career and it truly is one of the house any judge in the united states so we're sorry to see him go and he's leaving earlier than well then i have not so much judge sabella for appellant a motion to dismiss based on the statute of limitations cannot be granted unless the complaint pleads facts that show definitively that the claim is time for the court below based dismissal not on what's in the complaint but on the court's assumptions as to when the reasonable employee benefit plan would have discovered that it had been injured by the defendant this is a complicated factual question that turns on several disputed areas of facts such as when would a reasonable plan discover that it was paying for off label indication and even if it did when with the plan discover that the off label prescriptions were due to conduct off label marketing by the drug company these are district court we rate we in response to the defendant's brief we raised the question that there were factual issues that precluded adjudication of a statue of limitations that was done as a fairly prefatory remark to your arguments on equitable doctrines of the stop and tolling without question the briefs spent more time on the tolling doctrines than it did on the overall point that there are just factual issues that preclude determination of this issue but i think saying that this court as you know the defendant put in a bunch of articles and other things factual materials that suggest they could discover here they might do this they might do that but there's absolutely nothing in the complaint which is what you have to look at or things that the court below took notice of which is what you have to look at that indicates when how they test if they test what they do what are reasonable plan does to see if they're paying for off label and then what a reasonable plan does to investigate if there's off label market there's nothing in the complaint on the complaint does allege your plans began paying i think around ninety eight four thousand and thousands of these off label uses of depakote yes but not that they knew that these were they were just paying thousands and thousands of prescriptions and depakote had been approved by the f d a for a lot of indications but the plan doesn't just pay any prescription it has to be useful for three conditions offered by the patient does well that's a factual issue actually there was a case that we cite the ironworkers case which basically said that under the terms of a lot of these plans they have to pet and the fact is even if it's off label indication if the doctor prescribes it the plan generally pays for and it's only wrongful if it was due to off label marketing in other words a doctor can can take you know celebrants or something and say you know i think this is going to be useful for a b and c why don't you take it plans generally pay it or let me put it this way there's nothing in the complaint and which a court could basic decision the plan shouldn't pay that or should investigate about that but as a practical matter you've got thousands and thousands and thousands that are awfully old for more than a decade for conditions that are not included within the labeled reason well we don't we don't even know from the complaint with the plans know what the indications are that being prescribed for i mean when i go to my doctor and he prescribes you know whatever celebrations to use an example that's not involved in this case i don't know that my plan gets it i mean it's a fact a question i don't know the plan is told what is being described for it as he said difficult was approved for a lot of indications but even if they knew it was off label would a reasonable plan then go about investigating whether there was off label marketing going on i mean if that's when the plans come for certain off label use correct and i think they know most certain are legitimate and there are only point i wanted to make is that every drug company pays thousands and thousands every every employee benefit plan insurance company pays thousands of prescriptions every week every month i mean that's what they do if sick and probably every one of those prescriptions there's say two things about that number one we filed within four years of that so if that's really what starts the clock running we fought for but secondly i we the brief aside the neurontin case neurontin was very very similar where there was a disclosure about investigation label marketing and the courts and believe in that really didn't put in my notice that what was being pushed pushed off label were really ineffective uses which is what's ultimately involved in this case so in iran today at least they said even that wasn't enough but if it are these are they paying for off label indications and more importantly is the drug company conducting off label marketing every time it writes of risk pays a prescription for practically anything i think the consequences for the medical insurance industry and the cost of medical care skyrocket i mean right now today every insurance company is paying for thousands of claims they have to immediately say well i think maybe pfizer is in gage i think they abbott's engaged i think maybe sharing p label marketing and start investigating them all i just i can't believe that that is the law and i don't think any court has ever said that is the law in this connection if i could be honest i am preparing for the argument came across a pretty good case cited right about the time we put our reply brief then if you don't mind i'd like to just mention maybe a class of pepperoni found that i don't know but it was it was a case called select the marketing it's in the district of massachusetts you can give your opponent the name of that i found it two days ago i haven't called you go ahead i'm sorry two thousand and fourteen west seven zero zero nine three three nine it was an off label marketing case and basically the court said the question of when should they have known that they were paying for in effect of all of little uses was a question to go to the jury i think it's instructive i would note that i don't think the defendants have cited any cases that indicate that merely paying for a prescription is the kind of thing that as a matter of law which is what the court below held as a matter of law up puts a employee benefit plan on notice not only that it's paying for off label indications but that it should be start investigating whether or not  drug companies and gauged in off label motion there's a dispute in the papers about whether or not the rule is that a cruel curse when the plaintiff discovered just that he's been injured or discovered also who caused the injury now first we argue that the whole question of injury has to be tied up with the who caused the injury the off label promotion because just paying for a prescription truly not injury unless there's some off label marketing but the two cases that we rely on that you have to have some inkling that the defendant is involved here are variations and cancer foundation and i think the drivel was on both of those panels and if memory serves i could be wrong i think you wrote beriah aviation and you didn't formulation of the world we certainly have not spoken with one voice on the issue of free will of identity the right and ultimately the supreme court may weigh in on that but it hasn't done so cavanaugh says in his brief that he thinks the rotel against would case in the supreme court it's inconsistent with barry aviation i don't think that's the case i mean all rotella said was that a cruel doesn't awa discovery of all the elements of the pattern of racketeering it adopted it it's suggested that a discovery rule is going to be the right and injury discovery rules going to be the right rule and that would giles the situation to medical malpractise and here's the quo approvingly saying this supports what we're saying and rotella the supreme court said the plaintiff consumed when quote in possession of the critical facts that he has been hurt and who has inflicted the injury close quote at some page five fifty six  extent that supreme court was thinking about this issue at all i'm not sure they really were but the language of that opinion supports perry aviation and the notion that you have to have some inkling some inkling that the defendants involved and simply paying a prescription even if you know it was for an off label use is not enough i would discuss the waiver point very very briefly since your honor brought that up as i said i believe our brief below said enough to the scripts and they hid the fact that they were paying these doctors and telling these doctors what to say and what to promote and they hid the fact that they were basically doing the training to the whole connection was what was hidden in terms of these enterprises and that's the way that they conducted the off label that's the way they conducted the off label marketing and what we contend is that since the court below really committed an er of law being not applying for aviation not focusing on the fact senator the defendant that caused the injury by setting up these these phony enterprises and promoting the drug surreptitiously and if it's an error of law even if we did not fully articulate in our brief follow all the arguments that i'm making now on the factual issues this court is empowered to to to reverse the district fact that we've relied on those cases and it's interesting to the district court below did not suggest did not or did not suggest that we had waived any point about when the injury was known or when the claim accrued she basically decided that on the merits of that issue as she sort i think she got it wrong i mean she articulated the cancer foundation very aviation position that you have to know when the injury occurred and who caused injury but then she essentially proceeded to ignore it and just make factual findings that they are not based on what's in the complaint just to make sure i understand you but you do argue sure that you win case it is not it's helpful but not essential  that the proper rule for the question is it's an objective test whether or not any diligence would have discovered what was going on so the plaintiff can say well i didn't investigate and i didn't find anything in there right or i get told he can't say that but if the facts are that even with diligent investigation he could not have uncovered what was going on then it seems to me that the tolling dr equitable tolling applies and again that's a heavily factual issue we do not fair characterize your client as his kid in this particular i think that's a fair i think that's fair i don't think it it's positive or proves a whole lot but yes they are sophisticated but the question is what does a reasonable plan do under the circumstances i think we have to have an expert to decide that or at least some testimony and some evidence i suppose at some point but there certainly could be blatant examples where expert expertise or there they are stupid as you just heard very sophisticated entity they are in the business of the insurance business of evaluating claims prescription claims medical claims across the board that's their business and as a response but off label usage of drugs is is not unusual it's not unique right that it's that's the most common that's certainly that is certainly true but to some extent when the pattern of off label use as we some of the articles we we cited know when it's eighty percent for anticonvulsants it starts to end when the utilization is increasing at some point there is inquiry notice to look into what is going on with those off label prescription is simply the theory if i understand the place they're here it's not th use the off label usage by the prescribe ing physicians that is the heart of their complaint it's the marketing to those physicians he's by abbott in order for them to have a cause of action that is certainly true but i would ask the court look at the claim look at the class that they are seeking the class they sought in their complaint was simply a class of all third party plaintiffs who reimbursed for off label use of d is true to have a court so that's their class that's what they were focusing not any off label use now it is correct in order to have a cause of action against abbott they would have to show that we somehow caused those but in terms of their harm that they were complaining of as we paid in their view for thousands upon thousands of off label prescriptions of depakote well eleven years went by anticonvulsants were the subject of numerous articles numerous lawsuits this is a sophisticated plaintive that was a plaintiff in two thousand and six in off label cases and as the district court i think correctly held we're speaking about an eleven year period with a sophisticated entity who's in the business of evaluating insurance claims this c take judicial notice of how insurance companies as a general matter work given you know the problem i have mr cavanaugh that's that's that may well be true but i don't know it's true because i don't have any facts to show me how that industry works and when the t p p would in the normal course of its business have a heads up on this i can usually in these cases see us a summary judgment i case judge decided to get rid of this of a complaint i mean it's an unorthodox way to handle it i take your point your honor but let me say what i think this to what distinguishes this from the hypothetical your honor just gave is the period of time that we're talking about here the eleven years and the fact that you have a sophisticated entity that has a fight do sherry duty they don't challenge the case well i'm obligation on them to the beneficiary yes but not but it's i don't see how that helps you at all but your honor are we have the right to rely upon who is the plaintiff in front of us and courts have looked at is this a sophisticated pla that's that and this this sophisticated plaintiffs also has legal duties and i think in looking at their degree of sophistication you can look at what are their legal obligations it's hard for me to see how any of those duties run to your client i don't think it matters whether they run let's assume your honor your publicly held company you have s c c reporting obligations you have various sarbanes oxley obligations i think it defendant would have the right to rely on those those duties might not run to that defendant but the defendant would certainly have the right to say you're a large publicly held company with f c c sarbanes oxley and to to the extent those factors might be relevant to take that into consideration in looking at whether an objective lea reasonable third party plaintive at some point had a duty to look at the off label use of depakote and the district court correctly held that given the fact that they alleged an injury going back to one nine hundred ninety eight and the fact that they are sophisticated entity to determine that there was allegedly improper off label utilization so that their work individuals capable of discovering those facts the facts were out there and the articles in various lawsuits we cite in in our brief of which we asked this court to take judicial notice show there were widespread reports of all sleepy utilization of depakote and of anticonvulsants up to eighty percent of off label utilization they're there harm they complain of is off label utilization of depakote certainly that put them on notice that they were being injured notice of of who the like of who the plaintiffs are if i could speak to the to the waiver point we made a very specific argument to the district court we said the complaint alleges injury as of hundred ninety eight we have a sophisticated entity the injury starts back then that's when you look at its discovery of the injury under this court's precedent they never engaged on that issue they have a perfunctory opening paragraph to a tolling discussion which talks about statue of limitations is typically a fact issue on appeal for the first time they argue well it's more than a discovery rule because the district court appeared to understand that the issue of injury was before her i mean she dressed well we pay debts because we presented the issue of injury to her they did not challenge the legal standard nor did they challenge the art the specific dark meat we made as to one nine hundred ninety eight under this court's precedent i believe gave they have waived that argument they made a strategic decision to focus their argument here on tolling an equitable totally and equitable stop if you read their brief no i don't believe any other reasonable conclusion can be drawn as to the argument that the district court understood they were making and that rises to the level of of waiver so if we don't buy your waiver argument do we have to overrule barry aviation to reach a result no w for our two reasons i agree with you your honor there is some uncertainty as you look at this court's precedent if you go back to the mccool decision and the kind of decision this court said it is simply discovery of the injury rule there was no additional reference to needing to identify who the perpetrator was and i would suggest this court's rulings and claire and ro tella make it clear they are either going to adopt a discovery of injury rule or actually go further and say it is simply an occurrence rule and discovery doesn't matter because the i don't think it matters judge tension to answer your question because here the case they cite where he wasn't clear whether j p morgan was involved or was it sumitomo you have multiple defendants analogize it to a ground water contamination case we can't you know who put it in the ground what when did they do it here there's only one manufacturer promoter of depakote it's a habit so even if we take the barry aviation standard and we have to have some reasonable idea of who the perpetrator might be it's it could only be one person but if the individual decisions by variety physicians to prescribe off label there is no case there are cases if there is this improper marketing for awfully that debt that is true so discovering the identity here is is very well you're fine the question of whether there is i would say your honor that's why i discovered your injury makes sense because he creates a reasonable diligence an obligation to go figure out ok we're getting all these off label prescriptions which they say are is harm to them now is it a function of some wrongdoing and so you look at what's the source of these off label prescriptions is it the judgment of an individual physician or to be influenced by by the manufacturer that there's not a high degree of well we don't know who's putting the the contaminant into the groundwater or we don't know is it sumitomo was it standard is discovery of injury but under even if we would even if the court were to adopt the area of the issue which i do believe the language in there is dicta as to the by the defendant i don't think the rule changes i do think a better policy approach is that if there's any uncertainty as to the discovery what an inability to identify who's causing the harm that is better treated as a tolling issue now the problem the has with tolling which is how they based their argument in in the lower court is that they did know invest there are no allegations of end of any investigation none they exercised no diligence in order to rely on tolling i guess the trouble trouble with that is this is the complaint and they don't have a duty to plead around possible to plead yourself out of a case and by alleging that their injury goes back to one nine hundred ninety eight they now have we're a statue of limitations they have to plead something that shows if it's a discovery rule their injury goes back to one nine hundred ninety eight they have to somehow if they're going to now rely on an equitable doctrine on which they have the burden yourself were told you have to show you brought the suit as soon as possible courts have held the matter of a few months is insufficient here just not sure where they would have to show that in their complaint i think well i think to correct you your honor is that by virtue of alleging an injury going back to one nine hundred ninety eight a rico claim based on their seeking damages going back to one nine hundred ninety eight there is a discovery rule it is then a comment upon them to explain why they didn't bring this lawsuit within four years have done nine hundred ninety eight they didn't do that they didn't they did not plead any facts nor nor did they go back to the district court and say let us amend our complaint facts we can plead that show that we engaged in a regional in a reasonable investigation and that we are entitled to a tolling here they didn't do that date and they did not bring their case as soon as possible which is what tolling requires they brought their case almost four years after notice had begun a criminal was under criminal investigation and fifteen months after a guilty plea that is not acting as soon as possible and if the court reads the cases  told and it is has soon as possible is a relatively short period of time sorts of thrown cases out where you waited three or four months here we're talking years they have the same problem with equitable a stop no investigation no allegations of any sort of causal relationship the one thing they identify the website it's in there it's in it was in the key tam complaint and they don't show any causal relationship to how that could have conceivably delayed their filing suit i do think their complaint your honor to answer your question very directly i do think their complain injury going back to one nine hundred ninety eight created an obligation on their part to plead facts that would entitle them to rely upon a tolling or an equitable stoffel doctrine and a complaint failed to do that nor did they offer to the district court that they had facts that would show that they had done any investigation plus the court has any other questions i really just wanted to make a couple of points just kind of talked about the key tam being unsealed in two thousand and eleven and he said that showed the facts were out there well i mean the way a key to him works is in the whistleblowers in that case i believe were individuals i believe they were former employees individuals often come to lawyers who represent whistleblowers and and give them facts to bring a case and hopefully recover a bounty the fact that there might have been  employees or current employees there who had knowledge of what abbott was doing hardly is the kind of thing that insurance company is going to become aware of or track down it's not the facts were out there there were a couple whistleblowers who went to some lawyers to bring a case that was kept under seal until two thousand and eleven and then there's this we talked a lot of this kind of talk a lot about the fiduciary duties and things like that i think the important thing to remember is that these plans are obligated to pay even if they're off label prescriptions the the ironworkers case that we cited in our brief it's an eleventh circuit case but it's got great language and i think it really sums up the point and it says although placed on formularies based only upon f d a approved uses the drug's placement on those formularies contractually obligated the insurers to pay the drug's price any time it was prescribed therefore the insurers had to pay regardless of the facts surrounding the prescription they had to pay if the drug was prescribed for an f d a approved use or an off label use even if the prescription was medically unnecessary or inappropriate now i'm not saying that is necessarily you know what we're going to find when we get into discovery but there's nothing in the complaint that says that's not the case and if that is the case i think it underscores the reason why every time a prescription comes in the insurance company does not have to run out and usually does not run out and try to track down is it off label and is the off label promotion going on do they have tools where they might do that mr cavanaugh cites a bunch of articles that says all insurance companies could do this could do that maybe they could but none of that's in the complaint and none of that's the stuff of a motion to dismiss that's all i have thank you thanks to both counsel the case will be taken under advice