please the court my name is mark lab aton i represent the whistleblower steven hart pence who is a former executive vice president at kinetics now part of the three m company i intend to reserve two minutes for my  kate k c i the defendant provided and it was a unique vacuum healing device that was supposed to be used only to jumpstart one treatment the rules put in place then  tangible measured signs of improvement false claims x the false claims that our case i relate to the hundreds of millions of dollars in claims that case you medicare in violation of the rule and despite years of that bill for when there was no signs of will and improvement and so there was no measure improvement for month one case i built for one month to case yet it uses a term that's an artificial term called stall cycle that is mentioned after i repeatedly failed to get the rules changed here that term is st mentioned in twenty thousand and forty four years into the fraud of the case but we're talking about any kind of month where the wound didn't improve whether it's the nd month the rd month service is supposed to stop and and our allegations are are stopped what is what is  let me let me get that phone number  i can hear i heard judge collins i'm able to hear yes judge collins was got you to understand that somebody else was trying to speak to you judge burrs on was trying to speak out you we stop the clock so you can figure out your technical issue i am the a v technician i'm also speaking to you from judge collins as connection you can hear me ok judge paul doc would you mind saying hello yes i can hear so way i have not certain why that might be the case i haven't seen that i'm not sure whether we were set up and we did a test yesterday i mean everyone yes everyone is connected and everyone is hearing everything  arguments well i don't know why in any event that's much better your honor thank you i could actually get a better that and you can hear me all or a little more  see it come up in the waiting room and all that mature into the into this conference i'm going to move your audio when you connect by phone you're going to want to use i could hear you now judge burton on you hear me i can hear you i did not hear you two and i apologize your honor the last time ok thank you your honor so i don't i was saying earlier that the rules put in place here stated in no uncertain terms that case i could not build medicare for continuous overrides consideration here this opinion requires a district court to look not just at the government but also at the defendant's conduct and the court failed to do so here the defendant's conduct in  the in their efforts and time that they spent at the highest corporate level to try to get these rules changed and felt as if can fashion of the materiality of their conduct and their knowledge they would not have done this if it wasn't material and they would not have spent those devoted those resources to it if it was not material and they knew that the c e o of the company flew halfway across the country materiality the issue that the fact is that that the rules put in place and the approval of this device in the st prize was just to jumpstart treatment and not to be used beyond that   less medically necessary the nd of law your honor related to the court's interpretation of the critical rule at issue in this case the  improvements in the prior month that is not the plain language of the l c the that's what the defendants desired that the medical directors rewrite and said but that is not what it said this is  criteria that's what it says the question is whether in light of the standards in the escobar case and material because the government knew that the company had a different view of what should properly be paid despite the l c d and submitted directors continuously told told the defendants that they would not change the rules and were sticking by the rule that forbids them from doing that that is very the other two they say the company is still trying to persuade and talk to another or activist time the k you on may rd two thousand and five the company a say to medical directors will not allow us to submit and get paid for these claims and the other two are still on st base with so that is that a strong compelling evidence contrary to everything else and it's coming directly five players deny based on our theory of the case and the reason that the court got that wrong is because the court misinterpreted those five claim to be allowed based on the and with twenty million dollars of claims were denied based on our theory the case this water was done in two thousand and seven that is compelling evidence to your honor contrary to the opinion and all the facts mentioned have their own motion they should be stopped from doing that so those are two those are three pieces of evidence contrary to that the court ignore contrary material fast where the court got it wrong rd piece of evidence whether the court got it wrong your honor is the a l j opinions because the a l j also specifically several ways in which the court missed the boat on escobar one is as i mentioned it didn't look at the defendant's conduct here the other is it was very clear by the f c c filing that i referred to that the medical directors were record for the nd proposition that the st proposition that you make that defendants that the government knew that this was being paid and the reason i tend to company those notes are very sketchy we never had the opportunity to depose dr hoover and in fact those notes and the government if the government had decided that we would have gotten company that's the only thing they said they never made any kind of disclosure a memo to the file that these guys approved or or disclosure it was very sketchy what what what was made in terms of a disclosure it  happily was there was no real disclosure to the government of what it was doing this was designed to hide what was going on after repeatedly being asked to make the changes and not change or the government did the record is not strong enough to support well look the pretty carefully the fact that the government knew about it if they knew about it there would have been a lot more there they would have they would have suffered from a contracting officer or someone in the record saying that the government knew and approved they don't have that all they have is the notes from dr hoover and that and that contradicted sent back on august twenty four two thousand and four this was part of a negotiation that there was going on to try to change the rules and dr olah is saying in that e mail he s i might consider this idea of soul cycle but that's not where then his sense goes on it's he said provided certain conditions and that and they never agreed to those conditions and in december two thousand and four and say we're not going to read to any of this they should know it and that's why we have the f c c filing because they were they were told in no i'm certain terms like d and the others at the end of the year you can't do this because we don't have an agreement and focus on the question judge burrs on as before and that is what is the escobar standard because we do have some evidence in the record that some of these claims were caught and denied so they sometimes inforced this rule according to the letter that l c d according to the letter how how much of that needs to occur before we say that it's the mine run or regular what's the standard that we get out of  as in this case the agency for payment is c m s medicare medicaid service my own private government contractors and interpret if you are not ultimately decide whether or not a claim is covered under the reasonable and necessary standard  was the l c d it was not any other statute or regulation so if they said wise we have also conclude you're not following your own l c d and that would have been consistent with all the discussions that went on in two as a meeting among the medical directors it was produced by the government and it is dispositive of whether or not the government and put in their pay or agents were aware they say but literal reading of so there are four pieces of evidence none of which go to nullify the fact that of all the evidence i mean the argument that the medical directors did not know is affectively thoroughly without contradiction  n they did and they had there's no evidence that truly contradicts their knowledge and i again i would commend to the court records particularly from january two thousand and four through september of two thousand and four when the correspondent shows and what would have been dismissed as a marketing one wasn't back to communication that was distributed to each other medical director saying this is how we will we will continue to build it what now february it was shared with dr hughes about a month later and shared with all of the other medical in april the whole sequence of communication shows this is how we're billing and of course it's confirmed years later in a call no among most of the same medical directives and i think it's critical to understand that there was no question in the mind of k c i nor was there any question in the mind of this will later hooper himself said in the summer of two thousand and four well i think we have an agreement i think we can see now that document is in the record this communication from mr hart that's the re whole of appreciation that the documents that are being characterized you know argued against do not provide they relate or with any evidence that confronts those facts that have been put into evidence  your alternative argument on a tsar versus a lino they've said in the reply that because of the contractual obligation you undertook to comply with the house he's that that argument fails as a matter of law of paper and what we're going to understand you to have said when you fill it out and i don't understand why that's not formative as to what that piece of paper means to be right k x doesn't really it's not a question of to the decision of the government pay or in this case well i mean you still have to answer yes even though it wasn't exactly accurate because that's exactly what happened but our sense that label of something is not sufficient to create a fals i'd like to make a few quick points number one is the reason that these claims that went under the radar by the spy the defendants being told they couldn't make that was because this was an automated pay system they got paid automatically the defendants say in their motion for summary judgment otherwise they say that each each each team or reviews all the class personally not so we disputed that fact it was automated pay a she said she said she works in the appeal section she says this e mail to theresa johnston who they had a vice president a company and she says less not appeal this my claim because if we appeal these claims they're going to discover that there was no documentation of measured improvement for all these other months claims that all of that was was was was it will for month money because that is by doing that we can see else that we got money from directly violating the director the medical directors instructions that document is in the supplemental ex i urge the court to look at it i also urge the court to look at the defendant's own filings when they moved to this list this case and which they admit that the oh i g finding specifically rejected  measuring standards so they were not even they were not close to a deal in two thousand and four mr smith maurice testified and this is the air in the record that the only time they thought they were close to a deal with that year