conduct it's about engines conduct in promoting off label uses and those of a drug we've alleged i can't i can't agree i mean it that's what the case is about but the the appeal is whether or not your client complied with the statute of limitations and if the district court properly thought that she did not then you have no basis for an amendment there's no argument as to the pleading standard and you're outta luck don't you think i don't disagree that the dismissal is based on the statue limitations i think your honor the question is what did the what was the brott it's a little unclear to me from reading the briefs exactly what happened to harold that there's some reference to the fact that he was dropped from the litigation i'm not quite sure what he was invited to become a named representative and then was dropped by mr berman's office into the litigation he did finish as a representative plaintiff so was there a formal motion to dismiss mr harold no hers he was just not included in the settlement we all to but why in the eyes of the law why is he still not he knew about the criminal conduct they came about with the what it's not too late actually brought a second action basically challenging the the the content of the labels and whether or not there were warnings that this was contr indicated he did your honor about a year into the litigation that mr carter was involved in he came across the country with another plaintive and fod another lawsuit alleging studies and there were two drugs ebola narron s in his case discovery or some pre filing investigation that would have revealed what is now your theory of liability in this loss of the we are is asking is when he's involved in a pricing lawsuit which involves a to b p inflation there's no question by the settlement agreement  anybody ever asked why did the doctor switch from the cheaper medication to the more pricey medication and now course the theory is that that should never have been done for medical reasons but the question is how difficult would it have been to find out the reason for the switch well that's the ultimate question your honor in two thousand and twelve the company was prosecuted play guilty all the key time later complaints came out with the facts most importantly the  happened in texas with my client's condition i don't see anywhere where mr berman had knowledge of those facts none of the pleadings that we're going to get ever brought forward the fact that the company was going into these hospitals and these clinics and saying here's why we want you this which we're going to use a study this study that was ultimately discredited in two thousand and seven when that became the key marketing tool to use around the country to get doctors to switch patients and that clearly happened  but the theory as i understand it was that the where the calm the detail men were flogging this new drug because it was more profitable right for the doctors to prescribe the drug but again the question i guess is and i'm wrestling with is as part of the investigation into why the detail men were able to convince the providers to switch to the more expensive drug you're telling me nobody ever inquired as to what this drug was or what it effects were on patients because of it seems to me that doctors wouldn't have switched to it if they hadn't if representations had not been made to them about the same i don't see your honor any any indication in the a v cases where i was counsel for a period of time any indication that off label promotion was part of that case indeed it was carved out of the settlement obviously because not only will i have a little so i have a little trouble with your awfully able theory only because by definition a drug that is used off label is being used for something different than what the drug was was very fractured for and doctors can do that right but but your theory is in part that the doctor i guess or  misled the medical community because they didn't prescribe the right dosage levels and they didn't warn them that there were contrary indicated uses of the drug and so on but i wouldn't expect that in an off label use unless there had been some communication between the company and the physicians as to whether this drug was efficacious and safe and that's ultimately where your honor we asked the court when the court made clear that that standard was the standard that a company i suspect that would be roll levon if we had sued and janet that point in time so the label doesn't tell the patient anything in fact it's a patient had seen it all they would have known is they were getting it for off label indications which was it's not our case that's not a case you need the bad conduct you need in this representation and there's a clear statement why wouldn't why wouldn't mr berman have done some investigation or discovery into that fact we don't know if he did your honor we don't know that he ever found those facts because everything that was done in re epogen when it came up to this court was dismissed in fact someone conceded that the at the podium and that in this court that there were no such facts the o c actually complained which came about in two thousand and twelve and beyond says that there was great news there's a new p inflation and the money that can make you make them go is your theory solely one of the economy that it was more profitable for the doctors and therefore they did it without ever asking whether or not this might be harmful to their patient no your honor that is the end of the piece here that's the theory that was promulgated there that there's a differential between the two drugs and that the spread is what caused that in the damages and i believe why the case was settled and some money was paid our theory is that drugs should not have been dispensed in this case because this patient was getting it for an unapproved use with a message that said there is a new indication and that it is safe and efficacious when it wasn't we found that out after march of two thousand and seven that label change didn't help mr carter in two thousand and four five six or seven do you ever need any place in your complaint what your client or there has been that they were unable to discover the injury earlier yes your honor in the frozen concealment tolling portion of our complaint we lay out that the plaintiff could not have known the conduct and the conduct is laid out in paragraph fifty six to sixty two and sixty seven so the reason i asked that question is i live there pretty closely and i'll go back and read what you just told me but it seems to me that this label use could have been found were saying knew or could have known seems to me the label use could have been found i don't see any ill allegation that you even looked and they couldn't find it i didn't find any uses find a bull then why when one's getting this for something that's not on the label didn't someone asked the doctor so your honor if i may answer the question that that is the question if it was simply the doctor making his independent judgment  and it would be no case let's see if he says that that's not what happened there but i'm not on to why it happened i'm on what did your client do to discover new or should have known the label use you for i can't find out what the label use is i couldn't even of asked my doctor about that because it seems to me of one it known the label use one could have said to his doctor hey cripe this it isn't on the label and your honor that's that's true and if they the patient found out that was i mean that's just a simple question and then i say to myself so why isn't that should have known because one can argue no i didn't know but why isn't that should have known your honor that's the should have known of the off label use which isn't a case it should have known the conduct that led to the switch and that's our argument that we could not have known the conduct they've cause that's which the ultimate fact question which you raise your honor is did the doctor prescribe it in his own independent medical judgment or because of the conduct but the conduct could not have been known until are you are you appealing that district court said no you know we're too late but i didn't say that you have that you appeal that indication we're not appealing concert indication that's true your honor but we are telling the lack of safety and effica pleading standards affective for prague yes we believe we followed the standard that was in in re epogen beginning of page twenty two that then was affirmed by this one of one of the fraudulent misrepresentation that you will so as i said the marketing message which i just read to you was  the court we really do rest here on the district court's opinion this district has had lots of experience with these cases not just this case but others on the air and after drug it's important to focus on the allegations the case where he says two things and this is you know this is a record reference here his declaration is that you are to sixty two to sixty three he says two things one my our supplemental excerpts at pages seventy six and seventy seven and see the allegations in that complaint mr carter was deposed in that case and he says at the beginning to deposition this exhibit one in my deposition is the complaint and i've couldn't have known which has a pleading flaw as well as not supported by the record the other thing that's clear is that by two thousand and seven they had an indication it was unsafe there was a black box warning put on the drug so from two thousand and seven you would run four years to two thousand and eleven this complaint was not found until two thousand and fourteen how do you respond to the argument mr have all made which as i understood it was because he was getting the drug brain injection he would never have had any reason to see the box that the drug here well i agree with that in the following sense there's no allegation that amgen ever had any contact with injection whatever it was he wouldn't necessarily have even seen the bottle that the drug came out i agree with that but the doctors saw that label so the idea that there was any misleading cont conduct here that would lead to mr carter isn't there the doctors were told quite accurately that here that uses for us and so that the doctors almost leading here the other point i think is what judg mentioned his complaint carefully alleges he was switched and was not told and every time i read that i write in the margin did he ask including now this is what's required for the statue of limitations california law says that to give you know painter reference and see are four four fifteen and four sixteen it's only two pages we had filed them and got had filed a prior motion to dismiss on the first complaint their response to that was amend in that prior complaint we had said you're outside the statue limitations so this complaint is should be responsive to that argument there's only two pages and really there's only one allegation and it's a conclusion allegation that this court has said and then home standard for this for the talking of the statute as well as on the fact that your honor i'm happy to address other questions we do think that overt like to address the question about district court dismissed the complaint regarding the allegations of the drug was unsafe right would you respond to the error alleged in that we don't think there was a an error and why not yes so first the district court  dismissed the complaint without prejudice to a further amendment the the planet had already said in their opposition a motion is met we intend to amend the district court said well i dismissed that part without prejudice because you have in your complaint haven't ledged and unsafe if you can come back and make those allegations you can amend and the district court gave four weeks to do that and it wasn't till three of those weeks had passed that a motion to extend that time even right your honor and it's some point litigation has to end this judge had seen a lot of it by that point but to answer the original question the dismissal on the on the unsafe drug issue was done without prejudice because of the failure to comply with the time given for the amended complaint right that's correct jonathan judge smith asked you to respond to that quote well i think it was not and i think is exactly right that it was not an abuse of discretion more time to file an amendment making those allegations which were not in the first in the complaint and then when that time had expired even even when the judge denied that motion the district judge there were three days left in the period they still found nothing so i don't think th help any idea that the district judge was wrong that there are allegations in this original complaint which allegedly on the safe theory of liability but let me say two things to that  already they had they had that information already yawners i know this in the complaint already yeah so i do think if you're reviewing the stain of oh you can take notice of the fact that they knew it was unsafe in two thousand and seven and that there was no complaint filed within four years of that date so it's invalid under the statute of limitations that's one who is that there's never an allegation even in any pleading in this case that says amgen knew it was unsafe at the time that mr might survive there are two intertwined with everything else so i'll just miss and give you a chance to matter and this court affirmed in that case when they fell to a man so i think this judge who here is did the same thing here he simply said to the extent you've made these claims where you have made them i can't see them here's a chance to amend and then we go to the abuse of discretion standard and so he runs i do think that the court should affirm on the basis of the entire record thank you thank you very much leave and i see some efficacious arguments in your complaint but you haven't crisply said a lack of safety that's all the plaintiff go back and pull from the factual record you have do an investigation further to make those allegations under rule eleven that the company knew that it was in fact unsafe we were in the process of doing that and that's why we asked for additional time with the time here i thought in the briefing room there was reference to the fact that at the time of the motion to dismiss you made representations to the court that if given leave to a man that you could supplement your allegations on safety and then the court said ok i'll give you thirty days or twenty five days to do that and you  didn't tell you what's behind that we were talking to these counsel and we were told by zero seconds counsel that you no longer had documents which we thought she had because she lays out a very detailed factual record citing documents one of the review those documents in fact she honor and that's that's really the one that ties the conduct in the misrepresentation down to the hospital where the client treated because in her complaint she's a code test of the r c c which is the shorthand for southwards regional cancer that's how we know that the detail activity went to that hospital we were doing that investigation and it was twenty five days in the summertime we asked to leave just to finish that because without documents we had to talk to the witness to verify as ourselves as counsel for the plaintiff that these here suggesting when the district court said what it did on the seventh still having more time to file an amended complaint you didn't need to do anything now you're on saying the opposite that in the time that are just a minute here's what happened as i understand it so correctly so i understand that he said you haven't got a say unsaved theory liability if you're going to plead one i'll give you till august ten then on august third you file promotion for extension as at that time you haven't even met as i understand it with council to discuss whether or hadn't even met among council discuss whether they would a man the district court have that request on august seventh you have three extra days if you've got a theory it seems to me me being in your spot not that long ago i would've filed an amended complaint firms to proceed under rule of an everyone took that seriously we wanted to have an in first meeting which was conducted on august sixth at that point it was decided to go forward despite the rule of an admission we thought we had enough to proceed with an investigation to complete that that couldn't be done in a week and unfortunately we ran out of time we couldn't race to get something done on monday morning when we got that then i want friday night you know and that's basically the reasonable because on all of this that this is all an abuse of discretion and i have a judge who's trying to help you you say well and this judge is not any judge this judge has had one of these cases or forty of these cases before he knows what the situation is he says you know if you're going to do something on safety i don't see it you've got some time to get it done and then you rather than getting that done put a motion for an extension in seven days before because you haven't had your meeting with counsel i guess and then he says no and nobody does anything and i'm supposed to say the district court has abused its discretion the concern for us trotter was making that rush decision filing something on penalty of ruhleben without having completed the factual investigation that we all the necessary of the autumn line is if i were the defendant and the plaintiff agree this is a very complicated case it's a very dense record it involves more than half a dozen key term related with reams of documents and it's a lot of time when we got that order that really crystallized what the issue was to synthesize that i