down just a little bit but your honor sure sorry about that for the rd quarter weight of evidence and make credibility terminations number of places and finally the court incorrectly characterized untreated animal rights he's claimed  put the question this way why don't your share in section two claims hand john a refusal to deal bury it but here are there two primary claims that characterize it as these referrals coming from presbyterian the corporate entity referrals do not come from the corporate entity they come from positions that are supposed to be made in consultation with the patient indeed the evidence in the record corporate entity cannot control prose creates a baseline level of competition that physicians are free to make decisions based on medical their ethical obligation to their patient to do what's in the best interest of their  consultation with the patient we can't lose sight of the fact that the fundamental decision as to where you're going to get your care resides in the patient not the physician and certainly not in a corporate entity and respect to the mandate the mandate is but this was not presbyterian not and i before you before you leave the referral point let me just just to make sure we're understanding this why is it anti competitive then for the presbyterian doctors to be encouraged to refer their patients to presbyterian on college services mean wh argued that presbyterian did not have the right to encourage its own physicians that's competition and we certainly would welcome competition but the evidence in the record is that presbyterian prohibited extra will refer rules presbyterian oh  one option was to terminate animality contract which they chose not to do the other was to implement an aggressive referral promotional effort didn't they want you to terminate their agreement you refused no we never wanted our r discussed putting in place an aggressive referral control program and that's the head of the program mr west prepared a document where he specifically wrote that internal referrals of capitated patients was a requirement and the work requirement appears throughout this document concerning various different types of cancers certainly concerning it was mr west bring to it as this is a requirement supported by presbyterians top leadership  short term gains in this situation well there is evidence that in fact presbyterians on internal planning documents show that it cost them that they lost money treating paper service patients now own records showing that they actually lost money providing medical oncology services to these people service patients and the only evidence defendants have provided concerning cost savings is that they don't have to make this payment this costs so there is evidence that presbyterian was not making money are in connection with but the property sacrifice was only applies if this is a refusal to deal and it is not a refusal to deal this was an interference with the referral process and prisoner terry might well asked who was put in charge is program expressly noted that these were in fact requirements put in place by the top leadership and then their later documents saying that they were prevent referrals this is not encouragement heavy handed tactics are not encouragement the program prepared drafted by mr west does not talk about encouraging talks about a requirement when you're not you that's identified under section one can form the basis of a section to claim the mandate is dependents using their monopoly power over medicare advantage plans to force patients to purchase drugs from their own presbyterian did not renegotiate the contract instead what it did is it made a benefit change that worst medicare advantage and bullies directly to purchase their drugs from the presbyterian specialty pharmacy the specialty pharmacy said we'll ship the provides the patient it creates patient risk problems for a number of reasons that were also identified by dr mcinerney in her deposition which is also in the record defense don't have any expert testimony or fact evidence that these claims about why if not accept these drugs from specialty pharmacy well the ovary why they wouldn't accept they could be they couldn't trust the maids well it's not that they just couldn't trust them but we don't know for sure that we're going to get the drugs at the right time we couldn't see sure that the drugs were handled in the right way these drugs are not drugs you get over the counter the turks have to be handled in very specific ways and i don't know it's it was not going to trust specialty bombs that had no experience with anti competitive if that's the case well there's a purpose is there actually any real cost savings with respect to this their internal planning documents show that the primary source of savings were internal transfer payments that were being that's not a real cost saving from an economic perspective as dr rhee testified to and this is under about a testimony in this in the record at this point the other factor is that animal sees act was reimbursement rates from p h p are actually lower than the drug acquisition costs for most of the drugs that the specialty pharmacy was going to supply under the mandate the only way a privilege here i thought that was without the three prices under the mandate to animal ojt see patients are actually under treatment by animal rights so there is no clear evidence in the record and in fact the evidence seems supports the view that the mandate was not going the sa m concerns the health insurance market as the relevant market is that correct that's one of the markets yes well is it the market is that a relevant market for your  the health insurance market well st of all the mandate was the right got drug that the market power supporting the mandate came directly from the medicare advantage mark to  h o c o h c is not a participant in the health insurance market that isn't white that's not what they did well st of all judge the issue of standing in interest injury which which  question is going to was not i mean i'm not asking about standing i'm saying how can you make a claim for and i trust injury when the relevant market for the claim is health insurance but you don't do health insurance presbyterians contracting practices in the insurance market appreciated to market segments there is a presbyterian market segment on the local us market segment by harming animal waits e crippling your putting it out of business would have also significantly harmed blue cross blue shield which is at this point the only insurer in a loveless market segment for this well if that's adversely impact the competition in the health insurance market presbyterian the evidence in the record is the segment of the health insurance markets to contract through the use of their monopoly power over impatient hospital services to create to market provider contract with the plane or negotiate some other type of affiliation with the point presbyterian decided to enter the outpatient oncology market and is now trying to compete against violating section two of the sherman and the district court was entirely correct and entering summary judgment and was candidly very conservative in doing so numerous decisions of this court and of course the supreme court make clear the presbyterian has no obligation to this point yet or as well what was that last comment no what no obligation to deal with the plaintiff it's competitor and yet presbyterian continues to have a provider agreement with the plaintiff has never cancel that agreement the evidence from plaintiffs is that it's their most profitable and presbyterian doctors continue referring patients to the point there were questions along those lines to mr sanders plaintiff expert report makes clear that presbyterian continues to refer patients to the point but i want to be clear presbyterian has the absolute right to courage employed physicians to refer patients who are members of presbyterian own health point to see presbyterians own employed on college and to take other steps to save money for the organization that case law i must emphasize it's especially strong from this circuit's case so it could not be more clear as this court held in another health care case the four corners decision in two thousand and nine the supreme court has emphasize the general rule that a business even a putative monopolist as we are alleged to be as no and i trust duty to deal with its rivals at all so there's no factual dispute the prevented summary judgment here presbyterian have the absolute right to do what it did the court in four corners was referring to the supreme court's decisions of course in verizon vs trink over two thousand bell versus link line which is twenty thousand and ninety two other decisions from this court and tirelessly on point and control are the christie sports decision and the decision in the val they are very forceful in this area and they make it clear that a punitive monopolist says no and i trust you to deal no duty to deal on  y judgment briefing the plaintiff in its opposition acknowledged that it did not seek damages associated with the health insurance market claim why because it's not a competitor in that market it isn't their group of doctors they don't sell insurance and so our response in our reply brief in the district court was well if you had not seeking damages there's no basis for you to have standing  to seek any recovery under section two theory because you're not a member of the market what the plaintiff then does in its brief to this court is to devote a lot of attention to the market power issues on section to you even though the district court actually did not grant summary judge on the market hours so we then had just in the last fifteen minutes a number of questions on what's the legal theory let's be clear mr sanders was quite clear and there's the research quite clear this is not a refusal to do your case even though plaintiffs brief relies very heavily still has a contract still referred patients to etymologies doctors so it's not a refusal to deal case the rubric and that's why i think the court asked the questions to plaintiff's counsel the rubric does of section two because businesses are free to choose whether or not to do business with others and free to assign the prices they hope to secure for their products so we're not going to go through the refusal to deal stuff but there was a question regarding time plaintiff argued in its opening brief that these so called mandate was can their word to tie agree so we in our opposition said two things one it's not a tie and we cited the courts of the klamath lake decision which is really right on point where the th circuit held that the availability of a pharmacy benefit and restrictions on where you can get that benefit which is essentially the mandate are not separate products not capable in size but we also noted word tying does not appear in the plaintiff's briefs at the district court not there and so the argument of china if it is the argument that's being made was clearly way but in levy somewhat related to your last point regarding the waiver issues if i understand your grief correctly i think you've argued that new mexico a college the way its arguments refer all d policy and the joint venture with are as to the monopolization claim that is correct  but i have further question about those arguments with the referral policy in the joint venture the relevant to the health insurance market which is the relevant market for that so i don't think so and the reason i'll say that is that the the so call while the referral are you referring to the referral policy with respect to doctors yes reactions oh i do think there might be some paying its own on colleges to treat presbyterian health plan patients who have cancer if a patients is referred by a presbyterian employed physician to an m o h c and in which he has to get paid it's not simply an internal transfer that occurs we presbyterian has to pay hundreds of thousands of dollars as it turns out over time on millions actually over the years because animal rights he wants to be paid if they see our patients and so what we were trying to do was to reduce the amount that was being paid to n m o h d because we were already paying our own doctors to see these patients under trink go and four corners and this is absolutely lawful conduct whether we were saving money and the all of the evidence that was submitted by the way by both sides reflected presbyterian desperately trying to figure out how to save money this is not for sticking short term profits which is what the cases referred to in a refusal deal context this is a situation where  money to see our patients as they of course will and presbyterian trying to figure out how can we lose less money on our own college patients and what they did was if they opened their own  oncology line of business in two thousand and seven they built that business up so that it could compete against the plaintiff and over time it encourage presbyterian courage their primary care physicians and the other physicians who would refer to one encourage those physicians to keep those patients in house refer to our own employed physicians this is not violating some rights of a patient patient can go wherever they want and there's the record is clear that some of them continue to go to to the plain of what we did want to encourage our patients to stay within our system because it costs us less to be able to do that and the reason it costs us less is because we don't have to pay an m o h see out of our pocket to see those patients they don't see those patients for free if you had your our youth i think you had another question regarding the our age joint venture did you want me to address that as well well i relevant to the monopolization well i thought there was no joint venture there was a presbyterian are a are is a radiologists and they did have a joint venture with respect to seeing imaging x rays or patients who might have cancer two things one the plaintiff did not reference it in the district court there are a few adventure with respect to its monopoliz do argue in our brief that it's waived and it should be waived but the joint venture addressed radiations screening for cancer primarily breast cancer the plaintiff does not offer this service so in the refusal to deal or whatever concept were addressing we were not excluding the plaintiff from a service they provide they don't provide this particular  said was that he was not aware of any agreements between our a and presbyterian concerning refer so no agreements whereby if the r a a doctors took an image an x ray and saw breast cancer that are a would agree only to refer those patients to presbytery he was aware of no such agreements there was not a single other piece of evidence in the record on that as the district court noted let me let me address one other thought proposal that presbyterian only refer to presbyterian and colleges but all of the evidence in the record was that that's not what happened and there were numerous doctors and in our judgment this isn't an interest case that never should have been fought presbyterianism titled to hire its own on colleges costs to compete in the market against the plaintiff they're entitled to ask their employed physicians to refer to their employed oncologists and they're entitled to insist that patients who have insurance from presbyterians health plan buy their chemotherapy support drugs from presbyterian because just by saying as a judge gorsuch wrote in the veldt joined i might add by judge kelly forcing firms to help one another would also reduce risky would risk reducing incentive both sides have to innovate invest and expand results inconsistent with the goals of an i trust thank you thank you counsel i think we exhausted the allocated time and then some so we will consider the case submitted thank you both for your arguments this morning very much appreciated counsel will be excused and we will move on to our next case