we'll hear the next case on the calendar harbor says nationwide mutual fire insurance county alleging a private cause of action under section two thirty eleven b of the new york public health law which prohibits bad faith reporting to the office no it doesn't actually what it does is it provides a privilege for good faith reporting right that's what it actually says well are are the first department has found that there is a cause of action for bad faith reporting to the o p m c and when this case was filed and still today in the new york state supreme court new york county about to resign and department well the second court later did decide the opposite there's a split in the departments and in new york state however i think we should certify this to the new york  of appeals and see if they would like to answer the question well your honor a district court in this you know in this southern district has you know had his own view on that i don't necessarily exit the southern district we happen to be you know just a little bit well of course i'm not going to have you there i don't necessarily disagree but i but it's to court doesn't have the ability to certify we do well i don't necessarily disagree but i will say that if will certainly argue that there should be private right of action under the statute as a first of all i'd like to hear that argument because we're having trouble understanding it in the sense that the new york court of appeals has said in the case of nick barnett against sobel that the legislative history of this statute shows that it's and a different context not not addressing this private right of action issue at all but has said that the purpose of this statute as a whole was to encourage reports with respect to allegations of misconduct by doctors and to three people who might make such complaints from the threat of civil litigation and of course that threat existed because there are causes of action rights such as defamation that would have been available and that are available to your client and the purpose it seems of this piece of the statute is as a shield against those causes of action and of course if it's bad faith the shield falls and then there are common law causes of action which would apply so i'm having a little trouble understanding what is the theory by which of this statute not only removes a shield in the event of bad faith but it creates a new and separate cause of action in cases where for whatever reason i'm not sure which maybe statue of additions in this case defamation and others cause of action don't honor i would respectfully disagree with your reading of nick barnett because mick barnett specifically recognizes that there's a twofold purpose of the overall statutory scheme one is one one small aspect the way that these things are initiate it is to provide some level of protection for people who report allegations of professional misconduct but on the other hand make barnett also recognizes that one of the purposes of the statute is to protect the physicians who are accused of misconduct macc barnett dealt with the confidentiality provision which the law says the case which is the district court case which found there is no cause of action relied heavily on as well and there it found that in certain circumstances not particularly relevant here but i would argue are analogous even the confidentiality provisions that protect reporters must fall away if it's necessary to protect the interests of the doctor who's accused of that was in a case where the doctor already knew the identity of the complainants because they testified against him and the question was whether the specific contents of the complaints should be disclosed to permit cross examination of those people that's a pretty far cry from what we're talking about here well again i would respectfully take a different position here dr heart knows the identity of the reporters in fact nationwide itself has submitted a copy of its own right report is not about disclosing the contents of the reports which are not really an issue here the question is whether there is liability created by this statute new liability for a new cause of action that did not before and i'm having trouble understanding what the rationale of that is and why i should think because after all and i think i'm correct about this you can correct me if i'm wrong that under the erie doctrine we are supposed to if we can predict what the new york court of appeals would do and if we can predict it we should proceed to decide the case well i think that your job here if you're going to interpret new york law is to try to anticipate what the court of appeals would do and i think that both make barnett shows that when confronted with a situation where a doctor is seeking protection of the statute they clearly find that doctors are among the class of people who are intended to benefit from the statute the rest of the decision i don't think speaks to whether or not this particular cause of action should be implied there are two other factors which we go through in the brief and i'm happy to discuss which i think also w know i think that's a i'm quoting encourage complaints that's a legislative per well it was intended to play well one of the legislative purposes of the section which has many sections of clearly the sections on the procedure with respect to hearings against doctors is not to encourage reporting you need to look at the overall statutory scheme it up by yes but you also need to if there is a specific purpose to the particular section that we're talking about that would seem to be the most relevant of course saying the doctor gets a hearing is entirely to protect the doctor and have a fair procedure with respect to processing these complaints well and for the purpose of t taken an overall view of the issues and it's clear that there are protections for doctors and there are protections for reporters but the very section that provides the re tech the protection for certain reports provides protection only for good faith reports and for the law says need court and for any other court to determine that that section evidence is a tent to encourage or to protect bad faith reports we don't think is the case of it doesn't protect bad faith reports on its face it does not protect bad faith reports when you're asking for something more you're asking for the creation of a new statutory cause of action for bed thirty three reporting that goes beyond whatever preexisting civil liability there myopic or actually a misguided interpretation of section two thirty eleven b to say that it's intent is to protect all reports its intent is to protect good faith reports and you know the corollary to that is that bad faith reports are not protected who's impacted by bad faith reports it's the physicians against whom those reports are made so by opinion even viewing just section two thirty eleven b you're you've got a section that that bodies the  entire statutory balance that struck between us we want to hear about you know miss conduct by professionals if there's a reasonable basis for it if it's done in good faith but we have limited resources and we can't and we are required to investigate every report that submitted so therefore there are limitations on what we want to hear no one would suggest i don't think although it's arguably applied in nationwide's papers that it was to just willy nilly require report which is not part of this particular statutory scheme by the way which is which is what the analysis should be is not a requirement to report bad faith or nonexistent problems nationwide is not a very sympathetic you know plaintiff here in that regard it's a very sophisticated insurance company these are no false claims the court could probably take judicial notice that no fault insurers are not in the habit of paying claims that should not be paid or that they may avoid payment on they have all kinds of verification and other procedures in place if they believe there's a problem and while we don't suggest as nationwide you know it claims that there's a real investigation requirement these pursue other than under this statute are are their claim actions defamation actions well your honor i don't know that there are but i don't think that's relevant here because the question before the court is whether there or a separate and my question is could you have pursued other avenues or did you persuade or we could have we actually did percent you alongside of this claim but pursued a defamation correct but plaintiffs are not limited to a single claim claim or cause of action again in the first the part i just want to be clear there were two valid causes of action they were allege and if this case were not removed which is absolutely nationwide's right to do we would be  case the first apartment right now is allowing these claims and they're going forward in my correct and correct me if i'm wrong that you didn't argue that the statute of limitations was  told until august two thousand and sixteen when you when you when you found out about the when you say you found out about the on the defamation claim we did withdraw their client your honor we learned of the date of the report through the motion to dismiss we allege that based on when dr har received notice of the claims and when we learned you know and soon that they are honestly so they're not submitting forged documents or simply fal testimony in good faith we would through that plan so you know if you're on is like i'll go through the additional factors that we've done in our brief or i can hold out for rebuttal three minutes in rebuttal so yes thank you upon information belief that nation wide reported in bad faith to the opium see the office of professional medical conduct in or about july two thousand and sixteen and connection with our motion to dismiss on many of bases on both the claims the defamation claim and the employee a private right of action claim we submitted a declaration from nationwide's investigator from its special investigations unit which said no in fact here's a   outcome of the investigation until the complaint was filed until we were retained in this case and we were told that there was a there was a complaint filed in connection with the doctor our find out well according to the complaint he was contacted by the office of professional not it's your understanding i mean you've seen the complaint but you know you've looked into it what's your understanding i don't have an independent understanding of when the opium c contacted him other than what he alleges in the complaint which is in august involves someone alleging violation of two thirty eleven b and i don't have any independent knowledge of how long these complaints take to resolve other than the information that the court can take judicial notice of which is which is published by the office of professional medical conduct in accordance with two thirty fourteen we cite in our app police brief the two thousand and fifteen report which goes through the legislative or the right regulatory scheme the opium see is required to report under some fourteen as to how many complaints come in and how many complaints are dealt with at the initial vetting stage where the opium c determines that they're not you know they don't wa further investigation i believe in twenty seventeen it was somewhere in the in the neighborhood of forty three percent of the remaining complaints which about ten thousand a year come in now the opium c then refers the rest of those to its internal staff doctors and lay persons to assess whether or not there is enough there in order to warrant proceedings to referring the matter to a board investigation committee and then understand how this process works am i right that your client filed a complaint or a report with the agency is is there anything is your client then pursuing something like a cause of action or do they just send the complaint in and that it's up to the agency to do whatever they want with it is the letter your honor really what we're required to do is to is to notify under the insurance i don't know what to what extent we're allowed to consider that at this stage of the proceedings but there's an affidavit from your side suggesting that that was done in two thousand and twelve and then the record doesn't tell us anything that you're aware of as to what the agency did in the interim when dr horn was notified that there was a complaint or what further investigations pursued until such time as you get sued ok that is the information we have and in essence we have a case where dr carson upon information believe because he can't really you can infer or he can sort of you know surmise what nationwide may have said and october two thousand and twelve but he can't know what it said because the contents of the report are are confidential what he knows is what he received from a notice of charge and statement of hearing which he admitted and the opposition to the motion to dismiss that was issued in this case would suggest that the o p m see felt that there was something there that warranted further scrutiny may have been based on your complaint solely or may have been based on some investigation that they thereafter independently did and in any event whatever whatever they did and however strong their feelings may have been at the beginning at the end of the day dr is exonerated that way this plays out he would  to what the new york court of appeals would do if we thought that we if we agree with the reasoning of the second department and certainly i i found judge nathan's opinion compelling but in this case  procedure where there is a split between departments isn't the more respectful course rather than to say we know how  the new york court of appeals would would rule when there is this split among departments isn't the more respectful of course simply to certify and they can tell us in rather short order what the answer is well that's certainly within the court's discretion to determine whether or not it's necessary i believe that the court has sufficient authority here  and while the court should weigh and look at both the phone decision from the first apartment two thousand and three and way that alongside the decision i would i would argue that the decision provides additional and then as an afterthought it says oh by the way as well that applies to two thirty eleven b two whereas the in the alkaloid decision the court separately analyzes the two separate provisions of the public health law and it says most of the first yes applying the sheehy factors medical health providers are within the class of persons with respect to forty four and six d but that just doesn't hold with respect to two thirty court has sufficient sufficient information and sufficient authority in order to predict how the court of appeals would rule you know there's no if there's no private right of action for bad faith reporting under section two thirty what one of the other avenues if any that you do physicians have who might be the victims of bad faith or malicious  reporting well here dr har pled a defamation claim but i think partially as a product of the confidentiality provision of eleven day he made a claim upon information believe that didn't hold true us to when that when nationwide reported in another circumstance someone could file a timely claim common law tort claim and as the legislature intended to thirty eleven b would provide a defense to that to the extent that the reporting was in good faith and without mal it would be perhaps a more respectful course to send it to the court of appeals that also be the more expensive course for the litigants both sides would it not and then we'd be talking about another round of briefing in albany possibly an oral probably an argument there followed by a decision of the court which depending on exactly what it said wouldn't wouldn't tell at least a return visit here by letters even if  the ruling were very clear one way or the other that is correct here and there would be some level of expense and effort that would be incurred by other parties here on what we believe is an issue that this point i would reserve some time for alternative argument also i just did want to mention one point also that reserve any further time well i'm sorry did we go over we did actually go over so if i may if the if the court honors first as to the issue of certification i certainly respect this court and i believe that you are perfectly capable of interpret in this statute but that interpretation should be an independent interpretation with respect to cost dr harlan under no illusions that suing nationwide was going to be an expensive proposition they're going to go through and the length they can to avoid liability and probably to avoid a finding that they are bound to make only good faith reports o p m c and we accept that but what i would say is you need to independently a value of the factors and i'm sure you will and i'd like to speak to the prior i mean where we were engaged and basically made if we  ourselves making a prediction as to what the new york court of appeals with their correct and so the prior cases all spring from the says the decision which at its base relies on the confidentiality provisions to find that a private cause of action would be inconsistent with the statutory scheme but your honour's have an insight into how the court of appeals views the confidentiality provision it has said expressly that it must yield to a doctor's right to defend himself at a searing so certainly it's not the be all and end all of the statute it's one aspect of the statute in that same decision makes it clear that the first box is checked for dr har he is among the class of people intended to be protected and served by this statute so we've brief the other sections and i would just say that with respect to the food decision i've argued in front of the first department many times and that court does not sparsely analyze the outcomes of its cases it doesn't tend to write the same lengthy decisions that iran has to do and i would also say that in that there is an analysis of another statute with that comes the same conclusion in there they clearly did an analysis so the fact that the first department doesn't always articulate its breeze for us it sparsely drafted but as you know it's a panel of where the court did its work and no one suggesting it didn't the question is what can we draw from it if they don't explain it how can we got one court that lays out a very persuasive analysis and another court doesn't actually say anything that is very germane to our decision what we do we give to that opinion and how can we get will frankly when you're trying to anticipate what the court of appeals would decide i don't think it matters clearly a very you know  panel who takes their job very seriously in the context of a decision where they articulate an analysis of the factors has found that this that you does provide a private right of action we've argued in our brief why that should be the case under the three factors you asked a question about alternative remedies the question with respect to whether there's an implied right of action and there may be a hundred causes of action but each plane of his entitle to assert all hundred of them and have each one of them taken seriously by the court and the question with respect to would apply right of action is whether there's an analogous but more limited remedy in the statute that would indicate some legislative intent not to create because you don't necessarily need to find a legislative intent to create a cause of action what you need to determine is whether the purposes of the statute will be furthered and in this case there's nothing that even comes close to a remedy here and the cases that they have cited for that proposition even further underscore that because there they were the identical remedies giving to other people or with different standards for example in one of the cases that there was a remedy for willful misconduct and they wanted to bring a claim for something less than an hour akin to negligence they said no they decided willful was the standard and another you were able to sue the judgment creditors who did an improper job of restraining bank accounts they wanted to sue the bank and they said no they gave you a specific remedy the exactly what you're looking for but against someone else and in another case they've given the remedy to virtually everyone on the planet who was injured by a minor who was served alcohol improperly under a sort of dram shop statute except the minor and the minor would say no she didn't fly that same right for me and they said no that it's clear from the legislative construct that they had this in mind they considered it they made a decision we don't need to decide whether there should be a private right of action of the legislatures made it clear there shouldn't be they've elected not to give that that's not the case here so if your honour's are going to make a decision on this then i think you need to you know look at this sort of which is the standard of review anyway and while the phone decision evidences that a very sophisticated appellate court believes there is a cause of action and the elec we follows on to the says day and what i believe is a flawed analysis under barnett which it cites but never recognizes establishes to beneficiaries of the statute at least two so yes i don't know that it's easy to predict what the court of appeals would do my client is concerned with getting it right he certainly doesn't want to be in a position where the second circuit is at odds with the court of appeals next year and he was on the losing end of the bargain he preferred to have this done correctly he wants to serve his claim you know vindicate his