relied on by the plaintiffs decision below is in conflict with the supreme court's decision in bridge would recognize the proximate cause requires a direct relationship between the fraud and the injury but if your honor said in phoenix bond direct victim is different from direct recipient of the misrepresentations where is here a drug company makes misrepresentations to induce doctors to prescribe an ineffective drug to people who pay for those prescriptions which of the plaintiffs in this case are direct victims both the first circuit and the third circuit have so held and we think this court should join them do you have a complete rundown of where the circuits stand on this question whe  we can read what their rationale it's in the other circuits in the second circuit there's the eli lilly case but first of all that case is up on summary judgment and class certification not a motion to dismiss and secondly the issue in that case there were two types of claims one had to do with the price being paid and that's the one with the second circuit said no no no the plaintiffs are wrong it there's too many steps in determining whether you would have paid a different price or not but on the quantity claim too many prescriptions being written  based on the misrepresentations that claim was remanded so the second circuit is really not decide this issue the ninth circuit case is a non presidential opinion so it seems to me that kind of does you can we go by the usual rule here of the ninth circuit cases or not know ok and then there's the eleventh circuit case in the eleventh circuit the district court went with the arguments that abbott is making but when it went up to the eleventh circuit they didn't decide on that basis they decided on the basis that if there wasn't an injury so i don't really think there's any circuit that has squarely held on the other side of where we are in this case now in britain sure want to discuss the teamsters  that right now that's where i was headed teamsters and the other tobacco cases there's a tobacco case in the second circuit as well a very different cases because those are cases where the insurer is not suing for paying for the cigarettes that were boy they're saying well the people who smoked got sick from them and they had more medical bills and the injury to the insurers was a century derivative of the injury to the plaintiffs to the smokers not that's  very different case and we recognize that if the injury is derivative of somebody else's injury then you're pretty much out of court that's not the case here how about to to phrase abbott's argument  understand it is that the injury here is derivative of someone else's decisions and the decisions the act of decisions being made or those of the physicians who prescribe physicians are going to prescribe depakote off label whether they ever hear anything from abbott or not and just take those two if you take those two possibilities how can one decide what effect and prescriptions went to five hundred percent in area b they didn't spend any money and prescriptions went up two percent and they do a regression analysis of nestl was done in iran and and they come up sounds like the kind of analysis the plaintiffs wanted to do the person who is directly injured has to claim and you don't have to you don't want to look at how somebody else down the road where the direct victim i mean the doctors may have been influenced in terms of percent describing or not but they're not victims they didn't take any money actually fairly complicated figure of who the victims are if depakote is the wrong drug for the conditions of people who have medical problems then they too are terms and they may have product liability claims in iran than they did but it didn't stop the first circuit from saying people paid for prescriptions also have claims when it could be product liability claims out there were not involved in that and if those people got sick and had they had increased bills were not involved in that illinois brick might be a problem if we tried to be involved in that but we're not and that would be like teamsters but we're not arguing that in this case for the money that we pay there is no other victim standing between us and addict if we're not the direct victim effective and i would point out something when we're talking about this your honor in the settlement agreement that abbott entered into with medicare and medicaid where they paid a billion dollars there are certain statements that they say they don't sign on to but there are certain states where they say we do  and this is one this is that you see f one zero four dash one page forty five the following appears promotion but depakote to health care providers for the treatment of schizophrenia caused that's their word caused the submission of certain claims to federal health care programs for that use these programs paid millions of dollars for claims resulting from the use of depakote treat schizophrenia and i suggested exactly the same thing is true with respect to the health and welfare benefit plans and insurance that we foreseeable or not and pull those criteria suggests that the claim here satisfies the proximate cause but it would be as as one case we cited said it would be extraordinary to think that you spend a billion dollars on off label marking and it doesn't have a significant effect on the writing prescriptions if we have to sort out which prescriptions and how many actually dowels it always polls that people are behaving rationally so your better argument relies requires one step or just one step or something like that but what holmes was talking about again was how many victims were in between the defendant and the claimant in homes you had a fraud it caused broker dealers to go insolvent and that in turn injured their customers and investors and creditors and all those folks at home said no i can't do that it's one step the broker dealers other direct victims here well here there's no a direct victim between us and abbott and many of the steps actually i would point out many of the steps that abbott talks about like you know whether or not the patient brings the prescription to a drug store or whether or not it gets filled with depakote whether or not you know they come back to pick it up i don't know whether they put a stamp on the envelope those are steps that are going to apply whether the plant the claimant is the patient or the t p s for anyone abbott is arguing there is no direct victim here and there is no one here who down and reserve my time for a while thank you thank you very much cause between defendant's conduct and their alleged harm this case is we submit no different than teamsters if anything the causal chain here is more remote intermediary decisions are more complex and the damage analysis more speculative plaintiffs rely heavily on the bridge bridge did not change the fundamental principle announced in homes to focus on is there a wrecked relationship here and as your honor pointed out the art both into mary decision makers hear the positions who ask the judgment be determined statistically your honor if that were true then in homes i do not asking about home i'm asking why can't the effects of that judgement be determined statistically they may well be able to be determined to do they have certainly have not been to your honor's point but and that i don't know whether they have then i do know from mr sabella sensor that there is no such study in the record and perhaps there is no such study i'm just asking why in principle that isn't a good way to determine the effects of the physician's independent judgment i think it will because it would run contrary to screen court saying that you should not go beyond that one step except in those limited instances in which for example in bridge on p c s when it automatically supreme court said we don't go beyond the first level of injury and if i understand this disability argument the first level of injury is either the person who pays for the drug or the patient if the patient isn't getting optimal treatment but he's not the physician the problem is that determining how much that injury is depends on what the  be i'm not asking about the first circuit please address my question i don't know the answer to that you're going to that's a fine answer i don't get the answer out of the first i don't know whether that can be done i do i would submit that doing that would run contrary to the teachings of holmes and and hammy because in each of those instances the indirect victim i could easily have gotten economist to say that the losses were attributable to the conduct and teased out other potential causes or for example in james cape when the plaintiffs in that case least that's my recollection i'll go back and look so let me ask you this is it your position that no private party should be able to recover when companies like abbott misrepresent their drugs affect may well have common law remedies but proximate cause under rico has been a limiting principle as we've seen false claims act cases have been brought state attorney generals brought cases there can keep tamp cases and i would note this is not simply a case where there is an intervening decision maker there is also the patient and the patient in these cases as noted if depakote was effective for that patient they don't have a claim if it was ineffective for that patient and that patient had a co pay or co insurance it had in addition to potentially product liability claims it would also have a claim for some sort of economic injective or ineffective compared to what i think this a problem with mr sabella but if you're trying to determine whether drugs are affected or not it's not an absolute question it's compared to the next best  were if there was an alternative that's true your honor and the alternative may have been no attempted treatment all the plaintiffs theory in this case is that for fourteen years there was off label utilization of depakote that simply by its very nature involved physicians making independent decisions so you have both i would submit intervening act by physicians as well as independent in this court function it's gate keeping function on the issue of proximate cause that demonstrates the complexity of the issue because you don't simply look at was it off label it may have been off label physicians are allowed to prescribe somewhat better relative to what for the treatment of dimentia there are not particularly good treatments for dementia each of these involve decision making by physicians that we would submit attributable to efforts by by the then governor who allegedly had been brought this court noted there are many potential intervening acts here and here we're talking about a fourteen year period decisions as to what to put on their formulary whether to have prior authorizations how to ensure and reimburse for these drugs doing it wholly apart reporting to their complaint wholly apart from any representations made by apple that is why i submit the causal chain here is far more complex th asked about the current state of the law you have the first in the third circuits so we would submit not following the teachings of the supreme court in its trilogy of cases because after bridge hemy expressly said foreseeability is not the test and they said the intended victim is not the test and subsequent in city of miami and lexmark admittedly not rico cases both courts in most instances the supreme court again went back to the direct relationship required in homes and did not embrace as plaintiffs would argue some new standard articulated in bridge and again in bridge there was no intervening intermediary making independent  the supreme court said in bridge it was the selection of the bid was purely rotational a matter of math and then this court in b c yes said it turned out it wasn't quite rotational but it was simply random finally plaintiffs raise the issue of deterrence and multiple recoveries as to deterrence as this record is clear abit agreed to enter into a pl agreement with the federal government and paid one point six billion dollars has been subject to a five year corporate integrity agreement there certainly are deterrent steps of vailable and the plaintiffs remedies i  of two different things if we have to construct a statistical model it's interesting in in abbott's brief in this case they sort of admitted that the statistician this is on page thirty three i guess an expert could can concoct model of these phenomena that was done in iran to satisfy the district judge jury and a court of appeals so when we get there i think we're going to be able to do it and satisfy these damages issues neurontin said something interesting about the decision making process of the physicians and i'd like to just point out again it's we quoted on page thirteen of our opening brief the fact that some physicians may have considered factors other than pfizer's deep detailing materials and making their prescription decisions does not add such atten chain as to eliminate proximate cause rather than showing a lack of a lack of proximate causation this argument presents a question of proof regarding the total number of prescriptions that were attributable to pfizer's actions this is a damages question i would also address a little bit the couple of cases that counsel talked about they mentioned and hemi that the court plurality decision said that foreseeability is not it is not the same as proximate cause and we're not saying that it's a pure foreseeability decision it's just one of the factors and that factor here obviously tends in the plaintiffs favor in bridge itself it talked about predictability and but let's let's remember in bridge it wasn't automatic that just because if the if the bad guys hadn't submitted their a very legal bid is that the plaintiffs in that case would have gotten bids plaintiffs that were to plaintiffs in that case but there were a lot of other bidders so if if the wrongdoers there hadn't made their improper bids somebody else would have gotten those bits but not necessarily these planes and these plaintiffs would have only gotten it if their bid was equal to or better than the bid that the bad guys had put in so that was a case where it was predictable they were going to get some but it certainly wasn't automatic that they were going to get all leslie your honor i would just point out that in the ns a case that counsel talked about that's a very strange case that's a case where the fans weren't paying their taxes and the players were competitors and they said well since they didn't pay their taxes they were able to charge lower prices and take business away from us that's a case where there was clearly a direct victim that was the state that they weren't paying the taxes to and and that the problems of proof that come up there with a competitor showing why he didn't get business or not it seems to me that's just different from what we're presented to in this case the cases here consistently say that when you increase the number pursued when you make false representations to induce doctors and you induce doctors to write more prescriptions the third party payer is the health benefit plans are going to pay for a lot of not every one of them probably and they're going to probably pay for some prescriptions regardless they're go pay for a heck of a lot and proximate cause doesn't require anything more at the damages phase a summary judgment a trial we're going to have to do a lot more but not at this stage thank you thank you very much the case was taken under