          United States Court of Appeals
                      For the First Circuit


No. 19-1247

                          DENISE ARRUDA,

                       Plaintiff, Appellee,

                                v.

               ZURICH AMERICAN INSURANCE COMPANY,

                      Defendant, Appellant,

      NSTAR ELECTRIC AND GAS BASIC ACCIDENT INSURANCE PLAN,

                            Defendant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                              Before

                     Lynch, Stahl, and Lipez,
                          Circuit Judges.


     Kristyn M. Kelley, with whom Allen N. David, Jane A. Horne,
and Peabody & Arnold LLP were on brief, for appellant.
     Mala M. Rafik, with whom Sarah E. Burns and Rosenfeld & Rafik,
P.C. were on brief, for appellee.


                        February 24, 2020
            LYNCH, Circuit Judge.        Zurich American Insurance Company

("Zurich") denied the claim of Denise Arruda ("Arruda") for death

benefits following the death of her husband Mr. Joseph Arruda in

a 2014 car accident.          Zurich concluded, after reviewing the

extensive record, that his death was not independent of all other

causes and that it was caused or contributed to by his pre-existing

health conditions.        As such, Zurich concluded the death was not

within   the   coverage    clause   of    the   policy   and   was   within   an

exclusion to the policy.

            Arruda sued under 29 U.S.C. § 1132(a)(1)(B), alleging

that Zurich violated ERISA by unlawfully denying the insurance

benefits.      Each party moved for summary judgment.            The district

court entered summary judgment in Arruda's favor, holding that

Zurich's decision was arbitrary and capricious, reasoning that the

denial was not supported by substantial evidence. Zurich appealed.

We reverse the district court, holding that Zurich's decision to

deny the claim was supported by substantial evidence.                We direct

entry of summary judgment for Zurich.

                                     I.

A.   The Accident

            In May 2014, Mr. Arruda was 57 years old, employed as a

sales executive by Northeast Utilities/NStar Electric and Gas, and

covered under his employer's Basic Accident Policy (the "Policy")




                                    - 2 -
issued by Zurich for accidental death or injury.                         He designated

his wife as the beneficiary for any death benefits.

             On   the    morning       of    May    22,   2014,    Mr.   Arruda    drove

westbound on Route 9, a four-lane road in Hadley, Massachusetts,

on his way to a work event at the University of Massachusetts in

Amherst.     At 9:39 a.m. his car crossed all lanes of traffic,

collided with a car traveling eastbound, then hit the curb, rolled

over, and landed on its wheels on the opposite side of the road.

Police and fire department officials, including paramedics, from

Hadley and Amherst arrived within ten minutes.                         Mr. Arruda was

briefly alive following the accident, but quickly succumbed to his

multiple injuries and was pronounced dead at the scene.

             Arruda timely filed for accidental death benefits on

June 3, 2014.

B.   The Terms of the Contract

             Under      Section    XII       of     the   Policy      (General    Policy

Conditions), Zurich has "the discretionary authority to determine

eligibility for benefits and to construe the terms of the plan."

             Under   Section      V    (Benefits),        the   Policy    states    that

Zurich will pay benefits "[i]f an Insured suffers a loss of life

as a result of a Covered Injury."                     As defined in Section III

(Definitions), a Covered Injury is "an Injury directly caused by

accidental    means      which    is    independent        of   all    other     causes."

(Emphasis omitted).


                                            - 3 -
          Under Section VII (General Exclusions), the Policy does

not cover losses that are subject to one or more exclusions:

          A loss will not be a Covered Loss if it is
          caused by, contributed to, or results from
          . . . illness or disease, regardless of how
          contracted, medical or surgical treatment of
          illness or disease; or complications following
          the surgical treatment of illness or disease
          . . . [or] being under the influence of any
          prescription drug, narcotic, or hallucinogen,
          unless such prescription drug, narcotic, or
          hallucinogen was prescribed by a physician and
          taken in accordance with the prescribed
          dosage.

(Emphasis omitted).

C.   Information Which Zurich Reviewed

          In response to Arruda's claim, Zurich hired CS Claims

Group, Inc. ("CS Claims") to investigate and collect all records

relevant to the claim.       CS Claims assembled Mr. Arruda's pre-

accident medical records from his primary care doctor, various

specialists, two hospitals, and his pharmacy.        Zurich later had

these records examined by independent experts, including by a

forensic pathologist, Mark L. Taff, M.D.     Dr. Taff concluded that

these medical records revealed that Mr. Arruda had suffered from

twenty-seven medical conditions from 2004 until his death.         As

catalogued by Dr. Taff, the conditions evident from Mr. Arruda's

medical   records     included,   among   others:   obesity,   chronic

sinusitis, hypertension, a variant of hypertrophic cardiomyopathy

(heart enlargement associated with arrhythmias and heart failure),



                                  - 4 -
primary hyperaldosteronism, hypokalemia, a sedentary lifestyle,

depression,     anxiety,   dyslipidemia,   diverticulosis,      insomnia,

fatigue,     paresthesia   (tingling   sensation   in   the   peripheral

nerves), a history of myalgias (muscle pain and weakness) and of

bronchitis, kidney stones, and syncope (fainting spells).

             The records also showed that in mid-January 2014, about

four months earlier than the accident, Mr. Arruda had an episode

in which he felt weak, vomited, and fainted.       As a result, within

a few days of the incident he underwent surgery and had an

implantable    cardioverter   defibrillator   ("ICD")   placed    in   his

chest.     The ICD monitored his heart rate and rhythm and could

administer electric shocks to restore normal heart rhythm if

necessary.

             Andrew W. Sexton, D.O., an employee of the Commonwealth

of Massachusetts' Office of the Chief Medical Examiner, issued a

death certificate on May 22, 2014 saying the cause and manner of

Mr. Arruda's death were pending.       Dr. Sexton also did the autopsy

on May 23, 2014.      Dr. Sexton apparently finalized the autopsy

report on June 12, 2014 and concluded:

             CAUSE OF DEATH: Hypertensive Heart Disease.

             Contributory Factors: Upper Cervical       Spine
             Fracture due to Blunt Impact.

             MANNER OF DEATH: Accident (Driver Involved in
             a Motor Vehicle Collision with Rollover)




                                 - 5 -
These       conclusions   apparently    did    not   include   toxicology   and

cardiac findings done after that date, although the report made

reference to their existence.1          However, no amended autopsy report

was ever found.

               Dr. Taff later summarized the significant findings of

the autopsy report as follows:

               1. Hypertensive      cardiovascular     disease
                  associated with cardiomegaly (an enlarged
                  heart weighing 530g; normal hearts usually
                  weigh no more than 420g), biventricular
                  hypertrophy (thickened right and left
                  ventricles), mild, non-occlusive (less
                  than      30%       luminal       narrowing)
                  arteriosclerotic triple coronary artery
                  disease,    moderate    atherosclerosis   of
                  abdominal aorta, multifocal interstitial
                  myocardial fibrosis (abnormal scarring of
                  heart muscle) and an intact functioning
                  cardiac     pacemaker/ICD      defibrillator
                  implant.
               2. Mild pulmonary edema (wet lungs due to an
                  abnormal increase of fluid).
               3. Multiple blunt force impact injuries of the
                  head (multiple scalp bruises distributed
                  about   the    head   and   eyelids),   neck
                  (fractured     1st     cervical    vertebra;
                  dislocated 3rd and 4th cervical vertebra
                  associated with a grossly normal appearing
                  cervical spinal cord), torso (multiple (10)
                  bilateral anterior rib and upper sternum
                  (breast plate) fractures) and upper and
                  lower extremities (multiple soft tissue
                  bruises).
               4. Obesity (5'11"/216 lbs.).
               5. Benign prostatic hypertrophy (BPH) due to
                  an enlarged prostate gland.

        1 Like the district court, we decline "to read much into
this discrepancy as such." The latter two reports are part of the
record before Zurich and must be considered when assessing whether
Zurich had substantial evidence to support its decision.


                                       - 6 -
            6. Hepatomegaly (enlarged soft liver weighing
               2,050g; normal liver weight is up to about
               1,700g).
            7. Diffuse light purple congestion of face,
               lips and mouth associated with petechial
               (pinpoint) hemorrhages of right and left
               lower conjunctiva (eyes) and lips.

During the autopsy, the ICD was surgically removed and sent to

Boston Scientific, the manufacturer, for analysis.

            Mindy J. Hull, M.D., also of the Massachusetts Medical

Examiner's Office, completed a cardiac pathology report on January

12, 2015.    The report found "mild coronary artery disease" and

"focal interstitial fibrosis of [the] lateral left ventricle."   It

did not mention any evidence of an acute cardiac event.2

            In conjunction with the Massachusetts Medical Examiner,

the Town of Hadley, Massachusetts, on June 9, 2014 issued a death

certificate with the same primary cause of death as in the autopsy

report, "hypertensive heart disease."

            Various reports written by first responders to the scene

of the car accident were part of the record.     A report completed

by paramedics from the Amherst Fire Department on the day of the

accident described the paramedics' efforts to save Mr. Arruda's


     2    A blood toxicology report was completed on July 30, 2014
by the Massachusetts State Police's Forensic Services Group. It
showed that Mr. Arruda's blood had 17 ng/ml of Delta-9 THC (the
primary active ingredient in marijuana) and more than 40 ng/ml of
Delta-9 Carboxy THC, its inactive metabolite.        While Zurich
independently found marijuana to be a contributing cause to the
death, we have no need to reach the issue and do not further
discuss the marijuana evidence or the parties' disputes about it.


                                - 7 -
life and listed in the "Impressions" section "Primary: Cardiac

Arrest" and "Secondary: Motor Vehicle Accident[,] Trauma."                 An

Accident Report from the Hadley Police Department completed the

day after the accident described basic information about the

trajectory of the crash and recorded the contact information of

six witnesses.

             The   Massachusetts   State    Police    completed    an   ACISS

Homicide/Death Report on August 25, 2014.        It included information

the police gathered from the witnesses, including that Mr. Arruda

was briefly alive following the accident and was suffering from

multiple injuries, including an obvious neck injury.              Before the

paramedics arrived, he "went into breathing distress and started

to seize" before losing consciousness.          Based on the interviews

and preliminary autopsy reports, the State Police concluded that

Mr. Arruda "experienced some type of medical episode while driving

his vehicle."

             The   Massachusetts    State    Police    also   completed     a

"Collision     Analysis    and     Reconstruction      Section     Collision

Reconstruction Report" on February 28, 2015. The officer who wrote

the report ruled out various causes for the accident, including

poor road conditions, mechanical failure, engineering design flaws

in the road, speeding, and other drivers' error.              He concluded

that Mr. Arruda "had suffered a catastrophic medical event which

caused him to be unable to control his vehicle."


                                   - 8 -
            Zurich   initially   turned    this    material   over    to   two

independent medical doctors for review, and later to a third

independent expert.     The first was William W. Angell, M.D., whose

credentials are not in the record.            Dr. Angell submitted his

opinion on July 6, 2015 in a short, two-paragraph statement which

was not on official letterhead.     Dr. Angell stated: "[I]t would be

my opinion that Mr. Arruda experienced a cardiac event at the time

of the accident which resulted in his death and that the death was

not independent of an underlying medical condition as indicated in

the autopsy report."     He did not further explain what he meant by

a cardiac event.     He also did not explain his reasoning for this

conclusion but did state he had reviewed the file documents,

including   the   medical   records,      police   reports,   and     Medical

Examiner reports.     Later in the claims process, Zurich tried to

locate Dr. Angell but was not able to do so.

            The second independent medical review for Zurich was

completed on November 30, 2015 by Michael D. Bell, M.D., a board-

certified specialist in both Anatomic and Clinical Pathology and

Forensic Pathology, licensed in New York and Florida.                Dr. Bell

reviewed all of the medical and non-medical documentation.             He was

asked specific questions and answered them as follows:

            1. Did the deceased die from an accidental
            bodily injury, independent of all other
            causes? If so, please list all injuries
            sustained.



                                  - 9 -
          The crash and his death were caused by his
          heart   disease,   whether   it   be  due   to
          hypertension or a variant of [hypertrophic
          cardiomyopathy].     However, based on the
          autopsy results, the decedent's C1 left
          posterior arch fracture was C3-C4 dislocation
          with soft tissue hemorrhage at the injury
          sites would be a contributory cause of death.
          He had a C1 left posterior arch fracture and
          C3-C4 dislocation with soft tissue hemorrhage
          at the neck injury sites. He did not have a
          visible spinal cord injury.      While he had
          multiple scalp bruising, he did not have a
          skull fracture or cerebral, cerebellar or
          brainstem injury.    He had bruising of his
          right arm, left hand, and both legs. The rib
          fractures and chest bruising was believed to
          be caused by resuscitative chest compressions.

          2. Was the death caused by, contributed to or
          the result of illness or disease?      If so,
          please    list    all    medical    conditions
          contributing to death.
          The crash and his death were caused by his
          heart   disease,   whether   it  be   due   to
          hypertension or a variant of [hypertrophic
          cardiomyopathy].    He has been treated for
          hypertension since at least 2008 and it has
          been difficult to control.    The most likely
          mechanism of his crash and death is a
          ventricular arrhythmia secondary to his heart
          disease.    He also has hyperaldosteronism,
          which made controlling his blood pressure
          difficult.   However, the decedent's C1 left
          posterior arch fracture and C3-C4 dislocation
          with soft tissue hemorrhage at the injury
          sites would be a contributory cause of death.

          Based on all of this information, Zurich denied Arruda's

claim in a letter dated December 8, 2015.    Zurich relied on two

different Policy clauses in its denial: the coverage grant was not

triggered because the death was not "independent of all other

causes" and the death was excluded from coverage because it was


                             - 10 -
"caused by, contributed to, or results from" an "illness or

disease."      The letter specifically highlighted the independent

medical reviewers' conclusions and the cause of death recorded on

the death certificate as determined by the Medical Examiner.

            Arruda timely appealed Zurich's determination on January

29, 2016.      As part of her appeal letter, she submitted a logbook

from Boston Scientific that recorded the information Mr. Arruda's

ICD captured about his heart's condition in the months leading up

to the accident.3      The logbook has three references to the date of

Mr. Arruda's death, May 22, 2014.         The first is that at 8:23 a.m.

on May 22, 2014, seventy-five minutes before the accident, the

logbook has an entry for a successful "rhythm ID update."                  The

second is an "alert" from 2:24 p.m., approximately four and a half

hours after Mr. Arruda's death, saying "Ventricular Tachy mode set

to value other than Monitor+Therapy." The third is that the report

says it was "created" on May 22, 2014.          The logbook has no record

of the cessation of Mr. Arruda's heart occasioned by his death.

Arruda   did    not   submit   anything   to   Zurich   explaining   how   to

interpret the logbook, including anything to explain what "rhythm

ID update" means or the significance of seventy-five minutes

between that reading and his death.


     3    She also submitted a transcript of a workers'
compensation hearing and a resulting settlement agreement under
which the employer agreed to accept liability for Mr. Arruda's
death and pay Arruda a lump sum settlement amount.


                                   - 11 -
             On August 24, 2016, Arruda supplemented her appeal with

an independent medical review from Elizabeth A. Laposata, M.D.,

dated August 5, 2016, the first of two reports Dr. Laposata

submitted in support of her claim.         Dr. Laposata is with Forensic

Pathology & Legal Medicine, Inc., of Providence, Rhode Island.

She is the former Chief Medical Examiner for the State of Rhode

Island and a Fellow of both the College of American Pathologists

and the American Society for Clinical Pathology.

             In her first August 5, 2016 report, Dr. Laposata's main

conclusion was that Mr. Arruda did not experience "a natural death

at the wheel" with a resulting collision.           The purpose of this

conclusion is unclear.      Zurich's denial of benefits made no such

assertion.     Neither Dr. Angell nor Dr. Bell had stated that Mr.

Arruda had experienced a natural death at the wheel.         Indeed, Dr.

Bell expressly acknowledged that a severely injured Mr. Arruda was

alive when found after the accident.

             Dr.   Laposata's   report   also   criticized   the   Medical

Examiner's conclusions as "incorrect" and inconsistent with the

death being "accidental," as the Medical Examiner's report had

concluded.     She opined that "Mr. Arruda's correct cause of death

is neck injuries due to blunt force trauma in the circumstance of

a motor vehicle . . . collision with rollover." As to the question

of what had caused Mr. Arruda to crash, she stated: "The exact

reason Mr. Arruda traveled across several traffic lanes and into


                                  - 12 -
the other vehicle is unclear."        She did note that "[o]nly seconds

of distraction or inattention to driving would be needed for his

car to move out of his lane of travel and into the far lane and

impact the second vehicle."       She did not opine on whether Mr.

Arruda's     pre-existing   medical    conditions   either   "caused   or

contributed to" the crash.

            Dr. Laposata commented on the logbook in her August 5,

2016 report.     She wrote that since the ICD "showed no abnormal

heart rhythms recorded prior to the collision," the accident was

not caused by "incapacitation by heart disease."        She did not say

explicitly that the absence of data showed that no abnormal heart

rhythm had occurred between 8:23 a.m. and the later time of the

accident.    Nor did she explain the absence of a recording in the

logbook of the cessation of the heartbeat at death.          Arruda never

submitted to Zurich any materials on proper interpretation of the

logbook entries, or lack of entries.

            In response to Arruda's appeal, Zurich sought a third

independent medical review.      It obtained a report dated January

16, 2017, apparently through a company named ExamWorks, from Dr.

Taff.   Dr. Taff is a forensic pathologist and clinical associate

professor of pathology at Mount Sinai School of Medicine in New

York City.     He had over thirty years' experience as a practicing

board-certified pathologist and had investigated dozens of fatal

motor vehicle accidents.     He stated that the opinions he gave "are


                                 - 13 -
to a reasonable degree of forensic medical certainty" and were

based on his over thirty years of experience in the field.

           In reaching his conclusions, Dr. Taff stated he had

reviewed and analyzed:

           the 450-page file containing the following
           documentary evidence: 1) Massachusetts Police
           Investigative/Motor Vehicle Crash reports;
           2) Joseph Arruda's (JA) autopsy, toxicology,
           histology    (microscopic    examination    of
           tissues),   cardiac    pathology   and   death
           certificate reports; 3) medical expert reports
           prepared by Drs. Elizabeth Laposata, Michael
           Bell and William Angell; 4) pre-mortem medical
           records of Joseph Arruda dated 2004 - 2014;
           5) news clips regarding the fatal motor
           vehicle   collision;    and   6)   testimonial
           transcripts of multiple witnesses.

In his January 16, 2017 report to Zurich, Dr. Taff ruled out

several possible causes of the accident.        Although Mr. Arruda had

suffered from depression and anxiety, Dr. Taff ruled out suicide

as a cause.     He stated the State Police investigation did not

reveal   any   vehicle   or   environmental   factors   that   would   have

contributed to the crash.       He noted that "[t]he issue of texting

while driving was not addressed in the police final reconstruction

report."

           In response to the question "Was the accident caused by,

contributed to or resulted from an illness or disease (cardiac

event/heart disease)?", Dr. Taff answered:

           The accident was caused by several possible
           pre-existing illnesses or diseases, singly or
           in   combination,   including:   a)   cardiac


                                  - 14 -
          arrhythmia resulting from pre-existing heart
          disease (hypertensive cardiovascular disease
          or a variant of hypertrophic cardiomyopathy);
          b) an adverse drug reaction for medications
          prescribed for pre-existing illness or heart
          disease; c) prescribed heart medication-
          related      blood      pressure      problems;
          d) electrolyte    imbalance    (e.g.    cardiac
          arrhythmias related to low blood potassium
          levels due to primary hyperaldoasteronism)
          [sic]; e) muscle weakness related to low blood
          potassium     levels     due     to     primary
          hyperaldoasteronism [sic]; f) complications
          of undiagnosed sleep apnea resulting in
          falling   asleep    behind   the   wheel;   and
          g) temporary     or    intermittent     cardiac
          pacemaker failure.

Before giving the conclusion, he explained the basis for it:

          Although JA died from multiple bodily injuries
          sustained in a motor vehicle collision with
          several rollovers, it is uncertain why he
          suddenly and inexplicably veered off the
          westbound side of Rte 9 into oncoming traffic
          on the eastbound side.     Based on JA's past
          medical history, there are several possible
          human factors, singly or in combination, that
          triggered the pre-impact phase of the motor
          vehicle collision, including a) long-standing
          heart disease (hypertension and variant of
          hypertrophic cardiomyopathy); b) medication-
          related problems for treatment of JA's pre-
          existing pathological conditions (sudden drop
          or increase in blood pressure); c) recent
          implantation    of    a   cardiac    pacemaker;
          d) hypokalemia (low blood potassium levels
          most likely due to pre-existing primary
          hyperaldoasteronism [sic] contributing to
          muscle weakness or a cardiac arrhythmia);
          e) chronic insomnia (falling asleep behind the
          wheel of a car); and f) breathing problems
          (e.g. chronic sinusitis and heavy snoring).
          Although JA was never diagnosed with sleep
          apnea,    several     of    his    pre-existing
          pathological conditions are known to cause
          irregular    sleeping    patterns,    breathing


                              - 15 -
          difficulties, chronic fatigue and obesity.
          Based on the circumstances, there is a good
          chance that JA fell asleep behind the wheel.
          The above pre-existing medical conditions,
          singly or in combination, could have set off
          an acute medical crisis that resulted in JA's
          sudden incapacitation behind the wheel of his
          vehicle. According to several reports, post-
          mortem analysis of JA's implantable ICD device
          showed   no   evidence   of   an   ante-mortem
          arrhythmia. Based on the scene findings and
          eyewitness accounts, JA was still alive for a
          brief period of time after the collision and
          rollovers. There is no way to scientifically
          prove   which   human   factor(s)/pre-existing
          medical condition(s) occurred during the pre-
          collision phase of the accident that resulted
          in fatal bodily injuries.

As this language makes clear, he did consider the analysis of the

implanted ICD device in the logbook in reaching his conclusion.

          In an addendum to her appeal, also considered by Zurich,

Arruda replied to Dr. Taff's report with a supplemental report

from Dr. Laposata dated April 14, 2017.   It is this addendum which

is now at the core of Arruda's argument.       The second Laposata

report stated:

          There is no medical or scientific evidence to
          support a conclusion that Mr. Arruda's death
          due to injuries sustained in that motor
          vehicle accident was "caused by, contributed
          to, or results [sic] from illness or disease."
          The Insurance Company misrepresents the
          finding by Dr. Taff. Dr. Taff puts forward
          "several possible human factors" noting Mr.
          Arruda's medical conditions but concludes
          "There is no way to scientifically prove which
          human      factor(s)/pre-existing      medical
          conditions occurred during the pre-collision
          phase . . ."    There is no evidence in the
          material examined that demonstrates to a


                             - 16 -
              reasonable degree of medical certainty that
              any of Mr. Arruda's medical conditions caused
              or contributed to the accident.            The
              interrogation of his cardiac defibrillator
              gives definitive proof that no cardiac
              arrhythmia or event preceded the accident.
              Additionally, Mr. Arruda never received a
              doctor's restriction that would limit his
              ability to operate a motor vehicle safely.
              Trooper Sanford speculates that Mr. Arruda
              "suffered a catastrophic medical event." He
              is clearly not qualified to make such a
              medical determination. Finally, the autopsy
              ruled out any other disease processes that
              would cause physical incapacitation at the
              wheel.
                   It is a serious error to conclude that
              the mere existence of medical diagnoses and
              speculation as to what might happen given
              these conditions equates with proof that a
              medical event did occur prior to the accident.
              Dr. Taff concludes that Mr. Arruda died from
              a broken neck, spinal cord injury and
              positional   asphyxia,   all   injuries   that
              occurred due to the motor vehicle accident.
              Mr. Arruda died from accidental bodily injury,
              independent of all other causes.

(Alteration in original).

              Zurich's appeals committee upheld the denial of benefits

to   Arruda    on    May   11,   2017,    identifying   the   same   two   Policy

provisions     and    specifically       stating   reliance   on   the   accident

reconstruction report, the Commonwealth's autopsy report and death

certificate, and Zurich's three independent medical reviews.                   It

did not say it relied on the logbook.                   It acknowledged Dr.

Laposata's differing opinion.              The appeals committee stated that

Arruda's claim would be denied because Mr. Arruda's death was not




                                         - 17 -
"independent of all other causes" and was "caused by or resulted

from" his pre-existing medical conditions.4

D.   Summary Judgment Reasoning of the District Court

           The District Court concluded that Zurich's denial of

benefits was arbitrary and capricious.      It provided two different

reasons for finding the denial arbitrary and capricious. The first

was that it understood Zurich to have concluded that Mr. Arruda's

"cause of death was heart disease."          But, it reasoned, that

conclusion was contradicted by Drs. Taff and Laposata and that

Drs. Bell and Sexton "cite no evidence to support the conclusion

that heart disease was the cause of death, other than the fact

that Mr. Arruda had a history of heart disease."      The second reason

was that it understood Zurich to have concluded only that "Mr.

Arruda's   preexisting   illness   caused   the   accident,"   (emphasis

added), which then caused his death.    The court relied on language

in Dr. Taff's opinion that he could not identify "which human



     4    The issue of which party has the burden of proof once an
exclusion is invoked, given that both coverage and exclusions are
at issue, is immaterial here as our conclusion would hold
regardless. See Glista v. Unum Life Ins. Co., 378 F.3d 113, 131
(1st Cir. 2004) ("[T]raditional insurance law places the burden on
the insurer to prove the applicability of exclusions such as the
Pre-Ex Clause."). Regardless, under the arbitrary and capricious
standard, "the issue is only whether there is substantial evidence
in the record to support the administrator's determination."
Arruda v. Zurich Am. Ins. Co., 366 F.Supp.3d 175, 182 n.1 (D. Mass.
2019). Zurich's decision is supported by substantial evidence as
to both the Policy exclusions and the definition of a covered loss
for coverage purposes.


                               - 18 -
factor(s)/pre-existing medical condition(s) occurred during the

pre-collision phase of the accident that resulted in fatal bodily

injuries."      (Emphasis added).      In the district court's view, the

record "does not provide evidence beyond the mere existence of

pre-existing illness."        It agreed with Zurich that the logbook

evidence was inconclusive and that it was not the basis for

Zurich's denial.

              The district court did not specifically focus on the

Policy's "contributed to" language or the insurer's reliance in

its denials on this language in referring to both the Policy and

the medical evidence.         Nor did the court focus on the reasons

stated in the denial letter.        Zurich's May 11, 2017 denial letter

says   that    there   was   medical   evidence   that   the   accident   was

"contributed to" by pre-existing medical conditions or "was caused

by or resulted from illness [and] disease."         In the letter, Zurich

cited Dr. Taff's conclusion that "Mr. Arruda died as the result of

accidental bodily injuries but they were contributed to by multiple

pre-existing illnesses or diseases."

              This timely appeal followed.

                                       II.

A.     Standard of Review

              We review a district court's grant of summary judgment

de novo.      D & H Therapy Assocs., LLC v. Boston Mut. Life Ins. Co.,

640 F.3d 27, 34 (1st Cir. 2011).


                                    - 19 -
            Where, as here, the plan administrator is explicitly

given discretionary authority by the terms of the Policy, we ask

whether its decision is arbitrary and capricious or an abuse of

discretion.    See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 111 (1989); Doe v. Standard Ins. Co., 852 F.3d 118, 123 (1st

Cir. 2017).      That is, we must defer where the "decision is

reasonable and supported by substantial evidence on the record as

a whole."     McDonough v. Aetna Life Ins. Co., 783 F.3d 374, 379

(1st Cir. 2015).    "Substantial evidence" is "evidence reasonably

sufficient to support a conclusion."        Doyle v. Paul Revere Life

Ins. Co., 144 F.3d 181, 184 (1st Cir. 1998).         Indeed, in Doyle,

this court cited to an administrative law case that used the

sufficiency of the evidence standard in administrative law for

guidance on how to determine what arbitrary and capricious means

in the ERISA review context.      Id. (citing Associated Fisheries of

Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997)).         Moreover,

"[s]ufficiency   . . .   does   not   disappear   merely   by   reason   of

contradictory evidence."    Id.    The job of a court is not to decide

the "best reading" of the policy, O'Shea v. UPS Ret. Plan, 837

F.3d 67, 73 (1st Cir. 2016), but rather, to evaluate whether

Zurich's conclusion was "reasonable."        Colby v. Union Sec. Ins.

Co. for Merrimack Anesthesia Assocs. Long Term Disability Plan,

705 F.3d 58, 62 (1st Cir. 2013).




                                  - 20 -
            Under this deferential standard, we hold that Zurich's

decision was reasonable, supported by substantial evidence, and

not arbitrary and capricious or an abuse of discretion.

B.    Pre-Existing Medical Conditions as a Contributing Cause of
      Death

            The descriptions in the record before Zurich of the

causes that contributed to Mr. Arruda's death were all consistent

that his crash was caused, at least in part, or was contributed to

by his pre-existing medical conditions.               Taking all of these

materials and medical opinions "as a whole," McDonough, 783 F.3d

at   379,   Zurich's      conclusion   is   not   undermined   because   Dr.

Laposata's opinion differed.           "[T]he existence of contradictory

evidence does not, in itself, make the administrator's decision

arbitrary."      Vlass v. Raytheon Emps. Disability Tr., 244 F.3d 27,

30 (1st Cir. 2001).

            In    fact,     Dr.   Laposata's      first   report   was   not

inconsistent with Zurich's ultimate conclusion that Mr. Arruda's

death was not "independent of all other causes."            She only stated

that "Mr. Arruda was alive at the time of the crash" and did not

die "a natural death at the wheel."         But that he was alive shortly

after the crash was never at issue.

            The thrust of Dr. Laposata's second report was her

assertion that it was impossible to tell with "a reasonable degree

of medical certainty" that Mr. Arruda's pre-existing pathologies



                                   - 21 -
contributed to his having the accident which resulted in his death.

But Zurich could reasonably rely on Dr. Taff's opinion "to a

reasonable degree of forensic medical certainty" that that is

exactly what happened.        That Dr. Taff was reluctant to conclude

further exactly which of the many pre-existing pathologies, singly

or in combination with others, provided the precise contribution

does not negate his ultimate conclusion.             Rather, it reinforces

the care with which he analyzed the data before reaching his

conclusion.      That care is also evidenced by his exclusion of two

pathologies as contributions.

            Nor was Zurich obligated to accept Arruda's view that

the medical opinions on which Zurich relied were nothing more than

speculation because they did not "provide evidence beyond the mere

existence   of    pre-existing    illness."     Dr.    Taff's   report,   in

particular, carefully rules out other possible causes of the

accident, gives a detailed account of Mr. Arruda's medical history,

acknowledges potentially conflicting evidence, and comes to a

reasoned conclusion.

            Arruda offers no support for her contention that Dr.

Taff needed to determine the precise mechanism or mechanisms by

which Mr. Arruda's pre-existing conditions contributed to Mr.

Arruda's car suddenly veering across multiple lanes of traffic and

his fatal car accident.       It is sufficient that Dr. Taff reached a

firm   conclusion    to   a   reasonable    degree   of   forensic   medical


                                   - 22 -
certainty,     which   was   self-evidently    reasoned,    that   some

manifestation(s) of Mr. Arruda's pre-existing conditions caused

him to have the accident that killed him.      As is evident from the

passages of Dr. Taff's report excerpted above, Dr. Taff showed a

strong familiarity with the facts of the case and drew reasoned

conclusions by applying his medical expertise.

             Arruda and her expert criticize Dr. Taff's report, in

particular, as engaging in speculation because of his use of

language such as "mostly likely," "a good chance," and "could

have."   In leveling this criticism, they would have us ignore his

conclusions given "to a reasonable degree of forensic medical

certainty."    Zurich could reasonably rely on that earlier language

and conclude it did not undercut the conclusion.           According to

common dictionary definitions, "likely" establishes a probability.

Likely, Black's Law Dictionary (10th ed. 2009) ("Apparently true

or real; probable . . . [s]howing a strong tendency; reasonably

expected");      Likely,     Merriam-Webster    Online      Dictionary,

https://www.merriam-webster.com/dictionary/likely        (last   visited

Feb. 19, 2020) ("having a high probability of occurring or being

true: very probable"); see also Glista v. Unum Life Ins. Co., 378

F.3d 113, 127 (1st Cir. 2004) (citing a dictionary definition of

"treatment" while interpreting a policy clause in an ERISA case).

             We have said that the arbitrary and capricious standard

has some "bite," McDonough, 783 F.3d at 379, but that does not


                                 - 23 -
mean that an insurer cannot rely on a doctor's conclusion because

another doctor found his language not sufficiently precise.

           We address our differences with the dissent.5                   The

dissent relies heavily on the ICD logbook, but in doing so it

misstates how Zurich used the logbook and what the logbook showed.

Zurich did not rely on a particular interpretation of the logbook

to deny Arruda's claim and it does not rely on one now to support

its appeal.   It is also untrue that the proper interpretation of

the logbook is undisputed.

           Zurich never rested on the logbook to support its denial.

Indeed, Arruda's opening brief to this court argued that because

Zurich had not relied on the logbook to deny benefits it could not

later use the logbook entries to support its denial because Zurich

had not done so earlier.      In its reply brief, Zurich argued that

it had not waived its right to argue that the arrhythmia logbook

was   inconclusive   and   repeated   that    it   did   not   rely   on   the

inconclusive logbook in denying benefits.

           Zurich has explained why it did not rely on the logbook

to support its denial of her appeal.         The proper interpretation of

the logbook, which contains many technical medical terms and



      5   The dissent mischaracterizes Zurich's reasons for
denial. Zurich did not conclude that Arruda's claim was denied
because of "the mere existence of [Mr. Arruda's] pre-existing
illness." Neither Zurich nor any of its doctors so represented.



                                 - 24 -
abbreviations, is contested. As the district court correctly held,

"the logbook does not bear all the weight Mrs. Arruda seeks to

place on it."       Arruda maintains that the logbook must mean that

the ICD recorded any and all heart irregularities in real time up

through all events associated with the accident. Zurich reasonably

interpreted the logbook as inconclusive, and that view is supported

by the record.      The logbook did not record anything after the last

"rhythm    ID    update"   seventy-five       minutes   before     the   accident,

including by the fact that the logbook failed to record the

stopping    of    Mr.    Arruda's    heartbeat    on    his    death,    therefore

providing evidence it was not working properly.

            The dissent, nonetheless, takes the position that Zurich

was   compelled     to   accept     Dr.    Laposata's   understanding      of   the

logbook.    That is wrong for multiple reasons.               That reading is not

unrebutted in the record. We have already pointed out deficiencies

in Dr. Laposata's opinion.          The ICD captured only events which it

was programmed to capture.           There is no evidence anywhere in the

record as to how the device was programmed.

            Separately,      two      of     Zurich's    independent       medical

reviewers, Drs. Bell and Taff, both considered the ICD evidence

and concluded that his death was caused or contributed to by

illness or disease, even assuming favorably to Arruda that the ICD

continued to record accurately.            The dissent misses the point when

it insists the only possible pre-existing medical condition which


                                      - 25 -
could have contributed to the event was a cardiac arrhythmia or

other cardiac event preceding the accident.       Dr. Taff's opinion

lists at least seven different possible medical conditions that,

singly or in combination, caused or contributed to Mr. Arruda's

death.   One of those was "heart disease," a broader term than

"heart attack" or "heart arrhythmia."     Another was a "temporary or

intermittent cardiac pacemaker failure."      The other pre-existing

conditions Dr. Taff specified were independent of heart attack or

arrhythmia.    Dr. Taff did not have to provide further explanation

for how those conclusions are compatible with the logbook because

there is no evidence the ICD captured all seven of the possible

pre-existing causes set forth by Dr. Taff, and from the nature of

the device, it is clear that it could not.

            At most, Dr. Laposata's view, summarized in her addendum

report, was that the ICD gives "proof that no cardiac arrhythmia

or event proceeded the accident."       She did not say that it gave

proof that no pre-existing condition at all contributed to the

accident.   Indeed, Zurich was entitled to consider, in finding the

logbook inconclusive, Dr. Laposata's earlier view that the ICD

showed no episodes of "sustained ventricular tachycardia and no

defibrillation discharges" and her expressed view that whatever

caused the accident could have occurred within the time frame of

mere seconds.    (Emphasis added).




                               - 26 -
C.   Zurich Was Not, In the Face of Medical Evidence to the
     Contrary, Required to Accept Claimant's Evidence

               Beyond this assessment of why the evidence supports the

denial,       Arruda's   premise     is    that   judges   may   find   insurers'

decisions as to benefits to be arbitrary even after the insurer

relied on several independent experts and a record such as this.6

Such a premise is in considerable tension with the standard of

review we use, which requires deference to the insurer's decision

under       both   Supreme   Court   and    our   circuit's   precedent.7    See

Firestone, 489 U.S. at 111; see, e.g., Terry v. Bayer Corp., 145

F.3d 28, 37 (1st Cir. 1998). Zurich's interpretation of the Policy

is "by no means unreasonable and so must prevail."                 Dutkewych v.

Standard Ins. Co., 781 F.3d 623, 636 (1st Cir. 2015) (quoting

Wallace v. Johnson & Johnson, 585 F.3d 11, 15 (1st Cir. 2009)).

               The Supreme Court reminded us in Conkright v. Frommert,

559 U.S. 506, 517 (2010), of the importance of giving deference to


        6 Arruda cites Buffonge v. Prudential Insurance Co. of
America, 426 F.3d 20 (1st Cir. 2005), for the proposition that we
should carefully scrutinize the medical opinions for the allegedly
missing causation analysis. We disagree that Buffonge aids her.
In Buffonge, we held that the insurer's decision was arbitrary and
capricious because it relied on the opinion of an expert who had
clearly misrepresented the opinions of other experts, an error
that should have been obvious to the insurer on any reasonable
review of the record. 426 F.3d at 28-29. No such evidence of
misrepresentation by any doctor is presented here; indeed, both
Dr. Taff and Dr. Laposata relied on the same information.
     7    We certainly may not, as the dissent proposes, develop
our own theories not present in the record, like theorizing that
Arruda may have fallen asleep because of stress at work, to find
an insurer's decision arbitrary.


                                      - 27 -
claims fiduciaries such as Zurich.          As the Court noted, such

"[d]eference promotes efficiency by encouraging resolution of

benefits    disputes   through   internal   administrative   proceedings

rather than costly litigation," "predictability, as an employer

can rely on the expertise of the plan administrator rather than

worry about unexpected and inaccurate plan interpretations that

might result from de novo judicial review," and "uniformity,

helping to avoid a patchwork of different interpretations of a

plan . . . that covers employees in different jurisdictions."            Id.

            We are aware that a few other circuits, in reviewing

whether    something   "contributed   to"   a   covered   loss   under    an

insurance policy, have chosen to adopt a "substantial factor" test

to aid their interpretation.      Under the "substantial factor" test,

"a pre-existing infirmity or disease is not to be considered as a

cause unless it substantially contributed to the disability or

loss."     Adkins v. Reliance Standard Life Ins. Co., 917 F.2d 794,

797 (4th Cir. 1990) (emphasis added) (quoting Colonial Life & Acc.

Ins. Co. v. Weartz, 636 S.W.2d 891, 894 (Ky. Ct. App. 1982)); see

also Dixon v. Life Ins. Co. of N. Am., 389 F.3d 1179, 1184 (11th

Cir. 2004); McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129, 1136

(9th Cir. 1996).8      The standard of review in this case, as all


     8    The Tenth Circuit has adopted a "plain meaning" approach
instead of a "substantial factor" test.     See Pirkheim v. First
Unum Life Ins., 229 F.3d 1008, 1010 (10th Cir. 2000). Again, we
rely on our own circuit law.


                                  - 28 -
parties agree, is for abuse of discretion.                In our view, the

substantial factor test is in tension with our circuit law on the

abuse of discretion test.

            Further, as we have said, "our review of whether a plan

administrator abused its discretion does not require that we

determine either the 'best reading' of the ERISA plan or how we

would read the plan de novo."        D & H Therapy Assocs., LLC, 640

F.3d at 35.      Our existing circuit law addresses the appropriate

test for abuse of discretion review issues.

            We also keep in mind the Supreme Court's admonition in

Conkright that, in passing ERISA, Congress desired "to create a

system that is not so complex that administrative costs, or

litigation expenses, unduly discourage employers from offering

ERISA plans in the first place."        559 U.S. at 517 (alterations and

internal quotation marks omitted).

                                   III.

            Zurich's    determination     that    Mr.   Arruda's   death   was

caused or contributed to by pre-existing medical conditions was

supported   by    substantial   evidence    and    was   not   arbitrary   or

capricious.      We reverse and remand for entry of summary judgment

for Zurich.      No costs are awarded.



                       -Dissenting Opinion Follows-




                                  - 29 -
             LIPEZ, Circuit Judge, dissenting.               I agree with my

colleagues on the legal principles that govern our review in this

case.     We part ways, however, in applying that law to the record

before us.    Although the majority reasons otherwise, Zurich cannot

defend its conclusion that Mr. Arruda's heart disease or other

pre-existing conditions caused or contributed to his car accident

and death.      As I shall explain, the record inescapably reveals

that Zurich denied Mrs. Arruda's claim for the reason aptly

described by the district court: "the mere existence of [Mr.

Arruda's] pre-existing illness."           Arruda v. Zurich Am. Ins. Co.,

366 F. Supp. 3d 175, 186 (D. Mass. 2019).                   That flawed logic

produces an unjust result.

             Because    Zurich's     decision       is    not     supported   by

substantial evidence, my colleagues err in reversing the district

court's     judgment   for   Mrs.   Arruda.     I     therefore    respectfully

dissent.

                                      I.

             As the majority notes, following Mr. Arruda's death, his

ICD   was    removed   and   submitted     to   the      manufacturer,   Boston

Scientific, for analysis.       The arrhythmia logbook report generated

by Boston Scientific -- i.e., the record of cardiac "events"

measured by the ICD -- shows no events after May 20, 2014, two

days before the car crash.          The report also shows that a "Rhythm

ID Update" was completed about an hour before the crash, at 8:23


                                    - 30 -
a.m. on May 22.      Faced with these facts, Zurich argues on appeal

that the logbook functions in a particular way:

             The Logbook last updated at 8:23 a.m. on the
             day of the crash.       The fact that the
             defibrillator was intact and working at the
             time of Mr. Arruda's death means that the
             Logbook does not update continuously in real
             time. The Logbook shows that Mr. Arruda did
             not experience a cardiac event before 8:23,
             but it is silent as to what happened in the
             hour leading up to the 9:30 crash. It does
             not even record the alleged seizure observed
             by witnesses after the crash or that Mr.
             Arruda's   heart  stopped   beating  shortly
             thereafter.

Zurich's assertion that the logbook did not record continuously in

real time appears to be an attempt to support its suggestion that

Mr. Arruda experienced a cardiac event at the time of the crash

that   had   not   yet   been   recorded.    However,   Zurich   offers   no

evidentiary support for its depiction of how the ICD operated.

             In fact, none of the medical experts describe the ICD as

functioning in the way that Zurich argues.         Nor do they place any

significance on the absence from the ICD logbook report of Mr.

Arruda's seizure or his heart stoppage.            Four medical experts

rendered opinions about the accident, but only three mention the

ICD.   And only one, Mrs. Arruda's expert, directly opines on the

meaning of the logbook report.

             To be specific, one of Zurich's experts, Dr. Bell,

mentions the ICD itself, but not the logbook report.              Dr. Bell

notes that "the ICD was normally working and not activated prior


                                    - 31 -
to the crash" based on State Trooper William McMillan's paraphrase

of the autopsy results in an accident report.              He then opines that

Mr.   Arruda's    "crash    and   his   death     were   caused   by    his   heart

disease."        Another    Zurich      expert,    Dr.   Taff,    states      that,

"[a]ccording to several reports, post-mortem analysis of [Mr.

Arruda]'s implantable ICD device showed no evidence of an ante-

mortem arrhythmia."        Despite his acknowledgement that there was no

evidence of an arrhythmia, Dr. Taff lists "cardiac arrhythmia

resulting from pre-existing heart disease" as one of the "several

possible    pre-existing     illnesses     or     diseases"   that     caused   the

accident.

            Mrs. Arruda's expert, Dr. Laposata, authored two reports

about the accident, the first before Dr. Taff rendered his opinion

and the second afterwards.           In her initial report, Dr. Laposata

notes that "interrogation of the internal cardiac defibrillator

did not show any abnormal heart rhythms prior to the accident."

In her supplemental report, Dr. Laposata responds to Dr. Taff's

findings with an explicit opinion that "[t]he interrogation of

[Mr. Arruda's] cardiac defibrillator gives definitive proof that

no cardiac arrhythmia or event preceded the accident."9                  There is

no evidence in the record rebutting that statement.


      9The majority criticizes Dr. Laposata for not explicitly
stating in her first report that "the absence of data show[s] that
no abnormal heart rhythm had occurred between 8:23 a.m. and the
later time of the accident."      Supra Section I.C.     But that


                                     - 32 -
                                II.

           Zurich concluded that Mr. Arruda's death is not covered

under the Policy because it was "caused by, contributed to, or

result[ed] from . . . illness or disease," i.e., Mr. Arruda's heart

disease or some other pre-existing condition, and marijuana use.

There is not substantial evidence in the record to support either

factor.

A.   Illness or Disease

             Mr. Arruda's autopsy did not reveal evidence of a heart

attack or heart failure.    Cf. Dixon v. Life Ins. Co. of N. Am.,

389 F.3d 1179, 1181 (11th Cir. 2004) (undisputed cause of driver's

death following car crash was "heart failure" where autopsy showed

"complete blockage of one of the main arteries that supplies blood

to the heart" and "no evidence of external injury"); Vickers v.

Bos. Mut. Life Ins. Co., 135 F.3d 179, 180 (1st Cir. 1998)

(undisputed that fatal car crash was caused by driver's heart

attack where autopsy showed he had suffered an "acute coronary

insufficiency"). In an ordinary case, the absence of such physical

evidence may not be determinative because it does not rule out an


conclusion is implicit in her statement that interrogation of the
ICD showed no abnormal heart rhythms prior to the accident. If
Dr. Laposata understood the logbook report to be inconclusive as
to what happened after the Rhythm ID Update was recorded, she would
have said only that the ICD showed no abnormal heart rhythms prior
to 8:23 a.m. Both of Dr. Laposata's reports reflect her consistent
opinion that the logbook report shows no evidence of an arrhythmia
prior to the accident itself.


                               - 33 -
arrhythmia.    But Mr. Arruda had an ICD, the very purpose of which

was to measure cardiac irregularities.          The ICD logbook report is,

therefore, a critical piece of medical evidence that bears upon

the reasonableness of Zurich's decision.10

           Mrs. Arruda submitted the logbook report to Zurich when

she appealed from its decision denying benefits, and she later

submitted the two expert reports by Dr. Laposata that discuss the

report.    Yet Zurich did not mention the logbook report in its

letter denying Mrs. Arruda's appeal.          Suggesting that somehow this

disregard is a factor in Zurich's favor, the majority emphasizes

that Zurich did not rely on the logbook report to deny Mrs.

Arruda's claim for benefits.       Zurich's choice not to engage with

a   critical   piece   of   evidence   does    not   weigh   in   its   favor.

Recognizing the import of this failure, Zurich now argues belatedly

that the logbook report is "inconclusive," a position that my

colleagues insist is reasonable.       Supra Section II.B.        I disagree.

Dr. Laposata is the only medical expert who actually interpreted

the logbook report, and her unrebutted opinion is that the logbook

report "gives definitive proof that no cardiac arrhythmia or event




      10
       Although the district court expressed uncertainty about the
meaning of the "Rhythm ID Update," it concluded that the logbook
report "underscore[s]" the speculative nature of a conclusion that
heart disease was the cause of Mr. Arruda's death. Arruda, 366 F.
Supp. 3d at 185 n.4.


                                  - 34 -
preceded the accident."11         If Zurich believed that the logbook did

not record cardiac irregularities in real time, and therefore it

had doubts about Dr. Laposata's interpretation, it should have

challenged her opinion with a second opinion.                      Zurich was not

entitled,     however,     to      ignore     the     only        medical   expert

interpretation of the logbook report in the record and now, on

appeal,    dismiss   the   significance       of    the    logbook    report    with

conjecture about how it works.

             The absence of any evidence of a heart attack, heart

failure,    arrhythmia,      or    other    cardiac       event    undermines    the

reasonableness of Zurich's denial of benefits on that basis.

Nevertheless, the majority says that this focus on heart disease

"misses the point," citing to Dr. Taff's list of "possible medical

conditions that, singly or in combination, caused or contributed

to Mr. Arruda's death."           Supra Section II.B.           It is enough, the

majority says, that Dr. Taff reached a "self-evidently reasoned"

conclusion    that   "some    manifestation(s)        of     Mr.    Arruda's    pre-

existing conditions" caused the accident.                 Id.     What is a "self-


     11The majority suggests that the opinions of Dr. Bell and Dr.
Taff rebut Dr. Laposata's conclusion about the significance of the
logbook report. They do not. Dr. Bell noted only that the ICD
was "normally working and not activated prior to the crash," and
Dr. Taff stated that "post-mortem analysis of [Mr. Arruda]'s
implantable ICD device showed no evidence of an ante-mortem
arrhythmia." Yet both experts then concluded that Mr. Arruda's
heart disease contributed in some way to the car crash, without
explaining how those conclusions are compatible with the absence
of any cardiac irregularity readings in the logbook.


                                     - 35 -
evidently reasoned" conclusion? One that relies on purported logic

instead of evidence?     One that posits that a man with so many pre-

existing conditions must have gotten into a sudden and unexplained

accident because of those conditions?          That "reasoning" is nothing

more than speculation.

            The   majority    emphasizes     that   Dr.   Taff    rendered   his

opinion "to a reasonable degree of forensic medical certainty."

Supra Section II.B.      His use of the phrase "reasonable degree of

forensic medical certainty," the indispensable ultimate assertion

in   any   testimony   from    a   medical    expert,     has    no   talismanic

significance.     Its probative force depends on the quality of the

evidence    underlying   it.       Here    that     underlying    evidence   is

strikingly feeble.     Dr. Taff lists a grab-bag of seven "possible"

causes. Included in the list are "cardiac arrhythmia," even though

the ICD had not recorded a cardiac event, and "complications of

undiagnosed sleep apnea resulting in falling asleep behind the

wheel."    In fact, despite the absence of any medical history of

sleep apnea (hence Dr. Taff's reference to "undiagnosed sleep

apnea"), Dr. Taff suggests that Mr. Arruda fell asleep behind the

wheel:

            Although [Mr. Arruda] was never diagnosed with
            sleep apnea, several of his pre-existing
            pathological conditions are known to cause
            irregular    sleeping   patterns,    breathing
            difficulties, chronic fatigue and obesity.
            Based on the circumstances, there is a good



                                    - 36 -
             chance that [Mr. Arruda] fell asleep behind
             the wheel.

This    "good   chance"    conclusion    discomforts     the   majority.     My

colleagues treat it as an unwelcome and irrelevant gloss on Dr.

Taff's      obligatory     "reasonable    degree    of    forensic    medical

certainty" observation.           See supra Section II.B.       They say that

Zurich could ignore it in favor of Dr. Taff's more congenial and

formally correct observation.          But that "good chance" observation

reveals the speculative nature of Dr. Taff's opinion about the

relationship     between    Mr.    Arruda's   medical    conditions   and   the

accident.

             The inescapable fact is that many healthy people fall

asleep at the wheel while driving, and many sick people fall asleep

at the wheel while driving for reasons that have nothing to do

with their illness.        Mr. Arruda left his home in Bristol, Rhode

Island, around 6:30 a.m. on the day of the accident to drive to

Amherst, Massachusetts, a distance of about 105 miles,12 for a work

event.      At the time of the accident, Mr. Arruda was about ten

minutes from the University of Massachusetts Amherst,13 where the


       12
       Driving Directions from Bristol, RI, to Amherst, MA, Google
Maps, http://maps.google.com (search for "Amherst, MA"; then click
"Directions" and enter "Bristol, RI" as the starting point).
       13
       Driving Directions from 73 Russell Street, Hadley, MA, to
the   University   of   Massachusetts   Amherst,   Google   Maps,
http://maps.google.com (search for "University of Massachusetts
Amherst" and click on the first result; then click "Directions"
and enter "73 Russell Street, Hadley, MA" as the starting point).


                                     - 37 -
event was being held.      Perhaps he had a sleepless night because he

was worried about getting to the event on time.              Even if Dr. Taff

is correct that Mr. Arruda fell asleep at the wheel (a speculative

conclusion in itself), there is as good a chance that he fell

asleep because of work anxiety as there is that he fell asleep

because of undiagnosed sleep apnea.

           My colleagues suggest that the parties' dispute comes

down to a battle of the experts between Dr. Taff and Dr. Laposata.

See supra Section II.B.         But that is not so.        Indeed, on perhaps

the most essential point, the opinions of Dr. Taff and Dr. Laposata

are not in conflict.       Dr. Taff acknowledges that "[t]here is no

way to scientifically prove which human factor(s)/pre-existing

medical condition(s) occurred during the pre-collision phase of

the accident."     Dr. Laposata likewise observes that "[t]here is no

medical or scientific data to conclude that the accident was caused

or   contributed     to    by     Mr.    Arruda's     pre-existing        medical

conditions."       The    two     experts     diverge,    however,   in     their

willingness to speculate about what happened despite the lack of

supportive medical evidence.

           Dr. Laposata does not purport to know what occurred prior

to   the   accident.       Like    Dr.      Taff,   she   rules   out     several

possibilities, including a heart attack or other "acute natural

event incompatible with life" -- because the autopsy revealed no

evidence of such an event -- and "incapacitation by heart disease"


                                     - 38 -
-- because the ICD logbook report "showed no abnormal heart rhythms

recorded prior to the collision."       But she asserts that "[i]t is

a serious error to conclude that the mere existence of medical

diagnoses and speculation as to what might happen given these

conditions equates with proof that a medical event did occur prior

to the accident."   I agree.

          I recognize that Zurich does rely on other records, in

addition to Dr. Taff's report, to support the determination that

heart disease caused or contributed to Mr. Arruda's crash: the

autopsy report and death certificate prepared by Dr. Sexton, the

Massachusetts Collision Reconstruction Report completed by Trooper

Sanford, and the two other medical expert reports written by Dr.

Bell and Dr. Angell.   Although this list gives the appearance of

substantiality, the appearance does not survive scrutiny.

          The front page of Dr. Sexton's autopsy report reads, in

relevant part, as follows:

          CAUSE OF DEATH: Hypertensive Heart Disease.
          Contributory Factors: Upper Cervical        Spine
          Fracture due to Blunt Impact.
          MANNER OF DEATH: Accident (Driver Involved in
          a Motor Vehicle Collision with Rollover)

The death certificate also states that the immediate cause of death

was hypertensive heart disease.14 But, as the district court noted,


     14 The copy of the death certificate reproduced in the
administrative record is illegible. Zurich, however, stated in
its letter denying Mrs. Arruda's claim for benefits that "[t]he


                               - 39 -
"Dr. Sexton's report was based solely on an examination of Mr.

Arruda, and did not include any examination of his defibrillator

device."    Arruda, 366 F. Supp. 3d at 180.          In addition, Dr. Taff

points out "discrepancies" in Dr. Sexton's preparation of the

autopsy report which "suggest that Dr. Sexton never took the

. . . cardiac findings into consideration before finalizing his

opinions about [Mr. Arruda]'s cause and manner of death."                  Dr.

Sexton's cause of death determination, which was reached without

consideration of all of the relevant medical evidence, is therefore

unreliable.

            Trooper Sanford states in his accident report that Mr.

Arruda suffered from some kind of medical event that caused the

crash.    That opinion is baseless.     As the district court observed,

"[t]he record does not indicate Trooper Sanford has meaningful

medical training in this area."              Id. at 185.        Indeed, Zurich

appropriately concedes that the "State Police are not medical

experts    and   their   opinions    could     not   be   the    basis   for   a

determination that heart disease was the cause of death."

            Dr. Bell opines in his medical expert report that Mr.

Arruda's

            crash and his death were caused by his heart
            disease, whether it be due to hypertension or
            a variant of [hypertrophic cardiomyopathy].
            However, based on the autopsy results, [Mr.

Death Certificate stated that the immediate cause of death was
Hypertensive Heart Disease."


                                    - 40 -
          Arruda's] C1 left posterior arch fracture and
          C3-C4 dislocation with soft tissue hemorrhage
          at the injury sites would be a contributory
          cause of death.

He does not explain how or why he concludes that Mr. Arruda's heart

disease caused the car crash and Mr. Arruda's death.    It appears,

however, that he relied on the flawed autopsy report.

          Finally, the district court correctly found that Dr.

Angell's report is "unreliable" because his "credentials are not

contained in the record, and Zurich could not even identify [him]."

Id.   In addition, his brief conclusory opinion provides no basis

for his findings.

          In sum, the record lacks substantial medical evidence

that bridges the gap between Mr. Arruda's pre-existing conditions,

which he had been living with for years, and the cause of the fatal

car accident.   Without more, Zurich's decision amounts to a denial

of benefits based on the mere existence of Mr. Arruda's pre-

existing conditions.    But it is not enough to reason that an

indisputably sick man must have had the fatal car accident because

of his sickness. Zurich's denial of benefits based on Mr. Arruda's

medical conditions, singly or in combination, is not "reasonable

and supported by substantial evidence on the record as a whole."

See McDonough v. Aetna Life Ins. Co., 783 F.3d 374, 379 (1st Cir.

2015).




                               - 41 -
B.   Marijuana

             Zurich's decision to rely on the narcotics exclusion is

unreasonable for similar reasons.                   Dr. Taff's assertion that the

marijuana in Mr. Arruda's system alone "would have impaired his

ability   to      operate      his   motor    vehicle"        is    undermined         by   his

acknowledgement       that      "[r]esponses        to   marijuana            vary   from   one

person to another and precise and predictable behavioral and

physiological reactions to the drug cannot be rendered."                                 As the

district court correctly observed, "[t]here is no evidence in the

record regarding how the marijuana in Mr. Arruda's system may or

may not have impaired his driving and caused the car accident."

Arruda, 366 F. Supp. 3d at 187.                   Notably, the majority does not

even   attempt      to    defend      Zurich's       reliance        on       the    narcotics

exclusion.

                                            III.

             In    rejecting         the   decision      of        the    district        court

overturning Zurich's denial of benefits, the majority questions

the "premise" that "judges may find insurers' decisions as to

benefits to be arbitrary even after the insurer relied on several

independent experts and a record such as this," observing that

"[s]uch a premise is in considerable tension" with the abuse of

discretion standard of review.               Supra Section II.C.                 There is no

such tension here.             We have said many times that a standard of

deference      does      not    negate      our     obligation           to     ensure      that


                                           - 42 -
"substantial evidence" underlies the decisions of insurance plan

administrators.   The district court met that obligation and so

should we.   Quantity is not a proxy for substance.   Here, when the

450 or so pages15 of documentation reviewed by Zurich are fairly

examined, they are devoid of the substantial evidence required by

law to support Zurich's denial of benefits.           I respectfully

dissent.




     15 Dr. Taff noted that he reviewed a "450-page file" of
documentary evidence when he prepared his report.


                              - 43 -
