N.M. Oncology v. Presbyterian Healthcare Servs.

• Decision Date: 14 November 2019
• Docket Number: Civ. No. 12-00526 MV/GBW
• Citation: 418 F.Supp.3d 826
• Parties: NEW MEXICO ONCOLOGY and Hematology Consultants, Ltd., Plaintiff, v. PRESBYTERIAN HEALTHCARE SERVICES, Presbyterian Network, Inc., Presbyterian Insurance Company, Inc., and Presbyterian Health Plan, Inc., Defendants.
• Court: U.S. District Court — District of New Mexico

418 F.Supp.3d 826

NEW MEXICO ONCOLOGY and Hematology Consultants, Ltd., Plaintiff,

v.PRESBYTERIAN HEALTHCARE SERVICES, Presbyterian Network, Inc., Presbyterian Insurance Company, Inc., and Presbyterian Health Plan, Inc., Defendants.

Civ. No. 12-00526 MV/GBW

United States District Court, D. New Mexico.

Signed November 14, 2019

John Patrick Yetter, Pro Hac Vice, George M. Sanders, Thomas Joseph Bacon, Law Office of George M. Sanders, PC, Chicago, IL, J. Douglas Foster, Foster, Rieder & Jackson, PC, Meghan Dimond Stanford, Sarah K. Downey, Travis G. Jackson, Jackson Loman Stanford & Downey, P.C., Geoffrey D. Rieder, Keleher & McLeod, P.A., Albuquerque, NM, for Plaintiff.

Bruce D. Hall, Charles K. Purcell, Rodey Dickason Sloan Akin & Robb PA, Lauren Keefe, Peifer, Hanson, Mullins, PA, Albuquerque, NM, Jeffrey A. LeVee, Kate Wallace, Kelly Ozurovich, Pro Hac Vice, Jones Day, Los Angeles, CA, Thomas Demitrack, Jones Day, Cleveland, OH, for Defendants.

Infectious Diseases & Internal Medicine Associates, P.C., pro se.

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, United States District Judge

THIS MATTER comes before the Court on Defendants' Motion for Summary Judgment [Doc. 624]. The Court, having considered the motion, briefs, and relevant law, and being otherwise fully informed, finds that the motion is well-taken and will be granted.

BACKGROUND

Plaintiff New Mexico Oncology and Hematology Consultants, Ltd. ("NMOHC") was founded in 1987 by partners Dr. Barbara McAneny and Dr. Clark Haskins. Plaintiff's ("P.") Ex. 1-35. Dr. McAneny is now the Chief Executive Officer ("CEO") of NMOHC. Id. NMOHC is an independent, physician-owned practice that offers patients a full range of oncology-related services, including medical oncology, radiation oncology, diagnostic imaging, laboratory testing, genetic counseling, pharmacy services, and hematology services. Defendants' Statement of Material Facts ("SMF") 1, Third Amended Complaint ("TAC") ¶ 24; P. Ex. 4-A ¶ 9. NMOHC operates the New Mexico Cancer Center ("NMCC") in Albuquerque, as well as satellite facilities in Gallup, New Mexico and Silver City, New Mexico. P. Ex. 2-A ¶ 14. Currently, NMOHC employs ten medical oncologists and three radiation oncologists, as well as six nurse practitioners certified in medical oncology. P. Ex. 4-A ¶ 9.

Presbyterian Healthcare Services ("PHS") is an integrated healthcare system in New Mexico that participates in multiple markets, including the private health insurance market, the oncology market, and the inpatient hospital services market. SMF 2, TAC ¶¶ 37, 39, 46. Specifically, PHS owns eight hospitals, including its flagship facility Presbyterian Hospital in Albuquerque, Presbyterian Medical Group ("PMG"), a physician practice with over 800 physicians and over 2,500 nurses, and the Southwest Health Foundation. P. Ex. 4-A ¶ 10. The Southwest Health Foundation, in turn, owns Presbyterian Network, Inc., which is the parent company of both Presbyterian Insurance Company, Inc. and Presbyterian Health Plan, Inc. ("PHP"). Id.

Plaintiff filed its Complaint against PHS and Presbyterian Network on May 16, 2012 [Doc. 1], and its Second Amended Complaint ["SAC"] against those same Defendants on February 13, 2013 [Doc. 24].

In the SAC, Plaintiff asserted monopolization and attempted monopolization antitrust claims under Section 2 of the Sherman Act, 15 U.S.C. § 2, and under the New Mexico Antitrust Act ("NMAA"), N.M. Stat. Ann. § 57-1-2. Plaintiff's monopolization claims arise out of Defendants' alleged willful maintenance of a monopoly and/or monopsony¹ in the market for private health insurance services through the alleged anticompetitive acts of lowering Plaintiff's reimbursement rates, threatening to terminate Plaintiff's provider contract, and entering into an exclusive arrangement with United HealthCare ("United"). Doc. 24 ¶¶ 471-76, 483-89. Plaintiff's attempted monopolization claims arise out of Defendants' alleged attempt to monopolize the comprehensive oncology services market by engaging in the same acts that maintained their monopoly in the private health insurance markets and by committing the additional acts of limiting referrals to Plaintiff's physicians and requiring Plaintiff's patients to purchase chemotherapy drugs from Presbyterian Hospital's pharmacy. Id. ¶¶ 477-82, 490-95.

Additionally, Plaintiff asserted state law claims for tortious interference with existing and prospective contractual relationships arising out of Defendants' alleged use of improper means to prevent and prohibit referrals to Plaintiff and to prevent Plaintiff's patients from purchasing chemotherapy drugs from Plaintiff and using Plaintiff's chemotherapy infusion center. Id. ¶¶ 496-503, 517-25. Plaintiff further asserted state law claims of injurious falsehood and unfair competition arising out of Defendants' alleged misrepresentation of Plaintiff's provider status to patients, Defendants' coercion of patients to switch to Presbyterian Hospital's physicians, their pressure on their physicians to refer patients in-house instead of to Plaintiff, their interference with the ability of their physicians to make referrals to Plaintiff, and their alleged illegal receipt and sale of drugs purchased at a discount from pharmaceutical manufacturers under the federal 340B program² (referred to herein as the "340B drugs" and the "340B program") and sold in violation of program guidelines to reap inflated profits. Id. ¶¶ 8, 12, 505. Finally, Plaintiff asserted a claim under the federal Racketeer Influenced and Corrupt Organizations Act ("RICO") arising out of Defendants' aforementioned alleged illegal receipt and sale of 340B drugs, and Defendants' issuance of a "mandate" requiring seniors covered by PHP's health insurance to purchase their chemotherapy drugs (including 340B drugs) from Presbyterian Hospital's pharmacy instead of from Plaintiff (hereinafter referred as the "Mandate"). Doc. 24 ¶¶ 8-12.

PHS and Presbyterian Network moved to dismiss with prejudice all claims in the SAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Doc. 33. In a Memorandum Opinion and Order entered on August 22, 2014 ("2014 Opinion"), the Court granted the motion to dismiss only as to Plaintiff's state law claim for injurious falsehood and Plaintiff's RICO claim. Doc. 79. The Court denied the motion as to Plaintiff's remaining claims. Id.

Thereafter, Plaintiff filed the TAC, adding Presbyterian Insurance Company and PHP as Defendants. Doc. 123. PHS, Presbyterian Network, Presbyterian Insurance Company, and PHP are now Defendants in this action, and are referred to herein collectively as "Defendants." In the TAC, Plaintiff added federal and state monopolization antitrust claims, alleging that Defendants willfully maintained a monopoly in the inpatient hospital services market and used that monopoly to drive Plaintiff out of the market for oncology services. Defendants moved to dismiss these new antitrust claims. Doc. 141. In a Memorandum Opinion and Order entered on March 14, 2016 ("2016 Opinion"), the Court granted the motion to dismiss, finding that Plaintiff failed to allege an antitrust injury as to the inpatient hospital services market, and thus lacked standing to bring a monopolization claim based on Defendants' alleged monopoly of the inpatient hospital services market. Doc. 316.

As a result of the Court's rulings in the 2014 Opinion and the 2016 Opinion, the claims remaining in this action are: Plaintiff's monopolization claims under Section 2 of the Sherman Act and the NMAA arising from Defendants' alleged monopolization of the private health insurance markets (Counts I and IV); Plaintiff's attempted monopolization claims under Section 2 of the Sherman Act and the NMAA arising from Defendants' alleged attempt to monopolize the oncology market (Count III and VI); Plaintiff's state law tortious interference claims arising from Defendants' alleged referral practices (Count VII) and the Mandate (Count X); and Plaintiff's state common law unfair competition claim arising from Defendants' alleged coercion of patients to switch to Presbyterian Hospital's physicians, their pressure on their physicians to refer patients in-house instead of to Plaintiff, their interference with the ability of their physicians to make referrals to Plaintiff, and their alleged illegal receipt and sale of drugs purchased at a discount from pharmaceutical manufacturers under the federal 340B program and sold in violation of program guidelines to reap inflated profits (Count VIII).³

STANDARD

The court must "grant summary judgment if the movant shows that 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). The moving party need not "produce evidence showing the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, "the burden on the moving party may be discharged by ‘showing’ – that is, point out to the district court – that there is an absence of evidence to support the nonmoving party's case." Id. ; see also Sports Unltd., Inc., v. Lankford Enter., Inc. , 275 F.3d 996, 999 (10th Cir. 2002) (Although "[t]he burden of showing that no genuine issue of material fact exists is borne by the moving party," when "the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden by pointing to a lack of evidence for the nonmovant on an essential element of the nonmovant's claim"). Once the moving party has met this burden, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548. In making this showing, the nonmoving party may not rely on "the mere pleadings themselves." Id.

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