address what we consider to be officially incorrect ruling by the district court and we live with the consequences of that ruling for the last two and a half years this appeal as a train before this court present a single issue for resolution and the issue is what the district court correct in ruling that on the evidence the record below gas did not meet its burden of showing the existence of a triable issue on the issue of whether percs action cause appear in the record at e r one one one one one seven and one one one eight these are in themselves internal e mails from her say that are a clear admission of damages caused by per se and if you let me read from a couple of them directly the first e mail is from john public when a person employee who says that we researched a large sample of medicare paid class and found that there are tremendous amounts of medicare accounts that need to be adjusted off the system due to the fact that no followup was done on the accounts and you counsel are now past filing limits the response to that e mail by at least one part of another employee of the company says i'm at a loss with this one do you have suggestions on how to approach the group for writing off for the writing off of three hundred fifty thousand dollars due to our operational downfall that's her words in her email that phrase along writing our three hundred fifty thousand dollars due to our operational downfall is all i need to establish that per se is something that cause damage the guest the follow up is from a vice president that suggests in his email that we hide the problem from person from management i'm sorry from gas management but we can stop at the second email which is writing our fifty thousand dollars due to our operational downfall establish causation there's two other instances in the record i can point you first let me let me let me go back to how the district court looked at that e mail because that's one of the emails the court analyzed in its order serves and this is that you are one five six one of those court agrees that the june twenty ninth two thousand e mail demonstrates a failure by the fans to file a timely appeal with medicare the test wasn't just a deviation from the appeal deadline in other words you get a rejection an appeal that line to resubmit the claim they just simply weren't even submitted within the time period provided for initial submission of  clearly that's what the e mail and i want to cut you off in the last two i'm sick of the very important i want a very definitely list the items you claim are in the record but there is an old doctrine of the law you cannot speculate on the fact of damage caused but a jury can speculate on the amount of damage if in fact damages shown to have occurred from the defendant's acts absolutely so that's what i'm listening very carefully to these items is to see if you met standard in other words if these items show in fact damage even if they did not relate as i think the district judge was complaining about to the method of calculation of the the amount of damage by the experts that were profit i think the course question goes to the crux of the issue my under my belief is that the district court was trouble by what the courts are than a fine which is a number of items in the record suggesting that some  of that occurred that may have caused damage and then a number of what the court believed was the text from that phone corresponding to those items now we we would submit that the that these larger damages numbers done by the expert were in fact justified on different theories but nevertheless it's not the law that if i can prove that their operational downfall cause some loss of money the fact that i go into court and say that's two million so the fact of damages supported by what showing you've given us one ok the other two i would give you are in the record at e r nine thirty six is a declaration provided by jim coleman and jim coleman was with an organization called match or medical pounced control act is the organization which gas retained to take over its accounts from for say and see what could be collected he testified in a declarations but it's of the court and also in the position that when he took over an entire banker's box of claims was handed to him that had never been submitted twenty of the payers these were the failure to credential credential claims that's right and they were and that is one of personal responsibility being to credential the doctors so that they can then be qualified the response was of course thank you to credential is not always the billers the bill contractors fault a lot of times it's the delay in the doctors or the doctors organization to submit the credentials or to respond to inquiries regarding the credentialing certainly and that is response that is elsewhere in the record there are admissions by least on the part of that in fact in certain instances they had all the doctors information and that the planes are still not submitted because of some internal discussion about an eighteen month period but this is this is the point i think with respect to that an explanation when i say that these claims a box full worth two million dollars as my expert maori were pas is functionally a statue limitations could not be collected because when i submitted within iraq was a time and i say that's per se fault look at this evidence first of all look at the fact that they exist and were not submitted a second look at the evidence in the record from other from witnesses like sap is already who had all the credentialing about what chaos there was there's e mails from j murphy smith the v p saying what's going on the credentialing but nevertheless the response that comes back to say well no that's not our fault that's your fault dr jones didn't get us back the application on time that is the essence of the tribal issue on a summary judgment motion we are now out of the causation issue we're now as an explanation as to why it is well there is and it is in the form of the the first thing numbers which you generated looking at two years of historical data from gas over what to well what it goes to is when i link up the overwhelming record of internal screw ups and things being felt to be filed and potentially not being done and various other things that i've laid out the record when i show you that record and i show you the end result is that the collections are down let's say they're down three million dollars and what they should have been and i show you as a separate issue that it is accepted in the industry and admitted by their expert their this is an expert admitted in the record that when you put it in over one hundred twenty days you don't collect it all and that is buttressed that is the exact result the answer to the judge's question is as the expert admitted there was no statistical sampling of his analysis the analysis was variance analysis variance from normal or average there was no under their statistical sampling of the individual account think you have to hang your argument if you prevail at all on the argument that you showed causation in specific instances that you are a new rating here but you have to concede that there was no statistical sampling individual account sampling on the overall average diversion analysis that the expert did here where you are correct that the expert who did what you're calling a then mowery my ex was a c p a went through those accounts eliminated the ones that could not possibly be blamed upon for say for example pay or went bankrupt patient died right off the gas because of some charity eliminated those as possible categories that could be laid at the foot step and he got to argue that in response to the motion absolutely that is in the record and the judge does an analysis and lies that the judge the judge not the answer and the order of the judge did not analyze that nor of course that i have an oral argument in order to raise it with the judge i got the order in the mail the third category i want to i want to address and i've covered it to some degree of actual evidence is this idea of are aging to increase they've noted that they also noted that days in a are aging increased diminishes the opportunity to collect the money that's in my will and then mine and then the third part is and that is admitted really causes you not to be able to collect the full amount that's down which is causation now if they want to argue about what the what the dollar impact is of that and that's actually what the experts that the experts said there's no dollar to dollar ratio there just because it's one hundred twenty days you don't lose all of it i'm not arguing with all of that but now we're into a separate discussion which is what's the damages amount not the fact of the causation in my remaining time i will  want to go to a different issue and that is the application by the district court of the standard of causation and here is another issue that's been briefed extensively and that is do i have an obligation of the plaintiff making this claim to disprove other potential factors that may be the cause other than malfeasance by the defendant and the interesting thing of course as we look at this if i said it's your fault and they said no it's your fault we wouldn't be here we have a tribal issue so instead they're looking to present hypothetical potential things that may have possibly caused it not to be collected and then argued that i had not in my presentation to the trial court been able to eliminate those possibilities now that is not the law of causation in california and it's clear the court made two errors in applying  the first is that in the court's order e r one five five nine the court requires this is in a footnote requires guest to provide on and biggie was proof that a direct causal link argument for damages and that is one of the arguments for damages however the evidence which i talked about this morning which is three hundred fifty thousand dollars lost can't be recovered because of our operational downfall in an email  will just record judge cannot on a summary judgment motion read create the inference in favor of her say that twenty three thousand not all twenty thousand were blown claims but that whatever let's say five thousand were blown claims that those all would have been recoverable entirely even though the statute had run on the inference that out of those five thousand that they blew the statute on certainly a number of them probably most of them i would then articulate how it will play prove its damages at trial and elects to do so through opinions of experts whose opinions do not draw a causal link between the deficiencies alleged in the complaint and any damages must the district court have a pointless trial or can the district court grant summary judgment and the answer that question is the district court causation for every one of these accounts that's beyond the billing period that in fact that account is otherwise recoverable if the time period hadn't been delayed all they have to show is that in fact damage occurred you don't show have to show the count by count they just have to show quote unquote substantial factor and out of picking his number five thousand i think he didn't prove five thousand of course certainly but he certainly proved one to three items here that a number of these accounts he three hundred fifty thousand and the two million dollars or the counts went beyond the billing period as a direct cause of per se zzz violations so the only last logical link is well roll of those collectible otherwise and if the standard is substantial factor did the judge not apply the wrong standard in other words you have to prove pointed at summary judgment that they were otherwise collectable everyone  accounts would have been collected and i'd like to but one doesn't have to do the but poor for every single he doesn't all or doesn't but the analysis but he does your honor for to show he needs to show some damages and i'd like to address the maori report that he talked about with these twenty seven thousand accounts and he said i'm entitle to an inference as the plaintiffs that some of these accounts would have been collected and he says the reason i'm entitled to that even though mr mallory in his expert report testified under penalty of perjury and admitted he did not analyze why accounts that were classified buying math had become time barred he just assumed it was per se his fault so you've got experts assumption there that's not evidence he can't rely on that he says well math analyzed these accounts and classify them as specifically testifies in his declaration under penalty of perjury and i will quote here the purpose of our review was not to determine whether per se had mishandled any particular account but to collect whatever money we could and goes on so what they're saying is we get to assume that a certain portion of these accounts that were listed by now act as pa credentialing we addressed the we've addressed those in the quite extensive reply separate statement where we go e mail by e mail and they are not they are not admissions that's that due to the fact that no followup was done on the accounts in the accounts are now past finding limits for appeals now mr project here characterizes this is these claims were never filed in the first place but the past summary judgment because as his own experts admitted there are there may be valid reasons to deny an appeal so he can't prove that but for her ses not filing these of heels he would have suffered even a dollar of damages so this e mail doesn't get him there he's left after one analyzes all this and the district court in a very careful job he accuses the district court of stop stopping reading at the end of our undisputed facts when the district court's opinion actually deals only with fact addresses the facts in their additional separate statement and officers summary judgment he's left with his expert reports to end the expert reports don't show causation they don't rink any activities of per se that are alleged to be the breaches to any damages again i'll recap mowery assumes everything this person is fault and the plaintiff's gasps that's ok because mack already analyzed the account but we've got the declaration under penalty of perjury of mass general manager that the purpose of their review was not to the term and if per se had mishandled the accounts what are we left with we're now left with robert burley's report what does robert burley do he took guests temperature three different ways he took it on the forehead he took it in the mouth he took it under the arm he came up with three measures of damages and he said there damage just because i have a standard and that's performance didn't meet the standard on then these are statistics he previously trashed as unreliable and said an expert report should not be used to evaluate the performance of any willing company why isn't the combination the enough that is here's some identifiable potential causes of loss and the expert says according to the statistical variance analysis there is a factor of loss compared to industry average compared to the  losses he's calculating are just as was pointed out earlier measuring a variance to a standard that was never agreed upon and there does not have any relation to perceive performance you don't you don't have to measure it according to a standard that was agreed upon this was a non contract it was an oral contract write it was an oral contract well obviously the standard under commercial law is reasonable mess and that's why he picks those industry standards to measure against these he's reading a reasonable must stand in the absence of a written contract and the very cases the antitrust case is the rossi court case and the callahan case that the plaintiffs rely upon say you can't draw an inference of causation by doing that you can only and this is an anti trust causation this is a if you trust cases where the standard of do you get damages this relaxed a little that unless they show a count by a cow causation loss they're out of court now your honor it's not they could have done a statistical sampling the ninth circuit has recognized this in the actual patient account they didn't look at any actual patient accounts the uncontroverted ect testimony in this case just as the judge said they asked the wrong question they did look at actual counts they categorize them in fact they categorized a large group into delayed beyond billing period but you're saying they asked the wrong account question that is they didn't look at those accounts to see if they were otherwise payable or not if they weren't paid question they in their analysis they asked the wrong they structured the analysis in a way that does not allow a trier of fact to conclude that damages or images were caused by per se the proper analysis was described in uncontroverted evidence by our expert kevin o'brien in the record said look at your problem accounts go to the accounts where you think there's been saying no reasonable juror on these three items he lists and the statistical evidence of variance no reasonable person could conclude that you caused any of this damage any o that is what the that's what the district court's decision says it says it a summary judgment their burden is to show to raise a trial issue the fact that when they get into the courtroom in front of the jury they are going to be able to prove every element of their cause of action they've got a lot of evidence that they're going to say it is evidence of breach of negligence this is they've got e mails they have i've looked at these three hundred accounts i've looked at these thousand accounts i've looked at these five thousand accounts however they were going to do it and i've actually looked at the records and i've looked at the reasons for the nine and there are losses here that would not have occurred but for the negligence damages in a bankruptcy will take it from the simplest give suppose per se just never built at all obviously no payment came back from that what they need to show beyond that they failed the bill and that if they had builded there the insurer would have actually pays out what you're saying yes they do they need to show have some evidence that if the bil would not allow a trier of fact to make that link and he says they've got a lot of cases that come from the personal injury context where they say all we have to show is that you're a substantial  factor i think one of them is every median where of victim was unconscious lying in the street and then run over by a bakery truck and there the courts say well you have to show with your of substantial factor why because we know that some of the injuries we know that there's some injury that's attributable to the fact that the truck ran over the poor unconscious man in the street here you cannot draw that conclusion because they have not analyzed a single how to show that but for the negligence they are claiming they would have collected money and that's what they needed to do to get to it trying to find a fact they needed to at least raise a tribal issue in the cour think judge jones question is exactly right i think the issue is whether a reasonable juror could conclude based on the record that there was any causation i would argue that the e mail alone that we spent a lot of time on the three hundred fifty thousand dollars e mail but this is a write off du our operational downfall i don't think anybody in good conscience can say that what about the next link be just heard a little exchange here what is there in the record which would show that if they had been veiled that they would indeed have been paid well that the that in france can be drawn on summary judgment from the fact that they collect hundreds and thousands of bills and if they're going to be honest it's like saying if it goes beyond the statute how do i know that that would have been paid i don't have to prove every one that went beyond the statute would included in any of these experts some sort of a study as to what the payments would have been if the bills that they've said that's what mack did when it analyzed two hundred twenty three thousand accounts and came up with those that have the money on those accounts he got a box of uncredentialed accounts and tried to collect them many of them were past limits many of them for eighteen months and not been submitted and then so he says of course i wasn't hired as an expert in this case in the litigation context i was hired to do the work to collect the money nevertheless his work in reviewing each and every account came up relevant information we can use in litigation or thank you counsel the case just argued will be submitted for decision