Legal Case Summary

We're the first case on Kowski versus Oberg Industries. Ms. Waskowitz? Yeah, I pronounce that right? Waskowitz. Yes, thank you. Okay, thank you. Please. Good morning, Your Honors. May please the Court. My name is Tiffany Waskowitz. And I represent a palant Jeffrey Bonkowski. At this time, our both went is, I would like to respectfully request three minutes of her bottle time. Yes, it's free. Thank you, Your Honor. In this case, there's sufficient record evidence that the fact finder may reasonably find that Mr. Bonkowski had a serious medical condition. IE, he underwent inpatient care when he stayed overnight at the Butler Memorial Hospital in November 14, 2011, to November 15, 2011. You're taking the serious medical condition statutory and the staying overnight is by rule. So you're emerging them together. Your Honor, actually what I'm looking at is the FMLA defined serious medical condition under 29 USC 2611, 11, in one form as inpatient care at the hospital

. The regs define it inpatient care as an overnight condition. So respectfully, I'm looking at the statute is defining it as inpatient care. And then the regs defining inpatient care. Let's see the problem in the cases. What is an overnight stay? Correct, Your Honor. Is that fairly accurate? Yes, Your Honor. And that's where you and the adversary in this case were, Hobberg differ. Yes, Your Honor. Well, why should we reverse the district court when you yourself have failed to offer an interpretation of what overnight stay actually means? You've been defined what it means. Your Honor, with respect to what an overnight stay means, I, a totality of the circumstance test would be best served to affect the remedial purpose of the FMLA. The question was, did you present that to the district court? I indicated to the district court. Did you present any, any option to the district court? I, I presented the totality of the circumstance test. Well, that's no standard. That's, that's no standard totality. You have to have a definition. And you never presented any standard definition by which a jury can guide what an overnight stay is. What is your position? I just stand for us today. How, how, how would we instruct the district court to charge a jury what an overnight stay is? Whereas I would say look at the totality of the circumstances and consider such factors as how the hospital designated the individual, the arrival time of the individual to the hospital, the time the individual left the hospital, the duration of time spent at the hospital

. Would you say minimally it requires admission to the hospital? I would not your Honor. You would not? No. You mean you could sit out in the waiting room and spend a couple of hours there and then be seen by a doctor in a room released and that's an overnight stay? Well, I would say that it requires at least occupying a bed at the hospital. Whether that's considered admission or not is a medical complexity that depends on the situation in which person goes to the hospital. I think that's one of many factors. In this particular case, Mr. Pankowski was admitted into the hospital. He was designated as inpatient. The district court itself acknowledged that he had an inpatient care. And Pendex, page 19. Is this really such an obligation? Does any court in this country address what an overnight stay is for any purpose? My adversary brought up this case of the state, the landers, the levy. I would in which overnight stay for purposes of Medicare statute or three days admission was defined as formal admission. It was defined as what? Formal admission. Formal admission. However, in that case, Well, you could be formally admitted in the morning and released in the evening. Sure, I believe this case is distinguishable from that case because in a state v landers, there was an agency interpretation of what inpatient meant, which was given per space of weight. In addition, in a state v landers, inpatient was not defined. Here inpatient is defined

. Inpatient is defined in the regs, 829 CFR, 8285.114 as an overnight stay in the hospital. There's no temporal limitations placed on that. I'm trying to get out. What is an overnight stay? An overnight stay is different in the, known Alaska than it is in New Orleans, last of New Orleans. So it can't be that the overnight stay is very amorphous term. But beyond that, my question to you is this, you say the jury should be charged the totality of the circumstances. That's your position, right? Yes, Your Honor. Well, that can't be because you can have two patients with exact same facts. And one jury could say is overnight stay in the other jury could say it's not overnight stay. And this is not the function of the law. The law is that people in similarly situated should be shredded through the same, and differently situated, usually differently. So once again, I ask you, how do you define what an overnight stay is? If the totality of the circumstance test is rejected, then I would define overnight stay as time of arrival at the hospital and time of departure. And so long as the arrival occurred prior to midnight, and in a departure occurred after midnight, that would constitute an overnight stay. So you could have a 30 minute. Overnight stay before the night entry or accepted as impatient, released just after midnight. According to that definition, that is why I do prefer. Why? It doesn't seem to make sense

. Why does Congress require this overnight stay per? Why do we have this overnight stay per vision? What's the purpose of it? Your Honor, I believe the overnight stay purpose is to protect against, to provide a situation where an employer sick, leave policy would not account for an overnight stay. It helps define, doesn't it, what a serious health condition is? Yes, it does. Okay, so it's pegged to that, isn't it? So it would seem that it's to avoid these brief going to the hospital and out. It's to ensure that there's some seriousness in the employees injury, so that that person would qualify for the family and medical leave. Would you agree with that? I would agree with that. Well, your example doesn't work, does it? My example with arrival time and departure time, there would be a potential for somebody to arrive at the hospital at 11 to 30 pm, and then leave at 1 a.m. What doesn't seem fair though is that in a known, poor Frank, it's that place in Alaska, Fairbanks. Fairbanks, that's the one. It would seem that the closer you are to the Arctic Circle, the more likely is you are going to be deemed to be impatient, because the night is only about two and a half, three hours. But in Western Pennsylvania, it ends up being about eight or nine hours. Well, Your Honor, that was one of the contentious I had with the District Court's definition of dusk to dawn. Your whether you have an impatient stay would depend upon time of year, geography, so on and so forth, and interpretations that lead to odd and... That highlights the inequity, but again, perhaps more to Judge Cowan's point, how do you justify getting this entire issue to a jury? Why should we adopt that sort of rule? The statute does say in patient care, District Court indicated he had an impatient care, say, in appendix 10. Per statutory construction under disabled action in PA, the South Eastern PA Trans Authority, 539 F3199 210, third circuit 2008, we assume, for example, that every word and a statute has meaning, and avoid interpreting one part of a statute in a manner that would render another parts perpless. If the FMLA defines, because the FMLA defines serious medical condition as an impatient stay, the District Court itself defined Mr

. Bockowski stay as impatient. My argument would be a definition of serious overnight stay that rendered the impatient prong of serious health conditions for perpless would be at odds. But serious health condition is traced in a statute itself. Is it for Judge to determine what a statute means? Is it as your honor? Rather than a jury? And the Judge did indicate it was an impatient stay. An appendix 10, she just recorded stated that the comprehensive testing that was performed as a result of Mr. Bockowski's inpatient care did not find any complications with his heart diabetes. That's appendix 19. The District Court did qualify Mr. Bockowski's stay as impatient. But he wasn't there for, he wasn't there overnight. I would respectfully disagree. Well, he was there for 24 hour period, wasn't. No. Okay. And he wasn't there under any definition that you have given us that is going to make any sense in Fairbanks, Alaska, and in Louisiana. So how is the overnight stay? You're not including in that when he was in emergency room. Are you? Yes, I am. Well, emergency room, you're not admitted for overnight

. Emergency room does account toward overnight stay. In the overnight stay regulation does not say time of admission. It does not put a temporal expiration date on it. Does overnight stay? I know, but in a hospital, you're not you're not stamped as admitted when you're in the emergency room. And you could be admitted later on if you got an emergency room. But you're not admitted to the hospital while anytime that you're in the emergency room. I would agree, but overnight stay does not indicate it's time of admission. So you're counting the time he's sitting in the emergency room? Yes, I am. The time of arrival. That's a question. How long was he in the hospital? He was at the hospital taking the facts in a light most unfavorable in Sponkowski. He was at the hospital for at least 15 hours. 15 hours? Yes. You know, some hospitals have a policy. Leave me on an expert on hospitals. I'm trying to figure out where that emergency room is. You mentioned you could get in at 130 and leave at 11, 30 and leave at 11, I'd like to find out where that is. But anyway, the, but some hospitals have a policy of requiring before you admitted that you'd be in the emergency room

. And I have to remember from experience, the physician who circumvented that said, no, you don't have to go to the emergency room. Although it was obvious it was going to be a stay. And yet it did involve, it didn't involve the emergency room, but it would have one normally. So sometimes the emergency room, you would affect or in the hospital. You know, it's a prelude. So it's important. And people look at the observation time in the emergency room, as if you were formally admitted later, that time will come because you were admitted. What you're being asked is this. What the judge is in effect is saying is, look, a jury can say, you can say, I got there at nine o'clock, the employer is saying, say, I didn't get there and he didn't get there at 10 o'clock. Okay. A jury can resolve that question. It, that you could be, a jury can be given in a regulatory. But what they're saying is that you want them to resolve a legal definition. And there is no legal definition. Now, if you went, if, if I went to a hotel at 10 at night, and I was in a city, and I intended to go home, but I didn't. And I went to a hotel and said, you have a room. It's dark. It's past sunset

. And they said they do. And I took a room and said, I want to leave a wake up call for 630. And they call me at 630. I had breakfast, paid the bill and left. In my opinion, that would be an overnight stay. But it's less hours. You have to look at the context too. I think most people would agree I stayed overnight. But yeah, I don't know if it's different in the hospital. Yeah. It's actually a good point. Thank you. We'll get you back on our button. Thank you, Your Honours. Is the car good? I'd actually like to follow up on this. But I think it's a point that was being made by Judge Greenberg. Yes, it depends who you ask. What an overnight stay is

. If you go down the street, they're brought in market and take a survey. It's overnight. Well, you know, I just kept there when I got there and I wake up in the morning. That's overnight. But the judge in this case said overnight is you got to get there before sunset. And you have to stay there until sunrise. Nobody would answer that way. Well, I think that's precisely why the court needs to decide what exactly is an overnight stay. So that a jury can apply the facts to a standard. When you're a standard, what is your definition of an overnight stay? Sure. I think there are two plausible definitions. The first is the definition that we advanced. It's a state that begins on one calendar day for purposes of admission as an inpatient to a hospital and extends to a second calendar day. Well, I can't be. You should be admitted the one minute before 12 in this charge. A minute after 12 and you have an overnight stay. That that could be. That doesn't make any sense

. Now, now I think that is the more liberal approach. And if we're looking at the remedial purposes of the FMLA, that's actually I think the approach that is is easier to comply with for an individual being admitted to the hospital. Well, what would you say about my guess? I can tell you some hospitals do insist that you go through the emergency room before you admit it. You're not admitted during the emergency room at 930. You know how it could be in an emergency room. You can wait forever, it seems. And then, ultimately, they admit you, but it's one of the morning. Could that be an overnight stay if you stay and talk to one the afternoon? I mean, and you're in the hospital. If the hospital has a policy that they just look at you and put you in a room, should it be a different result? It's a very no-morphous term. It is. And I believe the- What's your second definition of the second one is why? The second one is the position adopted by the District Court in this case. And that is from sundown on day one until sun up on day two. That also can't fly because depending if you're in Fairbanks or Alaska, Alaska, you have an overnight stay, it can be three hours. And if you're in Louisiana in July, it means you have to be there for 16 hours. So that doesn't make any sense either. Also, if you're depends on whether it's winter or summer if you're in Fairbanks, if it's winter, it's a very short period where there's light. This is summer, it goes on and on. Three hours overnight, Fairbanks. It is. So what do you- If we reject those two possibilities that you've mentioned as not reasonable, what do you suggest should be the rule as to what is the definition for a jury to determine whether or not a patient had an overnight stay? I think the definition has to be that the individual be admitted as an inpatient in calendar day one and discharged at the earliest the next day. I can be two minutes, I can be three minutes. And if I could address that argument, there are other statutes that have what may be an unfair result. For example, the minimum wage, minimum wage is set at 725 and that applies to employees all over the country regardless of location. 725 goes a lot further in rural Pennsylvania than the New York City of Philadelphia. That doesn't mean that we shouldn't have a specific definition of an overnight whether it has the result of having a three hour time period in Alaska. I think that the guidance to your point Judge Greenberg, I think the guidance that the Department of Labor has provided when it comes to the emergency room aspect is that it has to be in patient care. In another context, Medicare specifically, inpatient care can only be received by an inpatient. So you have to be admitted as an inpatient under your formula? Yes, sir. I think that he was not admitted. He was not admitted as an inpatient until after midnight. Oh, but he was admitted. He was after midnight. And I know that you first you have to be admitted and they have to stay in hospital long enough and overnight stay. So that it would be an overnight Yes, sir. Well, if I understand your argument correctly as I understand it, your position is you don't have a position what the exact definition of an overnight stay is. But whatever that definition is, the plaintiff or pellant in this case doesn't qualify for any definition

. It is. So what do you- If we reject those two possibilities that you've mentioned as not reasonable, what do you suggest should be the rule as to what is the definition for a jury to determine whether or not a patient had an overnight stay? I think the definition has to be that the individual be admitted as an inpatient in calendar day one and discharged at the earliest the next day. I can be two minutes, I can be three minutes. And if I could address that argument, there are other statutes that have what may be an unfair result. For example, the minimum wage, minimum wage is set at 725 and that applies to employees all over the country regardless of location. 725 goes a lot further in rural Pennsylvania than the New York City of Philadelphia. That doesn't mean that we shouldn't have a specific definition of an overnight whether it has the result of having a three hour time period in Alaska. I think that the guidance to your point Judge Greenberg, I think the guidance that the Department of Labor has provided when it comes to the emergency room aspect is that it has to be in patient care. In another context, Medicare specifically, inpatient care can only be received by an inpatient. So you have to be admitted as an inpatient under your formula? Yes, sir. I think that he was not admitted. He was not admitted as an inpatient until after midnight. Oh, but he was admitted. He was after midnight. And I know that you first you have to be admitted and they have to stay in hospital long enough and overnight stay. So that it would be an overnight Yes, sir. Well, if I understand your argument correctly as I understand it, your position is you don't have a position what the exact definition of an overnight stay is. But whatever that definition is, the plaintiff or pellant in this case doesn't qualify for any definition. Is that your position? I think the best position is the calendar day approach. That said, under either approach calendar day or from dusk until dawn, the the appellate area was covered. Can calendar day can then mean about half an hour though? It could. But as just but we're thinking of the equities of the situation, it just doesn't seem equitable that that person would would qualify for having a serious health condition, but somebody who's in the hospital for 13 hours and the dusty door formula would not be. Unfortunately, I think Congress answered that or I'm sorry, the Department of Labor answered that question for us when they required an overnight stay as opposed to an hour requirement by by interpreting the definition of inpatient care and in the portion of it that requires an overnight stay to require an hour requirement. The focus is on a serious health condition, right? And I would imagine that's the prevent frivolous cases and frivolous assertions so that one can get under the family medical leave. Certainly. Certainly agree with that. Absolutely. I do have a case here that it's a victorality familiar with. I am. Judge Roth in our court and this is presidential opinion. How about a material fat question as to whether employees ulcer with a serious health condition precluded summary judgment? No, I know that dealt with the precise injury, but it did it allowed the jury to consider that issue. It did and I want to ask you which is point does that mean you should be a jury question? The difference between these two cases is in that case that the jury was charged with determining whether or not Ms. Victor Reilly's condition was either a minor ulcer excluded from coverage or was a serious health condition included from coverage. They were charged with weighing the facts as to whether or not it met the threshold that was already defined. She had the continuing treatment. The exception is that the FMLA excludes minor illnesses

. Is that your position? I think the best position is the calendar day approach. That said, under either approach calendar day or from dusk until dawn, the the appellate area was covered. Can calendar day can then mean about half an hour though? It could. But as just but we're thinking of the equities of the situation, it just doesn't seem equitable that that person would would qualify for having a serious health condition, but somebody who's in the hospital for 13 hours and the dusty door formula would not be. Unfortunately, I think Congress answered that or I'm sorry, the Department of Labor answered that question for us when they required an overnight stay as opposed to an hour requirement by by interpreting the definition of inpatient care and in the portion of it that requires an overnight stay to require an hour requirement. The focus is on a serious health condition, right? And I would imagine that's the prevent frivolous cases and frivolous assertions so that one can get under the family medical leave. Certainly. Certainly agree with that. Absolutely. I do have a case here that it's a victorality familiar with. I am. Judge Roth in our court and this is presidential opinion. How about a material fat question as to whether employees ulcer with a serious health condition precluded summary judgment? No, I know that dealt with the precise injury, but it did it allowed the jury to consider that issue. It did and I want to ask you which is point does that mean you should be a jury question? The difference between these two cases is in that case that the jury was charged with determining whether or not Ms. Victor Reilly's condition was either a minor ulcer excluded from coverage or was a serious health condition included from coverage. They were charged with weighing the facts as to whether or not it met the threshold that was already defined. She had the continuing treatment. The exception is that the FMLA excludes minor illnesses. Does it matter that the focus in that case was serious health condition as it is in this case? Serious health condition in both cases. It is. I think it does not matter for purposes of resolving this case because the serious health condition can be resolved in two ways. You could have inpatient care and you can also have continuing treatment. So Congress, the Department of Labor, Department of Labor specifically allows for a condition in which there may not be in patient care but only requires continuing treatment. Unfortunately, in this case, the appellant doesn't meet either definition. Well, this act is supposed to be literally construed. Do you agree with that? I do. And there's nothing in the act itself that says that in patient care excludes the top of your in the emergency room waiting to be admitted. There is nothing in the act that defines serious health condition to exclude that. That is correct. So that if that's included and we have no regulations from the Department which said that we could give difference to Chevron Deference says that's what the Department says. Then even under your definition, the plaintiff will hand over that today. I disagree. And the reason I disagree is I think we do have a regulation. The regulations specifically requires inpatient care. And to be an inpatient and to receive inpatient care, you have to be admitted to the hospital as an inpatient which would exclude time spent walking into the hospital sitting in the waiting room for emergency room services. If I am going to this is about the Pennsylvania

. Does it matter that the focus in that case was serious health condition as it is in this case? Serious health condition in both cases. It is. I think it does not matter for purposes of resolving this case because the serious health condition can be resolved in two ways. You could have inpatient care and you can also have continuing treatment. So Congress, the Department of Labor, Department of Labor specifically allows for a condition in which there may not be in patient care but only requires continuing treatment. Unfortunately, in this case, the appellant doesn't meet either definition. Well, this act is supposed to be literally construed. Do you agree with that? I do. And there's nothing in the act itself that says that in patient care excludes the top of your in the emergency room waiting to be admitted. There is nothing in the act that defines serious health condition to exclude that. That is correct. So that if that's included and we have no regulations from the Department which said that we could give difference to Chevron Deference says that's what the Department says. Then even under your definition, the plaintiff will hand over that today. I disagree. And the reason I disagree is I think we do have a regulation. The regulations specifically requires inpatient care. And to be an inpatient and to receive inpatient care, you have to be admitted to the hospital as an inpatient which would exclude time spent walking into the hospital sitting in the waiting room for emergency room services. If I am going to this is about the Pennsylvania. If I have a very serious injury, let's say I'm in a car accident, a very serious injury. And I am picked up by an ambulance. And now this is about 430 in the afternoon. Now I got to get to a hospital. I can't get to a hospital. There's a 45 minutes later now. It's 515. That's after sundown. Now I get to stay in the hospital in other 16 hours, but that would not be a serious medical condition. Under the district, I just formula here. The cause I got to the hospital after sundown. That is that's what we under the under the inpatient care provision that that would be correct. However, assuming you have a serious health condition that requires medical treatment which you are flighted, it seems to me that you will likely qualify under the continued treatment definition. Well, but I wouldn't qualify under this for charges condition. I formula here, would I? No, not for purposes of determining whether or not there was an overnight stay. Okay. Well, you know, the question, I'm not trying to be funny, but one just a Supreme Court said he couldn't define pornography, but he knew it when he saw it. And I just wonder what it was

. If I have a very serious injury, let's say I'm in a car accident, a very serious injury. And I am picked up by an ambulance. And now this is about 430 in the afternoon. Now I got to get to a hospital. I can't get to a hospital. There's a 45 minutes later now. It's 515. That's after sundown. Now I get to stay in the hospital in other 16 hours, but that would not be a serious medical condition. Under the district, I just formula here. The cause I got to the hospital after sundown. That is that's what we under the under the inpatient care provision that that would be correct. However, assuming you have a serious health condition that requires medical treatment which you are flighted, it seems to me that you will likely qualify under the continued treatment definition. Well, but I wouldn't qualify under this for charges condition. I formula here, would I? No, not for purposes of determining whether or not there was an overnight stay. Okay. Well, you know, the question, I'm not trying to be funny, but one just a Supreme Court said he couldn't define pornography, but he knew it when he saw it. And I just wonder what it was. In other words, he was proposing a sort of an amorphous definition. I wonder maybe the plaintiffs write, maybe he can't really define that. But you you you reject the Farmers Almanac analysis. I don't reject it. I don't think it's the best approach. The best approach is your. His respect, yes. I think the best approach to comply with the the remedial intention of the FMLA would be the calendar day approach. What about Judge Greenberg's point that maybe you really it's it's really a tough a tough thing to get at. Maybe there may not be a bad idea to consider the appellance view. I do think it is a tough thing to get at, but I don't think it would be fair to punt that off responsibility to the jury. But I think it seems like there's just so many factors to take into account the ability of the plaintiff to get to the hospital, the intake process whether that's delayed, whether it's a fast track, whether doctors available in the hospital to say this patient needs a bed whether somebody is here to say well now we got to discharge you or we got to keep you over for three days observation. There's so many things that go into what in overnight stay. There's also some emergency rooms. Try out as the people. You might be waiting there longer before you're seen you know and nurse face the initial determination. You have three levels in this welcome. I think you'd agree in my hotel case if you went to a hotel at 10 o'clock said you have a room that I said yeah given the credit card you signed you go up and you'll leave at 6'30 or 7'00 in the morning

. In other words, he was proposing a sort of an amorphous definition. I wonder maybe the plaintiffs write, maybe he can't really define that. But you you you reject the Farmers Almanac analysis. I don't reject it. I don't think it's the best approach. The best approach is your. His respect, yes. I think the best approach to comply with the the remedial intention of the FMLA would be the calendar day approach. What about Judge Greenberg's point that maybe you really it's it's really a tough a tough thing to get at. Maybe there may not be a bad idea to consider the appellance view. I do think it is a tough thing to get at, but I don't think it would be fair to punt that off responsibility to the jury. But I think it seems like there's just so many factors to take into account the ability of the plaintiff to get to the hospital, the intake process whether that's delayed, whether it's a fast track, whether doctors available in the hospital to say this patient needs a bed whether somebody is here to say well now we got to discharge you or we got to keep you over for three days observation. There's so many things that go into what in overnight stay. There's also some emergency rooms. Try out as the people. You might be waiting there longer before you're seen you know and nurse face the initial determination. You have three levels in this welcome. I think you'd agree in my hotel case if you went to a hotel at 10 o'clock said you have a room that I said yeah given the credit card you signed you go up and you'll leave at 6'30 or 7'00 in the morning. You got your call most people would say you stayed overnight. I would agree with that and I would say they will certainly charge you for that. But also I don't think it can possibly make it the way that district court defined it that you have to get there before the sun goes down because the difference is you can have the identical thing in the pending upon where you were on the world you get a different result. I mean also the result is terrible. I mean to say if the sun goes down as I think it is now about 6'00 o'clock here you want to go hospital seriously injured at 7'00 and but you didn't have to stay more than one day that you didn't stay overnight. I mean I'll be in law for you. One just green beret I think that's precisely why the calendar day approach well it may be absurd and produce some absurd results in some circumstances it is the most liberal when it comes to providing for no more. Well if we reject your calendar day you know so you can check it at the hospital at 1159 and check out at 1201 you got an overnight stay. I don't think the that's going to it doesn't make much sense to me. If we reject that you have to give us some standard here. Now Chief Justice Marshall said it's the job of the judiciary to say what the law is and we want you to tell us what you think we should espouse as to what the law is when you're determining whether or not a patient has had an overnight stay. You tell us what shall we write down your position should be what? If you reject the calendar day approach I would argue that my position is using the district court analysis that an overnight stay occurs when an individual is admitted for inpatient care prior to dusk on day one and admitted after dawn the following day. That could be two minutes theoretically. Can you five minutes or ten minutes now you sit prior to dusk prior to if the calendar day approaches reject it I would argue that the district court's decision of the dusk and told Dawn approach. It's the affirmative. That depends but it's judge greeners that depends on where you are what what latitude you are in the United States. It does. It does make these people similarly situated are going to be treated differently that does make any sense

. You got your call most people would say you stayed overnight. I would agree with that and I would say they will certainly charge you for that. But also I don't think it can possibly make it the way that district court defined it that you have to get there before the sun goes down because the difference is you can have the identical thing in the pending upon where you were on the world you get a different result. I mean also the result is terrible. I mean to say if the sun goes down as I think it is now about 6'00 o'clock here you want to go hospital seriously injured at 7'00 and but you didn't have to stay more than one day that you didn't stay overnight. I mean I'll be in law for you. One just green beret I think that's precisely why the calendar day approach well it may be absurd and produce some absurd results in some circumstances it is the most liberal when it comes to providing for no more. Well if we reject your calendar day you know so you can check it at the hospital at 1159 and check out at 1201 you got an overnight stay. I don't think the that's going to it doesn't make much sense to me. If we reject that you have to give us some standard here. Now Chief Justice Marshall said it's the job of the judiciary to say what the law is and we want you to tell us what you think we should espouse as to what the law is when you're determining whether or not a patient has had an overnight stay. You tell us what shall we write down your position should be what? If you reject the calendar day approach I would argue that my position is using the district court analysis that an overnight stay occurs when an individual is admitted for inpatient care prior to dusk on day one and admitted after dawn the following day. That could be two minutes theoretically. Can you five minutes or ten minutes now you sit prior to dusk prior to if the calendar day approaches reject it I would argue that the district court's decision of the dusk and told Dawn approach. It's the affirmative. That depends but it's judge greeners that depends on where you are what what latitude you are in the United States. It does. It does make these people similarly situated are going to be treated differently that does make any sense. And that goes back to my minimum wage example. I don't know that that necessarily makes it an unfair or absurd result. Well the person that doesn't get paid as a consent was unfair. You agree with that certainly. Yeah if that if those time factors are rejected as you suggest from the midnight etc or dusk to dawn what factors do you think would be important in the judicial officer determining whether there was an overnight stay in this case. Every many case. If we were going to rely on factors I think the factors would be certainly the finding of a subsequent health condition so you know you can go in for guidance. Well I don't have the admission to the hospital for or assignment of a bed in the hospital for diagnostic testing or treatment. I would say diagnostic testing or treatment alone is not sufficient. I would say you would have to be admitted or inpatient care formal admission formal admission. Thank you. Your time is up. Thank you very much. This wasquits. Thank you Your Honours. Back to Judge Greenberg's point about the hotel. I do think you have to look at the context and hear the factors that I think would would help shape the issue. How the hospital designates the employee of the patient whether the patient is designated as inpatient the arrival time to the hospital the time the employee leaves the hospital the duration of time spent at the hospital per the district court's definition the duration of time from 5

. And that goes back to my minimum wage example. I don't know that that necessarily makes it an unfair or absurd result. Well the person that doesn't get paid as a consent was unfair. You agree with that certainly. Yeah if that if those time factors are rejected as you suggest from the midnight etc or dusk to dawn what factors do you think would be important in the judicial officer determining whether there was an overnight stay in this case. Every many case. If we were going to rely on factors I think the factors would be certainly the finding of a subsequent health condition so you know you can go in for guidance. Well I don't have the admission to the hospital for or assignment of a bed in the hospital for diagnostic testing or treatment. I would say diagnostic testing or treatment alone is not sufficient. I would say you would have to be admitted or inpatient care formal admission formal admission. Thank you. Your time is up. Thank you very much. This wasquits. Thank you Your Honours. Back to Judge Greenberg's point about the hotel. I do think you have to look at the context and hear the factors that I think would would help shape the issue. How the hospital designates the employee of the patient whether the patient is designated as inpatient the arrival time to the hospital the time the employee leaves the hospital the duration of time spent at the hospital per the district court's definition the duration of time from 5.02 pm to 7.07 am would have been 12 hours and five minutes again taking the lights at a light most unfavorable to Mr. Bontowski. He was at the hospital for more than 14 hours. So what is your view of the judges? The trial judges decision here that it was it was an arbitrary decision to adopt or to use the armors calendar and that a number of factors should have been other factors should have been used in determining whether that was an overnight stay. I think the district court's opinion respectfully led to odd mischievous results again that respectfully are inconsistent with common sense. For example in Alaska Fairbanks in July I believe the Sun sets at 11 pm and rises at 2 am and the former Almanac definition but we're not making a roll for Fairbanks Alaska. It does lead to odd results maybe that's a night circuit problem. What are we going to do with the judges decision? I mean she apparently did the best she could and she asked for help and she made a decision based on the help she got. I would respectfully believe that the judges decision district court's decision should be vacated and because there are substantial record evidence that Mr. Bontowski did spend the night the undisputed evidence demonstrates that he arrived at the hospital before midnight. The undisputed record evidence demonstrates that he was admitted to the hospital. The undisputed record evidence demonstrates that his employer viewed his stay as overnight. The undisputed record evidence demonstrates that he was there for more than 12 hours. Yeah but anyway it comes if we decide that while you're in the emergency room it does account. Anyway you cut it he was admitted and discharged on the same calendar day correct? Correct. Well this is about a hotel like Judge Greenberg's example this is a hospital. Do they consider that an overnight stay with your good in one day and the same day your discharge? One definition of impatient care is occupying a bed and have enlarging at a hospital

.02 pm to 7.07 am would have been 12 hours and five minutes again taking the lights at a light most unfavorable to Mr. Bontowski. He was at the hospital for more than 14 hours. So what is your view of the judges? The trial judges decision here that it was it was an arbitrary decision to adopt or to use the armors calendar and that a number of factors should have been other factors should have been used in determining whether that was an overnight stay. I think the district court's opinion respectfully led to odd mischievous results again that respectfully are inconsistent with common sense. For example in Alaska Fairbanks in July I believe the Sun sets at 11 pm and rises at 2 am and the former Almanac definition but we're not making a roll for Fairbanks Alaska. It does lead to odd results maybe that's a night circuit problem. What are we going to do with the judges decision? I mean she apparently did the best she could and she asked for help and she made a decision based on the help she got. I would respectfully believe that the judges decision district court's decision should be vacated and because there are substantial record evidence that Mr. Bontowski did spend the night the undisputed evidence demonstrates that he arrived at the hospital before midnight. The undisputed record evidence demonstrates that he was admitted to the hospital. The undisputed record evidence demonstrates that his employer viewed his stay as overnight. The undisputed record evidence demonstrates that he was there for more than 12 hours. Yeah but anyway it comes if we decide that while you're in the emergency room it does account. Anyway you cut it he was admitted and discharged on the same calendar day correct? Correct. Well this is about a hotel like Judge Greenberg's example this is a hospital. Do they consider that an overnight stay with your good in one day and the same day your discharge? One definition of impatient care is occupying a bed and have enlarging at a hospital. My time is outmanic. Well you just go the way you set the matter of fourth you're entitled to summary judgment if we followed your because you kept saying correctly that these facts were not disputed that they added up to an overnight stay. So you're saying that the facts are not disputed so it's just the legal implications and the court decides that. Yes sir. So you should get summary judgment. Yes, Your Honor. Ms. Waswa, thank you very much. Very interesting and so much difficult case. Thank you both for your arguments. We'll take it on your advisor. Thank you very much.

We're the first case on Kowski versus Oberg Industries. Ms. Waskowitz? Yeah, I pronounce that right? Waskowitz. Yes, thank you. Okay, thank you. Please. Good morning, Your Honors. May please the Court. My name is Tiffany Waskowitz. And I represent a palant Jeffrey Bonkowski. At this time, our both went is, I would like to respectfully request three minutes of her bottle time. Yes, it's free. Thank you, Your Honor. In this case, there's sufficient record evidence that the fact finder may reasonably find that Mr. Bonkowski had a serious medical condition. IE, he underwent inpatient care when he stayed overnight at the Butler Memorial Hospital in November 14, 2011, to November 15, 2011. You're taking the serious medical condition statutory and the staying overnight is by rule. So you're emerging them together. Your Honor, actually what I'm looking at is the FMLA defined serious medical condition under 29 USC 2611, 11, in one form as inpatient care at the hospital. The regs define it inpatient care as an overnight condition. So respectfully, I'm looking at the statute is defining it as inpatient care. And then the regs defining inpatient care. Let's see the problem in the cases. What is an overnight stay? Correct, Your Honor. Is that fairly accurate? Yes, Your Honor. And that's where you and the adversary in this case were, Hobberg differ. Yes, Your Honor. Well, why should we reverse the district court when you yourself have failed to offer an interpretation of what overnight stay actually means? You've been defined what it means. Your Honor, with respect to what an overnight stay means, I, a totality of the circumstance test would be best served to affect the remedial purpose of the FMLA. The question was, did you present that to the district court? I indicated to the district court. Did you present any, any option to the district court? I, I presented the totality of the circumstance test. Well, that's no standard. That's, that's no standard totality. You have to have a definition. And you never presented any standard definition by which a jury can guide what an overnight stay is. What is your position? I just stand for us today. How, how, how would we instruct the district court to charge a jury what an overnight stay is? Whereas I would say look at the totality of the circumstances and consider such factors as how the hospital designated the individual, the arrival time of the individual to the hospital, the time the individual left the hospital, the duration of time spent at the hospital. Would you say minimally it requires admission to the hospital? I would not your Honor. You would not? No. You mean you could sit out in the waiting room and spend a couple of hours there and then be seen by a doctor in a room released and that's an overnight stay? Well, I would say that it requires at least occupying a bed at the hospital. Whether that's considered admission or not is a medical complexity that depends on the situation in which person goes to the hospital. I think that's one of many factors. In this particular case, Mr. Pankowski was admitted into the hospital. He was designated as inpatient. The district court itself acknowledged that he had an inpatient care. And Pendex, page 19. Is this really such an obligation? Does any court in this country address what an overnight stay is for any purpose? My adversary brought up this case of the state, the landers, the levy. I would in which overnight stay for purposes of Medicare statute or three days admission was defined as formal admission. It was defined as what? Formal admission. Formal admission. However, in that case, Well, you could be formally admitted in the morning and released in the evening. Sure, I believe this case is distinguishable from that case because in a state v landers, there was an agency interpretation of what inpatient meant, which was given per space of weight. In addition, in a state v landers, inpatient was not defined. Here inpatient is defined. Inpatient is defined in the regs, 829 CFR, 8285.114 as an overnight stay in the hospital. There's no temporal limitations placed on that. I'm trying to get out. What is an overnight stay? An overnight stay is different in the, known Alaska than it is in New Orleans, last of New Orleans. So it can't be that the overnight stay is very amorphous term. But beyond that, my question to you is this, you say the jury should be charged the totality of the circumstances. That's your position, right? Yes, Your Honor. Well, that can't be because you can have two patients with exact same facts. And one jury could say is overnight stay in the other jury could say it's not overnight stay. And this is not the function of the law. The law is that people in similarly situated should be shredded through the same, and differently situated, usually differently. So once again, I ask you, how do you define what an overnight stay is? If the totality of the circumstance test is rejected, then I would define overnight stay as time of arrival at the hospital and time of departure. And so long as the arrival occurred prior to midnight, and in a departure occurred after midnight, that would constitute an overnight stay. So you could have a 30 minute. Overnight stay before the night entry or accepted as impatient, released just after midnight. According to that definition, that is why I do prefer. Why? It doesn't seem to make sense. Why does Congress require this overnight stay per? Why do we have this overnight stay per vision? What's the purpose of it? Your Honor, I believe the overnight stay purpose is to protect against, to provide a situation where an employer sick, leave policy would not account for an overnight stay. It helps define, doesn't it, what a serious health condition is? Yes, it does. Okay, so it's pegged to that, isn't it? So it would seem that it's to avoid these brief going to the hospital and out. It's to ensure that there's some seriousness in the employees injury, so that that person would qualify for the family and medical leave. Would you agree with that? I would agree with that. Well, your example doesn't work, does it? My example with arrival time and departure time, there would be a potential for somebody to arrive at the hospital at 11 to 30 pm, and then leave at 1 a.m. What doesn't seem fair though is that in a known, poor Frank, it's that place in Alaska, Fairbanks. Fairbanks, that's the one. It would seem that the closer you are to the Arctic Circle, the more likely is you are going to be deemed to be impatient, because the night is only about two and a half, three hours. But in Western Pennsylvania, it ends up being about eight or nine hours. Well, Your Honor, that was one of the contentious I had with the District Court's definition of dusk to dawn. Your whether you have an impatient stay would depend upon time of year, geography, so on and so forth, and interpretations that lead to odd and... That highlights the inequity, but again, perhaps more to Judge Cowan's point, how do you justify getting this entire issue to a jury? Why should we adopt that sort of rule? The statute does say in patient care, District Court indicated he had an impatient care, say, in appendix 10. Per statutory construction under disabled action in PA, the South Eastern PA Trans Authority, 539 F3199 210, third circuit 2008, we assume, for example, that every word and a statute has meaning, and avoid interpreting one part of a statute in a manner that would render another parts perpless. If the FMLA defines, because the FMLA defines serious medical condition as an impatient stay, the District Court itself defined Mr. Bockowski stay as impatient. My argument would be a definition of serious overnight stay that rendered the impatient prong of serious health conditions for perpless would be at odds. But serious health condition is traced in a statute itself. Is it for Judge to determine what a statute means? Is it as your honor? Rather than a jury? And the Judge did indicate it was an impatient stay. An appendix 10, she just recorded stated that the comprehensive testing that was performed as a result of Mr. Bockowski's inpatient care did not find any complications with his heart diabetes. That's appendix 19. The District Court did qualify Mr. Bockowski's stay as impatient. But he wasn't there for, he wasn't there overnight. I would respectfully disagree. Well, he was there for 24 hour period, wasn't. No. Okay. And he wasn't there under any definition that you have given us that is going to make any sense in Fairbanks, Alaska, and in Louisiana. So how is the overnight stay? You're not including in that when he was in emergency room. Are you? Yes, I am. Well, emergency room, you're not admitted for overnight. Emergency room does account toward overnight stay. In the overnight stay regulation does not say time of admission. It does not put a temporal expiration date on it. Does overnight stay? I know, but in a hospital, you're not you're not stamped as admitted when you're in the emergency room. And you could be admitted later on if you got an emergency room. But you're not admitted to the hospital while anytime that you're in the emergency room. I would agree, but overnight stay does not indicate it's time of admission. So you're counting the time he's sitting in the emergency room? Yes, I am. The time of arrival. That's a question. How long was he in the hospital? He was at the hospital taking the facts in a light most unfavorable in Sponkowski. He was at the hospital for at least 15 hours. 15 hours? Yes. You know, some hospitals have a policy. Leave me on an expert on hospitals. I'm trying to figure out where that emergency room is. You mentioned you could get in at 130 and leave at 11, 30 and leave at 11, I'd like to find out where that is. But anyway, the, but some hospitals have a policy of requiring before you admitted that you'd be in the emergency room. And I have to remember from experience, the physician who circumvented that said, no, you don't have to go to the emergency room. Although it was obvious it was going to be a stay. And yet it did involve, it didn't involve the emergency room, but it would have one normally. So sometimes the emergency room, you would affect or in the hospital. You know, it's a prelude. So it's important. And people look at the observation time in the emergency room, as if you were formally admitted later, that time will come because you were admitted. What you're being asked is this. What the judge is in effect is saying is, look, a jury can say, you can say, I got there at nine o'clock, the employer is saying, say, I didn't get there and he didn't get there at 10 o'clock. Okay. A jury can resolve that question. It, that you could be, a jury can be given in a regulatory. But what they're saying is that you want them to resolve a legal definition. And there is no legal definition. Now, if you went, if, if I went to a hotel at 10 at night, and I was in a city, and I intended to go home, but I didn't. And I went to a hotel and said, you have a room. It's dark. It's past sunset. And they said they do. And I took a room and said, I want to leave a wake up call for 630. And they call me at 630. I had breakfast, paid the bill and left. In my opinion, that would be an overnight stay. But it's less hours. You have to look at the context too. I think most people would agree I stayed overnight. But yeah, I don't know if it's different in the hospital. Yeah. It's actually a good point. Thank you. We'll get you back on our button. Thank you, Your Honours. Is the car good? I'd actually like to follow up on this. But I think it's a point that was being made by Judge Greenberg. Yes, it depends who you ask. What an overnight stay is. If you go down the street, they're brought in market and take a survey. It's overnight. Well, you know, I just kept there when I got there and I wake up in the morning. That's overnight. But the judge in this case said overnight is you got to get there before sunset. And you have to stay there until sunrise. Nobody would answer that way. Well, I think that's precisely why the court needs to decide what exactly is an overnight stay. So that a jury can apply the facts to a standard. When you're a standard, what is your definition of an overnight stay? Sure. I think there are two plausible definitions. The first is the definition that we advanced. It's a state that begins on one calendar day for purposes of admission as an inpatient to a hospital and extends to a second calendar day. Well, I can't be. You should be admitted the one minute before 12 in this charge. A minute after 12 and you have an overnight stay. That that could be. That doesn't make any sense. Now, now I think that is the more liberal approach. And if we're looking at the remedial purposes of the FMLA, that's actually I think the approach that is is easier to comply with for an individual being admitted to the hospital. Well, what would you say about my guess? I can tell you some hospitals do insist that you go through the emergency room before you admit it. You're not admitted during the emergency room at 930. You know how it could be in an emergency room. You can wait forever, it seems. And then, ultimately, they admit you, but it's one of the morning. Could that be an overnight stay if you stay and talk to one the afternoon? I mean, and you're in the hospital. If the hospital has a policy that they just look at you and put you in a room, should it be a different result? It's a very no-morphous term. It is. And I believe the- What's your second definition of the second one is why? The second one is the position adopted by the District Court in this case. And that is from sundown on day one until sun up on day two. That also can't fly because depending if you're in Fairbanks or Alaska, Alaska, you have an overnight stay, it can be three hours. And if you're in Louisiana in July, it means you have to be there for 16 hours. So that doesn't make any sense either. Also, if you're depends on whether it's winter or summer if you're in Fairbanks, if it's winter, it's a very short period where there's light. This is summer, it goes on and on. Three hours overnight, Fairbanks. It is. So what do you- If we reject those two possibilities that you've mentioned as not reasonable, what do you suggest should be the rule as to what is the definition for a jury to determine whether or not a patient had an overnight stay? I think the definition has to be that the individual be admitted as an inpatient in calendar day one and discharged at the earliest the next day. I can be two minutes, I can be three minutes. And if I could address that argument, there are other statutes that have what may be an unfair result. For example, the minimum wage, minimum wage is set at 725 and that applies to employees all over the country regardless of location. 725 goes a lot further in rural Pennsylvania than the New York City of Philadelphia. That doesn't mean that we shouldn't have a specific definition of an overnight whether it has the result of having a three hour time period in Alaska. I think that the guidance to your point Judge Greenberg, I think the guidance that the Department of Labor has provided when it comes to the emergency room aspect is that it has to be in patient care. In another context, Medicare specifically, inpatient care can only be received by an inpatient. So you have to be admitted as an inpatient under your formula? Yes, sir. I think that he was not admitted. He was not admitted as an inpatient until after midnight. Oh, but he was admitted. He was after midnight. And I know that you first you have to be admitted and they have to stay in hospital long enough and overnight stay. So that it would be an overnight Yes, sir. Well, if I understand your argument correctly as I understand it, your position is you don't have a position what the exact definition of an overnight stay is. But whatever that definition is, the plaintiff or pellant in this case doesn't qualify for any definition. Is that your position? I think the best position is the calendar day approach. That said, under either approach calendar day or from dusk until dawn, the the appellate area was covered. Can calendar day can then mean about half an hour though? It could. But as just but we're thinking of the equities of the situation, it just doesn't seem equitable that that person would would qualify for having a serious health condition, but somebody who's in the hospital for 13 hours and the dusty door formula would not be. Unfortunately, I think Congress answered that or I'm sorry, the Department of Labor answered that question for us when they required an overnight stay as opposed to an hour requirement by by interpreting the definition of inpatient care and in the portion of it that requires an overnight stay to require an hour requirement. The focus is on a serious health condition, right? And I would imagine that's the prevent frivolous cases and frivolous assertions so that one can get under the family medical leave. Certainly. Certainly agree with that. Absolutely. I do have a case here that it's a victorality familiar with. I am. Judge Roth in our court and this is presidential opinion. How about a material fat question as to whether employees ulcer with a serious health condition precluded summary judgment? No, I know that dealt with the precise injury, but it did it allowed the jury to consider that issue. It did and I want to ask you which is point does that mean you should be a jury question? The difference between these two cases is in that case that the jury was charged with determining whether or not Ms. Victor Reilly's condition was either a minor ulcer excluded from coverage or was a serious health condition included from coverage. They were charged with weighing the facts as to whether or not it met the threshold that was already defined. She had the continuing treatment. The exception is that the FMLA excludes minor illnesses. Does it matter that the focus in that case was serious health condition as it is in this case? Serious health condition in both cases. It is. I think it does not matter for purposes of resolving this case because the serious health condition can be resolved in two ways. You could have inpatient care and you can also have continuing treatment. So Congress, the Department of Labor, Department of Labor specifically allows for a condition in which there may not be in patient care but only requires continuing treatment. Unfortunately, in this case, the appellant doesn't meet either definition. Well, this act is supposed to be literally construed. Do you agree with that? I do. And there's nothing in the act itself that says that in patient care excludes the top of your in the emergency room waiting to be admitted. There is nothing in the act that defines serious health condition to exclude that. That is correct. So that if that's included and we have no regulations from the Department which said that we could give difference to Chevron Deference says that's what the Department says. Then even under your definition, the plaintiff will hand over that today. I disagree. And the reason I disagree is I think we do have a regulation. The regulations specifically requires inpatient care. And to be an inpatient and to receive inpatient care, you have to be admitted to the hospital as an inpatient which would exclude time spent walking into the hospital sitting in the waiting room for emergency room services. If I am going to this is about the Pennsylvania. If I have a very serious injury, let's say I'm in a car accident, a very serious injury. And I am picked up by an ambulance. And now this is about 430 in the afternoon. Now I got to get to a hospital. I can't get to a hospital. There's a 45 minutes later now. It's 515. That's after sundown. Now I get to stay in the hospital in other 16 hours, but that would not be a serious medical condition. Under the district, I just formula here. The cause I got to the hospital after sundown. That is that's what we under the under the inpatient care provision that that would be correct. However, assuming you have a serious health condition that requires medical treatment which you are flighted, it seems to me that you will likely qualify under the continued treatment definition. Well, but I wouldn't qualify under this for charges condition. I formula here, would I? No, not for purposes of determining whether or not there was an overnight stay. Okay. Well, you know, the question, I'm not trying to be funny, but one just a Supreme Court said he couldn't define pornography, but he knew it when he saw it. And I just wonder what it was. In other words, he was proposing a sort of an amorphous definition. I wonder maybe the plaintiffs write, maybe he can't really define that. But you you you reject the Farmers Almanac analysis. I don't reject it. I don't think it's the best approach. The best approach is your. His respect, yes. I think the best approach to comply with the the remedial intention of the FMLA would be the calendar day approach. What about Judge Greenberg's point that maybe you really it's it's really a tough a tough thing to get at. Maybe there may not be a bad idea to consider the appellance view. I do think it is a tough thing to get at, but I don't think it would be fair to punt that off responsibility to the jury. But I think it seems like there's just so many factors to take into account the ability of the plaintiff to get to the hospital, the intake process whether that's delayed, whether it's a fast track, whether doctors available in the hospital to say this patient needs a bed whether somebody is here to say well now we got to discharge you or we got to keep you over for three days observation. There's so many things that go into what in overnight stay. There's also some emergency rooms. Try out as the people. You might be waiting there longer before you're seen you know and nurse face the initial determination. You have three levels in this welcome. I think you'd agree in my hotel case if you went to a hotel at 10 o'clock said you have a room that I said yeah given the credit card you signed you go up and you'll leave at 6'30 or 7'00 in the morning. You got your call most people would say you stayed overnight. I would agree with that and I would say they will certainly charge you for that. But also I don't think it can possibly make it the way that district court defined it that you have to get there before the sun goes down because the difference is you can have the identical thing in the pending upon where you were on the world you get a different result. I mean also the result is terrible. I mean to say if the sun goes down as I think it is now about 6'00 o'clock here you want to go hospital seriously injured at 7'00 and but you didn't have to stay more than one day that you didn't stay overnight. I mean I'll be in law for you. One just green beret I think that's precisely why the calendar day approach well it may be absurd and produce some absurd results in some circumstances it is the most liberal when it comes to providing for no more. Well if we reject your calendar day you know so you can check it at the hospital at 1159 and check out at 1201 you got an overnight stay. I don't think the that's going to it doesn't make much sense to me. If we reject that you have to give us some standard here. Now Chief Justice Marshall said it's the job of the judiciary to say what the law is and we want you to tell us what you think we should espouse as to what the law is when you're determining whether or not a patient has had an overnight stay. You tell us what shall we write down your position should be what? If you reject the calendar day approach I would argue that my position is using the district court analysis that an overnight stay occurs when an individual is admitted for inpatient care prior to dusk on day one and admitted after dawn the following day. That could be two minutes theoretically. Can you five minutes or ten minutes now you sit prior to dusk prior to if the calendar day approaches reject it I would argue that the district court's decision of the dusk and told Dawn approach. It's the affirmative. That depends but it's judge greeners that depends on where you are what what latitude you are in the United States. It does. It does make these people similarly situated are going to be treated differently that does make any sense. And that goes back to my minimum wage example. I don't know that that necessarily makes it an unfair or absurd result. Well the person that doesn't get paid as a consent was unfair. You agree with that certainly. Yeah if that if those time factors are rejected as you suggest from the midnight etc or dusk to dawn what factors do you think would be important in the judicial officer determining whether there was an overnight stay in this case. Every many case. If we were going to rely on factors I think the factors would be certainly the finding of a subsequent health condition so you know you can go in for guidance. Well I don't have the admission to the hospital for or assignment of a bed in the hospital for diagnostic testing or treatment. I would say diagnostic testing or treatment alone is not sufficient. I would say you would have to be admitted or inpatient care formal admission formal admission. Thank you. Your time is up. Thank you very much. This wasquits. Thank you Your Honours. Back to Judge Greenberg's point about the hotel. I do think you have to look at the context and hear the factors that I think would would help shape the issue. How the hospital designates the employee of the patient whether the patient is designated as inpatient the arrival time to the hospital the time the employee leaves the hospital the duration of time spent at the hospital per the district court's definition the duration of time from 5.02 pm to 7.07 am would have been 12 hours and five minutes again taking the lights at a light most unfavorable to Mr. Bontowski. He was at the hospital for more than 14 hours. So what is your view of the judges? The trial judges decision here that it was it was an arbitrary decision to adopt or to use the armors calendar and that a number of factors should have been other factors should have been used in determining whether that was an overnight stay. I think the district court's opinion respectfully led to odd mischievous results again that respectfully are inconsistent with common sense. For example in Alaska Fairbanks in July I believe the Sun sets at 11 pm and rises at 2 am and the former Almanac definition but we're not making a roll for Fairbanks Alaska. It does lead to odd results maybe that's a night circuit problem. What are we going to do with the judges decision? I mean she apparently did the best she could and she asked for help and she made a decision based on the help she got. I would respectfully believe that the judges decision district court's decision should be vacated and because there are substantial record evidence that Mr. Bontowski did spend the night the undisputed evidence demonstrates that he arrived at the hospital before midnight. The undisputed record evidence demonstrates that he was admitted to the hospital. The undisputed record evidence demonstrates that his employer viewed his stay as overnight. The undisputed record evidence demonstrates that he was there for more than 12 hours. Yeah but anyway it comes if we decide that while you're in the emergency room it does account. Anyway you cut it he was admitted and discharged on the same calendar day correct? Correct. Well this is about a hotel like Judge Greenberg's example this is a hospital. Do they consider that an overnight stay with your good in one day and the same day your discharge? One definition of impatient care is occupying a bed and have enlarging at a hospital. My time is outmanic. Well you just go the way you set the matter of fourth you're entitled to summary judgment if we followed your because you kept saying correctly that these facts were not disputed that they added up to an overnight stay. So you're saying that the facts are not disputed so it's just the legal implications and the court decides that. Yes sir. So you should get summary judgment. Yes, Your Honor. Ms. Waswa, thank you very much. Very interesting and so much difficult case. Thank you both for your arguments. We'll take it on your advisor. Thank you very much