thank your honor and may please the court my name is sean gallagher and i appear this morning to be half of harrison medical center i'm going to try to reserve at least five minutes for rebuttal the issue before the court today is whether a plaintiff who f false claims a claim to establish that she had committed no medicare fraud is protected under the anti retaliation provisions of the act even if there was no showing that such a claim would be viable here miss cook concern that she might have unknowingly committed medicare fraud was asked at trial what was the purpose in filing the key temp claim and she answered to clear my name and my work history that i committed no medicare fraud there are two reasons why this court should reverse the judgement in favor of ms cook and remand the case for further proceedings first ms cook cannot recover from blowing a whistle on herself because she lacks scienter second cook was not engaged in conduct that is protected under the false claims act but first could cannot recover for blowing the whistle on herself the counsel if i see your time's ticking forgive me for interrupting but of course her brief says she wasn't but that's not her theory that that she blew the whistle on herself or her brief says that she blew the whistle on the manual so if you want to speak to that yeah first of all corporations can only act in through through their individuals so obviously the manual can't you know can't be a relates or so so it is the theory was the idea that she noticed this discrepancy or it was called to her attention and she said she'd been following very clear and interesting that she'd been following the manual so why couldn't it be the theory that her suspicion was that something was up that falls right in that she'd been unwittingly a part of that scheme by following those directions why wouldn't that work it would be unusual but it well it doesn't work because it's not a false claims act retaliation claim it's probably a great public policy discharged but it's not a false claims act retaliation claim in the reason that it's not is because the false claims act requires the underlying claim be viable software was used in generating a final billing he said it did generate the final billing service step before which is a little different than well a couple reasons first of all you cannot be in the foss claims that context both a relator and the fraudster you can't be the person that performs the act that is supposedly illegal and then be the relator in the underlying false claims that claim to recover and settlement you make in your brief repeatedly and i'm asked you posit this a little differently why couldn't it be arguing that point with certain why couldn't it be the case that she this is this discrepancy was called to her attention and she says she testified pretty vaguely later in the trial that she thought somewhere in the system fraud could be happening and she may just have been seeing an indication of it well first of all when she testified about johnny ickes she was she was absolutely clear about what she believed mr miyagi did and did not do a let me ask did you believe that he committed fraud and she said she couldn't say one way or another she didn't know right right so there is there was no affirmative evidence that she thought he committed fraud that he doesn't have to be the one committing fraud and i think the difficulty i'm having is that the when we're looking at that subject of belief we're looking at whether there could be a potential claim and when you add potential claim to the standard of review you get pretty far out there in terms of you having an uphill battle to overturn the verdict so might my concern is that what the picture she's painting in her testimony is that she believed given what she was starting to see that there was something wrong in the system that was really the company's fault not her fault but that she was going to get head with it may or may not be true but why isn't that in to be a subjective really well you want to remember that that the test is really both subjective and objective correct certainly if she says she had a reason to believe that there was a problem with the software that's a subjective opinion that she had in there certainly it's to record evidence that would support you know her testimony about her subjective belief that but but that's only one of the two tests that have to be satisfied it does have to be objectively reasonable that's in from the hey good case and cases that side it more and others it's absolutely clear that the believe half has to be objective lee reasonable or and one word she told meeting we've been working on some things i don't think you've described them adequately pointing at me as cook we're finding that there are big problems everywhere they're very serious i believe they are fraudulent well in that in the because there was no record evidence at trial to tie that to a fraudulent submission to the government what they were talking about were in accurac internal reporting there was no evidence at trial about how harrison went about submitting claims to medicare or whether any medicare claims were in fact fraudulent there was no true no evidence  connect the operation of this journey and software with the submission of a claim and of course it is there doesn't have to have been a false claim submitted but she does have to have thought something was up she has to have had a subjective and an hour and a reasonably correct object of suspicion at least i would tell you my understanding of the chronology is part of the problem this discrepancy was called to the plaintiff's attention the plaintiff was asked to investigate rather than following up on her own hunch she's and then reports back and realizes it's generating the report daily and that was a mistake test was very clear she never had any final and right directly credibly agreed with that and then upon her report to the supervisors the next morning that you get to the point judge ockham's is describing where her supervisors reaction clearly seems to me frightened her that they suspected front well in  that part of the problem i mean at that point it sounds seems like it was reasonable for her to be frightened that there may have been fraud somewhere afoot but remember that was after the commune the the initial contacts year the nesa discussions she had with ms wasson there's no testimony that there was any discussion fraud then she went out she called the helpline the mckesson hotline and then she came back and reported to ms wason in her testimony wasn't denied that but obviously were here before the court on the record in a light most favorable to the plaintiff the plaintiff at that point testifies that ms watson mentioned fraud now the court's absolutely correct and that may well satisfy the subjective standard we're not suggesting that ms cook was lying about what she felt certainly there's record evidence to support that there was a subjective belief it's the objective component to remember it's a two part test and and objective person remember ms wason or misc misc cook had thirty seven years of experience as a medical billing specialist she was in management for eleven years a person in that position could not reasonably have believed that she had a viable faucet claims that claim because she would be both the relate or and the and the fraudster but more important she laughed at this requisite scienter in order to bring a fraud claim you have to act knowing on it she thinks that's right that's why she's saying that she didn't commit fraud right but that she thought i think the theory is that she stumbled into it right that she and hence the question did you think that your predecessor who wrote this manual that you're falling did you think he had done that right and she happened i i don't know your honor i could we could check the record and supply supply you know i guess that's what struck me in on both sides is that you know hundred million dollar questions were never asked by either side that would pinpoint i mean i'm looking at this they ask well did you think you know mystery act you never committed fraud no i couldn't say one way or the other but that doesn't really answer any questions so when you're looking at what the elements are i was just struck that neither side really pinpoint and asked those questions that were critical piece of evidence but it doesn't tell you the whole story and so then that was curious why in your rule fifty motions you focused almost primarily on her subjective belief denied that motion if you know in the rule fifty motion at the first of all we're not required to to raise every issue that we had previously raised on summary judgment you basically pick which arrows in your quiver you think are going to have the best shot in the argument that the court understanding is that this cook was compiling this report daily and at the end of the day turned out it should should have been done monthly that's correct could compiling it monthly clear on that and it says she was blowing the whistle on the manual what does that mean so she was blowing the whistle she found information during this investigation that that there are a number of elements going on there are a number factors going into what you discovered and if i could just give us thirty seconds of context i think that would be helpful a new finance director comes into harrison yes suddenly the books don't add up everyone's very concerned there's a report showing overbilling on a medicare report miss cook is told investigate this she investigates this and she discovers this manual that it's an in house manual which means they didn't just they didn't just it's off the shelf package and they have an in house manual responsible who what when where fraud was not testified to it's not the record but she doesn't need to have that all she needs to have is a reasonable belief and so that that fraud was actually committed she has to think it's really happening right what did she think she can she can speculate after that what was her theory that she had a hunch about about what was happening she has to have had a legitimate good faith belief that that and fill in the blank for me that the company was somehow says that someone was coming off the top that it could have been yogi it could have been someone else that she was getting instructions to bill a certain way that those were affecting final claims and that there was money that was getting there was getting even though she was in a position to know and she testified very clearly that she know that you knew that that software didn't generate a bill that was submitted to the government she did not that the testimony on this is that she believed in this is that you are two forty when you press the jenin function key your radio button did appear to affect revenue yes no one told you differently right the wrong way by the company and if there's this missing money in this new finance directors coming in saying there's missing money and the reasonable belief standard i mean it's it's it's not even a reasonable belief a fraud it's a reasonable belief that they could be committing fraud and it's  not just you personally she said it would reflect the whole department so we don't know and i and she doesn't have to know if the case was incredibly clear at least from my perspective that that and especially under the new fair two  and amendments any act any act is protected she does not expect someone or want to have a policy where is someone you can fire him quickly before they figure out the fraud and you're off the hook before they understand it they don't have to put together the pieces all they have to do is believe that reasonably believe that what they're doing is to help stop fraud reckless billing is also part of the center and this could clearly i mean the theory could also be that this was wrecked with knowing that there was no reasonable steps taken to make sure so and again objective reasonableness is it's a constellation of facts it looks at her experience it looks at a whole lot of different things and it's ultimately trying to get into her mind and it's a jury question you agree with your opponent no difference in terms of the accuracy of information going to the government or this report was done daily or monthly i believe that that the record shows that there fraud she did not understand who what where when all she did is she said this is concerning we can't add up the books she went she found something saying do this the wrong way on affect revenue pressing affect revenue and she believed that she could be causing the government to be mis milled and that she could be doing it because it was something that i feel a lot better if she said that can you point isn't it isn't this your client's testament on page one ninety five where she says the jinn and is just an internal process i mean where does she say all of what you just said about of believing that this could be affecting the final process or she had that belief to forty ok as i believe our best site on that ok i think and it says when you press the jenin function here radio buttons appear to affect revenue and she said yes no one told you differently right and so that was what she was operating under and and i think that the other piece of evidence the jury's supposed to figure out what would a reasonable person in her shoes believe in that no person reasonable person could believe that this was fraud but we don't have to guess at what another reasonable employee in her and said there's fraud here and you are three thirty three to thirty four i think is just very testimony of ms lawson's where she describes the conversation with laurie cook and and she says that when lori cook brought this information to m wasson it was a revelation and actually there's a typo on there's a revolution twice but it's got to be revelation so that this was a revelation that every account balance has been misrepresented so ms watson when she got this information said every account balance has been misreport represented goes and gets a fraud investigation goes get gets an extra no mckesson to come in and do a fraud investigation says i confirm it appears that there's fraud here and so another person looked at this and had the exact same reaction as miss cook and so i think that that is evidence that and there's cases this support that is evidence that can they can the jury can consider in terms of who was some of the questions about who was committing the fraud and can you blow the whistle on yourself  the analogy i think of is if if if a store is rigging the scale for the clerk is pressing way and it's that a pound of bananas is actually getting weighted a pack one point one and they're charging people the clerk doesn't know when they press way that they're committing fraud but you fraud and blow the whistle on yourself that's not you can be part of something that wasn't your theory but that was not now it's not your theory today no she absolutely was not a part of this she was to the extent that there and there wasn't any fraud at the end of the day to the extent that she believed anything was going wrong she testified repeatedly it was not she had no intent to commit fraud and she was she was just following the instructions to a t i can i can continue with my argument but there's further questions it's a very unusual case with respect to the false claims act particularly with the timing so atmosphere ix it would change things but in terms of the protected conduct all the places false claims act and again thirty seven twenty nine and thirty seven thirty age the two statutes and this is something where think it gets mixed up in the briefing of a thirty seven twenty nine is the relator bringing forth a fraud claim there you need to prove up fraud you need to prove see enter thirty seven thirty eight you just have the reasonable standard thirty seven thirty eight per tax the investigation it doesn't protect against fraud and so and then to protect all ranges of investigation i mean just as long as you're turning over a rock and with the thought that you're going in for fraud in the next rock and that's rock doesn't matter that your client wasn't doing  mean her testimony is not that she had a hunch and she was following up and shoot her hit her hunches that someone else called the store attention a stretch mckeown said in one day over the course of one day she was directed to go follow up and she talked with tiffany on the help line several times and then reported those results back as opposed to the typical much more typical whistleblower who thinks he or she might be on to something does that matter i don't think that there's any case law or or policy reason why you would if you say to an employee go figure out what's going on here the employee comes back and says i've got it it's fraud i figured it out and they say you're fired or your client didn't say that your client was did not come back and say i've got it for correct but i'm just saying well she came back and said not say i made a mistake she said i've been doing everything exactly exactly accurately harrison has been instructing me to do things like why is that different in the context that we're talking about here she's adamant she had no fragile intent she was following the instructions on answer because she thought she had discovered attentional false and she has never used the word fraud or her theory really was that what she was doing was incorrect that was the problem not that somebody else somewhere in the system was was my monkey with the process that her theory was that somewhere in the system and she doesn't know the who what where when why she doesn't have to but at some point someone created a system which had her pressing affect revenue to prevent billing in the wrong way and this is in the context of the missing money and we're trying to figure out why it says there's this overcharge report for medicare at the at the end of the day if an employee this is hypothetical points to a problem that they believe could involve problem and an honest investigation is done this is hypothetical in the conclusion of the investigation is there's nothing fraudulent but your employee incompetent and the employee gets fired for lack of confidence how can that fit within the f c a and that is the case that has been put on a trial they put they put on this case about about she was resulting in inaccurate information going to the government fine we'll look into it they look into it they conclude there is no problem with the process sees the problem is the competence of the employee coin if the employee thought that they were investigating fraud and they and their company knew that they were investigating fraud or some something along you know an f d a claim and they fired them for that investigation that would fall within the false claims act is there is there any evidence in this record that would contradict the reasons the employed the company discharged her she had actual namely that she didn't process this information correctly promptly competently so and i may not be fully understand your question hope i can address that she had excellent employee reviews forever she invests this material she want to die and lawson diane watson said yes there's fraud here i agree and then the next morning she suspended you know this is wrongful discharge no problem with the council in response to talk and question you just said an important thing i think you said if she thought she was investigating fraud and my understanding is that she didn't think that or have reason to think that until she reported who reacted very dramatically and again she doesn't need to i didn't want to use she does have to be thinking the f word fraud she just needs to be thinking that there is some possibility that the government is getting in charge ok where's the record that she saw in the course of the that one day period late before the meeting where she reported back where is an indication that she thought she might have been something afoot here one fifty five and that tells me that when when when did she have time i want to begin with addressing the question judge hawkins that you posed and i think one of the things that the court is struggling with here is that they the players might have presented a very strong case for public policy discharge or some sort of other wrongful destroyed climate or state law but that was never pled what was played was a foss claims that claim and i would suggest that stretching the false claims act to cover areas that would be otherwise covered by state law claims is starting this court down a very slippery slope because essentially if the plaintiff wins in this case depending on how the opinion is constructed it could mean the lawyers are face faced with a very very difficult situation faced with a situation in which if an employee subjectively believes that they've got a fraud claim we're godless of whether there's any any reasonable basis for that employers have to be concerned about dealing with those kinds of ms cook investigating the salient testimony is a page two of two in the record page one forty nine page two two three two two four and two two five it is absolutely clear from the record that ms cook was investigating her own conduct she was investigating whether she may have unknowingly committed fraud she she filed the false claims claim she testified on page two twenty three to clear her name to clear her name she asked the department of justice to investigate to determine to clear her name that some page two twenty four on page four twenty seven she said she was in her concert what was your concern her concern was that she may have committed fraud i see i'm out of time if i may be allowed perhaps two more minutes to complete my rebuttal is them up yes ok some of don't repeat that that's the challenge and i and i will do that as this is a case in which the plaintiff has simply failed to establish the requisite elements of scien r it is we would suggest that the court as it is done look very closely at the record very closely at what her testimony is and that the court reversed the judgment or reversed the judgment the district court and remanded for proceedings sixty b five to address the award of attorney's fees if there are no further questions i think the court thank you very much like to thank both counsel for your argument the case of cook versus harrison medical