                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

FADI G. HADDAD, M.D.,                           No.    17-16729

                Plaintiff-Appellant,            D.C. No. 2:16-cv-01700-WHO

 v.
                                                MEMORANDUM*
SMG LONG TERM DISABILITY PLAN;
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,

                Defendants-Appellees.

                  Appeal from the United States District Court
                       for the Eastern District of California
                 William Horsley Orrick, District Judge, Presiding

                    Argued and Submitted December 20, 2018
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and MÁRQUEZ,** District Judge.

      Fadi Haddad appeals the district court’s grant of judgment to Hartford Life

and Accident Insurance Company on his claim under section 502 of the Employee

Retirement Insurance Security Act of 1974 (ERISA), 29 U.S.C. § 1132. We review


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
the district court’s choice and application of the standard of review de novo and its

factual findings for clear error. See Estate of Barton v. ADT Sec. Servs. Pension

Plan, 820 F.3d 1060, 1065 (9th Cir. 2016). We reverse.

      1.     To apply an exclusion for a disability that is “caused or contributed

by” a preexisting condition—such as the exclusion here—the insurance provider

must show that the disability was “substantially caused or contributed by” the

preexisting condition. Dowdy v. Metro. Life Ins. Co., 890 F.3d 802, 809–10 (9th

Cir. 2018); see also McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129, 1136 (9th

Cir. 1996) (per curiam).1 A mere “philosophic” or “insignificant cause” is

insufficient. Dowdy, 890 F.3d at 809. Under this standard, Hartford bears the

burden of establishing that Haddad’s left-sided symptoms were substantially

caused or contributed to by his right-sided herniated disk. See id. at 810. Hartford

has not met its burden.




      1
         The substantial-contribution standard applies only if the exclusionary
language is “conspicuous.” Dowdy, 890 F.3d 808. In rendering its decision, the
district court relied on an earlier version of the policy and a certificate of insurance
to determine the terms of the policy, as Hartford has been unable to locate a copy
of the policy currently in effect. Haddad contends that, because the current policy
is unavailable, we cannot conclude that the preexisting-condition exclusion is
conspicuous. We need not address whether the exclusion here is conspicuous,
because Haddad is entitled to recovery even if the substantial-contribution standard
applies. See id.


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      2.     First, the exclusionary language here is less expansive than in Dowdy.

In Dowdy, the exclusion expressly excluded coverage “for any loss caused or

contributed by . . . physical . . . illness or infirmity, or the diagnosis or treatment of

such illness or infirmity.” Id. at 805–06 (emphasis added) (omissions in original).

The exclusion here contains no language referring to diagnosis or treatment.

Instead, it applies only if the disability “results from, or is caused or contributed

by, a Pre-existing condition” (emphasis added). So for the exclusion to apply,

Hartford must show that Haddad’s preexisting condition itself (i.e., the right-sided

herniated disk) substantially caused or contributed to his left-sided symptoms. This

requirement affects the point at which the connection between the preexisting

condition and the disability becomes too attenuated for the condition to be deemed

a substantial cause of the disability.

      Second, to determine whether a cause is substantial, “there must be some

evidence of a significant magnitude of causation.” Id. at 809. The record contains

little explanation regarding the causal relationship between Haddad’s preexisting

right-sided condition and his new, debilitating left-sided symptoms. The only

meaningful discussion of how the left-sided symptoms resulted is found in a letter

from Haddad’s surgeon, Dr. Bobby Tay, which notes only that the symptoms were

“caused by and related to the surgery” (emphasis added). The letter does not

discuss whether the manner in which the surgery caused the symptoms was


                                            3
reasonably foreseeable from the existence of the preexisting condition, or relatively

uncommon and so not reasonably foreseeable. The only reference to the

physiological mechanism by which Haddad’s symptoms arose is Dr. Tay’s letter,

which states that “[t]he appearance of these left side symptoms is documented on

[a medical scan] which shows a left side C6 lesion.”

      Third, although Haddad was warned that the surgery could have

complications, the record contains only a cursory discussion of the warnings. It is

unclear whether Haddad’s left-sided symptoms were caused by any specific risk of

which Haddad was warned.

      Finally, we note that these deficiencies in the record reflect Hartford’s

decision not to consult with a medical expert during its administrative appeals

process or to contest the evidence Haddad provided. As a result, the connection

between the original condition and the postsurgery condition was left largely

unexplained.

      Hartford has not carried its burden of showing that the preexisting-condition

exclusion applies. We therefore reverse the district court’s grant of judgment and

remand for further proceedings consistent with this decision.

      REVERSED and REMANDED.




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