in person but of course let's not possible right just right yet and we're glad to see you the xoom the same rules apply though we're going to do fifteen minutes a side and if the appellant wants stopped part of the government it's simply a private monopoly that is for straining trade to the detriment of brucella some other physicians and most importantly the patients who are then denied your client has standing when it seems admitted that he'd never apply to take the step to he he said they would say no to me but you know usually in these cases we make people actually do something and get reviews not just say i'm pretty sure they'd say no so why why do you have standing to make this complaint when he didn't take the steps that would even allow the board to say whether or not they let him take the test  privileges right i mean that's the point he didn't he says i'm in a catch twenty two because they won't let me take this test but he doesn't apply for the privileges that would allow him to take the test he says i sure they would sell me know if i played for privileges how can he say that and and claim he's in a catch twenty two why doesn't he just apply for the privileges and see what happens it's an excellent question sheriff shorten and the reason is because the hospitals expressly state that they will not cramped privileges to someone unless the applicant has board certification so for him to apply it would be an automatic rejection and here's the problem in the medical profession wait wait ok that that can't be the case right or otherwise everybody would be caught in this catch twenty two nobody would be able to get through that the way you described it that the fact is there's a can there is an opportunity for him to apply to get the privileges and to take the test the psych he's not he's not been a night out to get bruce ellison he's like everybody else there is a window of time after a surgeon completes his residency program and which hospitals will grant privileges to someone who has recently completed their rents the program and who promises to get the board certification but that's a short period of time which bruce allison has now passed so most physicians are able to get the hospital privileges by applying within this period of time after they complete their residency program and that's why this catch twenty two does not apply to most physicians but it does and these physicians are blocked from entering into the market isn't he also required to have applied for a license  you be licensed in new jersey in order to get hospital staff privileges then maybe i'm wrong but i think it's not the place for a strike since shots are extra and that generally a ministerial requirement and other words once a physician seeks to get hospital privileges in a particular jurisdiction he has  row well you're out of this i mean of course the court has an obligation to examine its own jurisdiction there's no doubt about that this was not the basis of the rulin below the ruling at the decision were appealing to not deny us relief on this basis well that's true but we always have an obligation to deal with article three standing no matter what happens in the district court right so we have to whether whether any of us want to do it or not we got to come to grips with the fact that he didn't apply for a license he didn't apply for admitting privileges he didn't do either of those things that he would have to do and yet you're coming here saying just don't worry about that we've got a real problem here a catch twenty two so that's that's the that's a problem we've got to face and you've got to help us face for your honor and i it's not because we're trying to poet trick or anything it's because the steps that you describe are ministerial steps that by which bruce allison would automatically get tonight and here's the problem in the medical profession we don't have this legal profession a male a fashion when someone is denied hospital privileges or someone said i had an application for a medical license that then triggers an entry into the national practitioner databank and all doctors saying we're not going to grant your privileges unless your board certified i mean they say that right it's on the internet they're up front don't even apply unless you're board certified at this level the experience of the physician again if you're right out of a resident program you can do it but  hospital has said to him don't do it don't do it because we will you know you're saying he approached the hospital and they said we will let you do that did you contacted hospitals to find out what their rules are and th where is that in the record that he contacted a hospital may said don't do it well it's on a twelve b six motion so unfortunately we're not able to develop a record in this case double checked it on the internet last night these are the rules and they are absolute there are no exceptions to these rules when you're saying the rules are you talking to the hospital bylaws they're usually part of the bylaws your honor that's correct but we're also these rules where else are they yes there are regulations of the hospital they each hospital will it will describe it a little bit differently but it's it's conditions provided say that there has to be you know misted and a license in order to gain entry you do an exam and that's just a ministerial thing it's like reciprocity in the legal profession i mean if you get a job from a law firm in another state i mean it's d the rules are so clear that to apply would be what cast doubt on what this person is doing i mean the rules are clear and then so then he gets for john i mean i'm referring to the l rather than the patient stage who yes your honor he could apply for a license by he has no place to work i mean there's no place that he and the and again this lawsuit is against a deal last it's not against the hospitals it's not against the medical board it's against a b u s which expressly refused to allow him to sit for part two of the exam after he had passed our law which is more difficult part it said no we're not going to allow you to sit for part two of the exam and that's the the condition that we're objecting not so what hospitals here we're not suing the medical board here really could you could you please tell us what the agreement is a conspiracy between condition by which a v o s requires hospital privileges they don't accept ambulatory surgery center privileges which bruce allison is head out they accept only hospital privileges and started applying this arbitrary condition and about the same time hospital start to climb this arbitrary condition of requiring board certification by a v o s not by other board certified groups so these two entities are reciprocating to each other and they started doing it about the same time there are always statements about pressure being applied by the specialty societies to hospitals to require th arbitrary condition there is agreement that's in the complaint that you mention iran or about m o say they're making money off of this and so where's the i don't want to be a two sided where's the agreement where and i trust conspiracy requires more than just sort of a conclusory allegation that they're in it together you've got to say something more than that right so what's the more than that it's in your complaint yes that i mean we've read the concludes restock what's in there that's factual factual stuff says they both of them started doing this about the same time there's always statements that pressure was being applied by the specialty societies to hospitals to require board certification by the specialist size not by their competitors but by the specialist sizes public statement that i quote in the he trusts context i mean it's if we learned that microsoft was pressuring kompany to do something that was raise off alarm bells and we're dealing with a monopoly here as certification and we've chosen to outsource a t o s is your assertion that the hospitals have to do this themselves they have to do a search for cation study themselves because if they let if they saying we win the case all i'm saying is we should have a right to discovery to find out what the facts are and if the facts are as you state your honor well i'm not state them we look i'm just asking you oh ye you with the facts of it well and when we allege the complaint which we go on whatever we can get from public sources now if you've got a sophisticated monopolist they're not going to put an agreement out there on the internet they're not going to show all their cards i mean we were at the initial stage of the litigation i mean bill gates and his litigation you know he didn't lay it all out there the public he had to be deposed and there had to be a little to find out what the facts are and i agreed on or if the facts are that hospital sat down and said we want board certification and by the way board certification been widely criticized so there's a assumption here the board certification good thing i mean i put in my reply brief i quote from esteemed experts criticize it but you'd have to acknowledge that that's neither here nor there for our purposes today right we're not getting into whether certifications a good idea or a bad idea we were ill suited to  to nd guess the medical profession now we're asking two things st does your client have standing and nd assuming that they're standing has there been a sufficient pleading of an agreement a hospital where hospitals require certification by only a v o s they don't accept or from anybody else there are other groups that offer more surgery but these hospitals require only by a b s now is it possible that a v o s just just  benefits from this windfall and had nothing to do with it it's possible but in the real world if someone's going to require our product and there are other plus factors there are other plus factors here so at the same time a v o s is requiring hospital privileges in order to get a sports certification it shutting him to a tory surgery center well when what would motivate the hospitals to do this w announced money making programs but toeing these hospitals for the h s a and the specialty societies as public and outside put in the complaint i mean they're making money off of these foreigners the hospital has programs to require it absolutely not this is pure business this is pure are people making money off of this that's all it is the state medical board does not require certification to get a license  done by hospitals dealing with these proprietary specialty societies and it's a tragedy every time it happens it's not a state in any way and  well they have those you know we've seen cases where the medical personnel just can't perform the function and your honor that's i mean that's certainly appropriate if the medical personnel cannot perform a function then the hospital should take action to protect the parish just now we have here i mean what we have how do we how do we know right because you say you can't perform the functioning that your argument is that the certification program itself is representative of a conspiracy that it is representative of a self interested act between hospitals and the specialty organization and i think the question this spin put is how does house the public protected how as the state got its interest in protecting the public satisfied and has the hospital have its interest in liability protection handled if not by some sort of a screening mechanism a certification program how can the certification program which is least to protect the public be a conspiracy when there's an interest in protecting the public from unqualified  well it's a short question gets to the point of whether board certification it is a good thing and i'm telling it it's widely criticized it's widely criticized to to accomplish that goal which is a worthy goal to from your i've stayed away from your clients record i mean it appears in the record at least the other side seems to indicate that the reason he doesn't want to apply for hospital privileges because he's going to get refused because he had his privileges revoked in california that he's got a he doesn't have an exemplary record he's got a less than exemplary record and that's what he's worried about and that's the that's what we're kind of getting coming from the other side here is that there's there's a reason he's not tryin and the reason doesn't have anything to do with conspiracy it has to do with his owns his own background now you know clearly that's not something you'd agree with and you put stuff in your complaint about and in your briefing about his record but is it significant is it something we should be taking into account that he had privileges revoked in california and that that might explain why he's not outside that record and throw mud at the wall that is hearsay that we don't have an opportunity to families not been allowed develop a factual record we welcome discovery we welcome them  posing bruce allison but for them to sling mud without getting into a development of a factual record i strenuously object to that and that's not why he hasn't applied for privileges here and it's his record is exemplary none of that should be considered by the courts the other side should not have argued it on a rule twelve b six motion this is on the complaint we are being a locked at the outset of a case from getting into development of a factual record if the facts come out as your honor suggests that this is all perfectly innocent and hospitals are just trying to protect the public then we lose the case that's fine but we've been denied the ability to value that factual record and we we've got a monopolist here that's making money and it's doing it in a way which is a fairly recent us just the last ten have any other questions because otherwise we'll hear you rebuttal jordan you're good at it ok all right thank you we'll hear you on rebuttal mr green we'll hear from you now and we'll give you extra time if you need death that obtaining new jersey medical life insurer is a purely ministerial process but that doesn't explain why his client hasn't taken the necessary steps to do so and it well mr green why don't you want to go st you know we're not suggest anything we're asking questions so it would have once you go straight to the point that mr schlafly was hitting which is they can't get a conditional or a provisional admission and therefore they are in a catch twenty two what's your response to that completely inaccurate and we don't have to go outside the complaint or speculate about that point because in an earlier interation of the complaint mr schlafly acknowledged that many hospitals provide privileges to physicians who are board eligible or eligible is somebody who has passed a part one exam and has been practicing and building the case load necessary to qualify for part two  exam and that was a status that mr dr elephant has asked until relatively recently and which he could read today by retaking the board's part one exam there are some assertions in the complaint and investor slap please respect that my client only allows surgeons who have completed their residency within some specified period of time to sit for the one exam that's not true those assertions are nuts are not cited supported by citations to any portion of my client's policy and that policy was relied upon by mr complaint so it's properly before the court and it's very clear on the face of the policy that a surgeon can take the part one exam at any point in his or her career and can reach as many times as necessary in order to achieve or eligibility so to make to be perfectly clear here the position you've taken is  ellison had five years within which he could have applied for conditional provisional privileges and that those and because he was within that window even though he was not a recent medical school graduate he would have been permitted to look he would not have been refused as a matter of course as mr slattery is asserting would have been the case that's that's what you're saying clear what exactly your argument has been with respect to this is complete i can't take the nd part is it that he or he can take the st part going to provisional and then take the nd or so he hospital privileges for a specified period of time and there are various reasons why michael has that policy but we have avoided basing our arguments on those reasons because they're outside of the current record but to sum it up he could become board eligible again he has acknowledged that there are hospitals that will employ a physician who is already eligible but not yet or certified and awarded to obtain employment at one of those hospitals he would then be eligible to sit for part two of our exam so is it fair to say you disagree with your friend's characterization of the situation is a catch twenty dollars that's correct and if if it were as he described it would be difficult to simple for any orthopedic surgeon ever to obtain or the certification or as as the court previously noted the two sets of ha oh bylaws that are cited in the complaint they cite possession of a new jersey medical license as a threshold requirement not something that can be obtained after the fact so in order to be in a position to submit those applications you would need to st attain a new jersey medical license which he has not done and he has not alleged that there would be any adverse consequences to him in attempting successfully or not to obtain a new jersey medical license what he has done is claim that were he to apply for hospital privileges and be rejected that an adverse entry would be made in the national practitioner data back that's not so either and we don't have to speculate about that because that database is created by federal statute and we have cited the statue in our briefing and it describes the sorts of events that are required by hospitals to be reported and they relate to  the status of physicians who already have privileges at a given hospital there is no requirement that an unsuccessful application for employment be reported to the data bank and again we get this from the face of the statute this is not speculation about what might happen already to apply for employment and finally again as he admitted previously there are many hospitals that would would rather privileges to a surgeon who would only wardell it all and not yet certified and we don't have any allegations about the universe of hospitals in northern new jersey as a whole and how and that standing was something we couldn't get past here the district court dismissed this case and did it with prejudice typically and dismissal for lack of standing on twelve the one is without prejudice so when we have to send this back even if we agreed with you and say hey this thing the complaint was deficient but it was deficient not in the way you're suggesting you never should have gotten to the merits dismissed this without prejudice as it isn't that the logical end of your argument well i think the vessel should be with prejudice to earth facts i suppose it's conceivable that in just a future look well wait a nd when you say with the present facts we we don't get to the merits at all under your theory right we just look at he didn't apply for a license he didn't apply for hospital privileges fair go he didn't do the things he had to do to actually be in a position to complain therefore kick the case now you don't look any further than that to get to where you want to be right direction your honor ok then how could how could dismissal be for anything other than without prejudice if that's the limit that we go to well again so yes it's it's conceivable that he could remedy this standing up that at some future point although our brief sets forth no purpose other standing we don't get to your merits arguments do we not without just a whole bunch of dict records we did not purely rely on twelve to six ok well let's let's do you i understand i understand your point it's a practical matter that you'd like to see this with with prejudice but briefing there perhaps you could move on into to the agreement and some of the other things that i'm sure you want to talk about yes absolutely your honor as the as the court noted  that was submitted by a b m s which makes clear that it twenty four members or its halves have different sort of occasion requirements that there are some common themes among the eleven all of them and it doesn't identify my client as among them would except make sense of certification credits from some member hospitals that are because they're tightly related organizations and that those statements those public statements by a t m s clearly looked at in the context of twelve b six where ever is that you maybe you perhaps you could read the advertisement the way you suggested but a fair inference is there put the hospitals on notice if you don't accept and you don't require surgery cations then you're opening yourself up to trouble and we can make trouble for you that's sort of the underlying thing i think we're getting from from the plane absolutely in your interests to do it you're a money making operation you get money from certifying people and by requiring more and more certifications you make more and more money it's a it is a straight up old that's the assertion and i take it the assertion is like weiss you know the pressure it's not the crude kind of pressure of you know each do this or we will need cap you is more subtle but real pressure that if you don't require certification when one look at all these other places that do require certification you've got a low class operation at your hospital and to use that open  to liability issues should there be a problem because you're not taking the steps you need to to have well credentialed physicians treating the patients in your hospital now i again i'm i'm doing some extrapolating here probably would say but i take it that that's the that's the argument that's being made and so that's why i'm putting it to you what's unfair about that that set of inference is why is that a place we shouldn't his complaint and briefing below at no point impugn my client's nonprofit status that is a act allegation it's also an accurate it's being introduced improperly for the st time on this  certification it's not a participant in the market for hospital employment opportunities it's not going to be that it's not mark at that it is something to force its way into and  instances such as this where defendant offers although he won the purportedly tied products the circuit rules are virtually you know a mess and at least requiring some sort of direct has anything resembling a direct economic interest in the hospital employment opportunities it's not receiving rebates or premiums or brokers is or anything of that nature so we don't have a timing violation because we don't offer or have any relationships to the back and product and moreover there really isn't a nd product at issue at all because there's no allegation that my client only accepts privileges at specified hospitals or hospitals with whom it has an arrangement or for example american hospital association member hospitals dr allison is free to satisfy my client's requirements that any one of hundreds of computer hospital some of which are and identified in his claim so there are no fact pleadings that support the notion that the competitive forces current that we are attempting to force him to procure a product that he would rather if you're somewhere else and in fact this this is a product that he acknowledges wishing for to you are so please go straight to the argument you're mr green make ok he said look it's just not so that they he can't take this there are factually it's inaccurate to say he couldn't get traditional privileges he can get provisional privileges or he could have it within that five year window and he still could do that he'd have to take step one again because that window closed but there's nothing about this you're too far past your medical school graduation thing that makes him ineligible that's he's just told us that straight up the facts and how's he wrong what's wrong and mr grannis respectfully is just wrong about that and i looked again last night to see if the the rules ha changed at these new jersey hospitals and they have not changed they only require board eligibility if you're with end that roughly five year period of residency so we're selling you say ideas on jersey when you say these new jersey hospitals the assertion is you you've talked about three yet you said an irrelevant market is the northern new jersey hospitals of which there are many many many so you just haven't majorette you haven't by your by your own requirements under twelve b six pled that this can't be done in any more than a conclusory way and referencing three hospitals of sick there that's what i understand mr hospitals but they're all part of one or a few conglomerates that have the same rules and regulations that apply to all of them and those rules are that you can only get on staff under this board eligibility criteria if you're within five or so years of your residency so mr allison dr allison cannot get on staff at these hospitals because he's and i accept that representation but that doesn't get dr elson anywhere because he he passed part one and he has to take part two which is easier in order to get the board certification so part one doesn't get him the board certification and doesn't get him the medical staff privileges and i want to step back a minute and why is this monopolist allowed to said i have them to present ava said no we don't accept surgeries don it amatory surgery centers you have to have hospital medical staff privileges why do we allow a monopolist to impose that arbitrary condition clearly restraints trait and it disrupts now is that mr green is making all these factual assertions that we welcome factionalism ballad dr elsie could she does this and this and this the mess and maybe he can get there well st of all that's what we have discovered before and i don't think it's oh wait a nd when you say that's what we have discovered for we're just like we're still we're trying to stay just where you want us to stay mr schlafly says within the complaints and he said that in the course of your pleadings in the nd a minute complaint you acknowledged what he's said is true he says you look at the the nd version of their complaint you'll see that they knowledge that there are seven window of opportunity for people who pass test part one to get provisional privileges and then you remove that from the next iteration of your complaint is that an accurate make disappear facts if it is in fact the case because he here's what i'm hearing here are two different stories so can hear from you if you're past a certain window of your medical school graduation you can never get provisional privileges period which is a way of saying that the a b s in a in an act of what might appear to be spectacular self defeating behavior has said we don't want anybody applying to us who's five years past medical school but let's assume that we thought ok that's accurate ok that's the way they're doing it because i would just sit dr alice and i would hit everybody past a certain window right but let's assume that that were the case that that's what you pled what i'm hearing from mr green is yeah but in an earlier version they admitted that's not true what is true is you've got five years after you passed step one you passed up one you got your five years within which to get your provisional privileges and apply take step t that's what i'm hearing him say and i'm hearing him say that that was acknowledged at one point in the course of your pleadings so that's why i'm asking you was an acknowledged at some point or said just not true we plan to earlier in this case of course we've amended it it's certainly not true as respect to dr allison and other physicians in his position well why wouldn't it be let's let's assume for the sake of discussion that if we read that series of many complaints is that you know what it does look like they've acknowledged that there's a five year window after taking step one not not medical degree granting as the start but after passing step one if we thought that that in fact had been said and we accepted that as as true doesn't that cause a serious problem for you in your standing argument the fact that he let that window close and didn't didn't apply for privileges doesn't mean he didn't have the window right the window your honor as a after the residency how i'm not aware of any window after passing part one of the exam i've never seen that in the hospital regulations the the window is five years after you complete a residency and doctor else has passed that as other physicians are too and most physicians are herded through that five year period to to get you know two to comply with these arbitrary requirements and that's how most physicians get in but if there are too many physicians who for whatever reason maybe they go on extended missionary work or trips or maybe they have family commitments or whatever and they get outside that window and a b o s says no we're not going to well it's hospitals it's hospitals that say no we're not going to allow you on staff unless you get board certification from a b o s specifically not from another or certifying group but from a v o s and then so he goes to a b alas nabeel says we're not going to give it to you unless you're on staff at a hospital why doesn't a b us accept ambulatory surgery centers well this is this is sort of the plus factor under twamley where we've caught this monopolists that's acting in a kind of a unusual way where it's actually denying a customer is to nine people the ability to buy their plus factor and i ask i mean what more could be expected of a plaintiff who is challenging a sophisticated monopolists judge sirica you wrote the in re insurance brokerage litigation decisions been widely cited by the way more than one thousand two hundred cases have sided that favorably and you reversed in that case some of the twelve b six dismissals of the sherman act claim and you can't expect a plaintiff to have an actual agreement at the pleading stage in this day and age with the sophisticated restraints of trade they're going on to increase revenue just pled what he could he's locked out i mean that's not you know there's no doubt about that i mean he's locked well there actually is a doubt about that because this way we're arguing this case right ok i think we've got