linus counsel of record is extremely capable of research in writing yet liner could not present a single citation to this court that h nearly the lack of evidence that this case has for an intoxication exclusion to be the basis of it and it could not cite a single case to this court wherein a judge a district court judge or an appell judge ever tolerated such an abuse of process that we see here today i'd like to address three issues linus procedural violation by failing to disclose its own expert opinion on the core issue of this case when that expert's opinion was that based upon all of the evidence that the expert reviewed he could not make a determination of any level of intoxication in mr white the plaintiff and number two i'd like to address liner procedural on reasonableness in failing to consider even mention that opinion in either of its denials original denial and that on appeal number three i'd like to address the fact that the  plane i'd like to address the plain lack of adequate evidence to support the denial that we have here today any one of the above warrants liner's decision to be overturned here we have three independent bases all of which support reversing linus denial of benefits and if they had not failed to turn over the report is there evidence or at least an argument that says that you would  is yes not that that we could have deposed dr foxman but we could have argued the whole an administrative process anticipates that the parties are allowed after an original denial to argue the entire administrative record and argue contradiction argue that dr stockmann is very opinion undermined what other evidence line of purported to hang its hat on in connection with its denial a word on a police report that says impaired a government one page form filled out the by the  coroner that references drugs we have their own expert who says the very evidence that those two based their words on saying impairment and drugs in the death certificate were based upon toxic on the same toxicology results that line is own expert says can't support the finding of any level of impairment so could we oppose dr fact mean no we could have pointed out the fact that his testimony or his opinion underlined undermined the very basis of what line of said supported its denial you could you could also have submitted your own expert it would  oh absolutely not only i mean talk to me directly yes your honor we we could not opposed dr foxman but obviously we could have decided that based on his report we could have gotten our own expert we could have supported produced that into the administrative record and we but just as importantly we could have argued about his report to a completely distinct body person in the administrative process which we have that the right to do and we were denied of of the right to do whatever we wanted to do whatever we wanted to argue whatever next step we wanted to take based upon that report because it was with him it doesn't matter your honor but if you look at the timing of it his his opinion came in the form of a over report to line up a very short period of time within a couple of days before scurrying to the state police saying do you have any quantified toxicology and they answered no and shortly after that they issue their denial when line a believes they have that supports their position they sing it from the rooftops they don't forget about it can i give you absolute direct evidence that they intentionally withheld it no  do we need that no in fact this court in twenty fifteen in napoli versus johnson and i believe judge your honor off of the opinion the court said lack of a full and fair review is an independent basis to overturn a denial of benefits and a plan administrator fails to provide a full and fair review if it fails to comply with the procedures set forth in twenty nine u s c eleven thirty three and the connected department of ministry i believe the appropriate remedy is to reverse and render against the insurance company because otherwise your honor for one thing the opinion i just cited says and the regulations themselves say these are the minimum requirements in a process will not be deemed to have a claim of a full and fair review if they fail to do these things one of which is to produce all documents relevant to the claim relevant defined as not necessarily considered by the administrator informing his opinion but anything any document generated in connection with the decision regardless of whether it's relied upon by the plan administrator reason that gives in it none it says basically that it was no big deal because that opinion in linus view was favorable to its position which is ludicrous in and of itself to think that a an expert's opinion saying this toxicology evidence cannot support a determination of intoxication to say that that's favorable to linus position is ridiculous and number two to think that lined up believed it to be favorable to its position and in his system but that he could not come to the conclusion that at the moment of the wreck that the drugs and alcohol were nothing else may have been in the system  impaired and that basically where he concluded i mean he had all the stuff in it but we can't i cannot tell you that it impaired his ability to drive well that's exactly why it's not in line to stay with your honor and understand that nobody disagrees that there were a finding of qualitative only no timeframe provided no amount provided no expert testimony having anything to do with how these substances a pair in paris at the time of the act absolutely he did not come to that conclusion and in fact he affirmatively stated that the man talking about are you asking if there's another expert opinion in the record relying on those that same toxicology report on what did they rely on to continue on that he was imperative the time of the strike the only thing line a relied for the toxicology results themselves that dr foxman said arena adequate and they relied on a police report word saying impaired that relied upon the same results that its own expert says was inadequate and it relied it's what they did have they did the record with the police report was someone who observed him at the time of the action and said he was impaired correct believe which means driving while intoxicated however it's without dispute that the reason that was written on the report at the accident scene head only to do with the fact that e m s personnel who were working on the gentleman smelled the smell of alcohol specifically alcohol that's why that went into the police report based on b m s observations told to the under the care of a doctor he took prescription medications he had narcolepsy and that sometimes he took too much medication now also said something about the do yes your honor i was going to get to that so at the scene that's what she said later when she first saw the death certificate she approached line up by telephone this is maybe six weeks later i might not have the time frame exact but she approached a line on the telephone line i asked her will you provide us with the death certificate she says sure she goes and gets it she reads on there what it says she provides it to line and she says she calls a line and says what i see on the death certificate things that concern me she didn't even have any idea that there isn't an exclusion that might apply she says he was not intoxicated or under the influence of any substances at the time of the accident and in fact he got distracted by me his wife paying attention to the dog in the backseat he looked back a matter of seconds and the wreck was the next thing that so if what if what if you were to have to go back i mean there are a lot of these cases will be soon everybody back for a do over there would be nothing previous being you from bringing forth your own expert  called calling the collision report person to explain why they changed that how they didn't actually know the amounts of drugs would there be i don't know if you can cross examine this type of hearing or not record and you hold on to it and you deny and don't tell the claimant about that negative to a line of evidence and you do get caught nothing happens any worse than if you would have delivered the report in the first place like he was supposed to do so where's the in self i mean we're not trying incidental it's maybe send a message w they didn't say anything about him is not is a crime in the in the administrative report they did not reference this expert not a word i don't worry about and none of the evidence at all still indicated that they were saying that they had expert opinion that connect the alcohol to the action except except for the report of the people on the scene that s well i see i'm out of time but my answer was yes at the same time having an opinion by their own expert saying that after reviewing all the things we've talked about that a determination of impairment could not be made and we have the sheykh snyder case that says with procedural on reasonable ness even if there is sufficient evidence in the record  reason was because of the sound of a toxic and we can look at we know that we can look to the circumstances of the crash which is exactly what this investigating officer did you may be good shape if you had if you would provide him with that report and if you had actually under the influence of alcohol when you compare his blood work no good and their arkansas law it's not just an alcohol requirement we have evidence in the record that he was under the influence of cocaine and marijuana at the time of the accident  yes under the influence that he had i'm sorry if i'm saying that he had marijuana and cocaine in his system at the time of the accident and then marijuana stays a long time in your system we have lots of cases where people can even if you like test your hair or whatever it's like a month later or something you cannot say that he was under the influence of marijuana at the time of this accident but here's what we do know is that  and cocaine abuse right and in a second all he might have died from that after the trauma of the accident but that doesn't mean that that caused the accident itself the fact that he had such a depleted system the trauma  accident of these years of abuse took its toll on and this is very sad but but that's that doesn't mean that that caused the accident you said it in your very first sin it is that in part from  prescribed drugs i don't see where it says that in the record because some of the drugs are drugs that were given at perhaps at the time on the scene and we don't know that he was actually under the influence of cocaine or marijuana or a or even better means how do we know well and did did they also did the collision report the people the person who prepare it have access to the very learned doctor report that said you couldn't measure from the autopsy results in the blood tests did did they have that information and if they were provided that would they hit hat would they have put impaired your question directly no they did not have dr hawkins for porter but there's evidence that was sufficient for the police officer in the course of his duties as a government official to merely impaired on the collision if we met in person or something if we are making the determination or if they're asking us to say that a line and went on reasonable and relying on a police officer's report and a coroner's report with these findings then we're basically and all of that then you can't just blithely ignore it in favor of these unscientific determinations well i will know actually the district court found that it was this report was actually favorable to line and  one absolutely he had it at the time of the accident then the blood drives were taken then you're mistaken about two hours after the accident and the blood drawn about four hours after the accident we absolutely can show th only perhaps one or two drinks and it if it all that went that would be well i think we're really not sure what you have more information it's not reasonable to rely on the previous information what you learn relied on and that's what we relied on we are right in this sense that you had he simply confirmed what you had and that was not about the time of the accident and he just he articulated well as i cannot there was no such there was no confirmation that i was in his book so i mean that's you know that chemical sugar well is so again i would like to note that there were two explosions found in this case the second being simply be voluntary ingestion of any narcotic or drug unless prescribe were taken with prescribe dosage and here we have evidence that he had a cocaine again and now i'm repeating myself cocaine and marijuana in his system at the time of the accident so we actually there was a lot of dispute about the intoxication and under arkansas law and we certainly agree the district court found parkland but we actually don't even have to get there we can look to provide him with that doctor for a while this court subscribes to a substantial compliance standard and under these facts it is at least in my mind no fairly ambiguous letter asking for hall documents you may rely on this is in january this was before line i had received doctor's auckland's report and the digital initial didn't occur until  contrary to the decision or could support an opposite finding quite frankly he's not even arguing that dr fox manslaughter itself is contrary to the determination we talk about the case law for a minute absolutely ok let's talk about shaq's nader first yes ok and injects nater we held all those substantial evidence supported hartford's decision the method by which it made the decision was unreasonable in the conflict because it is more important in circumstances i guess is a tie breaker for us to conclude that hartford abused its discretion that yes that's a correct statement  court give more weight to the conflict of interest which we don't even get to that question if the court rules that line his interpretation was legally correct so assuming we've reached the abuse of discretion  well i disagree that there is no evidence in the record of a conflict of interest even though they have an opportunity to really just for a short while on the face absolutely i'm not disagreeing that glenn doesn't say that there's a conflict of interests and there are these circumstances but again i remind the court it's not simply a determination of impairment we have the second exclusion on the and gest cite anything that we're not relying on demand weird it's almost like you are hiding it how but how can we be hiding it if we told her we sent it to toxicologist she had two opportunities to ask for the record and she had an at the time that the request was made for the dr five for all the documents relative in the word of prior counsel from my client was relative to the case at hand it didn't say the ones you were a lot of point it asks for everything almost mirror image to what the regulatory provisions to find relevant has meaning  the request was adequate now arkansas law what does line i have to prove a line has to prove that there's substantial evidence in the record to support its decision it's got to prove that there is substantial concrete evidence to support its position if you look at the various fifth circuit cases and those of other circuits in the country as well what does it have to have concrete and substantial evidence under the arkansas statute there was impairment to such a degree that the driver's reactions motor skills and judgment are substantially altered and the driver therefore constitutes a clear and substantial danger of physical injury to herself or another person well if that's the hurdle they need to cross substantial evidence concrete evidence and their expert testified that the very packs a quality results that the cop uses to throw words on a page that the current uses to throw a word on a government form and by the way this was excluded but we have appealed the issue that the coroner testifies by affidavit once presented with d report that hey all i do my practice as coroner is to note those things of record if they exist because he probably feel like he looks like an idiot if he didn't at least know it but he says my putting those words on that report have nothing to do with me believing that this man was intoxicated at the time of the accident and in fact my words on the report in this case for them to be construed as meaning that is simply fiction this is a disinterested car and it's a perfect example of why why that affidavit wasn't submitted into the administrators record before it was too late according to the district court i believe it falls into the exception anyway now scheck snyder it was not just a case that talked about procedural on reasonable  into a conflict of interest analysis of how much weight to give the conflict and whether it can sit or a tie breaker it does all that but it also says that the on reasonable less procedural on reasonable end in itself is reason to reverse a denial of benefits and in fact it did reverse the denial of benefits it did not render it reversed and rendered it did not saying even though there is sufficient evidence in the record or substantial evidence in the record to support the been out we reverse for this very reason and in that case we're talking about a social security disability award to the plane ok made by another agency obviously known by the plane at the time the arguments are made but the fact that the administrator didn't at least address its denial was reason enough itself to say that was procedurally unreasonable to at least the nih because it was in plaintiff's favor is it the coup de gras that says social security says this we must follow up obviously not the law says that such a ruling has to at least be considered by the defendant insurance company because obviously it's to some degree favorable which i don't see how that can be interpreted as anything less than more egregious than what was reversed and rendered