we submit that in dismissing the complaint for lack of subject matter jurisdiction the district court misapplied the original source exception to the false claims act for two primary reasons first the district court misapplied the original source exception by requiring  simpson have direct and independent knowledge of specific false statements specifically that bayer sent false and misleading communications to the d o d and is respectfully submitted that this position is contrary to this court's holding in nurse anesthetist decision second the district court in concluding that miss simpson did not have direct and independent knowledge of the true state of facts that is that she did not have knowledge of the truth the statements well there are two statements there is a course i would suggest your honor of misleading information that is allege in the complaint that is a district that is disseminated from understand i'm just questioning whether what you stated is two issues is not really one well i would agree your honor that in so far as the district court i would suggest somewhat conflated the two in that the issue of providing the false statements and the they're properly conflated that's that's the only difficulty i'm having with your statement side so i would say yes i'd argue your honor that the issue is the statements that were made bayer to the department of defense and the true state of facts is what miss simpson can provide and frankly which is what the government does not have the government knows of the statements that bear has provided to it what it does not know is the behind the considered in its prior opinion were first a november tenth one thousand nine hundred nine statement that there was no evidence to suggest that big call court causes more rhabdomyolysis than other statens that it was a class effect the true state of facts i would suggest your honor is that at the time there is agent made that statement to the department of facts in fact there did know that there was evidence suggesting that this was not a class effect in other well what the what did the government know as of two thousand and one what what did what did what additional representations if any were made to get the extensions in two thousand and one and two were and were those serious problems with regard to this drug and as a matter of marketing needed to respond to that because the problems that were arising were problems that are essentially market busting the two issues were one that th call had a greater incidence of rhabdomyolysis than its competing statens which if known to buyers including the department fence was essential and in two thousand and one was the was the military contractor officer saying there's a lot there seem to be a lot of problems with this drug at least that's in the medical literature in the media and so forth and our own and best asians and bayer says fine we'll give you a deeper discount i mean i discount because of the dangers because of the got because the military was thinking switching staton staton drugs well the military your honor alternately pulled these concerns that were out there well the in terms of what happened i mean the government did in fact hold a contract and the when it was revealed what the true state of facts were that when the government became aware of it the contract was pooled and ultimately drugs i thought i thought bear voluntarily with through the drug is the fact she can provide what the government doesn't have she can provide the fact that at the time and during the time that the contract negotiations for its entirety were going on the bear had endeavored to provide false and misleading information to the department of defense and she knows that because she as her job essentially was in the hub of this communications network that pushed out counter narrative arguments to those who would  be purchasers of the drug that included the department of defense it included doctors etc mississippi simpson was in fact asked to conduct an analysis related to the your client was not an original source because she didn't know about the false statements to the government and you say that's not required under nurse anesthetists right that's your first point that is that is you're now what's your second point that you say was air well essentially that the district court treated the analysis of true state of facts and knowledge of the false statements differently because the theory of was happening in the operating room even though they didn't know what was being submitted to the government and in that case they were credited because they knew that what was happening in the real world the in those operating rooms was not what was being compiled what was not compliant with what was required for billing so the analysis looked at the true state of the facts comparing what statement was made to the government that is that we are billing for a service that is provided in a certain manner and what was happening in the real world and what the nurse enough this is were able to do to proffer to allege in their complaint is that what was happening in the real world deviated and the reason they knew that is because they were there so too with miss simpson she knows from her experience that what was being presented to the federal government was not in fact what bear knew so when bear was explaining to the federal government yeah you can say that without proof by the way this is a twelve the it's the district court however essentially conflated the two so we do have evidence there is evidence alleged in this complaint that miss simpson knew what was going on and it's alleged in the fact that she participated in meetings where it was  she knew that the very person that made the representation to the federal government mr zygmunt who said there is no evidence to suggest that they call causes more rather than others and that it's a class a fact he was the one that had contacted miss simpson to get her analysis which suggested exactly the opposite so when that statement was made to the government that there were if this was a class a fact that there was no greater instance misimpression can narrate why that was not true similarly for the instance of the dose response he can do the same and that's based on her personal direct and independent record reflect that that specific representation was made again in the two thousand  negotiations i don't believe it was necessarily represented i don't believe it's in the complaint that it was necessarily represented well what is represented in the complaint is that this was an ongoing course of communication or said you had to pivot your your independent knowledge claim when when you raise the day of the contract for the first time on the first appeal and that was the only thing that prevailed and now you're back making the same in the pendant knowledge argument that  were the essence of the medicare fraud planes that were dismissed the ninety nine the whole business about the ignorant and the marketing to doctors and so forth i would respectfully disagree judge logan about the state of facts after district court dismissed this on to alternative grounds is out you're saying or do you think the dischord dismissed it only because she didn't the alleged knowledge of statements made to the government  not the statements had been made to the government they considered that the true state of the facts as to the errors but within misapplying nurse and that the system which says you can be an original source by merely having knowledge of the true state of the facts and this i don't have another fraud in the inducement case but i would draw attention to the newell case which was a sort of fostered if occasion case and fall certification is a similar theory to fraud in the inducement in that the false certification renders subsequent the court good morning your honour's i'm adam hopefully going on here on behalf of the bear defendants the false claims act deprives courts of jurisdiction when the allegations have been publicly disclosed and the relator is not an original source of the information on which the allegations are based here miss simpson is not an original  of either the misrepresentations that were made to the government or any other of the essential facts of her case in particular misimpression is claiming that there were two inducement agreement for the point eight dose of the medicine that was signed in february of two thousand and one so the two contracts the extension in january of two thousand and one and the blanket purchase february of two thousand and one are what is it issue here and if i may i'll turn first i thought it was january and february you just talked about one thousand nine hundred ninety you know you can confuse my limited knowledge of the extension that was entered into between the department of defense and bear and in february there was a blanket purchase agreement for a dose of de call that hadn't been on the market in one nine hundred ninety nine and i believe when we look at the blanket take the court's time if we turn to paragraph ninety one of the second amended complaint and the relator is talking about information which she claims should have been disclosed to the government part of the sort of spoken we all theory that she turns to what to she said upon information and belief there was no information provided to the department of defense th bayer had determined such a team and they're talking about a bay call rapid response team was necessary or that bayer was aware of safety issues with a call so what's told to the government is on information and atten did not show quincy in l b l c that's a type of cholesterol reduction at these doses and that's november fifteenth two thousand a year after the allegations paragraph one ninety and that's on page eight to seventy eight of  relator did not discover that there was an actual concern or reason not to start patients on zero point eight until six months after the launch and after a significant number of adverse events had been reported relator believes that this information was known to senior management prior to the launch of the zero point eight milligram dose so for example with the blanket purchase agreement the relator is not only not an original source of the misrepresentations of the government and she concedes that fact but she is not an original source of what was or was not said to the government and this court's cases including kinney and the new will make very clear that some information is not enough there has to be a close connection between the information the relator knows about and the state of facts at the time of the fraud and here mr simpson does not have knowledge of what actually transpired that led to either the contract extension in january of two thousand and one or the blanket purchase agreement in february of two thousand and one and the supreme court's opinion in rockwell is very clear that one needs to know the information on which the allegations of fraudulent inducement are based we believe consistent with this with the court's opinion in mystic and then judge alito was very clear that in a fraudulent misrepresentation  case the essential facts or be fraudulent misrepresentations but even if that were not the case that's that's not the law of this circuit is it your honor there is no conflict between the law of the circuit and mystic in this circuit i believe the canyon newell made clear consistent with rockwell statement that we can't have jurisdiction in gross that some information is not enough we're some information enough in new will the relator claim that he had knowledge of what happened at one hundred meeting and the court made very clear that he would have to know what happened that led to the certifications of chronic noncomplian is an alternative theory that was not relied upon by the district court that you're advancing now that's correct your honor the district court so you're not defending the district court's rationale that the plaintiff has to know about the appeals may consider whatever it chooses in deciding whether it has jurisdiction we believe that if the court does not want to reach whether there's a circuit split with the third circuit it can hold that this relator did not have knowledge of any essential facts and we believe that under this court's opinions in kenya newell it's very clear that she does not meet the test in kinney why should we do that why should we just review the district court's rationale and if that is court was wrong then send it back your honor the court would have the ability to send it back for the district court to make findings of fact in the first instance here however we believe it is clear that based on what is in ms simpson's pleading she does not know what the true state of facts were with respect to either of her for our joint inducement allegations and that the court can hold as a matter of law we could but it seems like you're asking us to do what the district court should be doing in the first instance going through the whole complain and making findings of fact and so forth your honor when the relate or doesn't connect anything of ember in december of ninety nine and contracts that were entered into in january and february of two thousand and one i think it's appropriate for this court to say that's not enough the public disclosure bar i don't know i mean this first opinion says there was enough to connect them doesn't know i don't believe the first opinion does your honor the first opinion says that a fraudulent inducement case is different for purposes of nine b in a case in which we're dealing with claims for payment and the relator here doesn't need to show or have direct an independent knowledge of the claims for payment she's excused from that i don't believe that the court of appeal said that ms him soon was an original source of what led to this to a growing didn't address original source but it dressed whether the ninety nine statements were connected to the alleged fraud in no one didn't and i don't believe the court went that far and  essential to the court's holding your own well it says in addition simpson connected are allegations regarding alleged fraud to the zero one contract extension that's a part i'm thinking of i'm aware of the passage of the pin your honor but i think what the court is focused on is whether mr simpson is alleging that there was a an effort to induce an agreement with the department of defense and then it says for example and points to paragraphs  five to one twenty but the court does not hold that ms simpson in fact links her statements to what happened in january and february of two thousand and one and sends that back to the district court to determine collected from from pleadings standpoint there was no factual connection there was no factual connection at all that's what you went back to sort out but there was no if this is your saying that the whole problem was the example whether there was any injury alleged and the dissent and the majority did not look at for example when mr simpson says there were allegations about a death and that's in paragraph one twelve it's also very clear and this misimpression also said in her deposition and this is again it pages eight to eight and two hundred nine that she wasn't aware of any positive spin being put on the contrary indication so when the court of appeals points to paragraph one hundred twelve the sholay pointing to what is in there not to whether there are other paragraphs in her complaint and in her deposition and in the record that are very clear that she is not an original source even of those facts and that there are many other discussions that take place the change in labeling happens there are discussions with the department of defense with the department of defense asks questions about the number of cases of rhabdo my wife says within the dio date there is no allegation whatsoever that ms simpson has knowledge of and let alone independent and direct knowledge but she has no knowledge of what happened in the conversations with the department of defense but what about the  as i understand your answer to judge college when you are defending the basis upon which the district court ruled in my right now it's correct your can you address this distinction why should we affirm on the approach that the district court took in distinguishing the fraudulent the fraud in the inducement claim in iraq well the supreme court made clear that the test is whether the relator is an independent source of the information on which the allegations are based in a fraudulent inducement case the allegations on which the complaint is based or what happened in the is required to have representative examples of the claim submitted to the government the relator is relieved of that here in order to be an exception from the public disclosure bar disclosure bar and this court's decisions make very clear that the goal is to have a narrow exception because for example this court has a recent decision in miller vs weston where relator comes forward in the original source case with no knowledge of what happens in the representations of the government but she comes forward early on before anyone has publicly disclose the information not after the medicines been withdrawn after the department of defense investigates after resettlements been reach with the department of defense so that that doesn't take place we're now talking with someone who comes forward five years after the alleged fraud and after the alleged fraud has been discovered and the question is what should that person need to know to be an that was a fraudulent inducement case your mistake was mistake was a fraudulent inducement case and the court said in that circumstance a relator needs to know the essential elements of the fraudulent misrepresentations that were made for the government connect any particular statements to the fraud and in fact mr simpson is in a position where she doesn't have knowledge of what happened and no matter how one reads nurse an it doesn't relieve the later relator of at least knowing what happened in fact in iraq while the supreme court pointed out that the relator they are stone didn't have knowledge direct knowledge of the representations as well and we  be and meet the original source exception to the public disclosure bar when the relator has direct an independent knowledge of the true state of facts even if they were direct even if the relator does not have direct an independent knowledge of the false statements themselves that analysis does not change in instances of fraud in the inducement and there is nothing to suggest otherwise in the false claims act the analysis remains the same it is the same analysis whether it is whether the case is predicated  on billing for services that didn't happen whether it's predicated on false certifications it remains the same and ultimately that is the error of the district court here demanding that missives that have direct independent knowledge of the false statements what missives and does have direct independent knowledge of is what was happening behind the scenes what the government doesn't know counsel said that that is required that this is now under this analysis that the fall state that the relat percipient witness to the false statements and i would suggest that runs counter to the basic ideas and balance of the false claims act the government knows what happened in the conversations between bear and their representatives they know because they were a party to it participated in the conversations about the creation of false messages that were designed to overcome serious concerns about the clinical safety and advocacy of big call that would have been essentially market busting for this company