and maybe i ok before we start running the clock let's let me make sure here on let me get a little bit just stick settled here ok domingo's is that correct that is correct and will you be the only one arguing well all right now i see more people over at the other table yes and that my scones bethleham steel and the government that mr boy you should be prepared you initially said you didn't want to talk about the merits but you should be prepared to do so all right thank you all right we're ready to start then good morning good morning mobley's the court i am hear what their position is because yes i will have some questions because it's you know maybe i can it's my understanding if bethleham said they can't pay then the government has to pay we hope that's true they have the position that it's discretionary we may want to test that proposition if there's any pushback but we have no idea at this point what they'll do well that which is why i found it a little bit curious that because you lost below in terms of on in terms of recovery so you're appealing yes and then if they're the one that ultimately has to pay and they didn't want to talk about the merits then i mean it's not it's not my it's not our job as a court to defend the merits of the case but on the other hand we just have to look at whatever's there and  know you didn't just fall off the turnip truck and so you know that on appeal we don't really weigh the evidence all right and what i understand too and the heard a lot of evidence and found some more persuasive than others so how does this get to where you want to go without really way into evidence st there is no evidence  no evidence to support the jays findings he just made too many mistakes that are straightforwardly contradicted by the record well i guess i guess what i'm just going to say plainly to me it looks like there's some evidence of both so why isn't this just a question of as you know i was the trial judge i was a trial lawyer and why isn't that you find some more you know the i mean you know what the instructions look like you don't just count people lap then you have to look to what you find credible what and you can find there can be ten people on one side that you disregard as not having the same amount of weight as one person on the other side and it seems i absolutely do understand that and we're not looking for the only way ng of the evidence that you are permitted to do and all we're asking you to do is determine whether the evidence that the did rely on dr leonards opinions is substantial on the record considered as a whole which is to say the decision and dr leonard's opinion were built on faulty years leading up to his death i hear you say is that there can't be substantial evidence to support the decision if it includes false evidence is it true that only a foot of the only opinion he relied on is based on faulty premises yes and so some of that false falsity if i understand your brief crinkly is that dr winter to ignore for months of respiratory records is true yes he said there was no evidence of any treatment for the respiratory condition he said there never been a prescription for oxygen he ignores the clear undisputed record of evidence that mr ruby had severely compromised respiratory function and he said  cannot find since the jewel evidence based on a false statement of the record no rational mind could look at this record as a whole and determine to credit dr leonard's testimony and opinion with the errors of the factual errors that are displayed by the rest of the record was he confronted with on cross examination and in large part yes yes but this went beyond just dr discrediting the claimants experts all of whom were one more highly credentialed than dr leonard who had no particular expertise in this he never even researched any of the questions involved until he was preparing to testify for the insurance carrier in this case whereas the claimants experts from every possible relevant field right down to cell biology had explained how this is possible and dr leonard had no expertise except and referred to nothing except a couple of cherry picked studies that had found no stomach cancer from asbestos exposure from drinking water which is really not the question what's your best case to support your proposition that there can't be false statements from the record to be used to support as staying cool evidence to affirm  that makes sense yes it certainly makes sense looking for a case name well i don't have a particular case in mind but but the standard of review that set out in all the cases i and then but now his wife is to see so we're now down to the granddaughter that well it was only presented as a death claim so the deceived was never a client here but yes the the widow survived for six years or so after the deceit ok did did this i know we always contact people about mediation was this that's right out there yes yes no that it was not that they not because they didn't have any assets to put on the table they were unwilling to do so comical was it mediated in the th circuit yes it was  d in the district court in the in the through the administrative processes starts before the district director with what amounts to a mediation procedure but no there were there was nothing even approaching success with that and yes it was me they did it it scored with the circuit media they think you do want to save your time and let's hear what the other side has to say and then you have that time to respond it thank you i would like to do that thank you after a very long weekend of coming through so one hundred page record so ok do you understand my dilemma that i'm you know sitting harris an appellate judge and i don't really want to reweigh the avodah and spent maybe if i had heard the evidence in the st instance i would have decided it differently so are you telling me at this point that you think it should have been decided differently i do think it should've been decided differently your honor and i think it is reversible without credible to be credible but the problem is that the key findings he relied on in finding them not credible are simply not supported in the record there's no substantial onus to support them and i'll give you the three things that he said which were the basis of and i'd like to talk a little bit about dr i want to before do that dr leonard really had no part in the preponderance of the evidence if you look at the decision at the record excerpts at twenty five all dr leonard was used for was rebutting the presumption once the judge went to the preponderance of the evidence part all he did was look at the claimants evidence and he made some factual findings in in discrediting the claims expert witnesses that simply isn't of being a judge for many times you say there's no evidence in the way that what you're really saying is there's no evidence that persuades me not that there's really no evidence so there is some evidence i would agree with you but you could still find it not persuasive i think it would be very hard to find it not persuasive you are and i'll give you some exam one example that he said these never prescribed oxygen that is a false statement that i respiratory issues whose which is clearly not accurate the most recent records before his death were in january and february two thousand and nine january st the doctor noted shortness of breath on minimal exertion january th new shortness of breath but the other problem your honor is that he was looking he was saying there were no respiratory problems at the time of death probably the most accurate depiction of what he had at the time of death was the autopsy report and the autopsy report showed not well how long do we have to make this go on i mean i'm bethlehem's not showing up here they're saying they're not going to throw any more money out at their they're not in bankruptcy right i believe they are are they so and if they ca anything then the government the government has a fund to pay on this right correct is there any reason this shouldn't be mediated i mean how long does this have to go on i mean how many times do we have to see everyone if if basically there's if basically we  great that it should be vacated on the hastening and send it back then all that that does is then either that there's more hearings or what you know whatever they do whatever happens there which appropriate because in addition to the things i said there are that clearly were not correct there is also the problem which may solve the entire issue that the death certificate actually lists in honor at this point for just because the claims experts were discredited on the wrong bases doesn't mean that we know at this point that mr he also emphysema when there's no testimony that that was caused by his best as he had pneumonia which could be but might not be so there are other things that could have hastened his death but have nothing to do with this mess as exposure at all so if this were if ok so we decided the case and essentially we don't have bethlehem here you're basically saying on the hastening it should be reversed are vacated and go back wouldn't it make sense for i don't know with what you're saying about that what you're saying about the death certificate then it's going to come back and then so you spend a lot more money and maybe they when they're maybe they don't but but looks like bethleham study even going to show up there so you'll show up right i will personally but someone will house some someone from well how much money are we going to spend is the government going to spend defending something that probably doesn't have but you know that much of a chance of  we don't know that we don't have that much of a chance your honor because i don't think there's enough on the record right now to say that a specific order was the thing that he says death rather than something else or possibly nothing at all because there was testimony that it was simply the gastric cancer that he died of and that the respiratory problems that he would have died at the same time regardless whether there was respiratory problems were there or not so are you going to have to if if if if if there is enough there that the court finds in their favor then are you going to pay or is about to happen what's to happen well and we will send it to the rector of the office of worker's compensation programs your honor it is discretionary that they pay these cases but the discretion is almost never exercised against things so because they have certain presumptions in favor of themselves when they work and are exposed to this right yes it's a little bit like i mean a police officers have a heart attack there's a presumption that it's work related doesn't mean it was but he's entitled to the presumptions on that and then you get to the other points yes  do you agree i do not agree that it should be remanded open ended fully its should not which the record should not be reopened if it were just for another decision on this record we would have no objection other than the following mr boyle has said take it back to the board to kick it back to the how would you write the order i mean that generally when something comes that we have to we have to send it back we're not fact finders here absolutely no so how would you what would you how would you write the order i would say the if i were the court i would say the  jays decision is reversed because it's unsupported by substantial evidence and the hastening point need go no further than that and it is remanded for the ministerial task of awarding benefits for the closed period from the deceiving staff until the widow's death at the stipulated compensation right that's a ministerial function to simply calculate that and or an award for that what sure what understanding of the record my valuation of the record is there is nothing there on which a reasonable mind could rule law and it is the court's responsibility to weigh the evidence for substantial this to like a criminal case and there's an instance than a criminal case where if the court reverses and finds that a conviction is based on to insufficiency of the evidence it can't be retried if we reverse it based on errors or you know that other things it can be retried because because in criminal cases there's something called jeopardy and the government gets one bite at the apple that doesn't apply in civil cases so it's that's what i hear you asking me to say on this record there's insufficiency of the evidence and that you should that we should way that we should say that there is insufficiency of the evidence and that it can't happen again and we should award benefits we should order an award of benefits but i don't know what authority there is for that and you haven't told me any well the record was made extensively for you've all a comment on how extensive the record is here and if as i do you look at that evidence and see no reasonable mind could come to the conclusion that the asbestosis of this severe grade for asbestosis with honey coming of the long slant found on a autopsy and by cat scan for years earlier that that did not contribute did not hasten the death of the decision if like me you see that's the only possible conclusion that a re asonable mind could reach on this record and that the evidence they all share relied on is not substantial on the record considered as a whole so i'll give you that we have the legal ability to reverse an award benefits i think you would agree that extremely unique when that happens so let's pretend like this isn't the unique case even though you've done your best to argue otherwise is there anything else besides what the government concedes that you would like us to include in the government's proposed yes i think in view of what judge callahan as noted the excessive stanchfield delays the fact that it's a closed period and about one hundred and twenty thousand dollars in total liability besides attorney's fees i think it would be worth saying the record should not be reopened the record was validly made as it is well than open record i don't have any particular authority in mind for that judge paula i do think though that the circumstances of this and the fact as mr boyle says in order to send it back at all now this a l j what i mean this is a relative telegram it's under twenty pages single spaced twelve point type the more typical thing from these a l j is is one hundred pages of single spaced twelve point type and it takes them typically three years from a hearing to issue a decision i am totally supportive of judge how hands few but this is gone on long enough and that's this is an unusual case and respected that a great deal of time and money was spent on presenting the evidence at hearing and in view of the circumstances of this case it should not be reopened to possible for us to issue another order that would stay our mandate if to give the parties a chance to explore mediation which was the and if they don't want to mediate voluntarily then that's the end of that then it goes back to the board i think the only objection i could possibly have to such an order  would be that it takes the board so long to act anyway that rather than having them wait if it's going to be kicked back to a nail jay i have no time when any more delay in that will be there anyway the type of order i'm thinking about which i've seen in a few cases where only give the parties a short time like ten days or two weeks to decide if they want to mediate if they both say they want to me and then they go into those proceedings that would take some more time but if it was voluntary at this particular juncture that the parties the positions of the parties are different than they were previously so now i know and both one that will not even be in the asian this time and they were the ones who were essentially unwilling to