excluding the claims data in the court notes and three with the court error with regard to the regional source and public disclosure requirements when it ignored the plain text of the false claim statute by reading into it an arbitrary specific period of time before the fire out we proved your honor that so they had business plans that documented well efforts efforts to market the drug off label we also proved we had evidence that they had marketing plans that documented strategies for an off label marketing we also had sales training documents showing the manipulation in the implementation and manipulation of the schemes and we had call on the formulary or the companion ok and for there to even be any claim there has to be a doctor prescribing your basic theory is that solving a has brainwashed all of that prescription it just seems like if you did have this nationwide terrible scheme you would just have better evidence and you have after fifteen years of litigation it's a little bit startling to be we had a lot of it wasn't fifteen years of litigation  and whatever ation you have and it seems to me that what you've got is a bit of a whimper here i mean these call notes even if you take the question is not here saying all that really don't show us much they don't really tell and because honestly it's not often able marketing for a doctor to say to a sales rep guess what i used your product well i got a stomachache you know if it's an o c d drug and i used it to cure my my client my patients stomachache and is great that's great to hear so happy that work that isn't off label marketing but what is off label marketing is when the sales reps go to the doctors with an off label message that has not been approved by the f d a what they're doing is they're going around them circumventing the f d a requirements that you do drug a medically accepted indication i mean the do that yet but you have this problem has a couple of problems here and one of them is that the doctor can prescribe off label another one is that medicaid can and will reimburse off label uses as long as they're on the companion so that's a problem for the notion that there's that and necessarily the off label marketing causes all of this there's also this other fact that you have the doctor prescribing who has an independent obligation to take care of his patient or her patient and you have the fact that if you want to just follow what the f d a has approved medicaid shouldn't have approved any of these  is also yes that yes there's also private insurance and i think that we're dealing are evidence focused on the medicaid portion of the case i understand that there was a tremendous amount of evidence that our experts dr rosenthal have reported our economists for marketing talked about the schemes that so many employed and it's a fact issue for the jury to decide ultimately whether or not the conduct was a substantial factor in inducing this emission of the claims was it reasonably foreseeable so they knew more of information about about relationships between the pharmaceutical house and the particular doctors and detailing and how the allocate their resources that matter and i just don't know to what extent that is  know your rocket and i don't know it so you can help me with that we got a lot of information from so they detail not only were they were doing but they targeted certain doctors in we got the track to the information so they kept track of who they were talking to but the difference is your honor i think that it's important in this industry in supporting for you overall representation is here that we've got always the disasters that could be caused when you start detailing an off label message of drugs  approved in the united states so it couldn't have been prescribe or anything and the doctor has to make an independent medical judgment that this use that is off label is in fact good for their patient having considered whatever they need to consider but the point is you seem to be arguing really is a policy matter that we need to worry about this off label marketing and so we need to allow your clients to proceed as relator is under the false claims act but i mean the f d a already has their own punishment vehicle if they think of label marketing's going on as this nationwide scheme and blah blah blah there are criminal penalties sociate with that they can pursue that you are kind of trying to go from that which is one world into a different world of false claims that and i think this is where the translation goes it's not do we think off label marketing is bad and evil and we should all be worried about it but whether i mean congress has already identified a a penalty for that you're wanting us to take  sential is statue that has to do with something else and fit this into it and to do that you've got to prove causation and this gets back to like i said looking at these comments of going really this is you grade stunning evidence it just doesn't seem that and goes yes i know that we're only authorized rosie dba guess what also works for the specter and the including autism that's all playboy marketing but not just talking to a doctor who brings up some article they read but we had the marketing materials tools that they were using as a matter of fact our clients were fired for this off label marketing they were told to do a do or written policy saying don't do it and then there were the oral policies that said go ahead and do it and that's why they were ultimately fired because they followed the moves of some way of trying to meet with the have to market the drugs and to allow the sales reps to make those communications they were off label and the entire process is tainted when for example in the drug a c r when you pay a doctor one hundred dollars for every prescription or in the silvie city for the c r drug when you give a doctor two hundred fifty dollars so you can just follow the doctor around and talk to the doctor but your sales pitch is that all goes together about your see not only was there the marketing tools but there was the bribes to the doctors those to your honor we are very conclusive proof and a substantial factor in getting the doctors prescribing drugs these doctors were doctors were generally on sylvie's list of the top ascribing doctors they kept targeting the same doctors because the doctor knew of i'm not going to get paid you know i'm not going to scrub the drug so they wanted to make sure they dollars and you prescribe a drug you know it's you know isn't that clear connection was it i mean you have doctors that are getting paid to give speeches you have doctors are again paid to do tasks you have doctors sitting in paid for legitimate purposes but you're saying is really for an illegitimate reason that's a little different it's all the same as the coke place and the celgene case out of california those two cases were there's not many cases that have gone there's several cases of going to trial in the dissenting case passed summary judgment to call the case past summary judgment and went to trial judge higginbotham was on the panel the case when it reached the circuit and there's the park davis case and there's other cases that have gone but if the courts look the jury decide whether or not so he's marking efforts which is to give any campaign contribution to state court judge in texas and the next week you win a summary judgment is not a kickback is that a fraud it depends  on in an isolated incident more don't shoot and i simply tell you right now the law is that you need more and there's a reason for that because otherwise every campaign contribution would appear to be a bribe and nobody could ever be a judge for any got body whoever contributed to them their that because simply making a legitimate campaign contribution and there's limits on the amounts and i understand that it simply giving one hundred dollars every month you're still within the five thousand limit and then that you happen to win a case without showing any greater link like here judge write your check and i expect a little consideration then you've got a link but just giving a camping contribution not enough but that's the that's kind of what you got here that's legal you can make a campaign contribution the law permits you to make that the law permits you to pay donors to speak but not to speak with the quid pro quo well but there is the problem of the quid pro quo what evidence do you have of that we have evidence your honor we have a lot of marketing evidence that our experts put together showing the results of the ski dr rosenthal in our expert report took all the marketing efforts by so and made conclusions and she focused in on certain doctors and she looked at the off label marketing and the off label medical data the voluntary disclosure i have your declaration and there's a few other people's declarations is there any other evidence that i need to look at to know whether if we sent this back what would the judge have to consider on whether or not that is the proper disclosure was made and in content the declarations pretty much tell it all there's also a time don't tell me anything i mean what you say is we talked about is that enough just to say look we talked about haters off label marketing of these three drugs is that enough it's enough to say to the ages in a ten hour means that there's off label marketing that's similar to the language in our complaint that's the time we don't have we haven't broken down in the affidavit the detail the extent of the discussions it was a ten hour meeting with the agencies and what about the fact that you're trying to have it both ways you're trying to be a lawyer who writes a declaration on behalf of his client but then says i'm not giving you my no to do this to satisfy the original source requirements so you know we if the judge decides we need to turn over the notes foreign but we we have the obligation under the statute to make that voluntary disclosure in his lawyers it's not always easy to find somebody else to do it that statute was in place you are this is the this is the meeting you're relying on yes but you're keeping them from relevant information about this meeting and we're just posed to kind of believe that this wink wink this you know this is what we mean isn't enough to prove that you really did the full voluntary disclosure that's required i mean put another way we're going to send this back to the district were to look out ok you can consider the deny meeting or you should consider it we have the information we conveyed it he never even dealt with those issues he just basically cut us off and said ultimately that you did not tell the government early enough and re i'm just suggesting that it would be a proper interpretation to hold a hearing that is if there's any issues that the court had about the extent of the disclosure of the we also had evidence honor about that substantiated the off label fraud scheme of the manipulation of drug depp's drug debts the court conferred a moment ago there's two ways that you get the medically accepted indication only favorable to them and they did small studies that showed the fame was outcome of their results but they hid from the compendious people larger studies that were registered studies that they were going to have to give to the f d a but they were failed studies it's the half truth that is discussed by the supreme court and escobar and those have to say the court ruled that they had no duty or obligation to disclose  dealers about negative results you do when you're trying to correct a half truth you can't tell part of the story and keep from the the regulators or are drug addicts in this case hired by the government to list these drugs real leaders defense of this case was based on a narrative that ultimately didn't match up to what they submitted as evidence and the evidence they submitted was problematic in its own right judge miller acted within his discretion in making admissible and the objection would be that it couldn't be put in admissible form that's the objection that has to be made the judge has to find it can't be put in admissible for in that case it was a a writing from an expert but it hadn't been sworn to we said well that doesn't that still need to be considered is it your contention that the necessary data cannot be put in admissible for yes your honor that is the point that and i think there are a number of layers that are important to understand in that argument so the first the first question that i think your honor is focusing on is could the district court have properly excluded this declaration under was thirty seven because the  declarant kevin leman wasn't properly disclosed because the way the relator suggesting they could bring the senate trial is through someone who actually can't testify he wasn't disclosed the four factors test that this court applies in determining whether a district court acts within its discretion in excluding a witness is satisfied in this case all four of those facts support the reason that the district court reached the second problem is that he actually wrote thirty seven which has been amended since our early cases on this itself says there it's supposed to be excluded unless the failure to disclose was substantially justified or harmless is actually a different standard than the original case that said about the four factors  to tighten up rule thirty seven but ok tell me about the four factors anyway why i do think the four factors are the same ones this court has continued to apply in examining whether a failure to disclose was substantially justified or is harmless in the first factor is the explanation for the failure to disclose the relator have never offered an explanation they simply didn't apparently seek this authentication information until after four months after fact discovery had closed and that was despite the fact still they had been asking about this and how long was the case in actively because he's saying well it's really not been in litigation is two thousand three been frozen in this net how long was it and in active litigation at the point of the non disclosure if you will make how many years and they had to disclose the data was first produced i believe in twenty thirteen and at that time so they began asking questions about it because this data out there was produced as t x t and excel files with no additional information gave no nothing about it identified where the source was how it had been manipulated what how it had been augmented it didn't match up to anything so they could determine what would have been material that was in front of judge who heard it specifically warned that relator is that if there was information that was missing judge miller might hold that against them and that is in fact out what ultimately happened when they continued to refuse to provide an off indicating witness and this was important because this data included diagnosis information that was not in a pharmacy claim form it came out at the hearing that the relator is had hired two other individuals a man named tony morrow and a woman named karen carbon to do some sort of matching exercise where they took pieces of data from one dataset and pieces of data from another dataset and attempted to combine them as the district pointed out that matching exercise wasn't disclosed in any of the declarations that were belatedly submitted and on appeal the relator is aren't even arguing about the exclusion of morrow or carbon this becomes particularly important because the summary judgment evidence that they submitted consisted of summary charts and the information in those summary charts was drawn from the carb and maro spreadsheet it didn't come from anything that they are now saying kevin raymond could authenticate so and you can see this is a try looking at sarah frazier's declaration that she submitted in connection with some apply in paragraph three that can be found at our away five seven four three two so the information that was in the summary judgment record came from manipulated excel spreadsheets that there were leaders are not disputing it was not properly authenticated and i'm not contesting the exclusion of the individuals who put together that information it's just a stepping back it seems like their whole case is kind of like we have proved we there were later as have proved this nationwide evil off label marketing scheme we have proved that doctors prescribed medicine for off label uses and we've proved that medicaid paid for some of that why isn't that that is certainly the narrative that they tell your honor but that narrative does not match up to the evidence in a number of ways and if i could just take a step back to start with the scheme atherton's relator is are essentially asking you to be the first court in the nation appellate court in the nation to ever hold that a relator doesn't need claims to go to trial this court though has said specifically that liability under the false claims act attaches to a claim for p meant not to underlying noncompliance and it has specifically said that the false claims act is not a general enforcement device for ensuring policy compliance with obligations like off label marketing pro it's strange with them about you know the f d a can still go after sol but if they want on the same exact nationwide scheme that's correct john and in this sense i think the booker case from the first site first circuit that we provided in our twenty eight j letter is very relevant because what the first circuit explained is that the district court in that case much like the district court in this case did not need to address the scheme evidence because even if there is skin evidence and i don't agree that there is in this case but even if there is unless that scheme evidence is actually connected causally to claims it relate or can't go for it i mean they're saying it's connected causally because you do this massive marketing you bring these doctor sandwiches and you pay him for this and that  follow them around and you harass them as part of this nationwide scheme to do off label and then they prescribe off label some of which is going to be paid for by medicaid and you know that why isn't that good enough that's their argument that you know that your action is causing these prescriptions in total i mean some for that are private pay some of their private insurer that or some that or something else and some that are medicaid why isn't that good enough if you know that the effect in fact the purpose of your off label marketing is to get more prescriptions relied here in part on suggesting that their case is like the cell gene case from the central district of california but you can tell just by looking at the blockquote on page four of their reply brief that their evidence is nothing like the evidence in that case in that case the relator had information about physician prescribe ingrates and how they had changed based on marketing contacts there is nothing similar in this case the relator is also had evidence of hundreds of thousands of claims for not reimbursable prescriptions and of course these are later as have no evidence of any claim that is for a what i'm trying to understand all that is i don't understand in a way putting aside the issue of the off label causing it i don't understand how you really could have a false claim because either it is a for an f d a approved diagnosis or it's for a compendium approved diagnosis we use that phrase in which case then medicaid will pay or it's not so if somebody guess what they're trying to say is that in making the claim in the first place to medicaid they're saying we did everything lawfully and that by the nature of the off label marketing that's the unlawful link what's your answer to that but i just want  back up one plane on the premise of your question your honor because when a claim is submitted and i think this is why the diagnosis information becomes so critical and how it was injected into this data becomes so critical that clean doesn't identify the diagnosis for which it's being submitted so when the claim is presented to medicaid texas medicaid texas medicaid will pay the claims without knowing whether it was written for depression or a stomach ache so this is why the diagnosis information and the matching exercise that they apparently attempted to do through these undisclosed witnesses became so important to doctor is prescribing it for the stuff again and it's not on the compendium than the doctors the one committing the false claim rather than anybody else i think that's right ron and that's where the causation evidence would become so important that also they are lacking they would need to be able to show that the reason the physician wrote that claim for the reimbursable use was somehow the result of so marketing marketing activities to that doctor the only thing they sought to use to establish that causation was calling those and as your honor has already pointed out these callers are very cryptic on those that frequently have absolutely nothing to do with and on their face make no reference to the alternate diagnosis that there were later is are saying the claim was submitted for that is the larger point because i'm actually disturbed by the idea that a doctor can't talk to a sales rep about what the doctors are experiencing because it's actually very important for example the doctor had prescribed it for stomach ache and the person had a terrible reaction the doctor should definitely tell the sills or at that you should definitely reported to the company and that should be something that they become aware of  the idea that any time anything other than the f d a approved use of the medicine is discussed by the doctor the cells are passed right out the door screaming with his ear covered is worrying to me because the whole notion of this is that you do learn how doctors are using and that can first of all lead to more f d a approved indications and also lead to contra indications and warnings were necessary so we agree here i neither do i know you or you will agree with that but i mean it's a point that hasn't really been made of when we're going to get in delve into policy that's part of the policy i think it highlights that one of the problems with the way related tried to use call notes as their sole basis for causation they didn't actually go out and oppose sales reps to get information that they then could have used to provide a clearer narrative about what was happening during these interactions and what the sales reps were saying about causing physicians to take certain options they just they just didn't do that so to be clear i think there are at least five ways that this court would need to conclude that the district court abused its discretion or erred in order to reverse its ruling on the off label marketing the first as we've been discussing is the exclusion of kevin raymond's declaration under the thirty seven c the second is the declaration didn't identify even the drugs it didn't claim personal knowledge without any clearly that was ron it just referred to this ambiguous query being run and in fact the cleary was run by a contractor of texas medicaid who was not mr raymond's employer and there was no one who submitted a declaration from that entity you would also need to find that the district court abused its discretion in finding that the summary charts did not satisfy the evidentiary standard under this court's rule one thousand and six case law for some recharges you need to find the district court abuse its discretion in excluding the hearsay from the kongs the doctor's statements that we've been discussing and you would need to find that the district court erred in finding that the example later relied on did not create a genuine issue of material foxed as to whether so they caused the false claims to be submitted we think all of those reasons and they would need to run the table i want to be clear they would need to run the table that all of those things occurred incorrectly in the district court in order for there to be a reversal of their off label promotion that you do with the bribe idea that it seems like doctors are getting paid for stuff that you know it's sort of questionable why that payment is being made other than to get them to prescribe a drug you respond to that to threshold points i'd like to make on the kickback here the first is that there kickback theory depends on the claims data being admissible so if this court concludes that either because mr raymond was properly excluded under most thirty seven or he didn't authenticate the data anyway did the data doesn't come in from the kickback ruling on that basis the second point i want to make about the kickbacks is that all of the examples they are including in their brief to this court are new ones they aren't examples that were provided to the district court with one exception and that is the reference to speaker programs in the reference to speaker programs they suggest to you that they have identified a tracking document that tracks the impact of speaker events i would encourage the court to look at the record site for that document it does no such thing it is a list of doctors i do not have the record say it right in front of me it is a document that is cited under their description of a blue box speaker programs and it does not suggest as they say in their reply brief that the speaker is the four speakers they've identified were top prescribers of the drug in any event it refers to those doctors as being in the seventh and eighth death  care last fall the court specifically distinguished between a situation in which evidence shows that a program was designed to induce these type of prescriptions to federal program participants from a program where perhaps you could infer there was some hope on the part of the defendant that ad the doctor might like their drug and might write more prescriptions that hope is not enough and in that case the district court affirmed a ruling on the end  kickback statute theory a false claims act liability on the basis that there was no intent and there is no evidence of an intent to violate the anti kickback statute that when i think applies with force here this is simply not a case where the court was being hundred dollars for prescribing a drug to a doctor again i would encourage you to look at the record because there is nothing in the record that supports that assertion on any of the record pages that they cite and so this again as i mentioned in my introduction the narrative does not match up to the material that they cite this was a consistent problem that's all they faced in the district court you can see in a number of the district court decisions that the district court was focused on not being a real credibility issue when it came to understanding what the evidentiary support for their allegations are there is no evidence of a quid pro quo i'm your original source question if i could turn to that briefly because it came up in the in the earlier argument there is no need to send this back even if the court disagrees with it with the idea that the voluntary disclosure and the mandatory could disclosure could essentially be the same thing we think the district court was correct in pointing out that there are two different statutory provisions one that governs mandatory disclosures and one that governs voluntary disclosures as a matter of statutory interpretation when something is set out as what if we were to disagree and say june could be the voluntary disclosure then or could you still win i think we still win for it for a number of reasons the first reason is that they did not it was their burden to demonstrate the jurisdiction was proper it was their burden to demonstrate under the supreme court's decision in iraq while the jurisdiction was proper on a claim by claim basis and they didn't meet that burden be the leaders themselves did not testify about the content of any pre filing disclosure that occurred none of the declare and provided any content either this is important for a couple reasons the first is that their original complaint looked nothing like the fifth amended complaint that they were ultimately litigating they added numbers of number of new theories committees they added a number of new off label promotion schemes they added a number of of kickback schemes so they would need to have documented an evidentiary basis for the district court to conclude that each of those would disclose that at the summary judgment stage it's the time to put up or shut up they had their chance to provide any evidence they could documenting the content of those disclosures so they had made very clear from the time that it sought the disclosure statements and it moved to compel them and it told the district court in that motion to compel that it sought to compel them because it wanted to raise a jurisdictional argument and so they were leaders were on notice from very early on that the content of any disclosure was going to be important they have chosen they chose not to provide that they didn't have either a later put in any declaration identifying the content and they rely on this conclusory assertion from mr enderby that of course is based on privileged notes that they're not sharing with anyone suggesting that there was some discussion of kickbacks and off label promotion but frankly that's not enough and the u s o would be you know what what what are we looking for here to be the evidence again assuming th meeting could be the boundaries closure and i know you disagree with that but if we soon that what are we looking for i think what you're looking for is so in many cases when a relator does of voluntary disclosure they actually did they put it in writing so one of the things you might look for is some sort of contemporaneous writing that identifies what they said to the government about which off label promotion schemes they're saying read issue for enter job are they saying this is about for example promoting androgel for stomach aches or are they saying this is about about promoting and herself for depression if so what did they say to the government about those things up the branch consultants case from the eastern district of louisiana walks through why the content is so important that he says it is analogous to this one the sense that there were later had named many many defendants and the question was which of those defendants were identified in the in the voluntary disclosure it turned out a number of them weren't and so as to those defendants the relator could not be an original source similarly in this case the relator is are trying to pursue a wide variety of off label marketing allegations about different conditions and a wide variety of kickback schemes so that the voluntary disclosure documentation would need to identify which of those had in fact been presented to the government what about the argument that they've put in and to allow for an evidentiary hearing that's where they would put on this more detailed evidence your honor i think the jamison case from this court makes clear that summary judgment is the time to put that evidence in there's not any suggestion in the statute that there is supposed to be some other sort of evidentiary hearing there were later is that we're entitled to put in declarations from the two relator themselves they were entitled to present written documentation about the content of that they were entitled to have mr and specify in detail as he wanted to speak on the relator his behalf out what those disclosures were and they chose not to do that in fact in that reply brief i think it's telling that they say the only content they needed to disclose was sold his name and or gels name and the phrase off label promotion and kickbacks that's not the law on the rockwell is not the law under the circuits case law and it's incorrect the other thing i'd like to point out about public disclosure is they are only defending their original source status as to off label marketing and kickbacks off label marketing and kickback allegations that have independent flaws the kickback ruling that the district court stuff and again that means that a step would apply to the kickbacks as well so we think there are high even on the original source question and number of layers to the analysis in the relator is would have to run the table on all of them again in order for there to be a conclusion that that should have gone forward if i could mention briefly dr dex the district court correctly found that there was no evidence linking their theory of improper publication strategy or ghostwriting they sponsoring one kind of study over another when to studies were very clear on their face as to how they were conducted what the methods were what the findings were and there was no suggestion from relator is at any point and certainly not in this court that there's anything about the way the study is reported that is incorrect in drug x ask a pharmaceutical company for studies that haven't been published before deciding about what to put in the compare i don't know why dr dex couldn't ask a company for that sort of information dr dex the evidence below show that dr dex maintains clinical specialists whose job are to evaluate study information they have internal and external review boards that they use to make determinations about what to say they about any study box or otherwise and instead the evidence differently documented drug x s independence from some of the pharmaceutical companies and how it makes decisions about what to include there was an issue that came up in the district court where they were later said suggested that a number of the studies that appeared in drug docs were not avail publicly available in the united states and so they must have come from sol they are but in fact as the district court noted in a in a footnote of its drug x ruling so they went out and found multiple libraries in the united states that had that study information and certainly dr x could have gotten it from the the relator have suggested that escobar somehow changes the way that their drug dex theory should should play out but that's incorrect escobar is an implied certification case it involves situations in which a defendant is implying at least certifying compliance with some sort of underlying statutory or contractual obligation to the government when it's in its a so the first of all it did not submit any claims to the government was so with the argument though be here that the doctor is implying lawyer you know the doctor on behalf of the patient i guess by sending in the claim is impl something on the compendium that should have been approved that's right and it's the but it's the half truth argument it's the half truth are given but but when you look at the evidence and there's no evidence that's all they provided any information to draw ducks there's no way that evidence could have been a half truth because there was no such evidence but you look at the fact that the studies that were in fact published in dr decks were accurate in describing their methods their conclusions who the participants were what the drug actors were not supposed to just take the pharmaceutical companies word for stuff i mean that's part of this whole overall process of approving drugs in general is that you recognize the pharmaceutical companies self interested that's exactly right your honor and that i think is why drug decks like the other maintain these clinical specialists whose job it is to review the scientific way to give study publications they don't communicate with with pharmaceutical companies and there was no evidence that they had communicated with solving about any study that they alternately published  particular type of doctor who wouldn't have any reason to prescribe for compendia or i'm able reasons they like they didn't like not to go forward to join but would you have any further action from the government about issues with their support for all of their other theories that didn't even allow them to get to to a discussion about what escobar might mean in those contests for all of the reasons we've been discussing we would ask the u s from the judgment of district court  addition to the normal elements of the false claims act that is entire and in the to reality and falsity and causation in addition to all of those there is this tacked on additional element would make no attempt to be all of the damages that rashly caused by the marketing because of the nature of private it's not possible to capture those and as was said earlier at the diagnosis is not even part of the claim and so the piecing in your opinion is the claim false because there was off label marketing that may have influenced the doctor in his or her practice of medicine or is it false because medicine was prescribed for uses that are not only not f d a approved but not on the compendium absolutely that has to talk to me about that what uses are not on because you're holding a drug x if you've got this put on the compendium falsely but that would mean it's all on the compendium so then is and more that medicaid wouldn't made for if it knew all the facts doctors prescribed to box for post indications outside of obsessive compulsive disorder in children and none of those are covered does contain a compendium of let me say that this might be the easiest everything that we address in the one hundred eight representative claims deal so i'm all right now let me ask you this if medicaid is so concerned about paying only for drugs that are either on the compendium or f d a approved why are they not asking for the diagnosis when they pay th going to the same place medicaid insurance company wherever if they were interested in that they could put back together the fact that they're not putting that together we're asking for that does that go to the materiality point that judge you can bob and raise if you don't ask for something th really be material to you you can put together a few examples and it and it does take a while to do and that's announcement of the project we took on for several judgment basically because the judge asked us to although we think pretty well and they can know that if their client their patients on medicaid and they're sending him to big prescribing a drug it's not anywhere true for medicaid you know on a compendium an f d a anywhere else but they're violating  in for a blue box we've got such a very narrow indication of obsessive compulsive disorder this was not a very common disorder it wasn't even a common parlance at the time as as much as it is now and it was not the domain of primary care doctors it was very much the sort of thing that you could look for a patient to a specialist for and so one of the things that you look at when you look at damages and your honor we have very specific numbers attached to the so here it and they are based upon let me back up a little bit so in the analysis done by our expert one of the tools that for disposal