New Mexico Oncology and Hematology Consultants, Ltd. v. Presbyterian Healthcare Services

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
NEW MEXICO ONCOLOGY AND
HEMATOLOGY CONSULTANTS, LTD.,
Plaintiff - Appellant/Cross-
Appellee,
v.
PRESBYTERIAN HEALTHCARE
SERVICES; PRESBYTERIAN
NETWORK, INC.; PRESBYTERIAN
HEALTH PLANS, INC.;
PRESBYTERIAN INSURANCE, CO.,
INC.,
Defendants - Appellees/Cross-
Appellants.
------------------------------
COMMUNITY ONCOLOGY
ALLIANCE; AMERICAN MEDICAL
ASSOCIATION; AMERICAN
HOSPITAL ASSOCIATION,
Amici Curiae.
No. 19-2210 & 20-2024
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:12-CV-00526-MV-GBW)
_________________________________
George M. Sanders, Law Offices of George M. Sanders, Chicago, Illinois (Thomas
Bacon, Law Offices of George M. Sanders, Chicago, Illinois, and Alice Lorenz, Lorenz
FILED
United States Court of Appeals
Tenth Circuit
April 5, 2021
Christopher M. Wolpert
Clerk of Court
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Law, Albuquerque, New Mexico, with him on the briefs), for Plaintiff - Appellant/Cross -
Appellee.
Jeffrey A. LeVee, Jones Day, Los Angeles, California (Kelly M. Ozurovich, Jones Day,
Los Angeles, California, Kate Wallace, Jones Day, Boston, Massachusetts, Edward
Ricco, Charles K. Purcell and Bruce D. Hall, Rodey, Dickason, Sloan, Akin & Robb,
P.A., Albuquerque, New Mexico, with him on the briefs), for Defendants -
Appellees/Cross - Appellants.
Leonard A. Nelson and Kyle A. Palazzolo, American Medical Association, Chicago,
Illinois, file an Amici Curiae brief for American Medical Association.
Jeremy A Rist, Blank Rome LLP, Philadelphia, Pennsylvania, filed an Amici Curiae brief
for Community Oncology Alliance, Inc.
Douglas Ross and David Maas, Davis Wright Tremaine LLP, filed an Amici Curiae brief
for American Hospital Association.
_________________________________
Before MATHESON, KELLY, and EID, Circuit Judges.
_________________________________
KELLY, Circuit Judge.
_________________________________
Plaintiff-Appellant New Mexico Oncology Hematology Consultants Ltd.
(NMOHC) appeals from the district court’s grant of summary judgment to
Defendants-Appellees Presbyterian Healthcare Services (PHS), Presbyterian
Network, Inc., Presbyterian Insurance Co., and Presbyterian Health Plans, Inc. (PHP)
(collectively, Defendants) on NMOHC’s Sherman Act, Section 2, monopolization
and attempted monopolization claims. N.M. Oncology v. Presbyterian Healthcare
Servs., 418 F. Supp. 3d 826 (D.N.M. 2019). Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
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Background
NMOHC is a physician practice that owns and operates the New Mexico
Cancer Center (NMCC) in Albuquerque. PHS is a not-for-profit integrated
healthcare system that participates in multiple markets, including the private health
insurance market, the oncology market, and the inpatient hospital services market.
PHS employs many physicians, who are referred to collectively as the Presbyterian
Medical Group (PMG). PHS also controls PHP which operates, on a for-profit basis,
and sells health insurance products, including commercial health insurance to
employers and individuals, Medicare Advantage plans to seniors, and Medicaid
plans. NMOHC is an in-network provider for PHP.
The NMCC opened in 2002 and NMOHC and PHP entered into a five-year
provider agreement. At the expiration of the five-year term, the agreement would
move into evergreen status and renew on an annual basis if PHP and NMOHC did not
enter into a new agreement. In 2007, PHS opened its own oncology program and
began to compete with NMOHC. Around the same time, NMOHC and PHP began
negotiating a new provider agreement, however, the negotiations stalled as PHP
demanded a $3 million reduction in PHP’s payments. NMOHC and PHP remain
under the terms of the original provider agreement.
NMOHC’s claims on appeal center around three alleged anticompetitive
practices that PHS implemented: (1) the “Mandate;” (2) an alleged joint venture
between PHP and Radiology Associates of Albuquerque (RAA); and (3) PHS’s
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policies concerning physician referrals. 1 The Mandate was a benefit change that PHP
implemented on its Medicare Advantage plans. Pursuant to the Mandate, PHP would
cover certain chemotherapy support drugs covered under Medicare Part B — drugs
administered to address side effects from chemotherapy agents, such as nausea —
only if they were purchased from the Presbyterian Specialty Care Pharmacy. To
administer the drugs at the NMCC, NMOHC would have to accept shipments of the
drugs from the Presbyterian Pharmacy at the NMCC, a process NMOHC calls “white
bagging,” which it refused to do. NMOHC refused to accept these drugs on the
grounds that its doctors did not know the sources of the medication, did not know if
the Presbyterian pharmacy was appropriately handling the drugs, and did not know
the timing of when the Presbyterian pharmacy would make any shipment.
NMOHC also alleges that a joint venture between RAA and PHP existed in
which PHP enrollees needing breast imaging services were forced to use RAA under
their PHP plan. RAA shared office space with PHS-employed breast surgeons and
nurse navigators. NMOHC alleges that once a PHP patient was diagnosed with
breast cancer, RAA would refer the patient to a PHS breast surgeon and a nurse-
navigator would then schedule an appointment for the patient with a PHS oncologist
1 NMOHC also asserted below: (1) that in its negotiations for a new provider
agreement with PHP, PHP attempted to lower reimbursement rates below competitive
levels in an attempt to eliminate NMOHC from the oncology market; and (2) that
PHP and United Healthcare colluded to constrain competition in the private health
insurance market. N.M. Oncology, 418 F. Supp. 3d at 841. NMOHC briefly
mentions this conduct in its facts section but does not sufficiently raise it on appeal
as anticompetitive conduct, thereby waiving any argument on this ground. See Exum
v. U.S. Olympic Comm., 389 F.3d 1130, 1133 n.4 (10th Cir. 2004).
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without consulting the patient’s physician. Separately, the enhanced referral
management program was a PHS program to track PMG physician referrals and
encourage internal referrals.
NMOHC filed suit against Defendants in 2012. In its Third Amended
Complaint (TAC), it asserted claims under Section 2 of the Sherman Act for
monopolization and attempted monopolization. NMOHC also asserted a parallel
claim under New Mexico antitrust law, 2 a RICO claim, and other non-antitrust state
law claims. Defendants moved to dismiss NMOHC’s Second Amended Complaint at
the time under Rule 12(b)(6), but the district court denied the motion. However, the
district court has dismissed NMOHC’s RICO claim and claim for monopolization of
the inpatient hospital services market. See N.M. Oncology & Hematology
Consultants, Ltd. v. Presbyterian Healthcare Servs., 169 F. Supp. 3d 1204 (D.N.M.
2016); N.M. Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare
Servs., 54 F. Supp. 3d 1189 (D.N.M. 2014). NMOHC has not appealed either ruling.
In March 2017, Defendants moved for summary judgment on the remaining
claims, which the district court granted. N.M. Oncology, 418 F. Supp. 3d at 866.
The district court examined whether Defendants possessed monopoly power as
regards the monopolization claim or whether there was a dangerous probability of
achieving monopoly power insofar as attempted monopolization. It concluded that
2 In evaluating New Mexico Antitrust Act claims, the court generally follows
authority interpreting claims under Section 2 of the Sherman Act. N.M. Stat. Ann. §
57-1-15.
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genuine issues of fact might exist. Id. at 840, 859. But it determined that NMOHC
had failed to establish that Defendants engaged in exclusionary conduct. Id. at 841,
860. NMOHC failed to establish that any of Defendants’ unilateral conduct
constituted anticompetitive conduct under the Sherman Act. Id. at 847–48. The
district court considered the conduct alleged as a “refusal to deal” but none of that
conduct demonstrated the requisite willingness to forgo short-term profits for an
anticompetitive end. Id. at 850, 854–55, 866. After dismissing the Sherman Act
claims, the district court declined to exercise jurisdiction over the remaining state law
claims. Id. at 866.
On appeal, NMOHC argues the district court (1) disregarded the testimony of
its experts, (2) failed to consider all of the evidence or draw inferences in favor of
NMOHC as the non-movant, (3) made factual findings on disputed issues of fact, and
(4) made its own market share calculations and ignored Defendants’ monopoly power
over Medicare Advantage plans, as well as the consumer harm caused by the
Mandate and Defendants’ referral practices. NMOHC argues that it “never framed its
antitrust theories as predatory bidding, too low or too high prices, the termination of
its provider contract (because the provider contract was not terminated), nor a refusal
to deal,” yet the district court analyzed the case as if it had. This is belied by
NMOHC’s presentation which urges the court to combine various antitrust concepts
(many of which were not raised directly below) and find sufficient evidence of
antitrust violations.
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Discussion
We review the district court’s grant of summary judgment de novo. Chasteen
v. UNISIA JECS Corp., 216 F.3d 1212, 1216 (10th Cir. 2000). Summary judgment
is appropriate when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
material if it can “have an impact on the outcome of the lawsuit” and genuine if “a
rational jury could find in favor of the non-moving party based on the evidence
presented.” Chasteen, 216 F.3d at 1216. To survive a motion for summary
judgment, the nonmoving party must show more than “[t]he mere existence of a
scintilla of evidence in support of the [nonmoving party’s] position . . . there must be
evidence on which the jury could reasonably find for the [nonmoving party].”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We may also presume
that businesses act rationally when we evaluate their conduct. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 595 (1986).
The district court did not err in holding that NMOHC had failed to establish a
Sherman Act claim under Section 2 because NMOHC failed to establish that
Defendants had engaged in exclusionary or anticompetitive conduct.
The elements of a § 2 monopolization claim are (1) monopoly power in
the relevant market; (2) willful acquisition or maintenance of this power
through exclusionary conduct; and (3) harm to competition. And the
elements of a § 2 attempted monopolization claim are (1) predatory or
anticompetitive conduct, (2) a specific intent to monopolize, and (3) a
dangerous probability of achieving monopoly power.
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Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1231 (10th Cir.
2017) (citation omitted). While monopolization and attempted monopolization
claims are distinct, there is sufficient overlap that anticompetitive conduct under
either claim can be evaluated together. See Four Corners Nephrology Assocs., P.C.
v. Mercy Med. Ctr. of Durango, 582 F.3d 1216, 1222 (10th Cir. 2009).
Anticompetitive conduct comes in too many forms to permit a “comprehensive
taxonomy,” however, over time the inquiry of what is anticompetitive conduct has
been defined into several common forms of conduct. Novell, Inc. v. Microsoft Corp.,
731 F.3d 1064, 1072 (10th Cir. 2013). Generally, unilateral conduct cannot be
considered anticompetitive, but “liability can sometimes be assigned” based on
unilateral conduct. Id. at 1072–74. These exceptions include such conduct as a
refusal to deal. Id. at 1074. To establish a refusal to deal claim, the plaintiff must
establish: (1) that there was a “preexisting voluntary and presumably profitable
course of dealing between the monopolist and rival;” and (2) that “the monopolist’s
discontinuation of the preexisting course of dealing must suggest[ ] a willingness to
forsake short-term profits to achieve an anti-competitive end.” Id. at 1074–75
(citation omitted).
None of the conduct that NMOHC asserts was anticompetitive constituted a
refusal to deal. First and foremost, none of the conduct demonstrated a willingness to
“forsake short-term profits to achieve an anti-competitive end.” Id. at 1075 (citation
omitted). PHP implemented the Mandate on the grounds that it could obtain the
same drugs at a discounted rate under the federal 340B drug program through the
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Presbyterian pharmacy. As we discuss below, NMOHC’s claim lacks “significantly
probative” evidence, Anderson, 477 U.S. at 249–50, tending to show otherwise.
Further, NMOHC’s allegations of anticompetitive referral practices, either by nurse
navigators or by PMG physicians, would also not constitute a refusal to deal because
referring patients internally would serve to increase revenues.
Second, none of the asserted conduct shows that Defendants ended a
preexisting course of dealing with NMOHC. Defendants’ practice of referring
patients to NMOHC for treatment did not end, it only decreased. As for the Mandate,
PHP did not have a course of dealing with NMOHC through its Medicare Advantage
plans because those plans were sold by PHP to consumers.
NMOHC’s allegation of a “joint venture” between RAA and PHS, that might
bring NMOHC’s conduct beyond unilateral conduct, also has no merit. Dr. Brian
Potts, former President of RAA, testified that he was not aware of any agreements
between RAA and Defendants concerning referrals. Dr. Potts also testified that any
referrals that RAA made to surgeons were made based on a consultation with the
referring physician. Indeed, NMOHC seemingly concedes this by referring to the
joint venture as a “de facto joint venture.” Further, the evidence that NMOHC relies
upon for proof that there was a joint venture does not support its assertion. It first
cites to its own response to Defendants’ third set of interrogatories to assert that a
joint venture existed and that there was a referral agreement between RAA and PHS.
NMOHC also cites to the testimony of a nurse-navigator that it alleges shows that
RAA would refer patients to PHS surgeons and oncologists. However, the nurse-
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navigator never testified to any joint venture, only testifying that she interacted with
patients after they had already been referred to a PHS surgeon through RAA.
NMOHC also claims that the Mandate, which it at times characterizes as an
unlawful tying arrangement, but then denies it was relying on a tying claim, was
implemented “as part of a leveraging strategy to drive NMOHC from the Outpatient
Oncology Services market.” However, NMOHC does not sufficiently define this
argument in its opening brief nor does it address the district court’s reasoning that
such a leveraging claim cannot establish anticompetitive conduct under the Sherman
Act. N.M. Oncology, 418 F. Supp. 3d at 850–51, 855. Such inadequately briefed
arguments are waived. See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir.
1995).
Indeed, on the merits, such argument fails as well. NMOHC’s argument
regarding the Mandate could be interpreted as a “monopoly leveraging” claim, which
is an effort to use “monopoly power in one market merely to achieve a competitive
advantage in a second market” — here, the health insurance and outpatient oncology
markets respectively. Four Corners, 582 F.3d at 1222. However, a monopoly
leveraging claim does not demonstrate a violation of Sherman Act section 2, absent
proof of some other anticompetitive conduct in the allegedly monopolized market.
Id. Therefore, where a plaintiff has not established some other anticompetitive
conduct, accusing the defendant of “‘monopoly leveraging’ won’t do anything to
save” the claim. Id. NMOHC has not established any other type of anticompetitive
conduct so its argument of a “leveraging strategy” is unavailing.
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NMOHC — and the American Medical Association (the AMA) as amicus —
seemingly argues that that its claim should not be evaluated under defined categories
of anticompetitive conduct, but instead through an ad hoc and fact-specific analysis.
Indeed, as noted above, NMOHC asserts that its claims are not based on a theory of
predatory bidding, a refusal to deal, or a tying claim. Rather, according to NMOHC,
anticompetitive conduct can take a variety of forms and “[w]hether specific conduct
is anticompetitive requires a fact-specific analysis.”
However, while anticompetitive conduct does take many forms, courts have
been able to adapt the general inquiry of what is anticompetitive conduct into
particular circumstances, that has allowed the creation of specific rules for common
forms of alleged misconduct. Novell, 731 F.3d at 1072. The difficulty with an ad
hoc approach is that the line between anticompetitive conduct and aggressive
competition “can be indistinguishable.” Monsanto Co. v. Spray-Rite Serv. Corp.,
465 U.S. 752, 762 (1984). Indeed, when it comes to enforcing unilateral
anticompetitive conduct, there is a risk that over-enforcement could actually inhibit
competition, “since it may lessen the incentive for the monopolist” to invest in their
business. Verizon Commc’ns Inc. v. L. Offs. of Curtis V. Trinko, LLP, 540 U.S.
398, 407–08 (2004). Given this, the Supreme Court’s narrowing of the type of
unilateral conduct that can be anticompetitive strikes the appropriate balance between
preventing anticompetitive behavior while also protecting competition itself by
allowing firms to take actions to recoup their investments. See Four Corners, 582
F.3d at 1221–22.
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Even looking at the substance of NMOHC’s claims outside of the scope of a
refusal to deal, Defendants’ actions still do not appear to be anticompetitive. As to
the claims concerning internal referrals, PHS was under no obligation to refer its
patients to another practice or hospital. See id. at 1223. As for the Mandate, again,
the Mandate affected a relationship that PHP had with its plan members, not
NMOHC. Further, the Mandate was not anticompetitive because it was NMOHC’s
decision not to accept the drugs from Presbyterian’s pharmacy that inflicted a
hardship on its patients, not PHP’s decision. While NMOHC may have had
justifiable reasons for not accepting the drugs at its facility, other providers did
accept the drugs, and NMOHC cannot frame its own decisions as another’s
anticompetitive conduct.
NMOHC also raises several other arguments, but all fail. NMOHC attempts to
argue that Defendants’ referral practices were similar to a “group boycott.”
However, NMOHC does not define this type of conduct and never made such a claim
below, therefore waiving this argument on appeal. See United States v. Viera, 674
F.3d 1214, 1220 (10th Cir. 2012). NMOHC also argues that the referral practices
were “akin to the coercive conduct against customers that the Supreme Court
condemned in” Lorain Journal Co. v. United States, 342 U.S. 143 (1951). However,
NMOHC does not sufficiently define this argument nor does it make any factual
comparison of Lorain Journal to this case. Lorain Journal involved a newspaper that
refused to sell advertising space to advertisers who advertised on a local radio station
that the newspaper was intending to put out of business. 342 U.S. at 148. It is that
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refusal to sell advertising space “even if compensated at retail price” that makes the
conduct in Lorain Journal anticompetitive. See Verizon Commc’ns, 540 U.S. at 409.
NMOHC does not make any equivalent allegations, let alone present such evidence,
against Defendants.
NMOHC and the amici also argue that Defendants’ referral programs were
unethical and harmed patients. However, the Sherman Act does not incorporate
professional ethical rules. See Nat’l Soc’y of Prof. Eng’rs v. United States, 435 U.S.
679, 696 (1978). Further, such a complaint would be better suited to professional
regulatory bodies.
NMOHC argues that the district court erred because antitrust cases should
generally not be resolved on summary judgment due to the fact intensive nature of
the claims. However, while “summary judgment should be used sparingly in antitrust
cases, the usual rules governing summary judgment still apply.” Bell v. Fur Breeders
Agric. Co-op., 348 F.3d 1224, 1229 (10th Cir. 2003) (citation omitted). Just as in
any Rule 56 motion, NMOHC has the burden “to set forth specific facts showing that
there is a genuine issue for trial.” In re Rumsey Land Co., 944 F.3d 1259, 1270 (10th
Cir. 2019) (citation omitted). NMOHC has not met this burden.
NMOHC also argues that the alleged cost for a referral to NMOHC is an
internal transfer payment between PHS and PHP, which it asserts is not a real cost.
However, NMOHC’s own expert admitted that the amounts paid by PHP to NMOHC
were a real cost and that PHS saved money by reducing outside referrals.
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Finally, NMOHC argues that there was no evidence that PHS saved costs
through the Mandate and that therefore there is a genuine dispute of material fact as
to PHS’ willingness to forsake short term profits that should have precluded summary
judgment. It argues the Defendants could have lost money from the Mandate because
the reimbursement rates PHP paid to NMOHC were lower than PHS’ drug
acquisition costs. However, even if NMOHC had significantly probative evidence on
this issue — which, as discussed below, it did not — this dispute probably is
immaterial. No evidence suggests that Defendants discontinued a preexisting course
of dealing with NMOHC as regards the Mandate and therefore “the outcome of the
suit” would not be affected. Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th
Cir. 2000) (citation omitted). As stated above, the Mandate affected a relationship
between PHP and its members, not NMOHC.
NMOHC also lacks “significantly probative” evidence to support its assertion
that Defendants did not save money because of the Mandate. Anderson, 477 U.S. at
249–50. According to PHP’s Executive Director of Pharmacy Services, PHP paid
lower costs for drugs through the Presbyterian pharmacy. NMOHC conceded that
Presbyterian could “make additional profits from the sale of 340B drugs” than it
would otherwise make selling drugs not purchased through the 340B program.
NMOHC also asserts that the cost savings from the Mandate only represent “an
internal transfer payment between PHS and PHP,” but again, such transfer payments
represent a real cost.
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NMOHC cites to its Fifth Supplemental Response to Defendants’ Third Set of
Interrogatories to argue that the evidence on record suggests that PHS “actually could
suffer losses as a result of the Mandate.” NMOHC’s assertion is that Defendants
assumed that 70% of patients covered by the Mandate could receive 340B drugs, but
that such assumption was overstated. NMOHC asserts that as a result, PHS lost
money from the implementation of the Mandate because PHS’ acquisition costs for
the drugs exceeded the reimbursement it received from PHP for drugs PHS could not
sell to patients under the 340B program. However, NMOHC must show that
Defendants took actions that “suggest[ ] a willingness to forsake short-term profits,”
not merely that an implemented policy resulted in a loss after-the-fact. See Novell,
731 F.3d at 1074–75.
We conclude that NMOHC has failed to establish that Defendants had engaged
in exclusionary or anticompetitive conduct, therefore, we do not address the question
of monopoly power or antitrust injury. The district court did not abuse its discretion
in declining to exercise jurisdiction over NMOHC’s remaining state law claims after
it dismissed the Sherman Act claims. See Brooks v. Gaenzle, 614 F.3d 1213, 1229
(10th Cir. 2010).
On appeal, the AMA, Community Oncology Alliance, Inc. (COA), and
American Hospital Association (AHA) also move for leave to file briefs as amicus
curiae. The parties oppose the respective motions on the grounds that the briefs rely
on extra-record evidence and that they make arguments that are irrelevant to the
issues on appeal. We provisionally granted leave for amici to file. Federal courts
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have discretion in allowing participation as amicus curiae. See, e.g., Richardson v.
Flores, 979 F.3d 1102, 1106 (5th Cir. 2020). Under Appellate Rule 29(b), a motion
seeking leave to participate as amicus must, state the movant’s interest, “why an
amicus brief is desirable,” and “why the matters asserted are relevant to the
disposition of the case.” See Fed. R. App. P. 29(b)(3). The amici have complied
with this requirement and their briefing is relevant to the disposition of the case. The
amici address whether this court should reconsider its antitrust jurisprudence in light
of its impact on, inter alia, health care delivery systems and physician practices.
They also provide more information about the Defendants’ practices, including the
implementation of the Mandate. Therefore, amici have an interest in this proceeding
and brief matters relevant to the disposition of this case.
AFFIRMED. We also GRANT the American Medical Association,
Community Oncology Alliance, Inc., and American Hospital Association leave to file
as amicus curiae.
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