your honor we're here to respectfully request that the court reverse at least the finding that relates to the two hundred thousand dollars the finding was made or odiously it was made without evidence cherry support it was made and we were not heard on the damages we asked for an opportunity to be heard on the damages what do you think is the proper measure of damages the problem measure of damages is the what is contained in the arista plan in this case  plan there is language all over the place and that speaks to incurred expenses and those expenses that were chars and i'm going to give your honour's specifics first of all the complaint which was never meant to by the way complete was drafted same language is quoted page thirty three it says terminations of your insurance shall not affect payment of benefits for any covered expenses which was incurred prior there too and are referring to the events of terminations so their words encourages specifically used and if we go on to page record extract page number three hundred sixty four in the definitions section of the plane again to answer your honor's question as to the measure where do we're doing ascertain get the damages your honors will notice the under covered expenses again on page three sixty four it says those expenses charged the cover provider and medically necessary for the treatment of illness or injury if your honour's would then go to page three hundred seventy one again record extract three page three hundred seventy one your honour's will note the under medical care decision it says the benefits under the plan provide soley for the payment of certain health care expenses and that means that my question though it appears that the two hundred thousand dollars that was awar the maximum payable under this and it probably was measured against for example the cost the estimated cost of the liver transplant which never took place so what do you think what do you think that they're entitled to the you've lost the case so i want you to assume that you're losing the case ok and now the only question now is what are the one of the appropriate damages so from your perspective what are the damages damages are out of pocket losses and what would that be forty one thousand five hundred forty one thousand five hundred plus plus the attorney's fees attorneys fees would have to be adjustments why out of pocket losses because the plan is very specific that the amounts to be paid are and this is not a  line in the declaration ses say and look at the exhibit number easy which is record extract number two hundred seventy nine and if you go there if your honors were to go there you have signed it's read it's every day actually document it's addressed if not of a liver transplant was not available your honor respectfully we don't know if a liver transplant the liver was available we don't know that's we don't know but this is all pure speculation on the part of the court i may respect but no i'm not i'm asking the question but i should want the yes out of you before you give me the conditions yes or ok so why is not the end of the case i mean you know those other things you know your hero after the fought you admit you should have paid the money you should have made the money available the guy loses his life over the fact that you your client doesn't pay for the transplant why don't all the influences run against you and why isn't the district court on title after you've  to treat the amount payable as if it had actually been paid because there were no first of all the plan language governs the activity and the interaction between the parties they had to be charged item we don't know it's all speculative number time so your position is by the fusing to do what the plan requires you to do you can get out of paying for it no i and he dies as a consequence that's too bad well deference because they view themselves as as immune and right or wrong they they we ought to give them opportunities you know that's wrong because you've already been here twice the ninth circuit as your clients lost actually both of them lost on that issue right right yes i mean so you've known for some time that that was that that was a losing argument well i think damages your honor are not are not right but the same as liability but what i heard you arguing here was that you want to go back and introduce the hospital records to show that topic that came up about whether or not the district court heard all the arguments and they exercise their discretion and they found under the plan and all the evidence that the re existed egypt in their words committed themselves to a recipe plan and the purpose of that plan is to provide compensation to somebody that is denied benefits in this particular case the list cian family put their trust this plan and they were betrayed the trust council could go to the question what is your best response to opposing councils argument that the language of the plan is limited to he's arguing essentially medical expenses actually incurred what is your response please they denied those they betrayed the little change family and interrupted and cut those off so that they couldn't be incurred incurred and i don't think that the language and i'd have to study that you know go to back to their references but my understanding of the plan in the district court looked at all of this and said no these expenses were incurred or would have been incurred had you not denied the benefits and that's specifically the purpose of the arrest of the statute that's not like that sounds like either compensatory damages for you or punitive damages against them well neither it's the benefits that he had under the plan an employer can't just say hey  the plan you're going to be incurred these expenses we're going to deny you to even incur these expenses and then therefore say you're not entitled to the benefits under the plan that's doesn't make scammony under that reading of a plan anytime there's a very catastrophic medical expense that would always interest in terms of dollars and cents the plan's always going to come out ahead by making sure those expenses aren't incurred that surely can't be as a very perverse reading it strikes me is the case law on this where there's a large transplant expense like this i haven't seen the large transplant expense like this but just common sense would dictate the benefits under the plan that's the thrust of the arrest of statute you're entitled to the benefits under the plan and the employer is not to deny those on there you know those are just facts as to what as you know about that whether the cap was one hundred thousand or two hundred thousand how much the liver cost the liver transplant was going to cost and so on is there any evidence here that the just the court actually thought through the question as to what somebody is entitled to under arrest i believe it is contained in their findings here yes  he incurred the forty one five he had the benefit of two hundred thousand so certainly a recognition that haven't all been incurred and hadn't been approved there would have been the expenses of over two hundred fifty thousand but they were wrongfully denied that seems to be the extent of it i am i missing something no i think that's that's where they indicate that he was and then they go through the one hundred two hundred and we set forth in the rather extensive grid in our briefing to the court on record number one thirty four where we talk about the difference between the student and the teacher and those factors and then as the court points out in what your honor just read that they do establish that they they had  been and approved surgical expenses of over two hundred fifty thousand and other words on the record page one eighty six it appears that the medical committee for the university had approved the request regarding the surgery operation so they had been approved and it was a live available well apparently according to the doctor's records and letters they were in the transplant area and all they needed was the go ahead sued to recover that's provided for on the plan what's what your answer to that argument that would be kind of unfair that would be to put that kind of a burden a quarter million dollars on a person dollars not just you know you know some of my own that's substantial but not an affordable can somebody say i'll just do without it suffer the consequences and then sue for the expense that wasn't incurred because you than i did i mean this is this is really sort of changing the nature of the plan in a substantial way it was a showing that he couldn't afford to quote  yes i think he couldn't afford forty one thousand five hundred even apparently that didn't get paid either well sometimes things don't get paid because people don't want to pay a month sometimes that's true but i think evidence not being able to benefit you have a choice to incur the benefit and sue for for compensation or you can choose to forego the benefit and sue for what they would have paid and i don't think the statute or the statute contemplates that nor the plan does and i think it was contemplates that you can just not encourage it and then just you know have that kind of an election you have that glam pan blent benefit lifetime benefit and if you interfere with that benefit you're you're running afoul of the arista statute and in this court case the court did not abuse its discretion in finding that those benefits were allowed and part of the difficulty here in the court district court found prejudice with is that i have to speak is the voice of a dead man now mr machine is is not with us because of that it simply unfair to put that kind of a burden on him when the arista statute that egypt committed to says that if you're denied benefits or not if you have to incur men then submit a bill and so forth but you're denied the benefits and the point they've they disputed whether it's one hundred two hundred thousand or more all over the map but in this case they been denied benefits and because of that our position is that the district court did not abuse its discretion egypt had the opportunity they chose to not follow up on that opportunity and we're left with a severe prejudice and so our request today is that the court you know if you're going to ask for consequential damages consequential damages may not be recover davis medical center and it says at the bottom upon admission for the transplant procedure will require prepayment of half the case three hundred twenty five thousand dollars and that the balance has to be paid within ninety days of discharge other than this factor was there any  and there's a considerable force upon it on this in this case i just want to make sure i haven't missed anything else about you know the the approval on what it was going to require upfront to get the to get the transplant is there any other but as far as you know that's the that's the most specific record i think there's another letter from doctors are you know that also similar to that  have two seventy nine that are of that record is very telling and that came from the files of the egypt and their plan administrator it's substantiated by a date of may first two thousand which kind of puts it in the same timeframe that we're talking about all of this climate died in december of two thousand i think is that right december of two thousand hear us ok thank you ok thank you very much ok