enthusiasm the st argument i ever made to every real judge in a very real courthouse was in this very place more than thirty years ago when i was a law school student here in new orleans i have that was the st and last time i ever prison i've ever here providing argument because i wasn't given the opportunity to participate in that gunfight up in gulfport mississippi last year and of course that's one of our points of contention on appeal you know an individual's ringback right to select the order of his choice is a fundamental ask you since it is one of the issues here i was i was playing to ask you you're raising it front and center what is it with all due respect to the attorneys who did try the case what is it that you believe your involvement would have made a difference in terms of what happened in the case it and i have to answer that question in sub parts part number one we have to judge effectiveness based upon results were the  that doesn't mean that appellant because he wanted me it doesn't mean he doesn't have the opportunity to let me present his case and again that's what really that's what it means by having your day in court is that we are a pesky appellate court and so we're going to ask you  for a precedent for that proposition does it do you have to show prejudice or is this some sort of structural error that you don't have to show  you have to show some cause and effect meaning if there's an error or because again you don't want to otherwise deal with a tipsy coachmen result that the court's error has to result in adverse consequence to the parties appealing again effectiveness is judged by results i would respectfully suggest that had i tried that case the court wouldn't have entered a ruling granting the rule fifty or a tennis motion nor would the court have otherwise improperly denied the jury from considering punitive damages even if it had granted your intense motion on civil conspiracy because intentional breach of contract carries with it you know we supposed to judge that i mean are we supposed to judge that based upon whether you're eloquent here and two case here from the from the th circuit it is a fundamental right and again for purposes of appeal if an error was made there has to be some consideration as to what the result otherwise could have been we'll never know m m it's a possible to have but i guess my difficulty with that new you kind of cut to the chase right there without any particular ised prejudice or injury or specific identification it would sound as though a litigant could ask for a do over that had i had different counsel and hopefully better counsel are maybe a counsel have had the benefit of hindsight of seeing the st council try because now i'm here court of appeal please give me a do over and i think i don't think that's what you're asking for but i'm still trying to understand what it is you're identifying that would cause us to entertain that again to some extent i would suggest that it's a fundamental error so given the fact that it's that the appellant was eligible he has a constitutional right to select counsel of his choice whether or not counsels effective at the level below really isn't an issue well with drug traffic but the district judge does have it does he not play nary a farty for instance to make rules that i think a fairly routine in most district courts about counsel must attend pretrial conference trial counsel and so on and so forth there are certain rules that the district judge assuming they're reasonable can employ and also preclude attorneys from trying the case if they don't comply absolutely true he has the discretion the question is whether he abused that discretion and there you have to look at the specific facts the scheduled conference that i didn't attend wasn't a pretrial conference for  purposes of the court's rulings motions eliminate things of that nature the very purpose of the rule is to streamline the administration of the trial meaning if a lawyer isn't there and the court makes certain rulings or talks about judicial preferences lawyers don't he again potentially cause a mistrial or otherwise run afoul of those rulings but to tell us again what was the reason that you were given by the court when you attempted to enroll or participate in the trial because i hadn't otherwise complied with the court order of attending all scheduled conferences interestingly enough that local rule mississippi judging art doesn't specifically say you can't participate at trial it says that there is a willful and deliberate violation of a of a court order violen cannot provide a basis for otherwise compromising a fundamental right it's not compelling enough are you permitted to you to sit in the courtroom and whisper in the air of the at counsel wouldn't let me his honor judge girolami at the time he made his ruling and he had already granted my motion for pro had d j admission so i'm i'm qualified i'm licensed to try this case i'm in mississippi and you can sit even if you kept your mouth shut wouldn't permit this case isn't about you or oh ok so why don't you talk about what it is about ok yes i mean you've used up all that seven minutes of your argument and that in that case is actually got a substance subject matter  it why don't you talk about that thank you roger and we can i suppose combine some of the specific issues and points on appeal but the very nature of this case goes to the failure of the healthcare providers in this understanding because when he made his ruling he says guys you haven't otherwise demonstrated that a p p o organization is inherently unlawful and that wasn't our assertion that was in the nature the case a p p o is a good thing because it provides patients greater access to more doctors it provides better care providers provides the health care providers doctors and therapist specials the opportunity to see more patients at a lesser cost so managed care is a good thing it's this circumstance where there are duplicitous side schemes under the table transactions the nature of the agreement here was multi plane is supposed to essentially allow steve holland to be part of the network and then contract with pay yours insurance carriers who are going to exercise an exercise person requires a physician reach are all right that's different from the rest of the people who are getting referred a very different animal your honor the also the also the other difference is there is no financial incentive to enter under mississippi workman's compensation for purposes of the patient every there's no co payment there's no deductible so there can be no financial incentive created to steer patients in the state of mississippi under the workman's compensation schedule you can't just select a physical therapist you can't just select any doctor you have to go see your primary and then ask him for a referral it doesn't matter who the referral is whether it's also someone who's on your health insurance plan whether it's someone you've never seen before whether it's someone you're familiar with the schedule pays the same amount for services and treatment to all doctors which is why again it doesn't make any sense for these brokers these middlemen these repricing organizations to otherwise enter into agreements with pay or is in the work comp circumstance because there can be no steerage and that's what covered care is in order for the for the provider to otherwise be required to perform his services at a discount he has to get some consideration back in the consideration is the potential for me to see more patients in this case mr holland was not listed on any of the directories multi plane entered into agreements with  sell them even further downstream whatever discounts the payers wind up enjoying getting access to that's money that's siphoned directly from health care providers and how it's backed up it's split up that's why judge said listen this is terrible this is a circumstance where all of these brokers a middleman by virtue of the side transactions of the providers know nothing about them to compare his complaint is that the discount was applied when he was a wasn't aware of it and b had not agreed to it except with the ph c s is that correct but he did receive a letter from multi plant saying look we're now involved we have taken over ph c s he's claiming that he did not consent now what contractual provision assuming that's correct you're nodding your head assuming that's correct what provision of the contract or maybe lack of a provision is are you are you arguing reference suggests that you can be modified by virtue of notice to the health care providers but to the extent of this constitutes an amendment it would be an impermissible amendment because the piece p c s contract specifically says that all amendments have to be agreed to b laterally in writing expressly that wasn't done but i'm going to respectfully suggest it's kind of a distinction without a difference here is why and i prefer the reference to the two thousand and seven letter among the things that moat that multiplay and told this healthcare provider and everybody else was we're going to sell it to other people other pay or in the p h d s agreement says it's pay yours rendering difference of pay or not or brokers not other network access aggregators you all taking a piece of the action you are going you are going to be presented on online and a lot on and downloadable directories you're going to have direct links from all of our clients websites you're going to have assistance with client sponsored education no you didn't you didn't get any of that it at all rather  sold access to the discount and steve holland didn't get anything in return for that certainly not in the steerage and certainly not under workman's compensation but under anything else there's no system in place they keep making these unilateral assertions that this will be good for you because you'll have access to more patients how there was not one shred of evidence at trial to refute the testimony of stephen hall and that he didn't receive any steerage and that he didn't even have the potential opportunity to receive steerage because there wasn't any mechanism in place can we talk for a moment about remedy what is it that you seek well we certainly see the opportunity to have the and we'd be done you could provide partial justice like that judge l rod but the problem is that judge roll a further erred by not allowing us to proceed with our civil conspiracy claim when we demonstrated that there were two or more agreements these downstream side deals if you will we demonstrated there was fraud misrepresentation intentional breach of contract there was overt act by virtue of the fact that mr holland's bills were unilaterally discounted and then you see damages so we'd like to be able to bring the claims under civil conspiracy and intentional breach of contract for purposes of punitive damages well like what we'd like the case to be reversed and remanded for further proceedings let us retry the case and let  questions of civil conspiracy punitive damages all of the indications that we've made in our brief go to the to the jury for purposes of proper consideration thank you sometimes i get your patients deception that's just not in the record of this case but in the record this case is there was a contract and that contract was modified through procedures that were provided for in the original contract section three points that that allows  notice effective upon namely that the terms of the contract could be expanded to include new programs new provider new pay ores new relationships and the benefit that mr holland would receive from that expansion is access to the various people who were covered by those papers that's exactly what happened in this case it boils down to a contract that was entered into in two  e was an effective modification of the contract and then notice happened twice it happened in two thousand and seven and happen again in two thousand and lit the twenty thousand and seventy one is important because it brought multi plant into the relationship although not workers comp at that point and in two thousand and eleven workers comp came into the picture and if you look at the notices which the two thousand and seven notice the two thousand level goes in particular it is highly  of providing to mr holland exactly the information he needs to know what's happening when a worker's comp claim comes to him that has a relationship to the whole of the plan that we're in the letter in two thousand and eleven specifically here's the disc up it's going to be applied and that's the only discount that is applied to him is there anything in the contract counsel just suggested that there would need to be a bilateral agreement is there anything under the provisions that the letters were sent donder  that requires some type of written acknowledgement or i mean obviously if he gets the letter and i think you said two thousand and seven and then the nd letter he doesn't object there's in the stop along the mint but does it need to be in writing in the  contract specifically through three dollars is the provision in the original contract two thousand and six contract it does not provide for any acknowledgement he has the right to terminate if he concludes that he doesn't want to proceed with the deal and he has the right to terminate not only the entire relationship he has the right to terminate the specific new program that was headed new relationship that was that so he has that right and as i said in the contract itself although there is a provision for written minute of the contract that it which was referred to by mr gorton that's section nine dollars that's not what these notices were sent out and that's section three dollars is what the notices went out under which judge to rule again on some ridge of a judgment found to be effective modification of the contracts and that summary judgment ruling was not appeal in fact during the trial reference was made to it several times the what is trying to be set forth here that's not what's in the agreements because it removes don't specifically say financial incentives only and that's something that applies in the war the health benefits field not in the workers comp it of we can see that th providing health benefits services they would refer to workers comp and then they would do the same and vice versa that steerage in right there also it's clear from the from the hymn book that is part of the relationship yes there's a young man a part of the sick and part of this group and if you if you're part of the group and the hit book is put into the relationship but way of the two thousand and six contract you have an obligation to use your best efforts to refer in network williams and the testimony of mr foster who were patients who testified at trial said you know i hurt myself on the job so my employer sent me to a physician who referred me to mr holland and when i all of that is the benefit of the bargain and now mr holman is claiming he didn't get it he had all the information he got paid he knew where to send the bill it's at the bills for pay yes a discount was applied but he also got access to those patients and other patients because of the relationship that was expanded through the contracts there's no issue here that the contracts with  providing that those company's clients users their various terms are used in the documents those payers were obligated to pay mr hone in the did that's why the issue of you know it all boils down to whether or not there was steerage that's what the summary judgment ruling suggested when he denied our motion for summary judgment that i want to take this to trial when he begin looked at the issue as we got to the end of the presentation of evidence if you look at the jury instructions the jury sections talk about that that's one issue it's not all these other side issues did it get serious and the answer is yes and the evidence shows that clearly the fact that the jury didn't step that judge girl had to step in appropriately make a determination why did judge her all have to step in if the major issue in the case is steer it and it's murky one way or the other whether your version of steer it in you put it on something and then they put on other things what how is it as a matter of law if there is s the jury verdict had to be overturned well because your honor they didn't put on evidence to indicate other than they didn't get financial incentives it is clear from the testimony it's clear from the documents from the contract that steerage is not limited to financial incentives and it's not limited to heaven united deckard that's not part of the the steerage that's part of the contract that came in holland that people more directed and steered as they were supposed to be there some evidence in the record to support the jury's verdict well but there's that but the standard is as you know  testimony frankly was undisputed that you know that here is how the here's how the real world works you know you're not in a position to understand at this stage to be able to judge the credibility of witnesses but it's important to understand that the witnesses that the the jury heard there were witnesses who clearly understood the industry and then there was mr holmes and i understand that's the promise of the jury to w and less it's has to be stricken because there's some kind of broader problem with it such a fundamental way so neither of us are supposed to be going through in deciding whether the expert is more believable and that's and that's why i think that's why i begin my statement in exactly that way because i recognize that you don't make judgments as to credibility but you look at the but you have to look at the facts that are in the record and what was presented and what was not and what the jury heard is clearly that there was i understand mr holland says there wasn't but it's clear that these patients got to him he got paid the discount was applied according to the terms of the contract that he agreed to the issue appears to me to have been at some point he didn't like his deal and i remember there was testimony during the trial which may have seen the transcript about you know a deal's a deal a certain point mr holland just made the terminations because he had been doing workers comp work that you know i don't i'm not good to accept this and that's not what the bar and that was entered into the bargain was we will give you access to more and more patients through these relationships and when those patients come to you you have an obligation to give them a discount and that's exactly happened so the jury in looking at the evidence came to a conclusion clearly and the sort of bill is relevant i guess also to the effectiveness of counsel because you know the case was presented to a jury and a verdict was that jury could find as they did based on the evidence so that's the standard and i think that judge the role of recognize that that standard was met and we think that this court should follow his footsteps and recognize that as well i just want to touch on a couple of the other issues that were raised the whole civil conspiracy issue is tied to whether or not there was to be a tort there has to be an underlying towards clear under mississippi law there's no tort claim in this case it was cited in our brief on track that you must have an awesome and it's not a con to work sort of thing and it's not a contract tort the there is in mississippi a cause of action for intentional breach of contract but when there was an effort made to amend the complaint long after the amend the deadline had passed alleged i understand the argument today that there was fraud there was to see but there was no none of that took place there was nothing that was intentional misrepresentation there was no reckless disregard everything was followed to the letter in terms of the contract between the parties punitive damages under mississippi law is something that again requires a higher level of proof we also have that in our brief in a j c page how did that claim get to be dismissed was that something justified and then the case gets presented to the jury and he specifically made a ruling that under the mississippi statute that there was no evidence to support putin this ruling is triggered statutorily not based upon an you know we've heard up we've heard a lot from mr gordon about the fraud the seed and everything it's just it's not there it's not there and with respect to steerage i want to return to something that mr himself can see the trial it's an opportunity to see patients it's not a guarantee that those patients will come to this those patients come to you through this network arrangement which by the way mississippi the mississippi workers comp commission and some of the put in the case it's plaintiff's thirty one is the exhibit number specifically said you don't need a contractual line the network arrangement is enough now we have the contract was that it was a discount imposed against his will and against his contractual choices is well that's his clean but your honor it was against his will because he agreed to it in the country he agreed to in the contract he agreed to it by if he had an objection to what was otherwise an appropriate application of the contract language he could have terminated he did he didn't term in two thousand and seven he didn't term in two thousand and eleven allegedly because he didn't receive the two but it's definitely in the record of the case hypothetically if we disagree with we there we we we don't think the jury verdict could have been overturned just that equally but we agreed with you on civil conspiracy and punitive damages would we render or would we still need to send it back well the problem that we have with would simply having it rendered is a redo you know it needs to be focused on that issue so we resolve that issue and we can deal with that nd issue as well i think of rendering a verdict of just the fourteen thousand dollars you know is reinstating the jury verdict which we think should not happen obviously is company that is has like multi plan it has ended him relationships with other insurance companies country itself actually had an insurance arm but it's not really as relevant to cure it is not but if under the language of the contracts it fits in under the term program so it's not necessarily tails and i do want to address there's an issue that came up about simply a contract that obligates pay or to pay it that's what happens through the relationships with multiplayer and coventry and pura because the sections i cited earlier the judge in the heart provide exactly that that is the pair of us but it's not a lay that terminology in the contract i can understand seems to suggest that there's a separate document but it's not it's just the contract will obligation and that acknowledge cure contracts do it says an obligation to pay or arrange to pay for cover care to cover to individuals in accordance with the articles of another article of the contract that's what those contracts  that's exactly what those contracts do so again i understand you know i understand your puzzlement but it's not a separate document it's not the way it's defined in the agreed and again you know if you look at what transpired mr hollings got all of the information about these relationships because he would get this information presented by the patients there which there is a website that you can look at and there's evidence in there that every provider has access to it says here's who the payers are just whether he gets the information of who they are it's whether or not they become actual payers that have obligations themselves and agree to those obligations and they d and they did because they paid ok i think you've answered my question thank you thank you may please the court the only evidence and testimony at trial was that there was no steerage being provided by these seven pay orders these seven payers did not have missed there was no way for them to steer patients because again under workman's compensation as judge king indicated only a primary care physician can refer those folks but the other issue is under workman's compensation the employee selects for the primary care physician or the employer can make a recommendation but then the employee has to agree in writing to that  how is that physician going to get a patient to steve holland there's certainly no financial incentives as we've all discussed he wasn't listed on any hotline he wasn't listed in the directories on the on the provider portal that was referenced by by multi player and there's no indication that these seven pay orders are on the plan so mr holland was deprived of his right to say oh mercy up tree i'm sorry this particular security over there on their i'm sorry out again that i don't want to accept you because workman's compensation or mississippi guarantees a certain amount for each particular service it's not a function of his standard fees his standard fees happen to be aligned judging the heart with what the mississippi workman's compensation laws are with respect to the nine dollars the difference between amendment modification again all ambiguities have to be resolved in favor of the party that didn't draft the contract and if you take a look specifically at nine  wo it says this is the two thousand six hundred except as otherwise specified here in this agreement may not be modified or amended except by mutual consent in writing signed by participating professional that  again there can be no steerage as a matter of rule but even if there were some type of way that these folks who were making referrals to specialists in the work comp setting knew about steve holland maybe that he'd have an opportunity by  to be drawn when someone makes that referral there was no way for him to be able to enjoy that benefit your honour's the whole nature of the h c a case says that steerage in this there was discussion a trial about the distinction between steerage and potential  right there is no guarantee but there's got to be some system some mechanism in place where you have the opportunity perhaps of seeing more patients in footnote forty three to the h c a case which is the th circuit case that is directly on point written by his honor judge gerald joe flynn steerage means actively encouraging plan participants to seek the services of the providers by means of financial incentives ok we've all agreed there are no financial financial incentives how else can you do it well reduced co pays deductible amounts don't have that uses no financial incentive also steerage can occur through communication efforts there are there were no communication efforts there was not a shred of evidence the only evidence was steve holland specifically confirmed i went all the websites i looked at all the directory networks i wasn't listed anywhere and all the information that i was provided on was available to me on the website none of these players are listed there is no communication that would otherwise result there's no mechanism in place of otherwise result in patients being sent from these payers to steve holland none steerage communication efforts there could be a hotline to inform potential referrals who the preferred providers are and then of course there's the issuance of identification cards none of those things were in place here with respect to the issue of punitive damages judge i'll run even if this court were inclined to say there is no civil conspiracy in the case georgia pacific which was cited specifically in the reply brief it and i i like this particular indication from the court because of all of the language that was that was used have suggested in the evidence a trial demonstrated that this was an intentional breach under the ph c s two thousand and six agreement the organization agreed to enter into contracts with pay orders with folks that they would thus have a contractual opportunity to supervise to enforce to garner accountability from and to otherwise keep them honest with respect to making sure they were referring folks to that their preferred providers this wasn't  raise too late in the district core it is such that the district court could that the intentional nature of it could strike that as a possible thing to argue you know when when we adopted the federal civil procedure we essentially extinguished that requirement that everything be pled with specificity the pleadings that were in place or gone really the pendulum has swung toward specificity in the past ten years in a really strong way and it has i would respectfully suggest that because we specifically pled breach of contract whether the evidence demonstrates that breach of contract was unintentional breach of contract was intentional and is really for proof a trial and to some extent the jury still has the opportunity to make those determinations based upon the evidence the court strike it though because it wasn't timely and so we can't really consider that i don't would i would suggest that when the court and it's a yes or no i mean i'm not trying to quibble with you here the court struck the fraud of misrepresentation claims but i get it and i apologize if i'm not remembering the record correctly why didn't your opponent mentioned an attempt to amend that was disallowed and what was the reason given for the disallowance of the amendment that contained the apparently contain the words the intentional breach again i apologize your honor is i don't know the answer it may have been a time issue i don't but it was my recollection the court indicated there was insufficient evidence to support that it meant and again in georgia pacific it says it's crystal clear the breach of contract action certainly carries the potential to recover punitive damages but we will check the record but it seems i understood from your opponent that earlier in the case there was an attempt to amend the complaint not in terms of what the evidence was at trial or right even before trial as a motion in l the leave the order anyway but the nature of the intentional breach of contract is that by entering into agreements with someone other than a organs and by allowing those both has continued to sell the access to the discount farther downstream multi plane a loses more control over these people again there's no supervisory ability there's no way to enforce the potential steerage steerage has to be active there's got to be some effort some mechanism in place in the subject matter contract your honour's it section four point five we will market your services no you did and you knew in advance that you weren't going to because you told these providers that you're going to be able to afford them the protections against these potential rental silent p p o s but you did by entering into agreements with non pay orders you lost that accountability and control i appreciate your patience your honor thank you