well to a doctor named brown and that's what i'm going to focus on i'm not going to focus on the september sixteenth meeting and there's a big space with pages of the record that i'd ask you to focus on medicaid on geodon for kids if they want to but that congress has not permitted that for federal share but wouldn't you have to show some evidence that the there's a false claims made to the federal government but so that's the actual claim issue or aggregate data issue which which i'd like to turn to now i looked at the hutchison case that judge one troop and the stall case which i'm sorry escobar case not limited to failure to comply with a statutory regulatory precondition and so it can be determined circumstantially and as a court case when it gets to the supreme court the supreme court similarly holds that materiality  causation which includes circumstantial evidence and then in the run in the hard case that judge once wrote court held that causation doesn't have to be proven through testimony of individual doctors in part because that's inaccurate and instead it can be proven through a combination of aggregate evidence and circumstantial evidence so mired in hears it falsity can be proven circumstantially for false claims that purposes materiality can be proven circumstantially and causation can be proved circumstantially why can't this actual claims requirement also be proven circumstantially in in the hutchison case the first circuit said that relies on no one knows whether any actual claims are submitted to federal health care programs or not and so the person complaint says here's a scheme and there was some medicare medicaid and maybe geodon for kids so it's not like we're guessing maybe there's claims there is we know there were claims like you'll be  pfizer directed at sales force repeatedly that it should promote only on label that should promote sheet on for adult use the relator doesn't dispute this which he sat in his theory here is the contention that by going to doctors and saying that she had on is approved for adult use that implied it was approved for use in children there is no human being who has proper rated that purely speculative and frankly counter to the english language there is evidence of a sales rep saying that this is approved for use the written materials that they used said that there is no evidence that anybody at all interpreted that message to be a statement data that mr arkin ended with is tables that his experts talk about based on survey data the survey questions that were asked and this is in the record in our motions to strike some of the expert testimony o summary judgment discussion dr rosenthal testimony these surveys did not ask about one third of it that they rely on the n t i it does not ask about promotion it just asked doctors to record if they had a patient visit went into doctor's offices despite being told by his company not to do this knowledge as he disregarded that instruction during the three months he was still employed during this time period and told doctors to use jihad on her children there is no evidence that any of those doctors prescribed she had on her children either as a result of that conduct or at all let alone any claims from such hypothetical prescriptions were ever submitted to a medicaid program and  dentist says good job you may select a prize from the red drawer my eight year old goes to the bed drawer to pick a prize he doesn't misinterpret that or get confused about whether he should go to white or yellow chore if you tell a doctor the product is approved for use in adults that's all you said every time a sales rep walks into a doctor's office for any drug and any doctor that doctor treats patients a lot of patients who are sick with break the evidence as to who these people yes in this time period when relevant to this case pfizer went to great pains to promote only two psychiatr d prescribed and treated adults as well as children they did not call on pediatricians  and on that the cases we cited are are clear and they are there is no contrary circuit law the first case is unpublished and a little bit dated but it is consistent with the more recent cases from other circuits they did not label promotion but there isn't a special rule for off label promotion cases that says you don't have to prove the false claims and i think judge will block highlighted the nineteen jurisprudence here in the circuit i am familiar with that's very i've also been reading and enjoying frankly the haggerty laughton and you know decisions that this court has issued over the last three months which emphasize that it is not enough to plead skiing even with peculiarity and statistical evidence suggesting that it is even likely that false claims are submitted that's not enough to survive a motion to dismiss you need to plead the connection between the scheme and the false claims of causation piece of it and these are far more off that case is very analogous to this here the fact that data we've already talked about does not suffice to replace claims and let me be clear here it's not as though there wasn't an opportunity to develop this added and if it existed of promotional conduct by a pharmaceutical company to at least a group of specific doctors that they can then show on the record row prescriptions for the product off label and connect those in this case we don't have any information about what the medicaid programs during that time period had for purposes of coverage rules for cheated on for the off label use is at issue during that time period and one of the key ways in which an off label a sales rep they listed dozens on their initial disclosures to say i promoted this in this way and doctors and then a couple affidavits declarations from doctors saying i wrote prescriptions claims data from the state  something likely to do that not at all here perce crying off label is one hundred percent legal for a doctor to do the only issue for pharmaceutical companies is whether they are allowed to promote the company might have decided that particular patient that was an appropriate use certainly yes there are a host of reasons why a doctor might have but we don't even get to that point because don't have in this case shows that john smith ten year old patient of dr jones filled a prescription for cheated on and submitted it and got paid by massachusetts medicaid the doctor wrote the order in this case that allows the production of health information for purposes of this case and the key is the other piece of that is did a sales rep promote off label to that doctor if all of those pieces were together even if the doctor said that promotional people cause my prescription you know we could be having a very different conversation potentially but but this case is missing all of that thank you thank you runners the issue about the doctors is this you've got to get the doctor to admit that the doctor's treatment decision was influenced by the promotion it's not enough just to get the doctor say i wrote the script for the study she was just saying you could bypass the doctor entirely could just get the claims level data and then you get a sales rep saying i spoke to that doctor for which you have claims little data and down might be enough to connect the dots but you don't have money to think you don't have either thing but the explanation for why it's difficult if not impossible to get doctor by doctor testimony is the same as you're going to get it you have to get a doctor to admit i wrote this off label prescription projected on to this kid because the pfizer person promoted it to me and that is very hard and the one thing i want to remind the court which is obvious is that this is you know this is my case and your side of my case but if you require a doctor by doctor testimony for off label promotion cases you're buying it for the partner of justice too and so that's something to keep in mind perhaps as to the quality of the data that we relied on that and he i data that's the same se people pfizer was paying point six eight credit for each kid push scription so in other words there was a financial motivation that pfizer paid its sales reps for each he was going to be fired for reasons totally independent of the off label use conversation because of poor performance in your brief i just couldn't quite tell what you were saying you said he was not on didn't say i just had this conversation about off little use with him either he just said the day after this guy's performance has been bad and it said there's a big decision to put him on he said he wanted to talk to san plant he was a normal status employee in september of two thousand and nine that he has a september tenth conversation we talked about right or wrong number fourteen toward well in email sanderson that center so emails pleasure let him do his job what and do the third step you don't have to do it for him that's all i'm saying ok thank you you thank