[00:00:01] Speaker 03:
And we'll call our next case, case 23-4047, behavioral medicine consulting versus CHG companies.

[00:00:09] Speaker 03:
OK, Mr. Barnett.

[00:00:12] Speaker 03:
Proceed.

[00:00:17] Speaker 02:
Thank you.

[00:00:17] Speaker 02:
Good morning.

[00:00:18] Speaker 02:
May it please the court, Matthew Barnett, for the appellant, whom I'll refer to collectively as Dr. Brown.

[00:00:25] Speaker 04:
And my intent is to- Could you make sure you speak directly to the microphones?

[00:00:30] Speaker 02:
Oh, yes.

[00:00:31] Speaker 02:
I thought I was.

[00:00:32] Speaker 02:
I'm sorry.

[00:00:33] Speaker 02:
That thing will raise up.

[00:00:36] Speaker 02:
OK.

[00:00:37] Speaker 02:
I'm not sure.

[00:00:37] Speaker 02:
Oh, there.

[00:00:39] Speaker 02:
All right.

[00:00:40] Speaker 02:
Is that better?

[00:00:41] Speaker 02:
Can you hear me?

[00:00:42] Speaker 02:
OK.

[00:00:44] Speaker 02:
Thank you.

[00:00:44] Speaker 02:
My intent is to defer five minutes for rebuttal.

[00:00:50] Speaker 02:
In this case, we seek reversal of the trial court's summary judgment motion, both for genuine issues of fact and because of a misinterpretation of the professional services agreement.

[00:01:06] Speaker 02:
The issues of fact really fall into three categories.

[00:01:09] Speaker 02:
And the first one is facts that question whether

[00:01:15] Speaker 02:
the Comp Health made a reasonable determination as the contract requires before canceling the placement.

[00:01:26] Speaker 02:
There is testimony in the record that the trial court rejected that Dr. Brown in fact had four sources of recent inpatient experience, meaning within the last 24 months, that qualified him under their own

[00:01:44] Speaker 02:
You say I was in the record.

[00:01:46] Speaker 04:
Was it in your initial summary judgment response?

[00:01:52] Speaker 02:
It was in the briefing, in the hearing, and the trial judge's decision actually reflects that those arguments were made and preserved.

[00:02:04] Speaker 04:
And were the underlying facts the additional experience of the doctor, inpatient,

[00:02:12] Speaker 04:
that was in the record and in the papers filed in opposing summary judgment.

[00:02:19] Speaker 02:
That was in the record beginning at the hearing.

[00:02:22] Speaker 04:
The judge asked a question that... What were you referring to that was in the record and in the papers filed?

[00:02:30] Speaker 04:
in the summary judgment proceeding.

[00:02:32] Speaker 02:
Okay, I misspoke.

[00:02:33] Speaker 02:
On that point, there wasn't anything in the papers because that's an issue, it was a refinement of the issue that only came up when the judge asked the question at the hearing.

[00:02:44] Speaker 04:
It was in the record, but you didn't argue.

[00:02:48] Speaker 02:
I did argue it.

[00:02:49] Speaker 04:
You didn't argue it in the paper.

[00:02:51] Speaker 02:
Yes, I argued it at the hearing and what I want the court to understand is

[00:02:58] Speaker 02:
no one had raised that issue.

[00:02:59] Speaker 02:
We hadn't anticipated the court might refine the argument that way.

[00:03:04] Speaker 02:
And the judge said, well, it's one thing to have a credentialing standard that's unreasonable.

[00:03:09] Speaker 03:
Your opposing counsel raised the issue because they said your client had no inpatient experience in the past two years, right?

[00:03:20] Speaker 03:
I think that was their argument, yes.

[00:03:24] Speaker 03:
You didn't come forward at that time in the summary judgment briefing with actual evidence that he had had inpatient experience in the past two years.

[00:03:40] Speaker 03:
So, I mean, my point is it did come up in the briefing because that was the whole point of the summary judgment motion.

[00:03:48] Speaker 02:
Well, our argument in the summary judgment opposition was that the standard itself is unreasonable.

[00:03:56] Speaker 02:
And then that issue got refined at the argument.

[00:04:00] Speaker 02:
And we said, oh, yes, there is evidence in the record that shows he, in fact, had the qualifying inpatient experience.

[00:04:08] Speaker 02:
The judge asked for it.

[00:04:09] Speaker 02:
I presented it.

[00:04:10] Speaker 04:
We understand that.

[00:04:11] Speaker 04:
We're asking different questions.

[00:04:16] Speaker 04:
that was submitted on July 8th by your client to CopHealth.

[00:04:25] Speaker 04:
Is that in the record?

[00:04:27] Speaker 02:
I'm not certain.

[00:04:28] Speaker 02:
I assume it is, but I don't know that I attached it to my briefing.

[00:04:33] Speaker 04:
What was in that application?

[00:04:35] Speaker 04:
I mean, didn't they ask for his background and experience?

[00:04:39] Speaker 02:
I think generally yes.

[00:04:40] Speaker 02:
I don't know if that called for his resume or not.

[00:04:43] Speaker 02:
I honestly can't recall the specifics of that application.

[00:04:47] Speaker 02:
But I can tell the court that Compelt had his resume on June 18th, and it had two sources of... Wait a minute.

[00:04:58] Speaker 02:
June 18th.

[00:04:58] Speaker 02:
I thought the application was not made until July.

[00:05:01] Speaker 02:
That's correct.

[00:05:02] Speaker 02:
But they had his resume on June 18th, which had two sources of inpatient experience.

[00:05:08] Speaker 04:
They asked for an updated resume.

[00:05:10] Speaker 04:
Is that CV in the record?

[00:05:12] Speaker 02:
Yes, it is.

[00:05:13] Speaker 04:
And is there anything in the record that indicated

[00:05:16] Speaker 04:
How and why they had that?

[00:05:19] Speaker 04:
Because he hadn't applied yet.

[00:05:21] Speaker 02:
Well, yes.

[00:05:22] Speaker 02:
What's in the record is Preston Powell sought him out.

[00:05:26] Speaker 02:
They found Dr. Brown in a database of providers.

[00:05:31] Speaker 02:
No, no, not Western.

[00:05:32] Speaker 02:
CompHealth did.

[00:05:33] Speaker 04:
And is your record clear that at that time they had

[00:05:38] Speaker 04:
That CV?

[00:05:40] Speaker 02:
Yes.

[00:05:41] Speaker 02:
Yes, Preston Powell in an email that's attached to our briefing.

[00:05:44] Speaker 02:
And I'm confident we quoted it saying, I have your CV.

[00:05:48] Speaker 02:
That was an email on June 18.

[00:05:51] Speaker 02:
And they asked later for an updated CV, which he provided.

[00:05:56] Speaker 02:
And that included two more sources of inpatient experience.

[00:05:59] Speaker 04:
When did they ask for the updated CV?

[00:06:02] Speaker 02:
I want to say that was around the 8th, 9th, 10th of July.

[00:06:08] Speaker 04:
That could be important.

[00:06:09] Speaker 04:
The application was made on the 8th of July.

[00:06:15] Speaker 02:
Yeah, I assume so.

[00:06:16] Speaker 02:
I don't recall that specifically.

[00:06:18] Speaker 04:
So are you telling me that from the CVs they had, the earlier June CV and the updated one from July 8, that they had that in their possession when they rejected him on a credential basis

[00:06:32] Speaker 04:
on the 12th of July because of lack of sufficient inpatient.

[00:06:37] Speaker 02:
That is correct.

[00:06:38] Speaker 02:
Absolutely.

[00:06:39] Speaker 02:
They had it all.

[00:06:40] Speaker 02:
And that part, I think, is not disputed.

[00:06:44] Speaker 04:
Does the record indicate that he had any opportunity to have a colloquy with them about this?

[00:06:52] Speaker 04:
Right about the time when they rejected his credentials and canceled the assignment to Western?

[00:07:00] Speaker 02:
Yes, the record indicates there was no conversation.

[00:07:04] Speaker 02:
The Comp Health's 30B6 witness testified.

[00:07:08] Speaker 04:
Did your client do anything to generate a colloquy with Comp Health?

[00:07:14] Speaker 02:
No, because he understood credentialing had taken place when they recommended him to Western State on June 28.

[00:07:21] Speaker 04:
Well, no, no, okay.

[00:07:21] Speaker 04:
But something went haywire on the 12th, is that they rejected him on credentialing.

[00:07:26] Speaker 04:
So after he was rejected,

[00:07:28] Speaker 04:
Did he try to initiate a colloquy with them about this?

[00:07:33] Speaker 02:
Yes, absolutely.

[00:07:34] Speaker 02:
And the record indicates that?

[00:07:35] Speaker 02:
The record indicates that.

[00:07:36] Speaker 02:
He asked Preston Powell.

[00:07:37] Speaker 02:
He said, I can't do it.

[00:07:39] Speaker 02:
My supervisor, whose name I'm forgetting.

[00:07:42] Speaker 04:
Did you include that in your papers when you were briefing the bad faith issue or the interference issue?

[00:07:49] Speaker 02:
I believe we did.

[00:07:50] Speaker 02:
I can't give you a record citation.

[00:07:52] Speaker 02:
In the papers?

[00:07:52] Speaker 02:
In the papers, I believe we did, yes.

[00:07:54] Speaker 04:
Did you argue it orally at the argument

[00:07:58] Speaker 04:
in front of the judge, the district judge?

[00:08:01] Speaker 02:
I don't recall if that question came up at the hearing.

[00:08:05] Speaker 02:
I don't recall that, Your Honor.

[00:08:07] Speaker 02:
But it was Autumn Rich was the supervisor's name.

[00:08:11] Speaker 02:
And that conversation, I'm confident, is in the briefing.

[00:08:13] Speaker 02:
Judge Morris has a question.

[00:08:14] Speaker 02:
Yes, sorry, Judge Morris.

[00:08:16] Speaker 05:
Yeah, I'm trying to get some clarification here, because I want to make sure that we're talking about the same thing.

[00:08:23] Speaker 05:
You said that your original position in your pleadings or in your briefings is that their standard, their actual credentials were unreasonable.

[00:08:33] Speaker 05:
But then at the oral argument, you realized the judge wanted to talk about the actual application of those standards.

[00:08:43] Speaker 05:
And that's when you argued, well, yes, he did have some inpatient experience.

[00:08:50] Speaker 05:
And I guess what I want to know is on that inpatient experience that you were relying on at the hearing and now, was that standard inpatient experience or were you talking about the equivalent of inpatient experience?

[00:09:08] Speaker 05:
Were you saying, well, okay, he wasn't actually in a inpatient setting, which is what the credential apparently required and worked in an inpatient setting.

[00:09:20] Speaker 05:
But he had this telehealth experience.

[00:09:23] Speaker 05:
And so that was essentially the equivalent of an inpatient setting.

[00:09:27] Speaker 05:
Do you see what I'm saying?

[00:09:29] Speaker 02:
I do see what you're saying.

[00:09:30] Speaker 02:
Oh, go ahead.

[00:09:33] Speaker 05:
I'm sorry.

[00:09:35] Speaker 05:
OK, because it seems important to me, because if you're still arguing, gee, no, he wasn't in an inpatient setting, but we think this was the equivalent,

[00:09:46] Speaker 05:
You're still really arguing about the reasonableness or unreasonableness of their credentials.

[00:09:53] Speaker 05:
And so I'm trying to clarify if his actual experience that you're now relying on is inpatient setting, in an inpatient setting experience versus tele.

[00:10:07] Speaker 02:
Yes, it is.

[00:10:08] Speaker 02:
And the record citation on the appeal is page 473 of the appendix.

[00:10:14] Speaker 02:
Dr. Holmberg's report are expert.

[00:10:17] Speaker 02:
And for example, Great Rivers, Dr. Brown reviewed inpatient medical records and participated in inpatient plan of care meetings in hospitals.

[00:10:28] Speaker 02:
In the US Air Force Reserve, he worked and consisted in seeing patients, many of which were not in inpatient settings, but many of which were.

[00:10:40] Speaker 02:
The community health plan,

[00:10:44] Speaker 02:
He was reviews of inpatient care.

[00:10:48] Speaker 04:
All this through the record at 473.

[00:10:50] Speaker 02:
It is.

[00:10:51] Speaker 02:
It is.

[00:10:51] Speaker 04:
Let me ask you this.

[00:10:52] Speaker 04:
That is when the litigation is underway.

[00:10:58] Speaker 04:
Was that articulation of his inpatient experience evident expressly or in the...

[00:11:10] Speaker 04:
CV that was given to them in June and it was updated on about the 10th of July.

[00:11:23] Speaker 04:
I believe so.

[00:11:25] Speaker 02:
Is that the CV you're looking at?

[00:11:27] Speaker 02:
That's the CV I'm looking at.

[00:11:28] Speaker 03:
What does it say about those positions?

[00:11:30] Speaker 02:
So, Medical Director of Pacific Teen, that one was telemedicine, we know, but it was medication management, interdisciplinary case conferences, Great Rivers, he supervised clinical staff, inpatient utilization management,

[00:11:47] Speaker 02:
I mean, there's enough description here to at least ask the question.

[00:11:51] Speaker 05:
What does that mean, inpatient utilization management?

[00:11:55] Speaker 02:
I don't know specifically, but my point is that there's enough here to say, were you inpatient or not?

[00:12:03] Speaker 02:
And they didn't even ask the question.

[00:12:05] Speaker 02:
They didn't even consider the other three sources.

[00:12:08] Speaker 04:
That CV is in our record.

[00:12:10] Speaker 02:
It is.

[00:12:11] Speaker 04:
Was it in the record when the

[00:12:16] Speaker 04:
argument on summary judgment was had?

[00:12:18] Speaker 02:
Yes.

[00:12:19] Speaker 04:
And was it referenced in your papers?

[00:12:25] Speaker 02:
It was referenced in the papers, the CV.

[00:12:27] Speaker 02:
The specific sources of inpatient experience I don't think were addressed in the papers in any detail.

[00:12:35] Speaker 02:
Because again, that came up because of the judge's question.

[00:12:38] Speaker 02:
And that's my concern here that I want the court to understand.

[00:12:43] Speaker 02:
The judge asks a question.

[00:12:45] Speaker 02:
I give the information, but the judge then either forgets about it or ignores it.

[00:12:50] Speaker 02:
But she addresses it in her ruling.

[00:12:53] Speaker 02:
We get it.

[00:12:54] Speaker 02:
We get your argument.

[00:12:55] Speaker 02:
And I get that there's a lot for a trial judge to keep track of.

[00:12:59] Speaker 02:
I'm not trying to ask something unreasonable.

[00:13:02] Speaker 04:
Is the supplement to the CV was in the record and referenced in your papers in the summary judgment proceedings?

[00:13:12] Speaker 02:
It was.

[00:13:13] Speaker 02:
It was document 61-5 in the trial court.

[00:13:16] Speaker 02:
It's page 1461 here.

[00:13:18] Speaker 04:
Now, I haven't dug into the records sufficiently to look at the papers that were filed on summary judgment.

[00:13:28] Speaker 04:
Was there a separate paper or a preparatory piece in both parties filing about undisputed facts?

[00:13:37] Speaker 04:
Yes, yeah, those were.

[00:13:38] Speaker 04:
And did you include that in your recitation of undisputed facts?

[00:13:42] Speaker 04:
The CVs?

[00:13:45] Speaker 02:
The CVs.

[00:13:46] Speaker 02:
I'm confident I did.

[00:13:47] Speaker 02:
I can't give you a page citation.

[00:13:50] Speaker 02:
Well, actually, I can.

[00:13:51] Speaker 02:
It's 61-5.

[00:13:52] Speaker 04:
And in your argument section, was it referenced in the summary judgment papers?

[00:14:04] Speaker 02:
In our argument section,

[00:14:07] Speaker 02:
I don't know if the CB specifically was referenced.

[00:14:10] Speaker 02:
I don't know.

[00:14:11] Speaker 04:
And I understand how that interplays with your argument, that things happened at the argument.

[00:14:18] Speaker 04:
Yes.

[00:14:19] Speaker 05:
All right.

[00:14:19] Speaker 05:
I guess I do want to confirm that the judge was not incorrect, though, was she, that your written argument in your response to summary judgment focused on the fact that he had essentially

[00:14:38] Speaker 05:
the equivalent of inpatient experience, that he had telehealth experience, and that essentially you were challenging the reasonableness of their inpatient setting requirement, which you're not allowed to do under the contract.

[00:14:56] Speaker 05:
You can challenge the application, but not the credential requirements themselves.

[00:15:01] Speaker 05:
Isn't that the case?

[00:15:03] Speaker 05:
Your focus at that time wasn't on what you were

[00:15:07] Speaker 05:
which you're now focusing on, but on essentially whether they should be requiring actual in-hospital experience.

[00:15:19] Speaker 02:
That's correct.

[00:15:20] Speaker 02:
And that's the reason for the judge's question at the hearing.

[00:15:23] Speaker 05:
Right.

[00:15:23] Speaker 05:
And that's the reason the judge said, well, I'm going to find that you waived this argument you're making now.

[00:15:29] Speaker 05:
Even if there were essentially records to support it,

[00:15:34] Speaker 05:
She said, look, that's not the argument you're making.

[00:15:40] Speaker 02:
Actually, she didn't say we waived it.

[00:15:42] Speaker 02:
What she said in her decision was that Dr. Holmberg's opinion really questions the reasonableness of the standard and doesn't provide any real information about actual inpatient experience.

[00:15:54] Speaker 02:
That's what she ruled, and that's where it's incorrect.

[00:15:58] Speaker 05:
That's true, isn't it?

[00:16:01] Speaker 05:
That's true, isn't it?

[00:16:02] Speaker 05:
She wasn't wrong about that, was she?

[00:16:03] Speaker 02:
No, she was wrong.

[00:16:04] Speaker 02:
Dr. Holmberg's opinion talks about both the unreasonableness of the standard and that he had several sources of inpatient experience and what they consisted of.

[00:16:14] Speaker 05:
OK.

[00:16:15] Speaker 02:
So that's what we believe she misapprehended, was what's in the report.

[00:16:19] Speaker 05:
She was right about your argument, but she was wrong about the underlying facts.

[00:16:26] Speaker 05:
You're saying you did argue the reasonableness aspects.

[00:16:29] Speaker 04:
Absolutely argued that.

[00:16:31] Speaker 04:
And that occurred in the Rule 56 proceedings, not the Rule 59 proceedings.

[00:16:37] Speaker 02:
That was at the Rule 56 hearing.

[00:16:39] Speaker 02:
Yes.

[00:16:40] Speaker 02:
Yes.

[00:16:42] Speaker 02:
And then she addressed it in the decision.

[00:16:44] Speaker 02:
And what's significant there, I know I'm out of town, but if I can finish this thought, what's significant there is that in her decision, she actually

[00:16:53] Speaker 02:
Discussed dr.. Holmberg's report and said what she thought it included or not included She would have to have read that report to make that statement, so we know it was conveyed her She understood it she read the report made a decision which we disagree with But there's no question that she knew what was in that report And that occurred in the rule 56 proceedings it did it did okay?

[00:17:19] Speaker 01:
Thank you counsel, okay?

[00:17:20] Speaker 01:
Thank you

[00:17:23] Speaker 01:
May it please the court, Rick Enzer, on behalf of CHG Companies, Inc., DBA, as Comp Health.

[00:17:31] Speaker 01:
Let me start by whether or not this issue we're dealing with on the reasonableness of the determination on credentialing and being able to ensure was fairly presented to the district court.

[00:17:44] Speaker 01:
The answer is that it was not.

[00:17:46] Speaker 01:
The first cause of action in the complaint raised by Dr. Brown asserts

[00:17:52] Speaker 01:
It's called breach of contract, semi-colon, breach of implied faith in good dealing.

[00:17:56] Speaker 01:
So there's not a lot of clarity from the caption of the first cause of action.

[00:18:01] Speaker 01:
So what COMP Health did was we filed a summary judgment motion moving on both express contract terms and moving on the breach of good faith and fair dealing.

[00:18:13] Speaker 01:
And in response to

[00:18:15] Speaker 01:
comp house motion on summary judgment motion for dismissal of any claims relating to the breach of an express contract term, Dr. Brown did not respond at all.

[00:18:28] Speaker 01:
He solely responded with the arguments about the breach of the implied covenant of good faith and fair dealing.

[00:18:34] Speaker 01:
And so after he filed his opposition, not focusing on the express contract terms, focusing on the breach of good faith and fair dealing, which really

[00:18:44] Speaker 01:
gets to Judge Moritz's point that was really focused on whether or not this procedure is unreasonable as a whole.

[00:18:54] Speaker 01:
Compel filed a reply brief saying there is no argument raised that there's any breach in the express contract term and therefore summary judgment should be granted on the express contract terms.

[00:19:06] Speaker 01:
Dr. Brown was provided with the opportunity for a reply.

[00:19:09] Speaker 01:
And once again, a sir reply.

[00:19:12] Speaker 01:
A reply to your reply?

[00:19:14] Speaker 01:
Yes, your honor.

[00:19:15] Speaker 01:
A sir reply.

[00:19:17] Speaker 04:
All right.

[00:19:18] Speaker 04:
And that occurs during an oral argument, doesn't it?

[00:19:21] Speaker 04:
He actually was provided with the opportunity to provide a written sir reply.

[00:19:24] Speaker 04:
What do you mean?

[00:19:26] Speaker 04:
The judge issued an order saying you can do a sir reply?

[00:19:30] Speaker 04:
Yes, your honor.

[00:19:31] Speaker 01:
There's an order that says, and you can do this.

[00:19:33] Speaker 01:
Correct.

[00:19:34] Speaker 01:
Judge Parris said, yeah, you can file a short.

[00:19:37] Speaker 01:
I think it was under five pages.

[00:19:38] Speaker 04:
So he must have asked him to be able to do that.

[00:19:40] Speaker 01:
He did, Your Honor.

[00:19:41] Speaker 01:
OK.

[00:19:42] Speaker 01:
And in that surreply, again, Dr. Brown does not focus on the express contract terms.

[00:19:48] Speaker 01:
The first heading, again, is called breach of the implied covenant of good faith and fair dealing.

[00:19:53] Speaker 04:
I understand.

[00:19:54] Speaker 04:
Let me ask you this.

[00:19:55] Speaker 04:
But it sounds like at the oral argument,

[00:20:02] Speaker 04:
that there was a consideration by the district judge about the application of the standards.

[00:20:14] Speaker 04:
And at that time, the plaintiff's lawyer got engaged and was talking about these other things on his inpatient experience, correct?

[00:20:30] Speaker 04:
Isn't that what oral argument is meant for?

[00:20:34] Speaker 04:
To yellow papers, that's all completed.

[00:20:38] Speaker 04:
And oral argument is to explore this.

[00:20:45] Speaker 04:
So they explored it.

[00:20:48] Speaker 04:
And then in the Rule 59, the judge said, well, that was too late.

[00:20:55] Speaker 01:
Your Honor, I think it's fair to say oral argument serves a variety of purposes, including to explore the party's position in the test and probe.

[00:21:03] Speaker 01:
But there are obligations in the briefing to cite evidence with specificity in response to undisputed facts that are asserted by the moving party.

[00:21:15] Speaker 01:
And the court and Judge Paris was not obligated to go through the record and try to find out what

[00:21:23] Speaker 01:
Dr. Brown was talking about during oral argument.

[00:21:26] Speaker 04:
But in oral argument, that generates that colloquy between the judge and the lawyer.

[00:21:35] Speaker 04:
And that's when this whole thing came out.

[00:21:37] Speaker 04:
So there was engagement there.

[00:21:41] Speaker 04:
And shouldn't there be a purpose for that engagement and consequences to it?

[00:21:48] Speaker 01:
Your Honor, there certainly should be purposes and consequences to oral argument.

[00:21:52] Speaker 01:
But arguments not addressed in the brief can be considered waived.

[00:21:58] Speaker 01:
And facts not disputed or disputed with evidence that doesn't support the argument, that's insufficient under Rule 56 to establish a disputed fact.

[00:22:11] Speaker 04:
Well, when you take it a step further, OK, I understand your point that the judges

[00:22:18] Speaker 04:
Kind of wondering what's going on here now.

[00:22:20] Speaker 04:
This is a little different than what I expected.

[00:22:22] Speaker 04:
And then she rules against the plaintiff on summary judgment and issues of summary judgment.

[00:22:31] Speaker 04:
And then there's a Rule 59 proceeding.

[00:22:33] Speaker 04:
Now, isn't that a second opportunity to reengage on this so that fairness is done and proper claims are acknowledged?

[00:22:45] Speaker 01:
Yes, Your Honor.

[00:22:46] Speaker 01:
That's correct.

[00:22:47] Speaker 04:
I think the district court felt... And in that proceeding, the judge said to him, he didn't engage me on it in the Rule 56 proceedings, and you can't do so now.

[00:22:59] Speaker 01:
That's correct, Your Honor.

[00:23:01] Speaker 03:
What are the limits of the Rule 59 proceeding?

[00:23:04] Speaker 03:
I mean, you don't get to relitigate everything in a Rule 59 proceeding, so what do you get to do in a Rule 59 proceeding?

[00:23:11] Speaker 01:
Your Honor, it's fairly limited.

[00:23:13] Speaker 01:
And in this case, I think Rule 59 would be limited to whether or not the judge made an error of law or misunderstood a certain fact, Your Honor.

[00:23:24] Speaker 01:
It's a fairly narrow scope of review at that point.

[00:23:31] Speaker 01:
But to go back to Judge Murphy's point, if I may, Judge Carson, I think the district court was

[00:23:37] Speaker 01:
in her right to say, you raised a point in oral argument that I had never seen in your opposition, I had not seen in your written sir reply, I had never seen the term specific teen once in any of the written documents, I had never seen

[00:23:55] Speaker 01:
facility, Great Rivers, in any of the written documents.

[00:23:57] Speaker 01:
I've never seen this alleged argument that the Air Force reserves provided this sort of inpatient facility.

[00:24:05] Speaker 01:
I think the courts are within our right to say, you never cited me to that at a single point, and therefore I'm not going to go parse the records now.

[00:24:13] Speaker 01:
And really, if you look at a couple things on this point, Judge, statement of fact number 13 is really

[00:24:22] Speaker 01:
And my motion, and Cockhouse motion, is really where this issue was brought to a head.

[00:24:27] Speaker 01:
What are you referring to again, I'm sorry?

[00:24:33] Speaker 01:
It's statement of fact 13, my proposed statement of fact number 13 from my 56th motion, appendix

[00:24:42] Speaker 01:
260 and 261.

[00:24:44] Speaker 01:
That's where Dr. Brown responds to Compel's assertion that he was uninsurable and he could not be credentialed and so he was properly canceled.

[00:24:56] Speaker 01:
And in response to that,

[00:25:01] Speaker 01:
You don't see the references to Pacific Teen, Great Rivers, the Air Force Reserve.

[00:25:06] Speaker 01:
What you see is what some of the question is already focused on.

[00:25:11] Speaker 01:
You see an answer from Dr. Brown saying a couple different things.

[00:25:15] Speaker 01:
Says, well, comp health's inpatient experience is unreasonable.

[00:25:20] Speaker 01:
Requiring inpatient experience is unreasonable.

[00:25:22] Speaker 01:
That's one thing Dr. Brown says.

[00:25:24] Speaker 01:
He says psychiatrists frequently change jobs.

[00:25:28] Speaker 01:
They go back and forth.

[00:25:29] Speaker 01:
And so you can't have this inpatient requirement.

[00:25:32] Speaker 01:
It doesn't make any sense.

[00:25:34] Speaker 01:
He says telemedicine really can be inpatient medicine.

[00:25:38] Speaker 01:
They shouldn't view telemedicine as not being inpatient medicine.

[00:25:42] Speaker 01:
And then Dr. Brown complains that the way comp health uses the term credentialed is vague and unclear and was ambiguous to him.

[00:25:52] Speaker 01:
So when the issue was brought to the front in the written papers, Dr. Brown doesn't respond with any of the evidence that he's repeatedly cited in this court about these different assignments.

[00:26:13] Speaker 04:
Let me ask you this.

[00:26:13] Speaker 04:
Would it be fair to say that Dr. Brown did so, however,

[00:26:20] Speaker 04:
at the oral argument in the Rule 56 proceedings?

[00:26:23] Speaker 01:
It would be fair that Dr. Brown brought up those assignments at oral argument in the Rule 56 proceeding.

[00:26:30] Speaker 01:
They were referenced, Your Honor.

[00:26:31] Speaker 01:
Not highlighted at length, but they certainly were referenced.

[00:26:36] Speaker 05:
And were those, are your credentials the actual inpatient setting requirement that I've seen referred to in all the briefing?

[00:26:45] Speaker 05:
Are the credentials the actual wording somewhere?

[00:26:49] Speaker 05:
Written in the record?

[00:26:51] Speaker 01:
They are not, Your Honor.

[00:26:53] Speaker 01:
The testimony from a variety of CHG employees set forth what they were looking for in this case was some inpatient experience.

[00:27:03] Speaker 05:
Well, there was some suggestion that there maybe weren't even any written credentialing requirements.

[00:27:09] Speaker 05:
I think there was a footnote in Dr. Brown's brief suggesting not sure if there was even any written credentialing requirements.

[00:27:17] Speaker 05:
Is that true?

[00:27:19] Speaker 01:
Your Honor, what I can tell you is no written credential requirements were produced in the case.

[00:27:26] Speaker 04:
Well, you said that the comp health employees testified about it.

[00:27:31] Speaker 04:
In their testimony about it, did they talk about a written set of credentials?

[00:27:38] Speaker 01:
I believe it was referenced, Your Honor.

[00:27:39] Speaker 01:
That there were written credentials?

[00:27:41] Speaker 01:
I believe that's correct, Your Honor.

[00:27:43] Speaker 04:
OK, do you have a witness name?

[00:27:45] Speaker 04:
Can you give us a witness name?

[00:27:48] Speaker 01:
Stephanie Cottle, I believe, referenced that, as did the primary, the 30B6 witness.

[00:27:58] Speaker 05:
I thought Stephanie Cottle actually testified that she never even got a chance to apply, essentially apply the credentials to Dr. Brown's CV or to his qualifications because she was instructed by somebody above her

[00:28:16] Speaker 05:
that he didn't meet the credentials.

[00:28:18] Speaker 05:
So the process never actually even happened.

[00:28:21] Speaker 05:
Is that right?

[00:28:23] Speaker 01:
No, I don't think that's quite right.

[00:28:25] Speaker 01:
If you look at, excuse me, I forget his name, the main individual

[00:28:38] Speaker 01:
Sorry, Powell, Preston Powell's testimony.

[00:28:43] Speaker 01:
Yeah, if you look at the collective testimony, Your Honor, of Preston Powell, the 30B6 witness, and Stephanie Cottle, it was clear they were trying to get him credentialed.

[00:28:53] Speaker 01:
They were going through the process.

[00:28:56] Speaker 01:
There is this two-year requirement that even when Dr. Brown provided his updated CV, they still didn't meet

[00:29:07] Speaker 01:
the inpatient criteria, your honor.

[00:29:11] Speaker 05:
I guess it's just hard for me to make a distinction between a reasonableness argument and an application argument, which is what the district court did, when no one seems to even know exactly what the credentials require.

[00:29:25] Speaker 05:
Did they require?

[00:29:26] Speaker 05:
Did they say you must be in an inpatient setting?

[00:29:30] Speaker 05:
Did they require the equivalent of an inpatient setting?

[00:29:34] Speaker 05:
It's odd to me that no one

[00:29:37] Speaker 05:
has ever set out what exactly the credentials required.

[00:29:43] Speaker 05:
And it seems to me maybe that's part of the problem and why the argument was, well, your interpretation of whatever they are doesn't seem reasonable, or your application doesn't seem reasonable.

[00:29:55] Speaker 05:
It's as though it all blended into one.

[00:29:59] Speaker 05:
It seems hard for us to review

[00:30:01] Speaker 05:
the application of these credentials, but we don't even have the credential or any definition or how they viewed whatever the requirement was.

[00:30:12] Speaker 05:
What is inpatient, an inpatient setting?

[00:30:16] Speaker 05:
Is that what the credential is?

[00:30:19] Speaker 05:
How much do you have to have?

[00:30:21] Speaker 05:
Is it two full years or is it two days or what is it?

[00:30:26] Speaker 01:
Well, Your Honor, I think the testimony is clear that there needs to be some experience in an inpatient facility within two years.

[00:30:34] Speaker 01:
And while it was not... But how much?

[00:30:37] Speaker 05:
How much?

[00:30:40] Speaker 01:
Your Honor, I don't know the answer to that off the top of my head.

[00:30:44] Speaker 05:
But the... Isn't that kind of important?

[00:30:46] Speaker 05:
I mean, if you're going to say he's not credentialed because he doesn't have inpatient experience, it's pretty important to know if one day is enough

[00:30:57] Speaker 05:
One year?

[00:30:58] Speaker 01:
Well, Your Honor, I think the answer to that is it's whatever it is for CAC's credentialing and insurance policy department to get comfortable.

[00:31:07] Speaker 01:
I mean, they're placing a physician at a facility of a client, and they need to have confidence that the doctor has the right experience and that the provider can be insured.

[00:31:18] Speaker 05:
Tell the doctor it's part of this contract, too.

[00:31:22] Speaker 05:
The doctor's part of the contract, too.

[00:31:23] Speaker 05:
Doesn't he have a right to know what the credentials are?

[00:31:26] Speaker 05:
And I maybe don't.

[00:31:27] Speaker 05:
Obviously, no one else is complaining that the credentials that we're all talking about aren't even part of the record.

[00:31:32] Speaker 05:
But it struck me as odd.

[00:31:35] Speaker 01:
Thank you for your question, Your Honor.

[00:31:37] Speaker 01:
If I may address one slightly separate.

[00:31:40] Speaker 01:
Wait a minute.

[00:31:40] Speaker 04:
Let's continue on down this pathway.

[00:31:43] Speaker 04:
Who is the witness who, on the 12th of July, said, you're finished?

[00:31:52] Speaker 04:
We're going to reject you on credentials, and then we're going to cancel the assignment to Western.

[00:31:58] Speaker 04:
Preston Powell, Your Honor.

[00:31:59] Speaker 04:
OK, that was Powell.

[00:32:00] Speaker 04:
And he was the designated witness for got help.

[00:32:04] Speaker 01:
He was not the 30B6.

[00:32:06] Speaker 01:
He was the relationship manager with Dr. Brown.

[00:32:10] Speaker 04:
OK, let me ask you this.

[00:32:13] Speaker 04:
Is the record indicate that Powell had

[00:32:17] Speaker 04:
the CV from June in the supplemental CV.

[00:32:25] Speaker 01:
It does, Your Honor.

[00:32:26] Speaker 04:
It does.

[00:32:28] Speaker 04:
And he had the application of July 8th.

[00:32:34] Speaker 04:
Correct, Your Honor.

[00:32:37] Speaker 04:
And the PSA was signed after Powell and the company's receipt of the CV

[00:32:47] Speaker 04:
and the application, then the PSA was signed two days later, correct?

[00:32:52] Speaker 01:
Correct, Your Honor.

[00:32:53] Speaker 04:
And then one day later, there was an assignment of Dr. Brown to Western, correct?

[00:33:04] Speaker 01:
I would have to double check, Your Honor.

[00:33:05] Speaker 01:
That sounds correct.

[00:33:07] Speaker 04:
And then another day later, all of a sudden, he's rejected on the basis of credentials.

[00:33:14] Speaker 04:
Is that correct?

[00:33:15] Speaker 03:
That's correct, Your Honor.

[00:33:17] Speaker 04:
Is there anything involved with good faith of a person with whom Comp Health has a PSA contract to engage the doctor who's the subject of that CV, who's the subject of the application, who's the subject of the supplemental CV?

[00:33:42] Speaker 04:
Is there any requirement with good faith?

[00:33:45] Speaker 04:
for them to engage this person?

[00:33:48] Speaker 01:
Your Honor, I would say factually in the record reflects they did.

[00:33:51] Speaker 01:
Dr. Brown was very curt with Preston Powell once he was informed that he was not getting this assignment.

[00:33:59] Speaker 04:
Wait a minute.

[00:34:00] Speaker 04:
I mean, no.

[00:34:01] Speaker 04:
I'm talking about before they say you're not getting the assignment, before they just cancel the assignment, was there any attempt

[00:34:15] Speaker 04:
to engage Dr. Brown before.

[00:34:18] Speaker 01:
Let me answer that twofold.

[00:34:21] Speaker 01:
One, they got an updated resume in an effort to try to find something that would satisfy the inpatient experience requirement.

[00:34:30] Speaker 01:
While this was going on, they were trying.

[00:34:32] Speaker 01:
But to answer your question directly, no, there was not a conversation prior to the call where Dr. Brown was informed.

[00:34:39] Speaker 04:
Do you think good faith suggests that would have been an appropriate thing to do?

[00:34:46] Speaker 01:
Your Honor, I think the doctrine of good faith and fair dealing under Utah law is fairly limited under the Young Living case.

[00:34:53] Speaker 01:
I know that.

[00:34:56] Speaker 04:
I was the trial judge of the Olympic Hills case.

[00:34:59] Speaker 04:
OK.

[00:35:01] Speaker 04:
I didn't catch that.

[00:35:04] Speaker 04:
But there is situations where there is an implied duty of good faith and fair dealing.

[00:35:11] Speaker 04:
even in Utah, correct?

[00:35:13] Speaker 01:
Of course, Your Honor.

[00:35:14] Speaker 04:
It's just very limited, and it's really... Tell me why Utah law says that there is no obligation to good faith under the factual scenario that I gave you, which is not a hypothetical.

[00:35:28] Speaker 04:
It's what happened in this case.

[00:35:30] Speaker 01:
Because the contract, the doctrine of good faith and fair dealing, will apply additional terms to a contract that are not in there.

[00:35:39] Speaker 01:
They'll apply additional terms to a contract that only if it is something the parties didn't think about and everyone who, if they had ever thought about it, would have written that term into it, would have implied that term into it.

[00:35:52] Speaker 04:
Isn't there a lot of things that the parties hadn't thought about when there's maybe confusion about what the

[00:36:08] Speaker 04:
background experience was from the CV, supplemental CV, from the application.

[00:36:17] Speaker 04:
How does that fit into the Utah law that you just told me about?

[00:36:21] Speaker 01:
Judge, I don't think it does.

[00:36:24] Speaker 01:
And why?

[00:36:26] Speaker 01:
Because that would be adding terms to the contract through the implied covenant, which is very narrowly done in Utah.

[00:36:33] Speaker 04:
Well, it seems to me that maybe it's considering

[00:36:37] Speaker 04:
how to apply the terms of the contract, and that is the credentialing.

[00:36:44] Speaker 01:
Your Honor, to the extent there should be a conversation or a discussion going on between the provider and Comp Health, that would be any sort of requirement that... Providing provider meaning Dr. Brown.

[00:37:00] Speaker 01:
Correct.

[00:37:01] Speaker 01:
Yeah, but it's between Dr. Brown.

[00:37:03] Speaker 01:
I absolutely agree with you.

[00:37:05] Speaker 01:
It should be part of the conversation.

[00:37:06] Speaker 01:
What I'm saying, Your Honor, is that would be adding a term to the contract, which under Utah law wouldn't be added.

[00:37:18] Speaker 04:
What terms are adding to the contract?

[00:37:21] Speaker 04:
What's the term that's not in the contract, the PSA, that it would be adding?

[00:37:28] Speaker 01:
That comp health shall reach out to Dr. Brown upon a determination that

[00:37:35] Speaker 01:
He cannot meet credentialing standards or insurance standards and have a conversation to discuss them.

[00:37:40] Speaker 04:
Isn't it inherent in their invocation of their cancellation powers?

[00:37:46] Speaker 04:
Isn't it inherent?

[00:37:48] Speaker 04:
Do they have some colloquy?

[00:37:50] Speaker 01:
It is not, Your Honor.

[00:37:53] Speaker 01:
Whether it's a good idea to do that or not, it's not in the contract and it shouldn't be implied by the doctrine of good faith.

[00:38:01] Speaker 04:
So if there's no obligation to do that, there's really no reason to have an application.

[00:38:05] Speaker 04:
There's no reason to receive a CV.

[00:38:07] Speaker 04:
There's no reason to receive a supplemental CV, correct?

[00:38:10] Speaker 01:
Well, I disagree with that, Your Honor, and that would get me to my last point if I could give it just a touch.

[00:38:16] Speaker 03:
Why don't you answer your way over time?

[00:38:18] Speaker 03:
Go ahead and answer his question, and then we're going to shut it down and give your opposing counsel a couple of minutes since we're so far over.

[00:38:25] Speaker 01:
Fair enough, Judge.

[00:38:27] Speaker 01:
Thank you.

[00:38:27] Speaker 01:
There's a variety.

[00:38:29] Speaker 01:
The CD and the application and the contract process are all part of bringing together

[00:38:36] Speaker 01:
the CHG, the provider, and the hospital.

[00:38:40] Speaker 01:
And there are three different ways that an assignment can be terminated.

[00:38:46] Speaker 01:
If it's terminated under section 4.1 for insurance or credentials, there's no liability or no insurance.

[00:38:53] Speaker 01:
No liability, and you don't have to provide any notice.

[00:38:56] Speaker 01:
But under section 4.4, which is, if he's terminated, there's two provisions there.

[00:39:03] Speaker 01:
is you can terminate with 30 days notice for any reason.

[00:39:07] Speaker 01:
Terminate for any reason with 30 days notice under section 4.4.

[00:39:12] Speaker 01:
And if you don't terminate

[00:39:14] Speaker 01:
with 30 days notice under section 4.4, then there's an agreed upon compensation structure.

[00:39:22] Speaker 01:
So to answer the course point, I mean, there's a lot of reasons why you have to go through the process of lining up the hospital, the provider, and CHG all together through these documents and these CVs.

[00:39:34] Speaker 01:
But when it comes to the determination, there's 4.1, which is without notice and without liability.

[00:39:40] Speaker 01:
But if it's not under 4.1, then you fall under 4.4, which is

[00:39:44] Speaker 01:
You don't need notice.

[00:39:46] Speaker 01:
I'm sorry.

[00:39:46] Speaker 01:
It's with 30 days notice.

[00:39:47] Speaker 01:
You can terminate anything.

[00:39:49] Speaker 01:
And if it's under 30 days, then there's a set compensation formula.

[00:39:53] Speaker 01:
So even if Dr. Brown wasn't terminated under 4.1, he was terminated under 4.4, and at most is entitled to, I think, two days of compensation under that formula.

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

[00:40:03] Speaker 03:
Thank you, counsel.

[00:40:04] Speaker 03:
Thank you.

[00:40:05] Speaker 03:
All right.

[00:40:05] Speaker 03:
Let's give him two minutes to.

[00:40:09] Speaker 03:
He was over two, just not as far over.

[00:40:11] Speaker 03:
So we'll give him a couple of minutes or a little.

[00:40:13] Speaker 02:
Thank you.

[00:40:14] Speaker 02:
Judge Murphy, to your point, it does not change the terms of the contract.

[00:40:19] Speaker 02:
Contract requires a reasonable determination.

[00:40:22] Speaker 02:
That's in quotes, that's their contract language.

[00:40:25] Speaker 02:
Before a cancellation can be made, that's an objective determination.

[00:40:29] Speaker 02:
And that process absolutely requires, in good faith, a discussion with the candidate to find out if they meet the credentialing standard or not.

[00:40:41] Speaker 02:
And we did ask multiple witnesses about written credentialing standards.

[00:40:46] Speaker 04:
Did you argue this very thing in your papers in the Rule 56 proceeding?

[00:40:55] Speaker 02:
I believe we argued that no one talked to him.

[00:40:59] Speaker 02:
I can't give you a, well, I can give you a site.

[00:41:03] Speaker 04:
Well, no, if you tell me it's in there, we'll look at your, are the summary judgment papers in the record?

[00:41:09] Speaker 02:
They are.

[00:41:10] Speaker 02:
But I'll tell you, I'll tell you it's 107 to 109 of the appendix where the witness said no, and that was part of our opposition.

[00:41:22] Speaker 02:
I also take Judge Moritz's point that the

[00:41:26] Speaker 02:
reasonableness of the standard and the application of the standard do get sort of muddled and blended.

[00:41:32] Speaker 02:
And it requires kind of some shadow boxing to figure out exactly what Comp Health wants.

[00:41:37] Speaker 02:
Because there are, counsel is correct, there are no written, there's no written description of this credentialing standard.

[00:41:46] Speaker 05:
Now there are general guidelines for- Did you request, did you, when you went through discovery, did you request

[00:41:53] Speaker 05:
The credentials, the written credentials, if they existed?

[00:41:57] Speaker 02:
I believe so, and counsel is correct, none were produced.

[00:42:01] Speaker 02:
But there are some general guidelines about credentialing, just nothing that explains this recent inpatient credentialing standard.

[00:42:10] Speaker 03:
Are your document requests in the record?

[00:42:12] Speaker 03:
I don't think so.

[00:42:13] Speaker 03:
OK, so we can't, there's no way for us to know if you asked for them or not.

[00:42:17] Speaker 02:
No way to know if we made a written request, but we did ask Stephanie Cottle and the 30B6 witness, and none of them could identify a written explanation of this inpatient experience standard.

[00:42:35] Speaker 04:
So you tell us you asked that question.

[00:42:37] Speaker 02:
In the depositions, yes.

[00:42:39] Speaker 04:
And are those depositions in the record?

[00:42:40] Speaker 02:
They are.

[00:42:41] Speaker 04:
OK.

[00:42:42] Speaker 04:
You said there were general quadritulins.

[00:42:44] Speaker 02:
I'm sorry?

[00:42:45] Speaker 02:
You said there was...

[00:42:46] Speaker 02:
Something called general?

[00:42:48] Speaker 02:
I believe there were general guidelines that talk about how credentialing needs to take place.

[00:42:53] Speaker 04:
They're very general.

[00:42:54] Speaker 04:
Administrative things rather than substantive.

[00:42:57] Speaker 02:
Absolutely, that's mine.

[00:42:58] Speaker 04:
And are those general credentialing matters in the record?

[00:43:02] Speaker 02:
I don't think so.

[00:43:03] Speaker 02:
I didn't include them.

[00:43:05] Speaker 02:
But the deposition testimony where I asked about credentialing standards is in the record.

[00:43:11] Speaker 02:
Do you remember what witness?

[00:43:12] Speaker 02:
I believe it was Stephanie Cottle and Preston Powell and the 30B6 Jeff Snowen.

[00:43:19] Speaker 02:
All right.

[00:43:19] Speaker 02:
Thank you, counsel.

[00:43:19] Speaker 02:
You're out of time.

[00:43:20] Speaker 02:
OK.

[00:43:20] Speaker 02:
Thank you.

[00:43:21] Speaker 03:
OK.

[00:43:21] Speaker 03:
The case will be submitted.

[00:43:22] Speaker 03:
Counsel is excused.

[00:43:23] Speaker 03:
And the court will be in recess till 9 AM tomorrow morning.