not ordering a new trial and finding that the jury's verdict was not within the range of evidence and also one reasonable interwoven in this issue is the application of random sampling and extrapolation improving damages in false claims cases particularly in this case dr robinson did not address the issue of the random sampling we're talking about is the extra n of the damages for the jury in the government's complaint they took twenty five thousand seven hundred seventy nine claims over a five year period took a random sample of thirty claims they had their medical expert look at those thirty claims he decided twenty five of those thirty claims were false and using that information the government called the second witness their second witness erica palsy and miss hall's he took that twenty five false claims found out how much was paid on each claim and then extrapolated that number out and produced the damage calculation with a ninety percent confident trading of nine hundred seventy four thousand five hundred  ninety five dollars the issue that happened in this case was when the jury went back to deliberate the jury did not fully believe the government's expert dr dickinson so they came to a new finding on false the government when they government puts on the finance and says here's the amount each claim that we paid to the doctor robinson fifty six dollars we think  eighty three percent of those were bogus or whatever it was and there were x number of claims and you do the math and you get a number and they got nine hundred seventy four thousand and now the jury is just changing eighty something percentage down to forty three percent and then that jury itself got it the math wrong in your favor i mean why isn't that a very straightforward methodology i think that runs into the risk of using extrapolation in these cases when you didn't challenge the methodology itself in the district court as i understand you only challenged its application in the manner in which they applied it and whether  they kind of messed it up when they did it correct i think the jury and the danger that you get into is you have juries that are requesting calculators and doing their own mathematical calculations out there and coming up with numbers that aren't based on anything in the evidence the number they came up with actually got a break because they only gave forty three percent of the damages that the government presented to them so i mean my first reaction was it's probably a compromise verdict that juries compromise all the time they say well i think the government's entitle to something but probably not as much and how do we get everybody to agree on it so we're going to cut the baby in half and i mean that that happens in the jury room all the time and to say that well it might not be the most rational damage result i mean it happened so as long as the the presentation was rational the fact that they cut it down and it's hard to figure out exactly how they do that we really like the jury discretion prevailed though i agree the jury is split split the verdicts often and try to find that but in this situation what's happening is we've presented them with a complex mathematical formula and i think what is telling is erica all these testimony we said what if the jury finds a different number what if they f ten out of thirty claims and her own testimony said i would have to recalculate that but i mean this is literally this is like a sixth grade level  lot i agree and i think the jury if the jury is permitted to be given the testimony in the form of extrapolation the jury needs to be guided better so that the jury isn't all over the place with these mathematical combination did you have it is there a specific objection to that that issue we did not make a specific objection or i have anyway that issue that i think i think when you look at the jury  verdict you have to well it's little late after that point to say the jury should have been instructed this or that when there was no objection and there is no request for for such an instruction what happened is it's after the fact and your honor and i do agree that the earlier we you can object to that the better we can address that how you preserve the issue but the issue is the jury took a path that the government didn't foresee and we didn't forsee we they chose yes to this it at the thirteen being fraudulent there was and there you know there was two separate steps one is the falsity of the thirty claims in evidence was presented on each of the thirty claims by the government and by the dr robinson and then the next issue was what is the amount of damages only one expert testified concerning damages and only one number was ever produced and the only number that was ever produced was a ninety percent concentrate for twenty five out of thirty  an irrational for the jury to accept your count the counsel for your client's presentation that only thirteen were valid and then they simply multiplied to come up with their number using the sixth grade math i mean why isn't that a rational way to do it i think that would what makes that not rational is the testimony of the damage expert because the damages were presented by the expert i think i think you're giving the jury just a limited basis and not allowing a jury your verdict will be all over the place and i understand jury verdicts are never going to be mathematically sound and that's not what we're asking for but the whole purpose the only it would seem like the only specialized knowledge here you know for purposes there was this statistical knowledge and analysis leading to the conclusion that a sample size of thirty was adequate and again beyond that once once you establish that thirty is enough and that's reliable and we can extrapolate from there then really i mean literally it's sixth grade math from there and it's not specialized knowledge each claim was paid found out the last associated with the sample size and then extrapolated that number is actually weighted that's just times the number of claims right tons and tons of number of claims tons that the average amount of loss and it's multiplication that's all we're talking about it is but the jury in this situation didn't even they didn't extrapolate at all the jury actually took the only number that they not reason is not a reasonable finding by the jury there's actually thousands of combinations of of lesser them just the issue with the extrapolation is every dollar that they're off by the average loss is twenty five thousand is multiplied twenty five thousand times that is judge griffin pointed out i mean it helps you're off in your favor so they gave you a break you want us to do kind of reverse remit it or something i don't think i don't think in the situation they necessarily did there are there are over it appears to me there's a sound basis for the government's damage calculation and the fact that the jury discounted it for whatever reason perhaps don't necessarily believe there was a break under the calculations if you use the thirteen lowest paid claims if they found the thirteen lowest paid claims and not even the thirteen lowest there of the thirty claims of think you could go up to the twenty lower claims if those government's argument the only thing i would add that hasn't come up yet this morning is that an appeal from a denial for a motion for a new trial comes before the court with a heavy burden on the moving part of the standard there are various formulations of the standard the district court must apply that stress the verdict really has to be beyond the realm of a reasonable interpretation of the evidence and i think what's animating that standard is a concern that if  new trial motions are are granted absent a compelling showing it harms the integrity of the jury process that there has to be a kind of odd towards the respect that has to be your court at the jury's functioning that makes such motions verdict so long and as with it within the range of evidence that is presented to it and that is certainly the case here the jury had all sorts of information about how to calculate what evidence of what the government's injury was it knew how many claims it had been submitted it knew the the low and high end of every claim that was submitted it knew the average amount of the claim that was submitted for the entire universe claims and it knew the average amount of claims that were submitted within the sample you can take once the jury has found the number of false claims that it believes have been submitted you can take any one of those numbers multiply it with six grade math times times any one of those measures of the debt of the damages per climb and climb up with a jury award a verdict that's actually higher than the amount that the jury found here if the defendant had wanted a more specific kind of calculation that gave more specific instructions to the jury he certainly could have moved for such an instruction if you look at pages  footnotes two and footnotes three of the district court's opinion on the new trial motion the court notes that the defendant didn't do that that they found that there was an extraction that the jury did not have to arrive at a determination with exactitude that was not objected to there was no alternative instruction that walk the jury that would walk the jury through a kind of more detailed calculation if you look at the jury further form the jury was only asked to make true determinations how many false claims were submitted and what is the amount of damages to the government that leaves an enormous amount of latitude in the jury and the only and the only question then is is the the numbers that the jury came back with more they within the range of evidence and there is really i think no argument that they were all the government's evidence would support awards much higher amount the the defendant the naacp on an affirmative case about an alternative damages case calculation himself so the only evidence before the jury is the government's statistical expert explaining and the evidence of falsity which i think is really not contested here their medical testimony that these claims of a large percentage of claims and the sample were not reasonably necessary and not didn't meet the medical necessity in line with the jury's finding so there's really i think nothing in this record that suggests that the damage calculation was not adequately supported by the record or that indicates that the jury is findings were somehow not  reasonably in line with the evidence presented only the damages issues before us today and that is my understanding and and i mean you do say in your brief that this sort of statistical evidence or  extrapolation can be used to prove any element of an f c a claim we we have cited case law for that proposition and support of a narrower proposition i guess just i mean maybe just from my own background understanding i mean it  argument there your honor is that there are some types of claims that involve some much subjectivity in the claim that sampling is not appropriate for them i mean a couple things about that first that's not this case and answer you should never give it argument but i'll say it anyway and that's not this case for a reason these are claims that for the most part were the exams were conducted in a kind of mechanical fashion where patients were monitored continuously it four to  six weeks intervals without any kind of underlying medical condition warranting monitoring monitoring at that frequency there is no subjective element there as to whether those claims are payable on them under the medicare stature we've cited regulation that's forty two c f r for eleven point to fifteen that says with limited exceptions that are not clickable here these kinds of routine screening tests routine physical exams in the absence of an underlying medical condition are not covered there's no subjectivity there it doesn't matter whether the provider or the doctor thinks examinations on a routine basis would be beneficial for his or her patient he or she is free to do that but he or she is not free to submit a claim for medicare reimbursement in that context because the statute obvious as an object of bright line rule that such claims are not payable even in cases where there is more of a subjective  element to the provider determination of what kind of care or treatment to be rendered with appropriate statistical evidence with an appropriate evidentiary foundation there may be ways of dealing with that on a statistical evidentiary foundation showing that statistical sampling in the specific context in which it is used is appropriate if it is if that showing is made then the case can go to the jury or the court is fact finder and the fact find gets to determine how much weight to be accorded to that so so long is even in cases where there is an element of subjective evaluation to the provider's decisions just as the co can't sampling can be used in an appropriate setting but rebuttal i think the issue is whether or not these this funding is unreasonable and i realize that's the pill battle the argument today but i think even the government's argument is they talked about how the jury could have found using one number different number any different any number of different combinations to this to this verdict and i think what that shows is that this verdict as they found it is not based upon any extrapolation method the extrapolation method they were talking about was an average payment of fifty six dollars if you multiply that times the number of claims the eight hundred ninety seven  or the nine hundred ninety seven thousand dollar number that is that that's a forty two dollar loss to the government what they found was was different from that mr thompson if the jury had return verdict that was within the range of what the government asked for in damages would you be making an argument today that that was not based upon the record i don't they didn't provide any rain to the only number they presented in what's  unique in these cases is all of the others extrapolation cases that i've reviewed the district courts have adopted the finding of the government they've not there's not been a situation that i've seen where a jury has returned  verdict with a different with its own extrapolated number this is the jury created this number themselves the government only presented one number they said twenty five out of thirty claims are numbers is not hundred seventy four thousand but if the jury had returned a verdict for that number  the government asked for you would not be arguing it was unreasonable would you for it if they if they had found that number i was there there would be no argument because they found those number of false claims and it's supported by the mathematics of but you're saying a number that's less than that number is unreasonable it is unreasonable because there's no mathematical basis for the number and i know a jury doesn't a lot of cases there's not i mean just take a personal injury case where the point us lawyer asked for a million dollars for the injury and the jury comes back with two hundred fifty thousand dollars i mean who knows how they came up with that but as long as the million dollars was in the realm of rational damages a lesser figure necessarily is as well and we don't we don't require mathematical precision in fact the jury instruction that you did not object to actually says that damages don't have to be proved in mathematical precision and that's kind of what you're asking for here in those cases the juries always provided a range zero to one million dollars or with medical bills that will say the medical bills you know or this number to this number in this situation the jury wasn't provided that they were provided one number for twenty five claims when the number of claims change there wasn't there there wasn't a range provided for any other claims there wasn't there wasn't a charge submitted the jury just head to they had to guess it what number they c do that in their mathematics is actually not that there's over a trillion combinations of the thirteen and thirty claimed and they're finding is not any of those thank you further thank you thank you all right case