and once those terms are chosen they have to be enforced as written a supreme court in the home shop case explained why that is so important the irish off court said that it here in the terms of the plan is the linch system that's not soaks up so complex as to discourage employers from adopting plans in the st place in this case the district court essentially ignored several very important planned terms starting with the plan reasonable or fundamentally unfair and the th circuit's explanation in which is really the most extensive explanation of why that is as the way court held nobbles cases hold there's nothing unreasonable or unfair about choosing  employers home state for that law to govern that makes all the sense in the world it's not unfair in any way as with lying said choosing employers home state is a great benefit to the plan and it gives the plan the  ability to avoid uncertainty and avoid excess costs and it's and it also will ultimately redounds to the benefit of the employees with respect to that certainty results and reduce cost reduce premiums for them and the case the court said we're going to apply plan provisions as written unless it's unreasonable to do so and and talk about the particular importance of doing that in the aris a context and using that linchpin language that i talked about that i talked about earlier if you look at all those cases i mean i think that's really the only test that makes sense in terms of whether to apply a contractual choice of law commission in a recipient and it serves the interest of a risk as those courts are talked about otherwise at that with the district court did here you're essentially using state law principles to do short of an end run around a recipient and to impair the uniformity  predictability interests that are at the heart of our reza if you can use the mere fact that a state has a contrary law to essentially get get around to receive prevention or to take the the choice of laugher vision out of the policy i don't see why a state can't or a court sitting in a former state can't do that for any planned provision and when that starts to happen what you've got is exactly what a reserve tries to prevent which is  one plan with multiple state laws controlling it that's exactly what you don't want and that does not work to the benefit of planned beneficiaries and participants just the opposite predictability does having one law govern without the choice of law clause the choice of law provision doesn't apply by its very terms that statute only applies to policies that are issued in colorado after two thousand and eight this policy was not issued in colorado it was issued in pennsylvania as the policy states on its face delivered in pennsylvania the district court cited no facts that are contrary to what's written right on the right in the plan so you essentially ignored that purpose that plan provision as well but the only thing he cited was a district colorado case the shaper case whose analysis on that point i think is simply wrong schieffer indicated that it's somehow an beneficiaries best interests for apparently the same plan to be governor for for the for the same plan to be a policy be issued in every state where an employer might have employees i mean that that's exactly wrong it's that that's not in beneficiaries best interest it's a mere interest to have the plan governed by one set of laws that's going to encourage the employer to to adopt those plans efficiently the th circuit in the brake in the brake case discussed the fact that in the context of group insurance a group policy is issued in the state where the employer is that just makes that just makes fundamentally good sense and again it says it right here on the on the policies face it was issued in pennsylvania not in colorado there's the only document at issue here is the group policy and the only entities that colorado can regulate are insurance companies companies that are specifically engaged in the business of insurance so it has to be liberty's issuance that counts and there's no evidence whatsoever anywhere that liberty issued anything to anyone in colorado it issued the policy in pennsylvania also it issued the policy before two thousand and eight that this court has held that the  there the the the colorado ban was an act in two thousand and eight to apply here would impair those contractual rights the district court talked about amendments to the to the policy the statute doesn't speak to  it doesn't speak to renewals it speaks to issuance policies issued in colorado if it wanted to if the legislature wanted to adopt a statute that said policy issue neuter amended in colorado or so to the band could have done so some states have done that colorado has not this policy was not issued in colorado and it was not issued before two thousand  whatever documents that the employer in its duties as plan administrator issues have nothing to do with liberty that misunderstands the division of labor between an insurance company claims administrator and a plan administrator under arista providing summary plan descriptions and notices of benefits is the is the plan administrator job the insurance company in this case liberty agreed to do only those things set forth in the four corners of the of the policy  it's an integrated document there's no evidence anywhere that they agreed to do anything else that's their duty and that's and that's what their duties and obligations is is limited to so again that's the only document that's important  here if the court doesn't have any more questions on the stand a review of a move to the other plan provisions that the court essentially ignore here and those are the important proof provisions in the in the policy no matter what standard of review you apply to review liberties decision liberty had an obligation to enforce those prove provisions including the provision that said benefits are going to end when there's no more continued proof of disability and if we if we look at the position that ms wright found herself in in late two thousand and thirteen she found herself in a position of not having sufficient proof of disability and having to enforce that provision at that time typically the most useful thing pieces of evidence for administrators to look at when assessing disability are contemporaneous medical records that gives us a picture of what's going on with the climate at any given snapshot in time the policy specifically says chart notes medical records that's proof of disability as we get to late two thousand and thirteen there were none of those mr ellis had stopped treating back in may of two thousand indicate that the twenty four seconds of the assisted me that mr ellis experienced could not possibly have led to the brain damage theory that he espoused and that's not to say that that caused that that there's a causation requirement the policy because it is important for a number of reasons if if the whatever presentation mr ellis had was caused by mental illness that would have been limited to twenty four months under the policy was important for liberty to assess that now of course as it turns out he could have recovered benefits from mental illness because he never treated for and the policy requires treatment but again in assessing those issues it was important to get that additional simply the notion of objective analysis connotes the idea that if something cannot be caused by something else then one moves on to try to determine another cause whether it be depression whether it be effort whether it be so magic exaggeration or what have you these are important points for liberty to assess during the during the claims process so what ms wright did was exactly what she should have done she got an independent she asked the vendor to choose an independent neuropsychologist doctor get to do a whole battery of tests to interview mr ellis and to look at the entire record which he did and and some terminated the terminator benefits now there's a bunch of a number of things mr ellis could have done on appeal to prove his claim he could have sought treatment depression had been had been noted as a potential cause someone that he assessed in fact he used essentially the same validity battery except the one test that dr beliveau later discussed as being the most sensitive test effort he didn't use the w m t test cancer can i just stop you there sure time is it's winding now let me just understand the order of your argument i mean i guess you're saying that the district court erred in its choice of law analysis pennsylvania law should apply and pennsylvania doesn't have are on discretionary causes so so what happens then with the case so that the case should be should should have been reviewed as the judge initially did under the just making is that the decision was stance and stand your view but certainly the deferential standard review it's not even a close call and i would ask you to to to to find out i'd like to reserve the forty five seconds i have speaking to the mike ok i apologize for that thank you there's a number of different issues that we could address we are dealing with a district court situation where two different judgments were rendered under two different standards of review that is the primary thrust of this case but with regard to the facts i want to hit at this point before i face any questions if i may a very significant issue that liberty overlooked and the district court overlooked as well and that has to do with the evidence that was presented to liberty after the claim was terminated as opposing counsel has suggested there wasn't very much evidence submitted that is not true there was another neural psychological evaluation completed by dr helfand health and steam heat again concluded that there was cognitive impairment beyond that there was a suspect scan that was performed an expected scan is a single photon emission tomography this is a nuclear medicine study it it measures the blood flow of the brain it looks at the activity in the brain this is material objective evidence that was submitted to liberty as part of the internal appeal that they never looked at our brief discuss is the fact that they didn't look at it their own claim file shows that they did not look at it the only reference by opposing counsel or liberty i should say in the reply brief is that the claim somewhat confusing because they couldn't figure out how to play it but it was suggested by liberty in the reply brief that that doesn't mean that they didn't reply review it this isn't a risk case we're stuck with the record the lower court was stuck with  record this court is stuck with the record and the record does not show in any sense that this video was reviewed and i'm talking about the spec scan itself but more importantly the video that was submitted as part of the appeal this was a video of dr skint he is the the gentleman i should say the neurologist who conducted at the company known a serious and a spect scan he this video is basically a prior counsel mr cedarburg who has retired and i since took over the case he basically did a direct examination of dr hip skin and he submitted that with the record and that was never reviewed by the insurance company we know that it was never reviewed because dr bell of oh who has been mentioned by opposing counsel during the internal appeal process doesn't discuss it he does make a comment at one point in his report that he suggests th may not necessarily be a political to evaluation of brain injury due to hypoxic ischemic events and that the conative and psychological assessment methods used during the neuro psychological examination represent a more direct process of determining the examinees functional status but later in his report he actually defer in his report to a consulting neurologist or radiologist he was basically telling the insurance company that i'm not qualified to read these things and so he recommended every defer to a neurologist there was no need to refer to a neurologist we had a neurologist opinion in the record dr hitz skins video that was submitted as part of the internal appeal process shows that there is no suggestion that the district court judge reviewed the video as well but i don't think that the that judge needed to do that he did not do that in the st judgment he did not do that when he rendered the nd judgment unfortunately if this if if i may filed a motion to reconsider and the judge at that point decided that he had applied the wrong standard overview and under the correct standard of review did ruled then in favor of plaintive had that motion to reconsider not been granted we certainly would have appealed that now vacated judgment so plaintiff i guess is it someone of it of a disadvantage here if this court is going to actually conducted the novo review of that prior order because we have not been given the opportunity to argue why it is not be enough if an expert says this is irrelevant then can't be sure rely on that not if you don't look at the evidence and here's why because dr hitz can explains in his video why it is again two days ago dr hitz can goes into all of that he discusses the nature of the test what it does the fact that there's two portions of this test and while he's doing this in the video he has a screen and it shows the slices of the brain from the two different tests there is that there's a resting test that is done that gets a baseline test and then they do what i would call an active test where they actually stimulate the brain and try to judge the executive functioning of the brain during activity to try to simulate work conditions and he explains that on the video and then he before lights all of that back ok there's liberty have to accept that expert opinion or can it except the opinion bill of you who says this type of study is not well if they have an expert saying this evidence is irrelevant and they accept that view then they have to look at the what their expert says is irrelevant anyway what dr  was due to this injury is twenty seconds or whatever it was i actually respectfully disagree that is that is the issue as liberty has attempted to frame him there is no causation element here the plank of need not  show that his disability is due to any particular event and mr ellis and dr health and none of the treating physicians have ever said that his conduct of just function and all the other symptoms that he is experiencing is due to that is and dr hadley that it is a combination of everything that occurred in the hospital that day including the palm unary and belie the blood clots in the lungs than the monye and that he had the administration of the that's exactly what it does how does it do that it does it through this as as i was attempting to explain and i guess my answer to that is burdensome as it would be because it's in the record you have the video there's a twenty two minute video of the doctor explaining exactly what the test does and it says it shows that your client is deficient and cannot perform certain tests it just shows some physical it showed him out with it shows if you will hot spots it shows blood flow and what happens when the brain is functioning and then under that the active test they're specifically trying to simulate work environments and then they do another test under that and it shows and dr hi explains in this video why that reveals objective lee that there's an issue with the brain that you have counted to the client and he opines in this video that it makes sense that he has conative impairment that he's no longer able to work it's all explained on this video that the insurance company never looked at it's all in there i don't know how else to explain it except for to to play the video for the court but what is what is undeniable is that the insurance company never considered it now i'd like to turn if i may if if i can to the the choice of law question and as much as it pains me to say this the st issue in the primary issue that the appellant has raised in this litigation is that the court did not properly apply the choice of law analysis i went back through the briefs especially after i read the reply brief where liberty makes the argument in response to our position in the in the answer brief that the choice of law question boils down to a substantive law issue versus a procedural issue that we had and raise that in the lower court and i started to think we'll wait a minute why didn't we and again i wasn't involved in that briefing but i went back and i looked at the briefing the fact of the matter is the choice of law issue was not raised at the lower court i did a search two days ago of all the briefing that was done at the lower court and the phrase choice of law does not appear it didn't happen what what liberty's argument was at the trial court level was that the colorado statute which ban these discretionary causes could not be applied retroactively that's what they argued and the court and michelin agreed judge babcock initially agreed in its st judgment that it could not be applied retroactively there is only one passing reference in that entire briefing at the lower court in one sense in the response to the motion for summary judgment that the policy was issued in pennsylvania but that was offered in the context that in discussing the that i apologize for when i started this i did we did not and because i didn't i didn't realize until i was really looking at the reply brief when they try to make the argument against us on the substantive versus procedural issue that i realized again we were involved before that  had never been argued before so this is the st time they're hearing this going that it was it was or this is the st time that i'm sorry i think this is the st time  and i'm happy to argue the choice of law issue as it stands you've got a minute here ok well it is it is contained within the briefs but this issue boils down to procedural versus substantive the case law says that choice of  visions in contracts are generally understand to incorporate only substantive law and not procedural law the ban on discretionary cost has nothing to do with substantive law this is if this is all procedure this is eight dollars the standard of review that is procedural since the standard of review did not control ellis claim when it was administered and decided by liberty standard of review questions are procedural not substantive and so there's it really should end the analysis there and explain why why do you still have a choice of law which is procedural if it's a pure matter procedural then we should apply federal law not the state law if it's in federal court you laws that are saved or that regulate insurance are safe from preemption here the question is what state will that's the whole issue here certainly if this were if everything that happened in colorado and the contract and said this should be interpreted colorado law and colorado law would prevail over a recess i think that's probably correct but that's not the issue here it's what's pennsylvania law that's the choice flow issue here and there's pretty strong with already supreme court like simplicity in these matters a uniform the sort of things that were raised he didn't raise the decision and indeed the supreme court which i think is even stronger in that regard by the legislature in pennsylvania whether they they've even thought about this and so there's really no there's really no conflict when you look at this is a procedural issue this case pending in colorado you have everything that occurred with regard to this this claim occurred in colorado mr ellis worked for comcast for eighteen years he was insured under this plan and this policy for eighteen years in the state of colorado there's no evidence he's been anywhere near pennsylvania  brain damage from hypoxic injury and that it doesn't measure functionality as you got to judge heart at all doesn't it doesn't measure what what you can do and what you what you cannot do  d all of the information that plaintiff submitted supports that there's nothing in there that says it it can demonstrate hypoxic injury which is what the theory was here it was else his own theory that would be would be mental illness i mean and he couldn't he couldn't obtain benefits for that because he didn't cheat me do we would need would need to seek treatment and that's you know again the cause is important in terms of you know they say it's brain injury it can't be brain injury so what is it and dr gant dr beliveau concluded the the only evidence was the neuro psych evidence and it was never a speck could show brain injury fact factually speaking the video simply is dr hitz keep explaining the test that dr bill of all read and when it came in ms berry i said to the plaintiff's attorney you know we've had issues with these videos in terms of the software not being able to play them so can you send a transcript of the of the video because it enters when you transfer it to you know from one place to another and and again plaintiff has the burden and was that true and they never submitted the transcript