litigation claim file i think it is important to understand what the evidence was and why it was so important the excluded evidence included reports by three independent doctors hired by northwestern mutual to evaluate mr merrick the comments on those reports made by two internal northwestern mutual medical personnel the additional comments on those reports by defendants medical consultants doctors questioning taplin northwestern mutual correspondence with mr merrick informing him that it had concluded on the basis of these reports that he was not disabled from performing the principal duties of his occupation on a full time basis which was the standard under the northwestern policy and it's very similar to the one under orders the normative data for the c mind test that merit had been administered by dr stanton and dr questions comments on that norman that data the standard review with respect to this particular issue is abuse of discretion as of now yes your honor and i will be getting to why the judge did abused his discretion if i may after explaining why it was so important that this be admitted i think they do go somewhat hand in glove but when you get to the part where you're explaining the  the reason that the court if you get this question could you give me just a sort of chronological step by step explanation of what happened i went through the records and i was quite confused yes absolutely three doctors retained by northwestern mutual strongly supported our conclusion that merrick was not totally disabled they just were highly relevant to the jury's determination of whether defendant's breached their contract with merit and because as of the trial judge recognized it was a very close the case on liability it could have tipped the balance seconds that district court had already given quite blind to the merits bad faith expert result merrick's counsel in prater were able to prejudice the jury from the outset with a well known story of how prominent had come up with a host of evil practices and then infected paul revere with them as soon as the merger was announ m u doctors and the requirement of objective proof for subjective towns now the northwestern mutual documents would have shown that this other company that he had no beef with it hired three different doctors that all be to the exact same conclusion as ours so it would have helped refused the suggestion the strong insinuation that we had hired biased doctors similarly one of the two denial letters issued by northwestern mutual expressly refute  referred to the failure of mr merrick to support his claim with objective evidence so here again is another company that hasn't been tarred with this very very dark brush  in almost exactly the same way that we did so it was highly relevant to the bad state and punitive damages claim indeed it was our best counter to his strategy of using freighters testimony to persuade the jury that defendants are bad companies and therefore much the vatican in bad faith in this case heard it was a foregone conclusion that the entire premedication clean file would be admitted and that file included dr salman's report which opine response because the chain in post litigation we couldn't get the normative data without a subpoena and that happened after litigation commenced but the issue is how you dealt with this cloning right evaluating the claim so all of this material came into our possession during litigation and we do it a flea david to our in house consultants and they evaluated all of it and basically they said on the basis of this nothing's changed we think it's not disable and again we were prevented from showing the jury that we were doing exactly what traders said we should do but instead what the jury saw is this very misleading claims file that ends right when litigation begins and they're and basically what was going on here was there was a discovery dispute this was standard you know standard litigation discovery where you say ok i'm putting in all of these objections and not withstanding the objections you turn everything over and that's basically what happened there was a privilege of jackson but we repeatedly turned over whatever we had that was in the claim file at the end of the process when the magistrate judge held that the privilege was waived because of the lack of a privilege while we have been saying saying too inconsistent things well a couple of points on that yes the boilerplate did remain on for quite some time but at the same time there were many different discovery requests not just the one that were focused on which was number fo it did stay in to number four and the judge at the magistrate judge's ruling isn't specific to one or the other it's across the board but we had two officers of the court misters mechanic and hess repeatedly represent to the district court the latter in a declaration filed under under under perjury under the penalty of perjury that there were no other documents they said it over and over again and if i may  the court that the ports of the e r for ninety two to four ninety three five zero nine to five ten and five twelve they also put it in a filing after filing so where you'll find it on pages four sixty nine four seventy four seventy six forty two forty eight to forty nine so then we find ourselves in front of the district court on the motion and women and during this time we're telling the judge there is nothing else and none the less the judge simply accepts the plaintiff's assertion while there must be something else over the the representations of two members of the bar who could lose their licenses if the judge determines that they're wanting to him and on the basis merely of the plaintiff's argument that there must be something more not withstanding that they have turned over several thousand pages the judge says i think this is unfair to the plaintiff none of this is coming in and i think in the context of how important the evidence was to our side in the fact that he had basically what the plainest expert basis of privilege that you were not producing privileged documents which is in your your papers which the magistrate judge kept pressing on that was an error that was just erroneous boilerplate that you were unable to get out of your papers but otherwise you had produced everything that was requested by the plaintiff so there was no need for privilege why well the latter part is right that we have produced everything whether it was an error seeking not just claims file information but also work product going to the handling of the litigation and it's nearest to me from what i've seen in the r and i don't have the site with me but i'll supply it later that their belief was that mr friedman was seeking materials that went to the litigation strategy not to the claims file issue and that's why they kept leaving it in and that's why in the caisson said to the district judge that there's that there were privileged conversations between client and counsel i think that's what he was getting at and why didn't you why wasn't a privilege l created for that material well i guess what when he finally concluded was that that was he i don't think he felt that that was what was waived by the by the magistrate judge i think what he felt was waived was just the stuff having to do with the client file and because there was nothing he he produced nothing so the magistrate judge says all privileges are way and yes there was some work product that was not produced at that point after they had just reached a state well i'm i think anything having to do with how are we going to defend this case well i don't i don't think we interpreted that to be what the magistrate doing this to have waived i mean that would have been really remarkable holding and i don't think that that was ever contemplated by the magistrate or by our counsel i don't certainly i don't think they turned over anything having to do with you know here's which witnesses we should call you know that sort of thing and i said i don't think they interpreted it that broadly i think that's sort of in which i can understand what he was saying because they were so clear both before and after that conversation he had with the judge that they had turned over all of the claim file that he had to be thinking about something else counsel you are down below seven minutes  you might want to go on your second argument are you did you propose to discuss that the jury instruction on punitive yes very much so i think philip morris versus williams makes clear that whenever there's a risk that the jury will seek to inform us on that or not well a very similar instruction was requested and some of the same basic arguments are being made there but for example the argument about well it was incomplete because you didn't tell the jury that they could use it to gauge reprehensive belief that's in both cases so you know coordinating on that point is probably a good idea or so you wouldn't have any objection if we were to defer submission of the steps to that issue until we see what the other panel did because under our rules the first panel to address the issue has priority that would be fine your honor i am aware that the court has suggested mediation i don't know what the outcome about whether there was any evidence that created the kind of risk that would warrant the instruction and we have that same issue here because the judge's principle reason here for refusing it was he said i don't see evidence of of h non parties or cons of conduct directed at non parties and you know i guess i'd like to respond to that by reading the very first set of sentences out of plaintiff's counsel's mouth and in opening statements he says good afternoon  corporation is the largest disability insurance carrier in the country and before this case is over the eight of you are going to know more about how you nonprofit it does business than any other eight people in nevada and with that knowledge will come a responsibility a responsibility not just to judge how mr merrick was treated by this insurance company but the responsibility to pass judgment on corporate conduct that affected literally tens of thousands of people tens of thousands of disabled people that was their thing and then they brought on prater to deliver a home for hours and hours talking about how evil the company is and how it's cheating its insurance rights right and left so i think the principle basis for the judge's refusal to give the instruction what the focus of it in williams is on is there a risk that the jury will confuse the two the court says that more than once without an instruction we don't know how the jury's going to think you can use  there certainly was you know without a question from the court look you can use it for this but you can't use it for that the jury was left to its own devices and this was the case after all in which liability was close there was an good morning honors thomas watson on behalf of the plaintiff clinton merrick and i guess in light of mr taggers argument touch briefly on the evidence or issues i don't really want to spend a lot of time on that list the court has questions i think just can get exactly right it's an abuse of discretion and there's sort of so many reasons why there's not an abuse of discretion it's hard for me to know where to begin first and foremost the district court excluded the evidence that they're talking about here for many many reasons not just  magistrate's order and we include some cites on pages forty three to forty five are brief i can provide more cites as well a second reason an equally strong reason is that none of the documents they're talking about played any role whatsoever in the decision making with respect to the claim and i think joe scanlon you asked a question about that and we say that because what came out is that this was discovery it was handled by the lawyers and there was no witness who could testify that it played any role in the decision making and then what about the what about the continuing duty you heard counsel suggest that in effect this is a continuing process of his isn't frozen in time at the time of the filing of the complain t that's i think that's correct your honor but there that doesn't really help them in this case because again they had the the evidence they're talking about here there was no witness who could say it did go up affect their decision making it played no role whatsoever and they never proffered any witness who could lay that foundation other was the foundation for that predicates missing and for example you mention mr prager well they were they couldn't ph mr prater with with this evidence had the chosen to do so but they didn't think you have the order correct let me just note there were other the just the court did give other grounds and one they are saying in our brief another there also was explained and they again continue the search privilege after that order was issued and this is a detail that pages thirty four thirty five for answering brief with the record cites and it's also if you take a look at c r two thirty this chronology is detailed and  think the important point is they never appealed the magistrate's order i mean once that if they had a problem with what happened there and now we've heard that maybe they thought they didn't have to produce documents even though it said all privileges are away but they should have appealed the magistrate's order it's from evidence and then just a court granted their motion and that that was see i won seventy eight so it's puzzling to hear them complain on appeal that should have been allowed to introduce mr salmon's data when they moved to exclude him from testifying at trial left the courthouse for the questions on the evidence your issues and let's talk about the jury instruction show you i'm not familiar with the specific issues in the white before case but i am familiar with the instructions that were in this case and the instructions they were given in this case and i gave the clerk and asked the clerk to give the panel a little hand out of the requested instruction because i thought i might be helpful for us damages you may consider only the specific conduct by defendants that injured plaintiff and that instruction is flatly contrary to what the supreme court said is appropriate in a williams versus philip morris case  that cases is let me ask you what am i looking at here it says defendant's proposed instruction number thirty two offered by the insurers what happens to this i mean when you say what i'll be happy to do that it's and again just to complete my first point which i think i think is particularly significant given that it's never aired to decline to give an erroneous instruction and what was asked for here is erroneous so it instruction a court doesn't abuse discretion by declining to give it but let's talk about what was given and why it was appropriate and so it was a what's the relevance of this doctor why are you giving this to us as well akutan we're interested in looking at the instruction as given right to determine whether it was appropriate or not the point under morris is that the insurance company clearly requested protection again a predicate that just court here kept out excluded evidence of other claims handling if you turn to page two of the handout this is the verdict form but going back to the instructions itself what the district court told the jury first and foremost is that the jury could only punish if the plaintiff not others suffered harm from the defendant's conduct it emphasized that the punitive award must be based on the conduct upon which you base your finding of liability which of course focused on specifically focused on defendant's handling of mr maritz claim then we get to the verdict form itself which is on page two of the handout there was some discussion of the of the verdict form itself i think there are alternatives verdict ones submitted i don't think any specific objection was ultimately lodged against spike i would need to check the record to confirm that but the but the real point  that the what the jury was told in this case provided to focus the jury on the appropriate inquiry and what's more says it's important that the jury asked the right question not the wrong question and what the district court told the jury w right question that for punishment directed punishment think about the defendant's dealings with the plaintiff but again sort of the other and infill morse you know it slices the onion pretty thinly it says that the jury may consider and assessing the defendant's represents i guess i take it from the course question that they're not so much concerned about whether this issue was properly preserved or whether an appropriate request was made but just really whether the jury was given some whether this court gave the jury some protection if i'm wrong about that i have some some other comments about why why this really wasn't preserved but going to that the protections itself let me emphasize two that philip morris specifically sow's that's going to leave courts with a lot of instructions and i would i would submit that you know if if if this isn't enough there's going to be a lot of not just in civil cases but criminal cases that are that are reversed if you know if the latter two would give courts in all kinds of cases suggest that this is more than appropriate i'd be happy to answering the questions on the instruction because i i do sense the court's concerned about it but i think it's the protection was was clearly given in this case and again in our view it wasn't properly preserved for a number of reasons and you want to speak to the attorneys fees issue i'll be happy to your honor and i'll be candid with you and in my interpretation is footnote three a fiscus and in footnote three the court noted that the defendants in that case like the defendants here were arguing that there was a reasonable basis to deny the claim and the court said well given the jury's finding on that faith liability that's not going to count for much and you know although saying well we have a jury finding that's equivalent to the predicate in the statute yeah they're making arguments that they had a basis but the jury rejected those and therefore under the nevada statute i'm going toward fisa that's that's our best argument on that i time i'll start with the instructional argument and mr hudson's assertion that the instruction was wrong and that wasn't the basis for the judge's ruling and and that's clear from the record and also i want to point we offered another instruction that didn't suffer from the problem he's asserting which was number thirty one which said you're not to impose punishment for harm suffered by persons other than plaintiffs such individuals may bring their own lawsuits in which other juries can resolve those nine parties claims which was rather oppression it's almost identical to what philip morris involves so twice we went to the court with instructions like that and his basically response is there's no evidence of that so we have to remind us what is the what is wrong from your point of view with the instruction that was actually given all the instructions that would do then apply to bad faith liability and punitive liability they didn't go to the we can go ahead and broaden it having crossed the threshold we can punish him for everything turning to the evidentiary issue the court did make clear that its rulings were definitive and i think he would have been mr h off if they had pushed it any further than they did as far as not appealing to magistrates order that wasn't i be far beat wasn't with the waiver of the privilege r p force with the exclusion of the evidence so i don't think that i think that's a red herring afterwards which we cited in our brief they all apply a rule levon like standard and it can't be the case in light of those later decisions that the court contemplates the per se rule that your hon point is that the subsequent cases make clear that the defense or the claim has to be based on something that's just so i'm supportable as to violate their equivalent of rule levin and clearly our defense in this case came nowhere near that but i hope