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Fox v. Good Samaritan L.P.

June 30, 2010

RICHARD B. FOX, PLAINTIFF,
v.
GOOD SAMARITAN L.P., ET AL, DEFENDANTS.



The opinion of the court was delivered by: Richard Seeborg United States District Judge

ORDER RE POST-JUDGMENT MOTIONS

I. INTRODUCTION

After years of litigation, and on the eve of trial, defendants brought a motion contending, among other things, that they were immune from damages in this action by virtue of certain provisions of the Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101, et seq. ("HCQIA"). The Court agreed and entered judgment in defendants' favor. Plaintiff now seeks to vacate that judgment under Rule 59(e) of the Federal Rules of Civil Procedure. Plaintiff has also filed a motion challenging defendants' cost bill. Defendants, in turn, move for an award of attorney fees under HCQIA.

For the reasons set out below, the motion to vacate and the motion for attorney fees will be denied. In the unusual circumstances of this case, costs will not be allowed.

II. DISCUSSION*fn1

A. Motion to Vacate

"Rule 59(e) permits a court to alter or amend a judgment, but it 'may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment."" Exxon Shipping Co. v. Baker, 128 S.Ct. 2605, 2617 n.5 (2008) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1, pp. 127-128 (2d ed.1995)). Despite plaintiff's valiant effort to characterize his motion as being based on deposition testimony taken court after the underlying motion was briefed, the points he attempts to make are, at most, refinements of arguments he advanced previously and/or are based on case law and legislative history that he could have presented previously. Thus, the motion to vacate can and will be denied on the grounds that plaintiff has not made the threshold showing that the circumstances warrant reconsidering the decision already reached.*fn2

The motion also fails on the merits. Plaintiff lays heavy emphasis on a footnote in Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991). In Pinhas, the question was whether a doctor's antitrust claim needed to include averments showing a "factual nexus between the alleged boycott and interstate commerce" to support jurisdiction under the Sherman Act. Id. at 325. At no time was the Court asked to construe HCQIA or to decide its effect. The case had been dismissed at the pleading stage. Id.

In explaining its conclusion that federal jurisdiction existed, the Court observed that the peer review process is "congressionally regulated." Id at 332. It was in that context that the Court inserted footnote 12, which states in full:

the peer-review process proceeds in accordance with § 11112. Respondent alleges that the process did not conform with the requirements set forth in § 11112, such as adequate notice, representation by an attorney, access to a transcript of the proceedings, and the right to cross-examine witnesses. According to the House sponsor of the bill, "[t]he immunity provisions [were] restricted so as not to protect illegitimate actions taken under the guise of furthering the quality of health care. Actions ... that are really taken for anticompetitive purposes will not be protected under this bill." 132 Cong.Rec. 30766 (1986) (remarks of Rep. Waxman). 500 U.S. at 332 n.12.

Nothing in this footnote represents a holding that supports a different result here. The See Health Care Quality Improvement Act of 1986, 100 Stat. 3784, 42 U.S.C. § 11101 et seq. The statute provides for immunity from antitrust, and other, actions if Pinhas plaintiff had alleged non-compliance with § 11112-averments presumed true at the procedural juncture of that case. Here, in contrast, the Court has found on summary judgment that plaintiff failed to rebut the presumption of procedural compliance embodied in § 11112.*fn3

Plaintiff seizes on the Pinhas court's quotation of Representative Waxman's comments, and has also provided other excerpts of the legislative history that are to a similar effect. The most these materials show, however, is that members of Congress were attempting to strike a balance.

However hopeful Representative Waxman may have been that "illegitimate actions" would not be protected, the statute as actually enacted created an objective standard rendering subjective motivations irrelevant. Austin v. McNamara, 979 F.2d 728, 734 (9th Cir.1992). Here, plaintiff appears to be suggesting, in essence, that if a plaintiff has a colorable anti-trust claim, there can be no immunity under HCQIA. The stated purpose of the statute, however, was to address the concern that, "[t]he threat of private money damage liability under Federal laws, including treble damage liability under Federal antitrust law, unreasonably discourages physicians from participating in effective professional peer review." ยง11101(4). By ...


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