Oral argument — Jane Doe v. Heart Solution P C

Colleague Judge Richard Stearns from the District of Massachusetts who's returned to be with us for this Case and we will call the case now United States XRL Doe v. Heart Solution P C et al Mr. Cedrone, am I saying your name right? Yes, you are. Thank you. Good afternoon May it please the court, counsel? My name is Mark Cedrone. I represent appellants Nita Pinnell and Heart Solutions, Inc. in this in their repeal from the district court's erroneous grant of Appellee's motion for summary judgment. I'd like to reserve three minutes of my 15 minutes for rebuttal if that's acceptable. Yes, and Going and and I I'm certainly prepared to provide a detailed recitation of the procedural history of this case. We're well familiar with that. I assume given the court's two letters that the court is intimately familiar with the procedural history and I suspect that the court given its directive wants to jump right into into the substance of their two letters. So why don't you take a look at page DA 44 in the appendix. This is in the excerpt that was provided to us of the plea colloquy and I'll just quote it for you. If you don't have that right handy. I have it sir. This is the district court judge, Judge Walsh asking and were your company's Biosound Medical Services and Heart Solution PC paid at least one million six hundred sixty eight thousand nine hundred and fifty four dollars and ninety five cents by Medicare for claims submitted for diagnostic testing and reports that were never interpreted by a licensed physician and Diagnostic neurological testing that was never supervised by a licensed neurologist defendant, Ms. Patel Yes now Why isn't that admission all by itself not game up? Because that's a statement And I don't think anybody's claimed there's something ambiguous about it that down to the penny that sum was Paid for testing that was never interpreted by a licensed physician For testing that was never supervised by a licensed neurologist Your honor and with all due respect I do believe there was some ambiguity in that because you can't look at that question simply in the light Back in the in the vacuum of the question you have to look at it in the context of the whole plea Colloquy and and where's the confusion around those words? Where is in that? Question and that answer is there any room for Ms. Patel to say I didn't understand what you meant it the confusion really is in the connecting of Biosound and heart solutions and who she would not have had any civil exposure at least that's the theory on for from the False Claims Act for unsupervised medical Testing for the company that she didn't own. I thought that she was charged and she pled not only to Being to some sort of an owner responsibility, but in fact that it was acknowledged maybe I'm wrong about this That there was an aiding and abetting Plea here as well. Well, she was she was charged and pled guilty to the one count of health care fraud, right? and there is certainly Beyond that. It's being an owner of is that a is that a Prerequisite is that an element of the of the claim It is not an element of the crime or it's not necessary that she'd be an owner to assist But it is my understanding that with respect to the on the unsupervised Testing that she could only be held liable under the False Claims Act By virtue of being an owner How it where is it where does it say in the False Claims Act that you couldn't lie your head off if you're not An owner, but you still made a false claim. I mean, that's the assertion not that she was the owner But did she made a false claim? Well that she was aware of and maybe Participated in assisting not that she made a false claim I mean, that's that's part of part of the problem here is that the companies are making the false claims? Mr. Patel is making the false claim. She has knowledge of the false claims. She's assisting in the false claims She acknowledged and admitted that she was assisting in the false claims That's that's clear in the colloquy, isn't it? You're all right again with all due respect I don't think there's anything that's actually very clear in the colloquy when you look at the entire colloquy and you see the Confusion when they keep coupling the two companies together Well, that's true in certain questions, but not in the one that Judge Jordan just read Again your honor I Don't believe it's fair to assess one question in the back in a vacuum When we're talking about a whole set of facts and circumstances That that sort of color You know the the the overall situation Well taking it out of the context of simple question and answer in a plea proceeding What do you make of the larger issue of this topple? I mean, I'm thinking now 37 31 e Which basically says you can't disown Any prior proceeding criminally in a civil proceeding that Involves admission to an element of the offense if ownership's not an element I think all of the requisite admissions are I believe that provision of the false claims act talks about the same transactions, however, I haven't seen and I'm not going to suggest in my research is as Compelling and as thorough as the courts, but I I haven't seen cases where One is is sort of charged with nonspecific One is convicted of nonspecific Actions that are then later alleged in the criminal in the civil complaint And that's where the collateral estoppel applies here where you're talking about it. I guess it's a 2006 to 2000 an eight-year Scheme to defraud where you can be culpable from a criminal perspective for doing one minor thing I don't believe that the doctrine of collateral estoppel whether it be common law collateral estoppel or what I think is even more narrow The statutory collateral estoppel I believe is more narrow than the common law collateral estoppel Well, except for the purposes of argument that we were going to say, okay, that's true. She's not collaterally estoppel And Help us with Your argument that somehow ownership is relevant here I thought the False Claims Act had three elements you you Present or cause be presented to an agent of the United States a claim for payment. They that claim is false Yet there's a false or fraudulent aspect to it and and that the defendant knew it was false and fraudulent at the time How does how does ownership get into there your honor and again, I The the issue was briefed by predecessor counsel I looked it over and and felt that the briefing was sufficient on that but it was my understanding that for the nature with respect to the nature of of a of a violation that relates to this the the false representation concerning whether sufficient supervisory by medical supervision by a medical doctor was was was in play that the Pardon me, but the that ownership and the being the person responsible for submitting that the problem is the plea colloquy does not Articulate what ms. Patel did with respect to? the heart salute with respect to Bioscience and and its submission of of what I'll call false city relating to unsupervised testing It speaks at this point. You're it sounds like you're attacking the underlying Plea colloquy itself and saying she wasn't there wasn't a valid basis for a plea. Oh No, well, we we are actually in another matter The plea colloquy is being attacked, but that's beside the point for purposes here. We have a plea colloquy But it can't be beside the point because we've got pretty clear law that says you're not allowed to do that You can't come in collaterally attacking and after the fact and that's that's why I said in another forum We are we are attacking but it's beside the point for this for this matter because I'm stuck with the plea colloquy in this case I acknowledge that that's what I was about to say, but the plea colloquy for a scheme to the fraud offense Is a lot of saying I'm not attacking it But you are attacking it in the very but in the very next words You're about to say I mean I could see him coming out of your mouth like there's a little word balloon She didn't say she was owner But if she being an owner is not a piece of the of what you have to plead to In order to be guilty who cares? Because and for purposes of the plea colloquy, you know accomplished liability being something other than an owner may be sufficient for Purposes that that same theory of liability doesn't necessarily translate easily over to the False Claims Act, okay So what's your law? Maybe you should ask it this way if you're wrong that Ownership is Important in this civil context. Is that the end of it for you? I mean, is that what you're hanging your hat on that's that's one of the primary issues in the case Plus the fact is that the record does not establish That all of the 1.1 million dollars was not done under some level of supervision Well, we've just read that question, right? Yes, she says You were paid this amount and this was all there's no there's Where's the I guess we're getting back now into a circle You're gonna say that that's ambiguous because it's something that was said earlier, right? I mean you'd acknowledge at least that that sentence and that answer standing on their own do not appear ambiguous Do they it's only a few if we buy your argument that somehow ambiguity gets imported from elsewhere in the colony that there's an ambiguity In a vacuum that question does not appear ambiguous. Let's put it in a more gentle context Aren't you really trying to get out of the dollar figure? Yes, I mean, that's it's not we're not trying to get out We're trying to get out of a summary judgment grant of a dollar figure We're not suggesting that there's not some degree of liability here. We just only for heart solutions For for ms. Patel and for and for heart solutions, that's correct Yeah on on the on the issue of when there was a neurologist with the clerk's office sent out a Requesting that you be prepared to to argue the question that are can you create an issue of fact by a statement as a statement when Alleging there was a neurologist from such-and-such a date to such-and-such a date statement is not sworn is not made under penalty of perjury it There is considerable case law no precedential case from this circuit But nevertheless from other circuits that that is insufficient to create an issue of law Several points on that and that that is the the last letter that came from the court and I did spend a lot of time since then looking at that I See my time might be up and I'm happy to get it, please First with respect to the notion of precedent that there there seems to have been two cases That and the only two cases that were reported Court of Appeals decisions One of them with the Fifth Circuit case that predates the night 2010 amendments to rule 56 the other one the in Ray World Trade Tower litigation Actually was a direct violation of a court order discovery order where the court said you have to say something under oath or else They didn't submit something that met the requirements of 1746 and hence the case was dismissed for that violation There there is no reported authority that suggests And and especially in this circuit that suggested a statement has to have a perjury juror at associated with it rule 56 itself suggests although the comments sort talk about 1746 and unsworn declarations the rule itself suggests that That the document had that the asset that this statement has to Be something that the individual has first-hand knowledge about would be in a position to testify would be admissible if if if accepted and so forth and so on and and with respect to that I Would direct your attention and here's something that the as I said rule 56 talks about affidavits and declarations And if you look at the comments one might say well the declaration they're referring to is an unsworn declaration under 1746 the problem is the New Jersey the district court rules in New Jersey talk about something called certifications and documents that comply with said with with the compliant with the provisions of 1746 for the local the local rules in New Jersey couldn't overrule the important impact of the Federal rules of civil procedure right and I understand that sir and I I would have if if we read and understand rule 56 to require an affidavit which in common parlance means something that you've sworn under oath or a declaration of the sort that complies with You know section 1746 if that's if that's what we understand it to mean What difference does it make with the what the that the local rules might use the word certification If that's what the court understands it to mean and the court would decide that then the court would be issuing precedents for the world to follow for going forward in this case first of all there was the the rule actually provides an Opportunity and a requirement that if something isn't sufficient for purposes of summary judgment determination the other party object that would be I guess 56 C2 there was no objection here. There was a claim that these were sham affidavits But that there was no there was no objection that it was procedurally deficient which then it could have been cured The reality of it is is that document? Seems to comply very much with exactly what the local rules suggest and I understand the local rules are Trumped by by by the by the rule itself But the rule itself on the face of the rule is is is mildly unclear the comment does refer To 1746 and in all fairness to this court. I there is a Reese fairly recent unreported decision I think authored by Judge Ambrose in which there I think there's some some dicta that might suggest By me, but I'm serious. There's one by this judge right here. There's one by Judge Stapleton There's one by Judge Hardiman There's a whole lot of unreported so maybe and and when you say you could find no other cases There are other reported cases from other circuits like file versus Rogers Seventh Circuit case Affidavits are admissible in summary judgment proceedings if they are made under Penalty of perjury only unsworn documents purporting to be affidavits may be rejected now That's dictum, but nevertheless When you say there are no other cases, that's not true Your honor I apologize for having missed that that case then I spent a lot of time looking at this paying Close attention to what the law was in this circuit I I looked and traced the Fifth Circuit case that the court asked us to take a look at But again As I see this This this and and what's interesting is all of the parties treated this I mean, it's actually referred to as a sworn affidavit. I don't know where that came from in the police I don't know either But but it just seems that there is a practice that I think emanates from practicing in New Jersey where this quote Certification. I don't know what a certification is to be perfectly candid with the court Although it seems to be a common practice and parlance that's used in New Jersey all the time if we took I'm sorry good when you are dealing with What is claimed to be false representations and you have an affidavit attempting to counter those false? Representations if that's not made under pain of perjury It gives me great pause to consider that it should be taken under consideration because If the claim of falsity is true in the first place, I Think the claim that there is no falsity must be made under penalty of perjury if we're going to really trust What is being presented to the court? And I understand the court's concerns and that's the the concern that is echoed in all the courts that have addressed this issue My point here is that there was an opportunity And a protocol to say wait that document is not sufficient the district court didn't say it's not sufficient Because it didn't comply or have 1746 language the government didn't object to it on that basis that everybody just referred to it as a quote sham affidavit Which is sort of a different concept which really doesn't apply here because you're certainly allowed to tweak Ambiguous statements and that's what that statement really is the the particular document which is the certification of Curtis Patel Has all of the indicia of Reliability that would one might ask in or or expect in a declaration under 1746 except for the language Well the word sham isn't that fairly a word for false or fabricated I Amplying a certain level of disbelief yes With the sham affidavit doctrine and and until I started look at this. I didn't realize there was was such a deeply Considered doctrine to Sam at the sham affidavit doctrine says you know if you say something very clearly and precisely and then at some later Point for a purpose that's in your interest to say something different you say something different we can disregard that The the context of what's being said here is really an explanation of to what I would suggest are ambiguous points in the plea Colloquy, I don't think they're direct contradictions I mean you know one goes to the ownership issue in the end and the other goes to the period of time for which there Was a supervising doctor And then I don't think that those were I don't think that they're direct contradictions and hence quote Would even qualify under the sham doctrine exception if we were to accept even if we were to accept the certification on its face Where where does mr. Patel say that there was in fact supervision going on? Well the declaration says that he had a doctor the declaration says that Miss that dr. Tinkleman agreed to serve as the testing supervisor, and it says that he that Mr. Patel sent him Compensation for serving as the supervisor But I look in vain for anything that says he actually did any supervising I think one can can infer from he served as a super But I mean through the exact let me pull the exact language this again, sir It's paragraph 4 from the 834 I was introduced to Brad Tinkleman MD through a friend Dr. Tinkleman agreed to serve as dial sounds neurological So there's a statement that says he agreed to serve if we're trying to be precise as you're demanding With respect to the plea colloquy. I don't see anything there that says he actually served and did anything With all due respect, I think if someone says they You know agree to serve in the context of this you one can infer that they did it I mean we're talking at the summary judgment stage here where where whether this is an issue to be disputed I mean, that's really where we are You expect if somebody was going to raise an issue of fact that they would raise it precisely by saying I hired dr Tinkleman and he actually did the work And that's a well Dr. Tinkleman agreed. He would do something but not say anything that he actually did I would have expected that Many things that were done before the district court and before this court were done would be different would have been done differently I I'm stuck with this record just as the court is But I Agree that that statement could have been More specifically Articulated. I don't necessarily often agreed to get rid of his old neckties, but he very seldom did well, I understand that. Yeah, I Appreciate that I represent the United States the appellee in this matter The court asked the parties to address two issues both of them go to damages and for the record The government is also asking the court to affirm the district court on liability That's really the ownership issue and I will get to liability if there's time The court asked the parties to address the issue of curtailed Kirtish Patel certification we went through this and discussed already what the certification said and what it didn't say and You asked us to look at both those two cases the client case and the World Trade Center disaster of indication case Both of those cases make clear that if you have an unsworn document, it's not under penalty of perjury It didn't use the words true and correct. It can't defeat summary judgment. Why don't you meet? Mr. Sudhran's point head-on He says there was an opportunity for you to raise that as a problem And if you had raised a technical issue like that as a problem It could have been addressed and there would have been you know The language of 1746 affixed without a problem, but nobody raised it So it's not really fair for the case to turn on that at this point. What's your response to that? Your honor the government didn't raise it and it wasn't raised in the district court by anyone One thing I'll say though is that where it says he mentioned that there's some language somewhere where someone refers to it as a sworn Affidavit, I believe that was needed Patel's previous attorney He referred to it as one affidavit, but the reality is we didn't raise it What we did say about that affidavit is that it really is a sham because it Conflicted with his plea testimony and that's really what we focused on and that's what the district court accepted in hindsight We could have raised the issue and said it wasn't under penalty of perjury He had every incentive to get it right because he was facing a monetary judgment in the civil false claims that case But we didn't raise it The reason we argued that it's a sham affidavit is because when he pled in the dish in his at a sentencing court at his end at the When he took his plea And I'm quoting now really from the district court below. He said the district court rights both admitted that between 2006 and 2014 So we've got the years there They falsely represented to Medicare and then he goes through what the false news were about the neurological testing and this other scheme And so the district court's point is that they said he said the exact years when he did his plea colloquy And then he puts in an affidavit that says well actually for some of those years We really didn't have we really had supervision and our point is saying it was a sham is from the briefing that it doesn't It's not specific enough that it that if the court had meant to say For all those years in all periods or something like that It could have said it but it didn't say it and so it left some ambiguity in the record That's what I understand them to be saying That's what I I believe that is what they were saying And our point is simply that the court gave the specific years and the response to that question was not unambiguous Yes And then he puts in a certification that is unsworn it is unsigned where he says actually that's not really true Because we did have supervision during some of those years But our other point about the whole issue of because the other the second question that the court asked was whether there's really a genuine dispute of a material fact and part of what we're saying here is there's no genuine dispute for the reasons that I've just said because whether you consider the certification is just shouldn't be considered competent evidence or Whether you agree with the district court that it's just a sham it doesn't raise a genuine dispute of a fact because because He's basically Well, we think there's no dispute because the affidavit's a sham but we think more the government argues more importantly it's not material that even if there is a dispute it's not material because When Nita Patel pled part of what they're saying here is that the plea colloquy colloquy was Ambiguous and it wasn't clear if the judge was talking about some of the time or all the time Right, even if you read every inference in her favor that she thought she was just pleading that At least in certain periods there was no supervision When she gets to the end of the colloquy and the court says to her and so the Unsupervised number and then for the other scheme, which is not an issue. Is that 1.66 million? She says yes, so right And I understand this is going to be saying it's not fair to view that in isolation that somehow the earlier ambiguity Infects that what's your response? Well, I think what? My response is that even giving her the benefit that that earlier ambiguity even Resolving that in her favor that she just thought she was talking about was at least some of the testing unsupervised even if you give it in her favor what that really means when she got to the end of that colloquy and the judge put That very pointed question in front of her about unsupervised tests and put a number in front of her and she said yes Even if you view it in her favor what she was saying at the end of that was yes for those tests That were unsupervised and I'm you know, she's saying I'm only talking about certain periods I'm not talking about all periods but at the end of that colloquy There's this very unambiguous question where she says yes for the unsupervised tests. This is the number So even if you give her every inference and every benefit you can give her that she didn't understand the previous questions She's not challenging that final question. She didn't say I didn't know what unsupervised meant or whoever it was phrased That's the one question. She really doesn't challenge it. She doesn't say if that particular question is is Unambiguous is ambiguous. And so I believe if you read everything in the light most favorable to her Even if you agree with her that she's saying that I thought this was just the number that was backing out the supervised tests She still is stuck with that number and that's why even if there's a dispute about supervision, it can't be a material dispute Go back you make the argument at one point in the brief that liability is an issue that can be separated from the issue of ownership and I understand the Point of the argument, but does that answer the question of the amount of money? involved So as can you separate the issue of ownership from the was at the 1.6 million dollar figure that we're talking about well, the ownership certainly does go to liability and Certainly if she's if if somehow she's not liable because she wasn't an owner which certainly the judge if the government disagrees with that proposition But obviously if she if she gets away on liability Then I suppose it just means that it's her husband and only her husband. It's stuck with that damages number but the point about ownership which was discussed before that does go directly to liability and On that issue the government's point has been consistent that it's simply not that simply can't create a material dispute There's nothing material about liability that material about ownership because it's not an element Is that what you're saying ownership is not an element of the False Claims Act? you have all kinds of people and all kinds of companies that are Found liable under the False Claims Act without being an owner of the company. You have other things that you have to Be liable for you have to be knowingly Submitting these claims and yet they have to be false claims, but she did in her plea allocution she allocated to those things that she made false that knowingly made false statements to the Medicare program that she submitted these false claims to Medicare and that She and her husband were paid a certain amount by Medicare. So okay stop for just a minute now if you had to Deal with this case you were sitting up here and take out the one question, which We've questioned. Mr. Cedrone about in which you were focused on now that summing up question at the close of the colloquy How would you deal with the issue of estoppel because It's It's not the case. Is it that? She pled guilty in a way that locked her into every element of a False Claims Act damages Allegation is it Well the government's position on estoppel is certainly from a standpoint of her liability for those Assume assume we were with you on that. No, you're going to damage. We're just on damages. There's no Nothing in the plea colloquy that would prevent somebody she's not a stopped from coming in and saying yeah yeah, I pled guilty to the crime, but not to that whole number and That that is correct the government's it's not the government's case that she is stopped from challenging that number The government's case is simply that on summary judgment Even if you give her all the inferences that she's asking for She's still stuck with that number from it just from a package of the question she stuck with that number because Even if she's right that all she was thinking in her mind was I'm just pleading that during certain periods There was no supervision at the very end of it when the judge says to her and so for the unsupervised tests, right? Right, right. She says that comes down to that question That's why I said leave that question aside if you didn't have that question You couldn't be in here arguing there's no issue of material fact or at least you couldn't do it on the basis of some kind of an assertion of Of collateral estoppel because collateral estoppel just doesn't apply when we're talking about the damages piece, correct, correct So it is not the government's case that collateral estoppel applies in a plea Elocution to damages and if we didn't have that number then that's correct There's nothing else in the record that would give the the damages amount. That is correct So what we're what the government is arguing is that we do have that number and we do have her testimony Even if you give her the inference she's asking for That number still leads to the idea that that's the number front supervised tests So in her theory of the case for the unsupervised tests, that's the number she's stuck with What she's trying to say about backing out the supervised periods That's baked into that number because she said that is the number for the unsupervised tests So even if you give her every benefit of the inference that of what she was thinking when she said yes We didn't have supervision during certain years. She's still stuck with the fact that at the end of the day She said that's the number for the unsupervised tests. So whether it's As a point of clarification To say that the concept of aiding and abetting does not carry over into the civil Iteration of the False Claims Act is that the case? It's not an area of my expertise Well the what we're saying here with her liability under the False Claims Act It's not I'm not sure if you call it aiding and abetting but what we're saying is that her plea allocution on liability Did make her directly responsible for the fraud on a joint venture theory or? On the theory that that she was actually the one who was made the false representations. She was the one who? Knowingly made those representations she knew it was illegal and those were things that she had every incentive to Challenge the questions. I agree the damages number She might not have had an incentive to challenge that but she had every incentive to challenge the questions about liability Because those were the things that were going to ultimately send her to jail So if she felt there was ambiguity, that's the question that she should have challenged and she didn't challenge those questions And the other point I just make about where it is. Where does the responsibility for ambiguity lie though? If there's ambiguity in this record, is it who gets the benefit of the ambiguity? Does the government get to say like you just said? Well, she should have spoken up if she thought that was ambiguous or when you're coming in and trying to hold somebody Responsible on the civil side and you've got the burden of proof. Does the ambiguity cut against you? the government Well, I think when it comes to things where she is Collaterally stopped from challenging Then I think the ambiguity is really an issue for her because she's collateral in a stop from challenging that But if there's a compound sentence that is Confusing She isn't collaterally a stop from from challenging that isn't that the responsibility of the prosecution to say? Hey, wait up. Hold up your honor. Could you simply add re-ask that question? Dividing it between each of the defendants rather than this complex compound question well, the government's position is that the whole issue of Ownership is in any event. It's it's not material to our False Claims Act liabilities So, okay, but but as to the criminal liability if if the judge asks a confusing question in the colloquy the Prosecution can't just sit on its hands and say oh boy. We've got him in ways. We never even thought we'd get him No, no, certainly the government would not want to do that. That is entirely correct The government would not want to get a conviction based on ambiguous questions. I don't believe that's what happened here well, I mean you have an ambiguous question and and a compound question did you and your husband own and operate two corporations and From that question. You can't tell who or both owned or operated which of the corporations I think it's I think it's a very bad question. And I think if the government wants to wants to question that question that they should have done it back then but I Don't think we need to worry about it now because I think there's other Elements that are more relevant to what we have to decide today And that's been the government's point that the district court the government didn't say ownership matter to False Claims Act liability The district court didn't say that it was necessary for False Claims Act liability It's an issue that Nita Patel raised and we're just trying to deal with it up here, but it was not essential When the government says we were never arguing that I mean you were arguing that it was a sham Affidavit in part on the basis that you were saying he Everybody admitted these things in the colloquy these things including Being an owner and being responsible for by a sound right? I mean wasn't that part and parcel of the assertion that this affidavit should be ignored because it's a sham We did put it in there because it is certainly evidence of But it is certainly not necessary to the government's case So you won't let go but you agree with me that it's not necessary I'm sorry, you won't let go but you agree with me that it's not necessary It's it's it's not necessary to the government's case that the government didn't argue that it was and The district court didn't find that it was and the other point I would make simply about ownership Is that my understanding from Nita Patel's brief is that all she's really saying is I was not a record owner And that's a very carefully written phrase, which basically rules out all kinds of other things like for example Being a beneficial owner of something. It's a very narrow Orderly kind of phrase which basically says my name wasn't on the piece of paper, but it's a husband-and-wife operation So I think things like beneficial ownership would really come into play in that kind of situation I'm out of time if there are any further questions All right, thank you, mr. Grable, thank you It's just a gun. We'll hear your And I want to apologize because I want to actually clarify or correct something that I said earlier because earlier When I was Focused trying I assumed the court wanted to immediately address something else I wasn't focused on the court's initial question But but even in a vacuum this question is somewhat ambiguous and and and here's why and Where your company's two companies? Biosound and medical Biosound medical services and heart solutions paid at least and then the number is mentioned by Medicare for claims submitted for diagnostic testing This question does not Eliminate the possibility that heart solutions could have received one dollar Well now you're back to ownership. Oh Yes, sir, yeah, okay, so if we disagree with you about ownership being important Your are your argument collapses, right? It may collapse on liability, but it does not necessarily collapse on damages How so because I'm not again sir as I understand the False Claims Act on this particular theory Just because somebody well, let me let me take separate with respect to the the the issue that was before Judge wall taking the guilty plea that he was establishing a factual basis for the elements of that offense, so Helping doing you know just knowing about something and doing one thing to further that could be Sufficient and and and many times facts are articulated Yeah, that's no disagreement with that, but let's focus back on what we're talking about here, which is the damages piece I think we're you know let's let's stay away from ownership I mean they stay away from liability and just focus on damages for a second because Here's this here's the question the question is you know we've read it We don't have to reread it, but she acknowledges with a simple. Yes that 1.668 million and change Was paid by Medicare for claims submitted that were never interpreted by a licensed physician Diagnostic neurological testing that was never supervised by a licensed neurologist, okay correct So she's acknowledged that though that sum of money was associated with the unsupervised with no supervision at all with respect to that That's correct. All right. Where's the ambiguity in that the ambiguity is for which company sir, and why does that matter it? It matters because just because she knows something it doesn't mean she's responsible for it Because she pled guilty to it now you're back to liability right that's why I'm trying to get you not to focus on liability Focus on the damages on the damages with respect to the number It doesn't have any bearing at all does it she's admitted that that sum of money is the sum of money That's associated with the unsupervised work, correct She has admitted that that is the sum of money that someone could be held liable for For the unsupervised indeed yes, so now you're on liability What isn't true earlier in the plea colloquy? This is the one time the government awakes from slumber is that the judge walls began by saying and he gets the years wrong Between 2006 and 2008 yes ever says no you have it wrong your honor 2006 to 2014 yes the question that follows is limited to biosound So even though she always accepted the dollars from heart solutions the question The judge's inputs after being corrected is the years did you and your husband? Falsely represent the medicare's neurological testing being performed at biosound Was being suppressed etc. There was no mention of heart solutions in that question. She says yes That she and her husband were responsible for what was done on behalf of biosound with respect to the attesting claim yes, sir And I thought that was for the four hundred thousand dollar component of the case. That's not being contested Okay Appreciate counsel's argument, we've got the matter under advisement and we'll recess