mexico you can never have a suggest an exclusion of all other possible causes if that's what the accidental death policy is that's what we're going to use it all to come with the surgeon general warning it all to come up with ization examination and it's almost it's a sucker bet because accident i mean there's all these cases what's a car accident obviously that's an accident and then the people are judges are deciding well was it caused by a preexisting medical condition like epilepsy or something but he didn't and i'm not even clear what the accident was i mean if the tank it failed i see that that's an accident but you seem to have backed away from that so what is the accident you're on a great question the u can have the bends where a a bubble comes out of your bloodstream gets in your joints or in your spine that's acts as a diving accident you can drown and you can have a long overexpansion injury it's very common that's why they tell people most important rules of scuba diving never hold your breath always ascend slowly because we know when the navy knew with eighteen year olds that in four feet of water you can have a long over expansion injury it happens even with healthy so the u s navy says in the diving manual as a basic rule any diver who isn't paint a breath of compressed gas from any source at depth who surfaces unconscious loses consciousness or has any obvious there's that slight even without showing an equipment malfunction a quick minute is rarely a malfunction this kind of back in the days when i thought that that airplanes were always the call d as most of the pilots so it just is a matter of physics they get him on the boat he goes unconscious and the rest is kind of goes that path that they're able to get into her barrack chamber quickly he may have a chance to reduce that bubble in regain some some life but most of the time it doesn't work out well fast holding your breath are causes and those are accidental no one intends that to happen that so it is an accident it is this fails the man on the street test my point is that the expert he didn't take his medication he crosses the median and gets in gets in a crash dies at the scene they say and he had a pacemaker three mont before the crash of course to work the night it out and one of the things there were a lot of home though was that the responding officer said that in a conclusory statement that you know suffered a catastrophic medical event of course in having medical training whether the dot master said that he ascended normally you can ascend normally and still have a long over  expansionary if you hold your breath there's no right way other than you can see bubbles but nobody's watching that close this wasn't on the set where someone is going to hand over hand over an acre lot close male they drift out and there's no line that's one of the hazards of diving in cozumel is because you don't have a good visual reference you can be slightly over over or under weighted with lead and look at sup them hold your breath because that's what people do when they of do any kind of work and holding your breath gives you some some boise and you start coming up and that that alone can give you a long overdue space center there's all sorts of reasons that it could happen the bottom line is no one disputes that an arterial gas and listen all along overexpansion injury is a diving accident what the defense says you've given reasons why the doctor's conclusion might not  be the truth but there's disk experts on both sides i mean with the different standard why isn't that enough you don't have to get to the expert on the medical literature alone all say did the u s diving manual the doctor might be evidence for your position i think there is some evidence for your position but if there's evidence the other way because for example he didn't ascend quickly which is an indication it wasn't this one because you why given the different standard we have to apply doesn't that require a firm we always lose if i want to come back to life as a arista funded insurer and this is a case where it's clearly an accident no one you know to be able to put us with the burden of that we have to exclude all other possibilities who can ever do that these days of medical science that's what the los angeles they only have to show substantial evidence we're not going to rewrite the law even if we're sympathetic to how it should be written that's not our job you know you know what the standards are they don't have substantial evidence or  they have putting it on me that there is we haven't shown exclude every other possible cause who can do that no no no no claimant will ever be able to exclude every other possible calls they can't not this day and that of the science when you go to the doctor they could find a one hundred things wrong with you on any given day that was much less someone that is in a foreign country has in a vet and you know has doctor worked for does consulting just like my expert does for dogs of our network he admits whatever the trigger it is possible the initial event led to the ascent and the ascent led to air ambulance and that's  of a pill record five a b a there's no evidence of this initial of it but even if there was what difference does it make it's it's a garden variety diving ac and putting it on the claimant to rule out every other possible cause is just too homers that's not what congress intended if that's the case that these accidental death policies i'm old  back when they go in the airport they had the sucker bets where they had those patents where you could buy accident death policy before you got an airplane surely arista accidental death were you doing it for your employees deserves better than a sucker bet because it's your motorcycle rider if you're a scuba diver if you do anything outdoors and if you have any medical history god forbid you can be able to collect under an accidental death policy if you have a decent decent lawyer and you know check the boxes and touch the bases that's all if they did hear form is elevated over substance and justice in this case so a route is the path it's not and for good reasons they're one the claimant that she found that has succeeded but you didn't have any you didn't have any case like this you did not have any case like this where the facts are so overwhelming and you can say deference and check the boxes touch the bases but shame on us if that's if that's all you have to do because in this case we have the facts we have the evidence well please the court before i started on main argument i just would like to respond to a couple of points that he made about in the diving industry it would be considered to be an accident we're looking at the terms of this insurance policy not just what they may say traveled with the guy he did was no evidence that he went up too fast or anything dr caruso responded to that and said that the body of literature and clinical diving medicine and the us navy diving manual in disagreement on that point so he admits which states when a diver surfaces unconscious gas and melissa must be kept on the list of possibilities and that was not the situation here but insofar as going to ruling out every other cause i don't think you have to get to that point because i think that they have failed to establish that the insured suffered an accidental injury in the st place the proof of loss provision of the policy requires the insurer to prove the cause that was not done here the claimant has the burden of proving that the death resulted from accidental bodily injury i think common sense and there's case law that supports it dictates that if the insur cannot be determined then the insured cannot establish that the death was accidental there was no unusual or unexpected event that occurred such as a car crash or drowning witnesses recounted that the insured appeared to be having some kind of difficulty once he got in the water there was no evidence of the rapid ascent he was able to talk the cause of the death on the death certificate was listed as undetermined this was conducted by a independent medical examiner who the court can rely on had no interest to either party in this case and it's you know considered a credible and independent government report and basically the report said that there was sufficient evidence of cardiovascular disease that could have causing insureds death but the reason they did make that determination was because the dobie quitman wasn't available to conclude that it was an accident so that's finding that it was not dr dr gold or looked at it and also agreed that was possible that the deaths could have resulted from cardiac disease that was present but also because the diving equipment wasn't available includ that the conclusion of her own expert is inconclusive so therefore she's basically asking the court to speculate that the cause and manner of death was accidental and this is without even considering whether there were any that she can't prove what the cause of death was you can't recover an accidental death policy and the facts in that case i think are somewhat analogous to this she the plaintiff suffered from deep thing thrombosis and got on the airplane and wrote nothing happened on the plane she gets off and she had a pulmonary embolism and the court said that's that's not an accident under an accidental death and i think the same thing even if they have non establishment the insurer have a  es or there to listen they seem to use the terms interchangeably that this mad doesn't even necessarily prove that it's an accident under the terms of this insurance policy maybe in the diving industry that's considered an accident but they have to follow what the terms of this policy  prong is if an accidental death were established which i don't believe it was then they would have to show that's not cause you contributed to disease from the body we're not talking about you know is that asking them to pull every possible thing out of the scenario the man have cardiovascular disease and ask asthma both of which are prominent indications to docking and the autopsy report said looked at it and said the cardiovascular disease could have been the cause of his death on its own so it's not like some ridiculous burden that they're asking and those facts show that the plaintiff has not if you if you find that there was demonstrated a normal cardiac movement which is not typical for an individual who suffered a fatal primary cardiac event so we've met our burden that it's an accident we have the medical literature we have a u s navy captain diving medical officer who unequivocally says this is an accident he he does all top sees on similar cases we had the autopsy report houston and there was a long over an expansion injury observed although he fell that medically can that that long overexpansion injury with the medical history because at the time that you know this is flown to st luke's in houston doing all topsy all the respect probably checking the box is not a diving position but there was a long will or rupture so that's consistent i have everything consistent with a diving accident and i'm stuck with having to prove to exclude all other possibilities that that can that's just simply too onerous in that you can never win that with somebody that's over like two years old because we all have preconceived you know preexisting conditions we all have something we may have stayed up  late and drank a lot of caffeine and thus we don't have proper circulation we may be working too hard on the water and our tissues are not off gas and proper like there's all sorts or in this just diving and do anything and i think the root of court kind of dealt with those kind of facts where you gotta eat can't have that burden or the claim that when we have we just have to just strike out accidental death from the arista cafeteria benefits when somebody goes in and goes and picks with benefits are going to have because you know they have to be the luckiest or unluckiest person in the world to be able to succeed if they have a good lawyer in a in a in a system where they touch the bases and make everything look good and then the benefits because the claimant cannot prove or exclude every other possibility that simply unjust is not what congress intended there's a path i'm not smart enough to write it for you but there are some people over there on that st throwing in the all certainly can because this one is not like any case that you've had before in terms of evidence and of this result