CASE NO.: 17-30356

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BLANK Plaintiff- Appellant

VERSUS

LIFE INSURANCE COMPANY OF NORTH AMERICA Defendant/Appellee

Appeal from the United States District Court for the Western District of Louisiana Monroe Division: Cause No.: 3:15-cv-02181-RGJ-KLH

_

BRIEF OF APPELLANT, BLANK _

J. PRICE McNAMARA, TA (20291) 10455 Jefferson Highway, Ste. 2B Baton Rouge, LA 70809 Telephone: 225-425-3529 Facsimile: 225-201-8313 Counsel for Plaintiff/Appellant, BLANK

CASE NO.: 17-30356

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BLANK Plaintiff- Appellant

VERSUS

LIFE INSURANCE COMPANY OF NORTH AMERICA Defendant/Appellee

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal. Interested Parties

1. BLANK – Plaintiff-Appellant
2. Life Insurance Company of North America – Defendant-Appellee

  Attorneys

1. J. Price McNamara (Louisiana Bar No.: 20291) 10455 Jefferson Highway, Ste. 2B

Baton Rouge, LA 70809 Counsel for Plaintiff-Appellant, BLANK  

1. Raymond T. Fischer (Louisiana Bar No. 29185)

1. Wesley Butler (Texas Bar No. 24045593) Cole B. Ramey (Texas Bar No. 16494980) Kilpatrick Townsend & Stockton, LLP  2001 Ross Avenue, Ste. 4400

Dallas, TX 75201 Counsel for Defendant-Appellee, Life Insurance Company of America   Judges

1. Honorable Robert G. James United States District Judge Western District of Louisiana

P.O. Drawer 3107 Monroe, Louisiana 71210  

1. Hon. Karen L. Hayes

United States Magistrate Judge Western District of Louisiana P.O. Drawer 3087 Monroe, Louisiana 71210   Respectfully Submitted, s/J. Price McNamara

1. PRICE McNAMARA, TA (20291) 10455 Jefferson Highway, Ste. 2B Baton Rouge, LA 70809

Telephone: 225-425-3529 Facsimile: 225-201-8313 Counsel for Plaintiff-Appellant, BLANK  

STATEMENT REGARDING ORAL ARGUMENT

  The broader issue in this case is whether a young widow, whose husband paid premium for more than one million dollars ($1,000,000) in accidental death coverage for her future protection, will live as a pauper or relatively comfortably as her husband intended. Pursuant to 5th Cir. R. 28.2.3 and Fed. R. App. P. 34(a)(1), BLANK believes that oral argument would assist the Panel in this case. First, while other federal courts of appeal have applied the common law rule that an insurer bears the burden of proof that a specific policy exclusion bars coverage in cases governed by ERISA, this circuit has never directly addressed the issue. Second, the undersigned has not found any federal court opinion upholding a claim denial based upon an intoxication exclusion in an ERISA-governed accidental death policy where the record contained no quantified toxicology testing from which impairment could be determined, no evidence of the decedent exhibiting drunken behavior, no evidence from which it could be determined that the decedent ingested alcohol or drugs on the date of the accident, no drugs or alcohol being found at the scene of the accident, and a defense-hired toxicologist opining that no level of intoxication could be determined by the available toxicology results, as did the district court in this case. Accordingly, this case is factually unique. Additionally, the insurer here withheld its toxicologist’s report and opinion until after suit was filed, despite written request during the administrative process, in direct violation of ERISA procedural regulations. Those regulations state that “the claims procedures of a plan will not be deemed to provide a claimant with a reasonably opportunity for a full and fair review….” if violated in the manner the insurer did here. In 26 years of practice, this is the first time the undersigned has seen fit to appeal a federal district court’s judgment. This one, with all due respect, is a miscarriage of justice. It should be reversed, and it would be an honor to argue my client’s cause before this Court.   JURISDICTIONAL STATEMENT This is an action under the Employee Retirement Income Security Act of 1974 (hereinafter “ERISA”), 29 U.S.C. § 1001 et seq. Accordingly, there is federal question jurisdiction under 28 U.S.C. § 1331. There is also complete diversity of citizenship under 28 U.S.C. § 1332. This is an appeal of a final judgment disposing all parties’ claims from the United States District Court for the Western District of Louisiana, Monroe Division, rendered April 27, 2017. BLANK, Plaintiff, timely filed a Notice of Appeal on April 28, 2017.   STATEMENT OF THE ISSUES

1. Whether an ERISA insurer bears the burden of proof that the record supports a denial of benefits based upon a specific policy exclusion.
2. Whether Life Insurance Company of North America (“LINA”)’s failure to provide Plaintiff with a copy of its toxicology expert’s report until after suit was filed, despite written request during the administrative process, a direct regulatory procedural violation, statutorily deemed to deprive Plaintiff of a full and fair review, and was an abuse of discretion.
3. Whether LINA’s failure to consider or address its own unfavorable (to its position) toxicology expert’s report and opinion when denying benefits, which directly undermined the bases and reasons it claimed supported its denial, was procedurally unreasonable and an abuse of discretion.
4. Whether the administrative record contained substantial, concrete evidence clearly supporting LINA’s reasons for denial.
5. Whether the court should consider the disinterested expert Physician/ Coroner’s sworn Affidavit testimony, explaining his practice in completing medical terms on a death certificate, and directly contradicting LINA’s interpretation of those terms, as an exception to considering only evidence in the administrative record.

  STATEMENT OF THE CASE

• Proceedings Below

The broader issue in this case is whether a young widow, whose husband paid premium to protect her financially in the event of his early death, will live as a pauper or relatively comfortably as her husband intended. In this action on an ERISA accidental death policy issued by LINA, Plaintiff, BLANK, seeks benefits after her husband, BLANK, died following a head-on collision of July 26, 2014. LINA claims a policy exclusion bars coverage, claiming the accident was caused by intoxication or drugs, despite its own forensic toxicology expert’s opinion and report that decedent’s toxicology results could not support a determination of impairment. Despite Plaintiff’s written request during the administrative process, LINA withheld the report and opinion until after suit was filed. On May 10, 2016, after learning of the report, Plaintiff filed a Motion for Leave to File Affidavit of Physician/Coroner James Michael Belue into the record, wherein Dr. Belue testified on May 3, 2016 that his reference to drugs on Mr. BLANK’s death certificate was intended only to acknowledge their presence of record, and that with no confirmatory testing being done to quantitate levels of any specific drugs, it is impossible to say, beyond pure speculation, whether decedent’s death or accident resulted from intoxication, ingestion of drugs or impairment from same.1 On June 14, 2016, the magistrate judge denied the motion.2    On November 17, 2016, the district judge denied Plaintiff’s timely appeal of that ruling.3 Plaintiff and LINA ultimately filed briefs in support of judgment on the administrative record. On March 24, 2017, the magistrate judge issued a Report and 1ROA. 810; R.E. 61. 2ROA.  875; R.E. 10. 3ROA.  911; R.E. 15.   Recommendation  that Plaintiff’s claim be denied and dismissed.4     Plaintiff  timely objected, and briefing was concluded with Plaintiff’s reply brief filed April 24, 2017. On April 27, 2017, the district court issued a Ruling  and  Judgment  adopting  the Report and Recommendation.5 28, 2017.6  

• Policy Coverage

Plaintiff timely filed her Notice of Appeal on April Decedent, BLANK was employed by Halliburton Energy Services, Inc. Halliburton had in place an employee benefits plan, namely Halliburton Energy Services, Inc. Welfare Benefit Plan (“The Plan”). BLANK was covered under two accidental death policies issued and administered by LINA under The Plan, No. OK980086 for basic coverage of $102,000 and No. OK980004 for optional coverage of $1,000,000.7  Each policy had a supplemental seatbelt benefit of 20% of coverage, capped at $50,000, and an airbag benefit of 10% of coverage, capped at $25,000.8 Plaintiff was BLANK designated beneficiary.9 LINA concedes that it both insures the plan and determines eligibility for benefits.10 4ROA. 986; R.E. 17. 5ROA.  1135-38; R.E. 35. 6ROA.  1139-40; R.E. 08. 7ROA. 88-91, 173, 512. 8ROA. 64, 78, 92, 95, 117. 9ROA. 787, First Amended Complaint, and ROA. 835, LINA’s Answer to First Amended Complaint. 10ROA. 965.  

• Policy Exclusion

  LINA’s policies each have the following exclusion: …benefits will not be paid for any Covered Injury or Covered Loss which, directly or indirectly, in whole or in part, is caused by or results from any of the following …: * * *   intoxication as determined according to the laws of the jurisdiction in which the Covered Accident occurred; voluntary ingestion of any narcotic, drug, poison, gas or fumes unless prescribed or taken under the direction of a Physician and taken in accordance with the prescribed dosage.11 The accident jurisdiction was Arkansas. Under Arkansas law: “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant or any combination of alcohol, a controlled substance, or an intoxicant, to such a degree that the driver’s reactions, motor skills and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury to herself or another person.12  

• Police Report

On July 26, 2014, at around 4:30 p.m., BLANK and BLANK, residents of Ruston, Louisiana, were traveling to visit their daughters in Hot Springs, Arkansas. BLANK was driving northbound on US Highway 167, near Junction City, Arkansas.13 Plaintiff was riding passenger. Both were wearing seatbelts.14 BLANK failed to negotiate a right-hand curve, crossed left of the center line through the middle turn lane, entered the oncoming traffic lanes and crashed head-on with a tractor-trailer resulting in an explosion and fire.15 60 mph.16 Driver and passenger airbags deployed.17 The posted speed limit was The reporting officer had no contact with BLANK, as EMS was treating him.18 BLANK’s injuries were  “incapacitating.”19 She  said  that  BLANK suffers  from narcolepsy, has fallen asleep while driving in the past, was under the care of a doctor, took prescription medication, and has a problem taking too much medication.20 However, as described below, no unexplained or unprescribed prescription medication was detected in BLANK. 13ROA. 491, R.E. 39. 14ROA. 492-494, R.E. 40-42. 15ROA. 494, R.E. 42. 16ROA. 491, R.E. 39. 17ROA. 492-494, R.E. 40-42. 18ROA. 495, R.E. 43. 19ROA. 494, R.E. 42. 20ROA. 495, R.E. 43.   The officer reported “UNKNOWN” regarding driver impairment.21  BLANK was cited for DWI because EMS said they smelled alcohol on BLANK’s breath.22  However, toxicology results showed no alcohol (details below). BLANK was airlifted to University Health Hospital in Shreveport in guarded condition, underwent orthopedic surgical procedures, and five days later, on July 31, 2014, experienced a massive stroke. He was pronounced dead six days after the accident on August 1, 2014.23 The record contains no evidence that BLANK was speeding or driving erratically prior to the accident, that he exhibited slurred speech or any behavior indicating intoxication or impairment before or after the accident, that any alcohol or drugs were found on the scene, or that BLANK ingested alcohol or drugs on the date of the accident.  

• Hospital Toxicology

On the date of the accident, July 26, 2014, a urine drug screen panel taken at the hospital states that it “is … intended for qualitative detection of the following drugs and drug metabolites at or above the indicated detectable cutoff levels. […] The panel provides preliminary screening test results to be used only as a guide in patient management. Confirmatory testing is recommended . . . must be ordered within five days by the physician.” BLANK’s prelimininary, nonconfirmatory, unquantified toxicology urine test registered positive at minimum detectable levels for cocaine metabolites, cannabinoid screen, opiate screen, amphetamine screen, and benzodiazepine screen. Confirmatory testing was never timely requested.24  

• Death Certificate

The Death Certificate, dated August 4, 2014 (eight days after the accident), indicated that the immediate cause of death was massive stroke caused by multiple trauma.25 The sole basis for the Coroner placing cocaine, amphetamine and marijuana in the blanks for underlying or contributory causes was the qualitative, unconfirmed drug test results from the hospital.26  

• State Police Toxicology

  On September 3, 2014, the Arkansas State Police Crime Laboratory issued a preliminary blood toxicology report.27 The report was negative for 26The record reflects a November 18, 2014, telephone call from LINA to the Coroner’s office wherein LINA was advised that the Coroner’s office had the toxicology from the hospital, which is a urine drug screen with no quantitative tests, and that it could not be confirmed if the hospital ever did a confirmation test. ROA. 329, R.E. 48. The death certificate was issued before that call, on August 4, 2014 (eight days after the accident). So the Coroner’s “fill in the blanks” on the death certificate was based on the non-quantitative test because he had nothing else. methamphetamine and alcohol. The report was positive for benzodiazepines, cannabinoids, cocaine and opiates. The report states, “Note: preliminary testing on the specimen(s) submitted has yielded the following results. Should confirmatory or additional testing be required, you must contact this office within ninety days of the issuance of this report. The specimen(s) will be destroyed after ninety days.28 Confirmatory testing was never timely requested.  

• Mrs. BLANK Explains the Cause of the Accident

On October 20, 2014, Plaintiff called LINA, voicing concern about the death certificate. She said BLANK was “not impaired by any substances,” and the accident occurred  because  he  was  distracted  by her  playing  with  the  family dog  in the backseat.29 She had turned around, reaching  for the dog’s toy and  having  trouble retrieving it, and her husband turned around to look. When they looked up, it was just before the crash.30 LINA then requested a list of his medical providers.31  

• LINA’s Expert Toxicologist Opines That Impairment Cannot be Determined From the Toxicology Results

On January 5, 2015, LINA hired Frederick W. Fochtman, PhD, DABFT, a forensic toxicologist, to review physician records, hospital records, death certificate, police report and toxicology reports, asking: “Given the toxicology sample, please comment on any impairment Mr. BLANK would have been experiencing at the time of the crash and to what extent might these impairments affect his driving abilities.”32 On January 19, 2015, Dr. Fochtman issued a report stating that he reviewed toxicology reports, medical records, Collision Report, correspondence and claim information, a website news article, and the death certificate.33 Dr. Fochtman noted that the reports were negative for alcohol, and positive for amphetamine, cocaine metabolites, opiate screen, benzodiazepine screen and cannabinoid screen.34 He noted: [T]he urine drug screen panel provides preliminary screening test results and that confirmatory testing is recommended for those reported as positive. The record does not show that confirmatory testing was carried out.35 He explained that BLANK’s medical records showed that he was receiving medication for multiple conditions  that included  chronic shoulder and  back  pain, esophageal reflux, thyroid disorder, anxiety and depression.36   He noted that BLANK’s 32ROA. 201, R.E. 52 (emphasis added). 33ROA. 196, R.E. 53. 34ROA. 196, R.E. 53. 35ROA. 196, R.E. 53 (emphasis added). 36ROA. 197, R.E. 54. prescribed medications included Baclofen, Buprenorphine, Celebrex, Cyanocobalamin, Cymbalta, Depakote, Duexis, Hydrocodone-Acetaminophen, Levaquin, Levothroxine, Lyrica, Mobic, Omeprazole, Pataday ophthalmic, Pristiq, Provigil/Nuvigil, Suboxone, testosterone, Veramyst, Viibryd and Vistaril.37  He stated that the prescribed medications did not include amphetamine, cocaine or marijuana.38 Dr. Fochtman explained that BLANK’s results indicated he had prior exposure [no time frame specified] to an opioid drug, a benzodiazepine, an amphetamine, cocaine and marijuana.39   He opined that EMS likely administered an opioid drug and a benzodiazepine prior to collection of his urine specimen, and this would account for the  positive  screen  for  opiates  and  benzodiazepines.40    He  did  not  address that Hydrocodone, one of BLANK’s prescribed medications, is an opioid, or its side effects when taken as prescribed. Dr. Fochtman specifically noted that the death certificate listed the immediate cause of death as massive stroke with multiple trauma, cocaine abuse and amphetamine abuse as conditions leading to the cause of death, and marijuana abuse was listed as a contributing condition.41 37Ibid. 38ROA. 197, R.E. 54. 39Ibid (emphasis added). 40ROA. 197, R.E. 54. 41ROA. 196-197, R.E. 53-54. However, despite what he read in the police report and death certificate blanks, Dr. Fochtman opined:

[A]n estimation of Mr. BLANK’s level of impairment cannot be done. The drugs present in his urine only show that he had prior exposure [no time frame noted] and cannot be used to estimate a level of impairment. Further the drug screen that was done on Mr. BLANK’s urine specimen only provided qualitative positive results.42

  Dr. Fochtman’s report then takes the following speculative and circular leap of logic: “However, in the absence of any other cause of the collision, the drugs in his system could explain his level of impairment that resulted in his crash.”43 The report does not even attempt to explain how amphetamine, cocaine or marijuana affects one’s ability to drive at any level, within any time frame, much less at the minimum detection cut-off levels of the qualitative-only testing. LINA’s denial letters did not reference Dr. Fochtman or his opinions.  

• Plaintiff Requests LINA’s Documents

On January 26, 2015, seven days after Dr. Fochtman’s report, Plaintiff’s then- attorney wrote to LINA requesting copies of the policies and all documents relative to  its  decision.44   Contrary to  law (discussed  below), LINA did  not  disclose  Dr. Fochtman’s report until after suit was filed. 42ROA. 197, R.E. 54 (emphasis added). 43ROA. 197, R.E. 54 (emphasis added). 44ROA. 192, R.E. 55.

• Supplemental Police Report Note

On January 29, 2015, ten days after Dr. Fochtman’s report, a supplemental note was added to the police report noting the preliminary, nonconfirmatory, unquantified toxicology.45 Mr. BLANK’s “driver-impairment” status on the report was changed from “UNKNOWN” to “IMPAIRED.”46  

• LINA’s Untimely Attempt to Get State Police Toxicology

Not until January 29, 2015 did LINA try to obtain the state police toxicology.47 It was already too late to order confirmatory quantitative testing, as the samples are destroyed 90 days after the September 3, 2014 preliminary qualitative testing.48 After Plaintiff’s then-attorney joined efforts to obtain the State Police toxicology at LINA’s request, on March 27, 2015, the State Police Chief Forensic Toxicologist sent a letter to the attorney advising that “confirmatory testing of the 45ROA. 223, R.E. 56. 46Id. As the report and recommendation notes: “It appears that the responding officer on the scene initially indicated that it was ‘UNKNOWN’ whether Mr. BLANK was impaired at the time of the accident.      The initial Arkansas collision report does indicate that a blood test was requested and pending. Id. Initially, Mr. BLANK was cited for Driving While Intoxicated because emergency medical personnel told the reporting officer that they smelled alcohol emitting from the decedent’s breath. … However, the blood test showed no alcohol in Mr. BLANK’s system. But because Mr. BLANK’s urine test registered positive for cocaine, cannabinoids, opiates, amphetamines, and a benzodiazepine, a supplemental note was added to the Arkansas collision report on January 29, 2015, indicating same.    Mr. BLANK’s ‘driver-impairment’ status on the collision report was then changed from ‘UNKNOWN’ to ‘IMPAIRED.’” ROA. 996; R.E. 27. 47ROA. 190, R.E. 57. 48ROA. 182-183, R.E. 49-50.   blood sample has not been performed to identify or quantitate any specific drugs.”49 On April 6, 2015, the attorney advised LINA of this.50 Four days later, on April 10, 2015, LINA issued its initial denial (discussed below).  

• LINA knew from Dr. Fochtman’s Withheld Opinion That The Notation of “Impaired” and Drugs in the Police Report and Coroner’s Report All Stemmed from an Inadequate Basis

  An administrator may not rely on an expert opinion without considering its basis. Gothard v. Metro. Life Ins. Co., 491 F.3d 246, 250 (5th Cir. 2007); Schully, III

1. Continental Casualty Company and Hartford Life Group Insurance Company, 680 Fed. Appx. 437, 439, 2010 WL 2332080 (5th Cir. 2010) (“Nor may an administrator rely on an expert opinion without considering its basis…”).

LINA knew that both the police and the Coroner used the toxicology results as the basis for opining “impaired” in the supplemental police report, and drugs as underlying or contributing causes in the death certificate. LINA provided those toxicology results to Dr. Fochtman along with the police report and the death certificate. Thus LINA knew from Dr. Fochtman’s opinion that they “cannot be used to estimate a level of impairment,” and were therefore inadequate as a basis for determining intoxication or impairment. Despite this knowledge, LINA based its 49ROA. 165, R.E. 58. 50ROA. 180-181, R.E. 59-60. denials on the toxicology results and opinions in the supplemental police report and death certificate, while disregarding and withholding Dr. Fochtman’s report and opinion. In light of his own opinion referenced above, Dr. Fochtman’s gratuitous leap to the statement that “in the absence of any other causes of the collision, the drugs in his system could explain his level of impairment that resulted in the crash” is speculative (“could explain”) on its face, expressed in terms of mere possibilities. That statement equally lacks adequate basis by his own admission, and cannot reasonably be used by LINA to support its conclusion that intoxication or non- prescribed drug ingestion caused the accident.51  

• The Coroner’s Affidavit

On May 3, 2016, upon being presented with Dr. Fochtman’s report, the Coroner, internal medicine physician James Michael Belue, MD, testified: 51Even if Dr. Fochtman’s speculative statement were considered competent or substantial, concrete evidence, LINA did not cite Dr. Fochtman’s report or opinion in either of its denial letters, so it is barred from advocating that statement in support of its denial now. Fifth Circuit law provides: “Allowing plan administrators to offer new justifications for a denial after the claims process has ended would undermine the claims system that Congress envisioned when it drafted ERISA’s administrative review provisions. See 29 U.S.C. § 1133 (requiring administrator to give clear notice and providing for administrative review); 29 C.F.R. § 2560.503–1(g) (same); Spradley, 686 F.3d at 1140 (noting that Congress’s purposes, as expressed in these provisions, would be undermined if administrators could add new rationales to support decision after claims process ends). ‘A plan administrator may not treat the administrative process as a trial run and offer a post hoc rationale in district [or circuit] court.’ Spradley, 686 F.3d at 1140–41 (internal quotation marks omitted).” George v. Reliance Standard Life Ins. Co., 776 F.3d 349,353 (5th Cir. 2015). This Affidavit is intended to explain and clarify my practice as Coroner in filling out medical terms on a death certificate, and in particular, the meaning of such terms and my expert opinion on them as they relate to the Death Certificate of BLANK… In my practice as Coroner, listing ‘underlying cause(s)’ and ‘other significant conditions contributing to death’ sometimes includes ones which are merely possible, even if speculative, so that their presence is simply acknowledged of record on the Death Certificate. The medical terms ‘underlying cause,’ ‘cocaine abuse’ and ‘amphetamine abuse,’ as well as ‘other significant conditions contributing to death’ and ‘marijuana abuse’ on the Death Certificate … were intended to be listed merely as possibilities in order that their presence was simply acknowledged of record, although speculative in the case of BLANK… 52 Dr. Belue further explained that in the absence of confirmatory testing to quantitate levels of specific drugs: It is impossible for anyone to say, beyond pure speculation, whether BLANK’s death or accident resulted, directly or indirectly, in whole or in part, from intoxication, ingestion of any narcotic or drug, or impairment from same. The drugs present in his urine can, at best, show prior exposure to them, but cannot be used to estimate a level of impairment…. To the best of my knowledge, I have never met BLANK, do not know his widow or any family of either of them, and have no interest in the outcome of any insurance matter related to either of them.53 52ROA. 810; R.E. 61; Affidavit of Dr. Belue, paragraphs 4, 9 and 10. The district court rejected Plaintiff’s Motion to include the Coroner’s Affidavit in the Administrative Record. LINA persists in advocating a known false interpretation of the death certificate directly contrary to the sworn Affidavit of the Coroner. 53ROA. 810-811, R.E. 61-62, paragraphs 8, 11.  

• Administrative Proceedings With LINA

LINA acknowledged notice of Plaintiff’s claim by September 24, 2014.54  

LINA’s Initial Denial

On April 10, 2015, LINA sent its initial denial.55 It recites that LINA reviewed the death certificate, police report, University Health Hospital – Shreveport medical records, Arkansas statute AR ST §5-65-102(1); AR ST §5-65-103(a), and the insurance policies.56 It further states: “The Louisiana Death Certificate indicates that Mr. BLANK died on 8/1/14 as a result of a “massive stroke” due to “multiple trauma,” due to “cocaine abuse, amphetamine abuse.” Marijuana use is also listed as a “significant condition contributing to death.”57 It states that the University Health – Shreveport Hospital records include a urine drug screen testing positive for amphetamine, benzodiazepine, cocaine metabolite, cannabinoids and opiates.58 54ROA. 511, R.E. 64. Plaintiff completed her portion of the claim on August 28, 2014. Administrative Record, ROA. 486, R.E. 65. 55ROA. 166, R.E. 66. 56ROA. 166-167, R.E. 66-67. 57ROA. 167, R.E. 67. 58ROA. 167, R.E. 67. It further states: According to the police crash report, Mr. BLANK was operating his vehicle while under the influence of several substances including marijuana, cocaine, amphetamines, opiates and benzodiazepines [despite Dr. Fochtman explaining to LINA that opiates and benzodiazepines were most likely administered during post-accident medical treatment, and that no level of impairment from any substance could be estimated]. The Arkansas State Police found that these substances contributed to the crash [nowhere does the police report state that] and cited Mr. BLANK for operating his vehicle while intoxicated. [This was in the initial report based solely on the paramedics noting the smell of alcohol, for which BLANK tested negative.] * * * Based on this information, it is our determination that Mr. BLANK’s death was “directly or indirectly, in whole or in part… caused by or result(ed) from his “intoxication as determined” by the Arkansas State Police in accordance with the laws of Arkansas. It is also our determination that Mr. BLANK’s voluntary ingestion of narcotics or drugs also contributed to his death. As such, benefits under these policies are specifically excluded.59 LINA makes no reference to the withheld report or opinion of Dr. Fochtman, wherein he opines, after reviewing the death certificate and toxicology results and collision report, that “an estimation of Mr. BLANK’s level of impairment cannot be done. The drugs present in his urine show only that he had prior exposure and cannot be used to estimate a level of impairment, [and] … only provided qualitative positive 59ROA. 168, R.E. 68 (emphasis added). results.”60 It fails to mention, as LINA knew, that the supplemental police report and death certificate opinions regarding impairment and drugs were based upon preliminary, unquantified toxicology. It fails to mention that, to the extent the Arkansas State Police “found” that “these substances contributed to the crash” (nowhere does the report state that) or that “it was caused by or resulted from intoxication as determined by the Arkansas State Police,” intoxication was only listed in the initial police report, and BLANK was cited for DWI only because paramedics told police they smelled alcohol, for which BLANK tested negative. The reporting officer then relied on unconfirmed, unquantified toxicology when he noted “impaired” six months later on the supplemental report. Dr. Fochtman opined that such toxicology “cannot be used to estimate a level of impairment.” Coroner Belue’s reference to drugs in the death certificate was based upon the same toxicology. It is a commonly known, documented scientific fact that qualitative drug testing detects exposure days after use. In the denial, LINA includes opiates and benzodiazepines as drugs “under the influence” of which BLANK was driving. First, this made no sense given Dr. Fochtman’s opinion (then unknown to Plaintiff) that opioid and benzodiazepine were likely administered by EMS post-accident. 60ROA. 197, R.E. 54.   Even more critically, LINA’s denial fails to address that BLANK’s prescribed pain medications, listed by Dr. Fochtman, included Hydrocodone, an opioid narcotic pain medication with well-known side effects of sedation and drowsiness.61 It makes no sense for LINA to claim BLANK drove under the influence of his prescribed medication, along with the other substances, from which no level of impairment could be determined by LINA’s toxicology expert, and somehow conclude not only that he was impaired by any substances, but also arbitrarily conclude that the other substances rather than a prescribed dose of Hydrocodone caused the accident, especially with no expert input on the issue whatsoever. LINA’s exclusion does not apply to any narcotic or drug taken as prescribed. From LINA’s initial denial, it cannot be determined whether it even considered the opinion of Dr. Fochtman or whether that opinion merely slipped through the cracks. We do know that had Plaintiff been provided a copy of that opinion, she could have advocated it in her administrative appeal, as it directly undermines the bases for LINA’s denial. At least we would know that LINA considered its own toxicologist’s  opinion  when  reviewing  the  claim on  administrative  appeal. But 612017 Physician’s Desk Reference, 71st   Edition, p. ABBVIE/833-835 (Addendum 1). Plaintiff requests judicial notice of the Physician’s Desk Reference, which can be taken at any stage of the proceeding. Fed. R. Evid. 201(d). logically LINA was either unaware of Dr. Fochtman’s report and opinion or completely disregarded his clear explanation regarding benzodiazepines and opiates. The initial denial continues with a misleading or botched statutory analysis, stating: According to Arkansas statute AR ST § 5-65-103, the term “intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof. AR ST § 5-65- 102(1). The term “influenced” means being controlled or affected by the ingestion of an alcoholic beverage or similar intoxicant or a combination thereof to such a degree that a person’s driving ability is altered or diminished even to the slightest degree. AR ST § 5-65- 302(1).62 However, AR ST § 5-65-302(1), defining “influenced,” applies only to juveniles. The adult statutory definition of “intoxicated” is found at AR ST § 5-65- 102(4), which states: “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant or any combination of alcohol, a controlled substance, or an intoxicant, to such a degree that the driver’s reactions, motor skills and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself or herself or another person. (Emphasis added.)   LINA’s initial denial paraphrases the first part of the applicable adult definition of intoxication, omits the part most unfavorable to its position, then jumps 62ROA. 167-168; R.E. 67-68 (emphasis added). to the much lower hurdle of the juvenile definition of “influenced.” Therefore, LINA’s conclusion that BLANK’s death was “caused by or result(ed) from his ‘intoxication as determined’ … in accordance with the laws of Arkansas …” or that he drove “under the influence” was based upon erroneous statutory criteria. Finally, LINA failed to consider or address Plaintiff’s explanations that BLANK was not impaired and his distraction with her playing with the dog led to the crash, or her statements that he suffered from narcolepsy, has fallen asleep at the wheel in the past and took prescription medication.

LINA’s Denial on Appeal

On July 6, 2015, unaware of Dr. Fochtman’s opinion, Plaintiff appealed, noting that  LINA  erroneously applied  the juvenile  Arkansas  DWI  statute  and  that the evidence  did  not  support  the  denial.63 On  July  23,  2015,  LINA  denied  the administrative appeal. LINA again cited the toxicology results, death certificate and police report without mention of Dr. Fochtman’s opinion or report. LINA switched its reference to the adult Arkansas statute.64 LINA stated: The  toxicological  evidence  supports   that  Mr.  BLANK had  ingested benzodiazepines, cannabinoids, cocaine and opiates While under 63ROA. 159. R.E. 69. 64ROA. 152, R.E. 71. the influence of benzodiazepines, cannabinoids, cocaine and opiates, Mr. BLANK left his lane of travel … Because the crash that caused Mr. BLANK’s death was contributed to by his intoxication as determined according to the laws of the jurisdiction in which the Covered Accident occurred, payment of benefits is excluded by the policies.   *****   The evidence supports that the intoxication that caused the crash was partly attributed to the consumption of cannabinoids and cocaine. Because these drugs were not prescribed, and contributed to the crash that caused Mr. BLANK’s death, payment of benefits is again excluded.65 LINA continued to claim BLANK’s influence of benzodiazepines and opiates, despite Dr. Fochtman’s explanation, and despite Dr. Fochtman’s notation of the opioid Hydrocodone as a prescribed medication. Again, LINA failed to consider or address Plaintiff’s alternative explanations referenced above.   SUMMARY OF THE ARGUMENT

1. LINA, as an ERISA insurer, bears the burden of proving that its policy exclusion prevents coverage. In ERISA actions, if the insurer claims that a specific exclusion applies, the insurer has the burden of proving its applicability. Federal common law, which places the burden of proof on the insurer with regard to exclusions from coverage, governs all

65ROA. 154-155, R.E. 72-73 (emphasis added). rights and obligations stemming from ERISA-related plans, including policy provisions at the heart of the dispute.

1. LINA’s failure to provide Plaintiff with Dr. Fochtman’s report until after suit was filed, despite written request during the administrative process, a direct regulatory procedural violation statutorily deemed to deprive Plaintiff of a full and fair review, was independently an abuse of discretion. The applicable regulations at 29 C.F.R. § 2560.503-1 required that LINA provide a copy of the report to Plaintiff. The regulations LINA violated are self-defined as “minimum requirements” which, if violated, “will not be deemed to provide a claimant with a reasonable opportunity for a full and fair review…” LINA’s violation is an “independent basis to overturn a plan administrator’s denial” under Fifth Circuit case law set forth below.
2. LINA’s failure to consider or address its own unfavorable (to its position) toxicology expert’s report and opinion when denying benefits, which directly undermined other opinion evidence LINA advocated as supportive of its denials, was procedurally unreasonable under Fifth Circuit case law described below. LINA’s procedural unreasonableness, along with its structural conflict of interest warrants a finding of abuse of discretion even if its decision were based upon substantial evidence in the record.
3. In addition to LINA’s procedural violations and procedural unreasonableness, LINA abused its discretion by denying benefits under a specific policy exclusion based upon a record that did not present substantial, concrete evidence clearly supporting its denial. The cases cited by LINA, and cited in support of the underlying magistrate judge’s report and recommendation adopted by the district judge, are either misapplied or distinguishable, and cannot support either LINA’s denial or the district court’s judgment.
4. The court should consider the expert Physician/Coroner’s sworn affidavit testimony explaining his practice in completing medical terms on a death certificate. Fifth Circuit case law provides that, in an ERISA case, expert evidence which assists the court in understanding the medical terms or practice related to a claim is admissible. The affidavit of Physician/Coroner, Dr. Belue, does just that, clearly falls within the exception, and advances truth, justice and fairness over LINA’s undeniable misinterpretation of the death certificate as evidence supportive of its denial.

  LAW AND ARGUMENT

• Standard of Review

Plaintiff and LINA have stipulated that the policies vested LINA with discretionary authority. In the ERISA context, cause of death is a factual determination.  Dutka v. AIG Life Ins. Co., 573 F.3d 210, 213 (2009).  In Ariana M.

1. Humana Health Plan of Texas, Inc., 2017 WL 1423765, 2 (5th  Cir.4/21/17), the

Fifth Circuit court stated: “[The Fifth Circuit] reviews de novo the district court’s conclusion that an ERISA plan administrator did not abuse its discretion in denying benefits…” Anderson v. Cytec Indus., Inc., 619 F.3d 505, 511 (5th Cir. 2010). “A plan administrator abuses its discretion if it acts ‘arbitrarily or capriciously.’” Truitt v. Unum Life Ins. Co. Of Am., 729 F.3d 497, 508 (5th Cir.2013) (quoting Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir.1999)). “A decision is arbitrary and capricious only if it is ‘made without a rational connection between the known facts and the decision or between the found facts and the decision.’” Id. (quoting Meditrust, 168 F.3d at 215). “In addition to not being arbitrary and capricious, the plan administrator’s decision to deny benefits must be supported by substantial evidence.” Anderson, 619 F.3d at 512. (“Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Corry v. Liberty Life Assurance Co. Of Bos., 499 F.3d 389, 398 (5th Cir.2007) (quoting Ellis Liberty Life Assurance Co. Of Bos., 394 F.3d 262, 273 (5th 2004)).66 Cir 66Id., at 3. Meditrust, cited in Ariana, stated that a decision is arbitrary only if “‘made without a rational connection between the known facts and the decision or between the found facts and the evidence.’ Bellaire, 97 F.3d at 828-829.” Meditrust, 168 F.3d at 214. In other words, “An abuse of discretion occurs when ‘the decision is not based on evidence, even if disputable, that clearly supports the basis for its denial.’ Holland v. Int’l Paper Co. Retirement Plan, 576 F.3d 240, 246 (5th Cir.2009)(internal quotation marks and citations omitted).”  Firman, 684 F.3d 533, 539 (5th  Cir. 2012) (emphasis added). In Napoli v. Johnson & Johnson, Inc., 624 F.Appx. 861, 863-864 (5th Cir.2015), the court recently reiterated: In the seminal case of Vega v. National Life Insurance Services, Inc., we explained that “we will not countenance a denial of a claim solely because an administrator suspects something may be awry.” 188 F.3d 287, 302 (5th Cir.1999) overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343 141 L.Ed.2d 299 (2008). Although we owe deference to an administrator’s reasoned decision, “we owe no deference to the administrator’s unsupported suspicions. Without some concrete evidence in the administrative record that supports the denial of the claim, we must find the administrator abused its discretion.” (Emphasis added.) “Innuendos and hints” supportive of a denial are not enough. Vega, at 302.  

• LINA Bears the Burden of Proof That the Record Supports the Denial of Benefits Based Upon a Policy Exclusion.

An ERISA insurer bears the burden of proving that a policy exclusion prevents coverage. See, Couch on Insurance, Principles Applicable to Group Insurance; ERISA Actions §254:16 (3rd Ed.) (in ERISA actions, “if the insurer claims that a specific exclusion applies, the insurer has the burden to prove its applicability”); Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998). It is “well established that the burden is upon the insurer to demonstrate that the insured’s claim falls within the terms of an exclusionary clause and that such clauses are interpreted narrowly.” Miller v. Monumental Life Insurance Co., 761 F.Supp.2d 1123, 1135, 1140 (D. New Mexico 2009). See also Estate of Thompson v. Sun Life Assurance Company of Canada, 603 F.Supp.2d 898, 907-908 (N.D. Texas 2008): In ERISA cases, “the insurer has the burden of proving that an exclusion applies.” Id., citing Critchlow v. First UNUM Life Insurance Co. of America, 378 F.3d 246, 256 (2nd. Cir. 2004). “Federal common law governs the rights and obligations stemming from ERISA-related plans, including the interpretation of policy provisions at the heart of the dispute.” Green v. Life Insurance Co. Of North America, 754 F.3d 324, 331 (5th Cir.2014). Federal common law provides that the insurer bears the burden of proving that its exclusion prevents coverage. The Sixth Circuit has held that “a plan administrator attempting to establish exclusion from coverage has the burden to establish by a preponderance of evidence that a covered employee’s illness or medical condition is excludable.” Clark v. Metropolitan Life Ins. Co., slip op. No. 94–3840, 1995 WL 592102 at 1 (6th Cir. October 5, 1995). See also Brewer v. Protexall, Inc., slip op. No. 91–2222, 1994 WL 782231 at 1 (C.D.Ill. July 5, 1994) (insurer had burden of proof on the issue of pre-existing condition exclusion in action brought under ERISA). See also Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 658 (8th Cir.1992). Courts applying ERISA federal common law have adopted the nearly unanimous state law rule that “places the burden of proving an exclusion from coverage in an ERISA-regulated welfare plan on the plan administrator.” Boldon v. Humana Ins. Co., 466 F. Supp. 2d 1199, 1209 (D. Ariz. 2006) (quoting Caffey v. Unum Life Ins. Co., 302 F.3d 576, 580 (6th Cir.2002)); see also O’Neil v. Life Ins. Co. of North America, 10 F. Supp. 3d 1132, 1136 (D. Montana 2014); see generally Couch on Insurance (Thompson Reuters 2016) § 139:63 (citing cases); New Appleman Ins. Law Practice Guide (LexisNexis 2016), § 6.06[6] (citing cases). It also appears to have been adopted by every other federal circuit court of appeals that has addressed the question. See, e.g., Fought v. UNUM Life Insurance Company of America, 357 F.3d 1173, 1185 (10th Cir.2004) (per curiam); Caffey, supra (6th Cir. 2002). Placing the burden of proving an exclusion from coverage on the insurer is fair, equitable and makes perfect sense. Otherwise, in this case, the insured would be required to prove a negative: lack of intoxication. It makes better sense for the insurer to bear the burden of proving a positive – here, intoxication and causation.

• LINA’s failure to provide Plaintiff with Dr. Fochtman’s report, despite request, was a direct regulatory procedural violation, deprived Plaintiff of a full and fair review, and was independently an abuse of discretion.

  Even if LINA’s denial were supported by substantial evidence, LINA’s violation of ERISA procedural regulations in withholding Dr. Fochtman’s report, despite request, independently constitutes an abuse of discretion. In Napoli v. Johnson & Johnson, Inc., 624 F.Appx. 861, 865 (5th Cir.2015), this court stated: The lack of a “full and fair review” … is an independent basis to overturn a … denial of benefits.” Truitt, 729 F.3d at 510 n. 6. “A plan administrator fails to provide a ‘full and fair review’ if it does not comply with the ‘procedures set forth in [29 U.S.C.] § 1133 of ERISA and in the Department of Labor regulations promulgated pursuant to that section.’ … Id., at 509 n. 4. As the Supreme Court notes, ERISA “sets forth a special standard of care upon a plan administrator, namely, that the administrator ‘discharge [its] duties’ in respect to discretionary claims processing ‘solely in the interests of the participants and beneficiaries’ of the plan, § 1104(a)(1); it simultaneously underscores the particular importance of accurate claims processing by insisting that administrators provide a ‘full and fair review’ of claim denials.” Firestone v. Bruch, 489 U.S. 101, 113, 109 S.Ct. 948 (1989) (quoting § 1133(2))(emphasis added). The applicable regulations, at 29 C.F.R. § 2560.503-1, provide: Scope and purpose. In accordance with [ERISA] … this section sets forth minimum requirements … **** Obligation to establish and maintain reasonable claims procedures. … The claims procedures for a plan will be deemed to be reasonable

only if—

The claims procedures comply with the requirements of paragraphs … (h), (i), and (j) of this section … ****** (h) Appeal of adverse benefit determinations—

1. In general. Every employee benefit plan shall establish and maintain a procedure by which a claimant shall have a reasonable opportunity to appeal an adverse benefit determination to an appropriate named fiduciary of the plan, and under which there will be a full and fair review …
2. Full and fair review. Except as provided in paragraphs (h)(3) and (h)(4) of this section, the claims procedures of a plan will not be deemed to provide a claimant with a reasonable opportunity for a full and fair review … unless the claims procedures— Provide claimants the opportunity to submit written comments, documents, records, and other information relating to the claim for benefits;

• Provide that a claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for

benefits. Whether a document, record, or other information is relevant … shall be determined by reference to paragraph (m)(8) of this section;

1. Provide for a review that takes into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.

****** (i) Timing of notification of benefit determination on review— *****

(5) Furnishing documents. In the case of an adverse benefit determination on review, the plan administrator shall provide such access to, and copies of, documents, records, and other information described in paragraphs (j)(3), (j)(4), and (j)(5) of this section as is appropriate.

(j) Manner and content of notification of benefit determination on review. The plan administrator shall provide a claimant with written or electronic notification of a plan’s benefit determination on review. In the case of an adverse benefit determination, the notification shall set forth, in a manner calculated to be understood by the claimant— ***** (3) A statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to paragraph (m)(8) of this section; ***** (m) Definitions… ***** (8) A document, record, or other information shall be considered “relevant” if [it] …

1. Was relied upon in making the benefit determination; [or]

2. Was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination; … (Emphasis added.)

LINA violated 29 C.F.R. § 2560.503-1(h)(2)(iii) by failing to provide Dr. Fochtman’s report despite request prior to the administrative appeal. LINA again violated 29 C.F.R. § 2560.503-1(i)(5) when it failed to provide it after denial on administrative appeal. LINA’s failure to provide Plaintiff with the Dr. Fochtman report deprived her of a full and fair review on administrative appeal, and put her at a disadvantage for review by the district court and this court. Had Plaintiff been provided these documents, she would have known that it existed, and could have advocated it on administrative appeal. At the very least, we would know that LINA was aware of and considered Dr . Fochtman’s opinion on administrative appeal. She would have known that the police report and death certificate references advocated by LINA in support of its denial were directly undermined by Dr. Fochtman. She would have known that LINA completely disregarded Dr. Fochtman’s explanation that opiate and benzodiazepine were likely administered by EMS post-accident, and that he noted, without addressing, that Hydrocodone, an opiate, was one of BLANK ‘s prescribed drugs, under the influence of which LINA later claimed BLANK was driving. She would have hired her own expert toxicologist address those issues and to opine on whether any opinion of impairment (like that noted in the police report, death certificate, and LINA’s denial), based upon the unquantified toxicology results, is speculative. Such an expert could have opined regarding the known side effects of BLANK’s prescription opioid Hydrocodone, for which Mr. BLANK tested positive, and which has well-known side effects of sedation and drowsiness. Dr. Fochtman noted that EMS likely administered opiates and benzodiazepines post-accident, but critically failed to address that the opioid Hydrocodone was also prescribed medication with these known side effects, even when taken as prescribed, and LINA expressly claimed BLANK was driving under its influence. Such an expert could also have opined regarding the side effects of BLANK’s long list of other prescription medications Dr. Fochtman listed but failed to address, including two that are prescribed for narcolepsy. Mrs. BLANK said at the accident scene that BLANK suffers with narcolepsy, has fallen asleep at the wheel in the past and took  prescription  medication.67 The relevant exclusion does not apply to any prescribed narcotic or drug taken in accordance with the prescribed dosage. Such an expert could have addressed whether any of those prescribed medications can result in false positives in toxicology testing for illegal drugs. She would have earlier obtained Dr. Belue’s Affidavit, which was rejected by the district court for untimeliness, for consideration along with her own expert’s report and opinion, on administrative appeal, in district court and here. Dr. Belue issued his Affidavit only after reviewing Dr. Fochtman’s withheld opinion. She could also have obtained a similar (to Dr. Belue’s) Affidavit from the investigating officer who wrote “impaired” on the police report based upon preliminary, unquantified toxicology results. By withholding Dr. Fochtman’s report and opinion, LINA abused its discretion and deprived Plaintiff the opportunity to develop the administrative record for a full and fair review. Its denial should be reversed for that reason alone. Those listed by Dr. Fochtman include, along with their listed uses and side effects per the 2017 Physician’s Desk Reference, 71st Edition, include: Baclofen, muscle relaxant, drowsiness, dizziness, fatigue, confusion (p. S-111); Depakote, for bipolar disorder, dizziness, accidental injury (p. S-247); Hydrocodone, opiate for pain, sedation, drowsiness (p. ABBVIE 835); Lyrica, antiepileptic, dizziness, ataxia, fatigue, blurred vision, abnormal thinking (p. S-529); Mobic, anti- inflammatory, dizziness (p. S-572); Provigil, for sleep apnea or narcolepsy, dizziness (p. S-741); Nuvigil for sleep apnea or narcolepsy or excessive sleepiness, dizziness (p. S-627); Vistaril, sedative for anxiety, drowsiness, hallucination (p. S-423) (Addendum 1).

• LINA’s failure to consider or address its own unfavorable (to its position) toxicology expert’s report and opinion when denying benefits was procedurally unreasonable and an abuse of discretion.

In Schexnayder v. Hartford Life and Accident Ins. Co., 600 F3d. 465 (5th Cir. 2010), the Fifth Circuit found abuse of discretion based upon procedural unreasonableness, despite specifically finding that substantial evidence supported the denial. There, Hartford failed to address in its denial letters known evidence favoring plaintiff, there in the form of a Social Security Administration finding of total disability. The Court stated: In reviewing the plan administrator’s decision, we “take into account … several different considerations.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2351, 171 L.Ed.2d 299 (2008). These factors are case-specific and must be weighed together before determining whether a plan administrator abused its discretion in denying benefits. Id. Any one factor may “act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tiebreaking factor’s inherent or case-specific importance.” Id. * * * A reviewing court may give more weight to a conflict of interest, where the circumstances surrounding the plan administrator’s decision suggest “procedural unreasonableness.” Glenn, 128 S.Ct. at 2352. Applying Glenn‘s “combination-of-factors” method of review, we give more weight to the conflict of interest because Hartford’s decision here suggests procedural unreasonableness.68 68Id., at 469. The Schexnayder Court explained: The administrative record reveals that Hartford was presented with conflicting medical evidence on the extent of Schexnayder’s disability …. Ultimately, Hartford credited its physicians who found that Schexnayder’s pain would not prevent him from returning to work. Although Hartford based its decision on substantial evidence, we must consider other factors under Glenn, such as the conflict of interest and Hartford’s treatment of the SSA award.69 The Schexnayder Court noted the Supreme Court’s mandate that a financially conflicted administrator’s conflict should be weighed as a factor in determining abuse of discretion, the weight of the conflict changing relative to other factors depending on the circumstances of a particular case. Quoting Glenn, the Fifth Circuit stated:

Failure to address a contrary SSA award can suggest “procedural unreasonableness” in a plan administrator’s decision. See id. at 2352. This procedural unreasonableness is important in its own right and also “justifie[s] the court in giving more weight to the conflict.” Id.

* * * The SSA determined that Schexnayder is fully disabled and unable to perform any work, but Hartford did not address the SSA award in any of its denial letters. Because Hartford failed to acknowledge an agency determination that was in direct conflict with its own determination, its decision was procedurally unreasonable. * * * 69Id., at 470 (emphasis added). This procedural unreasonableness “justifie[s] the court in giving more weight to [Hartford’s] conflict” because it suggests financial bias may have affected Hartford’s decision. Glenn, 128 S.Ct. at 2352. We also consider the failure to address the SSA’s decision as a factor in its own right. Although substantial evidence supported Hartford’s decision, the method by which it made the decision was unreasonable, and the conflict, because it is more important under the circumstances, acts as a tiebreaker for us to conclude that Hartford abused its discretion.70 In Schexnayder, the plaintiff was at least aware of the Social Security award that Hartford ignored. Far worse here, LINA failed to acknowledge or address its own expert’s opinion, unknown to Plaintiff by virtue of LINA’s failure to disclose regulatory violation. The opinion directly undermined the toxicology results as a basis to determine impairment, which were the sole bases for the police report and death certificate opinions referencing impairment and drugs, respectively. Then LINA cited those opinions along with the inadequate toxicology results themselves in support of both denials while withholding Dr. Fochtman’s opinion, and claiming influence under opiates and benzodiazepines, directly contrary to Dr. Fochtman’s opinion. Since  the  method  by  which  LINA  made  its  decision  was  procedurally unreasonable, especially in conjunction with its procedural violations under 29 C.F.R.

• 2560.503-1, its conflict should be given more weight and act as a tiebreaker for a

70Id., at 471 (emphasis added). finding of abuse of discretion even if LINA’s decision were based upon substantial evidence. Along similar lines, in Jani v. Bell, 209 Fed.Appx. 305 (4th Cir. 2006), the Court held that a Plan’s decision to disregard testimony of its own expert was grounds to reverse its denial. Id., at 316. See also Donovan v. Eaton Corp., 462 F.3d 321 (4th Cir. 2006) (faulting plan administrator for disregarding the opinion of its own doctor); Majeski v. Metropolitan Life Ins. Co., 590 F.3d 478, 483-84 (7th Cir. 2009) (holding that denial decision was arbitrary where insurer selectively relied on pieces of evidence to support the denial, while that evidence in context did not support the denial); Leger v. Tribune Co., 557 F.3d 823, 832-33 (7th Cir.2009) (denial decision was arbitrary where insurer “cherry picked the statements from her medical history that supported the decision to terminate her benefits, while ignoring a wealth of evidence to support her claim that she was totally disabled”); Glenn v. Metropolitan Life Ins. Co., 461 F.3d 660, 672-74 & n. 4 (6th Cir. 2006) (denial decision arbitrary where plan selectively considered evidence to reach decision unsupported by the record as a whole), aff’d 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). In addition to LINA’s regulatory violations and procedural unreasonableness noted above, Glenn and its progeny identify several indicia that can signal a conflict of interest. Several are present here. First, LINA’s selective consideration of the evidence not only indicates that its decision was arbitrary (as discussed above), but also demonstrates a conflict of interest as well as a reason to give more weight to the conflict factor. See Glenn, 128 S.Ct. at 2352. A claimant may demonstrate conflict of interest by showing that the administrator “emphasized a certain medical report that favored a denial of benefits [and] de emphasized certain other reports that suggested a contrary conclusion.” Id. Finally, LINA’s continued insistence that BLANK drove under the influence of an opiate and benzodiazepine, despite Dr. Fochtman’s opinion that they were administered post-accident, is further evidence of procedural unreasonableness and conflict of interest. Additionally, under Fifth Circuit case law, an administrator may not rely on experts’ opinions without considering their bases. Gothard, supra, at 250. Recently affirming Judge Eldon E. Fallon’s holding that Hartford’s denial of disability benefits was an abuse of discretion, the Fifth Circuit stated: Nor may an administrator rely on an expert opinion without considering its basis or whether, as was the case here, it is in plain conflict with the medical records. Gothard v. Metro. Life Ins. Co., 491 F.3d 246, 250 (5th Cir. 2007).71 71Schully, III v. Continental Casualty Company and Hartford Life Group Insurance Company, 680 Fed. Appx. 437, 439 2010 WL 2332080 (5th Cir. 2010) (emphasis added). Affirming the district court’s finding that Hartford “deliberately ignored” plaintiff’s medical evidence in order to support its “preferential and predetermined conclusions,” the Fifth Circuit also affirmed the award of attorney’s fees. Id., at 439. Here, far worse than in Schully, LINA disregarded its own expert’s opinion that impairment could not be established from the toxicology results, withheld it, then advocated a police opinion of impairment in direct conflict with its expert’s opinion, relying on the same toxicology results as its basis. The same is true for the death certificate’s reference to drugs. LINA did not simply fail to consider the basis for each, it knew the basis was flawed based upon the opinion of its own expert. In evaluating a record to determine if substantial evidence supports a denial of benefits in an ERISA case, a district court “may properly assess each case’s individual circumstances and evaluate the witness’s credibility.” Salley v. E.I. Dupont de Nemours & Co., 966 F.2d 1011, 1016 (5th Cir. 1992). Here, the police report’s notation of impairment and the death certificate’s reference to drugs lack any credibility given their admittedly inadequate bases. LINA’s arbitrary and unsupported denial of benefits was procedurally unreasonable, tainted by a structural conflict of interest and should be reversed for those reasons alone as in Schexnayder.  

• The Record Does Not Contain Substantial Concrete Evidence Clearly Supporting the Reasons of LINA’s Denial.

LINA’s exclusion, incorporating the Arkansas statutory definition of intoxication, requires LINA’s proof, with substantial concrete evidence, clearly supporting that the accident resulted from BLANK’s reactions, motor skills and judgment being substantially altered, constituting a clear and substantial danger of physical injury to himself or another person or by the voluntary ingestion of a narcotic or drug not prescribed and taken in accordance with the prescribed dosage. By no stretch does the record contain such evidence. The magistrate’s report and recommendation, upheld by the district judge, erroneously applied Arkansas jurisprudential case law regarding circumstantial evidentiary requirements of proving intoxication. No relevant authority exists for doing so to determine the sufficiency of the record to support an administrator’s decision in a case governed by ERISA. However, assuming arguendo that it did apply, all Arkansas case law cited in the report and recommendation cannot support LINA’s denial on this record. The report and recommendation cites Wetherington v. State, 319 Ark. 37 (1994), where the Arkansas Supreme Court stated that circumstantial evidence may constitute substantial evidence to support a jury’s verdict of guilt for drunk driving. However, the report fails to note, critically, that circumstantial evidence is sufficient only “if the circumstantial evidence rules out every other reasonable hypothesis [or theory] but the guilt of the accused.” Id., at 39 (emphasis added). The report and recommendation also failed to apply this critical concept in its analysis.72 This record falls far short of ruling out every other reasonable hypothesis but that intoxication caused this accident. It likewise falls far short of “substantial” “concrete” evidence that “clearly supports the basis for its denial” as LINA is required to prove to support its denial. Corey v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007); Vega, 188 F.3d at 302.  

• The Circumstantial Evidence of this Record Is Inadequate.

Factually, the Arkansas case law cited in the report and recommendation does not support its ruling. The Wetherington, supra, circumstantial evidence included direct observation by the arresting officer of driver slumped behind the wheel in a ditch with lights on and engine running, then get out, stagger and fall while smelling of alcohol. Id., at 39-40. The report cites Lockhart v. State, 2017 Ark. 13, 2017 WL 374725. However there, the arresting officer observed the defendant’s car driving 10 miles per hour under the speed limit, weaving and crossing the centerline multiple 72Hypothesis defined: “A supposition, assumption, or theory; … ” Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed. at thelawdictionary.org. times, smelled a strong odor of alcohol on the defendant, noticed a “little stagger to his walk,” defendant told him the wrong city of his residence, and refused to take the breathalyzer test, which Arkansas law permits to serve as evidence of guilt. Id., 2017 WL 374725 at 2-3.73 73The case law LINA cited in its brief (ROA. 949) regarding circumstantial evidence is equally inapposite. Following are all cited cases: Blair v. State, 103 Ark. App. 322, 288 S.W.3d. 713 (2008) (Concerned citizen saw defendant’s vehicle remained stopped through a green light change while other cars had to go around it, had its left turn signal on despite there being no place to turn left, when it finally moved it weaved over the center line causing oncoming traffic to pull over to avoid being hit, “inside of car smelled like a brewery”, when the concerned citizen told the driver that he could either call his wife to drive her home or he would call the police, defendant said “Call ’em” and drove away slinging gravel, when police took over, defendant had empty and full beer cans in hand, bloodshot eyes and smelled of intoxicants, slurred speech, admitted taking Xanax three times per day, failed horizontal gaze test and other field sobriety tests, attempted to fake blowing into the breathalyzer, still registered .075 despite stopping blowing as the display reached the .08 level, she implored her son to say that he was driving, but he refused, toxicologist testimony that alcohol consumed with Xanax increases depressive effects of alcohol.); Morton v. State, 2011 Ark. App. 432, 348 S.W.3d 585 (2011) (Officer observed erratic driving, car left roadway, was stuck on an incline but accelerator still engaged and tire spinning, while driver passed out with foot on accelerator, would not wake up, when he finally exited vehicle, dazed and unable to walk or stand on his own, slurred speech, incoherent, seemed to fall asleep leaning on trooper’s car, strong smell of marijuana, admission that he had been smoking marijuana including a partially smoked joint found in the car, rolling papers found on person, blood tested positive for marijuana.); Henry v. State, 2011 Ark. App. 169, 378 S.W. 3d 832 (2011) (Defendant crashed into another vehicle, did not follow directions for horizontal- gaze test, refused to complete any other field sobriety test, slurred speech and attempts to recite ABC’s unintelligible, very confused, four pill bottles in purse in her name, Klonopin, Flexeril, and Primidone, which she said she took daily, toxicologist testified about effects of Primidone including drowsiness and vertigo, even at the therapeutic levels can be impairing.); Johnson v. State, 337 Ark. App. 196, 987 S.W.2d 694 (1999) (Trooper observed defendant driving erratically, smelled alcohol on him, bloodshot eyes, unable to support himself or stand upright without leaning against truck, speech very slow and deliberate, tried to stand at one point but fell back to his left, said “don’t do this to me” when asked if he would have any problems performing field sobriety test.); Alley v. State, 2015 Ark. App. 31 (Ark. Ct. App. Div. 1, Jan. 28, 2015) (Officer observed defendant in the parking lot of a restaurant which served alcohol, observed him having difficulty exiting the lot in his vehicle, drove erratically, admitted he had been drinking and had taken a Klonopin tablet the same evening, slurred speech, failed all three field sobriety tests, video introduce the trial showing him having trouble balancing, urine toxicology testing positive for five different narcotics.) Here, in contrast, the only circumstantial evidence is the nature of the accident itself. The highway curved right; BLANK went straight. Our record references no evidence of speeding or driving erratically, no evidence of BLANK showing any signs of impairment before or after the accident, no evidence of drugs or alcohol at the scene, and no evidence showing he had alcohol or drugs on the day of the accident. The only witness to decedent’s pre-accident condition of record, Mrs. BLANK , specifically stated that he was “not impaired by any substances.” While paramedics mentioned smelling alcohol, the toxicology results, according to LINA’s own toxicology expert, were negative for alcohol, can only show prior exposure to the substances discussed above, at some unknown time, with no measured or quantified levels, and cannot be used to estimate any level of impairment. The record has no explanation by any expert of how any of those substances at any level may affect one’s ability to drive. Neither Dr. Fochtman nor LINA addressed the effects of BLANK’s many prescribed drugs, including the opiate Hydrocodone for which he tested positive, or how any effects of the nonprescribed substances can be separated from the effects of the prescribed ones for which BLANK tested positive. The evidence comes nowhere near ruling out every other reasonable hypothesis, or theory, but intoxication or non-prescribed medication causing the accident. The nature of the accident itself is equally consistent with a driver simply falling asleep at the wheel (Plaintiff told officers while traumatized at the scene of his narcolepsy and prior occasions of falling asleep at the wheel), or as Mrs. BLANK also explained to LINA, once again coherent after burying her husband, that decedent was distracted by the family dog in the back seat while continuing on a straight path when the road curved right, and that he was not impaired. If traveling at the posted speed limit of 60 mph (or 88 feet per second), crossing three lanes by going straight when the road curves would likely take three seconds at most. At the very least, the record demonstrates reasonable other hypotheses for the accident that are by no means “ruled out.” Accordingly, the cited Arkansas case law cannot support a ruling for LINA here if Arkansas case law were applicable.  

• The Federal Case Law Cited in the Report and Recommendation Does Not Support a Ruling in LINA’s Favor.

Unlike our record, every federal intoxication case referenced in support of the report and recommendation had evidence of record of a quantified level of impairing substances. Thus, not one of those cases supports it. Each cited case is addressed below. In Nichols v. Hartford Life & Accident Ins., 2014 WL 12537147 ( S.D. TX June 9, 2014), the record, in addition to egregious accident facts, included a toxicology report showing an uncontradicted quantified alcohol level of more than twice the legal limit. Id., at 1-2. In Cerone v. Reliance Standard Life Insurance, 2014 WL 10706760 (S.D. CA August 8, 2014), the insured died when he drove into a tree at high speed. The Cerone record included surveillance showing the insured drinking three martinis at a casino bar shortly before crashing, a measured alcohol level of .07%, along with expert testimony about how impairing that level can be and how it greatly increases the risk of a motor vehicle accident. Id., at 2-5. Cerone bears no factual resemblance. Contrary to the report and recommendation, Plaintiff does not contend that “a urine test is [per se] insufficient” because “a” urine test provides only “qualitative” results. Rather, Plaintiff contends that the urine test in this case is insufficient because it only provided unmeasured “qualitative” results that LINA’s own expert opined cannot be used to determine impairment. In support of the general proposition that a urine test may be sufficient, the report and recommendation cites a number of cases. However, every cited case had record evidence of a quantified level of intoxicating substance. It cites Lubich v. Liberty Life Assur. Co. of Boston, 2010 WL 1253547 (W.D. PA, March 4, 2010), as supportive of LINA’s denial because there, the court upheld Liberty’s denial based in part on a urine drug screen testing positive for Dilaudid and opiates after the insured was found dead on his basement steps. However, Lubich was an overdose case, the urine and blood test provided a quantitative level of the drugs, a toxicology expert opined that Dilaudid, opiates and hydromorphone were 4 to 5 times the therapeutic level, the insured had filled a prescription for 300 tablets of oxycodone six days before his death, but the police report indicated only seven were found in his possession, along with 20 tablets of Xanax, and the toxicologist opined that the combination and level of drugs in his system would have caused respiratory depression and death. Thus, the plaintiff’s unsupported claim of faulty test results was rejected. Lubich is nothing like this case. It cites Capone v. Aetna Life Ins. Co., 559 F.3d 1189 (11 Cir. 2010) for the proposition that a fiduciary is “entitled to rely upon toxicology tests to conclude a claimant was under the influence where he presented no evidence beyond unsubstantiated assertion of improper calibration.” Capone paralyzed himself when he dove into the ocean in the Bahamas and struck his head on the bottom. However, in Capone, the record had a quantified alcohol level of .244. Id., at 1192-1193. Although the insured lamely disputed the level, the record at least included concrete evidence of this very high level, unlike here. The record further included a medical treatise, which stated that someone with Capone’s blood alcohol level would exhibit staggering, grossly impaired, drunk; may be lethargic and sleepy or hostile and aggressive. Id., at 1194. The Capone Court ultimately REVERSED the district court’s judgment in Aetna’s favor, and held that the record lacked sufficient evidence that consumption of alcohol contributed to the accident and injury. Id., at 1195. Capone is not supportive of a verdict favoring LINA. It cites Tran v. United of Omaha Life Insurance Co., 780 F.Supp. 2d 965 (D. NE January 31, 2011), as rejecting Tran’s speculative arguments that a toxicology report was unreliable. However, the Tran record had quantitative toxicology evidence of urine, blood and cavity fluid showing a blood alcohol level of .088. Id., at 968. Additionally, decedent drove his car slowly onto a railroad track while cross arms and flashing red lights were activated and the oncoming train was blowing its whistle, after going around another vehicle stopped at the crossing. It cites Sorrells v. Sun Life Assur. Co., 85 F.Supp.2d 12221 (S.D. AL 2000), where the record had a quantitative toxicology report showing a blood alcohol level of .23. Id., at 1224. It cites Dutka v. AIG Life Lnsurance Co., 573 F.3d 210 (5th Cir. 2009), which involved a small plane crash fatality. However, there the opinion notes that the record contained an FAA toxicology report and the opinion of AIG’s toxicology expert that the decedent/pilot had “used cocaine, had used alcohol and had taken the prescription drug Propoxyphene within a few hours of his death.” Id., at 213 (emphasis added). Additionally, expert reports “also conclusively show that the decedent had a therapeutic dose [a quantified level] of a narcotic in his body at the time of his death.” Id., at 214 (emphasis added). Additionally, the FAA toxicology report disclosed “the presence of chemicals in the decedent’s body consistent with the use of multiple drugs around the time of the accident.” Id., at 214. The court reasoned: “With evidence that the decedent was under the influence of Propoxyphene at the time of the crash and that he had recently used alcohol and cocaine, we cannot find arbitrary and capricious the administrator’s conclusion that the decedent was intoxicated at the time of the crash” Id., at 214 (emphasis added). The court only then separately addressed the issue of causation, finding that the circumstantial evidence of the plane crash supported the administrator’s conclusion of causation. Dutka does not condone the use of circumstantial evidence of the crash to support the determination of intoxication; rather, given the adequate evidence of intoxication, and expert testimony that he was “under the influence” of a “therapeutic dose” of an impairing narcotic along with using alcohol and cocaine within a few hours of crashing, it permitted circumstantial evidence of the crash to support a finding of causation.74 With adequate independence evidence of intoxication, addressing the causation issue, the Dutka Court reasoned that “the failure to maintain air speed at low altitude is a fundamental piloting error making it reasonable to conclude that the accident resulted in part from being under the influence of [the quantified level of] drugs.” Dutka, 573 F.3d at 214 (emphasis added). Our case is different. First, failing to maintain air speed while flying at low altitude is not consistent with a momentary lapse in attention as in this case. Additionally, Dutka involved a plane crash in which all persons onboard perished. Accordingly, the record reflected no evidence of causes other than impairment. Here, in contrast, the record contains Mrs. BLANK’s explanation to the police that her husband took prescription medication, suffered from narcolepsy and had fallen asleep 74The underlying Dutka record demonstrates that AIG’s toxicology expert interpreted quantitative toxicology testing, and specifically opined that the pilot “would have been impaired to the point that he would not be able to safely operate an airplane.” Fifth Circuit Case No. 08- 20515, Document: 0051573557, p. 17, Brief of Appellee AIG. AIG’s expert also explained how data from the toxicology results proved that the defendant was under the influence of drugs at the time of his death and details the effects those drugs would have had on the decedent’s abilities to pilot an airplane. Id., p. 17. The expert explained that the decedent’s use of Propoxyphene prohibited him from safely piloting an airplane on the date of the crash, and that the level of that drug in his system, absent a prescription, would certainly produce significant impairment. Id., p. 20. Additionally, the NTSB report concurred that the decedent’s use of Propoxyphene would have been incompatible with his ability to safely operate an airplane. Id., p. 20. AIG’s expert specifically opined that his death was caused, at least in part, due to the decedent being under the influence of drugs at the time of the crash. Id.., 20-21. at the wheel on prior occasions, and to LINA that he was distracted by the family dog in the back seat of the car. It also contains evidence that BLANK was prescribed Hydrocodone, an opiate for which he tested positive and which causes sedation and drowsiness when taken as prescribed, and LINA itself claiming he was driving under its influence. Those explanations are all reasonable and consistent with the nature of the accident. Unlike in Dutka, LINA withheld its expert’s report until after Plaintiff filed suit. Here, unlike all cases cited in support of LINA’s denial, we have no evidence of a level, a dose or timing of any detected substances. We have no expert opinion on how any detected substance may have influenced, intoxicated or impaired one’s ability to drive, to even consider in conjunction with the facts of the accident itself to support a determination of causation. We have Dr. Fochtman affirmatively opining in his withheld report that the toxicology results here cannot be used to determine any level of impairment. Finally, we have LINA asserting that BLANK was driving under the influence of a prescribed medication, then arbitrarily determining that other substances caused the accident from toxicology results that its own expert opined could not be used to determine any level of impairment. Thus all of the cases cited in the report and recommendation are distinguishable, and none support LINA’s denial, nor the report and recommendation. The record does not contain concrete, substantial evidence clearly supporting LINA’s denial.  

• The Court Should Consider the Coroner’s Sworn Affidavit Testimony Explaining His Practice in Completing Medical Terms On a Death Certificate

Fifth Circuit case law provides that “expert opinion that assists the district court in understanding the medical terminology or practice related to a claim” is an exception to the rule confining the court to the administrative record. Vega v. National Life Insurance Services, Inc., 188 F.3d 287, 299 (5th Cir.1999) (en banc), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). Faced with its own illegally withheld expert opinion that the toxicology cannot establish impairment, LINA disregarded it and hung its hat on filled-in blanks on the single-page government form death certificate. However, disinterested expert Dr. Belue testified that the way LINA interprets the terminology and his practice as an expert physician and Coroner in completing those blanks is erroneous as it relates to this case and others presenting similar circumstances. Dr. Belue’s Affidavit clearly falls within the exception. The application of the exception here is not only proper, but glaringly critical for the advancement of truth and justice. Dr. Belue’s Affidavit not only assists the court in understanding his practice and terminology as it relates to this case, it also exposes the injustice of an undeniably erroneous interpretation used by LINA to support its denial. He explains that his practice, in the appropriate case, and here specifically, is to include as “underlying causes” those which are speculative possibilities. He adds no factual evidence. He just provides explanation. Applying the exception here allows the legal arguments and ultimately the court’s ruling to at least be made based upon accurate understanding of the Coroner and expert’s practice and terminology on the death certificate as they relate to this case instead of fiction. Without his explanation, the court could potentially guess erroneously as did LINA. Without his explanation, LINA is permitted to claim support for its denial upon what is undeniably an erroneous interpretation. The exception to the general rule obviously exists in order to promote justice in the appropriate case. The exception applied in this case does just that. LINA’s assertion that the court should ignore the affidavit is supportive only of continuing bad faith gamesmanship to allow falsehood to drive an unjust result. No logical argument exists to disallow the explanation presented here, which clearly fits the exception, and which is undeniably reliable and from a disinterested party. The Affidavit is precisely the type of evidence fitting the letter and spirit of the exception to the administrative record limitation. It should be considered here.  

CONCLUSION AND REQUESTED RELIEF

LINA’s procedural violations, procedural unreasonableness, and failure to consider the bases of opinions it advocated in support of its denial, each independently, and in conjunction with its structural conflict of interest, warrant a finding of abuse of discretion. Additionally, LINA’s denial is not supported by substantial, concrete evidence clearly supporting it. The Court should find that LINA abused its discretion, reverse and render judgment in Plaintiff’s favor for benefits due under the policies plus appropriate attorney’s fees, judicial interest and court costs under the criteria set forth in Salley, supra, 966 F.2d 1011 (5th determined upon remand to district court.75 Cir.1992), to be 75“If an administrator has made a decision denying benefits when the record does not support such a denial, the court may, upon finding an abuse of discretion on the part of the administrator, award the amount due on the claim and attorney’s fees. See, e.g. Salley, 966 F.2d at 1014. We find such an abuse of discretion here, and we will remand to the district court for a determination of damages and reasonable attorney’s fees and for entry of judgment.” Vega, supra, at 302. Respectfully Submitted, s/J. Price McNamara J. PRICE McNAMARA (20291) 10455 Jefferson Highway, Ste. 2B Baton Rouge, LA 70809 Telephone: 225-425-3529 Facsimile: 225-201-8313 Counsel for Plaintiff/Appellant, BLANK   CERTIFICATE OF SERVICE The undersigned counsel additionally hereby certifies that on the 19th day of June, 2017, the foregoing Appellant’s Brief, in addition to an electronic copy in PDF format, were served on the counsel below by email and through the CM/ECF server of the Fifth Circuit: Raymond T. Fischer (Louisiana Bar No. 29185) S. Wesley Butler (Texas Bar No. 24045593) Cole B. Ramey (Texas Bar No. 16494980) Kilpatrick Townsend & Stockton, LLP 2001 Ross Avenue, Ste. 4400 Dallas, TX 75201 Counsel for Defendant-Appellee, Life Insurance Company of America s/J. Price McNamara J. PRICE McNAMARA Counsel for Appellant   CERTIFICATE OF COMPLIANCE Pursuant to 5th Cir. R. 32.2 and .3, the undersigned certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7). THE BRIEF CONTAINS 12,761 WORDS, excluding the Table of Authorities. THE BRIEF HAS BEEN PREPARED IN PROPORTIONALLY SPACED TYPEFACE USING WORD PERFECT IN TIMES NEW ROMAN (14 POINT) FONT. THE UNDERSIGNED UNDERSTANDS A MATERIAL MIS- REPRESENTATION IN COMPLETING THIS CERTIFICATE OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN FED. R. APP. P. 32(A)(7) MAY RESULT IN THE COURT’S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF s/J. Price McNamara PRICE McNAMARA Counsel for Appellant  

CASE NO.: 17-30356

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BLANK Plaintiff- Appellant

VERSUS

LIFE INSURANCE COMPANY OF NORTH AMERICA Defendant/Appellee Appeal from the United States District Court for the Western District of Louisiana Monroe Division: Cause No.: 3:15-cv-02181-RGJ-KLH _

REPLY BRIEF OF APPELLANT, BLANK

PRICE McNAMARA, TA (20291) 10455 Jefferson Highway, Ste. 2B Baton Rouge, LA 70809

Telephone: 225-425-3529 Facsimile: 225-201-8313 Counsel for Plaintiff/Appellant, BLANK   MAY IT PLEASE THE COURT: Plaintiff-Appellant, BLANK (“Plaintiff”), respectfully replies to the brief of Appellee, Life Insurance Company of North America (“LINA”), as follows: FACTUAL CLARIFICATIONS Several of LINA’s factual statements and suggested inferences require context for the sake of accuracy. LINA suggests Plaintiff’s fault for its lack of evidence, stating: “[B]y the time BLANK requested [quantitative testing], the testing samples had been discarded by the [State Police] lab.”1 However, the testing samples were discarded long after LINA told Plaintiff that LINA would be obtaining them, but failed to do so. LINA’s first attempt came just after learning from Dr. Fochtman that the qualitative-only results were inadequate. The accurate timeline follows: September 3, 2014 – State Police toxicology report is issued, stating: “Should confirmatory or additional testing be required, you must contact this office within ninety days of the issuance of this report. The specimen will be destroyed after ninety days.”2 1LINA Brief, p. 6. 2ROA.182. September 24, 2014 – LINA sends letter to Plaintiff, requesting Death Certificate from her and stating that LINA would be writing to the medical examiner’s office, the police department and University Health Center directly to receive all records from them.3 January 5, 2015 – LINA hires Dr. Fochtman to review qualitative toxicology reports and other records to give an opinion “on any impairment Mr. BLANK would have been experiencing at the time of the crash and to what extent might these impairments affect his driving abilities.”4 January 22, 2015 – Dr. Fochtman faxes his report to LINA, stating that the qualitative toxicology results LINA gave him could not support a determination of any level of impairment.5 He would need quantitative testing for that. January 29, 2015 – LINA, after receiving Dr. Fochtman’s report, finally initiates efforts to obtain quantitative results, advising Plaintiff that LINA has requested Arkansas State Police blood work.6 It was already too late. January 29, 2015 – LINA calls State Police to “see if they did a blood draw or what Trooper Albritton based his DUI citation on.”7 3ROA.483. 4ROA.201 (emphasis added). 5ROA.200. 6ROA.189. 7ROA.190. January 29, 2015 – State Police advises LINA that it would release results only upon subpoena or to the family of Decedent.8 January 29, 2015 – State Police fax LINA supplement pages to accident report adding “impaired” for driver status based on qualitative-only test results LINA knows to be inadequate from Dr. Fochtman’s recently received report it ultimately withheld.9 February 6, 2015 – LINA’s letter to Plaintiff’s then-attorney states that State Police will not release the quantitative blood toxicology to anyone other than Plaintiff’s next of kin, requesting that Plaintiff obtain same.10 After Plaintiff’s then-attorney made efforts to get quantitative results from State Police, its Crime Lab wrote to him on March 27, 2015, advising that “confirmatory testing … has not been performed to identify or quanitate any specific drugs.”11  Plaintiff’s then-attorney reported to LINA by letter dated April 6, 2017 that State Police advised no quantitative results exist.12 claim.13 Four days later, LINA denied the 8ROA.188. 9ROA.187. 10ROA.185. 11ROA.161. 12ROA.180. 13ROA.174.   Thus, LINA’s first inquiry about quantitative toxicology results to State Police came long after the samples were discarded. It came long after it told Plaintiff on September 24, 2014 that LINA would be gathering documents from police. It came just one week after Dr. Focthman disclosed that the qualitative results were inadequate. Plaintiff cannot be faulted for LINA’s lack of evidence, and the timing shows LINA’s subjective belief that Dr. Fochtman’s opinion was problematic contrary to its claim now that it supported its denial. LINA falsely claims: “In this case, the investigating officer, an expert in his field, found sufficient evidence to cite Decedent for driving while intoxicated, which necessarily means that the officer determined that he was influenced or affected by the ingestion of alcohol, controlled substances or intoxicants – or a combination thereof – to such a degree that his reactions, motor skills and judgment were substantially altered…”14 LINA knows  this  to be false. As  the  report and recommendation notes: “[T]he responding officer on the scene initially indicated that it was ‘UNKNOWN’ whether Mr. BLANK was impaired … Initially, Mr. BLANK was cited for Driving While Intoxicated because emergency medical personnel told the reporting officer that they smelled alcohol emitting from the decedent’s 14LINA Brief, p. 28 (emphasis added). breath. However, the blood test showed no alcohol in Mr. BLANK’s system. But because Mr. BLANK’s urine test registered positive for cocaine, cannabinoids, opiates, amphetamines, and a benzodiazepine, a supplemental note was added to the Arkansas collision report on January 29, 2015, indicating same. … Mr. BLANK’s ‘driver-impairment’ status on the collision report was then changed from ‘UNKNOWN’ to ‘IMPAIRED.’”15 The timeline shows LINA knew that the change to “driver-impairment” status came as a direct result of testing that LINA knew from Dr. Fochtman’s report was inadequate to support the determination of any degree of impairment. The fact that police added “impaired” on a report about a dead man six months after the accident, based upon that testing, cannot serve as substantial evidence of (1) causation by (2) intoxication as defined by the Arkansas statute.  In fact, police had no contact at all with Decedent on the scene.16 without considering its basis.17 LINA cannot rely upon the opinion of an expert Curiously, the “supplemental note,” which serves no purpose other than LINA’s attempts to justify a denial, was created and faxed to LINA the same day that 15ROA. 996; R.E. 27 (emphasis added). 16ROA.495, R.E. 43. 17Gothard v. Metro Life Insurance Co., 491 F.3d 246, 250 (5th Cir.2007); Schully, III v. Continental Casualty Company and Hartford Life Group Insurance Company, 680 F.ed Appx. 437, 439, 2010 WL 2332080 (5th Cir.2010). LINA made multiple telephone calls to the State Police. With full knowledge that the changed “driver-impairment” status did not square with Dr. Fochtman’s then-week- old opinion, LINA then cast it aside, withheld it from Plaintiff and the administrative process, and ignored it in its denials. LINA notes, “BLANK told the officer that Decedent suffered from narcolepsy and had fallen asleep at the wheel in the past that Decedent was under the care of a doctor and took prescription medication and that he had a problem with taking too much medication.”18    Without ever asking Plaintiff for support or clarification of a cop’s summary of what she said at the scene of the horrendous accident,  while  seriously  injured  herself  and  her husband unconscious, LINA attempts to spin it to imply that Decedent perhaps exceeded the prescribed dosage of his many prescription medications on the day of the accident. After all, if the accident was caused by side effects of any of Decedent’s many sedating prescription medications, taken as prescribed, the opiate Hydrocodone among them, LINA’s exclusion does not apply. LINA’s “innuendos and hints” lack merit.19  As Dr. Fochtman noted, Decedent was  “receiving  medication  therapy for  multiple  conditions  that  include chronic 18LINA Brief, p. 7, emphasis LINA’s. 19Vega v. National Life Insurance Services, Inc., 188 F.3d 287, 302 (5th Cir.1999). shoulder and back pain, esophageal reflux, thyroid disorder, anxiety and depression… His prescribed medications included Baclofen, Buprenorphine, Celebrex, Cyanocobalamin, Cymbalta, Depakote, Duexis, Hydrocodone- Acetaminophen, Levaquin, Levothroxine, Lyrica, Mobic, Omeprazole, Pataday ophthalmic, Pristiq, Provigil/Nuvigil,   Suboxone,   testosterone,   Veramyst,   Viibryd   and  Vistaril.”20 Decedent’s medical records firmly support that Decedent was under doctor’s care for his struggle with sleep apnea, “low T,” fatigue, mental alertness and falling asleep on the job. See, for instance, February 24, 2014 medical psychology note of Dr. David Williams, noting, “he continues to have problems with fatigue even with the Nuvigil. He has sleep apnea, and he wears the CPAP intermittently. He is worried about falling asleep on the job. He does not wear the CPAP when he is offshore. Also the Nuvigil at 250mg is not helping as well as he would like. I will try him on Provigil.”21 Decedent’s long list of prescribed drugs, along with the known sedating side effects of many of them, including the opiate Hydrocodone, as noted in Plaintiff’s original brief, would easily give a wife reason to feel that her husband “sometimes had a problem with taking too much medication.” The doctor’s note also squarely 20ROA.201, R.E. 52 (emphasis added). 21ROA.394. supports Plaintiff’s statement that her husband suffered from narcolepsy and had fallen asleep at the wheel in the past. While condemning them, LINA never made the slightest effort to discuss or clarify with Plaintiff the comments police summarized at a chaotic accident scene, nor Decedent’s medical conditions or treatment, prescription medications or their effects on Decedent, nor his prior occasion of falling asleep at the wheel. In neither of its denials did LINA even consider or address any of that, and both denials include prescribed Hydrocodone (opiate) as a drug under the influence of which he was driving. LINA’s new modified argument that intoxication by non-prescribed drugs was “the only” reasonable explanation for the accident is ludicrous and contradicting. Dr. Fochtman’s speculative statement that “in the absence of any other cause of the collision, the drugs in his system could explain his level of impairment that resulted in his crash” is not only rank speculation, but meaningless under its own condition precedent. LINA’s claim that the comments attributed to Plaintiff in the police report are “not inconsistent” with intoxication misses the point. The comment is consistent with the accident being caused by Decedent’s known medical issues, prescription medications and falling asleep at the wheel. It is inconsistent with intoxication by alcohol or any non-prescribed substance, and certainly cannot qualify as evidence supportive of same. LINA’s further comment, echoed in the magistrate’s report and recommendation, that Plaintiff failed to explain why cocaine and marijuana were detected also misses the point.22    And LINA’s claim that “BLANK never denied that Decedent used illegal drugs on the day of the accident” is misleading word-mincing.23 First, Plaintiff did indeed state to LINA that Decedent was “not impaired by any substances” at the time of the accident.24   More importantly, however, the exclusion is not triggered by someone’s failure to explain the unquanitified presence of a substance or substances. It is triggered only by substantial evidence of intoxication, by substances other than those taken as prescribed, to the degree defined by Arkansas law, substantially altering reactions and motor skills and judgment, and causation, as discussed below. Substantial evidence of that does not exist in this record. LINA expresses incredulity that Plaintiff stated “nearly three months after the crash,” on October 20, 2014 that she was concerned about the items listed on the Death Certificate, and stated that “her husband was not impaired by any 22ROA.1002. 23LINA Brief, p. 34. 24ROA.474, R.E. 51. substances” and that they wrecked because of the dog distraction.25 Her timing, however, is hardly outlandish in light of Plaintiff dealing with her own severe injuries the tragic, violent and shocking death of her husband, loss of his income as a non- working wife, and the many accompanying logistics. In fact, it wasn’t until September 24, 2014, a full two months after the accident, that LINA even requested the Death Certificate from Plaintiff, in its first-ever contact following Plaintiff’s claim.26    Thus, her statement to LINA came on the heels of her first receiving, reviewing and faxing to LINA the Death Certificate on October 8, 2014,  at LINA’s request.27 She had  no  reason  to  even  believe that  the  Death Certificate notations had any bearing upon LINA’s policy coverage. That Plaintiff called LINA to voice concerns about the Death Certificate items and to provide an explanation of the accident on October 20, 2014 is hardly shocking. What is striking, however, is that the record is void of LINA ever asking Plaintiff for further discussion or clarification about the cop’s report of her comments on the scene, her statement about the dog or any clarification of Decedent’s well- documented medical issues of record with fatigue, falling asleep on the job, sleep 25LINA Brief, p. 7-8, emphasis by LINA. 26ROA.483. 27ROA.480, 481, 483. apnea, narcolepsy, prescribed medications, side effects, or falling asleep at the wheel. In fact, also never bothering to ask Plaintiff anything about the accident or Decedent’s activities that day, LINA was only advised of the dog distraction and that he was not impaired after Plaintiff, available and cooperative, initiated a call. Regardless of LINA’s condemnation of Plaintiff’s explanation, whatever it arguably lacks does not somehow morph it into evidence supporting LINA’s position. LINA in this case has taken a purely adversarial position against its insured, from day one, then later withholding core evidence, and now spinning the record. The administrative record and LINA’s conduct demonstrate LINA’s complete disregard of ERISA’s broad remedial purposes, intended to “protect…participants in employee benefit plans and their beneficiaries…by providing for appropriate remedies, sanctions and ready access to Federal Courts.” 29 U.S.C. § 1001(b); quoted in Varity Corporation v. Howe, 116 S.Ct. 1065, 1078 (1996); Black & Decker Disability Plan v. NORD, 538 U.S.A. 22, 123 S.Ct. 1965, 1970 (2003) (“ERISA was enacted to promote the interests of employees and their beneficiaries in employee benefit plans, and to protect contractually defined benefits.” Quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113; 109 S.Ct. 948 (1989) (Internal quotation marks and citations omitted.) In Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 807-808 (10th Cir.2004), the court explained: Aetna’s position seems to be that as a plan fiduciary, it plays a role like that of a judge in a purely adversarial proceeding, where the parties bear almost all of the responsibility for compiling the record, and the judge bears little or no responsibility to seek clarification when the evidence suggests the possibility of a legitimate claim. The authority just cited suggests that Aetna has the wrong model. * * * While a fiduciary has a duty to protect the plan’s assets against spurious claims, it also has a duty to see that those entitled to benefits receive them. It must consider the interests of deserving beneficiaries as it would its own. An ERISA fiduciary presented with a claim that a little more evidence may prove valid should seek to get to the truth of the matter. This record shows nothing but financially conflicted, self-interested behavior to an unconscionable degree to reach a predetermined goal of denial. LINA’s bold statement that “Decedent’s intoxication and/or voluntary ingestion of non-prescribed narcotics or drugs were the only reasonable explanations for the collision” is more than a stretch.28

LINA’S AND THE MAGISTRATE’S TREATMENT OF FULL AND FAIR REVIEW AND PROCEDURAL UNREASONABLENESS AS ONE COMBINED, UNWORTHY ISSUE MISAPPLIES THE LAW

LINA attempts to blend two completely independent issues (failure to produce Dr. Fochtman’s report despite request and failure to consider or address his opinion when denying benefits) as one, shrugging both off as “technical” noncompliance because, LINA claims, Dr. Fochtman’s report was favorable to LINA, thus no big deal. The magistrate’s ruling does the same. At the outset, LINA’s suggestion that its failure to produce the report and its failure to address the report in its denials raise one issue is erroneous. In Truitt v. UNUM Life Insurance Company of America, 729 F.3rd 497 (5th Cir.2015), the court explained: A plan administrator fails to provide a “full and fair review” if it does not comply with the “procedures set forth in [29 U.S.C.] § 1133 of ERISA and in the Department of Labor regulations promulgated pursuant to that section.” Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 393 (5th Cir.1998). These procedures require, among other things, that a plan administrator provide a claimant with “specific reasons” for terminating benefits, see Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 392-93 (5th Cir.2006), and identify “medical or vocational experts whose advice was obtained on behalf of the plan in connection with a claimant’s adverse benefit determination.” Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148, 154 (5th Cir.2009) (quoting 29 C.F.R. § 2560.503-1(h)(3)(iv)). As discussed below, the “procedural unreasonableness” of a plan administrator’s decision is a separate concept that is a subset of our conflict of interest analysis.29 The Truitt Court continued:

By contrast, “full and fair review,” discussed above, is an independent basis to overturn a plan administrator’s denial of benefits. See Lafleur, 563 F.3d at 160.30

 

• Full and Fair Review

LINA gives no explanation whatsoever why it withheld Dr. Fochtman’s report from Plaintiff until after suit was filed. LINA does not even claim it to have been inadvertent, only that its behavior in doing so is acceptable. If the intentional withholding of this core evidence qualifies as a “technical” failure, then the administrative process may as well not exist. LINA’s argument that illegally withholding Dr. Fochtman’s report did not violate a full and fair review is baseless. The applicable regulations themselves declare that a claims process “will not be deemed to provide … reasonable opportunity for a full and fair review…” if violated in the manner LINA has here.31 29Id., at 509 n.4 (emphasis added). 30Id., at 510 n.6 (emphasis added). Plaintiff separately addressed LINA’s failure to produce Dr. Fochtman’s report (the full and fair review issue) and failure to consider it in its denials (the procedural unreasonableness issue) on pages 30 and 36 of her original brief, respectively. The specific procedures and regulations LINA violated by failing to produce the report are set forth on page 30 and following of Plaintiff’s original brief. 31The regulations are set forth in detail in Plaintiff’s original brief at page 30 and following. Fifth Circuit case law declares: “A plan administrator fails to provide a ‘full and fair review’ if it does not comply with the ‘procedures set forth in [29 USC] §1133 of ERISA and in the Department of Labor Regulations promulgated pursuant to that section.’”32 The Supreme Court declares that ERISA “sets forth a special standard of care upon a plan administrator” to discharge its duties “solely in the interest of the participants and beneficiaries of the plan…” and that it “simultaneously underscores the particular importance of accurate claims processing by insisting that administrators provide a ‘full and fair review’ of claim denials.”33 Stressing the importance and reasoning behind “full and fair review,” the Truitt Court explained: We reiterate that, in the context of ERISA, evidence is tested through a probing administrative process, and that, in that process, issues of inauthenticity, contradiction, unreliability, and bias all may be pertinent. This probing process contemplates that the plan administrator must first identify evidence to support its decision to deny benefits. See Robinson, 443 F.3d at 392-93 (observing that, under 29 U.S.C. § 1133, a plan administrator must identify “specific reasons” for denying benefits). Then the claimant may attempt to discredit that evidence by, among other things, attacking its source. See Vega, 188 F.3d at 298. * * * 32Napoli v. Johnson & Johnson, Inc., 624 F.Appx.861, 865 (5th Cir.2015). 33Firestone v. Bruch, 489 US 101, 113, 109 S.Ct. 948 (1989) (quoting §1133(2)). And, finally, the plan administrator will consider whether, given its asserted deficiencies, the evidence in question continues to support its decision to deny benefits. See Vega, 188 F.3d at 298.34 LINA’s failure to produce strikes at the very heart of ERISA’s administrative process. Dr. Fochtman’s report and opinion that the relevant toxicology results cannot  support  the determination  of  any level  of  impairment,  is the only expert toxicology opinion of record, and directly addresses the core issue of the case. His opinion and  report caused  LINA to  immediately, but belatedly  scurry  to obtain quantitative testing and ask State Police why they cited Decedent with DUI, as noted above. For LINA to now label its blatant violation as “technical” because it was favorable to LINA is ludicrous. Plaintiff was entitled to the opportunity to make any arguments and take any and all other actions triggered by LINA’s timely production of Dr. Fochtman’s report during the administrative process. Examples are outlined in Plaintiff’s original brief. LINA’s claim that the “list of things [Plaintiff] ‘would have’ known and done had she been provided the Fochtman report are nonsensical” and “purely speculative” is nonsense. Plaintiff’s deprivation of “full and fair review” is demonstrated clearly by the following: The undersigned was retained by Plaintiff and filed his motion to substitute as counsel in place of Plaintiff’s successions attorney on April 15, 2016.35 Prior to the undersigned being retained on this case, LINA never did produce the Dr. Fochtman report. Shortly after the undersigned was enrolled, and long after suit was filed, LINA finally produced his report. Within a matter of days, but not until after reviewing Dr. Fochtman’s previously unavailable report, Coroner Belue signed his May 3, 2016 affidavit the district court rejected. LINA’s statement that “BLANK was offered several opportunities to provide additional evidence to buttress her claim, but she failed to do so” during the administrative process defies reality.36 Plaintiff lacked critical withheld evidence. Labeling its failure as “technical,” LINA argues that Dr. Fochtman’s report favored its position and “merely reinforced” LINA’s findings. LINA argues that Dr. Fochtman “merely” opined that he could not determine a level of impairment, and the record need not demonstrate a “specific” level of impairment under applicable Arkansas law. LINA is dead wrong. First, LINA’s claim that it can deny benefits without evidence of a “specific” level of intoxication is specious. LINA’s exclusion requires both “intoxication,” as defined by Arkansas law, and causation. Arkansas law defines “intoxication” as 35ROA.43. 36LINA Brief, p. 13. being influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, “to such a degree that the driver’s reactions, motor skills and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury to herself or another person.”37  “Degree” is defined (ordinary meaning) as “The amount, level or  extent  to  which  something  happens  or is present.”38 Dr.  Fochtman’s report supports that the toxicology results cannot support a determination of any level or degree of impairment. Plaintiff was denied the opportunity to argue that to different LINA personnel on administrative appeal, whose denial on appeal makes no reference to the report. Second, the idea that Dr. Fochtman was favorable to LINA’s position is nonsensical. Dr. Fochtman’s opinion that the toxicology results cannot support a determination of any level (or degree) of intoxication directly undermines LINA’s denial, which required substantial evidence of the degree of intoxication specified in the Arkansas statute. It undermines all evidence LINA claims supported its denial, including the toxicology results, the “opinions” of police noting impairment and intoxication in their report, and internal medicine physician/Coroner Belue 37AR RS §5-65-102(4). 38Oxford Dictionary at en.oxford.dictionaries.com. referencing drugs in the Death Certificate. An administrator may not rely on an expert opinion without considering its basis. As LINA knew, both were based on the same toxicology results.39 Even LINA’s claimed belief that Dr. Fochtman’s report is favorable to LINA is absurd and debunked by its immediate post-report efforts to obtain quantitative toxicology results and ask State Police on what did they base their DUI citation, as outlined on pages 2-3 herein. The idea that LINA considered Dr. Fochtman’s report favorable or reinforcing of its denial while withholding it and not mentioning it in either denial letter is inconceivable. To withhold it was unacceptable. At the very least, “full and fair review,” as explained by the Truitt Court, contemplates a probing administrative process wherein Plaintiff was entitled to the opportunity to argue contradiction and unreliability on the points raised above to different LINA personnel on appeal. Plaintiff was entitled to discredit LINA’s “evidence [police report, Death Certificate] by, among other things, attacking its source  [inadequate toxicology results].”40     The  appeals  administrator should have 39LINA knew that the basis for the Coroner referencing drugs in the Death Certificate was a qualitative-only urine drug screen from the hospital. LINA’s November 18, 2014 phone log reflects the Coroner’s office statement that “the record [the Coroner had] from the hospital is a urine drug screen. There was no quantitative test sent.” ROA.329. R.E. 48. The Death Certificate was completed long before November 18, 2014. 40Truitt, at 511. considered Plaintiff’s fully informed arguments, and whether, “given [Plaintiff’s] asserted deficiencies, the evidence in question continues to support its decision to deny benefits.”41 LINA made a mockery of the process. LINA’s justification rings especially hollow, given it was required to produce any “relevant” document, defined by regulations to include every document generated in connection with the claims process, regardless of whether a financially conflicted administrator pretends to deem any “favorable.” The obvious goal is to prevent plan administrators from withholding evidence by arbitrarily self-labeling it as “favorable” to its position during the administrative process. ERISA does not give an administrator discretion to withhold evidence. A ruling that LINA’s failure to produce Dr. Fochtman’s report did not independently constitute an abuse of discretion would simply condone and encourage a deceptive practice that the procedural and regulatory provisions mean to eliminate. The Court should overturn LINA’s denial of benefits on the independent basis of failure to provide full and fair review. 41Id., at 511 (emphasis added).

• Procedural Unreasonableness

LINA and the magistrate erroneously reason that this case is distinguishable from Schexnayder v. Hartford Life and Accident Insurance Co., 600 F.3d 465 (5th Cir.2010), and Metro Life Insurance Co. v. Glenn, 554 US 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). LINA reasons again that Dr. Fochtman’s report was favorable to its position. For the reasons noted above, that argument cannot be taken seriously. Thus, LINA’s purported distinction between our case and Schexnayder and Glenn is misplaced. The Schexnayder Court ultimately found that Hartford’s failure to address or acknowledge the SSA determination that was in conflict with its own determination was procedurally unreasonable “in its own right.” The court further determined that the procedural unreasonableness justified giving more weight to Hartford’s conflict. “Although substantial evidence supported Hartford’s decision, the method by which it made the decision was unreasonable, and the conflict, because it is more important under the circumstances, acts as a tiebreaker for us to conclude that Hartford abused its discretion.”42 42Id., at 471. Far worse than in Schexnayder and Glenn, LINA not only failed to address Dr. Fochtman’s undermining report in its denials, but also violated“full and fair review” by withholding it. The administrators in Schexnayder and Glenn simply failed to consider a contrary SSA determination, which was fully known to both sides and based upon a different set of standards than ERISA.  

THE MAGISTRATE’S RULING THAT LINA DID NOT ABUSE ITS DISCRETION IS ERRONEOUS

• Contrary to LINA’s Position, Plan Interpretation and Sufficiency of Evidence are Separate, Independent Inquiries.

LINA states: “Since LINA correctly interpreted the plan, the inquiry ends there…. out of an abundance of caution, LINA submits that, even if LINA’s interpretation of the plan was legally incorrect, LINA did not abuse its discretion in making its determination because the decision was supported by substantial objective evidence requiring its affirmance.”43    LINA has it wrong. If a court determines the administrator’s interpretation of the terms of a policy to be legally correct, then the policy interpretation analysis ends.  If the administrator’s interpretation of terms is legally incorrect, then the court determines whether or not the interpretation of policy terms was or was not an abuse of discretion. However, even if plan interpretation is 43LINA Brief, pp. 33-34. determined to be legally correct or not an abuse of discretion, the factual substantial evidence determination is still required. See Firman v. Life Insurance Co. Of North America, 684 F.3d 533, 538 (5th Cir.2012).

• LINA’s Position and the Magistrate’s Ruling Regarding the Sufficiency of Evidence to Support LINA’s Denial Are Erroneous

LINA essentially argues that Plaintiff contends circumstantial evidence as a general rule can never constitute substantial evidence in an ERISA context. The magistrate’s ruling seems to misinterpret Plaintiff’s argument similarly, stating, “Plaintiff argues that the Policies require ‘direct evidence’ of intoxication and causation… Plaintiff asserts that circumstantial evidence is insufficient to find causation.”44 However, Plaintiff has never argued that circumstantial evidence is per se insufficient an ERISA context.  Dutka directly says that it can be used to establish causation, and found that it sufficiently established causation under its particular facts. Plaintiff argues, rather, that LINA’s reasons for denying this claim were arbitrary, and not supported by substantial evidence, circumstantial or otherwise. In Dutka, the record contained an FAA toxicology report and the opinion of AIG’s toxicology expert that the decedent/pilot had “used cocaine, had used alcohol 44ROA.993, R.E. 24. and had taken a therapeutic dose of the prescription drug Propoxyphene” within a few hours of his death, although he did not have a prescription for that drug, and had a therapeutic dose of that narcotic in his body at the time of his death. AIG’s toxicology expert interpreted quantitative toxicology testing, and specifically opined that the pilot would have been impaired at the time of the accident to the point that he would not be able to safely operate an airplane. He further opined that the pilot’s death was caused due to the decedent being under the influence of drugs at the time of the crash. The Dutka accident was caused by a failure to maintain air speed while flying at low altitude, which is far different than an accident consistent with a momentary doze or distraction as here. All on board perished, and no witnesses could provide any other explanation. Here, in contrast, the only toxicologist opinion of record affirmatively  states that  a  level  of  impairment  cannot  be  determined  in  this  case,  debunking  the unquantified toxicology results, the police report and Death Certificate notations as reasonable “evidence” of intoxication or causation. We also have alternative direct explanations by Decedent’s surviving wife and passenger, and records documenting Decedent’s  medical  conditions  and  prescription  medications  supporting  those explanations. Finally, we have Plaintiff’s direct statement that he was not impaired by any substances on the day of the accident. This case is nothing like Dutka. As demonstrated in Plaintiff’s original brief, every case cited by LINA in support of its position and by the magistrate in her ruling had abundant evidence to support a finding of intoxication and causation. Those cases bear no factual resemblance. Other post-Dutka Fifth Circuit LINA cases are insightful on the higher degree of evidence relating to insurance coverage in intoxication-related accidents under ERISA.  See Firman (v. LINA), supra; Green v. Life Insurance Co. of North America,  754  F.3d  324,  331 (5th   Cir.2014). See also Horton v. Life Insurance Company of North America, 2015 WL 1469196 (D.MD 2015) (extensive survey of ERISA intoxication exclusion cases from multiple federal circuits.) Finally, Plaintiff does not dispute that circumstantial evidence can be considered to determine intoxication under Arkansas jurisprudential case law. Plaintiff maintains, rather, that LINA’s argument and the magistrate’s conclusion that the exclusion’s incorporation of Arkansas law incorporates not only the Arkansas statutory definition of intoxication, but also Arkansas jurisprudential evidentiary law to supplant ERISA’s established burden of proof standards and adaptation of common-law contract principles are mistaken. It makes even less sense to incorporate Arkansas jurisprudence as it relates to permitting circumstantial evidence, then arbitrarily cast aside the further requirement that circumstantial evidence exclude every other reasonable hypothesis, on grounds that this is not a criminal case, as the magistrate did. No authority supports that. If Arkansas jurisprudential law is to be incorporated at all, it should be fully incorporated. Indeed, the Fifth Circuit embraces the concept of excluding all other hypotheses in the context of analogous ERISA exclusions. In a matter of first impression, the Fifth Circuit in George v. Reliance Standard Life Ins. Co., 776 F.3d 349 (5th  Cir.2015), interpreted the “caused by or contributed to by” language in an analogous exclusionary clause to mean “but-for cause” it defined as a “cause without which the event could not have occurred.”45     George  involved  an  exclusionary provision  limiting  disability  benefits  to  twenty-four  months  if  “caused  by  or contributed to by mental or nervous disorders…”46    Since the George plaintiff had both physical and mental disabilities, the court reasoned that the limitation applied only if in the absence of his mental issues, his disability could not have occurred. Along those lines, LINA’s own line of reasoning in both denials is arbitrary and illogical. LINA’s exclusion does not apply to an accident caused by intoxication by a drug taken as prescribed. Dr. Fochtman opined, upon review of Decedent’s 45Id., at 355-356 (emphasis added). 46Id., at 351. medical records, that he was prescribed Hydrocodone, an opioid narcotic pain medication for back and shoulder pain. Hydrocodone has well-known side effects of sedation and drowsiness.47 LINA’s own reasons during the administrative process for its initial denial and denial on appeal included opiates as drugs “under the influence” of which Decedent was driving.48  Prescribed (opiate) Hydrocodone and non-prescribed substances were detected in qualitative-only testing. Dr. Fochtman opined that “The drugs [all drugs for which Decedent tested positive] present in his urine only show that he had prior exposure [no time frame specified] and cannot be used to estimate a level of impairment.” LINA continues to treat the prescribed and non-prescribed drugs globally in its brief: “[T]he nature of the accident itself supports that the drugs contributed to the same…”49  LINA offers no explanation of how, then, it arbitrarily determined not only intoxication, and not only causation, but also that non-prescribed substances produced the requisite degree of impairment as defined by Arkansas law, and not the prescribed Hydrocodone, nor simple fatigue, distraction or falling asleep at the wheel. A non-expert LINA employee cannot reasonably do so. 47See Plaintiff’s original brief, p. 20. 48“[W]e hold that we are limited to considering whether the record supports the reasons that RSL provided to George during the claims proceeding.” George v. Reliance Standard Life Ins. Co., 776 F.3d 349, 353 (5th Cir.2015) (emphasis added). 49LINA Brief, p. 31 (emphasis added). LINA could easily have written its exclusion to deny benefits if an insured dies in an accident while having detectable levels of non-prescribed drugs in his body. But it did not.  

CORONER BELUE’S AFFIDAVIT SHOULD HAVE BEEN MADE PART OF THE ADMINISTRATIVE RECORD

Ironically, LINA preaches the sanctity of the administrative process, lamenting that Plaintiff was “improperly seeking to circumvent it” with regard to Dr. Belue’s affidavit after trampling the process by withholding evidence and arguing it was no big deal. The further irony is that efforts to obtain the affidavit and the coroner’s willingness to give it were prompted by LINA’s late production of Dr. Fochtman’s report. While condemning how late in the game the affidavit was presented, LINA omits that it came only days after it produced the withheld Dr. Fochtman report which Dr. Belue reviewed before giving his testimony. LINA’s argument that allowing the affidavit is giving Plaintiff “a second chance to produce evidence” is misplaced. It was her first chance because LINA withheld Dr. Fochtman’s report. “Clean hands” concepts spring to mind. Irony aside, LINA’s position and the magistrate’s ruling are simply contrary to law. Dr. Belue’s practice as coroner involves placing words in the blanks of the death certificate. His affidavit explains his practice in doing so, generally and specifically in the case of Decedent’s death. The district court may not stray from the administrative record but for certain limited exceptions, including expert opinion that assists the district court in understanding the medical terminology or practice related to a claim.50 The magistrate erroneously reasoned that “death certificate contained in the administrative record sufficiently explained what Dr. Belue’s affidavit seeks toclarify.”51 However, Dr. Belue testifies in this affidavit that the meaning LINA attributes to his practice in placing words on the Death Certificate relating to the presence of drugs is wrong, and explains that his death certificate entries are subject to misinterpretation in the absence of his explanation of his own practice in completing it. The magistrate’s further statement that “although Dr. Belue’s affidavit does clarify that the underlying causes are not meant to be taken as the sole cause of the accident, the court finds that the record reflects this assertion without the affidavit of Dr. Belue”52 is misplaced. The affidavit does not assert that the underlying causes in the death certificate are not meant to be taken as the “sole cause of the accident.” Rather, it explains the Coroner’s practice in filling out death certificates in general, 50Estate of Bratton v. National Union Fire Insurance Co., 215 F.3d 516, 521 (5th Cir.2000). 51ROA.878. 52ROA.878 (emphasis added). and specifically in this case, were to simply note their presence of record, although here he did not mean them to be interpreted as an opinion that they played any part in the cause of the accident or death. The coroner is a disinterested professional whose affidavit merely explains his practice in a manner allowing his own words on the death certificate to be interpreted to mean exactly what he intended them to mean. The coroner’s affidavit is inherently reliable. Considering this evidence, without question, promotes the purposes of the Federal Rules of Evidence “to administer every proceeding fairly … to the end of ascertaining the truth and securing a just determination.”53 That Dr. Belue’s affidavit explains his practice in a manner leading to a different interpretation than one might give it on its face simply highlights the value and necessity of his explanation. LINA’s claim that Vega v. National Life Insurance Services, Inc., 188 F.3d 287 (5th Cir.1999) and Crosby v. Louisiana Health Services and Indemnity Co., 647 F.3d 258 (5th  Cir.2011) support its position is mistaken.  The Vega plaintiff attempted to introduce affidavit testimony by her physicians that at the time she was enrolled in the plan, she had not contemplated a particular surgery.54 Thus,  she  sought to introduce testimony from the doctor of a purely factual nature.   That testimony did 53Fed. R. Evid. 102. 54Id., at 290. not involve an explanation of her physician’s practice as it related to the claim, as does Coroner Belue’s affidavit. Crosby simply reiterates the rule that expert testimony relating to medical terminology or practice is an exception. It has no direct application here factually. The Court should hold that Dr. Belue’s affidavit is part of the administrative record and consider it in connection with its evaluation of the case. Respectfully Submitted, s/J. Price McNamara PRICE McNAMARA (20291) 10455 Jefferson Highway, Ste. 2B Baton Rouge, LA 70809 Telephone: 225-425-3529 Facsimile: 225-201-8313 Counsel for Plaintiff/Appellant, BLANK

CERTIFICATE OF SERVICE

The undersigned counsel additionally hereby certifies that on the 16th day of August, 2017, the foregoing Appellant’s Reply Brief, in addition to an electronic copy in PDF format, were served on the counsel below by email and through the CM/ECF server of the Fifth Circuit: Raymond T. Fischer, Esq. Wesley Butler, Esq. Christin J. Jones , Esq. Kilpatrick Townsend & Stockton, LLP 2001 Ross Avenue, Ste. 4400 Dallas, TX 75201 Counsel for Defendant-Appellee, Life Insurance Company of America s/J. Price McNamara PRICE McNAMARA Counsel for Appellant   CERTIFICATE OF COMPLIANCE Pursuant to 5th Cir. R. 32.2 and .3, the undersigned certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).

1. THE BRIEF CONTAINS 6,452 WORDS, excluding the Table of Authorities.
2. THE BRIEF HAS BEEN PREPARED IN PROPORTIONALLY SPACED TYPEFACE USING WORD PERFECT IN TIMES NEW ROMAN (14 POINT) FONT.
3. THE UNDERSIGNED UNDERSTANDS A MATERIAL MIS- REPRESENTATION IN COMPLETING THIS CERTIFICATE OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN FED. R. APP. P. 32(A)(7) MAY RESULT IN THE COURT’S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.

s/J. Price McNamara PRICE McNAMARA Counsel for Appellant