it's number one for two five one five arthur alce lieberman versus american osteopathic association and others arguments not to exceed fifteen minutes or so mr morgan was for the the exam to become a member of the association in two thousand and two when he had thirty six years of practice at that time he found out although he thought it was certified passed the exam in one nine hundred ninety seven even if the one had one day of practice or you say he was surprised who was there some document in two thousand and two that said you would you would never need to take the exam again not that i know what i understood the rules was you needed to take the exam every eight years or so and that's why it came up again in two thousand and ten is that right yes your honor except that he was surprised because he heard there was a grandfathering in he understood that to be by went the practice in by patient seen as the watson case you know it's in any that the fact of the matter is true the court is aware we're country clubs and whatever not requiring you to be tested none of the bar association required to be tested here this particular osteopathic group these two organizations affiliated really have a monopoly and really require you a doctor to be sort of fide to taking a test you take issue with the i mean you can test or contend that the organization should not have to set its its rules or qualifying rules that govern certification and additional requirements to attain that certification to a degree as you i know what i'm saying is is that somebody wants to join a professional organization they should be licensed and allowed to practice not take a test  thousand and ten he was now more eight years away from certain parts of his practice no longer did he not to be to be frank you know he was also older and the notion i mean as a matter of policy will get the law a bit as a matter of policy just like some states you have to take your driver's test again when you get to be seventy five or or eighty i don't know do you contend that it's that it's some type of in giving with test in areas that you don't practice in and have practice in in years also giving in a computerized test of any case i mean we're talking about a couple of different things you're kind of arguing that this particular kind of test is unfair you know there was a case the dean of stanford law school failed the california bar even though she's one of the most prominent supreme court advocates probably because she didn't know california trust in a state law but is there any law that lets us look at the nature and quality of professional certification as opposed to more of a due process first of all is fire is the dean not passing that state licensing once she passes it gets to ice and she should be able to belong to any professional organization that's first of all second while then their process is unconstitutional or willful and wanton because they are causing damage to be done that they know will be done by their conduct why did they have to way out the internet that this member didn't pass i mean i belong to a lot of clubs they don't even tell anybody in the outside who the members are but they've got to circulate it why because the insurance companies and get it and then what happens is they stop covering the patient's insurance companies who are but but so does the association because it gives them extreme power why would you think that in one nine hundred ninety seven they sort of fi somebody that's got one day experience because they wanted to get a broad membership so then they said you don't ever have to take the test again come become a member the fact of the matter is is that the conduct is not just monopolistic but knows is going to be danger in damage output the damage to the patients their patients the stock to seen for decades and families he they have his confidence he has their confidence they rely upon him certainly can't use them because the fact they're not covered by insurance the fact of the matter is it just doesn't affect him if you read the newspapers and the searchers are out by doctors in the groups that every week you see articles where they're screaming about it because it's unfair i would hate to take an exam where i was examined on patent law because  law and you don't get the death in it by just walking in and take anything but they do what they have control and that's what the cases say the cases say if it's an economic necessity and the lower court found an economic necessity here and there's a monopoly then you have a right in all we're asking for is a right to go to trial and have the fact issue decided by a jury which  cases say when it comes to willful and what what would the fact issue for trial b are the major fact issue would be willful and wanton and the misconduct of the defendant misconduct you mean would you try whether the test is failure or would you try whether the test is useful or that's part of it yes i would  issues in that respect and one would be and willful and wanton it's when you know you're going to cause damage and you still continue your behavior whether it's negligent or willful so so just to help me what is the terry that you would send to the jury about this case was the question that you would have them answer i'd have no mance who whether there are sort of vacation process was this is fear this is fear this is fear you know the words he be tested for areas that he doesn't practice and that he be tested on computerized when he doesn't have computers now which is by the way in two thousand and two it wasn't computerized and when it come he doesn't deliver babies anymore more you know he hasn't for years as it's done in years he used to do it in the hospital but he hasn't been in hospital for years as far as practice he strictly office practice with his patients that's it and that's what he does and what they want him to do is pass tests we go to areas he does not practice area that is filled by three points that's my question complaint if that's even if you should have to take a test you should have to take it to show licensed by the state you're invading the states right now that's wonderful if you want to make me take a test but you don't publicize it on the internet and you don't continue doing that when you know that insurance will not be covered by the patients but it gives them more power if it so so he is licensed by the state and continues to be issue on so you have private companies who the insurance companies for their economic reasons only want to pay for people who are members of this association right it's correct and then  association has certain standards for membership and the association publicizes it to everybody including the insurance companies so that it would continue having that kind of damage to that part is that your tortious interference part that know machine didn't work right i'm saying three things first of all establishing the test at all second of all in the way they had the tests performed in areas that are not practice by the physician and then finally that their grandfather musician was only for the benefit to do it one year somebody practicing one day when in morning in may it please the court trend collier for the american osteopathic association and its board of family physicians the a o a is a is a private group that certifies doctors who have met its level of excellence and one of the ways it determines to whom it should give this certification a backslidden this is by having them take a test this test includes a practical portion a cognitive or objective portion dr lieberman failed that test he failed it twice dr lieberman has come to this court asking it to compel a private club to certify him as having met eight standard of excellence that he has not met the district court correctly declined that invitation and we submit that this court should do the same to try to parse out sort of two separate issues that came up during the previous argument one issue is whether or not there is an economic necessity to take and pass this test that's one issue if they prove that or if they plead that then you get to the next step and the next step is whether anything in the testing process violates due process the district court went to the district court ruled in the always favor based on this second step it held that there was no basis in the complaint under the ball and  there were no plausible allegations that anything about the testing was arbitrary or reasonable and that is probably the clearest basis for this court to affirm the district court's judgment we submit that there was also no pleading of economic necessity and that's been addressed in our brief but i'll focus here on the district court's holding which is whether or not there was any plausible allegation of anything arbitrary or on reasonable about this testing well you know when you talk about the economic harm counsel that because the insurance companies will not what the case law requires of those more than harm under the illinois case law that governs here a plaintiff has to prove not just harm but that it was necessary and when you look at the cases they've only found that the plaintiff has only cited one case in which a court has found this and that's the unpublished case called bucy and the court found there found that there was harm there because the doctor was unable to practice at all that's not the case here the plaintiff can still practice he can still see patients he just may not be covered by some insurers or your argument is that the standard is economic necessity meaning you have an economic livelihood without it as opposed to your income is reviews right i think i take it you're saying that the district court below did not rule on this basis so we would not have to go into that if we agree with the district court on the basis that did rule on right i think you can assume for the purposes of argument here that they've proven or that they've pleaded that the next question is have they pleaded any plausible basis for the court to say there's anything arbitrary about this testing so let me try to delve into their arguments first day they argue that there should be no testing at all i think the clear answer to this argument comes from the miller case that we cited in our brief miller versus department of professional regulation which upholds testing and it upholds testing even for people that have practiced for twenty years the plaintiff in that case  practiced twenty years he still had to pass a test now the plaintiff has said well the the court should look at miller because that was a constitutional due process case but if testing can survive constitutional due process it can certainly survive the common law due process test that applies to a private club in fact they've really don't think you would make sense and they never cited any case to say that the due process r quite a mentor or a private club are higher or greater than they would be for the government that i think is the answer to that argument that they argue that the practice of grandfathering itself is wrong or as they frame it if they grandfathered doctors who passed the test in one thousand nine hundred seven then they should grandfather doctors who passed the test in two thousand and two what was there was  grandfathering by nature involves cutting people out who were very close to hitting that threshold if you grandfather doctors who have pet practice for forty years you're going to cut out doctors who have practiced for thirty nine years and are just as qualified as doctors who have practiced for forty years but that line has to be drawn somewhere and in the watson case the us supreme court held that the practice of grandfathering itself is permed miscible the plainest try to get around watson by saying that there was more in watts and they say they weren't just grandfathered but they had to show that they had practiced for a certain length of time that's not quite right what the lot issue when watson was is the doctors had to have been practicing medicine as i think it was eighteen ninety eight and they had to prove that they had treated at least twelve patients in the past year so this was not about showing that they were good doctors or qualified doctors it was just about showing that they were still practicing as doctors was was the one thousand nine hundred ninety seven grandfathered date in effect in two thousand and two that is as i understand it this gentleman has been practicing for thirty or forty years so he could have applied to the association well before nine hundred ninety seven and then he would have been grandfathered but when he decided to sign up in two thousand and two did he know that he sort of tried to almost make it like a stop will like you tricked him into thinking he'd be grandfathered is there any merit to that or anything in the allegations that would that would support that i don't think so i mean this this comes to the court through a twelve b six motion so we're basing the argument on what's in the complaint i don't think there's any allegation that he didn't know he could have taken this test the fact is he could have taken the test in one thousand converse really although he says he was shocked to to hear that he would have to take it again in twenty tim is there any plain you're right i don't i don't believe there is any sort of claim along those lines the plaintiff this morning talked about his belief that the airways actions were willful and  i think judge doug in his opinion got this right he said when you look at the state case follow that governs this issue what they require is there is a showing of bias prejudice or a lack of good faith so it's not just using the term willful and wanton under it ball and twamley and the heightened pleading rules he has to plead facts showing that there was bias prejudice or lack of good faith by the a he has not played in those facts like the miscreated the exam where they gave him a harder exam than other people were writing or they knew that he didn't practice in a certain area and they added that just for this year something like that  he hasn't pleaded anything along those lines or anything either way about how many people can come up for research of the cation us the only thing i can give an answer to that is judge duggan after the dispositive motions were argued asked us to go back to the way and find out whether anyone had ever been certified despite having failed this test and so we or were other people got off easy and right is right that there's no facts and i don't think that was even pleaded the last issue i'll address this morning is it is there was an argument this morning that it was somehow unfair for the to announce on the web or announce publicly that the plaintiff failed the test that's the first time that i've heard this issue it wasn't raised below and i think the answer to that issue comes from the austin case which is a and an opinion from judge posner in which a similar claim was made and judge posner said while the function of tort law is not to protect plaintiffs from true statements the fact is the plaintiff failed the test and it is unfortunate but he did fail that test and therefore  income it did and we also produce proof for the court and the judge found that it was an economic necessity specifically in this case that's not even part of the appeal as far as we're concerned because not saying all right i'm just saying they believe they can try i understand that you're ok you know i'm just saying that the court did find that there and i'm not saying that it can't be raised however and i checked on the by the way i also checked it's been twenty years since he practiced in a hospital in twenty years since he practiced the areas that he failed a few points on but when they say that they can tell the truth you can tell the truth and people that doesn't mean that you can't should we say restrain yourself from harming people why does it have to be publicized which members flock why does it have to be conveyed to the insurance companies i don't belong to any club where the membership itself isn't kept internally in only the members get notice who the members are and believe me i've come in a lot of clubs but none of them require me to be tested in order to be in those clubs once upon a time it used to be used as an excuse to exclude people and that's what it is here it's used for an excuse to be able to have people pay you this particular organization has become huge and gets tremendous income and so do the insurance