[00:00:10] Speaker 05:
It looks like we're ready.

[00:00:11] Speaker 05:
Go right ahead.

[00:00:12] Speaker 01:
Thank you, Your Honor.

[00:00:15] Speaker 01:
Tim Beck told on behalf of the appellant, the Center for Asbestos-related Disease, which I will often refer to as CARD.

[00:00:24] Speaker 01:
I'd like to reserve three minutes for rebuttal, if I may.

[00:00:27] Speaker 01:
You bet.

[00:00:30] Speaker 01:
After the asbestos problem in Libya was discovered back in 1998 and 1999, the ATSDR established a screening program.

[00:00:42] Speaker 01:
And CARD was part of that screening program.

[00:00:44] Speaker 01:
What happened was is that CARD would diagnose people with an asbestos-related disease

[00:00:50] Speaker 01:
And then there had to be a confirmatory outside read before that person was eligible for the medical treatment provided by the DHHS, Department of Health Human Services.

[00:01:02] Speaker 01:
In the alternative, there could be two outside reads that would enable someone to have that medical care.

[00:01:08] Speaker 01:
And when Congress started to consider developing an Affordable Care Act, Max Baucus came to the Card Clinic and said, how can we make this permanent so we're not subject to a series of revolving budgetary issues with DHHS, and how can we make it easier for people to get screened?

[00:01:27] Speaker 01:
And working with the CARD clinic staff, they established the language of what became the ACA Libya provision, which is that CARD would have a diagnosis, and that diagnosis would qualify someone for Medicare, permanent solution.

[00:01:42] Speaker 01:
Or instead of having two outside reads, you only needed one.

[00:01:46] Speaker 03:
Can we deal with the language of the statute for a moment?

[00:01:51] Speaker 01:
We sure can.

[00:01:51] Speaker 03:
I'm trying to figure out precisely what your position is.

[00:01:56] Speaker 03:
You do agree that the people who are eligible for lifetime Medicare have to be diagnosed with one or more of the conditions.

[00:02:05] Speaker 03:
Correct.

[00:02:05] Speaker 05:
And you also agree that card readers don't diagnose.

[00:02:10] Speaker 05:
You've agreed to that.

[00:02:11] Speaker 01:
Card readers.

[00:02:12] Speaker 05:
B readers.

[00:02:13] Speaker 05:
B readers don't diagnose.

[00:02:14] Speaker 05:
Forgive me.

[00:02:15] Speaker 01:
Well, what B readers do, according to the statute.

[00:02:19] Speaker 05:
My question is, I think you've gone on record that B readers do not diagnose.

[00:02:24] Speaker 01:
They make an interpretation.

[00:02:26] Speaker 05:
So the answer to my question is yes.

[00:02:28] Speaker 05:
You've agreed to that, right?

[00:02:30] Speaker 05:
B-readers do not diagnose.

[00:02:32] Speaker 01:
B-readers do not diagnose.

[00:02:33] Speaker 05:
OK.

[00:02:34] Speaker 05:
That wasn't a trick question.

[00:02:35] Speaker 05:
It's just there's a lot packed in here.

[00:02:37] Speaker 05:
Go right ahead, Judge Hurwitz.

[00:02:38] Speaker 03:
So we're working in tandem.

[00:02:41] Speaker 03:
No, I don't mean to.

[00:02:42] Speaker 03:
We're getting precisely to the question I have.

[00:02:44] Speaker 03:
With respect to the 112 B-reads that were an issue in this case,

[00:02:53] Speaker 03:
I'm having trouble figuring out who diagnosed one of the qualifying conditions, because the stipulated facts say that CARD's physicians went to these people and said, we haven't diagnosed you with one of these conditions, but you do have a B reader report.

[00:03:10] Speaker 03:
And therefore, you're eligible.

[00:03:12] Speaker 03:
But since you've stipulated that a B reader report is not a diagnosis,

[00:03:19] Speaker 03:
Tell me where the diagnosis is.

[00:03:21] Speaker 03:
CARD never made it.

[00:03:22] Speaker 03:
And the B reader can't make a diagnosis.

[00:03:25] Speaker 03:
And so in short, that's my difficulty.

[00:03:29] Speaker 03:
Help me with that.

[00:03:30] Speaker 01:
Well, the issue there is that the definition of what a diagnosis is happened during trial.

[00:03:36] Speaker 03:
Well, now let's assume any definition you want.

[00:03:41] Speaker 03:
A says you have to be diagnosed.

[00:03:44] Speaker 03:
You've stipulated that the B reader didn't diagnose, and you've stipulated that the card physicians said to these people, we don't see evidence of this, but the B reader does.

[00:03:56] Speaker 01:
That's right.

[00:03:57] Speaker 03:
And so the card physicians didn't diagnose either.

[00:04:00] Speaker 03:
So whatever the definition of diagnosis, who diagnosed?

[00:04:05] Speaker 01:
Well, the statute says, and let's look at the language of the statute.

[00:04:09] Speaker 03:
Well, no, but first answer my question.

[00:04:11] Speaker 01:
Did anybody?

[00:04:12] Speaker 01:
Who diagnosed?

[00:04:13] Speaker 01:
Yeah, who diagnosed?

[00:04:14] Speaker 01:
Well, according to the district court, nobody diagnosed.

[00:04:16] Speaker 03:
Well, tell me who did, according to you.

[00:04:18] Speaker 01:
Well, see, this is an issue with the card physicians.

[00:04:23] Speaker 01:
So they say, and this is an issue all along, their premise was, we diagnose because a diagnosis is a clinical finding.

[00:04:33] Speaker 01:
However,

[00:04:35] Speaker 01:
pursuant to the statute, you don't need a diagnosis, because the statute says outside.

[00:04:40] Speaker 03:
Well, I understand that's your legal position.

[00:04:42] Speaker 03:
And if your legal position is you don't need a diagnosis, then we should deal with that.

[00:04:46] Speaker 03:
But I'm trying to figure out whether you contend there was a diagnosis.

[00:04:50] Speaker 01:
Well, pursuant to the card's physician's interpretation of the word diagnosis, no.

[00:04:55] Speaker 01:
These people were not diagnosed.

[00:04:56] Speaker 01:
However, what they always said is, we didn't give a diagnosis, but the statute says that the diagnosis is established by interpretation by a B reader.

[00:05:05] Speaker 03:
OK, so this is helpful.

[00:05:08] Speaker 03:
So your case really rests on the notion

[00:05:11] Speaker 03:
that the B reader's interpretation suffices as a diagnosis under the statute.

[00:05:18] Speaker 01:
Correct.

[00:05:18] Speaker 05:
So if you look at... Wait, wait, wait.

[00:05:20] Speaker 05:
Before trial, you said that the definition of diagnosis was resolved at trial.

[00:05:24] Speaker 05:
Before trial, at SCR 101, there's another stipulated fact.

[00:05:30] Speaker 05:
In order to satisfy the ATS criteria, a diagnosis of ARD must include structural pathology, causation, and exclusion of other possible causes.

[00:05:42] Speaker 05:
That was stipulated to buy both parties long before trial, sir.

[00:05:48] Speaker 01:
Exactly.

[00:05:48] Speaker 01:
That is what a diagnosis is, according to the physicians.

[00:05:52] Speaker 01:
But what I'm telling you.

[00:05:53] Speaker 05:
Well, and you stipulated to this.

[00:05:55] Speaker 05:
And you stipulated that that's what CARD does.

[00:05:57] Speaker 01:
That's what CARD does.

[00:05:59] Speaker 01:
But that's not what the statute requires.

[00:06:01] Speaker 03:
So your argument is really then not based, is based entirely on your reading of the statute.

[00:06:06] Speaker 03:
Correct.

[00:06:07] Speaker 03:
So that even if the CARD doctors didn't diagnose,

[00:06:13] Speaker 03:
And even if the B reader doesn't diagnose, you think that under the statute, the B reader's interpretation of the radiograph is sufficient to establish Medicare?

[00:06:23] Speaker 01:
Correct.

[00:06:24] Speaker 03:
OK.

[00:06:25] Speaker 01:
That's exactly right.

[00:06:26] Speaker 03:
Tell me why you think the statute says that.

[00:06:29] Speaker 01:
Well, if you look at paragraph one of section 1881Ae, it says, for the purpose of this section, the term environmental exposure affected individual means A, an individual who

[00:06:43] Speaker 01:
is diagnosed with one or more conditions described in subparagraph B. And then you go to subparagraph B, and it says conditions described.

[00:06:52] Speaker 01:
For purposes of subparagraph A, the following conditions are described in this subparagraph.

[00:06:57] Speaker 03:
Yeah, and see, I'd have no difficulty with that position if you were arguing that the B reader's reading of the x-ray was a diagnosis.

[00:07:07] Speaker 03:
But you seem to have given that issue away.

[00:07:10] Speaker 03:
That's why I'm having difficulty rounding the circle, if you will.

[00:07:15] Speaker 01:
And this comes down to semantics that the physicians at the CARD clinic insisted upon and say, we're making a diagnosis, a clinical diagnosis, that's what we do.

[00:07:26] Speaker 01:
They're making a radiographic interpretation.

[00:07:28] Speaker 01:
But under the statute, you know, we doctors think that we're making a diagnosis clinically, but under the statute, that radiographic interpretation counts.

[00:07:39] Speaker 03:
This is not a case, I think, and you can help me if I'm wrong on this.

[00:07:43] Speaker 03:
None of the card physicians said, well, I've looked at those x-rays, too, and now that I've looked at them, I do diagnose one of the qualifying conditions.

[00:07:53] Speaker 01:
No, that's because they did not make that finding.

[00:07:56] Speaker 03:
So I guess this leads me to a question that maybe you weren't at the trial counsel.

[00:08:00] Speaker 03:
But why stipulate that the B readers don't diagnose?

[00:08:05] Speaker 01:
Because, again, this is the personal feelings of the card physicians that a clinical diagnosis is different than a radiographic interpretation.

[00:08:17] Speaker 01:
They insisted upon it, but that's what I was forced to deal with.

[00:08:22] Speaker 05:
Oh, please go ahead.

[00:08:23] Speaker 05:
Sorry.

[00:08:24] Speaker 05:
Go ahead.

[00:08:25] Speaker 05:
I just want to call your attention to and have you walk through this EHH checklist.

[00:08:31] Speaker 01:
OK.

[00:08:31] Speaker 05:
We've got this several times, as you know.

[00:08:32] Speaker 05:
I think it was Exhibit 2.

[00:08:33] Speaker 05:
That's my exact question.

[00:08:35] Speaker 05:
Oh, apparently we're going to the same mix of it.

[00:08:37] Speaker 05:
But you've stipulated about what B readers do or do not do, and you've stipulated about what a diagnosis is under the standard by the ACS.

[00:08:48] Speaker 05:
So on this form, and these are signed by the head of the CARD clinic.

[00:08:53] Speaker 05:
This is what qualified somebody for Medicare, as I understand it.

[00:08:56] Speaker 05:
The form talks about step one is identifying the patient.

[00:08:59] Speaker 05:
Step two is the evidence of structural pathology.

[00:09:02] Speaker 05:
And somebody's going to check a box or not check a box about whether there's asbestosis or pleural plaques or what have you.

[00:09:07] Speaker 01:
Correct.

[00:09:08] Speaker 05:
Right?

[00:09:08] Speaker 05:
And then step three is the exposure requirement from the statute.

[00:09:12] Speaker 05:
Correct.

[00:09:13] Speaker 05:
Right, both geographic and temporal exposure.

[00:09:16] Speaker 05:
This form doesn't satisfy the third part of the ATS requirement about ruling out any other causes.

[00:09:23] Speaker 05:
We don't see that here.

[00:09:26] Speaker 01:
That is correct.

[00:09:27] Speaker 01:
Right.

[00:09:27] Speaker 05:
So if there were another step in the process, perhaps, I could understand your position.

[00:09:32] Speaker 05:
But otherwise, I can't square this.

[00:09:34] Speaker 05:
I guess you're rounding circles and I'm squaring boxes.

[00:09:36] Speaker 05:
But anyway, I can't get from here to compliance with the statute even under your client's read.

[00:09:42] Speaker 01:
But to make a diagnosis, you have to rule out other causes, correct?

[00:09:48] Speaker 01:
Right.

[00:09:48] Speaker 01:
All right.

[00:09:49] Speaker 01:
So a radiographic interpretation doesn't do that, and it's not required for Medicare under the Act.

[00:09:55] Speaker 05:
Right.

[00:09:55] Speaker 05:
So on this form, I don't think there is another form after this one.

[00:09:58] Speaker 05:
This is it.

[00:10:00] Speaker 05:
This is it.

[00:10:01] Speaker 05:
And even it doesn't evidence all of what you stipulated is baked into a diagnosis.

[00:10:09] Speaker 01:
That's right, because what this is for is just, it's not for making a diagnosis, it's just for whether you qualify under the Act.

[00:10:17] Speaker 05:
Well, you certainly agree you have to have a diagnosis in order to qualify under the Act.

[00:10:21] Speaker 01:
Excuse me, for making a clinical diagnosis by the card physicians.

[00:10:25] Speaker 05:
OK, I think you've answered my question.

[00:10:28] Speaker 00:
Yeah, I just want to make sure I understand, because I think Judge Hurwitz and Judge Christian sort of covered the area that's difficult for me in light of your

[00:10:36] Speaker 00:
stipulation that the B-card readers really don't render a diagnosis and the statutory requirement is a diagnosis.

[00:10:44] Speaker 00:
So walk me through this checklist again.

[00:10:46] Speaker 00:
You did it with Judge Christian, but I want to make sure that I understand your position.

[00:10:51] Speaker 00:
I'm looking now at exhibit 2-1, ER 16.

[00:10:56] Speaker 00:
When there is a notation of only next to the interpretation of B reader, what is your argument on what that significance is?

[00:11:05] Speaker 00:
Because when you go down and it says date of diagnosis, there's no date of diagnosis.

[00:11:10] Speaker 00:
But you're saying it still counts anyway.

[00:11:13] Speaker 01:
Well, it counts because the act doesn't require a clinical diagnosis.

[00:11:18] Speaker 01:
So the act only requires an interpretation by a B reader.

[00:11:24] Speaker 01:
And so what they're saying is, this is a person whom we, the clinic, have not made a clinical diagnosis on.

[00:11:30] Speaker 01:
However, under the act, it qualifies as the act defines diagnosis.

[00:11:36] Speaker 01:
It qualifies because a B reader made an outside interpretation of a radiograph.

[00:11:40] Speaker 00:
All right.

[00:11:41] Speaker 00:
What's the significance, then, of the date of diagnosis box being left blank?

[00:11:46] Speaker 01:
Well, typically, that date of diagnosis was usually the date that the radiograph was examined.

[00:11:57] Speaker 01:
That's usually what card filled in.

[00:12:00] Speaker 01:
Obviously, when you're dealing with thousands of these forms, sometimes they were filled out incorrectly.

[00:12:04] Speaker 01:
No question about that.

[00:12:05] Speaker 01:
And so sometimes the date of diagnosis was left blank.

[00:12:10] Speaker 01:
They sometimes check the wrong box.

[00:12:13] Speaker 01:
I mean, those mistakes were made, and most of the time they were corrected.

[00:12:16] Speaker 00:
Of the checklists submitted as part of the trial evidence, were there any checklists involving only B reader patients where the date of diagnosis was filled out?

[00:12:27] Speaker 01:
Yes.

[00:12:30] Speaker 01:
Almost all of them.

[00:12:33] Speaker 05:
I have a different question.

[00:12:35] Speaker 05:
Just taking a step back, your brief argues that you think the jury's verdict is accounted for, if I can say it that way, by the B reader claims.

[00:12:45] Speaker 05:
I think there's 112 B reader claims.

[00:12:48] Speaker 05:
At one place, your brief asserts that there were many more than that.

[00:12:51] Speaker 05:
But if you were to prevail on this B reader argument, it seems to me that I'm not sure how we could grant relief to your clients.

[00:12:59] Speaker 05:
I want to give you a chance to respond.

[00:13:01] Speaker 05:
The first premise I've got is I don't think we can tell why the jury found liability as to these 337 claims.

[00:13:08] Speaker 01:
I have no idea where they based their liability finding.

[00:13:11] Speaker 05:
OK.

[00:13:12] Speaker 05:
And yet your position in your brief is that you think that the B reader claims account for the verdict, or at least for the bulk of the verdict.

[00:13:20] Speaker 01:
I think that if you look at that exhibit eight that the railroad provided, this sort of tried to categorize various things.

[00:13:29] Speaker 01:
One way of interpreting that is that that was how it happened.

[00:13:33] Speaker 01:
But we don't know.

[00:13:33] Speaker 05:
All right.

[00:13:34] Speaker 05:
But here's the problem, I think.

[00:13:35] Speaker 05:
Another way of interpreting it, and I think you're talking about the tables that they submitted?

[00:13:39] Speaker 05:
Correct.

[00:13:39] Speaker 05:
Table 7 is 333 claims for which there were negative reads by the outside folks and no positive radiographic reads at all for those folks.

[00:13:52] Speaker 05:
Not an x-ray, not a CAT scan, only a read by Dr. Black.

[00:13:56] Speaker 01:
Correct.

[00:13:56] Speaker 05:
only a diagnosis by Dr. Block.

[00:13:58] Speaker 05:
So the problem I have is it seems to me that those 333 may well account for the verdicts.

[00:14:05] Speaker 05:
And as to those, unless you can tell me that I'm misreading the tables, and I'll ask opposing counsel as well, it seems to me on those there's no, we've got no B reader, no CAT scan, no anything.

[00:14:17] Speaker 01:
We don't know.

[00:14:19] Speaker 01:
Yes, that's true.

[00:14:21] Speaker 05:
All right.

[00:14:21] Speaker 05:
Okay.

[00:14:22] Speaker 05:
Judge Hurwitz, do you have additional questions?

[00:14:25] Speaker 05:
No.

[00:14:26] Speaker 05:
No?

[00:14:26] Speaker 05:
Council, we're going to give you, when you come back, you'll have three minutes.

[00:14:29] Speaker 05:
We took a lot of your time.

[00:14:30] Speaker 01:
Thank you.

[00:14:30] Speaker 01:
I appreciate it.

[00:14:31] Speaker 05:
You bet.

[00:14:44] Speaker 02:
Good morning, Your Honor.

[00:14:45] Speaker 02:
So may it please the court.

[00:14:46] Speaker 02:
I'm Dale Schoengritt for BNSF Railway Company.

[00:14:50] Speaker 02:
The jury in this case found that CARD committed 337 acts of fraud because it systematically signed people up for Medicare who were not sick.

[00:15:02] Speaker 05:
CARD argued that it had a... But we don't even know if they found that.

[00:15:04] Speaker 02:
Correct.

[00:15:05] Speaker 05:
It's tough to know what they found, right?

[00:15:07] Speaker 02:
It is.

[00:15:08] Speaker 05:
OK.

[00:15:09] Speaker 02:
It is.

[00:15:09] Speaker 05:
Some of these people may be sick.

[00:15:10] Speaker 05:
That's one of the problems I have.

[00:15:12] Speaker 05:
Some of these people may be qualified.

[00:15:14] Speaker 05:
And you're not asking for any kind of a ruling, I hope, that says that these individuals are not Medicare eligible.

[00:15:21] Speaker 03:
No, I'm not.

[00:15:22] Speaker 03:
So what happens to these individuals?

[00:15:24] Speaker 03:
That's what troubles me about this case.

[00:15:26] Speaker 03:
Let's assume that CARD didn't follow the correct policy, that when they got these B reader claims, they should have

[00:15:35] Speaker 03:
tried to make a clinical diagnosis and just didn't because they misread the statute.

[00:15:40] Speaker 03:
What do we do with the individuals who got Medicare here?

[00:15:43] Speaker 03:
Well, I don't think the order is making any sense.

[00:15:47] Speaker 03:
Some of those 330-something were surely qualified to get Medicare, even though the application wasn't appropriate.

[00:15:56] Speaker 03:
So does this have any effect on their eligibility to get

[00:16:00] Speaker 02:
There's been no- Medicaid, I'm sorry.

[00:16:02] Speaker 02:
No indication that they're going to go retroactively and take Medicare.

[00:16:06] Speaker 03:
The government was never declined to join this case?

[00:16:09] Speaker 03:
Declined to join this, and there's no indication that the government- Is there nothing in the record suggesting that anybody's benefits that were awarded pursuant to CARD's applications have been terminated?

[00:16:19] Speaker 02:
Correct, Judge Horowitz.

[00:16:21] Speaker 02:
There is no evidence in the record.

[00:16:23] Speaker 02:
And let me make one point, Judge Kristen, that you mentioned that we don't know whether these folks are diagnosed.

[00:16:30] Speaker 02:
There is one piece of evidence, and I think it's important because it adds different context.

[00:16:35] Speaker 02:
It's not like CARD was agnostic on these claims.

[00:16:39] Speaker 02:
The reason they didn't diagnose these patients was because they had a CT scan of them.

[00:16:45] Speaker 00:
And this is it.

[00:16:47] Speaker 00:
I missed that last part.

[00:16:47] Speaker 02:
They had a CT scan.

[00:16:49] Speaker 02:
And Dr. Black, this is at 1SER 109 to 113.

[00:16:57] Speaker 02:
And Dr. Black talks about the CT scan, you have more clarity, better picture, better resolution, and you can see more.

[00:17:05] Speaker 02:
So CARB was looking at these CT scans, and they said, we're not diagnosing them because- For 333 of the patients, they didn't have a CT scan.

[00:17:13] Speaker 02:
Correct.

[00:17:13] Speaker 05:
So now you're talking about the universe of B-beater claims only?

[00:17:17] Speaker 02:
Yes.

[00:17:17] Speaker 05:
Sorry.

[00:17:18] Speaker 05:
That's all right.

[00:17:19] Speaker 05:
As to that subset, which I think is 112, something like that?

[00:17:22] Speaker 02:
112, correct.

[00:17:23] Speaker 05:
As to those people, your point is what?

[00:17:25] Speaker 02:
Those patients, it wasn't just that they had a B-read identifying an abnormality.

[00:17:33] Speaker 02:
They also had a CT scan.

[00:17:35] Speaker 02:
The B-readers had the x-ray, but CARD itself had a CT scan.

[00:17:40] Speaker 02:
They knew that these folks didn't have an asbestos-related disease.

[00:17:45] Speaker 02:
That's why they refused to diagnose them.

[00:17:48] Speaker 05:
Well, it seems to me we've got categories from your tables that you submitted that show that sometimes CARD didn't wait for the B-readers.

[00:17:55] Speaker 02:
That's right.

[00:17:56] Speaker 02:
And that's table seven.

[00:17:57] Speaker 05:
And some time.

[00:17:58] Speaker 05:
No, that's a different table, but doesn't matter.

[00:18:00] Speaker 05:
OK.

[00:18:00] Speaker 05:
And some time.

[00:18:01] Speaker 05:
The folks in table seven, 333, didn't have a CAT scan or an x-ray or any radiographic evidence as far as like that's what the table represents.

[00:18:10] Speaker 04:
Correct.

[00:18:11] Speaker 05:
OK.

[00:18:11] Speaker 05:
Then there's another group of folks who there was a negative B read, but Dr. Black

[00:18:17] Speaker 05:
thought he could detect something that the radiologist had not and certified those folks for Medicare, right?

[00:18:24] Speaker 05:
Correct.

[00:18:25] Speaker 05:
Then there's another category, subcategory, where there was a positive B-read on the outside readers, I guess, right?

[00:18:32] Speaker 05:
And Carr determined that there was no clinical diagnosis for some of those people and sent letters that Judge Herjavec was mentioning that informed them that

[00:18:42] Speaker 05:
You were not diagnosed with an asbestos-related disease, but they were certified for Medicare.

[00:18:48] Speaker 04:
Correct.

[00:18:49] Speaker 05:
And then there's another category where there was a positive B-read, and then CARD also diagnosed them and filled out the EHH form, and they were also certified for Medicare.

[00:19:01] Speaker 05:
Correct.

[00:19:01] Speaker 05:
So I can't see a consistent pattern really of how CARD reacted to the outside B-reads here.

[00:19:07] Speaker 02:
Well, I think CARD, typically, when they got an outside B reading, it was negative.

[00:19:14] Speaker 02:
That's where Dr. Black said that he had this kind of special ability to see lamellar pleural thickening that

[00:19:24] Speaker 05:
There couldn't have been too many of those, sir, because we've got 337 findings of liability here, false claims.

[00:19:32] Speaker 05:
And for 333 of them, they didn't have anything by way of radiology.

[00:19:38] Speaker 02:
Right.

[00:19:38] Speaker 02:
And some of those may have been diagnosed with lamellar pleural thickening, but records aren't clear.

[00:19:42] Speaker 03:
And there may be some categories that... So what are we to do just mechanically with this case?

[00:19:48] Speaker 03:
I have another question, but I just want to get your position.

[00:19:51] Speaker 03:
Let's assume that we agree with your friend that some mistake was made about the instruction on the bereader claims.

[00:20:02] Speaker 03:
That's 112 of 337, I think.

[00:20:07] Speaker 03:
What do we do?

[00:20:10] Speaker 03:
Do we affirm the rest of the verdict?

[00:20:13] Speaker 03:
And send back for further proceedings on the 112?

[00:20:16] Speaker 03:
Or do we say, well, we don't know what the verdict was based on, and therefore we have to affirm it?

[00:20:23] Speaker 03:
What's your position?

[00:20:25] Speaker 02:
I think you would affirm, because there's substantial evidence that shows that the verdict, there were plenty of other cases, like Judge Tristan mentioned, the Table 7, the 333 alone, where there was no read at all, even though that's the minimum medical evidence that's required under

[00:20:43] Speaker 02:
the statute in the EHH form.

[00:20:46] Speaker 05:
There's also the opioid cases and the other examples where... Given that, given that the 333, we've got no radiology, why are we spending so much time talking about instances where there was a B-read only?

[00:20:59] Speaker 02:
Those are the only claims that the card is appealed.

[00:21:01] Speaker 03:
Well, there's at least four that we'd have to adjudicate.

[00:21:07] Speaker 02:
Right.

[00:21:08] Speaker 05:
Well, to say that they're the only claims that the card appealed, I guess, is a yes.

[00:21:14] Speaker 05:
But these weren't itemized.

[00:21:15] Speaker 05:
We don't have a special verdict finding that tells us what the 337 is comprised of.

[00:21:22] Speaker 03:
That's right.

[00:21:22] Speaker 05:
We don't even know if the 112 are in there.

[00:21:24] Speaker 03:
That's right.

[00:21:25] Speaker 03:
OK.

[00:21:26] Speaker 03:
Now, I have a question with the 112.

[00:21:28] Speaker 03:
Sure.

[00:21:28] Speaker 03:
Just so that I'm clear, because Judge Christen is dealing with the chart.

[00:21:32] Speaker 05:
He's got a lot of charts and graphs.

[00:21:33] Speaker 03:
Yeah.

[00:21:34] Speaker 03:
As to the 112, as to each of them, it was a case in which the card physician says, according to my diagnostic criteria, I haven't diagnosed you with one of the qualifying conditions.

[00:21:47] Speaker 03:
That's right.

[00:21:48] Speaker 03:
And as to all of those 112 was the B reader,

[00:21:52] Speaker 03:
unequivocal, or is there some cases in which the B-reader said, I see signs of X or Y or Z, as opposed to, I definitely see X, Y, or Z?

[00:22:02] Speaker 02:
In every case, B-readers were clear in this case, and this is probably why Card felt compelled to stipulate to this at ER 92,

[00:22:11] Speaker 02:
that B readers can't diagnose because they only identify abnormalities.

[00:22:15] Speaker 02:
Now, the abnormality could be asbestos-related disease, but it could also be a broken rib, emphysema, past thoracic surgery, autoimmune disease.

[00:22:24] Speaker 03:
Well, I've seen at least one.

[00:22:25] Speaker 03:
And I'm not sure all the B reader claims are in the record that I'm looking at.

[00:22:29] Speaker 03:
B readings are in the record.

[00:22:31] Speaker 03:
But I've seen at least one that says x-ray shows pleural thickening, for example.

[00:22:37] Speaker 03:
suggested plural thickening.

[00:22:40] Speaker 03:
I know suggest is what the bee readers say they do, but does the bee reader actually say on the form

[00:22:48] Speaker 03:
suggests or does he just check a box that says plural thickening?

[00:22:51] Speaker 02:
He says plural thickening and the bee readers that testified said plural thickening could be a broken rib.

[00:22:57] Speaker 02:
It could be all these other things.

[00:22:59] Speaker 02:
And Karr stipulated to this too at ER 92 that the abnormality could be a specialist related disease.

[00:23:06] Speaker 02:
It could be a number of other things.

[00:23:07] Speaker 02:
And that's what the bee readers will tell you, that they say,

[00:23:11] Speaker 02:
We can't diagnose because we have an X-ray.

[00:23:14] Speaker 02:
We don't have patient history.

[00:23:15] Speaker 02:
We don't have anything about the patients.

[00:23:17] Speaker 02:
It's DIA.

[00:23:18] Speaker 03:
No, I'm just trying to deal with the form that the B readers filled out.

[00:23:22] Speaker 03:
And the one that I saw just has boxes that you check.

[00:23:26] Speaker 03:
It doesn't have a sort of diagnostic description.

[00:23:29] Speaker 03:
I checked that box because I saw an X, but I'm not sure it's, you know, you'll need to explore it further or something like that.

[00:23:35] Speaker 02:
I think that's right.

[00:23:36] Speaker 02:
They don't give much definition.

[00:23:38] Speaker 02:
They just identify the abnormality and let the physician do it.

[00:23:41] Speaker 02:
And that's why the H form itself is not filled out by the B readers.

[00:23:47] Speaker 03:
B readers never follow this one.

[00:23:49] Speaker 03:
So I know this is not the case here.

[00:23:51] Speaker 03:
But I'm trying to read what the statute may have envisioned.

[00:23:56] Speaker 03:
Could a responsible physician say, OK, I've got the B reader report.

[00:24:02] Speaker 03:
I'm looking at the x-ray too.

[00:24:05] Speaker 03:
This person must have one of the qualifying conditions, and therefore I diagnose it.

[00:24:11] Speaker 03:
If somebody had done that, would that satisfy the statute?

[00:24:14] Speaker 02:
I don't think it would.

[00:24:15] Speaker 03:
You could go back and attack his diagnosis, but at least on the face of the statute, why wouldn't that work?

[00:24:21] Speaker 02:
Because every person that testified in this case that diagnoses asbestos-related disease says you follow those ATS categories.

[00:24:28] Speaker 03:
Well, I'm asking the question.

[00:24:30] Speaker 03:
It gives me something.

[00:24:31] Speaker 03:
I'm not sure how I read the A. Is it A-T-F?

[00:24:34] Speaker 03:
A-T-S.

[00:24:35] Speaker 03:
A-T-S.

[00:24:36] Speaker 03:
Sorry, I'm thinking of another federal agency.

[00:24:38] Speaker 03:
Why I should read the ATS diagnostic criteria into this statute.

[00:24:45] Speaker 03:
I mean, if an agency had read the- But for the stipulation.

[00:24:50] Speaker 02:
Yeah.

[00:24:50] Speaker 02:
Because that's the only way that anyone in this case testified that anyone that diagnoses asbestos-related disease does it.

[00:24:59] Speaker 05:
But step into the realm of statutory interpretation, right?

[00:25:04] Speaker 05:
And when we look at statutory interpretation, it's

[00:25:07] Speaker 05:
Quite peculiar for us to look at a statute and say well since the party stipulated.

[00:25:12] Speaker 05:
This is what the statute means We don't we don't do that.

[00:25:14] Speaker 05:
I think you have to look at the word diagnose, right?

[00:25:16] Speaker 05:
That's what Judge Christensen did and he's baking in a lot there and he's looking to this professional Organization, that's true.

[00:25:24] Speaker 05:
Everybody stipulated and the party stipulated that's how it's done and card stipulated That's how they do it.

[00:25:29] Speaker 05:
But it's a matter of statutory interpretation.

[00:25:31] Speaker 05:
That's not how Judge Christensen got there and

[00:25:34] Speaker 02:
Well, I think Judge Christian first started with Steadman's, you know, what his diagnosis means.

[00:25:38] Speaker 05:
First he started with saying the statute doesn't define it, right?

[00:25:40] Speaker 02:
Yeah, yeah.

[00:25:41] Speaker 05:
So then he looks at the plain, right, ordinary meeting.

[00:25:43] Speaker 02:
Yeah.

[00:25:43] Speaker 05:
Looked at Steadman's, take it from there.

[00:25:46] Speaker 02:
And then he looked at Steadman and said, diagnosis means to identify a disease from its signs and symptoms.

[00:25:51] Speaker 02:
How do people do that in this specific context of asbestos-related disease?

[00:25:56] Speaker 02:
And everyone testified the same way.

[00:25:59] Speaker 02:
You do it by these three steps.

[00:25:59] Speaker 03:
But absolutely stipulations.

[00:26:01] Speaker 03:
I mean, one of my difficulties with your statutory interpretation argument is, let's assume I go to my family doctor, and he takes an x-ray.

[00:26:11] Speaker 03:
And he looks at it and says, you have one of the three qualifying conditions and certifies me as eligible for Medicare.

[00:26:19] Speaker 03:
And it turns out I do.

[00:26:21] Speaker 03:
Has he made a false claim?

[00:26:22] Speaker 02:
No, I don't think he's made a false claim.

[00:26:26] Speaker 02:
And look, even the ATS criteria, it's not too hard to do.

[00:26:31] Speaker 02:
Have you had a broken rib?

[00:26:32] Speaker 02:
Is there other causes?

[00:26:34] Speaker 02:
This isn't super complicated to go through those criteria and just eliminate other potential causes.

[00:26:39] Speaker 03:
So what's false in the claim that Card made?

[00:26:43] Speaker 02:
Card relied on B readers to diagnose when it admitted that B readers can't diagnose.

[00:26:52] Speaker 05:
In other words, it's not just false.

[00:26:54] Speaker 05:
To be a false claim, it doesn't have to just be wrong.

[00:26:56] Speaker 05:
There's a science requirement here.

[00:26:59] Speaker 05:
And the jury was instructed us to do that.

[00:27:01] Speaker 05:
And it's knowingly what it takes to knowingly submit a false claim.

[00:27:05] Speaker 05:
Not just an incorrect diagnosis, but a false one.

[00:27:07] Speaker 02:
That's right.

[00:27:08] Speaker 02:
F-18, F-20, and the jury was instructed on that and heard lots of evidence that Card knew that these people were not diagnosed.

[00:27:15] Speaker 03:
What monies did the government pay out because of the false claim here?

[00:27:20] Speaker 03:
Were they payments to Card?

[00:27:21] Speaker 02:
Some payments are card and then payments to patients.

[00:27:25] Speaker 02:
But yes, card.

[00:27:26] Speaker 00:
Excuse me.

[00:27:27] Speaker 05:
Judge Winn had a question.

[00:27:29] Speaker 00:
I had a question.

[00:27:29] Speaker 00:
I wanted to follow up on the form that's filled out.

[00:27:33] Speaker 00:
I think it's called the EHH form.

[00:27:36] Speaker 00:
And I'm looking here, the Check the Boxes form.

[00:27:39] Speaker 00:
I think that was the same form Judge Hurwitz was talking about, plural thickening, plural plaques.

[00:27:45] Speaker 00:
And then that box is checked off, interpretation by a B reader qualified physician.

[00:27:52] Speaker 00:
And then there's a notation only to it.

[00:27:56] Speaker 00:
I'm going to ask you for purposes of this question to set aside the stipulation that B-card readers only categories can't diagnose.

[00:28:04] Speaker 00:
And I asked counsel whether the date of diagnosis, the form I'm looking at, is left blank if there's any significance.

[00:28:10] Speaker 00:
to that because their argument, as I understand it, is that this, for purposes of the statute, qualifies as a diagnosis.

[00:28:17] Speaker 00:
Council said to me the vast majority or almost all of these forms submitted before the jury had the date of diagnosis filled out just from the B reading results.

[00:28:28] Speaker 02:
Is that right?

[00:28:29] Speaker 02:
I believe the date of diagnosis was from the provider when they were diagnosing.

[00:28:34] Speaker 02:
I'm not sure that that's clear from this record.

[00:28:36] Speaker 05:
Would that be Dr. Black?

[00:28:37] Speaker 02:
Dr. Black, correct.

[00:28:38] Speaker 02:
But not the B reader.

[00:28:40] Speaker 02:
No, the B reader never fills out this form.

[00:28:42] Speaker 05:
But getting back to Judge Wynn's question.

[00:28:44] Speaker 00:
Right.

[00:28:44] Speaker 00:
The jury saw of the 112 people limiting it to that universe of individuals, the date of diagnosis was filled out.

[00:28:52] Speaker 02:
Yes, correct.

[00:28:53] Speaker 02:
The date of diagnosis was filled out.

[00:28:56] Speaker 02:
And for those only claims, it really didn't tell the Social Security Administration that they were basing that

[00:29:04] Speaker 02:
entirely, the entire diagnosis was based on that.

[00:29:07] Speaker 02:
It certainly didn't tell them that they knew that these people didn't have a diagnosis because they had a superior CT scan.

[00:29:14] Speaker 00:
Right.

[00:29:14] Speaker 00:
No, I understand the evidence that trial was beyond that because of the science requirement, but I wanted to follow up on that just to make sure that I understand their position that the B-card reader only for purposes of the statute qualifies as a diagnosis.

[00:29:29] Speaker 02:
Yes, right.

[00:29:30] Speaker 02:
That's their argument in this very specific context.

[00:29:34] Speaker 05:
Hold on just one second.

[00:29:35] Speaker 05:
Judge Hurwitz, did you get your question finished?

[00:29:37] Speaker 05:
I think I did.

[00:29:38] Speaker 05:
Okay.

[00:29:39] Speaker 05:
Did you have any closing thoughts?

[00:29:41] Speaker 02:
Thank you very much.

[00:29:41] Speaker 02:
We'd ask you to affirm the jury's verdict.

[00:29:44] Speaker 05:
Sure.

[00:29:45] Speaker 05:
Thank you.

[00:29:47] Speaker 05:
Madam Clerk, could you put three minutes on?

[00:29:48] Speaker 05:
Thank you so much.

[00:29:49] Speaker 05:
You read my mind.

[00:29:50] Speaker 01:
OK.

[00:29:50] Speaker 01:
Thank you.

[00:29:51] Speaker 01:
Right ahead.

[00:29:53] Speaker 01:
One thing you asked about, how much money has been paid out.

[00:29:56] Speaker 01:
So the practical matter is, so Card declared bankruptcy after this, and the United States came in and entered into a settlement with the railroad and Card where Card pays nobody anything.

[00:30:13] Speaker 01:
The United States said that the card's assets are held in trust for the United States.

[00:30:19] Speaker 01:
The United States has subsequently granted CARD another four-year grant for more screening.

[00:30:26] Speaker 01:
So if you look at the materiality requirement here, what the government does in response to this, the government has said business as usual.

[00:30:34] Speaker 03:
Well, but that's all post-trial.

[00:30:36] Speaker 03:
It seems to me you didn't contest

[00:30:39] Speaker 03:
below that if the claim wasn't a diagnosis, that there wasn't liability, right?

[00:30:48] Speaker 03:
Your argument was, well, even if this wasn't a diagnosis, we shouldn't be liable because it wasn't material.

[00:30:56] Speaker 01:
We certainly did contest materiality.

[00:30:58] Speaker 03:
But that was tried.

[00:31:00] Speaker 03:
Yeah, absolutely.

[00:31:01] Speaker 03:
But I don't read your brief on appeal arguing that, as a matter of law, there was no materiality.

[00:31:07] Speaker 01:
Sure, look at page 19 of our opening brief.

[00:31:11] Speaker 01:
We certainly argued that there was no materiality.

[00:31:14] Speaker 03:
Because why?

[00:31:16] Speaker 01:
Because the government's response, if you look under winter you say... Because the government did what?

[00:31:21] Speaker 01:
Because the government...

[00:31:24] Speaker 01:
So you have to look at how the government responds to the supposed false claim, right?

[00:31:31] Speaker 01:
So is this so central that the government would not have paid the money had it known that this was false claim?

[00:31:36] Speaker 03:
Well, that's why I was trying to ask the question of you.

[00:31:38] Speaker 05:
On that point, we have at SER 268, starting at 268, the testimony of the SSA's witness, Ms.

[00:31:46] Speaker 05:
Nolan, who says we would not have paid these had we understood what they were doing.

[00:31:50] Speaker 01:
Yeah, and that apparently has changed as well, because the SSA is- This is what was in front of the jury, right?

[00:31:55] Speaker 01:
It was.

[00:31:56] Speaker 01:
And so is the ATSDR's testimony to say, absolutely, this is what we expect them to do.

[00:32:00] Speaker 05:
But the ATSDR doesn't speak for the Social Security Administration, and they're not the ones paying the claim.

[00:32:06] Speaker 05:
That was a question.

[00:32:07] Speaker 01:
The ATSDR is the only money involved.

[00:32:10] Speaker 05:
No, but in terms of the federal government witness, this is the Social Security that said she would not have authorized this.

[00:32:16] Speaker 01:
That's what she said.

[00:32:19] Speaker 03:
And so it does not provide evidence from which a reasonable finder of fact could find materiality.

[00:32:26] Speaker 01:
They could.

[00:32:29] Speaker 01:
But what the district court instructed the jury to is to ignore the government's testimony from the ATSDR.

[00:32:37] Speaker 05:
Well, the witness from the ATSDR wasn't in a position to speak for the agency.

[00:32:41] Speaker 05:
And he also testified that he wasn't aware that they were doing this particular billing practice.

[00:32:45] Speaker 05:
He said he read the statute the same way.

[00:32:48] Speaker 05:
Oh, no, he said... Ted Larson, is that who we're talking about?

[00:32:50] Speaker 01:
Yes, so Mr. Larson testified that he was aware that CARD was submitting EHH checklists based upon Be Read Only.

[00:32:58] Speaker 05:
I think there's at least conflicting evidence in the record about that, but what is your position for the more central point, which is that if he agreed with you, let's say, and your read of the statute, that he would be in a position to bind to the agency?

[00:33:10] Speaker 05:
I think that's where you have to be.

[00:33:12] Speaker 01:
Well, he's the one who supplied all the money.

[00:33:16] Speaker 03:
So I want to understand your position.

[00:33:20] Speaker 03:
Your position is that even if you're wrong about the law and the stuff sent to qualify these people for Medicare was not sufficient, it doesn't matter because the false statements were not material.

[00:33:39] Speaker 01:
that they couldn't have been material because, as I said, they were doing what the ATSDR told them to do.

[00:33:48] Speaker 03:
That's a separate argument about reliance on.

[00:33:51] Speaker 01:
Just remember that one of the claims that the railroad brought was that the card was defrauding the ATSDR.

[00:33:59] Speaker 01:
So that could have been one of the 337 claims.

[00:34:02] Speaker 01:
We don't know.

[00:34:03] Speaker 01:
But they certainly made that claim at trial, was that they were defrauding the ATSDR by falsifying their reports.

[00:34:09] Speaker 05:
The jury had a definition, opposing counsel, I think we just went through this, was instructed that this False Claims Act requires a showing of slander.

[00:34:18] Speaker 05:
what it means that the folks had to knowingly submit false claims.

[00:34:21] Speaker 05:
And then there's a detailed instruction, and I think it's at 18 and 20, about what that required, including putting your head in the sand.

[00:34:29] Speaker 05:
And I'm only using that phrase because the instruction does, you know, that there are different ways to show knowing.

[00:34:34] Speaker 05:
Are you suggesting that the jury didn't have evidence from which they could have found that these were knowingly false claims?

[00:34:41] Speaker 01:
But the jury had evidence that they could have made that draw in that conclusion.

[00:34:45] Speaker 01:
But what I'm saying is that we don't know that the jury was basing their verdict on supposedly false reports back to ATSDR.

[00:34:55] Speaker 01:
But what we do know is the ATSDR kept giving card money and has done it again.

[00:35:00] Speaker 03:
Well, can I ask one more question?

[00:35:02] Speaker 03:
Of course.

[00:35:02] Speaker 03:
So I'm still back to the 330, what?

[00:35:06] Speaker 03:
337 findings, correct?

[00:35:10] Speaker 01:
Correct.

[00:35:10] Speaker 03:
And of those, well, we don't know of those, but there were 333 non-B reader only cases.

[00:35:19] Speaker 03:
Am I correct?

[00:35:20] Speaker 03:
Correct.

[00:35:21] Speaker 03:
As to those?

[00:35:24] Speaker 03:
Aside from your arguments about jury instructions, is there any problem with them?

[00:35:32] Speaker 01:
Is there any?

[00:35:32] Speaker 03:
Well, in other words, let's assume that you read the statute entirely correctly, and a B-reader reading is enough.

[00:35:40] Speaker 03:
OK.

[00:35:40] Speaker 03:
But as to some 330-some, there wasn't a B-reader reading on which you could have been based, correct?

[00:35:49] Speaker 01:
Right.

[00:35:49] Speaker 01:
So they were based upon the CARDS diagnosis.

[00:35:52] Speaker 03:
Right.

[00:35:52] Speaker 03:
And as to those, there was some evidence that CARDS diagnosis wasn't, that wasn't really CARDS diagnosis.

[00:35:59] Speaker 03:
So as to those, what's, is there a problem with those?

[00:36:02] Speaker 03:
What's the problem with those?

[00:36:04] Speaker 01:
The problem is that the statute says that a diagnosis by the card qualifies under the statute.

[00:36:13] Speaker 03:
Right, but a false diagnosis by card doesn't.

[00:36:15] Speaker 03:
And so as to those, there seemed to be evidence that, with respect to at least some of them,

[00:36:21] Speaker 03:
the card doctor really didn't make the diagnosis.

[00:36:25] Speaker 03:
And so if that was the evidence, is there any problem with a finding of liability as to those?

[00:36:32] Speaker 03:
Leave aside for a second how we sort out the whole mess.

[00:36:35] Speaker 03:
But what's your argument as to those?

[00:36:37] Speaker 01:
What the statute actually says is that it's a CT interpretation by a qualified physician, and that is defined by the secretary.

[00:36:47] Speaker 01:
And the secretary has defined card.

[00:36:49] Speaker 03:
No, well, let's assume this is probably not the record, but I think it's close.

[00:36:54] Speaker 03:
The card doctor says, eh, the B reader doesn't show anything.

[00:36:57] Speaker 03:
And I don't see much either, but what the heck?

[00:37:00] Speaker 03:
I'll certify you.

[00:37:03] Speaker 03:
That violates the statute, does it not?

[00:37:04] Speaker 01:
That would.

[00:37:05] Speaker 01:
But what you should know is a practical matter.

[00:37:08] Speaker 01:
After the card positions

[00:37:12] Speaker 01:
see a patient, they send out the x-ray, and then they send out the CTs.

[00:37:17] Speaker 01:
So those outside reads do not come back to the CARD clinic for review.

[00:37:23] Speaker 01:
Those are, they're kept for statistical purposes by ATSDR.

[00:37:28] Speaker 01:
They're not there for diagnostic purposes, for clinical diagnostic purposes, but they qualify under the act.

[00:37:34] Speaker 01:
So the CARD physician doesn't, they don't get a report back to say, patient X now has a positive outside read.

[00:37:42] Speaker 01:
The card physicians don't, I mean, they don't respond to that.

[00:37:45] Speaker 01:
They just say, okay, he's, okay, he got positive outside read, then he qualifies under the act, send it in.

[00:37:50] Speaker 05:
I just have one final question.

[00:37:52] Speaker 05:
As to the 333 claims for which there is no radiology, how could they possibly satisfy the statute?

[00:38:02] Speaker 01:
The statute requires radiology.

[00:38:05] Speaker 01:
All right.

[00:38:05] Speaker 05:
Thank you both for your advocacy.

[00:38:07] Speaker 05:
We're going to take it.

[00:38:08] Speaker 05:
We genuinely appreciate your help.

[00:38:09] Speaker 05:
This is an important case, and we'll take our time with it, but get you a decision just as soon as possible.

[00:38:15] Speaker 05:
We're going to stand in recess for about five minutes, and we'll come back for the final argument.

[00:38:18] Speaker 01:
Thank you.