let me know our position is that we would prevail under clear error or dinner if you no way you would prevail either way to prevail because under clear air the decision should be overturned if it's a logical implausible or not supported by in the record and here we have all three where you have the experts testify confusing you could produce different spins on them with different entrances is this the type of thing that the district judge was competent to assess i would say a district court had all the medical records inside the administrators record the district court also had the reviews of three medical update reviewers who basically all agreed with each other that the progression of the disease if the glass incident occurred was the glass incident because he was an uncontrolled diabetic she was prone to the infections he was also suffering from diabetic foot neuropathy and direct foot looking for were words that say diabetes in the entire medical history narrative from both the district court opinion and also the plaintiffs they don't discuss diabetes so why why is that a from the facts i think that if you're lucky you're not suggesting the district judge wasn't aware that he had diabetes i think that this or court didn't give diabetes a proper weight that it deserves because there's no i'm not claiming the thrust of your whole argument the fact that the district court doesn't discuss the diabetes i'm not sure is a powerful force toward that end but then you have to wonder why why is it that if the narrative in the factual findings is a glass incident with no discussion of diabetes leading up to the n p t sion then it seems from that distance are the author of of that document and knows what the agree or disagree with that analysis but it seems to me that's the thrust of the district court's reasoning either whether the details of diabetes are discussed in the findings of fact doesn't change that very much i don't think we need to have a magic word substantial or some difficult so let me get to that substantial is in the standard was there any live testimony before the district court  strictly from administrative record true based on the evidence in the rocker and the record testimony was not actually testimony it's not like depositions were taken as i have examined the record it looks like these are our written responses by the medical experts in response to written inquiries put to that is that correct that's correct these are based on medical records and the medical reviews written opinions before looking at the substance of the pants off three of the doctors say the same thing and when it does excuse me the plainest expert as well and is very detailed sixteen page letter goes through extensively why mr maher uses medical conditions le him to the point where he needed the amputation and i don't think that we can just look for a singular word to pick it out and say oh it's substantial or not substantial because mr dr galpin did not used a word this is cause he wasn't asked that question but if the plans council had doctor go off and say this is this is not a substantial cause but yet the force of his opinion the medical facts statins in his opinion basically the administrative record we're looking at the integrity of the facts and how they stand up to a standard of substantial contribution if i may state speak to the standard your honor this is a financial contribution overlooking to the genesis of it i think the problem with how the district court viewed the case is that at the time this was newly adopted from the doubt a decision to something that used to be more than a mere philosophical cause or something more than just a cause in a number of causes that legal the law holding in dowdy basically found that the  already nearly severed because of the accident in daddy it's a lot different in this case i suspect yes and that's why i think this case provides an opportunity a teaching moment to book well let me let me focus your attention on what i think is the single most important piece that supported the district court or lead the district court to its conclusion which is in the i'll just simply opines them rhesus quote diabetes mellitus was a contributor and did not apply in the diabetes was a significant or substantial contributor to the amputation if you go to the actual excerpt of record three hundred and seventy five you have on three hundred and seventy four the question put in writing presumably by the insurance company which uses the word significantly but close enough for our purposes because that's all we have and what the district court says is gee we get this one paragraph response which doesn't use the word significantly now if you were in an oral examination you're a very capable lawyer i expect you would follow up in a deposition and try to highlight and not let the record sit with an inference to be drawn from the fair to use the word that was pushed forward by the question but we have no follow up question so why isn't the district court in title say well gee he was asked whether it was significant and his response was it was a contributor without the diabetes did did not significantly contribute to that loss the question at hand and it's kind of a i would admit awfully where the question is please expand further expand upon your diabetes contributed to the loss in that the loss was not just independent it was dependent on the fact that he had diabetes infections that led to a petition i think if you look at it at the meet and the substance of opinion and the reason for his answer that speaks to whether or not is it significantly contributed to or not we're not looking for a kind of magic words and i don't think this case should be inferences or absences because we're looking at the rocker's i don't think you can you are actually asking for an inference you want to draw the inference that this is enough to make it substantial it's not just his opinion it's dr right but then you look again looking at the facts in honoring the facts to figure out what what role the diabetes play and again it's more than just if we're looking at the continuum of how high the burden needs to be for substantial control contribution it's really not insurmountable it's not california test which is the most predominant cause or the most important cause and that's under california state law it's basically it wasn't more than a significant if i could just speak very briefly to the genesis of the toughest the just if you way back then you had an insurance policy in a recipe lossy you would look at the policy in the but how do we get to a point where a substantial contribution test gets in play it's because of the reason why expectations toss the whole point and number in dowdy that adopted the adkins test from the the whole point was to not let then sure take the terms of the insurance policy so literally so that a person and almost nearly perfect health would be denied benefits based on the fact that there could be a sickness or cause that's not a substantial cause and not something just insignificant that led to the loss so the whole point is substantial contribution is just to make sure that the insurance company is not going to take those words literally but that doesn't mean that the exclusion the sickness and disease exclusion should be brought out the policy that exclusion must mean something for all of your time as is used let me pose a question with regard to the attorney's fees issue and in particular the argument that some of the time being claim for what was actually work by a contract attorney and should be chargeable only at the contract own law firm ok do you do you believe your clients for just the time just the amount of money you pay your associates and not bill them for any hourly rate beyond what you pay them in salary there do you i think the answer that question is almost certainly no is a correct yes your honor and so you're asking us based on an allegation that's unsupported in the record to reduce the amount of in a way that you don't behave yourself or your firm doesn't behave itself is that right i was taking a more product and i think the answer to my question is yes isn't it i certainly want to say more i'm happy to hear more but it seems to me that was an irresponsible allegation not supported by the record and a legal position is untenable and i'm waiting to hear if you have anything else you want to say on the subject away that particular argument your honor i reserve the rest of my time thank administrative record there's no live testimony indeed the administrative record isn't filled with transcripts for the record we have in front of us is exactly the same record that the district court had and so the usual reasons for deferring to a district court's factual findings don't seem to apply here do they well they do your honor and let me give two independent reasons why the clear air standard applies number one  it's the law of this court and i cite the court to the dowdy case which everybody here is certainly familiar with and the dowdy case acknowledged that and that was in a recent case just like this one where everything was was  done on a paper record and there was no life testimony and the question was exactly the same did the diabetes substantially contribute to the need for the amputation the same question here is there that case  d and i quote here from page eight hundred and seven when reviewing a mixed question of law in fact we review for clare error if the application of the law to the facts we choir's an inquiry that is essentially factual and then it went on and it overturned the district court's decision it overturned the district court's decision based on the clearly erroneous standard the although the district court cited the substantial contribution standard it application of that standard was clear error as it was overly strict and not consistent with the requirement etc etc and that's over it page eight i'm well aware what it says there and i will tell you that there is discussion in some of our cases with regard to what happens in administrative record case but that's not what i want to get to now you told me there were reasons for it hearing to the same standard what you told me st so there were two the st is right what president says but what logical reason is there when the record is exactly the same record that the district court read well you know the logical reason your honor and i know that you know the record here is extensive you've got very dense medical records you've got you know three conflicting reports in the district court as you can see from from from the court's detail plannings did a lot of work attempting to resolve those issues well we got it by the same org why is it that we're supposed to if we reach a conclusion based on our reading of the record that's different what's the reason for deciding that this other person over there should rule well you know your honor the reason it is there a reason you know i mean what why have district courts at all your honor i'm going to usually you have live testimony and they can observe demeanor of witness and have a better sense of what's going on we've got a flat administrative record here well what the district court had to draw on is exactly what we're required to draw well you know your honor administrative record and in every single arrest the case and i've done probably over but certainly over one hundred of them and i guess we just you know change the roll through that we come here to the th circuit in the st instance and try and is  evaluated and the odd cases when the determination of the district who are judge is reversed by the circuit court unfortunately i had one of those situations myself let's look at the facts here though if they may and tell me whether properly and exacerbated the risk of infection i also made a note that once the cuts became infected diabetes made it more difficult to fight the bacterial onslaught even with the assistance of antibiotics allowing the infection to reach the bone and if the only way to stop the infection from spreading was amputation i made notes of this is my reese's own medical expert who said that and what did the district was say about all that you acknowledges that diabetes was a contributing factor to the need for the amputation there's absolutely no dispute about that dr galpin said so dr levin said so dr low said so everybody agrees that that's the if you take the omission of the word significantly in the paragraph with all of the questions i understand that did he comment at all specifically that he answer the question yes or no was it a significant or substantial contribut question now is there anything else from dr gilpin from dr lu and elsewhere levon elsewhere we know dr low spoke specifically to the subject so many way asking about the st two doctors did they thousand and eight would have had a great extent of degree that contributed to the claimant's multiple surgical interventions and health issues i think that what he is saying there is that the most important factor was the injury that occurred the accident occurred back in back in two thousand and eight but people ok but you know it's people commonly step on glass and cut their feet and in almost all those cases they don't have part of their leg amputated and sheer at you know the medical reports say that he had diabetes and the diabetes impedes the body's ability to heal and that he prior to this accident they get ulcers on his flight i mean isn't it obvious that even if they didn't use the word substantial that diabetes had to be a substantial cause here of amputation well i mean i think that if dr levin had thought that then he would have he would have said that or in in his in his follow on report instead in the initial report he focused on the injury didn't use the word he wasn't asked for the initial word about substantial or significant contribution but he did focus on the injury and seem to be indicating that it was the most significant factor and you know that he doesn't go it was the question he was answering the question was answering focused on the injury the question was please comment on the level of contribution if any of traumatic injury on would have a great extent of degree and then he follows with another sentence that makes specific reference to diabetes which is an asked about in the question so why shouldn't we infer d or why shouldn't the district court have been for the fact  goes on to talk about diabetes when i wasn't even asked about takes this to be a response and says diabetes is a big part of this too but you know your honor i think that you just have to keep coming back to the standard of review i mean the district court could have reached other inferences the district court could have decided to weigh diabetes a little bit more heavily than then it did but the fact of the matter is that it made the decision that to read dr levin freeport as it did in dr levin three fusil to agree that there was a significant contribution is meaning he didn't believe it was significant contribution especially in light of his earlier statement and i think that the  the district court's decision in that matter should be should be respected and it has to be respected under the law unless it's some reasonable so and i don't think you should disregard the plaintiff's own expert that specifically detail the facts that seem to suggest to me that the substantial contribution stand that has been made i'm look i'm focused on the facts here you have doctors who are not skilled and goin harvard law school and understanding the nomenclature of the difference between proxy because preexisting conditions there's a lot of this is bandied about here perhaps it's confusing as to what really the proper stand that is i don't think fox because is the standard here that language has been bandied about contributing language has been the back but i'm sort of focus on the actual facts here it would seem to make this case factually the opposite in dowdy of you're on or the doctor galpin and you know i mean it was a very detailed report and it's really easy to go into sort of you know mine it for you know a little snippets that you like and you don't like but at the end of the day this is what he had to say in the conclus section over and the record over two thousand eight hundred and four it is very clear that there is a straight direct link beginning with his accident at the hotel which became the center and focus of an acute and then chronic substantial contributing factor on the one hand and proximate cause on the other you seem to be the urge that the standard we should apply should be the proximate cause standard which is what the conclusion seems to suggest to me that you just raised well you know the again the problem is with respect to all of the experts is is none of them was really asked to directly opine on the actual standard and because it's in a risk case you're left with a fixed record but but if you something new and something different as a matter of fact that mcclory is over some of the tongue is clearly stating doubt you know the although although they made the same argument with respect to the attorney fees they don't seem to be able to to acknowledge that this is this is well established law and you know not wanting to get ahead into the saving clause argument you know the insurance companies continually arguing that it needs a you know an established bottle body of federal law to follow but yet you know the clerks a quarter century old are still not following it so but but to get back to the court question the you know dowdy did sort of speak at great length as to what that standard means although although it when and it really if it was soften cool concepts compared to the other concepts we know all of that so that audi i think those establish what the standard is that we have to apply here it's not proximate not predominant cause it's substantial contribution the question here in our case i think is is this that special unique case under the standard of the view that we have of clearly erroneous when the facts of this case require reversal well no your honor but but but let me sort of talk about sort of the previous point you made i mean you know i think dowdy clearly introduced a causation element into the you know it into the question of whether the substantial cost test is met and as i think i put this in in a footnote in my brief i mean there may not be a lot of daylight state common law with respect to interpretation of insurance policies would be preempted by arista and instead federal common law would govern now through your later now the federal common law does not go in the service a case that is not with respect to to state common law that addresses insurance policy interpretation and what happened four years after mcclure was handed down was the ward case came along and the warrant case actually involved a state common law the notice prejudice rule of interpretation for insurance policies and the warrant case held that that was saved perm preemption now it at oral argument or judges and and that happens to be the law as it was handed down in ward that you know there's no distinction between judge made law and statutory law directly contrary to would to mclaurin and that was emphasized again in the miller case and so i submit to this court that neither mcclure nor evans which hold that the federal court that state laws interpret ng insurance  as i pointed out earlier in the dowdy case it clearly introduced elements of causation into the substantial contribution test and so i'm not sure really matters well i'm not sure that really matters because even if we look to to your client's expert which you just read from the report of the direct link between his accident at the hotel two sentences later in a sentence he's got underscored and bolded talks about the underlying diseases that he carried at that point that's the predecessor and plainly is talking about diabetes among other things and hansen amplify the odds of getting an infection as well as the more difficult task of controlling it so we have to go back to the st step what really kicked this off it seems to me dr gilpin's saying well it's the diabetes he had at the beginning that led us to this road so you can you can try to develop a test which i don't think is the one that applies here that says well let's look to the origin but the origin according to dr goldman appears to be the diabetes well i mean you know i mean your honor i think the initiating a fact i don't think that anybody can you spot because you have to go up and says and hansing the risk the odds of getting an infection that's something that existed at the time the foot stepped on the glass so what what came st chicken or egg in this case what came st was the disease well you know but but there but but but that's the whole point of the substantial contribution test is there's always a preexisting disease that that's true in all of these any not where i've cut my foot on glass and fortunately didn't have a preexisting disease that made it into the disaster that it was  i'm did not obviously did not to say what i'm attempting to say say say say correctly this this situation always arises in the context of a preexisting the disease because you've got the language of the policy which was disapproved in adkins and which was disapproved in mclaurin and dowdy that says the accident has got to be direct an independent and what the atkins court said and this was you know they accepted by mcclure is look at have to be in perfect health ok under that language you would have to be in perfect health if there was anything wrong with you would all at the time i got to be insured but it seemed to me you're trying to suggest to us the test should be what's the starting point and and i'm saying i don't think that's the test but i'm also saying but even factually i don't think that gets you to where you want to go because doctors go up and suggest the starting point is the preexisting policy but you know in all the eighteen the approximate cost cases in california there's always a preexisting illness that contribute triggers the accident that triggers the injury and i think some of the fact that it is it is certainly certainly complicated your honor but but but all d these cases arise on the same basic fact pattern somebody has got an injury they have an accident which the impact of that accident exasperated by the preexisting injury and that's the reason for the financial contribution test and well i was served some time but i guess i'm i guess just for a key few closing remarks your honor the state law test doesn't help the trigger event was a diabetes it was de witt that initiated everything that happened even if the cost cuts did happen and there is no need to wade into the thicket or is a preamp ssion to come to a decision on this case the miller case with this was his idea and in two thousand and two it was not a sea change for is a preemption cases after that it's now been seventeen years nothing has changed the standard remains the same courts like to use federal common law because it provides uniformity one of the main principles of one of the main objectives is for uniformity a plan in a ministration and for claims decisions if we were to adopt a state law that would mean reaching out and interpreting the different laws of fifty states and here here even now both sides can even agree on the california state law so i would submit that the substantial contribution test submitted and that concludes our seven today and we're joined