i would respectfully request that i can reserve five minutes for one thank you we are here today because we believe the corpulent heard in dismissing our case under rule nine b this are true and you had two opportunities here right the first the first time this case went down by way of a motion for judgment on the pleadings is that right that's correct i just second time  today heels with his employer issue which was dismissed on nine b judge hellmann in a footnote said that even if i were to find that plaintiffs relator met ninety standards i would still dismissed on were invited to and they chose not to do it well right but there's no inference implied by that the statute you put which you are trying to wear the mantle of the united states and when i and yeah and they have chosen explicitly not  case giving fair notice with not specific it specifically but doesn't think either but doesn't that that statement by judge homan suggest that he regarded your complaint as especially deficient if even in it will be six regime he would have dismissed well i believe you're correct judge i'm here to argue also the twelve the sex and that's why we've sensibly brief what more could you possibly have alleged in your complaint i think that i think that we based on the fact that there's no way it related or in most cases knows every single a through z aspect of a case because the defendant has control over the evidence and they were later in a false claims that case can only be exposed to the evidence that the defendant allowed them specially when their employee allowed them to be exposed to so like in the case of a drug pharmaceutical company the sales force doesn't know anything about the billing force and the right hand doesn't know the left doesn't even know the left hand and therefore they try to immunize themselves from fraud claims and in this circuit under  ns which i know judge smith the some lawyer with a wilkins and also in the case of radio city the radio city a case it's clear that we don't have to prove every single a b through z aspect of the case we just have to have enough specificity to allow the defendant to know what we're alleging but where is there any specificity at all about the claims themselves were about any single claim in fact i grant you the specificity that has been referred to by virtue of the logs and it indication relative to administration but i would agree it seems we've got probably two separate units here  right that's correct where is there anything in the complaint that says anything about a single quite well judge we talk about the group of claims and we give the list of the the patients we wrong or would be wrong for a coup or to conclude that it was sheer speculation to look at these allegations and see only of administration of quantities of less than the entire vial but no connection whatsoever other than the speculative one who claims being rendered on ultimately to the united states for payment a reimbursement of the cost of more than was actually administered at the risk giving a simple analogy just shot good i'm good with simple when you go to bed at night we all tell juries on charges for circumstantial evidence that when you go to bed at night and this in the you look at your window when there's no snow on the ground and strike and you wake up in the morning and there's three inches of snow on the ground that is fair for jory it's evidence that it snowed overnight we also  california from hollywood came with a cell making machine for a movie set and spread the snow over the street but that's a bigger stretch a far bigger stretch of the show you ing is the drawing of jury granted nine b requires a specificity and perhaps allows for certain inferences to be drawn but it as we've both mentioned two why is it reasonable to infer that the billing department had any idea whatsoever was going on with the actual treatment that's a good question judge and the answer to me the answer to it is that the billing department to think that this profit making anybody did it for free it's important to note that the government pays a percentage over average wholesale price for each vial it's not the amount of drunk in the vial that they'll pay for the not used supposed to be well supposed to be that's correct judge it's supposed to be if you're going to be breaking the law and be on it this question is because the government found this is touching on twelve the bottom i see that i have thirty seconds touching on twelve because the government h h that's exactly right charge and i'd just like to know that you know my time is out just one more sentence judge that in spite of the fact that the fence says we took some discovering this case they sought a protection order from the judge from the magistrate and it was granted that said our discovery just dealt with the jersey which is a motion to dismiss that holds up discovery it's not true in all states but in in the federal district in new jersey it is and they don't allow the scot free but the magistrate in order to move this case to the old docket because of the time the government took to review it  old docket said i'd like to scupper to start they petition the court for a protective order saying there should be no discovery on the false claims act case only on the retaliation case on the new jersey state law so the limited discover just dealt with the retaliation and did not deal with the false claims that matter thank you thank you hellmann reviewed this case twice reviewed the complaint twice indeed indeed tale in depth he evaluated the complaint under twelve b sec standard i disagree with the notion that this is purely nine b nine b doesn't have a dismissal remedy it's twelve b sex and for a false claims act claim you have to show both possibility and specificity and judge hellmann reviewed the complaint the amended complaint and the second amended complaint and found on each occasion that there weren't plausible and specific facts sufficient to allege a viable f c a claim so did did the plea acquirements  nine be changed with increase the pleading required what given the position you've taken what additional allegations do you think should have been made here to pass muster under nine well under nine bay there would have had to been some specific allegations of marrying the alleged discrepancies in the large sheets to some sort of scheme or false claim under nine b you have to come in either with your claim in hand or with facts specific reliable facts sufficient to create a strong inference that there's been a false claim submit it so that's the standard that you know that discover showing that fifty would be used if the defendants were following clinical guidelines for not using the news portions phobia believes the defendant in submitting claims reimbursement of what they should be using as opposed to what they actually were using is so essential the hellmann articulated is even if you don't have a claim you can come in with specific facts which are strong enough to raise a strong inference that there is a false claim that when i just spent fifty five six fifty  seven complaining well what he'll ledges is a discrepancy that he creates in this complaint which doesn't actually exist in reality because and it doesn't actually exist in the complaint if you read it and all the exhibits because he's saying that government for the more than what you use and he's saying well they had to use fifty but they only use thirty so therefore they must be billing the government for fifty and that assumption is contradict complaint which c m s says you can bill for the unused port the unused portion of the vile you can for instance have a five microgram vial a patient is prescribed three micro micrograms use three on one patient you have two you know and i i would liken this to a situation where i go to a doctor's office and i'm the last person in and i'm number patient number fifty for that day and i look on the sheet and i'm number fifty and i see that there were ten cancellations so forty people didn't show up under this theory mr foley has i could file a false claim and say aha you had fifty patients you were scheduled to say i know only forty showed up you must have been billing the government for fifty i mean there's no smith said there's nothing marrying up the lodge sheets with an actual scheme or an actual false claim here it's pure conjecture let's assume that what he's alleging happened and let's assume that all he knows all  would have to state the date time place and identity of the speaker but he could say that so and so out in colorado told me that despite what we have on the large sheets we routinely bill the government for this he could have communications with someone in the facility describing the billing procedure there are many ways in which he could have done this had he had actual knowledge that there was a false claim but unfortunately this was a disgruntled employee who never complained about this and who and i would note that the case law is legion that says you can't use the f c a claim as a fishing expedition you can allege brought in conclusory allegations and then hope to find the specificity or the support for it in the defendant's discovery and that's what happened here he filed three complaints he didn't have specificity or plausibility he responded to initial disclosures no specificity or plausibility and then he responded to discovery which wasn't limited to that which you he would have had of gotten to put together the most severe complaint he had he didn't get any exemplar discovery well he actually did get some part discover he got some part discovery regarding our policies and procedures and he was the charge nurse who was in charge of dispensing the sample are so if one of the six conditions that the c d c set forth which said this is the conditions you can double that for instance the refrigerator is not a certain degree or they they didn't dispense it within four hours this is the man who would know because he's the one who's dispensing it you can only think of the bill and he would know what you're doing the government you know but there are other allegation here is that we couldn't double dip because we didn't come why with these six conditions that the c set forth and judge hellman accurately said those aren't expressed conditions of payment but even if you believe his argument that they are he was the person who would be able to tell you specifically that on this day mrs jones  received a double dip of this file more than four hours after it was initially drawn i mean see he would have specific knowledge as to that that would at least have put him in a better position to argue that but he didn't the only thing he did in the second amended complaint is he took some specific provisions of fear and beefed up some stuff regulatory provisions but no more facts so he didn't have any facts in any of the complaints initial discussion the only facts that he can not suggesting you are that happen you please or you know these are scariest in criminal allegations you have to come to the courthouse with something more than bare conclusory allegations would you have to come to court with can only come from you know that's not if you come from like i said if he had communications or e mails or almost to a church that says hearsay communications with other employees where they admitted that there was some practice to build the government for more that was being used and there's a whole host of things that he could have come to court with besides the actual claim in hand policies that you mentioned is the policy allow for mobile use involves it allowed for the multiple use of vials consistent with the c d c recommendations and that was the law at the time and that that was the c m s regulation which said that you could double dip and there's a whole host of reasons why there might be a discrepancy in what was used and what's on the law these are end stage renal disease patients a lot of them have to go to the hospital they get dialysis there because they have other conditions some of them come you know an hour too late believe it or not and they're only getting an hour of dialysis when there is prescribed three hour so then you have to reduce the amount of sample you give him he hasn't played around any of those other possibilities i mean this is pure conjecture there's numerous possibilities why the lodge sheets might differ from the prescription  make some regardless well not surprisingly he made those arguments every defendant makes those arguments and every single false claims act case they example of the medical office if i go to my doctor and i see that i'm the tenth person  billing for tendonitis in church judgment to your question leads me to where i want to start so it's perfect this is not a case where there were ten no shows this is not a case where a patient sees that there were fifty people schedule but only forty showed up this is my client has personal knowledge of the facts that they could not have or should not have double dippers viles because they were not and he's alleged this they were not in compliance with a single one of the requirements that were required by the government to allow case with the right hand is left pain is the central office all we have there judge is the circumstantial evidence of the fact that they were the vials they know they're ordering the vials and that they bill medicare and the other aspect of the judge is that when you bill medicare and you bill medicare you know your billing per vial it's in relation to the medicare recipients number it's a relation to this chart so i'm dealing with circumstantial evidence and again judge well i think it's more than opportunity because the bill by the patient and to presume that they reduced a patients bill by the fact that they got free exemplar because they paid the company already paid for the vial when there's no records kept for the knows that no records were kept he knows that no criteria was met that required by law he knows they double digits he knows that they're not allowed to double dip and look up at stuff that he knows that no records were  you're referring to what kinds of records the records that are required should be kept under those guidelines including when the drug was used to was used how much money what records should have the records are believe it's in congress thirty four thirty five which is the c requirements that has to be a record of any file that's going to be double dipped that it was stored how it was store how much was used when it was used when it was second depp's so that any billing that occurred would have taken place in the absence of records that would have been necessary to justify the bill correct because without those records how does the left hand we don't have as my client on the right hand know what the left hand going office is doing well how does the left know what the right hands doing if the right hand doesn't keep those records that are required by law and it's a matter of law that it is inappropriate for them to double dip for the public safety unless they maintain these standards and we've alleged because my client has person the list the criteria i think goes on in thirty five the next paragraph so wherever we listed it's either thirty four thirty five or thirty five or thirty six i believe and it says they did not hear any of these requirements or to these requirements i think is the word leaves the m as personal knowledge of that and it goes beyond speculation to say that in the bill for this because the think that in bill for this it would mean that they're not in business to bill they they go by the patient which has to include the vials employer and if exemplars use they have to bill for it but the but anything in that bottle that's left over and leftover would include the overfill i would also include the unused portion because the vo larger that was who feel what you mean some of these if i make i'm going to move them by medical grounds and they all have more than what they're labeled because when you take it with a needle there's sometimes air there sometimes me some so maybe some loss there may be issues with putting it that the government intentionally pays for more then the label because in every syringe situation there's overfill but overflow would not only be that the small amount that's left in for the one dose overfull is really anything that is adultery they've certified that they do not do anything medically unnecessary and they require the law is clear that if something's adulterated the government's not going to pay for it and they've adulterated any second use of these vials by not  certification no they cannot use the excess unless unless they get here to those guidelines yes well are there circumstances i apologize yes there are circumstances they don't apply in this case because they didn't adhere to those