states and this honorable court good morning this is judge wells sin and tampa judge marcus is here he's in miami and judge the bar is in kentucky i'd like to thank judge par for assisting us in deciding these appeals this morning judge marcus and i had hoped to welcome you personally in miami judge the boy but obviously present circumstances made that grangemouth wise but we do appreciate your assistance today and in the remainder of the week thank you it's my honor to appear the maycock of the circuit executives office advisors and the that council are president and they're ready to proceed in this piece is our courtroom deputy and she's also the time keeper and she will let us know when the yellow light is on meaning that there's two minutes left for counsel to argue and  appellant stephen chalker who was a newly minted pharmacist convicted of conspiracy to commit medicare fraud in two counts of substantive fraud the st issue that i would like to discuss is the fact that the government failed to prove its case they alleged and so had to prove that the prescriptions at issue were medically unnecessary and or never provided but no evidence no competent evidence was introduced from which such conclusions could reason to be reasonably be inferred the evidence essentially was the opinions of the pharmacy benefit managers there were three of  them each of them based their opinions on the same type of data which was insufficient to sustain the conclusions necessary for that conviction the nd expert who testified captain no disclosed experts and testified as to their position on medical necessity medical necessity is going to require the doctor interacting with their patient evaluating that patient taking maintaining notes and treatment records of the patient captain norton was discussing the doctor's actions which are obviously between the doctor and the patient and doctor's records which are not supplied to pharmacists well let me ask you this counsel now he pre prepared these preprinted prescriptions himself that were submitted to the doctors is that right well judge they weren't exactly preprinted prescriptions what they were were forms much like we submit proposed orders which contained printed prescriptions more than one plus a blank form in which the doctor could put in any prescription that he chose so our he's right that he lied to the testimony of the benefit managers about the t owner of hops in order to avoid terminations of the contract that he created preprinted prescriptions for expensive compounds and topical that should have been created by the doctors a conspiracy to submit fraudulent claims to the government and the jury entitled to disbelieve him at the testifies at the trial they are your honor but in this case which is rare in my opinion neither probation the part but that that often doesn't happen judges often don't obstruct quiet the obstruction and handsome yet when independent testifies and convict was convicted if so that could ultimately create constitutional problems as you know and as the case law says if they automatically applied it and here you're arguing insufficiency so it seems to me we view it in the light most favorable to the government and why wouldn't the testimony judge wilson referenced plus the fact that patients were standing back these prescriptions and scripts saying they never asked for and were paying things like that why couldn't the jury with all that evidence conclude that your client was involved with judge let me see if i can break down your question with regard to the patients the only evidence was two patients who testified neither of whom indicated they had any interactions with mr chalker there was no evidence that mr chalker let me rephrase that the only evidence regarding patients that did communicate with mr chalker was that he would routinely allowed chargeback if there were any complaints about the prescriptions whatsoever the fact that the opinion to augment is that the opinions were based on incomplete data as each of the p b m witnesses testified they never saw a prescription no prescriptions were in evidence nor were any patients records and evidence their conclusions were based upon inferences that were not supported by what they were entitled to see the prescription information that they saw not the prescriptions contained only the active ingredient and from that they concluded that there were a wasn't enough material and pops inventory to justify the amount that was billed for and be the prescriptions were not necessary because they were all the same but as we argue and as they admitted in their testimony for example dr thatcher testified i do not have the specific and greedy ends for all of these records i can say without a doubt that all of these prescriptions were exactly the same so the conclusion that the prescriptions were necessary before they were because they were all the same is not supported by the government's evidence similarly that he had met at the trial and that he knew about the complaints by patients that they didn't d want certain prescriptions or didn't receive the medications judge my under my recollection is that the process the st answer is he admitted that there were some patients who through pops process were eventually referred to him and that when there was an issue with those individual patients he would cancel their prescriptions and refund the billing there was no testimony that that the process was that he was the individual who routinely received the complaints nor is there any testimony as to whether he received one complaint two complaints or hundreds of complaints there were at least five thousand patients and are content change that the fact that there were some on known amount of complaints received which he dealt with appropriately does not support guilty knowledge  testimony at the trial that he knew that co pays were being wary routinely which is wrong no judge that the testimony at trial was that there was a billing department and that the procedure was the billing department would collect co pays before even submitting a prescription to dr chalk or to be compound in filled but for co pays that were less than five dollars those prescriptions were were shipped issues the cumulative effect of the preserved and plain errors was that the government glossed over the fact that it's not necessarily a crime and it's not necessarily a red flag government the the errors which together denied us a fair trial where the late disclosed and the non disclosed experts which essentially was the government's entire case the government responded to this by claiming that two of the three p b m experts that want to school that non disclosure was excused because they indicated in their one disclosure and in response to our motion and limited to exclude such testimony that there would be other experts who were relying on different databases the fact that they were relying on different databases is precisely why the failure to disclose the experts and their opinions and the source of their opinions was harmful and in conjunction with the other errors denied us a fair trial nd the government failed to ever correct the testimony that all waivers of co pays were red flags of fraud and as we indicated and as the jury instruction noted based on the regulations that's simply not the catch the problem was that was just too little and too late if that time given the never ending references to the clink one hundred percent waiver of co pays the next part of the cumulative error is the lake disclose patient files that were in the possession of mr levy or the government's cooperating witness there were over five thousand files including two separate hard drives which were never accessed because there was no computer available to the same time you greedy and at the same quantity at a very high average in charge and in that role part of that role of responsibility for the prescriptions coming from that pharmacy that seems like i'm sorry didn't i'm sorry to interrupt you but doesn't that seem like a criminal by serious criminal liability  pharmacist in charge for everything that happened under arguably under their watch even if they don't know about it i don't believe so in this context your honor because it's not as though the things that are happening at the pharmacy are unconnected  is there any specific evidence that would show a trucker knew that any of the three people who claimed they never asked for and received products that they didn't want that trucker was aware of that or do we have to infer that circumstantially or use pinkerton to basically attribute it to i ask question because mr fenn made reference to in another context  this is this is judge wilson i know the leaves were indicted and they both pled guilty where there was the government able to tell us whether or not any doctors were indicted that i don't believe that they were prescriptions were not medically necessary you can see that from the data about the types of prescriptions that they were we also have that from from mr takeyh that he picked the ingredients that go in the formulas and prove beyond a reasonable doubt that mr chalker should have known that false claims were being submitted to the government but i'm looking for evidence in the record that he actually knew that false claims were being submitted to the government rather than evidence that suggest that he should have no best evidence if i go to the record with the best evidence that you can tell me that would demonstrate that he actually knew in a bunch of resells for light a cane to make sure that the pharmacy numbers were up for that particular week to count three and four on the issue of medical necessity would it be enough as a matter of law for a patient to say i use this pharmacy they send me painkillers because i broke my arm and what i was sent by the pharmacy was sad for a skin ailment which i never had and i never needed would that be enough to establish medical necessity or do you need the testimony of a doctor you need an expert opinion on the issue substitute and i explored four days before i mean it seems to me you're prepping for a certain expert and then all of a sudden it which is why not give a brief continuance to prepare to cross examine and understand that that makes that arguably makes it more problematic right because now i've got a qualified expert that i wasn't aware of that i now have to deal with and crap in cross examination and in addition to the large volume of documents not concerned about her qualifications makes their make the precious less in this case because she was aware already of all of the substantive topics that she would testify about and have been able to prepare to cross examination and the cheering on those other topics and so the only change was actually just and this and the individual who would be describing the topic to the extent she didn't have any concerns about her qualifications or experience she didn't need to prepare cross examination on that specific prejudice prejudice against me that we pointed to was our inability to secure our own expert regarding his salary  we also noted that the five thousand patient files that were very lately disclosed contained information that could have been valuable it was supposed to have the exact prescriptions the notes on souray i'm not sure i understand that and will ritually calling an expert and the report had been given to you from the original expert weren't you free to retain your own expert at that point yes judge that the expert that was disclosed was not the financial analyst however they claimed that person was not an expert just as they claimed the other two financial benefit managers who also tell i'm not i'm sorry i'm not asking about i know you're a separate issue they put on someone who they might otherwise have qualified as an expert but they offered that person as a lay summary witness i'm not asking about that i'm asking about your ability to get an expert to reverse it the expert opinion offered by that factor which apparently with and gained in the sorry you're talking of that issue with respect to that put on someone who may could have qualified as an expert did not and she offered summary testimony right she off she offered summary testimony i believe she also testified regarding that mr chalker salary within there as being within or without the range of other pharmacists which would have been an expert opinion not some rate but i our issue with regard to the non disclosure of that spirits really went to the other p b m managers only one of which even though substituted at the last nd was disclosed and the government even just argued that they were going to testify as to the same kind of analysis that the disclosed expert did but were never disclosed that was one of the cumulative errors and with regard to the question that was asked regarding the patient with a broken arm who received topical pain medication that illustrates why we feel the government's evidence were simply insufficient no pharmacist and certainly not mr chalker would have been informed that the patient had a broken arm all mr chalker would have seen was a prescription valid from a doctor and he had no knowledge of the relationship between the doctor and the patient so he would have just filled the prescription as given by a doctor and would never know that there was any kind of an issue regarding a broken arm unless and until a patient called and spoke with him and there were simply no evidence of that so the cases say that if the government the defendant is unprepared he needs to make a motion for a continuance that was jordan which we cited we did that three times each of the individual errors playing or  preserved may or may not be sufficient but together and amplified by the rush to judgment we were receiving discovery disks the last business day before trial trial started on tuesday the day after labor and we receive discovery disks that friday at some point and especially with no reason not to we're entitled to sufficient time so that the right to counsel can be appropriately used and in be fired thank you all right well thank you counsel for your arguments and mr fenn i see that you were appointed by the court represent mr chalker the court thank you for your service will d move to the next argument