Legal Case Summary

The Honourable, the judges in the United States Court of Appeals for the Fourth Circuit. Oye, Oye, Oye, Oye, Oye, all persons having an honor or form a sentence or for the Honourable. The United States Court of Appeals for the Fourth Circuit are mind-straught and I and give their attention to what the Court is now sitting. So I said the United States in this Honourable Court. Thank you. Please be seated. Good morning and we would first like to thank Charlotte School of Law and Dean Connison for this gracious hospitality to us and a word of congratulations to Stacey Cargyle who might understand one a writing competition featuring some of our cases today. Thank you. We will begin with Dr. Fried versus Tumi Miswakar. Good morning, may I please the Court Helgi Walker for Appellant Tumi Hospital with the Court's permission I've reserved five minutes of my time for a little. Tumi Hospital is a nonprofit charitable institution and the only hospital in the low income medically underserved community of Sumter South Carolina. The $237 million judgment entered against in this case is not only fatally flawed as a legal matter but it will bankrupt the hospital. As an initial matter there never should have been a second trial when the false claims act in this case. Even though all agreed below that rule 61 requires a finding of prejudice before a new trial order can be granted that finding was literally never made and it cannot be made. The 17th is an initial first opportunity to raise that issue. Correct. The Court denied in our locked inventory review. Yes. And so the new, the prejudice finding that would be essential to any rule 61 compliance is impossible even to make now by this court because the 17 pages of Mr. Martin's deposition testimony out of the 50,000 pages of documents and evidence that the government submitted in this case was relatively insignificant and cumulative of other evidence that had already been submitted back. About the fact that Mr. McAnady did not allow to testify first of all. Government did not appeal judge Perry's decision. They didn't have to. I suppose it be decided that the grant the motion for new trial based on the exclusion of the deposition exists. It's not before you judge the as they've not appeal

. But I just probably because this is the first strange case procedure because the government got really for this issue with respect to the deposition excerpt. Their position is that it's just not the excerpt. Also the testimony of this witness that was critical. They're being able to show knowledge and but the affirmative defense of the vice counsel. The issue that is before this court is our appeal of judge Perry's order granting the new trial. Judge Perry's order was predicated on the exclusion of the 17 pages of the Martin testimony. Not unackening. Other side did not appeal. What you mean is they didn't cross appeal. They didn't cross appeal. That's correct. Yes. And not there wasn't appeal based on the to judge Perry or to this court, but to this court it didn't appeal. Which they would have to do. They did not raise it. That's the issue. It's not for us in terms of the testimony that ultimately did come on. It's the testimony of Martin. We're talking about exactly right judgment. Was that the only testimony basis for granted the new trial? That was Judge Perry's only basis for granting the new trial. He stood by his exclusion of the 17 pages. Well, he's accused that there is a very, do you was a very dear friend and I'm not trying to describe it in any way, but it this seems as though of some confusion as to what he had actually excluded. He had actually excluded. It was certainly the Martin testimony and then there was confusion below about whether it was only the 17 pages or the entire Martin submission, but it was very clear judge when and the record shows this that July 13th hearing shows that that judge Perry stood by his ruling on Maconany. He said, I am not concerned about that. Can we please counsel turn to the one I am concerned about? And that was Mr

. Martin and it bears emphasis that that 17 pages was the... Did that only say that I'm not concerned about Maconany? He says before sugar can handle that, they have to get to it. And it's never has been raised to this court in a proper procedural posture. And so what we are reviewing is Judge Perry's ruling on the new trial based on Martin, those 17 pages, even if there was error, was simply not prejudicial. And the ultimate result is important to remember the practical consequences here. To me one, it had a zero dollar verdict under the false claims act that new trial order opened the door to a $237 million judgment that is going to put our client out of business. If we agree with you, if we find the district court abused its discretion in granting a new trial and I think you were getting to this. What happened to them? We would ask you respectfully to reinstate the verdict from the first trial. This court has that award. In the $44 million award of that political damage just because I don't see how you can get the false claims act reinstated without the stark law special in the run for the trial. So we think the interrogatory is flawed for many of the reasons you heard in our first appeal of this matter. But certainly if the new trial order is reversed, then the first jury verdict would be reinstated. There wasn't a jury verdict. At least with respect to the damage component of the stark law claim, Judge Perry entered that award on his own. And that was the reason why we reversed that decision. Yes, Judge Diaz, I'm referring to the judgment that is on appeal now. The second jury verdict on the false claims act, the second trial that we're up here on today. The first jury verdict would be reinstated, but Judge Duck in your right, we still have these equitable claims and what should the court do about those. We would ask the court in the interest of finality and repose to make clear to the district court again on remand that the equitable claims are actually not available because the false claims act provides an adequate remedy at law. But if this court were not willing to address that issue proactively, we would be willing to litigate that below the equitable claims. But we think that they can't just be automatic liability on the equitable. Why not? Because we reversed in our first remand on the ground that there was no jury verdict to provide the constitutional underpin for the equitable award. Why doesn't the jury verdict that we have now supplied that? Three reasons, Judge Duncan. First of all, as we argued below and we argued in the first appeal, the false claims act provides an adequate remedy at law

. The fact that the government didn't win its false claims act, PACE doesn't mean that that's not an adequate remedy. But there, but there, if you know remedy per se under the stark law without the false claims and the hysterics, isn't the false claims act the vehicle by which one recovers under stark law? That's exactly correct. And that's why this case is so convoluted because the government has bolted the false claims act onto the stark law. You're actually never supposed to be in court. You're supposed to be in front of the agency for a violation of the stark law. But getting back to your question, Judge Duncan, another reason why the equitable claims shouldn't be available on remand is that the government would at least have to be put through its paces of showing the elements of those equitable claims. Let's consider, for instance, their mistake of fact count five. The stake of fact has particular traditional elements under state law. For instance, the government would have to show that it actually continued paying our invoices. And it was actually under the mistaken belief that they complied with the stark law. We think that's impossible to show after 2008, when the United States filed its complaint in this very case. So whether you agree with that or not, the point is there are elements of these claims that need to be shown consistent with due process. Those were never presented to this jury. The jury that the enter into the verdict that false claims act. You're on or on the verdict that we are now on appeal on? No, that case was only about the false claims act. The equitable claims were held in a band, pending the new trial and our trip up to this court today. So your position is there should be a third trial? No, Your Honor. As I said to Judge Duncan, we would ask this court to reverse on this black letter rule 61 error and thereby avoid a lot of other. Well, we don't agree with you, though. Do you think the government has a remedy and equitable remedy for the event? As I was saying, we would actually ask this court to reach out and preemptively address this question of what becomes of the equitable remedies to avoid even further confusion in this case, which has suffered from a fair amount of confusion. But if you're not willing to do that, we would be willing to take a remand on the equitable claims, but the government should be put through its pieces to actually prove those claims. And on what basis would be breached out and proactively address that issue? Are you saying that it's a pure question of law? It is a pure question of law, whether the equitable remedies can somehow be automatically granted to the government on a remand when it's not actually proven the elements of that case. It's within this court's power, as you did in 2-me-1, to clear up some questions of law to try to help the proceedings on remand go more smoothly. But the equitable remedies of war didn't come out of thin air. It was clearly taberned to the jury's finding that there was a violation of start-law, even though no damage was found under false claims. Yes, Judge Duncan, and that was going to be my third reason for why there can't be automatic liability under the start-law

. If you agree with us on Rule 61 and we go back for more proceedings on the equitable claims, we think the start-law finding was woefully inadequate. The jury just checked a box that said to me, violated the start-law. We don't know how many claims violated the start-law. We don't know which doctors treated them. We hadn't gotten to that, believe it. It was equally cursory finding with respect to the false claim sac that you want to revive. The court just found, the jury just said, no, there's zero under the false claim sac. There was no more supportive ration now for the false claim sac finding. Was there the start-law in the auditorium? No, but the start-law has a lot of complicated elements that just were never found below. For instance, who was the referring physician? The government never proved that. Why would it be the government's burden to prove that? Don't the governing regulations require the health care provider to provide the name and referring physicians. I had a question about that because as I read the regulations, that is an obligation imposed on the government. The government's forms don't include a box for that. The government, importantly, in this case didn't even submit a single claim that we submitted. There's not even actual claim in evidence here. It was difficult to understand who even the referring physicians supposedly are. You would think that with a quarter of a billion dollar jury verdict, the government could be bothered to put in evidence of one claim that we pay. There's not one UB form in this entire record. Although that seems to be somewhat a responsibility of yours as well, given that they're facing this verdict and you have an obligation to, as I understand, to provide that information. With respect what Judge Shedd said, for instance, in Harrison 2, is that the burden of proving damages is on the government. So 2 is the burden of proving liability for a false claim. The 8th Circuit in the Controcessor case said in a similar situation, that government has not put in evidence of one claim to the extent they're going to rely on the UB forms, has not put in evidence of one claim. At least they have to provide one representative example. It's simply saying it's not to a burden of proving a case against yourself putting evidence that would show you committed violation. Correct, Judge, when all the we don't think we made a violation, the government is prosecuting this case under the false claims act, which is an extreme remedy for a start-law violation. The primary remedy is supposed to be administrative, and if the government wants a refund, gross damages, if you will, they could have invoked that administrative process

. But by bringing this under the false claims act, they are ratcheting up the liability to a ruinous, grossly disproportionate result. There's no dispute though that the forms indicated, identified a position either as an operating position or as an attending position, and that those positions were in fact included those who have signed these contracts. Right, of course, the only problem is that you say is there's no link to showing that they were the actual referring position. That's what the statute actually requires is that a doctor with the financial relationship makes a referral, but the ultimate problem on the start-loft I might, in my limited time, is this. The jury never got the instruction that this court clearly delineated into me one, so we can debate the meaning of the start-law, we can debate what's required. In the opinion for this court, Judge Duncan wrote that the question on remand for the jury was whether the contracts on their face varied with the value or the volume of the referrals. Judge The harm, your honor, is that the jury was allowed to find a stark violation based on intent alone, and that certainly is not what this court intended when it broke to me one and handed those instructions down to the district court. I'm not sure about that. I mean, intent is relevant, obviously, to the false claims act case, and I think what we meant by on its face was, I guess two ways to violate the start-law, one, you generate or create a contract that on its face is simply not consistent with the law, or you have a patiently valid contract in which in operation is imposed violation of the law. So I don't see the facts of this case, don't seem to suggest that either one of those things, at least the latter didn't happen. Judge, when we will never know what the jury we light up, they never... I'm sorry. I'm sorry, because yeah, as I do know that, it's in this new environment. We will never know. That is the problem, because Judge Seymour refused to give that instruction surely the court meant that some different instruction that had been given the first time what the intent was. Well, as the person who wrote those words to me, let me intervene here. We were responding with respect to that language to Tumey's argument that subjective intent is from. That's because the opinion is replete with constructs that make it clear that it wasn't to be viewed literally as a requirement, I think. We weren't just clarifying in response to the argument for developing the language of change. Exactly right. And so I think what the court was trying to make clear if nothing else was, as the court said, that intent alone is not sufficient. And because Judge Seymour never even tracked language of Tumey one, she gave the same instruction that Judge Perry gave, it is possible that the jury did rely on intent alone. We will never know. And because of that possibility, that's the ultimate problem on the start line

. I believe that language pretty much is unit. I'm looking at it when the court instructed that the question would probably be put to the jury because whether contract owned their base took an account without even participating in the girls. And I do recall you indicating that you specifically asked for that instruction. And I appreciate the rationale and the basis for that that's being given here today. But in my view, that set even if it's not technically the way it should be is the law of this case. And maybe the reasons and rationales that are given here today are reasonable. But nonetheless, the law of this case is set right here in front of you. I got to agree with you on that. I don't know how we can get around that. Yes, Judge. When we asked rigorously for the district court to follow that advice, the government argued to Judge Seymour that that language was quote the mistake. Well, that certainly is not the law of the case. If it is sufficiently ambiguous. Right. I guess the point is done. And it must have meant something different. We can perhaps talk about what I think was exactly. It means that you can't you don't use on the basis of intent alone. Correct. And because the jury was never told that it is a possibility. We think probably a reality that the jury did find a stark violation based on intent alone. That there's a major... There was a tremendous amount of other evidence based on the contracts themselves about the relationship between compensation and reforms. There was a lot more here than simply intent

. So the problem with a general verdict like this when the government advances multiple theories of liability is your question is getting to Judge Duncan. They deduced evidence of intent. They deduced some other evidence. They deduced they brought forward some other theories. When we have a general verdict that's based on multiple theories of liability and one theory is legally erroneous. Then the entire verdict must fall. This court most recently said that entire engineering Judge D.S.U wrote separately to reinforce that point vigorously. If any one of these theories is wrong and the intent theory is out there because Judge Seymour never gave any limiting instructions than the entire verdict on the stark law has to fail. I don't understand that there was a plethora of evidence that the physician's face salary varied with net cash collections and included the productivity and bonus incentive payment. And which on its face suggested that the physician is receiving more than fair amount of value. I don't it's hard for me to see how you can suggest that the violation of the research was not there isn't more than the evidence to support the conclusion that the violation was based on the action for based on one of the so I'll answer that in two parts because we don't know what the jury did. They could have found a violation based on intent alone and that is enough to render the verdict invalid. But going to your second to going to your point Judge Duncan the stark law expressly permits a productivity bonus that is based on the doctor's own collections where they are personally performed services and not facility fees. And if we look at the language of the actual contracts here at Joint Appendix 4172 they say that the salary shall be adjusted based upon the doctor's collections. That is explicitly permissible under the statute itself 1395 double NETU says a productivity bonus based on the services provided by the doctor him or herself is not does not run a foul of the of the very understanding. What about the fact that the tied into that top of typically bonus was an exclusivity provision that required these doctors performed their services at the hospital. The evidence did not show that respectfully Judge Diaz. We think it showed that that material was never used in actually setting the compensation. But even if you think there's a basis for us. I don't understand that. What do you mean that that material was never used? That was part of the contract, right? We was not part of the contract and that's what our expert Ms. Sikoni testified. The government tried to get her to say that she used that but she was really disregardless succumbed and evidently did. And the facility fee covered, as I understood it, the facility fee of the outpatient charges covered was decided to cover also the related facilities cost of the provision of services beyond the specific procedure performed by the decision

. We think the evidence does not support that conclusion. But even if you felt that there was sufficient evidence for a stark law violation, the government still had major problems under its false claims act theory, which are twofold. There is no false statement here within the meaning of circuit precedent. Brown and Rue, Judge Wilkinson said that to have a false statement, to have something be false, it has to be a statement of fact that can be a judge true or false in an empirically verifiable way. We think there is no objectively false statement here. This is a difference in interpretation arising out of a disputed legal question. Notably, Judge Perry gave us that instruction the first time around and Judge Seymour refused to do it. She left out an entire strand of this circuit's jurisprudence on what can be fairly characterized as false in a false claim's act case. Secondly, the government sought gross damages. They sought essentially the discouragement remedy that would have been available to them in the administrative proceeding. Again, circuit precedent stands directly in their way. Harrison 2 says that under the false claim's act, damages means damages. It means your actual loss. And the argument that the relative made there was that because the contract was void ab initio, the contractor had not complied with core vitting eligibility requirements, they should give back every dollar that the government paid. Judge Shed writing for this court said, no, the government has to show that they paid more to that contractor than they would have paid to somebody else. And failing that kind of evidence, there were no actual damages in Harrison 2. Well, then there's never going to be, there's never going to be an award if someone receives some services, even if the claim violates false claim's act. And I'm pretty distinctly remeber defining false into me one, to mean the statement for services, a statement in violated the false claim's act. The start point. Start point. Well, that wasn't a holding of the court. And we think that this court certainly would have to look at Brown and Root in Harrison 1 and circuit precedent definition of the fact that a difference in interpretation arising out of a disputed legal question, which is what we think the parties have here. Excuse me, here. It was not a holding. It was not a holding of the court. Was it necessary to the decision of definition? The fall city of the statements I don't think was now perfect

. For purposes of the start law. No, because that wasn't the first appeal was not about the false claim's act. It was just about the start law. It was the entire thing. Yes. The basis was the effort. It wasn't false claim. Yes. I am. So you need a definition of false for the effort? That's right. But we need it now because we're appealing the verdict under the false claim's act. So I think you need it for the start call. Because fall city objective fall city is not an element of a start law violation. It's a core requirement of a case that alleges fraud on the United States under the false claims act. Suffice to say that Brown and Root is I think a major impediment to the characterization of this dispute even as properly brought under the false claims act. And again, Judge Perry gave us that instruction. Judge Seymour refused to do so. We also think I was getting to this that the damages is inconsistent with Harris and two. Judge Duncan, you said that would mean that there would never be any damages. You might want to consider making that argument on I will. So sorry responding to questions and we're picking you after. I'll sit down. Thank you. Thank you, Your Honor. May I please the court on Tracy Hillman on behalf of the United States. Your Honor's this case is about sweetheart deals that benefited to me hospital and 19 select doctors at the expense of the Medicare program and thousands of beneficiaries who had to pay more for medical services because they had nowhere else in town to go

. Now that type of deal is exactly what the start law was directed to prevent and to me refuses to accept responsibility. That's why we're here again after seven years of litigation to me says everybody else got it wrong. The government got it wrong. Two juries got it wrong. Two district court judges got it wrong. Everybody got it wrong on the start. But it is trying to business the first opportunity that has had to it did not correct me wrong to challenge the granting of the new trial. It's the first time they've had the opportunity to have a merits review before this court of that question. But I remind the court that the standard of review is very high. It's abuse of discretion and furthermore in Everhart this court said that that the decision of a judge, a district court judge to grant or deny a new trial should not be reviewed except in the most exceptional circumstances. So that's the standard that the court has made. On my basis judge Perry put forth for granted a new trial that you had excluded 17 pages testimony on the market. Judge Perry concluded that those 17 pages were material enough to have prejudiced the government's case that he required a new trial. And I want to quite conclude that 17 pages because you persuaded him to hear it from the president's that it was the entire testimony. Your Honor I think I'm not reading exactly what you said correctly. Your Honor I beg to differ we did have there were two two hearings and part of the confusion here is that Tumey goes back and forth between the two hearings. The first hearing was on the post trial motions on June 4th of 2010 and then on June 13th we reconvened to talk about the text of the order and it is absolutely true that Tumey's lawyer kept raising and raising and raising the same issues that Judge Perry had already dealt with in the June 4th hearing where he announced his intention to grant the new trial and also to enter judgment on the payment by mistake and unjust enrichment claim. This is very necessary 17 pages testimony and I understand the second trial what didn't he testify. We played those 17 pages Your Honor we played them as a videotape deposition and their effect on the jury was considerable obviously that doesn't convey in the record but we sat there and watched it and Judge Seymour had a front row seat for the whole thing too. The 17 pages from you of you nothing was cumulative in there from the thousands of other pages of information provided to provide very unique information. It provided unique information as to Tumey's sienter Your Honor it told it told the jury. Are you referring to the 17 pages now? Yes it told the jury that Mr. Martin knew what Mr. McAnaney had said new of his warnings. I mean I read those 19 pages his memory was less than Christine you can remember much of anything about what McAnani told anyone. He remembered enough Your Honor he remembered enough and then there was additional evidence which I'd like to get to. I first wanted to say additional evidence we need to focus on the deposition excerpt either those for critical materials or they get up and I read his testimony and basically he mentioned something about red flags concerns etc. But it was very vague it seems to me that there was ample evidence in this record that made that same point and that's my concern. Well we didn't get to present that Tumey knew that Your Honor we didn't get to present anything in the first trial. That was excluded that was another basis for our new trial motion that was excluded in the first trial. But it wasn't included in the excluded in the first trial but included in the second. Yes and also Mr. McAnaney himself as Your Honor pointed out was excluded from the first trial and also testimony from Dr. Drakeford's Greg Smith who participated in the call with Mr. McAnani. He was not allowed to testify about what Mr. McAnani had said. The basis for the new trial that we're talking about given a new trial the fact that the mechanism was excluded was the basis the basis was the fact that he had left out 70 pages as you say a testimony. Then you got the second trial within a period of half an year. That's not the basis for the new trial. Well the the exclusion of that evidence was error it was plain error and this court can read can address that issue itself and make the rule 61. And when did you make that intention that the exclusion of that evidence was plain error? Did you make any cross appeals to this court? We did not make a cross appeal we never had an opportunity. We found that the appeal that was into walk it to our assembly. What do you mean? You couldn't you could have this state procedurally this has to make sense you have to have an opportunity. If the first trial could not be appealed until now then the other side can make an appeal saying hey just buried did not properly grant a new trial. We shouldn't have done it but you can make cross appeals and indicate errors also that were made doing that. That's the only way it gets to us. Well respectfully Your Honor I'm not sure we had that ability. We won the motion for a new trial. We won the second trial and so there was no no reason for the United States to appeal anything. We weren't the adverse. The basis for the new trial was in error then there's no need for a second trial

. I first wanted to say additional evidence we need to focus on the deposition excerpt either those for critical materials or they get up and I read his testimony and basically he mentioned something about red flags concerns etc. But it was very vague it seems to me that there was ample evidence in this record that made that same point and that's my concern. Well we didn't get to present that Tumey knew that Your Honor we didn't get to present anything in the first trial. That was excluded that was another basis for our new trial motion that was excluded in the first trial. But it wasn't included in the excluded in the first trial but included in the second. Yes and also Mr. McAnaney himself as Your Honor pointed out was excluded from the first trial and also testimony from Dr. Drakeford's Greg Smith who participated in the call with Mr. McAnani. He was not allowed to testify about what Mr. McAnani had said. The basis for the new trial that we're talking about given a new trial the fact that the mechanism was excluded was the basis the basis was the fact that he had left out 70 pages as you say a testimony. Then you got the second trial within a period of half an year. That's not the basis for the new trial. Well the the exclusion of that evidence was error it was plain error and this court can read can address that issue itself and make the rule 61. And when did you make that intention that the exclusion of that evidence was plain error? Did you make any cross appeals to this court? We did not make a cross appeal we never had an opportunity. We found that the appeal that was into walk it to our assembly. What do you mean? You couldn't you could have this state procedurally this has to make sense you have to have an opportunity. If the first trial could not be appealed until now then the other side can make an appeal saying hey just buried did not properly grant a new trial. We shouldn't have done it but you can make cross appeals and indicate errors also that were made doing that. That's the only way it gets to us. Well respectfully Your Honor I'm not sure we had that ability. We won the motion for a new trial. We won the second trial and so there was no no reason for the United States to appeal anything. We weren't the adverse. The basis for the new trial was in error then there's no need for a second trial. That makes an accepted extent of the equitable rate of this court being in transit. That was the only issue of appeal to give you the basis for a new trial. And then the other new trial comes from Judge Perry who gave it. So the appeal from Judge Perry is now before us in terms of whether he properly granted a new trial. How do we get to the issues that you intend he error at the first year except by across the year. Well Your Honor I think it's clear that we're arguing now. We're arguing and and we can affirm on any basis appearing in the record. Yes indeed Your Honor and we did make these points. I believe it's a relatively new law but you can I would be more than happy to supply the court with any authority. I do want to point out that these are issues that we raised in docket by 16 which was our motion for a new trial after the first trial on the false claims act. And we raised all of these points or honor and argued for them. And then Judge Perry I would like to point this out because I think that Tumey hasn't been fair to Judge Perry. He did make a ruling on harmless error. It's very clear and I would draw the court's attention to the June 4th hearing. It's at Joint Appendix 1295 to 1296. And Mr. Lewis who was Tumey's counsel at that time came right out and said and this is under rule 61 which talks about it being a harmless error inquiry at its core the harmless error inquiry asked whether the trial error could or did affect the outcome of the case to the substantial disadvantage of the losing party. And Mr. Lewis argued that the 17 pages didn't do that. And the court said on 1296 this is Judge Perry well you are aware I'm very concerned over the ruling that excluded Mr. Martin's deposition. Frankly I'm astounded I've got a problem with that one. I do recognize that in the defendant's view even so the government suffered no prejudice but I think the exclusion of Mr. Martin's testimony was a substantial error. I think that satisfies rule 61 as to that issue. And then

. That makes an accepted extent of the equitable rate of this court being in transit. That was the only issue of appeal to give you the basis for a new trial. And then the other new trial comes from Judge Perry who gave it. So the appeal from Judge Perry is now before us in terms of whether he properly granted a new trial. How do we get to the issues that you intend he error at the first year except by across the year. Well Your Honor I think it's clear that we're arguing now. We're arguing and and we can affirm on any basis appearing in the record. Yes indeed Your Honor and we did make these points. I believe it's a relatively new law but you can I would be more than happy to supply the court with any authority. I do want to point out that these are issues that we raised in docket by 16 which was our motion for a new trial after the first trial on the false claims act. And we raised all of these points or honor and argued for them. And then Judge Perry I would like to point this out because I think that Tumey hasn't been fair to Judge Perry. He did make a ruling on harmless error. It's very clear and I would draw the court's attention to the June 4th hearing. It's at Joint Appendix 1295 to 1296. And Mr. Lewis who was Tumey's counsel at that time came right out and said and this is under rule 61 which talks about it being a harmless error inquiry at its core the harmless error inquiry asked whether the trial error could or did affect the outcome of the case to the substantial disadvantage of the losing party. And Mr. Lewis argued that the 17 pages didn't do that. And the court said on 1296 this is Judge Perry well you are aware I'm very concerned over the ruling that excluded Mr. Martin's deposition. Frankly I'm astounded I've got a problem with that one. I do recognize that in the defendant's view even so the government suffered no prejudice but I think the exclusion of Mr. Martin's testimony was a substantial error. I think that satisfies rule 61 as to that issue. And then. So, Mar. I think 30 of the appellance file. I'm afraid you mentioned that this letter had not been placed with was not in heaven's first time around the letter to board that summarized Mr. McAnadish concerns but the appellant argues that there was an audio play for the jurors and a transcript that was put in front of them that contains statements by a board member acknowledging that McAnadish had concerns about the business arrangements he had reviewed. Was it fair to say that that evidence wasn't back in the record? That evidence was in the record but again you're on it there was not in any way shape or form the detail. I mean the question here. You say the detail I mean this that testimony from Mr. Martin it had anything but detail. We couldn't have any this had happened five years before four years before then other than the fact that he acknowledged his general concerns about the assessment of the mechanism. I just don't see that it was all that compelling. Well, I think your honor if the videotape were watched and Mr. Martin's demeanor observed that would also have an impact because it seemed to us that Mr. Martin was being had been very coached and I think the jury saw that too. And obviously that kind of a question whether whether the demeanor of the witness plays onto their credibility is a fundamental question for the jury. But what I will say your honor is that we were never allowed in the first trial to tell the jury exactly what to me knew Mr. McAnadish had said through any of these devices. It came out in the second trial that Mr. Hussin whose notes were also included in the second trial had conveyed all of this more detailed information to Mr. Martin in that phone call. So although- There was an error in the first trial that Judge Seymour corrected in the second trial. Your honor Judge Seymour corrected it. Yes she allowed this evidence and there was a vigorous motion in limiting argument about it. She considered it and applying this court's ruling in Guerrero Damien and Safari concluded that this matter went to Tumie's knowledge and should be admitted. They had an advice of council defense. Mr. McAnadish was one of their counsel

. So, Mar. I think 30 of the appellance file. I'm afraid you mentioned that this letter had not been placed with was not in heaven's first time around the letter to board that summarized Mr. McAnadish concerns but the appellant argues that there was an audio play for the jurors and a transcript that was put in front of them that contains statements by a board member acknowledging that McAnadish had concerns about the business arrangements he had reviewed. Was it fair to say that that evidence wasn't back in the record? That evidence was in the record but again you're on it there was not in any way shape or form the detail. I mean the question here. You say the detail I mean this that testimony from Mr. Martin it had anything but detail. We couldn't have any this had happened five years before four years before then other than the fact that he acknowledged his general concerns about the assessment of the mechanism. I just don't see that it was all that compelling. Well, I think your honor if the videotape were watched and Mr. Martin's demeanor observed that would also have an impact because it seemed to us that Mr. Martin was being had been very coached and I think the jury saw that too. And obviously that kind of a question whether whether the demeanor of the witness plays onto their credibility is a fundamental question for the jury. But what I will say your honor is that we were never allowed in the first trial to tell the jury exactly what to me knew Mr. McAnadish had said through any of these devices. It came out in the second trial that Mr. Hussin whose notes were also included in the second trial had conveyed all of this more detailed information to Mr. Martin in that phone call. So although- There was an error in the first trial that Judge Seymour corrected in the second trial. Your honor Judge Seymour corrected it. Yes she allowed this evidence and there was a vigorous motion in limiting argument about it. She considered it and applying this court's ruling in Guerrero Damien and Safari concluded that this matter went to Tumie's knowledge and should be admitted. They had an advice of council defense. Mr. McAnadish was one of their counsel. So it was critical that we be allowed to show what Tumie knew about what he had said. This court when it sent back its opinion went through that trial and put forth evidence of course I didn't think we should do so but I certainly accept the judgment of Mr. Ardipinion and just laid out. Put the law was in this case and laid out where they've been some errors. I don't recall that particular one being one of the ones they brought up. Well your honor the reason that issue didn't come up is that the only issue before the court on the first trial was the question whether Judge Perry's judgment on the payment by mistake and unjust enrichment claims was proper. The other issue whether the new trial should have been a lawatory appeal which the court rejected because it didn't meet 1292B standards. So the court didn't address this evidence about Mr. McAnadish and the advice of council defense generally during the first appeal because it didn't have occasion to. Mr. McAnadish was someone who had been I guess tamed by both parties for the purpose of being used in a manner that some contend to be a four eight type manner. What was his role? Well Mr. McAnadish was a principal author of the stark regulations and commentary that we've been discussing over these two appeals. He had recently left the government was in private practice. They wanted to persuade Dr. Draper. Dr. Draper's lawyer felt that the contrast raised a lot of problems the very ones that we're talking about and they wanted Dr. Draper to enter into an arrangement nonetheless. Did he give any testimony in terms of whether he thought the process or was it was it his duty at the time that the process that was being undertaken would meet the proper regulations of the staff regulation. I'm sorry. In a words that did Michael made it. Michael made it in opinion in terms of from his expertise as well that he thought that the PED that the hospital was taken to do this is proper. Mr. McAnadish testified that he was specifically asked by Mr. Houston not to give an ultimate opinion in part because the hospital already had other arrangements in place

. So it was critical that we be allowed to show what Tumie knew about what he had said. This court when it sent back its opinion went through that trial and put forth evidence of course I didn't think we should do so but I certainly accept the judgment of Mr. Ardipinion and just laid out. Put the law was in this case and laid out where they've been some errors. I don't recall that particular one being one of the ones they brought up. Well your honor the reason that issue didn't come up is that the only issue before the court on the first trial was the question whether Judge Perry's judgment on the payment by mistake and unjust enrichment claims was proper. The other issue whether the new trial should have been a lawatory appeal which the court rejected because it didn't meet 1292B standards. So the court didn't address this evidence about Mr. McAnadish and the advice of council defense generally during the first appeal because it didn't have occasion to. Mr. McAnadish was someone who had been I guess tamed by both parties for the purpose of being used in a manner that some contend to be a four eight type manner. What was his role? Well Mr. McAnadish was a principal author of the stark regulations and commentary that we've been discussing over these two appeals. He had recently left the government was in private practice. They wanted to persuade Dr. Draper. Dr. Draper's lawyer felt that the contrast raised a lot of problems the very ones that we're talking about and they wanted Dr. Draper to enter into an arrangement nonetheless. Did he give any testimony in terms of whether he thought the process or was it was it his duty at the time that the process that was being undertaken would meet the proper regulations of the staff regulation. I'm sorry. In a words that did Michael made it. Michael made it in opinion in terms of from his expertise as well that he thought that the PED that the hospital was taken to do this is proper. Mr. McAnadish testified that he was specifically asked by Mr. Houston not to give an ultimate opinion in part because the hospital already had other arrangements in place. So there was a concern. No that's not quite right. He just wasn't he wasn't asked to give the ultimate opinion to write it down etc. I don't understand what you mean. What? My understanding is that he had some value to them in terms of the information he proposed. Your statement seems to me well he's in give opinion that he's dead to persuade Dr. Craith to one and no other purpose. No no I don't think that's why he was there. Your Honor I think it was there. What he was there because Dr. Drakeford's attorney and Tumey's attorney had different views about the legality of this arrangement. Yes. And instead of going to the Office of Inspector General for an opinion from them an advisory opinion which would have been binding. Yes. They decided to go to Mr. McAnadish who previously had been the one who gave those advisory opinions. Yes. And they asked him to give advice about whether the arrangements it was a joint representation. They asked him to give advice about what the risks would be of going forward with these arrangements and his testimony which is a matter of record is clear. It's somewhat it's a little bit frustrating that what we have here is a scenario that is at least suggestive. It in fact experts opined that the proposals violated that will make a cure loss and yet we're spending we don't ever seem to get to that issue. On the first appeal we were dealing with the award of the equitable damages award made without a true verdict and he doesn't ever seem to focus on the merits of a very significant issue. It is a very significant issue and I'd be delighted to address the merits Your Honor. I want to first dispose of a couple of simple questions that I think came up before that delve into the merits here. First of all we presented claims. We presented 27,000 or more claims to the jury in the form of summary evidence pursuant to federal rule of evidence 106

. So there was a concern. No that's not quite right. He just wasn't he wasn't asked to give the ultimate opinion to write it down etc. I don't understand what you mean. What? My understanding is that he had some value to them in terms of the information he proposed. Your statement seems to me well he's in give opinion that he's dead to persuade Dr. Craith to one and no other purpose. No no I don't think that's why he was there. Your Honor I think it was there. What he was there because Dr. Drakeford's attorney and Tumey's attorney had different views about the legality of this arrangement. Yes. And instead of going to the Office of Inspector General for an opinion from them an advisory opinion which would have been binding. Yes. They decided to go to Mr. McAnadish who previously had been the one who gave those advisory opinions. Yes. And they asked him to give advice about whether the arrangements it was a joint representation. They asked him to give advice about what the risks would be of going forward with these arrangements and his testimony which is a matter of record is clear. It's somewhat it's a little bit frustrating that what we have here is a scenario that is at least suggestive. It in fact experts opined that the proposals violated that will make a cure loss and yet we're spending we don't ever seem to get to that issue. On the first appeal we were dealing with the award of the equitable damages award made without a true verdict and he doesn't ever seem to focus on the merits of a very significant issue. It is a very significant issue and I'd be delighted to address the merits Your Honor. I want to first dispose of a couple of simple questions that I think came up before that delve into the merits here. First of all we presented claims. We presented 27,000 or more claims to the jury in the form of summary evidence pursuant to federal rule of evidence 106. What about the referral for the recurring decision argument? Yes well every single court that addressed this issue and we've cited them has said that the attending and operating physician at least as a factual matter falls within the statutory and regulatory definition of referring physician. Judge Seymour covered all the bases. She gave them the definition of attending and operating from the CMS form with two needs a scent by the way they agreed that she could take judicial notice of that and she gave them she read them the definition of referral and referring physician and she left it to the jury to make that decision. You know in Rogan it was decided to be a question of law. We thought it could be resolved as a question of law because it's statutory interpretation. So that's one issue under the Stark law that we can immediately move path and I want to say one of the reasons we didn't put those claims in front of the jury is that they contained personal health information of Medicare beneficiaries and what would the jury do with the spreadsheet anyway that showed 27,000 claims. That's why we did the summary the way we did they had the claims the actual claims for three years before that trial so anything they wanted to say about it they could. Now to get down to the heart of this matter here did these contracts violate the Stark law. Your Honor we argued before you last time we thought you could make that decision as a matter of law. This court felt that a jury trial was needed in fact both district judges have also denied a summary judgment and felt that a jury trial was needed. Well let's talk about what what evidence there was. Let me first address the takes into account prompt because this court spent so much time talking about that. Your Honor I have to say that I read the on their face phrase in exactly the way that you just described it that it was a comment upon what Villa thing had not found that this court felt at least warranted exploration as a factual matter on retrial and that it wasn't dispositive of all the ways in which the contracts could violate the Stark law because the definition of remuderation is broad and includes overt and covert and indirect and indirect and direct and and also entash and in kind. So every court that's addressed this question too has held and the CMS commentary that we've cited to you from the 2007 room. So what does it mean when a court says the right way that the question which should be probably put to a jury as whether the contracts form the basis of an account is that. When in fact the other side said well court has told you to instruct that even if you instruct all the other things you must instruct that because it says it right here and it just says no I'm not going to instruct people on your own face. Well I think you're honored that that argument by Tumi and I understand why they need to. That's not I've told Ms. I that's my question to you based upon what I'm reading from the opinion that says the question that should probably be put to the jury. The jury history in this case this is this is a law in this case is what because this is the whole part of the majority's opinion that's instructing you on how this court how this trial is going to be conducted. It's not talking if if you wanted to say we want to have all the other stuff it would have said and we're not talking about precedent because I'm not going to get into the question whether it's a virus or not that doesn't matter for this case it said these your this jury is well the contracts on their face took an account. You're not. Then the other side asked you see more specifically give that instruction she says no. Well I think she did give that instruction to one thing. She used that language that's here. She read she did not use that specific language but specifically said she wouldn't use your honor

. What about the referral for the recurring decision argument? Yes well every single court that addressed this issue and we've cited them has said that the attending and operating physician at least as a factual matter falls within the statutory and regulatory definition of referring physician. Judge Seymour covered all the bases. She gave them the definition of attending and operating from the CMS form with two needs a scent by the way they agreed that she could take judicial notice of that and she gave them she read them the definition of referral and referring physician and she left it to the jury to make that decision. You know in Rogan it was decided to be a question of law. We thought it could be resolved as a question of law because it's statutory interpretation. So that's one issue under the Stark law that we can immediately move path and I want to say one of the reasons we didn't put those claims in front of the jury is that they contained personal health information of Medicare beneficiaries and what would the jury do with the spreadsheet anyway that showed 27,000 claims. That's why we did the summary the way we did they had the claims the actual claims for three years before that trial so anything they wanted to say about it they could. Now to get down to the heart of this matter here did these contracts violate the Stark law. Your Honor we argued before you last time we thought you could make that decision as a matter of law. This court felt that a jury trial was needed in fact both district judges have also denied a summary judgment and felt that a jury trial was needed. Well let's talk about what what evidence there was. Let me first address the takes into account prompt because this court spent so much time talking about that. Your Honor I have to say that I read the on their face phrase in exactly the way that you just described it that it was a comment upon what Villa thing had not found that this court felt at least warranted exploration as a factual matter on retrial and that it wasn't dispositive of all the ways in which the contracts could violate the Stark law because the definition of remuderation is broad and includes overt and covert and indirect and indirect and direct and and also entash and in kind. So every court that's addressed this question too has held and the CMS commentary that we've cited to you from the 2007 room. So what does it mean when a court says the right way that the question which should be probably put to a jury as whether the contracts form the basis of an account is that. When in fact the other side said well court has told you to instruct that even if you instruct all the other things you must instruct that because it says it right here and it just says no I'm not going to instruct people on your own face. Well I think you're honored that that argument by Tumi and I understand why they need to. That's not I've told Ms. I that's my question to you based upon what I'm reading from the opinion that says the question that should probably be put to the jury. The jury history in this case this is this is a law in this case is what because this is the whole part of the majority's opinion that's instructing you on how this court how this trial is going to be conducted. It's not talking if if you wanted to say we want to have all the other stuff it would have said and we're not talking about precedent because I'm not going to get into the question whether it's a virus or not that doesn't matter for this case it said these your this jury is well the contracts on their face took an account. You're not. Then the other side asked you see more specifically give that instruction she says no. Well I think she did give that instruction to one thing. She used that language that's here. She read she did not use that specific language but specifically said she wouldn't use your honor. She declined to do it because she had already given. I'm going to explain but I want to make sure I get my question asked. She specifically says she would not give that instruction. She declined to give that instruction your honor. She did. Yes I would like to explain first of all she gave the jury the statutory definition of remuneration which says that remuneration is any remuneration direct or indirect overt or covert in cash or in kind that covers on its face. The other thing I really feel impel to point out here your honor is immediately after this discussion which follows from the comment on filithane is footnote 26 where this court says for clarification we emphasize that our holding in part three is limited to the issues we specifically address. On remand a jury must determine in light of our holding whether the aggregate compensation received by the physicians under the contracts buried with or took into account the volume or value of the facility component referrals. If it so finds a jury must further determine whether the aggregate compensation received by the physicians is nevertheless lawful. So there's that is the instruction that judge Seymour gave. That's the one she saw as the complete instruction not sort of the partial comment about one case that had addressed one issue. I apologize your honor if I may just briefly conclude we believe the jury got it right and had substantial evidence for its verdict. We believe the court properly entered judgment in this case we respectfully request that this court affirm that judgment. Thank you. Your honor is if I could start with a rule 61 issue rule 61 is clear there shall be no new trial based on any evidentiary error absent a finding of substantial prejudice. I have reviewed the record for the last six weeks there's no finding of prejudice in this record. Can we find that? You have the discretion to certainly reach the issue and we would ask you to undertake that analysis. We don't think it's possible rationally to find that the the Martin the exclusion of the Martin evidence actually constituted prejudice. As you were saying Judge Diaz there's really nothing in these 17 pages that is particularly overwhelming and it is indeed cumulative. The best reason why it's cumulative is the July 25, 2010 board meeting minutes shown extended conversation out of board meeting about the mac and e and cerns. The government itself on page 83 and its brief had to quote language that wasn't even in the 17 pages of the Martin deposition in order to make its one paragraph argument on prejudice in this case. If the government had to go outside those 17 pages in its brief to this court we think that to concession that there's nothing in the 17 pages that was particularly important. If this court were to consider affirming the rule 60 affirming here based on an alternative ground Mr. McEnany we respectfully submit that there is no reason for this court to bend over backwards to affirm the grant of a new trial based on any error in excluding Mr. McEnany. What is your position on the cross appeal? I just want to tell the level is maybe the opinions of the right can help the practice of it and I'm just interested in terms of the errors from the first trial was there a fact that need to make a cross appeal on me we just combed through and find any absolutely an end or so of brief voting and see what errors were

. She declined to do it because she had already given. I'm going to explain but I want to make sure I get my question asked. She specifically says she would not give that instruction. She declined to give that instruction your honor. She did. Yes I would like to explain first of all she gave the jury the statutory definition of remuneration which says that remuneration is any remuneration direct or indirect overt or covert in cash or in kind that covers on its face. The other thing I really feel impel to point out here your honor is immediately after this discussion which follows from the comment on filithane is footnote 26 where this court says for clarification we emphasize that our holding in part three is limited to the issues we specifically address. On remand a jury must determine in light of our holding whether the aggregate compensation received by the physicians under the contracts buried with or took into account the volume or value of the facility component referrals. If it so finds a jury must further determine whether the aggregate compensation received by the physicians is nevertheless lawful. So there's that is the instruction that judge Seymour gave. That's the one she saw as the complete instruction not sort of the partial comment about one case that had addressed one issue. I apologize your honor if I may just briefly conclude we believe the jury got it right and had substantial evidence for its verdict. We believe the court properly entered judgment in this case we respectfully request that this court affirm that judgment. Thank you. Your honor is if I could start with a rule 61 issue rule 61 is clear there shall be no new trial based on any evidentiary error absent a finding of substantial prejudice. I have reviewed the record for the last six weeks there's no finding of prejudice in this record. Can we find that? You have the discretion to certainly reach the issue and we would ask you to undertake that analysis. We don't think it's possible rationally to find that the the Martin the exclusion of the Martin evidence actually constituted prejudice. As you were saying Judge Diaz there's really nothing in these 17 pages that is particularly overwhelming and it is indeed cumulative. The best reason why it's cumulative is the July 25, 2010 board meeting minutes shown extended conversation out of board meeting about the mac and e and cerns. The government itself on page 83 and its brief had to quote language that wasn't even in the 17 pages of the Martin deposition in order to make its one paragraph argument on prejudice in this case. If the government had to go outside those 17 pages in its brief to this court we think that to concession that there's nothing in the 17 pages that was particularly important. If this court were to consider affirming the rule 60 affirming here based on an alternative ground Mr. McEnany we respectfully submit that there is no reason for this court to bend over backwards to affirm the grant of a new trial based on any error in excluding Mr. McEnany. What is your position on the cross appeal? I just want to tell the level is maybe the opinions of the right can help the practice of it and I'm just interested in terms of the errors from the first trial was there a fact that need to make a cross appeal on me we just combed through and find any absolutely an end or so of brief voting and see what errors were. I think the best practice would have been to cross appeal. Across appeal what? There has never been an adverse decision for the government. A1 so the new problem should. How did they appeal a decision? They won. So let they want to rename it. Let's assume across appeal was not strictly necessary. What would they cross? They would at least judge Duncan. They would at least have to have argued in their brief they should have asked you to affirm on an alternate ground. This section of that. That's not the procedural program. I was sticking with the procedural program. There is nothing there is no order that they did not win. So there would be nothing to take across appeal from now there's an alternative argument. Right and my point my point is that no matter what you think about the cross appeal they have not advanced that argument clearly in their briefs. You should be in the court. The question is do we need the cross appeal in the sentence? I'm not sure we need to get too hung up on the necessity of a cross appeal because they clearly didn't argue it to the court and it's their burden certainly in a case or controversy to bring that issue to the court. But can I focus on the substance of that alternate ground? This court would be fending over backwards to affirm of blatant rule 61 violation based on machinini who's not even before you. And to do that you'd have to find that judge Perry abused his discretion in excluding machinini. And when judge Seymour let machinini in she didn't say he'd gotten it wrong she just said I find it relevant. She gave a one sentence rationale. Well apparently we worked from a finding of no lot of no damages under false contact to say anything or damages under false contact. So it does appear that the second time when the evidence was admitted it did certainly do a different result. So we think that different result is explained by judge Seymour's failure to instruct on brown and root that the difference of opinion about illegal questions not a false statement. That's what we got the first time around and didn't get the second time around. We think that was probably the game changer. But in terms of the government getting machinini in the second time judge Duncan that shows how unfair all of this was because there was only a new trial based on any error with respect to Martin

. I think the best practice would have been to cross appeal. Across appeal what? There has never been an adverse decision for the government. A1 so the new problem should. How did they appeal a decision? They won. So let they want to rename it. Let's assume across appeal was not strictly necessary. What would they cross? They would at least judge Duncan. They would at least have to have argued in their brief they should have asked you to affirm on an alternate ground. This section of that. That's not the procedural program. I was sticking with the procedural program. There is nothing there is no order that they did not win. So there would be nothing to take across appeal from now there's an alternative argument. Right and my point my point is that no matter what you think about the cross appeal they have not advanced that argument clearly in their briefs. You should be in the court. The question is do we need the cross appeal in the sentence? I'm not sure we need to get too hung up on the necessity of a cross appeal because they clearly didn't argue it to the court and it's their burden certainly in a case or controversy to bring that issue to the court. But can I focus on the substance of that alternate ground? This court would be fending over backwards to affirm of blatant rule 61 violation based on machinini who's not even before you. And to do that you'd have to find that judge Perry abused his discretion in excluding machinini. And when judge Seymour let machinini in she didn't say he'd gotten it wrong she just said I find it relevant. She gave a one sentence rationale. Well apparently we worked from a finding of no lot of no damages under false contact to say anything or damages under false contact. So it does appear that the second time when the evidence was admitted it did certainly do a different result. So we think that different result is explained by judge Seymour's failure to instruct on brown and root that the difference of opinion about illegal questions not a false statement. That's what we got the first time around and didn't get the second time around. We think that was probably the game changer. But in terms of the government getting machinini in the second time judge Duncan that shows how unfair all of this was because there was only a new trial based on any error with respect to Martin. So the government gets their new trial because the 17 pages that don't show any prejudice and they get a total redo that lets them get in because they had a new district court judge a lot of evidence that was excluded the first time. But there's no basis for saying that judge Perry abused his discretion. Oh no you are not machinini in. We were asked to find and to accept the finding of false contact in your favor indeed. The finding of the stark law. Respectfully saying that we don't think the government proved a stark law violation consistent with this court's instructions for how that was supposed to happen on remand. But if you disagree with us we think they still have big problems under the false claims act. And they certainly have problems with with respect to damages. The government did not if I could address one other point. If you don't mind doing so in a conclusive and concluing pressure. I will. So for all of these reasons we would ask this court to enter judgment in two meets favor based on the absence of sufficient evidence or this court's opinion. The alternative we would ask that you vacate the judgment and reinstate the first verdict based on the black letter rule 61 violation. But at a minimum we would ask you to vacate the award for a recalculation of damages consistent with Harrison two and penalties consistent with the eighth amendment for the government to affirm here there are six major legal hurdles that they have to clear to get to the finish line. You would have to find a stark law violation adopt all of their theories which no court in this country has ever done. We estimate that 10,000 contracts in this circuit alone would be invalidated if this court were to embrace the government's stark law theories. We don't have that new record. I don't. Do we have that new record? It's a matter of law if you search the court of appeals opinions you'll not find one court of appeals that has embraced for instance the one to one correlation theory. This case has been much watched in the healthcare bar. It would be a controversial ruling. You'd have to distinguish Brown and Root under the false claims act. You'd have to distinguish Harrison two. You'd have to adopt an applied certification theory. You'd have to find there's not even a constitutional concern with the quarter of a billion dollar judgment that will put the false claims act defendant out of business. And you'd have to find that any error and excluding Mr

. Martin actually swayed the jury in this case. We don't think that's possible so we would ask you to rule in our favor. Thank you. Thank you very much Miss Walker. We will come down and greet council and proceed directly to the next case