thank you your honors in may it please the court case in the united states in ordering the payment of damages for future life care expenses and lost future earnings the district court elected to apply oklahoma's periodic payment statute evidenced by the fact that it amended plaintiff's trust agreement to require the pain plaint excuse me payments for damages be completed within seven years as required by oklahoma so much i don't know that the fact that the court limited the trust to seven years means that it did oklahoma's periodic payment statute in fact there are no periodic payments here is your honor in fact there couldn't be because the government can only make a lump sum payment  so i don't understand how we can infer that somehow the district court decided i'll be bound by all the obligations of the oklahoma periodic payment statute even though i didn't order periodic payment so two responses are on our st the district court clearly explained that it was applying that oklahoma statute wasn't very clear the plane was not clear that the district court did explain however that it was ordering the payment of specify exactly no the plaintiffs themselves confessed that the structure of the trust was made to comply with the terms of the oklahoma statute and indeed the district court continue or considered the scope of its authority in determining how to structure the trust in this case the district court didn't have to require parent periodic payments even under oklahoma law right that's true it could have ordered that a lump sum be made period full stop and the non government  government which would never be applied to a private party i can analogize to a private plaintiff or private defendant for example had the judgment creditor baby stokes prematurely died in this case any future payments of medical expenses would not be made if you were under periodic payments correct and that is what the district was approximating in this case and well if you don't have periodic payments  your opportunity for revision or interest is greatly diminished so really those two requests are claims or arguments on your part are very much related are they not that's correct your honor but the district court could have ordered a lump sp strict lump sum payment or it could as it did here order payments be made into a trust and then dispersants made from that trust on a periodic basis in this case it declined to order that those payments be made on a schedule here we don't have periodic payments you'd agree with that right and that's where the government contends that the district court erred it's worth analogizing this or because it couldn't it couldn't hurt or it couldn't work or periodic payments from the government that's correct this court  adopted the rd circuit's reasoning and frankel in the opinion poll saying that the government's waiver of sovereign immunity is effectively only takes place at the time of judgement but it's worth reiterating the analogy to a private party and so the court said you only i'm making is a lump sum payment in it's going into a trust not protect government to protect baby stuff and the court then was not required because it wasn't under the periodic payment statute it had discretion to manage that in order how that trust would be managed independent of the oklahoma statute doesn't mean it couldn't look to the other seven years for guidance but i don't see that it disbursements are made for future medical expenses at the trustee sole discretion were the united states a private hospital for example if payments were made on an ad hoc basis the hospital would be making payments for future medical expenses effectively as those expenses are incurred that is completely contrary to the policy that the oklahoma legislature chose to adopt by enacting the periodic payment statute so in this particular case the united states it's true makes one payment to a trust however it's important for the united states as well to have certainty in the reversion or in its reversionary interest the statute at issue here would provide that all of those future medical expenses would revert to the united states in the event of the judgment creditor's untimely death and that would also happen for a private defendant the arrangement that the for seven years of her under oath correct exactly but this arrangement that the district court applied this hybrid arrangement applying certain terms of oklahoma's periodic payment statute would never be applied to a private individual it's true the district court had discretion to award along some people how do we get into the oklahoma statute is it merely the fact that the court jester the original trust to trigger the seven year requirement there are several reasons that you can identify or interpret the court's opinion by doing so it says explicitly that it ordered the payment of damages based on amended to comply with the terms of oklahoma's death so your argument is you can't take bits and pieces of the statute exist or want your toes in the water you have to take the whole thing exactly iran or this court articulated in hill that the state statute for payment of damages must apply to the united states is the same extent to which it would apply to a private individual but the seattle one apply it all to a private individual who made a lump sum payment and so that private individual would have no reversionary right that the united states got more than a private individual would get the united states could equally pay a lump sum to the plaintiffs without a trust could that's right but the court would foolish to allow that there's your argument depends on the approximation point that's correct and the court is obligated to assuming it the statute is mandatory once it once you opt into it essentially which is your argument assuming that to be true the court was obligated to approximate for the united states what this would do for an individual plaintiffs and the way other courts have done that with mandatory similar state statutes is to require payments by the trust over a period of periodic time period correct so that it approximates for the united states essentially what it would have had as a private plan that's exactly right your honor it's also worth pointing to page thirteen of the united states reply brief in which we cite numerous circumstances in plaintiff's own response brief in which they effectively concede that the district court applied the oklahoma statute at one point they express the note that the effect of the trust arrangement itself was to mimic the terms of the oklahoma statute so even if the court has difficulty parsing the the district court opinion themselves make clear that the trust arrangement was structured to mirror the terms of the oklahoma statute however it doesn't do so as the statute requires there's not a full reversionary interest in the future medical expenses for the united states and that revers interest is highly uncertain didn't you make this argument in the district court because it seemed to me that the just her court was a little bit confused and didn't seem to understand your argument early see argument you're making now which is that once you apply the statute you've got to apply it fully or proximate it fully is what you're arguing and i didn't i mean i think the district court clearly was not understanding that concept which is why we get some inconsistent statements about what it was doing so following the entry of judgment following the entry of judgment the district court actually ordered supplemental briefing on this precise issue on whether in entering a payment structuring the payment of damages how to apply oklahoma's periodic payments statute of the parties each then brief that issue and just in that briefing conceded that if the oklahoma statute applied then periodic payments could be determined accordingly as the statute requires again that's not what the district court did here  effectively cherry picked which provisions of that statute to apply and was not clear in requiring that payment but is it possible that the district court believed its believed that it could do that meaning and that it essentially was operating under its inherent powers to to do this and yet it was picking and choosing from the oklahoma statute not necessarily opting in to the as you requested to the oklahoma statute but picking and choosing what it thought was fair in this case and do we know whether it did that do we need to ask the district court whatever that it was operating under its inherent powers correct your honor but if the district court believes that certain provisions of the statute were discretionary that's legal error the statute makes clear that the court shall make a specific finding of the dollar amount of periodic payments and the court shall specify in its judgment how those periodic payments should be structured there's no wiggle room in that respect once the statute know maybe legal or i'm just saying trying to get at what the district court was trying to do you know a fair result that it was trying to reach here and it may be that it can only do that by exercising its inherent powers outside the statute  i believe the oklahoma statute actually foreclose as inherent powers it the the court had some authority to structure damages outside of the oklahoma statute but by opting into the statute it was required to struck that struck me structure the payment of payments these are the things you have to do here the court in order periodic payments that's correct your honor and that's were and it had there already under section nine dollars of the oklahoma statute not to do so correct and that's where the united states contends that opted into the statute in changing the term of when payments must be made for under the trust agreement at twenty seven years from fourteen years and was recognized that the scope of it's a thorough was diminished by applying the i'm the attorney on behalf of maybe stokes and his mother and father the last words from judge heaton at the end of the trial were two tiger stokes and the judge said your baby is really lucky you need to pull the this judge carefully coral crafted this remedy the judge because he stated so directly was clearly impressed by the possibility that early in this child's life there may be extraordinary expenses that would exceed oh what was in the bank account for the previous one th deposit into the bike up and that could have killed this child could still kill it if it's if that's imposed and the judge declined to do that keep in mind there was no obligation on the court of any kind to agree to any revers jurisprudence and whole in whole that case the court entertained a reversionary trust only because the court had personally investigated the home situation and the parents and made a determination that it was in the best interest of the child that's completely different than this case where the exact opposite determination was made the court also expressly stated that it had confidence in the very experienced trust department in the local bike who has been the trustee for five have similar children with some more problems out of the same hospital most of whom i have represented the probate court in part of county oklahoma would be able in combination with the trustee to properly manage these funds that was a pretty well thought out process by the trial judge well what the united states argues and that it would have been well and good if the district court had just awarded the trust and not done anything that was related to the oklahoma statute but once it reached in mended its order and it reached over and picked up the seven year limit on reversionary interest that it was them bound to comply with all of the elements of the oklahoma of any authority that says that if the court adopts some provision of a voluntary oklahoma statute that the course is obligated to incorporate every provision and of course in this case the court cannot incorporate every provision because the court can order periodic payments don't they well that's your fundamental disagreement i think they rely solely on the language of statute which is section d because they they requested to proceed under the statute which is the statute and to subpoena upon a request by a party which is the united states here the court may order and they and then the statute goes on the court then shall make a specific finding of the dollar amount of periodic payments and then it continues on shall decide the recipient shall decide the dollar amount shelved side the interview interval so that's what they're arguing they're arguing the language of the statute makes it voluntary to begin with upon the request of a party but once the court decides yes i'm going to do this if the if it's a private party they then order all these things and because we must approximate what a private party does here for the united states it must approximate all these various one through four plus sections e f etc once it allows ask yourself what this judge could have done he could have said ok if the all requires maybe just because a reference seven years in response to an offer of a limited reversionary interest by counsel for the point of  will be no more that extent of the periodic payments will not exceed seven years well then should we re manta the district court to make a choice either comply with the oklahoma statute in its entirety or as well frankly your honor we were trying to avoid the common practice of the government the united states of almost always takes an appeal in these cases almost always over some issue involving a reversionary interest and we put that out there in an effort hopefully to avoid having to be here today well the government's untitled as it points out in the law the federal law requires which the judge was required to take into account that they be treated in approximately the same manner as a private individual and that's their argument here is you're considering all team ignore them and say consider the alternative suppose of the judge said yep i agree with everything you just said to the united states but i've got the discretion to fashion the periodic payments as long as they don't exceed seven years then i comply with the statute what if i make it twelve months half of it at the time of the judgment half of twelve months later that would be perfectly like and maybe it could do that if we remained to say you've got to comply with the statute that's we don't know what the court would do in terms of the actual payments i think it would  hamstring future judges and similar situations to say that if you so much as pick up the oklahoma green church it looks and look at title twenty three dollars and happened to glance that section nine that you're obligated to comply with all the provisions in that section even though you're not permitted to comply with all the provisions because of limitations by the federal government for example and this is important that will come a statute also says they have to push seven have percent interest under the obama judgment right well the federal government can't do that right so they've got to approximate once again well you can't you can apply it strictly so the the fact that the united states would still deposit the lump sum up front that what the united states interprets it to require that they pay interest at the federal judgment rate which right now is about two five percent the oklahoma state are right now mandates that it be paid at seven and a half percent and over that seven years of run the numbers that penalizes family about two million three hundred thousand dollars just that distinction alone so again the government wants to cherry pick provisions that favor the government and they want the court and they want this court to order judge heaton to disregard those provisions that favor the family  i do want to address or cross appeal and from my  look up the commerce department debt and it says six twenty eight percent that was not in dispute by either expert the nd thing you do is you have to figure out what the investment radios and the supreme court told us how to do that and they got it  absolutely correct i mean look at the time of the trial at one point i think we had the wall street journal at the courtroom looking at the at the various available investment rights and i think i challenged one of the their expert subsite me an investment right that's in a secure investment that's over three percent it couldn't do it not what so what happened here with the district court were to the district court or by just sort of picking a number in the middle and saying it's a wash the judge said because he was not bound and obligated to follow jones and often that he could declare it was a wash and he did that based on the government's hypothetical that well the investment right maybe some time at some point maybe possibly some place of the future  past shows future right here that that you know looking at past performance tells us what we can see what will happen not just this period when things are very low but it's going to change over time articulated it very clearly said that the injured party that's being compensated should not have to become an expert in market timing knowing down in the future they need to be able to have an investment that is available the day they get the check so they can go down invest let them down and that that will provide them my secure stream of revenue that will match the future washington's trouble is that things can change so quickly especially right now that currently available i guess i'm not sure you say just now it's the day they get the check but these these folks were testifying you know it certainly wasn't the day they got the check ins a lot could have changed between the day they testified as to what the current rate was that day and two months later or six months later or whenever they get the check so i guess what it what do you think currently available means is i mean a particular day doesn't mean  know currently things can fluctuate pretty greatly even within weeks my time is up i would suggest to the court strongly with respect to the nd issue that we have which is  the noneconomic damages that the there's eight or nine circuits that have a different view than the circuit i believe judge posner got it correct in the th circuit in the jitsu johnson case he has a very articulate statement very articulate statement as to what the rule is in the th circuit and that are some close variation has been adopted by my count by at least eight other circuits and i would encourage the court to you thank you just two quick points first on the discount rate the court's opinion was fully consistent with the supreme court's ruling in joints and often steel it was merely explaining that treasury bills or t bills were not the required proxy for an investment rate when they're not required proxy but the question is can you use a discount rate that isn't available now and may never be available again so the expert in this case provided municipal bonds from average from one thousand nine hundred and five to two thousand and fourteen as a proxy for the rate of investment that could be available over the life expectancy of the child as the supreme court explained in jos and jones and often steel that  estimation is incredibly speculative and so regardless of whatever the tivo rate was at one specific point in time the expert in this case was using a forty or fifty year average to be able to forecast economic conditions over the license life expectancy of the child the child the life expectancy being used for these calculations isn't fifty years you're correct that the child's life expectancy is lower than fifty your honor but the can't rely  period for this interest rate to raise when all these sampson's are the baby would have needed the money for that i think the analysis cuts exactly the opposite way around are because the expert in this case used a longer term of period it would have washed out greater variations in economic conditions over that period or you know plaintiff's point to one particular area or period of high interest rates but because the expert used a longer period those higher rates would have been weighted down from lower rates during the rest of that period and so the district court did not clearly err in adopting the discount rate offered by the expert and it is worth emphasizing was there really any analysis by the district court or did he just in fact that the number in the middle which ended up being a wash so the district court adopted the experts estimations which was the rate of investment less the rate of inflation and the expert based on calculating those two averages found that it was effectively a wash and so the district court then relied on a ph d economist from the university of oklahoma to determine that these rates specific to future medical expenses were effectively compile with jones lofland decision correct what that decision says says there's two prongs one is the amount that the employee would have earned during each year that he could have been expected to work after the injury and the  nd is the appropriate disk round discount rate reflecting the safest of vailable investment you're asking us to read out the word available from the supreme court's require that it be available the expert in this case offered a investment rate that was a proxy for that which would be available over the life expectancy it's not a price it's not available over the life of the payment that the supreme court is saying this you have to be able to take your award and now presently a vailable invested to start earning money to compete with inflation my understanding of the supreme court's terms and often still decision your honor is actually that you would have a rate of investment over the term of the payment of damages and so it's not necessarily that the rate of investment is availing you point me to where you find that in this decision i don't have it for me right now  but it's it's worth emphasizing again that the supreme court left open great discretion for lower courts in evaluating which rates of investment should be applied because the economic conditions in any particular case going to vary substantially and what  the rate of investment would be is subject to different economists estimate i would agree with you that the supreme court left open what types of investments you could use along as they were say but i don't think you can fairly read that decision as saying that when they said reflecting the safest they will bill investment they met you could hypothetically decide what might be available over the next thirty years but i believe that the experts provided on are realizing that recent days the municipal bond rate in oklahoma city for example was roughly similar to that which the average that he approximate and if so to fully apply the operative provisions of that statute thank you thank you thank you both for your arguments this morning the case is submitted court is in recess until eight thirty tomorrow morning