and so we'll turn to the day calendar well here kim versus hartford  insurance good morning my name is juan once again the entire courtroom in the back is empty virtually such as hold on a second don't take it personally  k whenever you're ready right my name is robert boch i represent the plaintiff appellate mari kim the policy in this case to find mental illness as a mental disorder as listed in the current version of the remit i understand that but your first opera gave to execute the agreement i i'm hard pressed to understand how they could substitute a difference dander when that's a contracted see if the contract is standard is wrong for example if the plan said to him to is equal to five you would follow the plan and using that an analyst as you would have to correct that is my position and what authority after that because usually whether it's plans or statutes or whatever when there's a definition or a standard given that is what we apply we don't entertain arguments about whether it's right or it's what the parties agreed to but if the parties agree to something what's the what's the authority resume to be fair honest loyal to the participants of the plan and if they use a standard that is knowledgeable that they think you know is incorrect or is arguably incorrect they have a duty to review it in the to bill case it was a question of supreme court decision came down to twenty fifteen there was an argument that the products that they were offering to the participants were not and were expensive or too expensive and that there were other products of vailable to the participants that they had access to a different standard from the standard provided in the response my response is that in to pull the cord said that there was a viable cause of action and then referred the actual factual issue if in fact there was additional opportunities manes broadly accepted right and even what our court just a few years it is and an objective ours well that's the problem it's not an objective with already that morning according to home aren't don't isn't there a genuine disagreement over the continued validity of the d s m in this respect there is i mean  that there is a genuine disagreement how can you say that it has to be your way well what i'm saying i'm not i'm not arguing for substitution what i'm arguing is that the plan has an obligation with a reasonable has an obligation to review that that concept for example if i as a person went to the plan and said the d s m four is not very good it needs to be changed that's one thing doesn't help you unless it is changed well one step at a time i think the next piece to my argument is that when you have very highly qualified individuals so for example thomas insulin who was the the head of the and i am age saying that there's no scientific validity to the d s m packages volumes that's that's different that's a different person saying a person of knowledge a person who is in charge of funding all sorts of mental health research projects when the d s m fi was published he said we're not going to use that anymore if the d s m five is involved because there's no scientific validity and what they mean is that the science of the d s m five is based on consensus of practitioners his argument is that there is no scientific validation so for example you establish the hypothesis you test it you publish it and then other people come back and they review it to see that if the fact duplicate process the other argument that he makes is that the system that they have a stablished is incorrect it's based on symptoms and he is saying that is an archaic way of looking at the distinction made at the by the d s m saying that their system of this mind body distinction is a outdated and really is archaic and that you need to take into consideration certain different concepts our concept is arthur feeling our argument is that it's put in the papers and in the appendix particularly because i would refer you to the appendix to look at some of the articles of criticism of the d s m established people have made this to not just somebody coming off the street or you're asking this court to hold that definition in the d s m four is no longer valid scientifically well what i'm asking for them to do is since there are serious allegations that by serious people credentialed people who did not say this is this this product is not good that there is a basis for we've met a threshold of coming forward for the plan to fiduciary obligation to to review to review that to review the argument made that the s and for should not be the standard what happens is that where that definition is so very broad that for all practical purposes of somebody had a cold pneumonia cancer any of the norman common diseases and you can thank you your honors mate please the court patrick bay goes for appellee heart for life insurance company the employer in this case the school of visual arts didn't need to establish any disability plan at all and under the rules of orissa under the statute it had the authority to determine what benefits to provide and what limitations to provide the school had every right to limit benefits payable for bipolar disorder or any other mental  illness and it's the obligation of heart for life insurance company as a claim fiduciary to carry out the language of the plan mr bach mentions frequently that there's a  specifically written into a risk as one of the duties that a fiduciary must carry out there is no analog duty by a claim fiduciary to review the terms of the plan i would say the fuller case that this court decided about ten years ago i think as judge korman found below applies even more strongly here in fuller the definition of mental illness in the plan was was my more vague it was i think mental and emotional disorder and the court found that this court found that referring to the d s m was was reasonable because it's an objective catalogue of mental disorders here the plan specifically defined mental illness by reference to the current d s m so as judge korman found fuller applies even more strongly here and already how do you respond to counsel's hypothetical that if the plant's a two plus two equals five the fiduciary would be obliged to correct and i think actually if the plan said two plus two equals five in most cases the fiduciary would be obligated to treat two plus two as equaling five i can't really imagine that situation taking place but the supreme court has said again and again and again that the plan is the centerpiece of a recess that the court has no authority to change the plan that the courts obligations to enforce the plan same for fiduciary the the duden harf a case which is something of an exception it's the only case i'm aware of where the court suggested that the language of the plan is somehow subordinate and they are  dealt with a very specific issue as an employee stock ownership plan which under the under receipt as it was an acted couldn't exist because arista imposes a fiduciary duty of diversification on investment manager so you couldn't have an employee stock ownership plan congress passed a law which encouraged and allowed employee stock ownership plans and so the question there was where congress eliminated the duty of diversification to allow employees stock ownership plans did that also modify the duty of prudence to the prudent person standard most of the circuit said that it did and the supreme court said that it did and that the plan cannot be drafted quite the opposite it imposes on hard for the duty to carry out the terms of the plan i would just leave the court with there's a decision called dovi unum life by the southern district of new york from a couple of years ago which had this exact issue come up and the court held quote plaintiffs mental conditions may have physical components or biological bases the plan however is concerned only with whether a condition is classified in the d s m plaintiff's conditions are so classified whether those conditions have biological bases is immaterial the same logic applies here unless the panel has any questions for me i'll tender the rest of my time thank with respect to the challenges to the d s m i would just call your attention to the appendix the article starting on page thirty one through fifty seven to give you a range of the commentary and the problems with that document in that whole package the prince says the plan has granted the insurance company hartford full discretion and authority to determine eligibility for benefits and to construe and interpret all what mr bago says is that we stick in the confines of that we don't have an obligation and i submit that's not so although you the plan is in fact supposed to be the so there are exceptions when you have to go outside the plan and that's what you go outside the plan because is an effective remedy not under the the plan provisions  but under the appropriate akhil relief provisions so not withstanding the terms of the plan corrections are made by the court let's take this is a trust example if somebody developed a true presented a trust to you and said i want you to would you my trustee i want you to invest in kodak and i want you to invest xerox and after i die i want you to maintain that investment plan is very clear yet the courts will change that on their cypre because is a benefit is a loss to the beneficiaries of the plan is a waste of the trust and it doesn't make economic sense if you're trying to protect beneficiaries if you have a t hospital but tb is no longer there the courts have said well we'll find some other ileum on scenary type of beneficiary but our program so that the money is not wasted or sits there so the courts do have authority under to dish to equity to make adjustments the city of l a the man's heart was a gender discrimination women were paying more contributions than men in the if that if that standard is incorrect it would seem to me incumbent on that fiduciary to go at least at a minimum go to the plan sponsor or to the individuals who had the authority to amend the plan to say we think we have a problem here we think it and or somebody is raising a question and that question is being raised and backed up by substantial substantially cured no individual we want to take a look at that and see in fact if there's something there what what what they are doing is they're sticking their heads in the sand because they don't we don't see it and therefore will follow a plan we don't care if we have to walk over a bridge it tell that's what they're suggesting we have your argument while reserves thank you