good morning ma'am please the court my name is darwin robertson of assistant u s attorney in seattle and i represent the united states in this appeal this is a federal tort claims act case under the f t c i did states was to be held liable to the a private individual under life's circumstances simply put we're here today because the district court was required to apply the washington periodic payments statute for fifty states to sixty upon the request of the united states one is again under subsection five it does give the court the discretion to decide what should happen to any remaining funds at the time and should the tort victim die before those funds are exhausted and also under subsection to it very carefully directs the court to specifically take into account the interests of justice and the needs of the toward the victim and setting up a periodic payment scheme and it clearly does not restrict the court to the proposals that are made by the parties themselves it directs the court to solicit proposals from the parties but it says the court shall select the proposal with any modifications the court deems necessary in the best interest of justice and the to believe it is the district court here required to make a finding on what the future damages will be and yes your honor under the terms of the statute the district court is directed to under subsection one shall make a specific finding as to the dollar amount of periodic amants intended to compensate the judgment creditor for the future economic damage s and then a man could be put into a trust and the bills paid out of the trust yes you're i mean it depends a little bit on how it's structured obviously subsection two of the statute allows the parties to submit their own steed to the trust corpus would allow that to be it would allow flexibility in that approach of course that the court is not obligated to adopt the approach that suggested by the united states that your proposal would be that the bills point the court to e r sixty seven lines seen the united states request that the courts award for future medical payments to which they do trophy in the form of periodic payments and then the united states made the proposal that's found at seventy seven to go through that because i think there's some other questions involved here i'd like to approach this a little bit differently one somewhat of legislative side one on the procedural side and then really on what the facts of this case were and what statute it allows only for periodic payments at the lower level in front of judge lane was a very carefully reviewed this entire issue of what the government asked for was a reversionary trust for medical specials only first starts the statute that's about the statute under the author of proof he refers to a discrete periodic payments and cites the statute are you saying that the district court at that time was own aware that the washington rule w four fifty six to sixty there's that there was no question about that so he knew he was dealing with the statute absolutely and decision and what is it that he was required to do the district judge well there's a number of with you here when he says that he's supposed to ask for proposals from both sides and literally the government has to come in because it's their burden of proof to come in and request it so the government need it and as far as what it says it says the court will now say timeout  and we said that we didn't believe that for fifty six to sixty applied and it did not allow for reversionary trust the reason is just based upon the record what the government was asking for was a reversionary trust under  g the government we're not producing the provisions you know that you're arguing that the structure doesn't apply and it sounds like that's with the drug was awful i understand your legal challenge but i you're on or what happened was is that prior to trial within the short period of time they asked for reversionary trost we came back and objected to that proof and said that we do not believe our state statute allows for it there's only two ways that the government can have a reversionary trust and state law i understand that one is if the state has a reversionary trust stature and that then the district court has the ability to fashion a remedy consistent with that statute  don't have that statute because it does not allow for a reversionary trust the second way is to come in and say that it has the district court has the inherent power to create a reversion area trust only if that's in the best interest of washington the district or the government what washington has decided over twenty years is our schedule of damages we don't allow for reversionary trust sect is there's the problem is i understand what you're saying is once they used the term reversionary they're now well if they can and the statute does need to be found i don't think it's quite that simple and i have i don't mean it to be that simple but when they need to specifically say we're don't see when the court does mean ask both sides for a plan and begin to look at it the challenge has been complied with and maybe you can help me with that and i'm but let me let me try this way  when when they presented it judge leighton knowing of the statute told us that at several different times to see if we could work out a procedure whereby once the case was going on and evidence have been shown that the case resolved through settlement we attempted to do that on a number of different occasions so in essence we looked at this statute we discussed the statute but in terms of us coming forward and saying here is our proposal for periodic payments and i didn't do that because i don't think the statute requires periodic payments in the reversionary form trust now what we did do though is we presented the evidence of robin also it was the guardian of jose do a truck and who is the trustee who came forward and said if you few have any kind of reversionary trust that may in fact be illegal in terms of her position she she develops a guardianship and then she develops a special needs trust fund or a special needs trust she has to pay back to medicare the benefits that medicare pays for his age which are over it's like time that trust me in fact he violated if in fact there's a reversion where the government ends up with one hundred percent of the money at the end trust there was a number of other categories that she discussed what in fact would be the best interest of jose to address which is really anticipated by this statute the second part which which has not been read yet but the court shall select the proposal with any changes the court deems proper which in the discretion of the court and the interest of justice best provides for the future needs of jose and that's what judge clayton really did he listened to several hours of trust and then her trust which has this corpus or other dot other amounts of money for the benefit of the child having to then administrators to double expenses and having these conflicts of law tweens the reversionary trust saying that all the money go back to them and her obligations under the special characteristic in which she has to pay back benefits there were a lot of other ideas to that but so judge late and i think that it extremely good job and looking at what the and find it for you but it's very clear on the just very briefly your honor the special needs trust is really a red herring here it was created by the plaintiffs it wasn't created by the court the trust instrument isn't even in the record anyplace i don't think it's really before the court what exactly it is but regardless of fact the special needs trust does not satisfy the statute the court didn't satisfy the procedures because it didn't go through the steps it's required to do to create especially its trust and it doesn't satisfy the requirements of the united states be held liable to the same extent as a private party because the special needs trust does not provide for periodic payments and it does not give the united states the potential future right under subsection five of the statute to petition for disposition of any remaining assets s