this is a medical necessity case there was no direct evidence of intent put on by the government the government called for employees from dr milligan's practice in the defense called five employees all testified they saw nothing improper or illegal at his medical practice d o j through the through the process of the trial focused on thirty patients that were cherry picked out of a patient population of over three thousand and they picked those because they were the worst mistakes i'm going to ask you to reverse this conviction as we go through these issues there are a lot of issues that are in these briefs i plan to start with the peer comparison chart issue but i invite the court to steer me given the number of issues and the time limits of those issues that you find most important so if there's one thing that the department of justice and dr mel going to agree upon it's that the p comparison charts were outrageous they were ridiculous according to the words of the prosecutor in closing and they argued throughout the closing if you don't believe the tests were excessive exhibits they had nothing to do with the summary they were the prosecutors charts prepared for litigation and they violated the confrontation clause because the witness who sponsored the charts an an alyst for the f b i when asked on cross examination why would disappear what why would this person be a peer of document oh i don't know you have to ask the department of justice well we cannot cross a prosecutor in a criminal case so is there any reason that your client couldn't have created his own pair comparisons with what what your team thought were more accurate comparisons well there is absolutely no reason we couldn't have hired an expert we would have hired a biostatistician to review his patient base to look at his practice number of offices employees delete disease states and we could have done that the problem is we didn't do that we didn't provide expert notice and the government didn't notice any expert so we got to the last witness after weeks of trial in the government's case in chief where the judge reversed his ruling under seven o two and said well we will we don't need an expert for this this is based on the data will let it in as a summary of data it was not a summary of data it was a litigating position it was a chart that was outrageous created to achieve conviction and it did just that did you also have the raw database at the direction of the prosecutor and pick people that they deem to be peers and we know for a fact based on the testimony they were not peers in fact the st patient that we saw when he reversed his ruling there was a weekend and we went through each of the doctors that we were able to in florida and we asked miss minton about dr cartwright dr cartwright is on your list as a peer is here retinal specialists here's some information about him just right off the internet is he running specials no he's a plastic surgeon next doctor we asked about another doctor same thing they were not his peers so why is this so important dr melvin was a doctor who was the doctor of last resort for people that were really sick even the thirty cherrypicked patients that the government used had been referred by other ophthalmologist to dr melvin for specialized treatment and you see that in the summary exhibit r l one which lists all the referrals from all these ophthalmologist so if the question is could we have hired an expert sure we could have we had notice one and we had three days before crossing miss menton but we we had  problem with the fact that these were not summary exhibits these were testimonial in nature and when when when miss minton is on this and testifying she can't answer questions about these supposed and the judge in making his ruling had heard several of the criteria but he had heard all of them he heard some of them lie for the st time after he had admitted the exhibits so we moved to exclude all of this under united states versus jibber which has a nice job of analyzing this type of issue both of the district court and the circuit court obviously it's not in the circuit i want to point out that chigurh focuses on seven o two of course if you had an expert an expert can rely on hearsay when you have a person on the stand who's not an expert who's putting in a summary suppose it's summary there has to be a basis so if we go back and look at what happened here this was under book coming what was a chart that sought to prove past events potentially relevant to the prosecution and we know that for what they did throughout the closing argument if you don't believe these are excessive look at our charts look at our charts for intent these are unnecessary that's what they did throughout the if there were a ten other doctors who had or even one other doctor who had also elds ninety million dollars of these procedures couldn't you have said this is a jury and said these are his real compared to ours and then the jury could decide which side they believe in that what the jury's supposed to  do i'm not sure that would have been relevant from the defense perspective to bring in other doctors i mean we're presupposing that there is some relevance to compare in a criminal trials of comparing a defendant to someone else particularly we're talking about subjective medical decision making so having the opportunity to retain an expert to rebut an in permissible summary is not an appropriate remedy this is an issue that you have under the nova review under the confrontation clause issue dr mcginn was prevented from confronting the people that created the charts which were the prosecutors this was not a business record these data was not pulled from medicare in a form that it exist medicare it's a judgment and decision making for the agent to find which appears to pull and we know that she was wrong and the judge let it in anyway this is reversible error and taking the words from the prosecutor's a closing these were truly ridiculous charts and there may well be a number of peers that are out there judge grant that that are in fact comparable but that analysis was never done not by the government and not by the th circuit given the time let me move to a different show the multi dose ing issue in this case was one that we from the very beginning moved to exclude we moved to strike the language indictment it's not criminal it's a complex regulatory question and that at the time of trial was still pending in litigation so we sought to dismiss the indictment and strike the language of multi dose in from the hearings was profit motive the judge said well if it's it goes to profit motive then doesn't it come in and he issued a written order on this any white collar case and involves money involves a profit motive inserting a regulatory issue like multi dose ing really tainted the trial and turned it into a trial within a trial in the perfect example of that was dr milligan was forced to call his regulatory attorney to explain the process of how he went through the appeals with a judge us how he appealed to the district court the arguments he made his beliefs about that process and then the attorney had to explain he paid back over ten million dollars before indictment  and courage is multi dose in for a number of drugs a vast is one that they encourage multi dose you look at this circuit's decision this circuit has decided and said this is physically neutral to medicare so this is a inserting something that's fiscally neutral to medicare and the decision in the circuit is we're going to defer to the agency's judgment and accept their view regardless of whether it's here that i call that let's say that a doctor was charged with an giving hip replacements to people who everyone agree did not need those hip replacements and there are two types of hip replacement there are separately covered by medicaid and one reimbursed for whatever reason and a much more higher and much higher rate could not be evidence of this person was intending to get higher it was intended to get higher embarrassments by always doing the higher reimbursed hip replacement rather than the lower on these patients who didn't need a hip replacement at all even though both of those were illegal in reimbursable so if you start from the if you start from the standpoint that nobody needed them to begin with yes your analysis it would be true if the doctor gave the more expensive one but nobody needed it that's a fine example of the problem here is there is disputed evidence whether these patients needed it this is the only case in this circuit were any circuit that we have found where the department of justice brought a medical necessity case focus not on the doctor's diagnosis but on the billing code the i c d nine codes on the claims form all of the testimony from all of their experts dealt with the billing code they had the medical files they knew the doctor's actual diagnosis and they didn't even ask their experts to evaluate it if you look at chart r o one it lists it's a summary char of the medical files that list dr milligan's diagnosis not one expert opinion from three different experts actually looked at doctor millions actual diagnosis so we start from the position at the record as empty in terms of evaluating his actual diagnosis so let me touch on a few issues very quickly but you're right rule for three hundred use of discretion but this was an abuse and searching this created a trial within a trial where dr malkin was forced to call his regulatory lawyer and a number of other witnesses to stop to talk about an issue that was not illegal or even improper they just wanted to insert  given the time they have not addressed the fact that they put false testimony with their st two witnesses they have not address the fact that the judge sent a speaking indictment with these outrageous claims s twelve copies back to the jury during deliberations with no notice of the defense for an hour and a half they claim we waived that after during the race and said been going on for an hour to have you know you've served time for a but also we'll we'll hear from you thank you thank you the court's indulgence of that i know that was an exception and we always try to do that when we can but we're glad to see you in any pain i'm happy to be here let me go right to the pier comparison evidence and fact is as the court observed all of both of these issues that the defense talked about are abuse of discretion issues and the language in our circuit is not even just abuse of discretion for evidentiary issues it's clear abuse of discretion which means that even if this court had a different take on the issue it really has to be outside the range of reasonable choices a district judge could make this was as you can tell from the brief hotly contested litigation it's really remarkable virtually every issue and every ruling from this district judge a very experienced one was litigated to the hilt by both sides so there are no rulings i submit in this case and certainly not on these evidentiary issues that were done carelessly or without thought on the issue of the peer comparison evidence let me point out a couple of clarifications st of all this is not hearsay this is medicare data this is classic business record information under this circuit's case law often violates so the hearsay argument has no traction whatsoever exactly as you observe judge grant and i know you've written about some of these issues with s case i think you were on that panel if the underlying data is in miscible which it clearly is in this instance you don't have a hearsay problem and you also don't have a confrontation clause problem the criteria that were applied to extract the data aren't assumptions this is not a case involving projections or estimates or speculation this is really a data pool this is the prosecutors and the government going back to look at this data which otherwise would have been enormous  voluminous exactly as a one thousand and six contemplates for a summary and saying what are the criteria we're going to use to pull the information out and the fact is if you had looked just without these criteria the exaggeration between this defendant and anybody else would have been even greater if you had had all ophthalmologists it only would have increased the gap between what he did and what what regular practitioners do so i didn't do it that way i think there's it's an effort to be more persuasive unfair to the jury because i think you would have had a defense argument then that said look this is an unfair comparison how can you compare who sent this being given to a ordinary off them ologist who wouldn't be using this particular drug to treat anything so i think that would be unfair and it would have lent itself to a defense argument the criteria were three fold to five hundred or more who sent us objection injections as a way to differentiate retina specialist from ophthalmologist in general that was rooted in the trial testimony of both of the government's experts how and fine both testified that's a reasonable marker for identifying a retina specialist which is not its own specialty practice code under under medicare the nd was more than two thousand patients which is consistent medicare bill patients which is consistent with the defendant's number during the relevant period which was about two thousand two hundred and ninety four people i think and then the rd criteria was simply that you actually made a claim during each of the six years just simply again to avoid any individuals who might have done a lot of practice in the beginning and then not at the end so these are very reasonable criteria of raw data this is a data poll this isn't a a an estimate it's not a projection it's not any of the considerations that sometimes come into play with summary charts that have raised concern and would raise concern otherwise and as judge grant you observed all of this was available to them i mean there was simply no debate they could have come in with any criteria they wanted and said this is misleading members of the jury this man was not that much of an outlier the fact is it was relevant to this case because the defense as the court is aware was in part that all of these they you know i don't want to use the word mistake that's their word that these billing errors in the charge counts were mistakes these things happen and it resulted from a system that from our lights of things was absolutely a fraud scam and a fraud system they say was simply errors because of this pre press being system where they would i think shockingly actually put diagnoses and test results on patient charts before they even came in that was the defense this was a mistake so this shows that wait a nd we all make mistakes once or twice or maybe a few times but the scale on which his false diagnoses and false billing is not just false billing in this case it's false diagnosis it's the whole wet a r and d diagnosis in particular which gave him the basis to bill for these new census objections injections that created the the hugest gap in terms of how much money generated but it went directly to that defense of mistakes once or twice is one thing a few times but on this scale those weren't mistakes not even not even close so that elven that element was satisfied they had full opportunity to cross examine the witness about the data  about the criteria used they could have put in any of that data they wanted the fact is they didn't want this evidence coming in under any terms and to be clear hopefully lay this out in the brief the district court never said this it was not coming in and did an about face it said this is not coming in unless you lay an appropriate foundation that was the court's ruling they were on notice that from the start of the trial the government signal to judge mara that look we're going to be trying to lay that foundation you invited us to make from the very start  trial throughout the presentation it was argued over multiple days this wasn't some last minute about face on the eve of the closure of the government case where suddenly the district judge said you know what i know you've all traveled down a different path but now i'm letting this stuff  not how it went down when you look at the trial record so in all of those respects and finally with regard to the confrontation clause issue again judge grant i think you were part of the palmer panel that addressed just this issue when you're talking about underlying business records you don't have a hearsay problem there was full opportunity to confront a witness about the data extraction process and the criteria that were used and again my takeaway from this for the court should be this was not a summary of a summary or some sort of hypothetical it was a data poll using filters all of which endured to the defendant's benefit i would submit rather than to his his prejudice and as we've argued in the brief i don't think this evidence at the end of the day was prejudiced prejudicial anyway given the substantial other evidence of guilt as to the multi dosing your honor that went directly again to this claim that the defendant was making mistakes multi dosing mattered because this defendant by diagnosing wet a m d as often as he did could justify and put on those billing forms and ministering centers the issue in the case was these diagnoses were somehow justified or where they were wrong for example when they were on prosthetic  blind eyes that well those were mistakes because this defendant believed that he could bill three times for a vial of blue santas that he either got for free which the record reflects in some instances or he paid approximately two thousand dollars for he could bill for six thousand dollars or eight thousand dollars that is core profit motive for somebody to lie so it seems like you know dr melvin is saying it was medically appropriate to release these this drug three times from the same source and you're saying whether or not that's true if you only use one you can't go for three it's exactly right  i think the question of the legality of it does go to the nd basis for the admission of the evidence which is willfulness i mean certainly our vantage point was aside from profit motive this showed his intent to disregard the law by the fact that he was disregarding these clear pronouncements he put on evidence to say well i had a good faith belief that i could do this or more accurately i should be able to do this notwithstanding the decrees but your honor is one hundred percent right none of that has to do whether it was permissible whether it wasn't permissible the fact is that evidence comes in as his profit motive let's say it was allowed let's say you could do that if you wanted to that evidence still comes before this jury as proof why did he pick these demonstrably false diagnoses of wet a r and d so often seventy nine dollars i think the total amount of patients he diagnosed with either the wet or the dry with ninety eight percent ok these are extraordinary and ridiculous numbers so your career that evidence would have come in either way to prove his intent and motive and disprove the claim that it was either a combination of mistakes or somehow was a legitimate legitimate diagnosis and at the end of the day that the jury heard both sides of that argument in a six week trial is that what it was i think it was almost eight weeks ok and mr mr brodsky made reference to the fact that they were forced to call mr melody's attorney of course they weren't forced to call anything they want to develop that good faith was actually mr partner i believe who testified and basically inserted an advice of counsel defense that had not been noticed and from the government's perspective was completely impermissible even to the point of the last question that i think mr tried to elicit during the questioning of that attorney was well did mr milligan believe all this an utterly improper question court sustain the objection instruct that but you can see what was going on with that testimony and that was decidedly over our objection and i think when you look at this trial record you'll see a district judge who ruled just as often in favor of the defense as in favor of the government exercised incredible care under a pretty intense spotlight and handled this case the way we would want a district judge to handle it better than arbitration and just a court have any other questions on other issues confrontation clause violations or review do novo so it's a do no va review on these charts because it's a confrontation clause issue now let me address what he said this was not simply a doubt a poll it required judgment they had to decide who to pool and those for criteria that they said there's only one of them that has any factual basis in the record and it's not even consistent judge halloran fine were different and they were asked leading questions by the prosecutor and they weren't asked who is who are his peers because these are academic doctors who are academic institutions unlike the defense witnesses they were asked whose are at knowledge us or who is an ophthalmologist so those have no bearing on this and this are you saying that someone i think you're not but are you saying that someone went through the medicaid data line by line and made a judgment about whether people at these categories or are there  prosecutor's direction but did that did they decide by individually looking at each entry or did they decide which broad criteria to use to pull the set of i can't tell you what miss meant and at the  direction of the prosecutor's other than she claims to have applied the criteria to extract that data and that's the key point it required judgment and decision making which is testimonial in nature it wasn't a data pool dr  was no objection to it coming in they could put in all the charts they want saying he did this and he did that and they did what they did though was put in outrageous ridiculous information that changed it i see that i'm out of time i can finish it i have many more issues but in the night i think we're good thank you appreciate you all come in early this morning and we appreciate the argument with that we have finished our court week in miami