minutes for rebuttal this case arose as an accidental death insurance policy claim the insurer filed a motion for summary judgment in the district court granted a motion for two reasons the first reason is that the appellant d'anna did not adequately disclose d you were prejudiced by that it didn't seem to me to be an ambush where you didn't get to address the issue is that fair to say i would argue that we were we were prejudiced and we were ambushed by that why and just an example of why i would say that is part of what the district court found as a deficiency in dr seals affidavit that he would it was that he did not form his opinion while he was treating the deceased if we had known that that was going to be a basis for objecting to it we could have went to the doctor and said ok when virtually routine that it treating physician who is asked to memorialize an opinion is it's going to be in play or it's going to be dated later so that's not the part that concerned me i just wanted to know whether or not you felt that the motion allowed the opportunity to put any additional facts into the record the district court said we could do a three page brief and a three page brief when you're talking you know a space and a half font with a court title didn't give us room to really do much of anything  that was one of the district court's main objections to it i mean the district court also took issue with the timeliness of our disclosure but i would want to go back and i want to put some into the record showing the judge there as far as the timeliness of the record explain this june of two thousand and fourteen letter that i really believe has been warped into something that was never intended to be can i back up and ask you if more fundamental question before we go off on that are is is it your position that this was a trading expert or a retained expert treating expert so no report was necessary right i believe a report would be necessary to the extent where you have to make a summary of the opinions and facts well i guess maybe i beg to differ but the i'm not suggesting that there wouldn't have had to be a displeasure about the nature of that witnesses opinion and i'm talking about a report that would have complied with the rule you didn't prepare one right it's just the one letter no we did prepare an expert exeter confused me there for a minute yeah i'm not on retainer i misspoke the doctor seal was the deceased's cardiologist and so he was treating the disease all through the end of his life counsel let me take you right to the heart of my concern here as a treating expert dr siegel can testify as to those things that he's that he's witnessed because he's been very hands on with the with the deceit and but he did not examine the deceit and after he died he struggled with the idea that a doctor that the cardiologist and the deceased died of a heart issue cording to the deaths or to it but the idea that a doctor cannot provide an opinion on the cause of death because he didn't do an autopsy was kind of like almost what was but how can he possibly contradict what the coroner said he hasn't examine the body how does he know it was not heart failure he was the one that was treating him for right but he wasn't but he wasn't there i mean you know the dissident could have could have died from you know a bull goring him on the on the farm and how could he contradict a report that said that's the way that he died if he hasn't been there to examine the body he wasn't there at the know how long how long before that a doctor i don't know the exact date on how long but a couple of weeks right he had seen him after the neck fracture so i had seen what is that mission was both before and after right and we've had we've had other incidents between the time of the neck fracture and the time of his death yes ok so how can he possibly then tell us what the cause of death was or importantly what the cause of death wasn't the problem with the neck fracture is none of the doctors could really say like for mathematical certainty what specifically happened i don't think our medicine is specifically happened when what specifically caused the death that's why you had to that's well gentleman died did any doctor look at him i don't know doctor performed an autopsy did anybody did anybody examine was taken to the emergency  he died at home from what i understand so but what what's the basis what's the basis for the death certificate the basis for the death certificate was that dr garner was saying that the diseased had serious heart and kidney issues  evidentiary basis to a pint on the cause of death i would argue the doctor seal actually had the better opinion on the cause of death dr the deceased died of a heart issue dr seale was the cardiologist dr seale would know better than anybody what the condition of the diseased heart was but he didn't examine the body and as your point that neither did dr gardner there was no autopsy i mean i mean assuming the doctor but somebody put something on that death certificate for a reason yes they're not just making it up no ok he's not just speculating no ok so somebody's got a basis dr seal doesn't he's not there i don't understand how he can how he can testify as  treating expert as to this fact he can cheat and he can testify as a treating expert as to lots of things but i don't see how he gets there as to this fact if he hasn't examined it how can he contradict the medical judgment of another doctor i  don't even think it's actually contradictory i think if you put all this in front of a jury i think it would all work together but i don't see why it would and the jury could conclude that it was that it was the result of a neck fracture yes i do believe that a genuine even though death certificate says it was as a result of heart failure i believe if the jury was actually informed of dr gardner's full opinion i mean in the death certificate he's given these little boxes on you've got to choose kind of what it was so he put in yeah i died of the heart condition and the kidney condition but he also is testifying i deposition that it was the next the next fracture was dr gardner's deposition in the record i don't think i saw it portions of it were in the when when you did the last brief that the district court level we included course i was already in the records us portions of it are so we were required in the excerpts of the record only provide the portions that we are going to be quoting from and so the whole deposition i don't believe made it in there just portions of it are in there can you tell me where it is i'll find that on my break and that when i come back up here all before you like you to think about this because as my colleague has suggested there's a big problem in this case the only possible salvation i see is this our in our sales case that we ask you to  look at where the judge did not explain why your case was dealt a fatal blow it may have been the explanation that my colleagues have referred to do you think our in our sales got to look at you know whether or not the noncompliance was willful at fault or in bad faith and i don't think ours was and also look for lesser possible sanctions so i get that point probably right but that doesn't really overcome the problem my colleagues have highlighted as if if if dr shield didn't examine the body and somebody else gave an opinion there even if the district judge explains why he eliminated dr seals testimony is not going to help you as i'm still stuck back on the portion that doctors still can't give an opinion on this i don't understand why he couldn't just because he didn't go and inspect the body in the last day of the decease sure that i understand you correctly yes i think all the evidence needed to be considered and then if the insurer wants to punch holes into you know the weight that's to be given to dr seals opinion ok but let's also be a doctor gardener there and let's have the full opinion be presented to a jury and that's all we're if we were to determine that this could go back but that doctor seal i'm out on a limb here just a little bit but dr siegel could not testify as to the manner of death you have a case is long as we're allowed to supplement the record with dr gardner's opinion i believe that we would still have a question of fact we didn't get an affidavit of dr gardner in response to the motion for summary judgment so unless we are allowed to add in that doctor's opinion what do you think dr gardner would like to essentially what i was just saying was that dr gardner did testify that the disease would have lived longer had he not broken his neck that's a different that's a different question because that goes to sort of a contributory cause that is was is a possible that the heart condition was aggravated as a result of the automobile accident now if that's the argument that you have do you have coverage under the insurance policy or under idaho law we have to prove what is the predominant cause of death and so i guess it would be really pending dr gardner down on what his opinion was on the predominant cause but he's as in the already done that is not what he did in the death certificate did he mention anything about that about the neck fracture his evidence is somewhat conflicting on that i mean he says one thing in the death certificate but he's also saying other things in his deposition testimony and so i think that that's the kind of factual dispute that has to be put in front of a jury and for the jury to decide ok what is the predominant cause of death you'll you'll give me the citation you stand back up on the depositions of the other two doctors are in the record in the supplemental excerpts of record darker go to nurse deposition is that the supplemental excerpts of page one thirteen if you turn to page one twenty two of the supplemental excerpts is where i was asked about whether about the neck fracture and mr martin added one twenty two of the supplemental excerpts of was indicated his records or evaluations he says i have not indicated in that in the records that would be speculation but based on the extent of such an injury with an individual this illness question ok but speculation answer yes i would say speculation so i'm not so interested in his opinion as i am in the basis for his opinion did he examine the deceit after his death dark doctor governor and bitters had whitley when he first returned from the mayo clinic which was at the beginning of march two thousand and eleven he participated in his treatment that month on march twenty third two thousand and eleven dark  and what you're saying as far as i know nobody did none of the doctors examined him after death so doctors harder dr seals opinion is just as valid in terms of the cause of death as dr gardner's or dr betters because they didn't admissible we're here about whether or not there was proper disclosure of the opinion right and wrong and maybe if we had sure and you're responding to our questions of course but i'm just trying to make sure that my notes are focused on the issue because if we if we send this back the trial court might decide it's not admissible for any number of reasons it seems to me that we're trying to figure out whether it's knocked out for failure to disclose so i think that it would be helpful at least for me if you could its own language in there the court found that the fail this close years and there were not required to be affirmatively produced something had to be asked and  furthermore when the the evidence that was being in the evidence that was being stricken or or predicted in that case was  fault or bad faith and that it even though there was a sanction it was less than a dismissal in this case we have first an affirmative there was an affirmative duty to do the disclosures per the expert disclosures i would note that on their first expert disclosure they didn't even include dr c l it was only on their supplemental  council forgive me i agree with you that technically they probably didn't comply but the reality is the insurance company not only knew about dr seals they took his deposition  is not there's not a surprise and now we have a situation where none of the doctors examined the body they all had their views they did dealt with the deceit and as medical doctors they all had their views here the doctor deal with  i'm retained expert and removing his testimony was a fatal blow to their claim under our sales isn't district court supposed to find it was harmless and if so whether there was bad faith that didn't happen here why isn't the appropriate thing here since we don't have a doctor who actually examined the body why isn't the appropriate thing to do to send this back to the district court let the district court determine whether this was in fact that dr sills deposition occurred on april twenty seventh of two thousand and fifteen so it was substantial amount of time after the summary judgment was sorry april can you mean the date again forgive me i'm sorry it was  as as a treating physician and that's the way it was in the international disclosures there's no nothing about cause of death other than a letter and when it came up to that point of their initial disclosures when deposition and the district court did not do a harmlessness analysis no it didn't find that bad faith in find anything that would be required under our in our sales so my question to you is since the insurance company was clearly not surprised however was technically indicated why isn't the appropriate thing to do to let the district court make a determination whether eliminating dr seals testimony was harmless in this case it got of their case and you may see that in any case anyway but the reality is it gutted their case and the harmlessness analysis didn't occur all the court the court did actually determine that it was or that it was  said it was harmful to us it was prejudicial to the defendants because of the inadequate disclosure after you have to have yeah what you reverse to has to prove what on that though you're saying it was harmful to you the question is whether it when when the removal of the expert centrally is fatal to their case the district court asked to make a determination whether what was done was harmless  and then analyze whether there was bad faith involved and so on and that was done was it let me let me let me give you some background on the procedural status of the case we the at the  plaintiffs had provided some medical records as part of their initial disclosures the next medical records that we received were not until december of two thousand and fourteen and at that point they indicated that they were having issues with obtaining some point around there they indicated they had problems they're having problems getting records so we undertook to take undertake collecting records so that by the time that the disclosure deadline to come up we still had many hospitals and clinics that we still didn't have any records from  but i want to make sure that my understanding something as of that point they had also given you no records released so that you could get all the records right you know we were doing subpoenas they give you no record to release haven't they i think the record says they had i'm mistaken are you in the litigation or in their disclosures didn't they give you a record to release so you could obtain medical records counsel your honor i don't believe that they did but i i don't know for sure what i do know is that when we were requesting the records later on we were using subpoenas and we had to get a letter from them for one of the hospitals indicating that they were approved of or had no objection to the hospital turning the records over you seem to be suggesting a response to judge smith that there was a failure on the plaintiff's part because they had not affirmatively produced all the records as opposed to giving their piece and i want to make sure i'm understanding your argument correctly or are you are you making that argument or am i misunderstanding giving giving the court a background just to show that we do don't have complete information out that in january of two thousand and fifteen sure and my question to just be clear is whether or not you're trying to argue records as part of their school's requirements because my question just forgive me but my question is just a little different i don't think you answered it and i and i want to make sure that i'm understand the law correctly is it your position that as of january they were out of that time under subpoenas and having to get their permission all right on one hospital lease before it even released their records council if what kind of burden to the plaintiffs bear in terms of have the plaintiff has the burden of proving that it was death due to accident ok and but if it's a contributing if it's contributing causes they covered under the policy i don't believe so that was part of the alternate argument that i'd raised my wholly the cause of death what about the jones versus mountain states telephone telegraph company idaho case that suggest that the issue is what is the dominant cause how do you address that the there's two two lines of cases in idaho one is one of the one refers to the insuring agreement which talks about sole cause and they made that into a term of art there was a separate case though that upheld an exclusion where the persons it was death was the tribunal in part to another cause that even if it was the dominant cause the facts and record in this case indicate that mr williams had decades of heart problems and it had become very severe in two no i think the if we were talking about the cases that dealt with with ensuring agreement portion i might agree with you but the the it's pretty clear that from the exclusion that the court is authorized to interpret it if there's no you know and ambiguity becomes a question of law at that point  interpretation of it and the facts readily show that there was at least some other cause even you know the heart the heart condition even contributed to it and even dr seals testimony didn't rule out that the heart condition was at least part of it so i believe that even on that grounds it would be able to be support time my clock i'm going to get two minutes ok all right thank you want to respond to this lack of autopsy and examination issue just because we don't have an autopsy on examination it just means  as far as the issue on deposing dr seal i do want to point out that it was their decision to wait that long to depose dr siegel so when they deposed him in april of two thousand and fifteen that was their decision not ours the insurer knew that we had intended to call d a witness we said our june fourteenth letter the dr seals opinion would have to be introduced through his testimony i mean that when we say his testimony that's pretty clear that we were going to use his testimony at trial the next thing that was brought up as far as we produce medical records we produced eight hundred pages of medical records and seven d v d s containing more medical records in our initial disclosures so to complain that we didn't disclose medical records well he's talking specifically about seals magical backwards on his point is that he didn't records that was provided to them but the court was right in the insurer did have a medical release that's at the excerpts of record page two thirteen that d'anna when she made her proof of last claim she provided them with the medical records release they could have had those records at any time thank you thank you thank both counsel for the argument ever versus american general life insurance companies submitted