as defined by statute and their civil action is covered by the federal civil procedure i mishear any authority anywhere that says otherwise and i understand that the practice suggests otherwise  i don't wear the robe so it's not for me to say i'm trying to understand how far kind of district court judge got in some merrily deciding these cases and still  so i just wanted to speak to that because your honor as is that all we need to decide in this case and it is as long as we you know recognize that that footnote doesn't really speak to the issues the identical policy language that has a discretionary language in it the ray case from alabama the rice case from michigan understand we're dealing with this case in which you have mr karr saying that it's added on to  but it's not a table of contents i was it was the classic material issue of fact that's a contest and i'll get to that point but i need to clarify the facts it is not number twenty nine and thirty it is not numbered in the ray cases not numbered in the vice case the reason being is included at the end of all policies some policies for example eighteen d policies may have shorter terms but this is always included at the end of the last two pages because it's the receiver right section and describes the aggressor rights so it's maybe not including the table context contests but we've shown through mr karr's affidavit is that there this would have been include this was included and there's no reason why night there's something there was something happened but she overlooked a critical piece of factual statement that is why mr was there i mean i am not so sure she did overlook it but it's hard to you're right we don't know she didn't mention it i can agree with that but here's the problem i would say that mr lennox affidavit doesn't even raise an issue of fact because of this mr lezak sold the business prior to preparing that affidavit he doesn't discuss anything that he went through except something that he said years earlier saying on september twenty seventh two thousand and eleven i fax yankee payroll twenty eight page document which included a cover sheet my office the twenty seven pages of the policy here at issue does he oversight with regard to the less likely affidavit ok so we could make a finding of fact you know we can't do that i understand your honor but what i'm saying is that if if you look the court had to make a decision it wasn't a jury's going to make the decision the judge had to say every circuit to address this issue has said that the rule fifty six is just a vehicle to get the issue before the court and what is your alternative will fifty two is counsel says well this courts are to address that and i'm looking at the two judges now who said it that was in the last or case versus reliance standard judge amber a judge struck you on the panel and i was counsel for the defendant in that case and one of the issues was that the district court held over decide the case under rule fifty two and this court said it was improper it's improper why because this is a receipt case and under arbitrary capricious review the only question is whether the defendants decision is reasonable now if you're putting inferences in favor of a claim that's the opposite of maybe having to defend you know if you have the language discretionary language that's contained in this addendum that's disputed whether it's actually part of the policy or not you would if you don't have that discretionary language there's another test that's done and it's a done over test and yes the court said if it was to know i would rule the other way but it's kind of funky for us to a forty four word footnote seven at the tail end of opinion sides no matter it's almost like ok if i ever got to bed i have to cover myself but you can't so what i did was i went through every one of judge we're going to it's opinions that i can find in a recipe says this is the only one she ever said that the only one wish it were made that comment so that wasn't her just making some gratuitous statement that you know clean on the physical but he did he did claim he told my client that he was physically disabled his doctors doctored gum cracked said that he had a class five physical disability meeting he was incapable of even minimal work that comment was made got severe physical limitations that he can't even do minimal activities and doctors who are fine is saying that he's got all these physical ailments and he has even walk without aid impairment and they're not only the wide by the surveillance the supported anywhere else in the record there's no treatment for them and the same doctors are saying and he also has a cognitive impairment you can't believe those doctors especially by the way my client then has a doctor who said who call them and says i'd like to discuss your opinions because there inconsistency is here and his own experts refused to call back they refused to talk to my client we're supposed to vest again to claim and they won't participate so now there about he had a hit of release he provided us we gave it to the doctors so they knew we had a right now let's look at the cognitive though because what we have what do we have what we have one examination by dr carnival which everybody admits did not have a duty testing which is necessary that's it but the same doctor said your psychologist dr kahn of all said look if you're having these cognitive issues as serious as you're saying you should undergo some cognitive therapy for it you should go undergo some sort of treatment and he never did so here's a guy who's out of the claim he's been on disability since two thousand and eight we're now two thousand and ten eleven twelve and he still has not had any treatment the only thing he did is get incomplete testing by one person then you look at what's he relied on he's actually lying dr barr who's our doctors test results and dr barr the neuro psychologist said you know all right on three tests there are below average scores on this but he administers a battery of thirty seven tests thirty seven he's a neuro psychologist he knows that you have to look at all of it and you have to weigh the tests before you can reach an opinion because there inconsistency is there in that testing so council says aha look at these three out of thirty seven support the claim but not according to the doctor who performed that testing and counsel is not an expert and we know this because of his own expert dr finally who was who was hired by mr baker not to offer an opinion on impairment that's the other surprising thing he only said criticize  the testing criticize dr barr he even said the score on the one test where there's a twenty five point drop the council relies on to show impairment you can't explain it he said that's surprising in a matter of three months in in some context his comment can only be read the context of that surprising to me that there be such a drop in four months that is the context of it your honor so you know and then we also have doctor  for i'd also like to point out this dr ross reached out to dr dr carnivale to get his test score his raw data and dr card about problems to provide it and then he never did so this is another doctor third doctor now there's got to be consequences to a claim i want to doctor on treating doctors refused to provide information that's necessary to decide a claim and i because i'm sure he'll nation this in rebuttal i just want to point out i think the same thing could be said here but going to feed initial point about even under denotable review the court's comments the conclusions are fully supported where is the treatment for cognitive we had if i ma you know we had so much so much time in which he could have sought some treatment and what counsel saying as he said we should provide it that's not our burden and he knew this was an issue so if those records did exist he would have provided them the fact is how could he claim a disability based on cognitive impairment when there's no treatment going on except for one partial testing so what would happen even under the novo review well the judge there's no cherry shall we we know that so what difference would it make the judge is still going to make findings of fact which she did and those will be reviewed under the clearly a rony a standard so now he's in  situation i think than before because under the are betraying capricious standard your honor sitting here can look at that and say all right we take it did no poll look at the evidence and decide whether it was arbitrator precious there's no evidence that he didn't have the therapy nobody ever arrested if he had the therapy you know this goes because it goes back really has to be analyzed hundred to no standard and if the court continues with what it this company generates quote always having these at the end i don't know where that comes from i don't know what the basis for that assertion is it's not certainly not anything in the record but certainly a thing