thank you and good morning may it please the court my name is robert sherlock i am counsel for the plaintiff or later dr david to tan in this case this case arises out of the dismiss the case in some cases some situations in some ways is a parent dramatic and straightforward false claims act case it's a case of in our view and intentionally defectively created production line if you will the production in this case arises out of court is undoubtedly aware of a agent orange related action that the department of veterans affairs contracted with q t c to perform reviews on veterans files from the vietnam war era in two different acheson of reviews q t c was not to determine at the end of the day the entitlement to benefits the entitlement to disability compensation arising out of changes in the definitions and extension of definitions of of presumptive diseases under the agent orange and the neighbor one and two and the neighbor class settlements following the vietnam war rather what q t c was contracted and obligated to do was to review in a first process some sixty five thousand veterans claims files to see if an earlier date of in parliament may applaud i the second and it was veterans files to determine the plan for later in this case his medical doctor who was working as a claims file analyst for cutie see and observe in the course of his employment and the material that was given to the claims file analyst now let me back up a bit the job of cute t c was simply to do an initial screening to see if that claim file contained any medical evidence that meant certain definitions in order to mark those on a form that the veterans administration provide to send to the v a as a yes you need to look further at this for potential benefits or no there's nothing in this file send it back to the regional office and put it on a shelf that's the end result of the process so while there's an assembly line process if you will that  more than adequately details is this is a case oh a systematically span op or defective quote unquote production line for that is that the sol reward in this case for the sole process variable was speed of reviewing the files the evidence in the case the complaint details that huge p c was paid on a per the claims file analysts were paid on hourly basis after claims analyst reviewed this to go through and find what's in the record it was passed to a licensed medical doctor for a signature constituting a qualified medical opinion that yes there's something here until there isn't and then send it to the e v g a adjudicators or not in the case of the medical doctors they were paid per signature were paid twenty five dollars for every file they saw this is a system designed to be rewarded on the basis of speed and volume not accuracy hourly basis the claims file analysts back up the process who walked through the falls and the pressure from management as evidenced in the complaint was were not get enough done were not given enough time you need to do  correct they had no particular set that do anything to speed up the process that they had incentive from management publishing the statistics and creating workplace pressure to not fall behind the economic you know and said that was our doctors at con the ones who are getting twenty five dollars per view right correct the doctors were paid twenty five dollars for each she meets pleading standards under ninety and twelve six ironically in the course of this process when the ninety five thousand files came back around for a second review that had been done previously and from his knowledge as medical doctor looking at those and seeing whether or not the file containing such evidence that was denied in the first slowest person in the claims file analysts group because he was in those therapy but what he saw in those three review sheets were affirmatively false statements affirmative statement saying there is no evidence in the record missing actual reviews and actual medical records from a v a hospital and sources of the people's reviews i mean we know what he did that how did he know but with the that he knows what other folks did from those review sheets or with the review she's here access to them scuse me that he had access to these she only know not as they went out only with those knowledge of what was happening his knowledge of what was happening was watching him in the workplace was seeing that the the the knowledge of what was happening what's his watching it in the workplace his seeing how fast other people were doing things his seeing mistakes that doctors were making their details in the complaint for example files where the the review she that was actually filled out that had very specific questions that were mixed up in the file somebody got them all mixed up and were handed over to the doctor signed him anyway not noticing that review she didn't even match the filing signing himself about what was happening i understand that he did things that he knows that what he did he was slow whatever you know it was but how many find out about what these other people were doing he was there what for three months now he worked there for over a year low over a year so i just want to find out how he knew what everybody else was doing and addition to what he observed personally in the workplace he could tell the examples of falsity that he had this are those sheets came back around and he looked at those yes he had access to those yet accessed those because they were already in the file that came back and he said affirmative statements on the it's not just no evidence an affirmative medical statement saying there is no evidence in the file of this condition this condition this condition missing the luminous records some review process that affirmatively contradicted a manual produced by the v a as also many excerpts of record saying you know neber review for q t c that document was not given to the claims file analysts i'm just curious procedurally if we were to agree and say that this was not a proper disposition by the district court this is an open up to massive discovery i take it i mean part of the lake right well it would open up depending on on the nature it could open up some discovery issues it could also be  sampling of the files because they're all recorded the position a go back to the v a disposition be go to further review that could be done by sampling and that would be a separate issue for discovery management by the district court they have the experts to work along with you i guess things like that we would we would have to get expert just the plaintiff or later we have to get explicit the sampling experts of things of that nature excuse me recently went back to the regional office yeah and the city and the claim was sent through salts lee saying that they had completed the review process they were obligated to do that's a process i have he was not a physician and doctor reviewer so he was not paid the twenty five dollars per signature he he he is that he's calls i'm a doctor he went to medical school i believe but he's not a license physician in the u s so he was not in the twenty five dollars per signature thing he was one of the claims file analysts he was paid a straight salary correct correct and that's it in the excerpt of record twenty four it's in the performed poorly that's it there's no there's no contract requirement noted anywhere in the record for any of what what the plaintiff is complaining that in transit i think the problem as i see it there is no contract because you did not furnish the contract the contract was in your sole possession i think you did submit snippets of parts of the contract to support you know your thesis but where is the contract he doesn't have the contract well he doesn't and the false claims act is for whistleblowing insiders well he's an insider tip he has personal knowledge he was there for apparently over a year he goes specifically what was happening what was not happening he has the best knowledge of all his own personal observations his own personal experiences and so he should not be able to go forward because you hide the ball from him and don't produce the contract what i mean missing here well it's not hiding the ball your honor  a piece of the conti alleged he alleged a contract requirement and by golly given the contract not we get what we provided the district court which we're allowed to do with if he says some piece of the contract blowing insider he complains how do you do that i mean i just i'm curious i understand he's a whistleblower he's not a favorite employee i get that but how does he have produced a contract which is in us so position and you know voluntarily releasing the contract isn't required in all cases and it's not required here and the fact that he doesn't have the contract how does he know what's walleye if we don't see the car maybe i'm being naive it's i can give you i can give you an example i have these cases all the time this if if an employee of a company works with a group of people and they're required to perform a test and everybody is performing the test and as the part goes down the assembly line they perform a test on it if if a guy sees the guy next to him skip the test he just witnesses with his own eyes i mean he's skipping the test then he has seen a fraud occur what what the pla here is seeing is nothing he seeing people work more quickly than he's working that's all he's seeing and from that observation he is guessing that well there must have been a requirement having to do with the pace of the review they're on but the i remember clearly trade i went to medical school these other people that is using you saying that there's there must be a requirement somewhere that  reviewed and he thinks that from what he has seen me says some files weren't reviewed and the company presumably got paid by the government it's all it's all a presumption it's lacking in specifics at every step of the way including as i was saying the observation that a wrong conclusion is being made on purpose there is no evidence of that the in the examples that he cites are coming are incomplete they are at best they're not even errors one might be an error but that's the best that could be said about it but there are incomplete in the following ways he says that a claims five man a list reviewed thirty in one day and according to a performance statistics sheet maybe that person worked overtime maybe it was really easy to review the file as the record reflects as we say in our brief some of these files are quite large but the determination can be made in  in a minute or two because what you're looking for and the other sort of mischaracterized mischaracterization of the plaintiff's case is that these were supposed to be medical diagnoses this process including the checklist is not to have a doctor or a claims violence make a new diagnosis it's to look at the record in the first phase it's just to look for dates was there a claim was the already a diagnosis that was the purpose and then in the second phase then they were looking for more information but his examples all are about the first a says h said when in the second phase when files came back to the c f a as to look for the new the new condition he looked at the old condition stuff and he came up with six examples in each of those those are the things with the initials of the of the veterans in every one of those situations there's an essential piece missing so for example in the one for j r m at coronary heart disease prior to two thousand and six but that's not evidence that there was a cardiac condition between one nine hundred five and two thousand and six there's and there also was no evidence as alleged in allegation  complaint he's not alleging that that veteran filed a claim for a cardiac condition between those years and that's required for eligibility so each one of these examples we describe in our brief why they are wholly incomplete this is this is a case where it's a search for an unknown wrong by someone who was inside enough to be upset about things but not informed enough to be a reliable whistleblower the who what when where is all missing who is a few names of people somebody rearranged workspaces somebody distributed productivity f i'm sorry it's not i'm not terrorizing as a secret at that stage of pleading we're not even really supposed to put in anything outside the complaint we put in the one thing because he referenced it and it was  just and you're allowed to do that but it's his job as a key tam whistleblower who is hauling this comp wants to haul this company and according to defend it make no uncertainty about it he wants all one hundred the district or court opinion noted that the plaintiff could not allege contract what the contract requirements were that he appeared from his complaint to be making things up as he goes along about qualifications about training nothing is cited by the plaintiff these are all on their face made up allegations and that's how it appeared t i don't know you know rule nine b is to prevent this type of speculative pleading and in part to prevent a burden on the defense not just on the defendant but this burden is going to fall on the veterans administration because they have all the records and the government declined this case yet they're the ones who are going to be having to do all lot of work if this case goes forward  with regard to the the speed and the pace of the work again there is no he's not citing and there is no requirement to go at a certain pace the checklist and this is really what influenced the district court to dismiss the case that the this case began with the plaintiffs saying ah the checklist there's this checklist i've got it because i was a worker there the checklist is the scheme using the checklist is the way of shortcutting what the company was supposed to do it's the checklist that's the bad thing and that was in our first motion we took the liberty of saying won't here's the checklist and it shows that it was the v a s checklist that was the requirement so his second amended complaint says oh ok well it's not so it must not be the checklist that's the fraud it's let's see  the check us wasn't fill out properly because everybody around me went too fast that's why it was so apparent to the district judge that he could not make a proper allocation of of all of the necessary aspects of what the fraud is and you know judge judge reinhart your decision you're on the panel in swelled and versus united health care it's an interesting nine b case because part of it was found to be except the ball with regard to some of the defendants but with rebel occasions with regard to the other defendants did not meet nine b and if you go back and look at that decision the statements that the court made about the inadequate pleading are verbatim what you could say about about this case so he says other things here he contends that there's no stand the law as well as substantive training for review is what to look for the files there's no v a providing resources for the review is no review process for th quality or accuracy of the screening and no read the review department to issue a quality and they will be that this contract may say a lot about that and what was supposed to do happen and what did not happen and it seems to me for pleading point of view you could have attached a contract is referenced in the fifty six pages of of the complaint here you certainly could have attached that actually is permissible for the cleaning point of view to do that not required to and really i believe that when you want to be intimated already tried to but that may be the problem with your case how i'm i really fail to see how the problem with with my with cases are about and they in order to haul a defendant in purportedly on behalf of the united states government this company's primary customer you got to have something and that's what the ninth circuit says that's what all of the courts say it's what the supreme court says about in escobar when it talks about the materiality standard it's a big distinction between somebody complaining about lousy performance and somebody standing up in federal court saying the government your contractor cheated you you got to have a lot of information to come in there and it's not the defendant's job to handle anything any other questions for me all with submit on that to clarify i did miss here the question when you asked about dr tan's rule he was claims file analyst was paid hourly i miss i miss her the question and thank you for clarifying that for not true multiple documents referenced cited and attached both in the excerpts or record and in the complaint including the veterans administration's own guidance to  should be reviewed to ensure the documents in the file are in chronological order and then the volumes with evidence or correspondence dated september twenty fifth one nine hundred eighty five to the present must be thoroughly reviewed to determine if there's a potential basis for a document that the relator had why were there successive complaints because at each step following the unsealing the rollator was able and we were able to develop more evidence and information specifically to fill in that gap the fact that he didn't have a contract now question is the contract publicly available to be perfectly honest with the court as i would be nothing but this case is attracted media attention the media stories both a single air broadcasting and mcclatchy newspapers us reported sought out those who for your requests and those are available as attachments to those we did not have that nor could we make a formal request or run afoul of the government report public disclosure issue another question very simply for example and then your complaint now to attach the contract i mean is that what you want us to allow and my esteemed opponent does not argue a sufficiency of pleading in his talking about oh there's alternate explanations for everything that's an issue of evidence not issue of pleading initial pleading stage and the complaint articulate who watt when where and how and additionally articulate why for a false claims case this case was dismissed because in essence the trial court we leave since we didn't have the contract we couldn't articulate anything wrong and since we never have the contract there's no point amending because you don't have a contract and the selective attachment none of the contracts despite the declarations from c t c to that effect articulating saying this is the contract