has indicated that he would like i was to discuss today the komen versus quaker oats case and in that case the ninth circuit said that there's basically three both the defendant in the district court start the analysis of the call man but the rule in the in the ninth circuit enunciated in coleman went further than that vivian just say that it had to be in the complaint they also said that it could be in attachments to the complaint and that was decided in palmer at seven ninety four faired second five thirty four and that was  plaintiff could put defendant notice is by making no quote during discovery her intention to pursue will cover you on the disparate or other related theory impact theory a move unambiguous we put defendant i notice about this her claim additional i claim a theory in the under forty two c a far for thirteen point six five and i quote in the first sentence of the supplement are in that instance i would say that you could include it what i've done in the past when i was the defense attorney was i would i would bring it up i bring the back part of it up in the summary judgment motion because think it's i think the situation here is slightly different than that because yeah i i i guess i differ with the the idea that the supplemental in iraq dettori responses are informal they're the actual the actual theory that it's not viable it's not and had then then they could bring and then fact they basically did bring that up in their moving piece they said your honor even if it isn't here and that is that the federal rules of civil procedure really don't contemplate this sort of amendment of the pleadings without amending the pleadings i mean the whole purpose of the pleading is to formally put the party and the court  she would have found the defendant with some fair notice of this and and under rule eight of the federal rules of civil procedure you can even go back and you can you can actually try and completely he just kind of found that it was it would be prejudicial without explanation to defend it and my and my question is is how is it prejudicial there's never been anything offered by u to show any type of prejudice your position is that the issue was raised on summary judgment and both parties had an opportunity to address that although the district court didn't reach it that's correct and we look at that issue as a result of the fact that it was fully a pure legal question at this point assuming that we decide that the issue is adequately addressed in the respective positions of parties can't we make a ruling even though the district court didn't do it as an alternative can't raise a claim for the first time in summary judgment and last well let's part of the operative pleading let's assume though that you were on notice as of may that the claim exists right and let me ask you the same question that i asked mr zeman if both parties brief the issue even though the district court didn't reach it under novo review don't we have the authority to to decide that question is a little and i think we argued right on the record before  it this court could rule as an alternative depending on what i wanted to do with coleman could just rule on the summary judgment issue adds to what the provided a status but i do think your your honour's that this is coleman decision presents an prevent claims going forward especially in the f c a contacts without a particular wise showing and allowing the plane up to then discover as occurred in this case fraud based on this coverage i think one  one point said the whole purpose of the rule night is to eliminate fraud cases based on evidence to determine through discovery but isn't that exactly why this is not the case to go the coleman route isn't that exactly why this is the case to go to the merits because there's texture and context here about an extra layers of complexity about who really was prejudiced and who really was on notice and the degree of particularities required  informal communications to determine whether or later has suddenly come up with a new theory of thought in terms of it really asking us to do is to narrow the application of coal to rule the chaos and i mean problem with coleman is and this i'm sure the panel doesn't want to deal with you know is what you don't have enough time to really go through if users were cool well i don't know one of them is you know one noticed one notice is required but i swing i know it's a baseball week but you know you kind of swing in here for the bleachers and i'm just wondering why we're doing this the easy way and i don't know how so to say that it's over grow double or well for us the easy way is to say you're not allowed to i mean i respectfully i think that were made by viral later with respect to alleged confusion and public awareness we briefed the fact that we made every effort to notify the public about the change in the hospital based clinic confusion on the bob and behalf of the public strikes me as not a basis ride the concluding that the regulation was a mat and second as a basis for any types of false claims liability the same with the integration argument you've got undisputed evidence that the hospital outpatient clinic was in fact financially integrated  both with the spec to its staff with respect to how to calculate a facility fees with respect to the access to records and is the zeeman is teasing out his view of the regulation with really no support that there is a distinction between medical and billing records and because the physicians billed separately and we didn't suppose will they have access although there's there's no real definitive evidence in the record on that that bad establishes a regulatory violation that would support labeling all of our facility claims as false and i don't want to get into ask a bar but i mean we have been submitting claims for priscilla the fisa is two thousand and nine that th record shows that we were not in reckless disregard of the existence of the provided based rules and on every single point he made we rebutted and he has no direct evidence other than his disagreement with that evidence and influences that can be drawn that we did not in good faith completely satisfy our understanding of that regulation so facially you don't have false claims and then there is no evidence in the don't with respect to any reckless disregard at a minimum or any evidence that you know we were trying to manipulate the provide a base status or corners in order to build facilities that is just not the stuff of false claims and i want to finish on one point on this because it's sort of it sort of goes back to the the coleman issue but  but he has not supported that with any evidence that question to allow a false claims cause of action to go forward whether as a matter of pleading or as a matter of summary judgment united states has to make a determination while the case is still under seal as to whether or not it's going to join the suit how is it going to know whether or not there's a meritorious claim here if two and a half years down the road you provide through notice via a supplemental response that you now have this provider base there we know that was certainly not presented to the united states while the claim while the complaint was under seal was that well i  submitted to the court that that the united states government was on notice because every step of the way because every bit of every service of every document has to be served upon try issues that are even if i don't even say that in a complaint if you both if the defendant doesn't object during trial to the mission of these of these facts then then it's you're thi based upon the surgery this doctor gets paid a global feel at that point the global free is for not only going in and doing the surgery it's for the follow up and that's the