to proceed under forty two u s c thirteen ninety five why the create a private cause of action for medicare secondary parent she is standing because that was what congress intended when it in acted the private cause of action and she is standing because she has suffered and and did lead an injury in fact that is particularized in concrete  excuse me the the complaint that was filed in the in the district court and the district court did not address standing as a threshold matter but but the but the complaint says that there has been surprised that medicare had a claim and that they were a primary plan all of that was alleged and all of that is known and was found she v m c i spoke e o does not require dismissal of this case in the in the pleading but book you know it does require an injury and yes it does and spokeo holds that violation of a statute by itself does not automatically i mean you have standing to where is the actual injury to your client so the injury to my client is that there was a judgment that my client held that was not being not being paid for more than four months well  there really if there wasn't really a final judgment until to be five judge and under maryland law as i understand it the final judgment was the one that was issued on october thirty first so the that there are final judgments for purposes of appeal in their final judgments for the the medicare regulations in particular to eleven point thirty seven sets out a formula and the formula was cited in our initial response to the motion to dismiss the the and i think also in our brief to this court the formula says that the beneficiary doesn't have to turn it on her henrich can retain part of the money recovered from the defendant from the primary plan to cover procurement costs as medicare's share of procurement costs those the the money that we seek in this case is for the benefit of both the state and medicare the fact that medicare has a benefit is congress's intent the fact that the beneficiaries pursuing it is because congress knew the beneficiaries would be in the best position to pursue these judgment and when we have a judgment which is a condition under the federal statute regulations to pay medicare their primary plan the regulations provide that if medicare is not paid they have to pay medicare but there isn't a spot if you've recovered if you've recovered a damage report and that includes the medicare advantage payments and medicare can come after you so me and her hair medicare can come after us but they also can come after them the western wilkinson i was saying yes they didn't write it for the fun of it they wrote it after that it was a judgment a judgment that demonstrated their status as a primary payer under the statute but the judge many cases around the country that  admit with their hard earned money on her thirty one hundred if they're going hundred thirty eight days of post judgment interest was aid to us because they paid one hundred thirty eight days late all of the e mails in the relevant for this purpose that's relevant to say they are a primary plan is not the october time that didn't change anything about their liability or their that's all right but both of our judgment is the judgment it's not art of judgment  to the to the highest court of appeals in the state re mandated for revision under rule two dash five three which it was revised in the amount of the judgment was changed and then we went back up to the court and the court of appeals held that it was the original two thousand and six judgment that was the final judgment in the case and that the argument that the judgment later on is that was rejected by the court  purposes of setting lanny's the judgement and when his final so that there was a there was a final judgment in this case when the judgment and the judgment of liability was never changed with entered on july and this doesn't seem to me the cond of the individual that they're after and what you're trying to use you're trying to rewrite the statu that wasn't maybe congress could've written on reasonable delay statute but it didn't rise that kind of a statute and it probably didn't write that kind of a statue because it didn't want interminable litigation night life insurance versus grant g u e r r e r and a march twenty one i'm sorry march thirteenth two thousand and eighteen by the district court for the district of connecticut this is the well so so the eleventh circuit and has has has said that when what the way that they interpret failure is sixty days no court has said differently if if we were to say there's no deadline problematic on its own terms but even if it isn't reasonable relates that even if it was written that way i don't see that we have unreasonable delay here and all this is on top of the problems of then you get past the actual problem and you have a question of the facts and the fact that they actually did even under the why you want to rewrite the scotch my time is up but if i may respond you've delay as he called it payment of the underlying tort judgement in this case ms nieto is out some sum of money there are a few problems with that some have been discussed already but the primary one is that that injury is not raised in the complaint in any way shape or form ms neutrals complaint alleges only an injury to medicare the exact language of her complaint says that as a consequence of the defendant's wrongful conduct the federal medicare program became the primary payer for the cost associated items and services it does not mention a delay in payment of an underlying tort judgement does not mention any injury to ms brown or to her personal representative ms nature of the case law in maryland and throughout the fourth circuit is clear that a motion to dismiss must be considered on the actual complaint and the allegations made within it if mr tolley raised today the very best argument ever in terms of standing in he suggests a new injury in fact that really raised your eyebrows and you thought that should be considered it should not be or could not be considered it was not raised in the initial coup and so that's what we're faced with initially even if mr tolley were to get over that  sure i think an example would be if the plaintiffs had had their conditional amos paid by medicare and yet medicare was sending them letters and  sending collection notices and suggesting that we've paid this and we know that there's been a court judgment but it's still outstanding and we're going to come after you for that i think that could be a potential injury and i'm not sure of the precise details of that but i  can imagine a circumstance for that would apply and there are certainly other private plaintiffs who can take advantage of this statute who are not medicare beneficiaries mr tolley suggested that the legislature intended for this statute to apply to medicare beneficiaries and he is correct in that there are multiple cases which suggest that or assume that but what's important to recognize is that the congress cannot legislate away the requirements of constitutional article three stand they can't do that that's clear and made particularly clear in spokeo so what we have is a statute that could apply to multiple types of private land and medicare beneficiaries and they have a tough time showing that they have standing but there are plenty of cases that show that other types of private can have standing including other insurance companies and health care providers both of which could suffer an injury as a result of medicare's as as a result of a nother party's failure to pay for or percent agree and i think that even if could establish an injury in fact she then fails to meet the causation elements of standing which are traceability and redress ability southern walk at broad lands which i cited extensively and in brief really doesn't nice job of explaining those two elements and it says that you can have an injury in fact but if that's not traceable to the claim that you're making  have no federal court claim her injury in fact that she's claiming a simply not traceable to the federal claim that she's making like why is that is not redress the bull by what she asked this court to do w district court to do she asks the court to she says that she brings us action pursuant to the provisions of the m s p statute to recover the conditional payments and expenditures made by the federal medicare program that's the relief that she seeks she wants to recover the conditional payments recovery of the conditional payment which is owed to medicare and recovery for damages associated with that does not solve her injury in fact which she claims as it is something entirely different the payment of the underlying torch argument that would not resolve that issue and so the it is her injury is not redress the blow by what she  i'm happy to answer any other questions regarding standing and otherwise i'll move on to the substantive aspect of the case as judge wilkinson pointed out this is simply not a case of failure to pay one can not both pay and fail to pay greater baltimore medical center made the payment with respect t underlying tort judgement to plaintiffs in the underlying state litigation that amount undisputedly included the amount owed to medicare this was not a settlement where there were particular terms on what was being paid and what was not being paid this was a circuit court judgment following a medical malpractise trial and the cost of medical bills were awarded following the trial g b m see took appropriate steps to reduce that judgment pursuant to maryland law when a final judgment was issued g b m see that amount and paid it within a reasonable amount of time we in maryland is there a normal time limit  e considered a reasonable time and we can just mention there's a time limit at which actually your honor i'm i can't answer that one hundred percent what i can tell you is that inch post judgment interest starts to occur on the day of judgment and here mr tolley pointed out that greater baltimore medical center paid one hundred thirty eight days of post judgment interest and use that to suggest to the court that the judgment really was one hundred thirty days late so setting aside whether the hundred thirty eight is relevant what i want to point out to the court is that is is or was a business decision by g b mc to remove another aspect of potential litigation so g b m see decided to pay one hundred thirty eight days of judgment interest despite the fact that it had not been that long since the final judgment in order to end that particular aspect of the litigation these business decisions are made by litigants every day all the time and it simply does not equate with an admission of some sort that the judgment was paid one hundred thirty days l e here for purposes of this litigation i think it's irrelevant whether the the judgment was paid fifty days or hundred days or one hundred fifty days after the judgment or the revised judgment or the final congress wanted to essentially punish a failure to pay and that's not what happened here there are multiple examples in the case law actual failures to pay and usually those involved parties who simply take the position they are not required to pay and so they don't they don't pay after suit is filed and in the district court and they don't pay while the case is pending in the court of appeals they have taken the position that they are not required to pay and so they do not and when they are wrong that's when the double damages kicks in and the double damages say no you are a primary payer under the medicare secondary congress legislated this in a way that answers that question i think that if i were standing here today and i said to you we're not denying that pay we just haven't gotten around to it whether that's you would know your lay i wouldn't feel comfortable doing that you know so that that i think could be considered a failure it's it's the time that's passed and the context of that time  in all of the cases i've read where there's been a failure to a even as the appellate court is considering the case there continues to be a failure to pay and so i don't know that i can answer the question of whether you know two years or five years is tantamount to a failure and i think it depends on the context of what else is happening i'd also like to point out that that a private party is not this is not the only mechanism of recovery the exact same essentially the exact same statute applies to medicare there's this second statute that allows medicare to come entities or insurance companies directly when they haven't paid and certainly they didn't do that in this case the clock starts to run and if there is a there are lots of circumstances where an initial judgment issued on the on the day of a jury verdict is revised whether it's revised up or down and what i think mr tolley will agree with is that the the ultimate amount of the final judgment impacts the amount owed to medicare mr tolley referenced procurement costs and we have a whole second appeal pending in the state of maryland related to that particular issue but the the amount that is ultimately due to medicare changes based upon the your met costs that are calculated pursuant to medicare statute so this idea that that the g m c was required pay medicare as a result of an initial judgment when it knew full well that it was going to be filing appropriate motions and that under the judgment would be reduced if it doesn't make legal sense and it doesn't make common sense well the other issue that i noted is that the original judgment was july twenty second if you filed your motion to reduce on august first which again would be a suggestion strong indication that there was no intent to my understanding is that none of that eighty thousand has to do with the actual moneys perhaps by medicare correct correct so under maryland law plaintiff in a medical malpractise case is entitled to seek the amount of medical bills that they were killed and that's what the jury awarded in this case the amount that was billed for her medical care what she is entitled to recover is typically less than that because she is entitled to recover what was actually paid by her or on her behalf and so the reduction in judgment didn't impact the hundred and fifty seven thousand and change to medicare it simply took away the excess that no one had ever pa actually communicating in early august so while the motion was still pending about getting a taxpayer going to the cation member so if you're getting prepared to pay pay dues one about particular piece of information that was actually one i can represent the court is that the day of our hearing to produce the judgment which was granted i emailed that very day with plaintiff's counsel and said we'd like to get you paid we need this piece of information and that it's information to do so claims that those were unreasonable or unnecessary pieces of information to seek and i don't think that's relevant whether it is or not i think the relevant part of is that g b m c was attempting to pay was planning to pay and was never and never took the position that it was not required or was not planning to so there was a genuine dispute between the parties in terms of what information from a financial standpoint point he was entitled to to cut the physical check but this was just never a case where where there was an intent not to i'm happy to answer any further questions  that completes my argument thank you that the case we wrote for the case we relied on is a case from the district of maryland o'connor versus marin city council baltimore in which the district court in maryland held that a medicare beneficiary who alleges that there's been a violation of the statute that has caused medicare to pay for the medical costs and medicare hasn't been reimbursed that was a sufficient allegation to establish standing under this statute we allege precisely the same thing because that's what the case law in our district says is enough in addition to that we allege the longstanding litigation in the unpaid court judgment that they hadn't paid medicare and there are injuries in that in the violation of the statute although it's not automatically under spoke to the ninth circuit's the ninth circuit held that the violation of the statute in that case was enough to establish standing the the supreme court didn't say and spoke you know that there was notes in the supreme court and spokeo said the ninth circuit didn't look at particular ised injury and we're responsible to deal with changes in the law but the violation of this statute establishes an injury in fact that's our that's our contention the injury in fact was that my client gets less money that you can measure portion of it to medicare and we're obligated or allowed under the law to keep a portion number one number two they're obligated to pay one hundred fifty seven thousand to medicare even though they paid us western heritage says that all the cases that follow western  the the the the the goal here is to hold the primary plan's liable that's what congress intended that's what we're trying to do the delay they  mean council stood here and said you know well it was two years and i had to stand here i'd be uncomfortable saying that would be a failure in every case if it all it took was to pay the the liability after the lawsuits been filed then there is no point to a private no there's no point of all of the two year cases now before you know the sixty day case sixty days is by the way what do or sixty days from the date that they're that the judgment establishes their responsibility as a primary plan that's when when they have notice that they have notice of the amount and they have noticed that they are a primary plan about sometimes the different parts of a judgment impact other parts of the judgment and you want to see that kind of wrapped up as a whole and then you have a perfect right to defend their case and they also have a perfect right to ask for reconsideration which in fact reduced the total award and it just when you talk about the purpose of a statute i can't believe the court of appeals decisions spangler in makati for forty nine maryland thirty three footnote twelve where the court the court clearly states final judgment is not affected by the by the subsequent things that happened in that case which included vacating the order appeals and remains in another appeal and other remains the the the sixty days i also refer you to the joint appendix page forty four that's what they said the deadline was in the in the district court sixty days and we waited one hundred twenty three days from what we believe is the final judgment establishing their liability three hundred eighty nine three hundred eighty nine thousand dollars was never in dispute after the entry of that judgment including every penny of the medicare liability every penny of it none of the medical liability was issue in the ministerial reduction which we