at least one million six hundred sixty thousand nine hundred fifty four dollars and ninety five cents are going to care for planes submitted for diagnostic testing of reports that were never interpreted by a licensed physician and diagnostic neurological testing that was never supervised by a licensed neurologist defended his patel yes now why isn't that it mission all by itself not game up because that's a statement that i don't think anybody's claimed there's something ambiguous about it that down to the penny that some was paid for testing that was never interpreted by a licensed physician for testing it was never supervised by a licensed neurologist on iran with all due respect i do believe there are some ambiguity in nap because you can't look at that question simply in the light back in the n t vacuum of the question you have to look at in the context of the whole plea colloquy and the where's the confusion around those words where is that question and that answer is there any civil exposure at least that's the theory on our four from the false claims act for unsupervised medical testing for a company that she didn't own i thought that she was charged and she pled not but you still made a false claim i mean that's the assertion not that she was the owner but that she made a false claim well that she was aware of and maybe participated in the system not that she may be forced claim i mean that's that's part of part of the problem here is that the companies are making the force claims mr patel is making the false claim she has knowledge of the false claims she's assisting in the false claims she acknowledged and admitted that she was it's this thing in the false claims that's that's clear in the  again with all due respect i don't think there's anything that's actually very clear in the colloquy when you look at the entire colloquy you see the confusion when they keep couple ing the two companies together well that's talking about a whole set of facts and circumstances that that sort of color you know the veto the overall situation would take it out of the context of simple question and answer in a plea proceeding  what do you make of the larger issue of the stock will think you know it's thirty seven thirty one e which basically says you can't disown in the prayer proceeding criminally in  cases where one is is sort of charged with nonspecific one is convicted of non specific actions that are event later alleged in the criminal code in the civil complaint and that's where the collateral estoppel applies here where you're talking about eg i guess it's two thousand and six to two thousand and eight year scheme to defraud where you ownership and the being the person responsible for submitting that the problem is the clique colloquy does not articulate what ms patel did with respect to the heart salute with respect to bio valid basis for we know what we we are actually in another matter vv plea colloquy is being attacked but that's beside the point for purposes here we have colloquy yeah but it can't be beside the point because we've got pretty clear law that says you're not allowed  that you can't come in collaterally attack again after the fact and as if that's why i said in another form we are quicker if we are attacking but it's beside the point for this crew this matter because i'm stuck with the plea colloquy in this case i acknowledge that that's what i was and how to say balloon she didn't say she was older but if she's been an owner is not a piece of the of what you have to plead to in order to be guilty who cares because our and for purposes of the  accomplice liability being something other than an owner may be sufficient for purposes that that same theory of liability doesn't necessarily translate easily over to the false claims act ok so what's your law i mean you should ask it this way if you're wrong that ownership is important in this civil context is that the end of it for you i mean is that what you're hanging your hat on and that's that's one of the primary issues in the case cos the fact is that the record does not  that all of the one point one million dollars was not under some level of supervision well we've just read that question i guess he says that you were paid this amount  and is was all there's no there's where's that i guess we're getting back now into a circle you're going to say that that's ambiguous because it's something that was said earlier i mean you did knowledge at least that that sentence and that answer standing on their own neurologist from such and such a date to such and such a date state that is not sworn it is not made under penalty of perjury it there is considerable case law no presidential case in this circuit but nevertheless from other circuits that that is insufficient to create an issue of law several points on that and that that is the last letter that came from the court and i did spend a lot of time since then looking at that i've seen my time might be case that creates the not two thousand and ten amendments to rule fifty six the other one the world trade tower litigation actually was a direct violation of a court order discovery order where the court declaration the rule itself suggests then that the document had it that the at that this statement has to be something that the vienna vidual has firsthand knowledge about would be in a position to testify would be affidavits and declarations and if you look at the comments one might say with a declaration of referring to his nonsupport declaration of a seven hundred forty six the problem is the new jersey the district court rules in new jersey talk about something called certifications and documents that comply with sedwick with the compliant with with the provisions of seven hundred forty six the local bill local rules in new jersey couldn't overrule them were impact of the federal rules of civil procedure at and i understand as our and i are i would have if if we read and understand rule fifty six to require an affidavit which in common parlance means something that you've sworn under oath or a what the court understand it to mean and the court where the decide that and the court would be issuing precedents for the world to follow for going forward in this case first of all there was good the rule actually provides an opportunity and a requirement that if something isn't sufficient for purposes of summary judgment determination the other party object that would be i guess fifty six c two there was no objection here there was a claim that these were sham affidavits because there was no there was no objection that it was procedur by the rule itself but the rule itself on the face of the rule is is is mildly unclear the comment does refer to seventeen forty six and in all fairness is court there is a risperdal a recent judge stapleton there's one body judge hardiman there's a whole lot of unreported so maybe then and when you say you could find no other cases there are other reported cases from other circuits like file versus rogers seven circuit case  summary judgment proceedings they're made under penalty of perjury only on sworn documents proportion to the affidavits may be rejected now that's dictum but nevertheless when you say there are no other cases that's not that came from in the pleadings i don't know either but it just seems that there is a practice that i think emanates from practicing in new jersey where this quote certification i don't know what a certification is to be perfectly candid with the court although it seems to be a common practice and policies used in new jersey all the time if we i'm sorry go when you are dealing with what is claimed to be false representations and you have an affidavit attempting to counter those false representations if that's not made under pain of perjury it gives me great pause to consider that it should be taken under consideration because if the claim of falsity is true in the first place i think the claim that there is no falsity must be made under penalty of perjury if we're going to really trust what is being presented to the court and i understand the court's concerns and that's the concerned that is hundred forty six language the government didn't object to it on that basis that everybody just referred to is a quote sham affidavit which is sort of a different concept which really doesn't apply here because you're certainly allowed to tweak ambiguous statements and that's what that statement really is th deeply considered doctor in the same ad the sham affidavit doctor says you know if you say something very clearly and precisely and then at some later point for a purpose that's in your interest to say something different you say something different we can  disregard that the b context of what's being said here is really an explanation have to what i would suggest are ambiguous points in the plea colloquy i don't think they're directly contradictions i mean you know one goes to the ownership issue in the end the other goes to the period of time for which there was a supervising doctor and i don't think that those were i don't think that they're correct contradictions enhanced quote would even qualify under the sham doctrine except if we were to accept even if we are to accept the  certification on its face we're where does mr patel say that there was in fact supervision going on but the declaration says that he had  doctor to decorate the declaration says that mr that dr temperament agreed to serve as the testing supervisor and it says that he that mr patel sent him compensation for serving as the supervisor but i look in vain for anything that says he actually did any supervisor i think one can can infer from he services super serve as a dialogue sounds neurological device frozen so there's a statement says he agreed to service we're trying to be precise as you're demanding with respect to the police we don't see anything there that says he actually served and did anything with all due respect i think if someone says they you know i agree to serve i'm a context to this you one can infer that they did it we were talking at the summary judgment stage here where where whether this is a is is is an issue to be disputed i mean that's really where we are right now wouldn't you expect if somebody was going to raise an issue of fact that they would raise it precisely by saying i hired dr to take them in and he actually did the work and that well dr temple many greedy would do something but not say anything that he actually did you or i would x have expected that many things that were done before the district court and before this court were done would be different would have been done differently i'm i'm stuck with this record just as the court is but i agree that that statement could have been more specifically articulated i your honour's may please the court counsel my name is charles green bow i represent the united states if pelley in this matter the court has the parties to address two issues both of them go to damages and for the record the government is also this discussed already what the certification said and what it didn't say and us is to look at both those two cases the klein case in the world trade center disaster one to case and case both of those cases make clear that if you have no sworn document it's you could have been addressed and there would have been you know the language of seven hundred forty six a fix without a problem but nobody raised it so it's not really fair for the case to turn on that at this point what's your response to that your honor the government didn't raise it reality is we didn't raise it what we did say about that affidavit is that it really is a sham because it conflicted with his plea testimony and that's really what we focused on and that's what the dish record except it i could have raised the issue and said it wasn't under penalty of perjury in every incentive to get it right because he was facing a monetary judgment in the civil false claims act case but we did raise it the reason we argued that it's a sham affidavit is between two thousand and six and two thousand and fourteen so we've got the years there they falsely represented to medicare and then you go through what the folks who's worked out the neurological testing and this other scheme and so the dish of course point is that they said he said the that's what i understand them to say that's what i believe that is what they are saying and our point is simply that the court gave this specific years and the response to that question was not unambiguous yes and then he puts in a certification that is i'm sworn it is unsigned where he says actually that's not really true because we did have supervision during some of those years but our other point about the whole issue of that because the only second question  asked was whether there's really a genuine dispute of a material fact and part of what we're saying here is there's no genuine dispute for the reasons that i've just said because whether you consider the certification is just shouldn't be considered competent evidence or whether you agree with the dish record that it's just a sham it doesn't raise a genuine dispute of much of a fact because because he's basically what we think there's no dispute because the affidavit is a sham but we think more the government argues more importantly it's not material that even if there is a dispute it's not material because we need patel play a part of what they're saying here is that the pre calc you who is in big u s and wasn't clear if the judge is talking about some of the time or all the time even if you read every inference in her favor that she thought she was just pleading that at least in certain periods there was no supervision when she gets to the end of the colloquy and the court says to her and so the unsupervised number and then for the other scheme which is not an issue is that one point sixty six million she says yes so and i understand mistress are going to be saying it's not fair to view that in isolation that somehow the earlier ambiguity in what's your response well i think what my response is that even giving her the benefit that that earlier ambiguity even resolving that in her favor that she just thought she was talking about was at least some of the testing on supervised even if you give in her favor what they're really means when she got to the end of that colloquy and the judge put that very pointed question in front of her about unsupervised tests and put a number of front of her and she said yes even if you view it in her favor what she was saying at the end of that was yes for those test that were unsupervised and you know she's saying i'm only talking about certain periods i'm not talking about all periods but at the end of that call there's this very unambiguous question where she says yes for the unsupervised test this is a number so even if you give her every inference and every benefit you can give or if she didn't understand the previous questions she's not challenging that final question she didn't say i didn't know what unsupervised mentor however was phrased that's the one question she really doesn't challenge it she doesn't say that particular question is is an ambiguous is ambiguous and so i believe if you read everything in the light most people would her even if you agree with her that she's saying that i thought separate the issue of ownership from the work of the one point six million dollar figure that we're talking about well the ownership certainly does go to liability and certainly if she's if if somehow she's not liable because she wasn't an owner which certainly the judge if the government disagrees with that proposition but obviously if she if she gets away on liability then i suppose it just means that it's her husband and only her husband stuck with that damages number but the point about ownership which was discussed before that does go directly to liability and on that issue the government's point has been consistent that it's simply not that simply can't create a material dispute there's nothing material about liability that a material about ownership because it's not an element is ownership is not an element of a false claims act you have all kinds of people and all kinds of companies that are found liable under the false claims act without being an owner of the company you have other things that you have to be liable for you have to be knowingly symeon these claims and yet they have to be false claims but she did enter  allocute to those things that she made false that knowingly made false statements to the medicare program that she submitted these false claims to medicare and that she and her husband were paid a certain amount by medicare so ok stop for just a minute   she pled guilty in a way that locked her in to every element of a false claims act damages allegation is that well the government's position on this cop was certainly from a coming in and saying yeah yeah i plead guilty to the crime but not to that whole number and then that is correct the government's it's not the government's case that she is a stopped from because even if she is right that all she was thinking in her mind was i'm just quitting that during certain periods there was no supervision at the very end of it when the judge says to her and so for the unsupervised tests right right right she s comes down to that question that's why i said leave that question aside if you didn't have that question you couldn't be in here arguing there's no issue of material fact or at least you couldn't do it on the basis of some kind of an  if we don't have that number then that's great there's nothing else in the record that would give the damages amount that is correct so what were the what the government is arguing is that we do have that number and we do have her testimony even if you give her the imprint she's asking for that number still leads to the idea that that's the number from supervised tests so in her theory of the case for the unsupervised tests that's a number she stuck with what she's trying to say about backing out the supervis periods that's baked into that number because she said that is the number for the unsupervised test so even if you give her every benefit of the inference that what she was thinking when she said yes we didn't have supervision during certain years she still stuck with the fact that at the end of the liability did make her directly responsible for the fraud but a joint venture theory or on the theory that she was actually the one who was made the false representations she was the one who knowingly made those representations she knew was illegal and those were things that she had every incentive to challenge the questions i read the damages number she might have had in sense challenge that but she had every incentive to challenge questions about liability because those were  there's ambiguity in this record is it who gets the benefit of the ambiguity does the government get to say like you just said well she should have spoken up if she thought that was in big us or when you're coming in and trying to hold somebody responsible on the civil side and you've got the burden of proof does the ambiguity come against you the government well i think when it comes to things where she is collateral stopped from challenging then i think the ambiguity is really an issue for her because she's collateral estoppel challenging that what if there's a compound sentence that is confusing  she isn't collaterally stuff from from challenging that isn't that the responsibility of the prosecution to say hey wait up hold up your honor could you simply add we asked that question dividing it between each of the defendant complex compound question well the government's position is that the whole issue of of ownership is in any event it's it's not material to her false claims act five dollars so ok but but is  the no no certainly the government would not want to do that and that is entirely correct the government would not want to get a conviction based on and they do is question is i don't believe that's what happened here well i mean you have an ambiguous question and a compound question did you and your husband own operate to corporations and from that question you can't tell who are both owned or operated which of the corporations i think it's i think it's a very bad question and i think if the government wants to wants to question that question that they should honor back then but i don't think we need to worry about it now because i think there's other elements that are more relevant to what we have to decide today and that's been the government's point that the dish or court the government didn't say ownership mattered to false claims act like building the dish a court didn't say that it was necessary to claim tax liability it's an issue that raised and we're just trying to deal with it up here but it was not essential when the government says we would never again that i mean you were arguing that it was a sham affidavit in part on the basis that you were saying everybody admitted these evidence of fraud but it is certainly not necessary to the government's case so you won't let go but you agree with me that it's not necessary i'm sorry you won't let go but you agree with me that it's not record owner and that's a very carefully written phrase which basically rules out all kinds of other things like for example being a beneficial or something it's a very narrow orderly kind of furries which basically says my name was on  immediately address something else i wasn't focused on the court's initial question but but even in a vacuum this question is somewhat ambiguous and it and here's why and where your company's t companies bio sound and medical buyers how medical services and heart solutions paid at least and then the numbers mentioned by medicare for claims submitted for diagnostic testing this question does not eliminate the possibility that heart solutions could have received one dollar when they are back to ownership rockier yes sir i hope so if we a factual basis for the elements of that fats so helping doing just knowing about something and doing one thing to further that could be sufficient and and many times facts are articulated to you a bit no disagreement with them but let's focus back on what we're talking about here which is the damages piece of think we're in a let's let's stay away from ownership i mean a stay away from liability and just focus on damages for a second because here's here's here's the question the question is you know we've read it we don't have to repeat it but she acknowledges with a simple yes that one point six six eight so she's acknowledged that that sum of money was associated with the unsupervised with no supervision at all with respect to that that's correct all right where's the ambiguity in that i think the ambiguity is for which companies are and why does that  respect to the number it doesn't have any bearing at all does it she's admitted that sum of money is the sum of money that's associated with the unsupervised work she's admitted that is the sum of