the m s p entities it's a pleasure to be here before you this morning it's hard to believe that it's been almost two years since mr gone and myself for before a panel of this court in the state farm one case a companion to this one for my part this morning i would like to know how the legal landscape has developed since we last address this court and i'd like to turn our attention to specifically what brings us here today when these cases began and not just the two against state farm plaintiffs for disrupting the status quo of the property and casualty history which treats medicare advantage very differently than it does traditional medicare the response was pretty brutal at every opportunity defendants hurled insults and questioned our motives and some courts to the same but since we last saw before a panel of this court the chive the tide is changed and courts have been able to express what the plaintiffs and others have been saying from the start that medicare advantage plans have the same protections as medicare that the burden to act is on primary payers not a medicare advantage plans and the most importantly the enforcement of these actions benefits medicare and the medicare trust fund the attacks by state farm and others have been revealed not to be a tax on the m s t flames but attacks against the law against the medicare secondary payer act itself the most significant recent development is the september th opinion and the ace american cases from the th circuit and that decision authored by judge walker sitting by designation from the nd circuit dispelled many of the most troubling arguments that the property and casualty carriers like state farm here have been hurling against the plaintiffs again and again since these lawsuits were st being filed over three years ago but as this court knows from the plaintiff's reply brief here plaintiffs championed the ace american appeal before the court's opinion was even issued because of the amicus brief filed by the u s department of health and human services in its opinion the  an american said that h h s amicus brief should be afforded skidmore deference and that brief from the department of health and human services took the property and casualty carriers to task observing th defendants appeared to misunderstand the regulations governing their payment obligations but equally important both h h s brief and the ace american decision confirmed the vitality of united states versus baxter international and that brings us here to the issues in this case and it's important because the dual observations and baxter number one medicare payers are in the dark about what primary payers have or have not done and the nd observation the primary payers cannot willfully blind themselves to their primary payment obligations both of those observations are front and center  in this case so let's get down to the details of what brings us before this panel today the case before you here is on the entry of summary of summary judgment order that should have never been entered while so much of that has been said about the complexity of the medicare statutes regulations and specifically the medicare secondary because they are provisions and their application to medicare advantage plans the much simpler principles of summary judgment carry the day here did state farm resolve all material factual disputes in its favor as a matter of law to extinguish the entirety of the plaintiff's cause of action the clear and correct answer here is no and it's important to note that this case was on track for consideration and a ruling on the plaintiff class sort of a cation motion but state farm sought relief on the merits even though merits discovery had not begun in a  discovery schedule that was set by the court now front and center to this summary judgment motion is the st and favorite line of defense from state farm and others in the industry in the history of this case and that is to attack the plaintiffs standing to bring suit this case shows how the basic principles of standing up been corrupted and misapplied here the plan to standing to bring a medicare secondary payer cause of action against state farm has not diminished by any measure since the filing of this lawsuit plaintiffs here like  that they have standing to seek their intended relief and if there is one thing that i would ask that this panel take away from these arguments this morning it's the importance of the verb demonstrate as it relates to standing and to apply that every question or issue that surrounds this idea of whether or not these plaintiffs house standing to pursue their medicare secondary payment actions against state farm mr  homely and i'm sure reaction with you in and get the benefit of your reaction sure judge judge mcdade seems to me to have expressed some frustration with the way you all approach litigation the frustration is one that is noting a lack of diligence on the plaintiff's part that there is nothing at all that prevents you from investing resources in defendant because of the double damage provision in the private right of action and at no point along the way have you in advance of the litigation really gotten your ducks lined up with respect to oh dear c s or a b or d e or whoever the last sort of plaintiffs maybe and so it's it's really hard to review this case not through the color that comes through from the district judges own experience with the litigation and i for the life of me i don't understand why there's not more diligence put in to the lawsuit on the front and i'm sure it's financial but that  doesn't excuse you from article demonstrating article three standing well if i may react to those observations i think that what clearly hasn't been conveyed here honor  is that there is quite a bit of diligence that goes into the lawsuit before it's filed and that at the time that the lawsuit was filed again as as baxter observes the plaintiffs are in the dark as to what's may understand if you're buying a bundle of receivables what prevents you from before filing a lawsuit looking at that bundle and demonstrating either through correspondence with medical providers and underlying policy holder or medical patient as the case may be or otherwise that there's either been a double payment or there's been an reimbursed conditional payment i don't see what stops you from doing that well there's that there's something quite a bit that that can be and is done even before filing suit so in this particular instance  presently the m s p entities have detailed standard industry data for approximately three million four hundred thousand dollars medicare beneficiaries but prior to the to the filing of this suit and throughout the beneficiaries were state farm insurance and which ones the expenditures of war for state farm covered events and that's why in the discovery in this case we presented and  on state farm that detailed payment data of conditional payments for a nine hundred and forty five state farm in shorts i presented to help conceptualize the overall evidence in this case you know a venn diagram that shows where the overall universe of the of the evidence is in this case and if i may just answer your question i'd like to share that with you i'm hoping that that i can do so so the larger circle that's depicted here is to depict what the what state farm's planes dot it is and the smaller circle to the left as it's indicated is the entire universe of m s p recoveries claims data and  there are specific accident related funnels of that data because all we have is here everything that's with on the state farm side is unknown to us and still because of the progress of this case it's unknown to us  but the smaller portion of this would circle shows what we have identified prior to filing suit and what we've provided to state farm which is those beneficiaries of ours for which we make conditional payments that were that are also for state farms and shorts so the odi claim which is depicted here is just the single if i could get in a word to follow up i guess i'm having trouble understanding why it's unreasonable for the district judge to ask you to come up with just one case  me and him in i was also you know you lose this debate about whether the physical therapy was or was not related to the accident but i didn't see any real response from you all about state farm's evidence to the effect that they had already paid their policy limits with respect to so to address that particular o t facts but again i think that that's missing the obligation to identify and to pay back the medicare advantage plans st and so that issue as it comes down to in terms of timing with regard to ot's payments and reimbursement s are that at the time that that florida health care plus made its payments on behalf of the d d state farm still had within the limits of its policy  physical therapy provider and so in the end there is evidence as to what the florida health care plus is paid and evidence as to what state farm a state but because they paid the providers before reimbursing florida health care plus that's why there is still an issue of fact as to whether or not those obligations were fully  met as it relates to o t but again urge she needs to understand that the fate of ody is not the fate of the case so even if we assume and i am assuming that for the purpose of the broader argument that the that the plaintiffs will not recover any reimbursement on the behalf of the dea it still does not change the fact that the plaintiffs standing to is that there are significant avenues by which the common issues both for the plaintiffs on a on the whole meaning the m a plans and the conglomerate claims that the contention that it was accident related and not related to her research really it seems to me turns out of the declaration of your nurse practitioner that you operate in support of an interpretation of the medical records and judgment day whether or not the need treatment was related and any personal injury or other similar case the issue about whether or not a particular treatment is related to the underlying injury to vent it's a threshold evidentiary issue or whether it's a question of fact but within the question see if posed are the least three different layers of things that are important here one of which being the you mentioned the previous state farm case and the idea of hanging your hat on a particular illustrative case but it's very important for the court here to recognize that that was an observation as to the viability of that assignment going and nothing in this particular case suggests that there's a problem with the florida health care plus a simon agreement i don't know if you any other argument i know it's in your brief but did you present that argument to the district court and if so where that the you advanced a freestanding argument separate and apart from c s separate and apart from the that your client's acquisition of the contracts the of the assignment was representation even here today judge there certainly is as it relates to the demonstration against important demonstration of standing we have to demonstrate what the nature of the injury is and so it's not just simply we have an assignment agreement that it doesn't make any difference that nurse llama was struck in the reason it makes no difference is because we have a valid assignment of receivables i don't think that that was the i depends on whether we're answering the issue about odis the civic lee or whether we're talking about the plaintiffs standing on the broader instance and so certainly for deciding if we were this was simply a summary judgment by which  the result would be whether or not o d s claim was recoverable and then we have to decide on whether or not the evidence supporting the relatedness of that need treatment is is  related to the loss however we've said throughout the our filings with the district court and consistently here that the that this case is not about ody although o j demonstrated standing at the time the complaint was filed it's within the much broader evidence that has been put forward and frankly for which state farm has remained silent and they have had since january th of twenty  all the same level of detail about nine hundred and forty five state farm beneficiaries that they have about ody and have not suggested that they can in the same with that they have w launched america's defense nor have they suggested that there is a problem with the underlying florida health care plus a simon or with any other assignment and those are what put us in the in the shoes of the medicare advantage plans good morning everybody may have please the courts play to say that they are legal pioneers and by definition that means they want to expand current law including the foundation l concepts of standing plaintiffs have shown no reason to alter the law to allow their speculative debt collection and plaintiffs cannot point to any facts establishing standing reasonable standard now plaintive opens their presentation by saying that there is a sea change or a change in the tides state farm respectfully disagrees with that with been submitted in connection with that issue but the point being is those issues are not these issues here the issues here are fundamental concepts of standing and there is no sea change there is no in tide on the issues of standing so i will begin my discussion with a presentation on those key issues of standing i will then  to the cause of action and they attempt to bring plaintiffs are a consortium of attorneys in litigation financing companies who have allegedly purchased assignments from mayo's or downstream entities and have downloaded some data they have not reviewed key documents underlying their allegations such as the actual medical records and correspondence of their exemplar beneficiaries in this case state farm subpoenaed this information from the m a o s and the medical providers proving plaintiff's allegations regarding their exemplary beneficiaries be wrong now this information was readily available to plaintiffs prior to the filing of the lawsuit if they chose to invest the time to investigate however that does not appear to be part of the plaintiff's business plan the trial court recognized the threshold standing issue early in this case asserting that standing existed somewhere in the soup of their assignments in response to the initial ruling dismissing the case for a lack of standing plaintiffs offered to exemplar claims and in an effort to establish standing plaintiffs now say surprisingly that there should have been no obligation to plead any exemplar claims suggesting that as long as they allege that there was a valid claim in this soup of assignments they have established and plaintiff's arguments however are contrary to the basic leading requirements and they contradict this court's prior that plane has failed to establish standing there exemplar beneficiary mr gone in your view did did plaintiffs raise the issue that it was sufficient for standing purposes to show nothing more than a valid assignment that they hold a valid assignment of receivables that argument came up on reply i was surprised to see it i don't believe they ever made that argument now the premise of one of their initial complaints with  odi rights so in order to have standing plaintiffs need to show that they have an injury traceable to state farm simply saying that we have a bunch of data that we think somewhere in that data will will prove either valid claim it is certainly insufficient and that's where the legal pioneering comes and they would like nothing more than a ruling from this court saying that all you need is some overlap there but in this particular instance plaint this needed to show injury traceable to state farm and the way they chose to do it was to identify two exemplar beneficiaries painted post dated the filing of the complaint and by the way when mr huntley talks about these you know nine hundred or some odd claims i'm his list differentiating whether he obtained any of that those assignments after the filing of this case that wouldn't help them at all and on that list of nine hundred and forty five you're going to find  standing basically the foundation for this case based upon those d two eggs and large beneficiaries if that and obligation of plaintiffs to prove the fact that they've alleged in order to establish standing and they could not do that those facts or incorrectly alleged mistress let me you know if i could ask you to step away from the medics here specific issues here  and as a somebody who knows the perm well and litigation in syria more generally or business practices yes i lose problem of multiple medical insurance coverage for the same condition is right throughout the whole time overlapping insurance policies and so on how are those issues of multiple coverage imagine there's a lot of different providers the plaintiff's attorney usually has the key if you will to knowing what medical bills were incurred who paid life and obviously there's a negotiation that goes on in connection with you know how do you resolve those bills and those leads with regard to the pip coverages that are at issue here and pi coverages are under an automobile policy that requires state farm very promptly to pay medical bills relating to an automobile accident that's what state farm does state farm processes identify and mayo to see whether they may pay the bill instead what we're doing and what the record shows with regard to o d e c s in the florida beneficiaries we're paying these bills as they come in and we exhausted with regard to o d we exhausted with regard to the florida d beneficiaries that's what we did we pay we pay we pay now if medicare or or  example we paid a reimbursement requests from medicaid and that was part of the of the bill process but i have to say as a as a commentary i'm very concerned very concerned with plaintiffs advocacy here in terms of what they think state from should do with regard to plans the insurance industry is obligated under their policies and obligated health care plus would have reached out to state farm to say please pay this physical therapy bill relating to the need they would have never done that and the reason they never did that is because they withdrew we want to be reimbursed from you the attorney said now hold on a nd you know what i'm here to you know to to address any valid bills but these bills relating to that need they didn't relate to an accident and so we're not going to have anything to do with those the m a those then reissued that request for reimbursement without the any any reference to the  and by the way your honor that's exactly what the end has anticipated that to suggest that the m a o should be in some sort of priority experience when we're all working  in tandem to do what we're supposed to be doing state farm is paying the bills if it's state farm pays those bills then they're not the responsibility of the m a o so so for plaintiffs to suggest  because it's helpful to their legal pioneering business model that the n a o should have some sort of priority here and state farm needs to figure out you know the existence of the n a o that's contrary to working together to get these bills your honor i'd also like to address the statement from plaintiffs that they were in the dark with respect to their allegations respectfully that was their choice they didn't review the records that would be available from their own ass and yours remember they're just downloading some data and you know it was their vendetta diagram saying we've got some data state farm has some data and there's probably some valid claims there i mean that's that's not a matter of villages matter of diligence especially when trying to establish standing with of you example are beneficiaries is to identify whether these are valid claims or not and the odi claim is particularly egregious because while this case was pending state plaintiffs wrote a letter to state farm outside the boundaries of the attorneys and said we want to be paid the odi clade state farm wrote back again outside the purview of the lawyers and said having some frustration state farm had the same frustration and judge mcdade frustration it's completely just now with regard to choosing an exemplar beneficiary and also reflecting mr connelly's concept that there's a change in tide i want to emphasize again that there is no change in kaiden to the requirement across the country that has generally been adopted and adopted in this case or that the n a o one case with this court to show a proper  to establish minimal diversity judge same eve wrote that opinion and what was debated there was the defendant saying well it's a national class there's bound to be someone  to question for you about you've made the point a couple of times trying to get us on trying to get us focused on the fact that state farm a paid policy limits may have paid ten thousand dollars what i'm wondering about it's a it's a  bit of a legal question my understanding is that there's a medicare regulation in forty one thousand one hundred and twenty four small i which the district court pointed to i think in one or another of its orders may be at the twenty six stage that and that regulation says that a primary payer here a state farm must nonetheless reimburse medicare even though it has already reimbursed the beneficiary or another party so i'm can you make sense out of that for me the point that you're making with respect to the policy limits exhaustion ves of the the way the regulations work right so that regulation if you read each  and every clause it appears to be focused on a very narrow circumstance and that is when state farm and the m a o for example or medicare paid the exact same bill and a dresses that particular circumstance and in fact that was the theory that plaintiffs used to get beyond the pleadings in this case when state farm raised the fact that d s limits had been exhausted plaintiffs argued that well hold on a nd there could have been double payments here and and and the court implicitly accepted that argument we went to discovery there was no double payments there that section would not apply but your just briefly your point is that in a world where there is a double payment the regulation would require the primary insurer to reimburse for the conditional payment well there are various conditions under under four hundred and eleven that would would have to apply and i would say in this instance none of those conditions happened because there wasn't a double payment here that there's the suggestion earlier that that our position is that we need to do nothing other than present a valid a slam and that hasn't been our position at all in this case with regard to the nine hundred and forty five state farm beneficiaries state farm insurance that we've provided to state farm six months before this particular motion was filed those come from twenty nine medicare advantage plans eighteen at which stands for mr ganns  limits or otherwise for each of those what we have before us and what we've presented here isn't just simply a pool of data these are payments for which there have not been any reimbursement from state farm so we are in the dark as to whether or not there's more to the story for each of those individual cases as we would be for the the ones that go beyond that conservative list of nine other and forty five  prevent present them with the exact procedures the where they were provided the provider information every detail that's required under the industry for that state farm is used to processing every single day they're processing thousands of lines of of these particular industry standard reimbursement data in its day to day business and that's what they received from us and you can be guaranteed that they analyzed every line of that and yet have not said anything or more importantly for the for summary judgment supported anything to show that on the merits which is what's they presented that they are entitled to judgment as a matter of law mr huntley i can't help but obs are one thing and that is you're you're playing very loose with what you said in your brief on page eleven of your reply brief you argue and i'm quoting of last provides a general demonstration plaintiff's standing is established soley through the assignment agreements so i don't know how you can say that you've never argued that as you did thirty seconds ago i don't have the use use the word solely was not meant to overlook the injury component of standing such i thank you very much i think he can under advisement thanks