right now issue before the court from his hogan standpoint is largely procedural in nature we've never reached the merits of an actual claim or not at this point in time and what we have is what's coming becoming a fairly routine issue is a tension between federal law and state law in this case involving arista and whether or not it's preemption reaches a state will claim that has been a party obviously it's miss hogans position that her state law claim should of stayed in state court she was removed to federal court solely on a federal question solely on the basis of the wrist supreme ssion and i think therein is where the problem us eleven forty four which is a call the relates to clause that goes back to the supreme court's decision in travelers as far as everything relates to everything so we have to have some in somewhere in sight but essentially relates to and relates to stand as a basis for removal just as if we were in state court and they want to raise it there they are fully welcome to do so fully empowered to do so they can argue to a state court judge who's just is empowered to make a decision as a federal judge in these matters right but that's not what we're here on what the only way we can be in federal court is if there was complete preemption that overwhelming we read the complaint to say something else in this instance how do we get there and how do we do the analysis and the supreme court has put forth a very straightforward test and the devalued decision which is a two part test and it's conjunctive you have to meet both ports and so there are moving party in this case the a pelleas jacobson a la carte were required to demonstrate that miss hogan state law claim her negligence per se claim for violation of a state statute a medical licensing statute that notably has been on the books since one nine hundred fifty four well over twenty years in advance of a risk that they bear the burden of proof of demonstrating two things one that she could have asserted her state law a claim against them under twenty one you a seal of the thirty one a one b you recall of the benefit claim that she could have asserted a benefit claim against them in this instance unfortunately i think what happened is that the district judge convoluted  they were employed by and by an insurance company whether it was life insurance company with america line a who the original claim was against whether it was another subsidiary of cigna but in answer a question judge moore yes they were tapped by the plan so to speak to review medical records and provide a medical opinion and just because of what we're getting into there though is the minute we start into that analysis that's a we're late to analysis that's a different of defense it's not whether or not she could have brought a bit if a claim against jacobson in poking jacobs and holding jacobson a la carte she couldn't they've admitted that and then the second part of the test of the test or the conjunctive issue in it and this is where the court also this record importunately still relied on a relates to analysis in the second part of the devalue simply says that there is an independent legal duty and from a medical licensing standpoint most states have not the majority of them i can't say the majority because we have complete all the research ship in every state we've looked to so for has a public policy whereby anyone who is providing medical opinions on a resident of that state is satirist or preemption we're currently in litigation on those who we have actual court decision do we have board decisions who are entitled deferential review and application absolutely the kentucky board of medical license or yes available under state law but even if we were to set when there really would be a component of that they possibly could be but here's the thing the six circuits already held a new court and at least two other cases there may be in one of them they just because we reference this a large part of her condition was mental a nervous severe anxiety and so anyone who's ever dealt with severe anxiety and that sort of thing ever damages from stress under kentucky law absolutely yes just in kentucky we have a negligence per se general rule in actual we have a statute for forty six zero seven of us that allows for an individual cause of action for a violation of state statute that does does not in and of itself provide for individual but again i'm just hard chris the had there not being life and would cause her damages if it's already been determined you know the only thing that was determined to get this is what we're talking about here by the way what to be in federal court federal question limited jurisdiction they have to demonstrate complete preemption expression preemption and what may or may not happen at the state court level whether or not  there is an argument for complete preemption here is the essence of the determination is whether or not your client was intitled to arista benefits i continue to give additional cases that are coming in across the country where courts are saying hold on now you don't have a get out of jail free card just because you're an aristocrat if you misrepresent if you interfere with the tortious interference review examination application implementation of the resupply them of those cases it seems to me really arise as this  did the surveillance people do who were helping them make a decision on the claim they went in they surveilled somebody but they they violated the privacy rights when doing that and so we can't there has to be a line somewhere that i of hires a third party if it hires an individual internally however they get it however they go about their process they cannot violate state law or otherwise  was counsel good morning cameron hill from chattanooga tennessee i'm reminded and i will probably get it wrong but i'm reminded of the saying about the duck walks quacks looks talks it's a duck this is a duck this is complete preemption there is no other way to look at the matter the facts are and it's very simple and straightforward to see those facts when understanding the full breadth of the history of this matter and how we got to this point today how we are again today before the six circuit the essence of your opponent's argument seems to be that this is a relates to case as opposed to a complete preemption case so if you could address that that would be helpful your honor this is a arista complete preemption case and it's not relates to case because if you look at hogan one the history of hogan one hogan one was brought as an s t d l t d claim both claims were brought during the course of that underlying matter and hogan one hogan sought discovery about the full and fair review process that's what makes this a complete preemption case every place you look in this case every time you turn your head open a new door go around the corner you're faced with the facts of complete preemption the facts of whether ms hogan got a full and fair review  and found specifically that ms hogan did not bring an l t d claim found that she had failed to exhaust her administrative remedies below and hogan won significantly and hogan won and this is a very important aspect which one of the reasons why our client has repeatedly argued that collateral estoppel race judicata or waiver or some concept like that applies the discovery ms hogan conducted below went to the very you're doing a good one and she argued in her brief both before the district court and before the court of appeals that there licensure their licensure and their other was their qualifications were facts relevant to the court's analysis were guarding whether she had received a full and fair review she argued below and hogan won both a district court and before this court that the licensure or lack of licensure constituted a fact the court should consider regarding whether she should be provided to receive benefits she knew all of that she had all of that information before a fact they did not make the decision to deny her the benefits that's on the record as well the company the insurance company is the company that makes the decision it takes the information provided by the reviewers and based on the history of hogan one and multiple district courts in kentucky have ruled have determined that the licensure statutes under which she's brought this kline do not apply to and mr grab has been involved in all of those cases the district courts below have all said you know these statutes don't apply to people in the nurse case managers position like apple leaves here when they are involved in the claims review process do you need to tie it in one or is that just icing on the cake for your position in the other words suppose she didn't know those facts during hogan one wouldn't you  be able to argue that the claim was completely preempted anyway absolutely absolutely would and that will have often thought when these things can be kind of fun to explore intellectually what what's going on there is a better way to do this it still would have resulted in preemption but it could have been a straightforward hey look i've got an a i got an opinion and know all this stuff happened below the icing  the claims review process it is the only nexus here arguably you could could you assert the lack of licensure of the reviewers as it's kind of a subset of the claim that the minister i did decision was arbitrary and capricious your honor i don't think arguably is the right question i think did is the right statement counsel below made the argument that they were not licensed and accordingly they line up made an incorrect decision and did not provide a full and fair review that is a fact in the record below it's a fact noted by the district court below and noted by the noted by reference about the six circuit because the sixth circuit found she had been mis hogan had been given a and the reviewers the licensed hired by the insurance company know them a board certified in whatever specialty and therefore the argument is kind of like it's not a full and fair review process because you hired these hack doctors who can't even getting board certification i mean we see these arguments and there is a case is right as we see arguments about doctors who are very strong sweet icing that we all and looking at here because it is the elephant in the room one cannot get to hogan two but through hogan one it's a fact that has existed in the court below counsel made repeated arguments of the nature that the court is asking right now they want to specific but the court allege these people are not qualified they're not licensed they're not qualified they're there they are their own internal people it's it's replete the fact citations below arguing that these nurse case managers by name contributed to the failure for her to receive a foreign fair district court below into the one that made the decision in this case we argued those same facts repeatedly in this case below immediately below where we argued those same facts pointing out and we did this through the context of the race judicata collateral stoppel because to me the hogan one has a significant effect on where we are today because when we get to the nuts and bolts of hogan two it's the findings of hogan one that control the court of hogan one the court of appeals in hogan one in state court that can survive it doesn't require that it doesn't also require that the exact claim be brought against the exact defendants it doesn't say them as counsel stated earlier it says if an individual at some point in time could have brought his claim under a recess either to a one b here hogan brought her claim under five or to a one b not against these these parties not against the apple lease but she brought that claim seeking that relief the second phrase is where there is no other independent legal duty implicated but defendant's actions if neither of those are present and it is conjunctive then the individuals that cause of action is completely preempted the second prong why is the second prong met here and why is it completely present preempted because there is no other legal independent duty the district courts below first of all found that the hoping to the district court below and hoping to and if that appointee were legal conclude we are to legal conclusion i think that is a legal collusion i think it's it's married a little bit with facts because some of the facts the facts in this case suggest that there was no  the facts didn't rise to the level to trigger the activity governed by the statute so that's the second reason one it's legal to factual three and we haven't spoken about this yet but it does three little lie that in deciding an appeal of any adverse benefit the terminations that is based in whole in part on a medical judgment the appropriate name for this year here line shall consult with a health care professional why is that important when it says i'm sorry it says shall consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment judge davis that touches your point your point was if a party wants to dispute the qualifications the bona feeds the conclusions my doctor went to harvard my doctor went to state college  he did it below he did that below this c f r section also addresses why there is no other independent legal duty arista speaks to this all aristos says is you have to consult with somebody understand it plaintiff says we've got this negligence per se doctor and under kentucky law that is sort of like a brooding presence over the medical profession what's your response to that because i mean she didn't walk into their office one day off the street right the only connection is the arista play and and yet play there things earnestly that insist that this negligence per se doctrine somehow saves her from having to allege a specific duty or even specific damages which is the existence of the kentucky statute together with this negligence per se doctrine for violation of  front of the whole world and it came up at this court and was affirmed so that's that's the most important issue there secondly there is no damage caused by these two individuals the apple e's they as the court below noted didn't even make the decision to deny her benefits their licensure is a question that can be analyzed during the course of the full and fair review process so are a question judge givens had earlier regarding the measure of damages one cannot look at this case without looking at it through the prism of the arista claims review administrative process that occurred it is when i was wrapping up in a store i ran over last time the court was get ready to jump to a comment that was made during the first or laura you meant that i was listening to in passing and i think judge davis you posed a question or  yesterday in a recent supreme court case go b l vs liberty mutual insurance company justice thomas wrote an interesting concurrence about of a supreme emption in general and pull in the quotes the supremacy clause gives supreme status only to those federal laws that are made in pursuance of the constitution moving when i question whether any provision or one authorizes congress job or hit states reply and a host of generally a opinion with the majority i think the vote was five to so there were two concurrent opinions i believe but i think it's not holding right you're right it wasn't the necessary vote to make the majority for the ruling ok that's why i said it's interest in term back to things and i want to answer also a question you posed earlier judge moore judge gives i think try to give a better approach to it again we're talking about complete preemption and when i hear the word nexus that's just a synonym for relates to devalue a has a two part test for complete preemption one is could the claim could this claim could this claim have been asserted  conjunctive of that or they also requirement that we've been talking about it at length is independent and i think that when we do the independent analysis a lot of times that's where we start getting into does it relates to is it truly independent what we don't even need to get there i don't think it is a relates to issue i think it's that we have a separate state all they have to appall you know comply with the state laws as well but we don't necessarily have to get there because they've conceded there's no dispute that ms hogan could not have sued ja