i'm going to start off by talking about the of the big picture and what i believe was the fundamental failure of g process which occurred in now in this in this case we don't have any questions what the standard of review is doing is not a novel in limitation i'm going to be addressing that in a in a bit but the primary thing is this sort of was talked about earlier today that there was the cases are tried on a on a paper record plaintiffs sort of get a or the other is gaming the system and in cases like that what you can get is you can get a violation of of the client's essential low central rights and i think that that's what happened here in order to establish that i like to focus on a single point and  that's the point which was important to the to the district district court that mr hoffman's diagnosis for bipolar was on certain because there was a  part of this concern but there's no question about the fact that part of his concern and that's in the record that you are twelve that part of part of this trichords concern was the fact that the diagnosis is suspect because the episodes might have been caused by the antidepressants which came from the d s m for now there was no discussion i'd like to focus on that point because that's the the the clearest case of there being absolutely no discussion in the record none of the experts in the record were ever asked and let me just i'm just that the question about the hypomanic episode seemed to me to be the the most important point for the district court and what was concerning to the district court was that there wasn't any documented evidence of of hypomania and in all of the discussion between missler men and dr co hut and the and and the other and the other doctors that were reviewing this on the side of the insurance company is that hot and the district court i think was concerned that nobody had ever tried to benefit and what's surprising to me counsel is that with all this back and forth between the doctors and a little bit of a little bit of name calling and credential challenging going four for proving you know establishing bipolar and then conclude by saying the lack of analysis of criterion f is especially notable as plaintiff was taking a variety of psychotropic medication and had complications from his diabetes two other possible causes for his behavior so the judge clearly think thinks it's significant that not the only thing he thought was that he thought was significant but i'm focusing on that because it's the clear because i could just as easily say look at no point at no point where the treating physician said well tell us the period over asked tell us the period which these hypomanic episode occurred but we know they weren't asked explain why it isn't a factor that you know perhaps the hypomanic episodes were being masked by the drugs and here's why that's important ok you know people bring up new issues in trial all the time and if it's a bench trial with witnesses or a jury trial  it's not that much of a problem because i want to make i want to make them one more run at you ok i think maybe this is the third time i've said it and think maybe we're not we're not communicating here it seems to me that the pages and pages and pages of the district court spends discussing this are focused on whether there was evidence of a four day period of hypomania to satisfy d s m four i see what you say i see what you what you're pointing to it's in the very very last paragraph before the conclusion where the district court also says well we also need to know that the symptoms of hypomania were not caused by the psychological drugs that he was that he was taking that looks like an afterthought to me so the biggest concern for me i'm telling you this is my biggest concern if you want to win me over today this is where you want to focus your attention with me if you only want to focus on judge walther and judge kozinski you got it whatever you want but for me the biggest problem is the four day hypomania episode  evidence for that and my issue your honor is not whether there's evidence for that although i think that ms larman does provide you know evidence hypomanic episodes a look she doesn't provide a lot of timeline over which they occurred but the key issue here your honor is we were never put on notice that this was an issue until such time as we're in litigation and it's too late to present evidence of that my point is is that if we known about this and the trial and it was a sued you have did you have the letters from the various evaluators we had all the letters from the birth of value waiters your honor none of them none of them but they get into detail like that yeah what kind of this is this is this is the this is this is the this is the crux of the criticism from the evaluators was we don't have evidence of a hypomanic episode and dr and dr lewis came back and said i think you're wrong on the hot and here's why you're wrong there's plenty of evidence here that is consistent with with with hypomanic symptoms she's probably correct on that but she can't identify anything in the record in the medical records she's referring to which anybody can actually find an johnson off there's some discussion by the to what they call behavioral specialists we don't know what sort of training we don't know if they're college graduates but they talk very briefly about hypomanic episodes the only doctor employed by  half of her opinion i submit that what happened at trial is counsel recognized that hate this opinion by doctors scene isn't any good we've got to make some new opinions they put the d s m four before the district court and raised a whole bunch of new points which had never been i know nobody ever asked nobody ever asked back or seen us about the time period you need to have anik up the folds certainly nobody asked dr lewis  or ms lerman in those questions back when the record was being created because these issues were not raised by cigna then all the sudden litigation they're being raised and now we haven't got an opportunity to put witnesses on the stand t testify about this and that's the frustrating thing about it had ms lemon didn't say one way or another the period over which she observed these hypomanic episode because in spite of the fact that she was question repeatedly by various doctor athena's and various other cigna employees or agents she was never asked that question i mean i submit that not being you know having not being an issue raised and having a district court concerned about warman provided great detail about hypomanic episode that she observed and then once in litigation we got well wait a minute we've got we'll what time what we did when we got what we got from islam and was mostly conclusion we had bipolar two  and some evidence that there were some of them were some symptoms of that would qualify for a hypomanic episode another was hypomanic episode has a whole bunch of sort of symptoms you have to have so many symptoms all over a four day period nobody ever identified the period and so it's possible to have symptoms of bipolar two without having bipolar two of your i guess i could promise that you could look at the record all you want you're never going to find anybody back when the claim was being handled of saying well wait a minute we've got to prove these hypomanic episode to kurt over a four day period that simply wasn't raised and now wasn't raised until litigation and with respect to the court's question about judicial notice judicial notice of the d a s d s m is for i've asked courts to take additional loads of the d m four but to do things like you know explain you know what a medical term means you know not to essentially you don't ask the court to act as its own expert by putting the diagnostic criteria of a medical condition before the district judge and saying here judge want you decide well well whether these condition he's not he's not going to diagnose somebody is going to look at the records and when we when we when we ask for the noble review which which is what you're asking for from the last case right when you would start asking for to novo review this is what you're going to get that the doctor and the district is going to have to look at the d s m himself will know your honor i mean up book perhaps but the point of the matter is valid diagnosis this is this is something we are going to want lawyers once we get once we have the district court asked to take a dim novo review of this and he can pull out the d s m and he will read it and he will read it as a lawyer not as a doctor but that meant that he was reading it you know very technically sort of like we read a statute and when and when he says look you don't satisfy the hypomanic episode then you then that then the question of the burden of proof is critical and the question of who had the obligation to prove that there either was what's the what's the just a court supposed to do both just reporters go through like like judge wilson did in the water case if you've got this question he's going to say look i'm going to refer this out to an expert he has the power to do that and frankly that's what he should have done here or remained in back to the insurance company says look i can't decide this case in the absence of these factors go do some more explanation but what the district court is not supposed to do is drag out the d s m four and sort of the side issues which are properly the subject of expert testimony in the first instance and that's exactly what took place here burden of proof really i think the district judge of respectfully got that wrong i think we all agree insurance company meet the insured has got the burden of showing the scope of coverage the insurance company has got the burden of showing an exclusion limitation from coverage in order to decide those two i think we all agree that you have to look at the policy it's only the insurance company would have to show that there was in it that there was mental  own occupation provision policy gives you no first twenty four months any occupation on occupation coverage beyond that any occupation you look at the definition of disability and it's of some own occupation any occupation and so as a result because that definition is written into the coverage provision we accept that if we have to establish that mr hoffman is disabled from any occupation after twenty four months that we bear the burden of proof with respect to that because it's a coverage provision but the twenty four month exclusions for alcoholism mental illness and one or two other things those are not not not in some soon to wind coverage provision those are in a separate portion of the policy and because of that i think the case law is clear that it's exclusion and limitation upon which cigna bears the burden of proof your honor and couldn't do this because i mean if you look at you know even dr a seen us i mean the moshi can say nobody says mr hoffman isn't bipolar from the you know from them insurance company side of the world the best they ever come to is say well we don't think it's supported i mean his treating physicians think he's got bipolar they're giving him medication for bipolar i have no doubt in my mind if we got dr co head understand he'd be able to give a convincing explanation of why it is he believes is a proper diagnosis we were never given that opportunity to do so because of the limited ability to introduce additional evidence and the fact that these were new issues that were raised i mean you know your honor when you wrote the boo an opinion you said are supposed to be a dialogue there was no dialogue here and because there was no dialogue we have an insufficient record and because we were never put on notice that we needed to provide this information we're in a situation where an issue was raised and we never had an opportunity to have to address that i see i'm i'm way over time so if anybody has any questions i think i'd be happy to answer them thank you thank you your hon good morning your honors may please the court my name is dan require for the a police there are two issues presented today the first residue of the burden of proof and whether or not the district court erred in determining that mr hoffman or the burden that he was entitled to benefits after the expiration of the two your mental illness provision second for the district court committed clear error in finding line is determination that hofmann was not entirely benefits thereafter was i would like to first turn to the burden of proof a disability insurance policy is an installment contract the insured has the burden of proof to satisfy the test of disability for each monthly benefit period now the task may change over the course of the policy but the burden does not for the first two years if the insured is able to demonstrate that he or she is unable to perform the duties of his own occupation by reason of a mental illness he or she would be entitle to benefits but after that he or she must demonstrate that they're totally disabled by reason of a physical condition the burden of proof does not shift to the insurer to establish proof of loss after the expiration of the mental illness provision it's the same situation with a change in definition from own occupation to any occupation for the first two years the insured can satisfy the definition of disability only if he or she is unable to perform the duties of their own occupation but they're after they must satisfy the test  any occupation by which they're reasonably suited by education training and experience a time limitation such as the mental illness limitation is not an exclusion it's a understand what the universal exclusions looks like if an exclusion for example from our policy is a self inflicted injury so for example if the insured was working in his woodshop and he decided to cut off his left arm with a circular saw that would be a self inflicted injury it would be excluded from coverage even though he may not be able to work because of that injury i'm sorry and and the insurance company has to  is it's because alcoholism that's subject to the to your limitation it's not an exclusion where you say it's not an exclusion but i'm not sure how it's any different than the thing that you say is an exclusion which is  let's say that list of that is one other thing that stops coverage at two years at twenty four months ok so your position would be the self inflicted thing would be the insurance companies but everything else would be  assurance companies and everything else is just a yes or no i mean i've explained the reason is because it's an insurance provision that's part of the scope of coverage as your honor it's placed the hypothetical so i'm sorry so i take it your answer is the same if you have an exclusion all together for alcoholism so if they say you got coverage for everything but not for alcoholism it would be the insurance company that would have the burden of proving alcoholism it's mental illness yes if it's listed as an exclusion so so this is all a question of how it's less than the policy if you guys decide to call exclusions exclusion if you decide to call it something against the drafter you know if there's an ambiguity but if you have a situation here where the limitation on that mental illness provision is part of the coverage provision it doesn't change the burden of proof there is no shifting burden if it says you get coverage for all things but not cutting off your left arm then that would be a coverage issue and the african would have no because your way your honor phrase that question it was an exclusion you said you get coverage for everything except if you cut off your arm and certain exclusion so it's a way if you get coverage for everything except mental illness if the app can comes in and says i'm disabled and you and you look at him and say yeah there's no question that you're disabled then who has the burden of showing that it's mental illness the insurer would have initial burden of showing that they're disabled from some condition that's recognised as a disabling condition and results in a loss of functionality well if they're but if they're just i mean if they're if they've if they can provide evidence that they are disabled then don't do we have to know the costs none the first two years  don't ok and after that then we get in this case because the mental illness limitation precluding anything and you're view is that that's still his burden that's not the insurance company's burden to come back and say we recognize that you're disabled but we can only cover you for two years because your disability is the result of mental illness or alcoholism or something else you're on of the burden is on the the insured to show disability after the two years which requires not mental illness condition in other words the first of the two years is your that's that's your limitation that's that's not a that's not a limitation that applies to disability generally you know we have to go by the terms of the contract that we are dealing with that's correct some policies have no honor and under the policy language the only way that happens is if it's a physical illness which bipolar qualifies for and that's why the whole analysis was undertak company told mr often that nobody takes a different position so if the bipolar is supported and prevents him from working in at that point any occupation benefits are payable but here mr episode was was at issue here that was a litigation that was a litigation argument and not an insurance argument i would ask i would refer the court or by the court's attention to excerpt page to sixty six on that issue and what as long as iran that sentence your honor i would like to continue to the next therefore the medical on file does not support benefits beyond the policies mental illness limitation of twenty four monthly benefits so that's the for years had made an attempt to justify or explain why he met the hypomanic in the district or spent a lot of time there doesn't seem to be any dispute that he had had that he had symptoms that would have qualified as as for for a diagnosis episode there was they are they identify things like you know the brain racing and lack of sleep and so on that would have that would have been consistent with and that's the phrase that's the phrase that dr lewis keeps referring to as she keeps saying this is consistent with this diagnosis but she can't identify and neither does anybody else a four day period in the d s m specifies a four day period i don't know whether how seriously we're supposed to take that four day period maybe the doctors don't take it seriously i mean maybe maybe bipolar two gets diagnosed all the time without anybody ever really following that or not reading the d s m like like we would read a legal course like to see how far something but there's diagnostic criteria runner and consistent with doesn't mean satisfying the diagnostic criteria these are very specific items in the d s m it's goes on from page and we would submit that those have to be satisfied in order to arrive at a proper diagnosis or your honor my time is about to expire but i'd like to invite any last questions by the court i mean this is the one that focuses on the absence of for they period this is a corker that's true there's in the administrative record we don't have a discussion of the forty period we only have a discussion of the d s m fo diagnostic criteria so i mean that the district court weighed the evidence and came to the conclusion that it did and we believe that the district court was absolutely correct in its ruling we asked the court to stay but this was a focus of this four day period of nobody else focused on specific the court's obligation is to apply the facts to that diagnostic criteria to see if it's satisfied and your burger prove your becomes critical because if you have the burden of showing that he doesn't have bipolar two you're going have a very difficult time doing that if he's got the burden of showing that he's got bipolar two then then just a court may conclude he may well have bipolar two not on this record i can't cross that bridge with you your honor because i don't think that the result of the district court would be any different under either standard  review i mean no matter who has the burden of proof and the reason is because the evidence just isn't there it's not a question of we didn't get the evidence we need we got everything that we asked for it just didn't support the diagnosis bear with respect to the burden of proof that you know the sort of distinction that well you know it's an exclusion if no benefits are payable but once benefits are payable for a couple days and all this then it turns into a limitation and limitations the insur continues to bear the burden of proof that's just not the case law i would root for the court to the ghent case that out of the first circuit which which is cited in my papers where they actually discuss the twenty four month mental nervous decision and the  first circuit eventually decided it didn't need to read the issue but it but it does say that the is facially the mental nervous limitation might appear to operate much like an exclusion so i submit that it all boils down to whether it's a coverage provision or whether it's someplace other than a coverage provision and you have to look at the policy for that and in this case i think the analysis we've performed is that it's not a cover and if its coverage is your burden if it's cover from the coverage section of the policy that it's our burden that's correct your honor if it's someplace else then it's something the insurance company has to prove the with respect to the four days i mean five year you're exactly right i mean the this is something that was invented by the lawyers after the case went to litigation but d s m was invented by the doctors in the problem is counsel is that now you've i mean you know california is in transition and as you know from the prior case  where we're trying to move away from just a course giving discretion to insurance companies and doctors to decide these things to and fighting the district court to decide them and we want to just record to do what the district court is that is is trying to sell more he wants to know what the law is and so he's is looking to interpreted document says that itself your honor it's to be how can we possibly have doctors talking to each other about whether they got a correct diagnosis if they don't have common ground that's what i that's what i thought d s m four provided them was common ground for diagnosis well it does but the stockmen in four days but if you don't get around to it that would be ok as well but when you put a four day period on something on a hypomanic and say you've got to have you have to have four of the following seven criteria or three of the following nine or whatever it is in a four day period  over which no one ever asked that question nobody during the administrative process at trial nobody ever as case was decided on issues that we were never given an opportunity to present evidence we never had notice that this four day period was an issue i'm