everyone just get settled for a minute and the exclusion of the evidence and argument on the question of kickbacks on the billing fraud question i think the other side can still pick your two fundamental facts that i think are key to the case the first one is that north so they could only submit bills by obtaining an assignment from the patient and that the evidence showed even from their own witnesses then when patients came to know cyprus they were never quoted a charter mr price they were consistently charge that was intended to reflect in network rates that they would have received at other hospitals and that was calculated by north cyprus based on one hundred twenty five percent of medicare in other words the patients and turn around and send a bill to the insurance company for ten x the hospital cannot do the same without committing fraud just to give you a concrete example of this from debris use bishan vs came to the hospital for seven hundred change the payment issue that he or she would have been in a required to make would have been seven thousand six hundred the patient never heard twenty eight thousand seven hundred was never asked to pay seven thousand or anything close to never heard of was never charged that is fraud and i think the huntington case recognizes that one of the one of the remarkable things about this case it seems to me from your point of view is that correct me if i'm wrong from the record here but i  continue to approve all of these claims chains of thousands of them with a challenge a well you don't let me get to that because i think that now we get  that we try to investigate we said surveys to patients but it would point that out on the basis of the record the evidence turned out to be inconclusive now you hear a lot of arguments it's myth and you probably don't recall the last time i was in front of you but but you know the fact is i think that when i was on my panel it was another one of these cases in which the issue was another hospital and another insurance case involving a state statute in which insurance companies get sued for not promptly paying claims that are simple clean and so we also have a lot of law and regulatory structures which basically say if you have no basis on which not to pay you have to pay promptly and if you have a claim that is trying to do in trying to investigate what paying is trying to shield the patient from getting these massive bills that the insurance company hasn't paid and so yes it is true that there were payments along the way while at night right to investigate but there were good reasons for it i mean we have to have a good reason not to pay and if we refuse payment or cut payments there's a high risk that the member built one of the reasons from some of the years that issue here while we agreed to pay their claims under the moca plan network is because the multiplan network one of the features is the member kind of the balance built into one of the things that the company had in mind in continuing to investigate these issues was we have to say the card you know the member but you know importantly here what's really at issue is patients game they never heard of target must remember the record is absolutely clear on that and we always got a bill for the charter master  on a federal program of pump a discount one of the most telling us bit of this case is that although they used the same forms that are used for the federal government in the us for every pair and they claim to h and he was persuaded by two things that i think were sort of in error in the first one was this is the rack rate which as i said earlier it may well be and if they actually charge that we would have other issues with  it but that would be a different type of case but the evidence was and we were entitled to argue to the jury that the patients were charged x and they were sending the bills for ten x now the second thing and this was the key aspect of his ruling forms and related documents establish that no cypress fraudulently manipulated and diagnoses in other wards the district court thought their own lest the patients were not sick there were no fraud  that's not the type of fraud the that we were legit we were not claiming that they were sending in claims were people that were not sick were claiming that people had the illnesses for which the dead were treated but they were submitting claims that were far in excess of the charges that they were actually charging into the patient that was defraud them were lurking and we had plenty of evidence for that we also have plenty of evidence that they had concocted the prompt pay money or as a cover up for this it would be very difficult for an upstart medical facility like north cyprus to get patients influx when the type of world class medical facilities are already available in network and as we claimed in our case and we had the evidence in our other approved back up what you know cypress did was to go to doctors that were under contract with aetna and offer them ownership interests to prefer it was key in our view to our ability to further demonstrate you know the this fraud that we be allowed to show that this had been clearly crafted from the outset that they had been careful planning given to the fact that people were corrupted and that not only the patients had to be persuaded to abandon the other many excellent options that were available to them in the houston market in network  telling them that the price would be the same as if they were in network in those facilities but their doctors had to be persuaded to send them there by giving by being given ownership interests here that obviously established from the outset as a very carefully orchestrated scheme to get the patients in the door with the complicity of the doctor of who agreed to send them there then to persuade reluctant doctors  patients that they would pay no more than if they were these other in network facilities and then turn around and buildings and companies these much higher out of network wait while telling them all along then good measure thought that we had not put in a good case of for damages and north cyprus tries to salvage what the district court said as best it can if you read it is very difficult to make sense of what the testimony actually related to the terms of each of the plans now i have two points to make up on that are in the first one is that you know the testimony was clearly connected to the testimony at the trial because the damages model was a piece in the difference as provided by texas law in between what we pay them and what we should have paid one of the models for if you know the difference between one hundred twenty five percent of medicare and what we paid them testimony was that the patients were told hundred one hundred twenty five percent of medicare that was all that we needed to bay and if we paid more into the difference what our damages second point was that even if you thought that she was not in good expert this is not a question of expertise discipline a math which is undisputed and so she could the district court couldn't believe that he could know that edwards could not be qualified as an expert and the testimony would still have to be admitted expert as they testimony because this is just a question of summing up the damages that we suffered based on the evidence that was already on the record and for all of these reasons i think that the judge was clearly in error entire trial there is a huge distinction between what the bill charges are and what the patient responsibility the patient responsibility not the out of network provider to pay money is and why this is fact intensive and show that judge hoyt got it completely right nor cypress began in two thousand and six a try to go in network with that number fused to do it saying we don't need another hospital they said by the way out of network members without a network benefits will come to your hospital we then head the prompt pay discount which in which we never ever advised any patient that the total charges would be the amount that the patient would pay in order to be eligible for the prompt a discount when the patient comes in isn't biased at the prompt a discount at the time of service no one knows what the total charges are going to be no one knows what the doctor is going to do no one knows how the patient is going to perform we their regional council and that's extremely important their legal department was involved from day one advising us thank you for this notice and then of providing to us in a political text the statute about waiver patient responsibility amounts after that the evidence continued to go out showing that we had a prompt a discount and on every single you below four claim form that we had we advised at not when there was a prompt a discount they knew on thousands of cases we had a prompt any discount by march of two thousand and eight by their own records they knew that our promptly discounted amount that we collected upfront was based upon in that work patient responsibility amounts again in june of two thousand and nine they write that they know that is the case by this time there are ten departments investigating or cypress and thirteen to fifteen s i e u members the investigation apartment fraud investigation department and the legal department by two thousand and ten and the brings in outside legal counsel mr john sheely who tried this case with me and at that time they received instructions to escalate escalate escalate put every one of our claims under intense review the notes then came back said this is what we're going to do every claim under intense review then mr king who is a head of national network who's up in connecticut came back and said we will do this and we will bring or cypress down now judge smith you are right this case is very unique because they continued to pay never one time did they ever deny coverage for any exclusion in any of the claims you just heard that our charges were exorbitant which is also very odd because during this investigation period we underwent chargemaster audit swear they knew every single charge that we made for every c p t code by their own testimony they also tracked every single one of our charges and put it in their database and you have to ask why did they do this why were they paint off bill charges when by their own testimony they could have applied the usual customary raided any time which was anything at no one it whether it be a fee schedule a percentage of medicare or just what they thought in that geographic area we should be charging they never did it instead they utilize the national advantage program which counsel did not mention to you that under their plans they were able to do and why did they do that because if they paid us off bill charges and there was a discount they participated forty to fifty percent of that the leds savings by one plan sponsor alone out of six hundred plus harris county they made one point five million dollars in additional fees in just one year they made tens of millions they've been paid off that allowed amount off to our billed charges that they knew why because they got forty to fifty percent ten's of millions of dollars in that amount and then in two thousand and ten when we went in with instead of handling the claims themselves that's where forty thousand of the forty four thousand claims came and again why did they do that because they were going to get forty to fifty percent of the savings administrative service agreements with the plan sponsor says it has to be an actual saying but that means is below the u c r whatever they can determine is they didn't do that they just took the money that the other thing that is important judges they have only sued on one half claims in the national advantage programs the ones that went through multi plan they did not see on the five thousand three hundred ninety six claims it's really up to seventh l c testimony was five thousand three hundred ninety six if you look at the spread sheets it was over seven thousand they did not sit on that even though they still claim the same fraud the same kickbacks the same exorbitant charges why because they negotiated directly with us on those contracts which clearly no the fight for audit how do you have fraud when you negotiate and know what our bill charges are and that during this entire period of time the plan sponsors start to complain because they thought the payments were too high they were complaining to aetna and david tester from harris county said at one point we never got a good answer from aetna why they weren't simply applying u to two thousand and ten all the way to two thousand and thirteen six whole years by two thousand and ten they also involve their outside legal counsel if you look at the evidence gentlemen involve their outside legal it's different because there is a negotiation of a contract and the no representation clause and when you're represented by counsel through the entire period of time and you are sophisticated party don't come to the court and claim fraud and b can those cases are very similar to this one because they had not only their legal counsel involved in house during the entire period of time but outside legal counsel who ended up trying this case and the fact the matter is with regard to the hospital and they got a bill it goes to the insurance company first for coverage of the terminations they even say that we are not to collect the patient responsibility up front until a claim is adjudicated and edna issues an explanation of patient we never there is no evidence whatsoever that the patient was ever told that the total charges they would have would be the amount that they would be paying for the prompt a discount it's just not there and judge hoyt saw that the other thing with fraud is you have to have reliance but this court has said time and time again it has to be justifiable reliance and under the facts of this case they paid for six years having dozens of people investigate lawyers investigate and even through trial fifteen thousand and sixteen they continued to pay that's nine years and i'm going to get into the issue of waiver in that situation but this court has also said in harris and when you look at this justifiable rely and she'd have to look at the characteristics abilities and appreciation of the facts at her before the alleged fraud and it is extremely unlikely that there is actual reliance there was no reliance whatsoever on the part of it in this matter also this court has already ruled in or cyprus versus cigna on the a discount with the again upon notices that went to cigna except i think it was twenty five to cigna twenty seven to at that under this spec situation fraud is particularly in act and again i know judge will  whatsoever now the other thing counsel talked about lets the striking of the damages and this was mis edwards and this is very interesting because remember judges there were two trials here we went almost two weeks with our wrists a case where they literally tried the broad case i spent half my time defending the fraud allegations in a recent case we then had the actual product placement for the jury for three weeks and where we actually tried it and i lost which is part of my mind cross appeal i lost the damages on a receipt because i could not replicate the u c r in the allowed amounts in the plants i couldn't replicate them because i didn't have the plans at the time and get an expert witness who instead of utilizing the best evidence which is the database in the information they have to determine u c r she goes out and does basically what i did to and nor cyprus and beat him and then come out and go outside of the u c r mouth in the database you cannot do that and you won the case that way more importantly judge hoyt ruled you can't make millions and of dollars off of the savings that you make which is a false savings pursuant to the plans and then go outside of the plans to determine what your damages are and judge hoyt was not prejudiced against this expert witness was very clear is under texas law if you have a fraud claim assuming it's not preempted you have to determine the value for c because every one of these claims was legitimate every single but were not some little inventory surgery center or some items in it drink some kool aid for a few hours and walks out with a durable medical good and we bill for it these were by their own admission legitimate goods and services you have to determine what the value received vs the value paid which their expert never did she never does terman what claims were within the four year statue of limitations for prodding which were outside of that there were five months from january one thousand nine through the thirty first part of the three week trial was to suit on non aggressive plans to house a jury going to no out of six hundred plus plan sponsors which one are risks and which are not she's got to do that the other thing is she did not make a distinction between plans and policies because with the policies aetna kept the money center money and under the plans it was supposed to go back to the plan sponsors and then finally in this case we spent half of our time of that three weeks trying e r fraud in observation cases planes that we put people through the e r fraudulent lee they dropped it on appeal because their own s r u found after six years investigation there is no e r for on their own doctors he reviewed our documents said there is no e r fraud so they just dropped the did their expert witness drop those claims for damages no they're sitting in there so and what her position was that we took advantage of their what's the word inefficient claims handling even though aetna made a representation their plan sponsors that they would be ninety nine plus percent accurate on planes now with regard to the distribution seven exhibits that they claim were excluded by judge hoyt five of them i put into evidence they were e mails and letters to the partners that i put on first and i put them in evidence judge hoyt was not going to permit them to put it in and have the same document mark twice there were only two left one was exhibit eight hundred twenty two which was demonstrative evidence demonstrative evidence that counsel it put together claiming that how much money t doctor said made of course that doesn't come in unless there's a stipulation in my thirty eight years of trying cases demonstrative evidence is never admitted unless the parties stipulate the other one was a list of partners and what units they o they didn't give any information whatsoever with regard to these alleged kickbacks there are one hundred forty doctors they never deposed any other thousands of patients they didn't oppose they never tied together any alleged payment of a distribution which was determined by a c p a and more importantly the units that were owned by the doctors were issued in two thousand and four three years before the hospital open nobody knew what was going to happen in two thousand and seven they never connected one payment with any referral or any claim none whatsoever they had none and that's what and judge boyd also said you never even put on evidence of what you would have paid but for this alleged fraud where is it they didn't do it and that's why the judge point theme in and said you know i'm going to not let this and also they had an expert witness up there opining on the texas insurance code and on the plans telling the jury what we did wrong that's where he said  was not fair as an expert witness and as a gatekeeper it was appropriate now having said all of this the question i know the judge smith is probably thinking why are we even having a jury  entirely independent of the brisas what plane could they bring that was entirely independent it was not everything was timed if you want to look at what the coverage is whether or not you're going to be paid even for the huge deal for you have to go to the plants and if it goes there they have to under the go bail versus liberty case this case should have been preempted because the a is a you have to go to the charges you have to go to the exclusion and you have to make a determination as to whether or not  there's going to be coverage under the plan this is not a case where you have the garden variety is the courts say fraud for example where the member comes up and lies about his age or lies about the fact that he's employed that's the garden variety fraud that aggressive case but the whole point of having uniformity in a recession is not to have fifty states determine their own fraud in their own basis for fraud they did there is no way that they can ever claim in this case that their for them to be from start to finish and then you feel four planes forms two are part of the arista documents and therefore a receipt should have preempted now finally with very quickly with regard to my counter claim  fee schedules which is what we never got i think i misspoke a moment ago with regard to plans we did end up getting the plans in the litigation we never had the plans before during the time of the of the claims but facts that he things he put in front of the jury coupled with the argument that he hopes he will get to give in front of a jury if we go back in front of a jury but the fact is we had a story to tell it jury to for everything that he said we had evidence that that was not so he said that there were e mails that we knew over there from a discount they kept telling us about a pump they discount people based on regulatory gardened would understand that to be a five percent discount people would not understand two hundred and that they would do that forty four thousand times they can have a strategy in front of a jury if they think that would work in texas or blaming you know the victim even if the victim is an insurance company have at it i say but the fact is this is will fifty we don't we're not saying that this was a billing fraud in the sense that services were not provided this is in overcharging case and in saying that he was saying that the x or with properly excluded because this that they took it into account she started with their price one hundred twenty five percent of medicare and took that as the baseline put the value of the services rendered and one of her models was ok it will take you at your word you want that in that or pricing that's what we