honor thank you your honor obviously we have quite a number of issues and we don't have time today to address them or so i think what i would like to do is focus in on the issues that we regard to be the sort of silver bullets in this case the issues that absolutely compel reversal under well established precedents of the supreme court in this court perhaps the single greatest and most prejudicial error committed by the trial court was allowing insurance salesman frank cleary to perform the roles of percipient witness lawyer judge and jury all in the name of giving expert testimony on insurance industry standards of the circuit first it cannot be clearer under the supreme court's decision and and this court's decisions in general tar and her manage that all forms of expert testimony including expert testimony based on experience must be screened for a liability before it may be admitted even though we brought these cases to the district court's attention the district court  it's so clearly and highly prejudicial in any event if you try do that let me let me just refer you to the page where that where the judge ruled that he did not need to address reliability at all you'll find it at page two seventy have no duty to do sell that it is improper to construe an insurance policy that was approved by the california insurance to the point and hence is conclusively presumed to comply with california law according to its literal term her that it is improper to fail to provide the i am there with the policies definition of total disability even if the doctor is not being asked to render an opinion as to whether insurance totally able and here's my  improper to encourage clane handlers to assume an ownership mentality when performing their jobs as clearly conceded during cross examination the only source he had for any of these opinion the district court allowed him to room for beyond that limited area of expertise and instead to provide the plaintiff in an internal company documents and testify from now on not only their provenance was engaged in all manner of improper practices but also the problem with the adopted these practices after the merger and then proceeded to apply them to trying it now let me give you an example if i can of what i'm talking about if you could turn to four of the ex of record this is one of the plaintiffs favorite documents and i realize not everyone may have may have been in front of them and i hope you will go back and take a look at it in chambers but this is a document that clearly testified indicate it was a direction to claim alter claims files to not fully document claims files to destroy documents now when you go back and look at this document i think two things will be immediately kind of advice contained in this document about confidentiality thinking before one speaks and shredding necessary documents of a sensitive nature is precisely the kind of be the subject of cross examination is instead of the matter that a judge should do a totally unrealistic burden on the defendant i mean it's just drawing attention to all of the documents that the pla claiming reflect that it's a big company and it's just causing more and more and more attention to be placed on stuff that has no real bearing on the case so i don't think the fact that we could cross examine on it was an adequate to our for well i don't remember if that particular question was met with and contemporaneous objection but we have a detailed motion in limine a we had a detailed motion to strike all of his testimony that the judge deny  expert and that opens them up the up the door for him to basically stay in the shoes of the plaintiff's lawyer and say take a look at this document this says this is a terrible company take a look at this document they're profiling claims they're destroying documents on but i'm not sure that that should be a good reason to depart from the law and the other circuits that recognize there's there's a sound reason why you would apply a higher standard twenty expert witness because  testimony is almost always unique to that witness an expert witness if one is unwilling to come to testify you don't penalize the other side you go out and get another witness who will when you  his experience as a as a doctor who participated in claims and the objections are raised and the judge says it's admissible as expert testimony but as i said if they wanted have expert testimony on ethics of provenance claim handling practices they could have hired an expert who would have come to court a match saying that his percipient testimony was excluded all on this ground although we have other grounds but the judge should have limited it to that having admitted it under that lower standard let me move on to the next point which involves the provident documents that were admitted again documents created by cropping and during the time when the two companies were still competitors two of these documents exhibits thirty nine and one thirty two which you'll find in the excerpt of the record at least page two functional past evaluation so in other words they're trying to say well look you violated your own standards with a document that has no connection to the company i see i'm running out of time quickly i wonder if the court w r let me start for two minutes on what we've just been listening to and discussing volume one of the appellant's excerpts of records you have the decision of the district judge a carefully thought out detailed well reason resolution of all of the claims that have just been made to you of evidentiary error and i commend that document to you sixty two pages that resolve all of these issues very thoughtfully and show why the judge made his rulings and i'll get to specific reasons but i encourage you if you're at all persuaded by what you've just heard to please check with the district judge and see why his explanation of why he did what he did with respect not only these issues but with respect to the findings of bad faith and the support of the finding of reprehensible ready for punitive damages turning to these specifically that when asked about whether there was an objection raised to the testimony of cleary and my understanding of the record is this and i'm sure my colleague will correct me if i misstated there was a motion made at the beginning of the trial and it was ruled on that page twenty three to twenty five of the transcript in my notes indicate that the appellant's initial objection at that time was overruled by the judge but he said subject to a subsequent motion and as i read the record those motions were never made those objections were never made i just quickly reviewed that portion of the appellant's opening brief that deals with  i didn't see any citation to any objection in their opening brief about his to his testimony so i would suggest that this issue was waived for the first on the first as a first point have to do with scientific evidence yes including kimo those cases that line of authority as i read it has to do with scientific evidence that is brought in to court for the first time by the expert who has been conducting experiments and is now going to tell the jury that the result of his testing in his scientific work is a b or c and if that is not peer reviewed if that testing is not peer review and if it and if the district judge doesn't perform escape keeping function to keep junk science out of the courtroom then it should if it's admitted it is error and it could be a source of reversal that is not what we have here we don't have any scientific testing this is not a case about science applies to all expert testimony not limited scientific well if we understand it that way to apply to the experts knowledge then this expert had the knowledge question but he considered the basis of the objection he said albert doesn't apply but he certainly understood that the rules of the federal rules of evidence apply and that there has to be a substantial basis for the expert well that's that's not a significant problem because then the next step you have to go to is to look at the qualifications of this expert in itself and ask yourselves if the if you believed our prize which we're not conceding then you have to ask yourself well if he had gone through that exercise would he is there a reasonable probability that he would have reached a determination to exclude this witness and i don't believe that that that conclusion can be sustained on this record you have a man who whose advanced degrees or math yes his advanced degrees were in life and health insurance he was then taken continuing education courses from this very dependent community provident and other insurance carriers he's worked with insurance twenty five fifty times a year on their life health and disability benefits he has sold these policies he specialized in this field for twenty five years he has seen in his office with claims how they are adjusted he has firsthand experience with how they're investigated how you get attending physician statements and medical records and how you do a fair their own objective evaluation of the claim i don't think on this record you can say that it's reasonably likely that if the judge had decided albert applies that he would have excluded the witness and then let me get to the next point if this witness had been excluded is it reasonably likely that a different result would have obtained and the answer to that question is you know these reasons clearly is testimony was sequence i believe he testified at the start he was the very first witness that's my understanding usually the first witness was not chosen by accident i would guess not i wasn't the trial counsel so that experience the trial counsel testify i mean usually you start off with somebody that real good for your case well if i could finish my thought i think i can address that exactly this is a case in which three or four witnesses who were present or private former employees of the defendants all testified on this subject and there was a wealth of documents that were authenticated from defendants all to the same point really all clearly did was explain was read the documents or put the documents lay language for the jury and what those documents showed and what mr mani's testimony showed and he was the engineer of this claims cutting initiative what the testimony of sandra frick their nationwide litigation manager showed and sullivan and ryan and dr feist people with firsthand knowledge all showed that at some point before this policy was purchased monye and other people organized a way to cut claims not because they weren't meritorious but because they cost too much money and they were causing what's called in their documents adverse results and therefore should policy said his claims initiative for terminating claims that we should set a goal we should set a goal that we benchmark the number of claims we're terminating in relationship to the number of new claims that are being filed and our goal is to get to eighty percent in one document or ninety percent or even above that in other documents now it is not a good thing to terminate claims because they don't meet the insurance company's financial goals and that's not a complicated concept and clearly is testimony it was not necessary to get it for the jury to understand that this defendant had a scheme documented in in a wealth of documents that moni discussed and owned up to and acknowledged in that were supplied by this defendant and that are exceptions to the hearsay rule because their business records and her claim came underneath so my point i have one and two points in the first one is clearly was not necessary for the jury to understand that this man is had this scheme to cut claims to meet financial goals not on the m my second point is this if you just look and the jury just looks at how this specific claim was handled without regard to the scheme to cut disability payments that time and again the bad faith of the defendants in terminating this claim and i'm reading from page four of this letter which is that excerpts of record one forty four and there are three points on this page that are very significant the first is and most obviously after they terminate the claim they say it appears your claim is governed by a this claim is not governed by russia but what they knew would happen and why they wanted her to believe that is because arista does not allow for a jury trial it does not allow for the damages the california law allows for it would mislead her with respect to what she thought her rights were and it would discourage an attorney from ever handling her case so at page four of their terminations letter we have a false statement they're not communicating honestly with her when they say it appears your policy coverage is governed by the employee retirement income security act risk that's a great way to keep yourself from being sued is to lie to your insured about what their rights are other than that the person who sent this letter knew it was also i think the jury it was entitle to infer that this this company and this employee knew the difference between an arrest  claim and anonymous a claim there one of the documents of their own documents is to say is to the effect of here's why we want to move claims into the arrests or category and they talk about no jury trial no damages things of thing i have trouble sometimes annoying with govern virus so let me ask my question again is there anything that clearly indicates the company knew this claim was not covered by a risk just the fact that it's an individual policy written to her and has nothing to it has nothing to do with the risk if you know anything about a risk that you know this is not in a risk of policy and is there any evidence that the person responsible or not mr solomon somebody actually responsible for making the decision to send this letter to her was conscious of that answer may be no and i don't know i want to know there's something else i can't think of anything else that offhand but i think it's shocking that they would make it i knowing false claim like that let's go to a couple of other points above higher up in the letter which would be the second third and fourth paragraphs they talk about whether she's working or not and they deny different benefits by taking opposite positions on whether she's working in the second pair in the second full paragraph starts we would also like to remind you of the definition of total disability which they were not engaged in other gainful occupation and as we stated above earlier it appears that you continued to work in your business and did take a draw from the business that draw incidentally was funded by their own insurance policies therefore regardless of the extent of your impairment you would not qualify for total disability benefits under the terms of this contract because you're working well they knew she wasn't working they knew she wasn't working because if you go to the next paragraph it says as you may recall you again met with our representative mr cantor semen on april third one nine hundred ninety nine mr seaman met with you to provide our position on your claims to tell you we're denying it at that time you advised that you have now sold your business we know she's not working and that's one of the elements that qualifies you for total disability that you're not in the three elements you're not able to perform the important duties of your occupation which she was and you're not working and you're under the care of a physician so they deny her total disability benefits under false pretense that she was working when they knew she wasn't working then there's a provision in the policy that covers people who are working but don't earn the same amount of money that they used to earn it's called residual disability and then makes the end you but you have to be working to get residual that disability benefits because it compares your current reduced income to your income before disability and now they switch wheels in reverse their direction and say since you have now sold your business and are not working you would not qualify for overhead expense and nor would you qualify for residual disability benefits well they can't have it both ways and yet they do here within three paragraphs they take opposite views of whether she's working or not to do whatever suits their purpose if they want to deny or total disability they say she's working and if they want to deny her residual benefits they say you're not working now which is that the jury could infer bad taste from the insurance company misrepresenting the facts and misrepresenting the policy coverages to the insured in that letter and now let me come to my third point that the pop of this page they say based on all the information in your file it does not appear that you would be totally disabled under the terms of your contract and that is the biggest improving if she could do it that's the testimony of dr payne monny her coworker who wrote who wrote this company a letter in one nine hundred ninety eight and said she can't do any of her dut do they follow up on that no do they have a duty to follow up on that they sure did the duty to conduct a reasonable investigation as the jury was instructed includes the duty to do consider evidence of coverage but they didn't consider evidence of coverage did they consider the m r i report of one nine hundred ninety seven which showed mild spinal canal narrowing that's objective evidence that supports the pain that she was having do they consider that now if they consider the one nine hundred ninety six m r i report that she had that showed deterioration in her shoulder and problems with her super skinny just muscle that that was object of evidence of her right shoulder injury did they consider that now that they consider dr berry's the treating physician the treating chiropractors opinion that she was totally disabled as of one nine hundred ninety seven did they consider an honor the opinion of dr i saw another treating physician who never said you were disabled and you can't work and well check with you in a few months and see if you can work and over a progressive series of visits he always moved the date out further as to when she might be able to work and he always said you're disabled right now you cannot work yet they characterize him in their brief as a as a doctor who said she was not disabled it's that weren't so serious it would be laughable all of that they disregard in violation of their duty of good faith and then we come to dr swartz where i am a doctor he was biased they used him repeatedly they got a financial  op obligation from him and he never on this record never found one of their insurance disabled they sent a letter to him and they signaled to him what the conclusion could be which was the same he conducted a superficial examination he avoided object of tests that would have just showed that she was injured and couldn't lift the twenty to fifty pounds that she's required to list in her job description excuse me o they object to from kaleri and fifes if you just look at how they mishandled this specific claim and ignored valid object of evidence of her disability and in addition pain that she complained of they never questioned her credibility they never doubted  you go back and look at the testimony you can see that's just totally inaccurate and that the judge was mistaken now met mr smith went through a long recitation of what all of these documents supposedly show that's fine for a lawyer i