that i believe where the user is right i think i might be able to add some clarity to the briefing and happy to be run off into other subjects that i don't intend to cover everything obviously first i want to touch on the burden of proof and i think i can do that briefly second i want to talk about the importance the significance of standardized terms in coverage law third i want to talk about what i call the causation problem that's not new to this case it's been around for a hundred years and finally there's time left to talk about the mcclure case which i think everyone agrees is not a clickable but for different reasons and is a problematic case if there is time first burden of proof at the top of page five of the district court's decision made it clear as putting the entire burden upon the plaintiffs to prove that there was coverage under the policy the problem is that the district court's opinion turned very heavily on the first exclusion to the policy the so called physical and mental illness in front or infirmity exclusion how that works if you have an affirmative provision and i exclusion which so completely overlap first liking at the affirmative coverage but i'm glad you asked that i think the exclusions more specifically the general ensuring agreement is very general and i think that the court the district court recognized and kept going back to the exclusion so a very clear that it was relying very heavily on the exclusion to deny coverage and your argument is the exclusion would be the burden burden would be placed upon the life yes i think you can i can say with some confidence that this is the only reported decision i've ever seen are a number of acts on the part of the defendant which suggested the potential of bad faith in particular the refusal to answer phone calls the they clear the numbers of  rejections every time they had an available option to coverage or to grant that they also relied upon or a reading of the provision which is theoretically inconsistent with the ninth circuit precedent that macor their taking literal language of the sole cause as opposed to substantially and i wonder if that suggests that there may be a question about faith in the first place and in the second place are you waiving that argument or do you agree that there's evidence of bad faith here on the part of the insurance company ok i'm not really sure where that goes bad faith generally i think i'd aim at getting the experience  you can't hide anything you have to be completely forthcoming and here they did just the opposite they never aided this completely inexperienced woman in helping her find the medical records they were only told him there had then they did not i did orally because there were opiates found in his system that were the first responders it wasn't any recreation and they also use the standard which is not north of law but i guess my mike the confusing part for me is where does that go let's say you've found that met life acted in bad faith what does that lead to oh i think that i think the bad faith issue unless i'm missing becomes becomes serious here if the the district court clearly thought it was our burden to prove that the diabetes the effect of the diabetes was de minimus it maybe we could just disagree with the district court's assumption that it needs to be de minimus i mean i'm not sure what you think the standard should be for whether the diabetes was a substantial contributor here but i think i think that brings up the cause what i call the causation problem and he here's here's the problem it's been around for a long time but if you have when you have a term that says any you know any other cause can be an intervening cause then the question becomes you know what if you have pretty much anything can have a causal relationship so it had to be a substantial contribution so could your argument just be that the district court didn't understand how how substantial substantial contribution  a substantial contribution on the front end but what about and the exclusion does that also have to be a geisha of a substantial contribution and the exclusion i think i i think yeah i think i think it does i think it has to be they have to have some evidence if they want that exclusion to apply they have to come forward with some evidence you have some support for that and i mean it is this is either a question from porting the standard into federal common law our it's part of our preemption argument that we can get into that but let's assume for the moment that we're talking about importing a standard to federal common law that we have case law now saying that it's a is if we're just looking at the ensuring agreement and not looking at the at the exclusion then we are in standardized terms the term that that meant life put into the policy has to be the sole and direct clause because so you haven't shown you can show coverage but you still have to show somebody still has to show the exclusion doesn't apply so how does that happen then then the burden shifts to them ok so why do they have to show is they have to show that the the in this case the diabetes the contribution of the diabetes to the loss of the life the leg was both substantial  on the exclusion they've got to show substantial and direct not indirect the big problem they've got i mean there's no evidence of substantial they could have asked you know the could have been some some it we have dr sue falls letter saying he was fighting the mercy mercy infections and you know you get those infections in the hospital you don't get them in your bathroom so he got in the hospital with this horrible leg injury he got an infection in the hospital and an antibiotic resistant staph infection and that's very hard to fight in helping others with the definitive language is what he said contributed to or complicate complicated by diabetes correct right that's upon that sentence the the insurance company relied to us show correct there should be no coverage right is that enough factually know to establish substantially contributed no no because the question you need to ask is well to what extent did it contribute did it it was it you know if you asked doctors who fall i don't know what he would have said but what was conspicuously absent from the record here is any medical professional saying in my opinion but for the diabetes we could have saved the leg nobody said that nobody said that the diabetes was already causing problems with the lake it wasn't nobody saying that the diabetes was symptomatic even  all they're saying is they have this and it made it harder to fight the infections that were in introduced into his body by the accident not just not my house at all confused about why you're focusing so much on the burden of proof because it seems like you could be making a legal argument that just there's no way this preexisting condition can ever be a big enough cause in this kind of situation for it to help the insurer which i'm whoever has the burden you're kind of buying into it matters if we get more medical testimony i'm not sure why this good point i don't know i was pointing out and i was so hoping to just kind of scoot through the burden of proof because it seems like such an obvious error to me to not even but it only matters if it matters you know it's only worth talking about if it makes some difference and i'm not quite sure i even understand how you think it does make a difference or i should i think that the district court was saying that the burden is on the dow to use to prove that this policy covered them we have this exclusion they didn't they didn't overcome the exclusion which is just flat out error that's just flat out error i don't know what the judge would have found if he'd said ok it's the it's meant life's burden to show that this exclusion applies i think that looking at this record the judge would have had to say they haven't met their burden so i think there would have been covered but we'll never know because they introduced no evidence and the judge made an error he put the burden on the wrong party  good afternoon your honour's i'm rebecca hall i represent the defendants and the pelleas in this action i think essentially what we have here is an invitation to the court to overturn approximately forty five years of service jurisprudence and to replace it with something that is completely contrary to the preemption statute and to all of the case law that has come before it under it's quite clear that since the plaintiffs are the opponents are relying on case law that is as much as one hundred plus years old this is a body of jurisprudence that was known to congress when it adopted the preemption statute and it was known to the supreme court in the supreme court elucidated what preemption means and what it extends to i don't understand  it seems to me that either as i said before in these cases at least illustrate what the federal common law is likely to be as well as the common law for one hundred years otherwise and why when only incorporate that is federal common law and that's one possibility the other is to get to the preemption question which i might want to do but let's leave let's start with the first one all right well i mean the two to my mind to go hand in hand because if you tangentially mentioned in medical records is not going to be something that plays into this kind of an analysis however in this particular case the district court made a finding of fact that this was in fact a significantly contributing issue that the diabetes was preventing their your recovery from the injury so how is it fair if you think that's the right interpretation diabetes always makes it harder for people to heal how can you sell insurance to people diabetes in good conscience if that's your interpretation of this policy you should warn everyone that if you have diabetes don't buy this policy it's never going to cover you for anything well i was do respect your honor i don't think that's going to turn out to be correct i think there are all sorts of conditions and infections and so on where person might have diabetes and wouldn't enter into it at all or certainly not in any significant way but that's not what we have here what we have here is an explicit explanation from the treating doctor about the extent to which this caused problems and what did he say exactly well the disorder is a contributing factor or something along those lines complicated complicated or complicated all the all he said was as complicated by diabetes that's all that was before your client and how does that actually  sh substantially contribute to the injury i thought he had rejected those records he mentioned them but really he had to rely upon the only reference to diabetes and that's from dr cole koval i think and he just said in that one sentence the complicating nature of diabetes right well he talked about for instance due to the multiple co morbidities which were including the diabetes as i'm sorry it's not was in which explicitly as you've acknowledged you can't deny this coverage based on the the infection well there are there are two different questions about an infection one is that there is an exclusion that deals broadly with infections but then there is the separate and it says which infections will or won't be excluded because they are infections but then there is a separate exclusion that deals with injury season the illness or other medical conditions think you could exclude it because of the infection even though it says you can't exclude it because the infection i can feel no no what we're saying is i mean the the daddies brought up the infection i but all i'm pointing out is that in this very brief information in the record he says that it's a type of infection right i don't think that it is necessarily what most people would think of as an infection and yeah it's a condition of the bone obviously but diabetes is the central issues which were complicated by his diabetes correct from that do you think it is fair that your claim is that your client could determine that there is evidence of a substantial contribution on the part of diabetes toward the decision to sever his leg yes i think so because the way the doctor discusses it is this was a further issue another words he went along for five plus months being treated for the leg injury and then the diabetes kicked in with these other issues what if it's he's probably also affected by his age if he's elderly so he heals a little more slowly and so it takes five months and they figure out he's never going to heal that would it being elderly be another thing that would allow you to exclude coverage i mean and there are a lot of things that my point is there are a lot of things that could contribute to how someone heals diabetes is one of  age is one of them maybe how well he's eating is one of them and it seems like the very fact that the doctor said this is a contributor you're jumping to it's a substantial contribution that excludes payment here and i don't understand how you're getting to that jump because the actual language is an exclusion for physical or mental illness that caused or contributed to the loss this diabetes is a physical illness the doctor said so this is what let's go back to before so you seem to be saying how are you saying substantial factor test just not apply because it's not in the actual language is that what you're saying no i'm not saying that i'm not saying that what i'm saying is that the i don't remember if the district court use the chinaware hand was there is no doubt that the infection caused by the injuries sustained in dr mr jett that his car accident was a predominant reason for the amputation but that is not the operative question defense policy dictates of the accident must be the direct and so cause of the loss and that no other physical or mental illness caused or contributed so he seems to be applying a sort of zero contribution test  well with the with the district court said at page nine of the opinion was these statements statements and the various records explicitly link the presence of mr daddy's diabetes to the need to treat his infection with the more drastic remedy of amputation and it seems to me or does not apply substantial factor how do we know that the district court was thinking about this correctly in the correct legal framework because you've acknowledged that substantial contribution is the relevant test and yet nowhere here does he make clear that he is thinking of it that way well i think the room i would say that that comes from the fact that the district court's finding was having reviewed the medical evidence available in the record this is on page ten the court concludes that mr dowdy has diabetes caused or contributed to the need for amputation well it is true that plaintiff's injury in the accident was serious and was described in the record as a near amputation the actual  lawsuit issue and plaintiff's claim is the surgical amputation that occurred on february thirteenth two thousand and fifteen five months after the accident the notes of mr daddy's orthopedic surgeon make clear from that the amputation was completed to treat an aggressive infection that this decision was made at least in part due to the impact of mr that is the job even of substantial factor it just says do at least in part and say what part and you still haven't really answered me as to whether you accept a substantial factor or i'm confused about i mean you began by saying that we ought i may be you are saying that we shouldn't be looking at the state law cases so what what is the standard that we are applying well the standard that we're applying is the standard that applies under reso which is you look at the plan document you see what that says the court apply is legal legal conclusions in terms of what does it mean and in this particular case since it was sitting as  adult we look at the fact that there are about one hundred years worth of cases in the state saying what the same language means to me look at that or not i don't know i don't think so big and the reason i what do we look at so you're saying the not if we're talking about importing wholesale state law concept so what is the standard the standard is what the district courts in the courts of appeal and the supreme court articulated to be which is you look at the language of the to decide what is the standard i do i think the court has to apply the language as written i mean that's really the best i can say because how public or doesn't who are give some direction that you use the substantial factor isn't that the test that comes out of the core that is one of them your honor either one is proximate cause right which would be harder for you well no i don't think i don't think it's harder because what we have here is a plan language that says caused or contributed and soul and soul and direct direct is proximate cause soul a completely different issue that's exactly what the daddies are fighting about here is the plan language says direct and sole cause and it is not a sole cause that's what the district court found the district court found that it accepted the treating doctors analysis and said it's not the sole cause fear then that you are rejecting the substantial contributing factor you are rejecting them of course them dared and you're basically using the literal language of the provision to say if there's any demand of this contribution from any particular other factor in this case diabetes then there's no coverage no your honor i'm not rejecting the clear i'm saying that this is that this is a i think it's an area that has not been fully developed and so what do you think the standard is for how much it needs to contribute for you to win this case the diabetes to contribute how much does it need to contribute i think it needs to contribute to the need for on for the amputation and i think that that is exactly what the o e dog carry out also if it contributes point zero zero one percent to the need for the amputation that's enough on your reading and that's what you want  complicated by the diabetes that is all that the plan administrator had complicated by the diabetes is that enough to establish substantially contributes or significant factor that you just said well that that particular provision your honor does go on to explain what the doctor was talking about it's quoted at page ten of the district court's opinion says he mr dowdy had wound issues which were complicated by his diabetes that wound healing as well as his fracture itself was slow to heal and never had any significant healing in spite of being stabilized with the extra nl fixator he ended up developing deep infection in the right lower extremity consistent osteomyelitis and sequester him which was related to the original injury eventually due to his co morbidities as well as the type of injury he ended up proceeding to an amputation you're relying upon diabetes and there is no  to diabetes in those later descriptions of what happens to him is that well respectfully a minor offense the diabetes and its contribution is then that one half of a s clear import of what his doctor was saying his doctor wasn't saying oh by the way he had diabetes and then these other things happened the doctor is clearly linking them together and all it means is it's a part of the cause and you seem to not be willing to that being a tiny causes enough you're saying that it needs to be something more but then how do we know that this means that something more than a tiny cause well i guess we come back to the same thing which about the complication of diabetes at the bottom of page ten is from the administrative record i said you said that the district judge made a finding that there was a substantial factor i still have not found or even significant factor entered find either one in that order well what i'm what i'm what i'm saying is that i believe that that is exactly what the district court found because if you look at the top of page eleven of the opinion where again the district court is quoting from the administrative record and  amputation indeed dr koop will explicitly states that the wound issues leading to the education were complicated biased diabetes and due to his co morbidities i think that is exactly what the district court is saying here is that the district court didn't i don't think come to a conclusion that these two things existed in the same universe or in the same person's body but were unrelated that's not was the district court was saying i think the district court was saying exactly that that was in fact signal dressage and then your time is up in terms of the standard of review here i this is always been kind of hairy in the play and context because the no i gather there is a an agreement that this is an and not abuse of discretion review making credibility determinations and doing all the things that it would do if it had live witnesses in front of it so in fact if we think the district court applied the wrong standard to find substantial contribution incorrectly would we need to possibly it depends on the depends on this court's analysis but so that he wouldn't apply that standard whatever if we further articulate the standard we couldn't apply it ourselves would have to would we have to remain and i don't know if i can answer that in a vacuum because what i'm saying is there were a number of factual findings that the district court made applying a different standard to those findings i don't know the answer because i don't know how this is going to play out but can i ask another question has this case ever gone to  mediation yes it did and when was that here in this court i don't i don't believe it happened in this court i think it happened at the district court level only so we have great mediators here would it be fruitful for this case to mediate i don't know i certainly would never say no and i'm sure my client would not say you know ok well what we would do if we did that is we would refer to the mediators really  i think i i think i can be very brief the standard review under metropolitan life insurance company versus parker is novo appear i don't think this right is to nova review up here there's no deference to the trunk what about fact finding though don't fact findings get reviewed for clear but there are the you have the exact same record that the district court has then you have a have a fight for that i thought that and i haven't looked at it because i didn't anticipate this coming up but i thought that the metropolitan life insurance company case that we cited on page twenty one did that i am not entirely sure i have to go back and look the the problem of course with the receipt cases is that the depth of coverage law in the federal common law is very shallow ago that you a beneficiary should not be harmed by the application of research they should their reduction their their their benefit should not be a last year century saying that when federal common law conflicts with state common last night state common law broadens the protection for beneficiaries then federal common law becomes secondary and is essentially outweighed by the law so that you have a greater benefit for the beneficiary i didn't mean to put it that way the way i meant to put it all do i know you didn't put it that way which is the logical conclusion from what you said about making sure that beneficiaries are not harmed by a deep out there in the in oh if you if you said eva some federal common law talks about substantial and state law in fact it would be a proximate cause which is a much more pro plaintive standard what you're suggesting under your logical conclusion the people beneficiary should get the most benefit from the book from the plan you'd apply the state common law yeah yes i yes i would because otherwise you're putting your money in a match either a substantial factor or proximate cause i think that's correct but let me just say it's one more thing and then you don my understanding of what you're saying just specifically is that if first some it's more like the notice prejudice requirement a new name and therefore is within the insurance exception and applies but then we still have the exclusion if we get to the exclusion matters with regard where the burden is because you're still applying a substantial factor test but you would argue what the burden on the insurer is that so i understand your argument i think that's correct yeah ok that's the thank you very much what's your position on whether mediation would be fruitful we've been listening we wish we were in a mediation of the state at the lower level of the district or level a went nowhere happy to participate i never heard that down we just haven't made any progress at