everybody can be heard properly and that all questions and answers will go through we will take whatever time is necessary to make this happen just one heads up there may be a need for a short break between the th and th cases but that will be announced as the time approaches our st case for argument this morning is marion healthcare again southern illinois health care mister polar pleaseth the council on health care is complicated financing of health care is extremely complicated and this casey insurance companies were the cat's paws in was the cat to sell insurance the insurance companies must not local hospitals and local health care providers including i c u who are used to poor before we get too far into the merits i have a question about jurisdiction the case was finally resolved by a magistrate judge supposedly on the party's consent but did blue cross as i will call the insurance parties in this case did blue cross consent to a decision and i did you know this is not a problem i see it is a potential problem y well every potential juror a critical problem was a problem it needs to be addressed we have a purportedly final decision by a magistrate judge entered without the consent of one of the parties but cross had one summary judgment at an earlier stage but it remained a party and so the question i have for you and for everyone else is whether we can do anything in this case o dismiss the appeal and tell everyone to go back and present this issue to a district judge for just three i think that would be a likely reasonable option at this point given that the court and i don't believe anybody but your honor just recognize that fact i certainly did your honor well this is the kind of thing parties are supposed to cover in their briefs we require jurisdictional statement to include such things as did everybody consent to the magistrate judge whose decision leverage their monopoly power and i still going on today now one of the things about this is interesting they use the impatient let me ask you one more question here use the services at your client well i think the answer to that is yes when they can come there but their market and that's that's the problem there isn't any exclusive dealing your client can get reimbursed by all of these insurers what we're looking at is price discrimination your client will get less than other members of prefer patients as a result of the exclusive dealing cost patients are covered by the insurance companies to migrate from our particular facility ok you're not getting my question you  agreed that the insurers will indeed reimburse services your client your clients problem is that the reimbursement is at a different rate than the reimbursement in preferred provide organizations in network organizations modern western is why should we think of price discrimination which this fee is as exclusive dealing audit i think pit one could argue that it is price discrimination i think most of the cases that i'm aware of in the th circuit treat these types of cases as exclusive dealings when in fact there are many of them are or could be construed as price discrimination meaning in some cases that patient wants to go to ask there is no insurance coverage the patient asked to pay the entire bill but if they go someplace else they don't have to do that but i think it's it's in bad situations it's both of exclusive dealing and it a price discrimination argument i don't think they're both mutually exclusive that being said i think they'd want the lower court missed in this particular case with the market realities of how health care is reimbursed and what that what those exclusive contracts did to the patients choice providers and and they cost differentials they may differ payments based on where you had the procedure done regardless of whether it was the same procedure itself they used the where in the record have you shown antitrust injury that's caused by what you allege to be exclusive dealing i don't see seventy nine you'll see how the our patient encounters dropped from five hundred and eighty in two thousand and eight to five hundred and fifteen in two thousand and nine these are patients covered by blue cross there the reason for the primary reason that the record showed for the reason for that occurring was because marion healthcare chose to remain out of network let me let me address that because that's a very important  start to come up with this theory you're going to have to ignore significant and substantial evidence in the record that shows reached out the only thing that you're going to you're going to have to do is you're going to have to x which is clearly the case i gave you another example were in some ways i wonder if the court really well there were some mistakes made i'll call the credit is coming up with all of these these determinations based on incorrect inferences inferences that it should not make under the summary judgment standard and what i tell you another thing jim that particular comply if you're tourney's card me to find out if they're basically copied or complying but i'll tell you why that decision was correct your honor because you never had it and in some way each had an opportunity to vie for the contract to compete for the contract we had knowing that surgery center plaintiffs in this case has no opportunity to for inpatient services and that really was the corrosion that was used against the interest companies in this case meaning if you want to sell insurance were in for a penny in for a crown didn't they write not the back on it but to get back to this argument that somehow was an out of network strategy i want you to just think about this for a really very interested really signing an agreement with many many insurance companies so that that this argument well it was their strategy in fact when they find signed the st contract in two thousand the lot of them were so desperate because they had no way to get any patients they were held hostage and they said you sign anything which they did looked promptly lost a whole bunch of money and they they had to get out of that and they think said we we can't do this contract but later on they signed a nd hand track in their room that contract today but actually she didn't and we assess the credibility of witnesses they chose between competing reasonable inferences they put blinders on i mean the court doesn't even to assess the biggest the biggest issue here that we signed two different contracts with pell quiets we made multiple attempts to sign what they were really trying to do and i'm going to go you didn't sign up with blue cross back in two thousand and four because the market was different we're talking about the relevant time period from two thousand and eight to two thousand and thirteen that's the relevant time period but as the market change if that's what each wants to say that's never good then what they're obligated to do is come up with a valid methodology but that does not turn a good then we should have done and that we could not do that's why twelve minutes or less great thank you your honor i'd like to address your honor's question st on jurisdiction the procedural history of the cases that after judge jandal dismissed blue cross blue shield with prejudice marion healthcare filed its rd amended complaint a rd amended complaint did not list who crossed the shield as a was a party on a p r because of the argument is that a plaintive dismissed it as a party then it wouldn't have to consent to the magistrate judge but it couldn't be the subject of an appeal if it is lawsuit it is just prevailed in the district court the reason it is a party on appeal is that it's been a party to this lawsuit all along and that's the cause of the jurisdictional problem who cross was a party which never consented to have anything done by the magistrate judge your honor the parties consented to the magistrate to resolve the rd amended complaint with in which to cross blue shield was not a party and so in that context counsel i will be asking for supplemental briefs but if your position depends on the proposition that somebody who wins summary judgment ceases to be a party in the case i think we're in deep trouble here your honor it's not our position that blue cross blue shield ceased to be a party at a summary judgment was after a motion to dismiss where it was  you don't cease to be a party by defeating your opponents claim that's the source of the problem  honor i guess we can address that and if we get the court's going to order a supplemental briefing on that we can address that and we our position is that the that for purposes of resolving rd amended complaint that blue cross and held that m n c failed to support causation injury or damages because in the words of the district court they the court would have to engage in pure speculation to find sufficient evidence of an a trust briefing that's not true and just report outlines and detail as does the special master the areas in our briefing where he addressed causation in any event it's not particularly and this is in the uncontested facts that a special master laid out that neither party objected to they had the opportunity to object and didn't object but it was in those uncontested facts m h c had an  network strategy until at least two thousand and ten that's in a separate separate appendix and it's uncontested that m e c c iraq during the period of this dispute rejected contracts in pairs because they didn't like reimbursement rates so m h c proceeded on his out of network basis and rejected in that work rates because it's  more profit in spain out of network and that was their preferred business model and if you look at the tree where all the pears is cleared there's no way there's no evidence that had a buck for the in fact in two thousand and eight the record shows that health link proposed rates opposing a network arrangement with m h c and i mean she rejected that contract because of low reimbursement rates and then even when they entered into the contract in two thousand and twelve they terminated the contract because it wasn't profitable for them to be in network because of the low reimburs was until two thousand and fifteen with the one payer in which there was no exclusive contract that m a c actually entered into and in network contract agreement between health alliance and as i age after two thousand and ten but there simply is no evidence of that and the district court and the special master both agreed that and part of the uncontested facts that that there is no evidence that that health alliance didn't contract with m a c because of any of a constructive agreement with sh there's just no evidence  of and in fact there's only affirmative evidence from health alliances witness that there was nothing no agreement with sh that prevented and maybe from contacting the day after they finally blue and then it isn't until two thousand and fifteen actually m a c does get into negotiations with blue cross blue shield and blue cross blue shield and this is again part of the uncontested fact offered an above market reimbursement rate to m a c and m h c rejected that because it wasn't good enough even though as the district court and its special master found the blue cross blue shield proposal was equal or more generous than that offered to other surgery centers in the area  seeker can you can you address the point that mister player a made with respect to antitrust injury and damage by relying upon those few paragraphs and the we need in order to prove harm to competition an antitrust injury m h c have to put forth evidence with a fair degree of certainty that there was an ink there were increased healthcare costs or a decrease in the availability of quality of health care and that just doesn't exist in in this record as a missile matter you know just in terms of an to test injury or forfeited its challenge to this positive ruling because it didn't address it in its opening brief nowhere is this argument about antitrust harm included in its opening brief and nd the argument that there are higher prices well it's argument at the court below where the bear was there were higher prices in the southern illinois market compared to all other markets in illinois and as a special master and judge beatty found there there is no analysis of if prices existing a different market so there's just not a support record for that and apparently m a c has abandoned that theory of harm than surgery centers because they have a must higher much higher cost structure they're open twenty four hours they have emergency services etc so there's no dispute as the district court and special master found that hospitals are going to be more expensive the problem is is that there are other options for patients besides going to a hospital under the uncontested facts there are four other and with tori surgeries and hers that patients could have gone to other than marrion health care and so in order to understand properly whether prices went up or down the apples to apples comparison is not surgery center the hospital it's surgery center to surgery center and the record reflects in that and there's no evidence from m a c to the contrary that the surgery centers are affiliated with southern illinois health care which is decision surgery centers is one example that vision surgery center was less as age hospitals were the cheapest in the seven county area of southern illinois in a comparison so there's just no evidence of any increase in prices and the other thing that that the patient doctor both was admitted there's a multi factor test that includes the bill how much it procedure cost what do you discount that are in the contract between the insurer and the the provider and question harm competition there is no evidence of any impact on quality or availability of service the trial court uncontested fact again which neither party challenge said there's no absolutely no evidence in the record tending to show any relationship for world it's not based on and make the being in network but it is based on any three remaining out of network so the opinion is completely divorced from the theory of liability and therefore judges would desire most so prepared to offer some supplemental thoughts in addition to those made by mister d on jurisdiction and i'm happy to start there are some such seems to be the court's primary the rule fifty eight it was appropriate for the case to move forward on appeal because all claims for relief had been denied the court is worried about the issue of consent of the parties blue cross as a party it was not sarve party on appeal if your view is that blue cross ceased to be a party where a rd amended complaint was filed you shouldn't be here but evidently you believe your a party for the purpose of the appeal which is a rule fifty eight matter we think were an appropriate party for that issue then more narrow question in fact lead counsel that's because you were and always have been a party to this case that is the problem under six hundred and thirty six see all the parties to the case have to consent to a decision by the magistrate judge or there can't be a direct appeal the decision of the magistrate judge has to be reviewed by the district court that's a i think i mean everybody needs to see that that's the problem the court could also take it into express we voluntarily submitted to the court's magistrate's review by moving the court for relief up to receive a protective order as a nonparty  later in the matter also could take a look at the court's case in coleman and what is the appropriate context for an appeal that case the court was worried that a named party had not the issue is one of context and there was an issue of formality as well under coleman it was a named party in the complaint that was then moved for relief by the magistrate judge in our circumstance we're not a named party at the time the case moved forward oh come on it certainly you were a named party you were named in the complaint you didn't cease to be a party you don't tell was that you think you were not a party in this litigation right people don't become parties and then on parties and then parties again somebody who wins on summary judgment is still a party but  just won on summary judgment or has one on it will be six motion that doesn't make someone not a party that's a pretty basic rule of procedure again i think we're prepared to offer additional thoughts and supplemental briefing that that's important to recognize rule fifty eight and six hundred and thirty six might have different procedural postures with respect to consent versus a view was we were not required to consent but in the context of as an as a non party but the court because this is affectively a ministerial issue you could take into account whether it's implied consent or the standard taking it in totality whether it is appropriate to return us and then come back to you a couple months later and also prepared to address the substance of any and i trust issue i think it's only note for the minute that we have left that the appellant uses the term in this argument gun to the had which is the opposite of fire liability under the sherman act or the clade knacked and whether the issue is exclusive dealing or price discrimination the court and i trust concept is one dollar of market power buyers don't have market power mister much nic has there ever been an argument in this case whose arm and option is in the in the complaint it identifies that compete unless the court is anything else we made a point quickly about direct to stop all in our brief it was not addressed by the politician any time and could be considered waived as a defen have nothing further your well thank you very much counsel court requests the parties deposit supplemental briefs about jurisdiction within fourteen days those briefs should discuss the effect of coleman against the labor and industrial review commission