Omni Healthcare Inc. et al v. Health First, Inc. et al

Filing 322

ORDER on all summary judgment motions. (Note: re-docketed from previous entry, no changes to document.) Signed by Judge Roy B. Dalton, Jr. on 8/13/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
OMNI HEALTHCARE INC.;
INTERVENTIONAL SPINE INSTITUTE
OF FLORIDA; CRAIG DELIGDISH;
C. HAMILTON BOONE, PA; BRIAN
DOWDELL; RICHARD GAYLES; STAN
GOLOVAC; LANCE GRENEVICKI;
ALEKSANDER KOMAR; SCOTT
SEMINER; INSTITUTE OF FACIAL
SURGERY INC.; THE PAIN INSTITUTE
INC.; and PHYSICIAN ASSISTANT
SERVICES OF FLORIDA, LLC,
Plaintiffs,
v.

Case No. 6:13-cv-1509-Orl-37DAB

HEALTH FIRST, INC.; HOLMES
REGIONAL MEDICAL CENTER, INC.;
HEALTH FIRST PHYSICIANS, INC.;
HEALTH FIRST HEALTH PLANS, INC.;
MICHAEL D. MEANS; and JERRY
SENNE,
Defendants.
ORDER
This cause is before the Court on the following:
1.

Plaintiffs’ Daubert Motion to Exclude Defendants’ Expert Testimony and
Incorporated Memorandum of Law (Doc. 197), filed January 22, 2016;

2.

Corporate Defendants’ Memorandum in Opposition to Plaintiffs’ Daubert
Motion to Exclude Defendants’ Expert’s Testimony (Doc. 214), filed
February 8, 2016;

3.

Defendants’ Motion to Exclude the Testimony of Dr. H.E. Frech, III and
Incorporated Memorandum of Law (Doc. S-194), filed January 22, 2016;

4.

Plaintiffs’ Opposition to Defendants’ Motion to Exclude the Testimony of
Dr. H.E. Frech, III and Incorporated Memorandum of Law (Doc. 212), filed
February 5, 2016;

5.

Defendants’ Motion to Exclude the Testimony of Dr. Hal J. Singer and
Incorporated Memorandum of Law (Doc. S-199), filed January 22, 2016;

6.

Plaintiffs’ Opposition to Defendants’ Motion to Exclude the Testimony of
Dr. Hal J. Singer and Incorporated Memorandum of Law (Doc. 213), filed
February 5, 2016;

7.

Corporate Defendants’ Joint Motion for Summary Judgment and
Incorporated Memorandum of Law (Doc. S-201), filed January 22, 2016;

8.

Plaintiffs’ Response to Corporate Defendants’ Motion for Summary
Judgment and Incorporated Memorandum of Law (Doc. S-235), filed
February 22, 2016;

9.

Corporate Defendants’ Reply on Motion for Summary Judgment (Doc. 249),
filed March 4, 2016;

10.

Defendant Michael D. Means’[s] Motion for Summary Judgment (Doc. 189),
filed January 21, 2016;

11.

Defendant Jerry Senne’s Motion for Summary Judgment (Doc. 195), filed
January 22, 2016;

12.

Plaintiffs’ Response to Individual Defendants’ Motion[s] for Summary
Judgment and Incorporated Memorandum of Law (Doc. S-236), filed
February 22, 2016;

13.

Defendant Means’[s] Reply as to His Motion for Summary Judgment

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(Doc. S-248), filed March 4, 2016;
14.

Defendant Jerry Senne’s Reply Memorandum (Doc. S-247), filed March 4,
2016; and

15.

Notice of Supplemental Authority (Doc. 274), filed May 18, 2016.

Upon consideration, the Court finds that: (1) the parties’ Daubert motions are due to
denied; and (2) Defendants’ respective motions for summary judgment are due to be
granted in part and denied in part as specified in this ensuing Order.
BACKGROUND 1
This monolithic action concerns claims brought under federal antitrust law,
Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), and a common law claim
for tortious interference with business relationships. (See Doc. 57.) The litigation spans
close to three years and the docket reveals more than three hundred docket entries. In a
prior Order denying Defendants’ motion to dismiss the operative ten-count, 101-page
Complaint (Doc. 57), the Court set forth a thirteen-page recitation of the factual
allegations underlying the instant action. (See Doc. 105 (“Dismissal Order”).) As such,
here, the Court elects to provide only a short summary of Plaintiffs’ claims, the relevant
parties, and the current posture of the proceedings.
Plaintiffs—Omni Healthcare Inc. (“Omni”), Interventional Spine Institute of Florida,
doing business as Spine Orthopedics and Rehabilitation (“SOAR”), Dr. Craig Deligdish
(“Dr. Deligdish”), C. Hamilton Boone (“Boone”), Dr. Brian Dowdell (“Dr. Dowdell”),
1

In their submissions, the parties utilize a variety of methods to pincite specific
portions of the record. For ease of reference, the Court has consistently cited to the
assigned page numbers in the header of the documents, with the exception of documents
consistently organized by paragraph number or mini-deposition page numbers
throughout, which the Court cited according to such designations.

3

Dr. Richard

Gayles

(“Dr. Gayles”),

Dr.

Lance

Grenevicki

(“Dr. Grenevicki”),

Dr. Aleksander Komar (“Dr. Komar”), Dr. Scott Seminer (“Dr. Seminer”), the Institute of
Facial Surgery Inc. (“IFS”), The Pain Institute Inc., doing business as Florida Pain
(“Florida Pain”), and Physician Assistant Services of Florida, LLC (“PAS”)—initiated the
instant action on September 27, 2013. (Doc. 1.) In their Complaint, Plaintiffs allege that
Defendants—Health First, Inc. (“Health First”), Holmes Regional Medical Center, Inc.
(“HRMC”), Health First Physicians, Inc. (“HF Physicians”), and Health First Health Plans,
Inc. (“HFHP”) (collectively, “the Corporate Defendants”)—have engaged in a continuing
course of anticompetitive conduct, unfair trade practices, and tortious interference with
Plaintiffs’ business relationships in Southern Brevard County (“SBC”) since the early
2000’s. (Doc. 57, Doc. 194-1, pp. 86–87.) Additionally, Plaintiffs allege that the individual
Defendants, Michael D. Means (“Means”)—co-founder and former President and Chief
Executive Officer (“CEO”) of Health First—and Jerry Senne (“Senne”)—former president
and CEO of HRMC—(collectively, “the Individual Defendants”), personally orchestrated
and participated in such conduct. (Doc. 57, ¶¶ 30–31, 188–95.)
Plaintiffs comprise various medical practices and providers in SBC. Omni, SOAR,
IFS, Florida Pain, and PAS (collectively, “the Medical Practice Plaintiffs”) are medical
practices and physician assistant Boone and Drs. Deligdish, Seminer, Dowdell, Gayles,
Golovac, Grenevicki, and Komar are medical providers. 2 (See id. ¶¶ 11–25.) As for
Defendants, Health First is the parent corporation of the remaining Corporate Defendants,
as well as three affiliated hospitals in Brevard County not named in this action—Cape

2

Dr. Deligdish is the president of Omni. (Doc. 57, ¶ 22.) Dr. Grenevicki founded
IFS. (Id. ¶ 22.)

4

Canaveral Hospital, Inc., Palm Bay Hospital, and Viera Hospital, Inc. (Id. ¶ 26.) For their
part, HRMC is an inpatient hospital located in Melbourne, Florida, HFHP is a health
insurance company, and HF Physicians is the managing member of Health First Medical
Group, LLC (“HFMG”)—Brevard County’s largest multi-specialty physicians group. 3 (Id.
¶¶ 27–29.) Though not a party to this action, the parties frequently mention Wuesthoff
Medical Center, Melbourne (“Wuesthoff”), seemingly the only hospital in SBC that
competes with the Health First affiliated hospitals. (See id. ¶ 1.) Wuesthoff entered the
SBC market in 2002.
Reduced to its simplest form, the allegations in the Complaint are as follows:
Plaintiffs aver that Defendants collectively implemented a common and self-enforcing
scheme of anticompetitive conduct in SBC (“the Alleged Common Scheme”), whereby
they: (1) mandated exclusive referral and admission practices within the Health First
system (“Exclusive Referral Practice”); (2) excluded from HFHP medical practices and
providers who refused to participate in the Exclusive Referral Practice (“Blacklisted
Providers”); and (3) prevented providers within the Health First system from referring
patients to the Blacklisted Providers lest they too be boycotted. (See generally Doc. 57.)
Additionally, Plaintiffs allege that Defendants further cemented their power and
dominance in the SBC physician services market by acquiring Melbourne Internal
Medicine Associations (“MIMA”)—the second largest physician group in Brevard
County—in 2013 (“MIMA Acquisition”). (See id. ¶ 260.) Indeed, in Count I of the
Complaint, Plaintiffs allege that the MIMA Acquisition was itself an impermissible merger

3

Lead Plaintiff Omni is also a multi-specialty physicians practice with various
ancillary service facilities. (Doc. 57, ¶ 20.)

5

in violation of federal antitrust law. (Id. ¶ 299.) According to Plaintiffs, the Alleged
Common Scheme substantially lessened competition in SBC, harmed Plaintiffs both
monetarily and in their business relationships with former patients and fellow physicians,
and resulted in higher prices and lower quality of care in SBC. (Id. ¶¶ 275–90, 409–22.)
Collectively, Omni, SOAR, Deligdish, Dowdell, Gayles, Golovac, Grenevicki,
Komar, Seminer, IFS, and Florida Pain (“the Antitrust Plaintiffs”) assert claims against
Defendants for violations of federal antitrust law. (Id. ¶¶ 291–392.) All Plaintiffs join in the
state law claims against Defendants. (Id. ¶¶ 393–422.) Specifically, Plaintiffs have sued
Defendants for: (1) monopolization of the acute care inpatient hospital services market;
(2) attempted monopolization of the physician services market, ancillary services market,
and Medicare Advantage markets; (3) conspiracy to restrain trade and monopolize
various markets; (4) unfair methods of competition; and (5) tortious interference with
business relationships. (Id. ¶¶ 291–422.)
In January of 2016, the Corporate and Individual Defendants respectively moved
for summary judgment on all ten counts of the Complaint. (See Docs. 189, 195, 201.)
Additionally, the Corporate Defendants and Plaintiffs moved to exclude the testimony of
three expert witnesses. (See Docs. 194, 197, 199.) Given the complexity of the arguments
and claims, the Court held a full-day hearing on the foregoing motions on May 2, 2016.
(See Doc. 272.) After taking the matters under advisement, the Court announced its
rulings on the motions at the Final Pretrial Conference on July 21, 2016. (Doc. 298.) The
instant Order memorializes such rulings.

6

THE DAUBERT MOTIONS
I.

Standards
In its gatekeeping role, a district court is tasked to ensure that juries only hear

“expert” opinions that satisfy the following requirements:
Qualifications—a witness that is “qualified as an expert by knowledge,
skill, experience, training, or education” may testify as to his opinions of
scientific, technical, or other specialized knowledge (Fed. R. Evid. 702)
(“Qualification Requirement”);
Reliability—the testimony is “based upon sufficient facts or data”
(Fed. R. Evid. Rule 702(b)) and “is the product of reliable principles and
methods” (Fed. R. Evid. Rule 703(c)), which the witness applied “reliably to
the facts of the case” (Fed. R. Evid. Rule 702(d)) (“Reliability
Requirement”); and
Helpfulness—the testimony will help the jury to “understand the evidence
or to determine a fact in issue” (Fed. R. Evid. Rule 702(a)) (“Helpfulness
Requirement”).
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562–63 (11th Cir. 1998); see
also Cooper v. Marten Transp., Ltd., 539 F. App’x 963, 965–67 (11th Cir. 2013).
Importantly, the Court must abstain from credibility determinations and any assessment
of the merits of an expert witness’s opinion—which are matters exclusively reserved to
juries—and must instead narrowly focus on whether the proponent of the expert witness
has established the Qualification, Reliability, and Helpfulness Requirements. See
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594–95 (1993); see also Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 155 (2000).
To determine whether the Qualification Requirement is met, “courts generally look
to evidence of the witness’s education and experience” and determine whether such
qualifications and expertise sufficiently “fit” with “the subject matter of the witness’s
proposed testimony.” In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig.,

7

711 F. Supp. 2d 1348, 1367 (M.D. Ga. 2010) (citing Maiz v. Virani, 253 F.3d 641, 665
(11th Cir. 2001)).
A determination on the Reliability Requirement requires consideration of a plethora
of matters, which vary depending on the opinions and testimony at issue, and include the
following well-known Daubert factors:
(1)

whether the expert’s theory can be or has been tested;

(2)

whether the theory has been subject to peer review and publication;

(3)

the known or potential rate of error of the particular scientific
technique; and

(4)

whether the technique is generally accepted in the scientific
community.

Daubert, 509 U.S. 579; United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004).
The factors pertinent to an analysis of the Reliability Requirement—including the Daubert
factors—“are only illustrative and may not all apply in every case.” United States v. Abreu,
406 F.3d 1304, 1307 (11th Cir. 2005). Ultimately, the district court must identify the
pertinent factors, and it is accorded “wide latitude in deciding how to determine reliability.”
Id.
Finally, the Helpfulness Requirement turns on
the common sense inquiry [of] whether the untrained layman
would be qualified to determine intelligently and to the best
possible degree the particular issue without enlightenment
from those having a specialized understanding of the subject
involved in the dispute.
See Fed. R. Evid. 702, Advisory Committee Notes (citation omitted).
The burden of establishing admissibility is borne by the proponent of the expert
opinion. See Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010) (citing

8

McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)); see also
Frazier, 387 F.3d at 1260. The proponent does not have to prove that the opinion is
scientifically correct, just that it is reliable and helpful. See Lord v. Fairway Elec. Corp.,
223 F. Supp. 2d 1270, 1279 (M.D. Fla. 2002) (citing Fed. R. Evid. 702, Advisory
Committee Notes). If the proponent does so, then the court should open the gate by
permitting the proponent to elicit testimony from the expert witness concerning his or her
reliable opinions and by allowing the jury to fulfill its role of determining the weight to
accord such testimony. Indeed, the Court’s limited gatekeeping role “is not intended to
supplant” presentation of contrary evidence to the jury or the practice of
cross-examination in a courtroom. See United States v. Ala. Power Co., 730 F.3d 1278,
1282–85 (11th Cir. 2013). Accordingly, once the proponent satisfies the minimum
threshold for admissibility, the parties’ remaining reliability and relevance disputes must
be decided by the jury—preferably based on the litigants’: (1) presentation of contrary
evidence, such as testimony from the litigant’s own expert witness providing both contrary
opinions and criticism of—among other things—the opposing expert’s qualifications and
the inaccuracy or unreliability of his or her opinions; and (2) use of cross-examination and
appropriate

legal

argument.

See

id.;

see

also

Costa

v.

Wyeth,

Inc.,

No. 8:04-cv-2599-T-27MAP, 2012 WL 1069189, at *2 (M.D. Fla. Mar. 29, 2012).
II.

Discussion
a.

Dr. McCarthy

In their sole Daubert motion, Plaintiffs seek to exclude opinions set forth in defense
expert Dr. Thomas McCarthy’s (“Dr. McCarthy”) respective liability and damages reports.
(Doc. 197.) Plaintiffs contend that Dr. McCarthy’s opinions are unreliable and do not fit

9

the issues to which they are applied. (Id. at 6.)
In his liability report, Dr. McCarthy opines that Health First does not possess
market power in the inpatient hospital services market (“Liability Opinion”). (See id.)
This Liability Opinion is based on Dr. McCarthy’s comparison of Health First’s actual
hospital prices to “expected” hospital prices generated by Dr. McCarthy’s regression
analysis. (Id.) Dr. McCarthy also challenges the amount of damages calculated by
Plaintiffs’ expert, Dr. Hal J. Singer (“Dr. Singer”), based on a categorical breakdown
Omni’s operating costs (“Damages Opinion”). (Id.)
Per the Liability Opinion, Heath First does not exercise market power in the
inpatient hospital services market because its prices are not higher than expected. (Id.
at 15.) This opinion is based on a regression model which predicts that, as per-capita
income within an area increases, hospital charges will decrease (“Negative
Correlation”). (Id. at 21.) Plaintiffs contend that the Liability Opinion is contrary to:
(1) longstanding, basic economic principles; (2) common sense; and (3) an econometric
model developed and published by Dr. William Lynk, which consistently demonstrates a
positive relationship between income and hospital prices—that is, as per-capita income
within an area increases, hospital prices also increase. (See id. at 21–22.) Additionally,
Plaintiffs take issue with the fact that Dr. McCarthy’s model predicts a correlation between
a hospital’s share of revenue attributable to Medicaid and the hospital’s charges, yet
inexplicably predicts that such correlation was positive in 2007 and negative in 2013
(“Flipped Correlation”). (Id. at 22–23.) Plaintiffs posit that this model should not switch
between a negative and positive correlation, but rather should be negative as in Dr. Lynk’s
model. (Id. at 23.) Plaintiffs maintain that the Negative and Flipped Correlations are

10

caused by a “specification error”—i.e., an incorrect key feature or assumption in the
model. (Id.) As a result, Plaintiffs argue that Dr. McCarthy’s model may yield incorrect or
misleading results. (Id. at 23–24.)
In particular, Plaintiffs contend that “[t]he failure of a regression model to tell a
coherent story about its independent variables means that it similarly will not confidently
or coherently predict the dependent variable,” which—in the present case—is hospital
prices. (Id. at 24.) Moreover, Plaintiffs argue that standard economic tests as to the
reliability of Dr. McCarthy’s model reveal that his predicted hospital prices are severely
inaccurate and yield a statistical confidence interval of 50 to 275 percent for HRMC. (Id.
at 24–25.) As such, the predicted prices for HRMC may be significantly below or above
HRMC’s observed prices. (Id. at 25.) Consequently, Plaintiffs contend that Dr. McCarthy’s
opinion is inadmissible. (See id. at 20–26.)
Turning to the Damages Opinion, Plaintiffs primarily challenge Dr. McCarthy’s
reliance on a third-party valuation report prepared by Health Capital Consultants, LLC
(“HCC Valuation Report”) in determining Omni’s fixed, variable, and partially variable
costs. (Id. at 7, 9.) Plaintiffs argue that the cost estimates in the HCC Valuation Report:
(1) do not reflect the economic realities of Omni’s business; (2) lack a valid scientific
connection to the disputed facts in the instant action; and (3) were unreasonably relied
on by Dr. McCarthy. (Id. at 7.)
In particular, the authors of the HCC Valuation Report expressly disclaimed the
reliability of the report for any purpose other than the estimation of Omni’s fair market
value. 4 (Id. at 9, 11.) Plaintiffs also seek exclusion of the Damages Opinion on the
4

In its entirety, the disclaimer reads as follows:

11

grounds that Dr. McCarthy failed to independently verify the qualifications of the HCC
Valuation Report’s authors or the accuracy of their assumptions and conclusions. (Id. at
9.)
In their response, the Corporate Defendants raise several objections to Plaintiffs’
Daubert Motion. (Doc. 214.) First, Corporate Defendants contend that Plaintiffs’ criticism
of Dr. McCarthy’s Liability Opinion reflects “a fundamental misunderstanding of
Dr. McCarthy’s analysis and, ultimately, its purpose.” (Id. at 10.) According to the
Corporate Defendants, the purpose of Dr. McCarthy’s regression analysis was to
determine whether Health First’s hospitals have high prices compared to their peer
hospitals in Florida and whether market power was likely to be the cause of any pricing
differentiation. (Id.) To achieve this purpose, Dr. McCarthy ran a regression to estimate
how non-market power factors—including case-mix, patient demographics, input costs,
and market power—affect prices on average; then he used the combined effect of those
non-market factors to calculate the “expected” price for each hospital in Florida. (Id.) In
light of this methodology, the Corporate Defendants maintain that: (1) Dr. McCarthy’s
regression analysis purposefully controlled for non-market power factors; and (2)

“The objective of this REPORT is to provide an estimate of the Fair Market Value
. . . as of the VALUATION DATE, of the SUBJECT INTEREST. The purpose and specific
use of this REPORT is to assist [Omni] in its advertisement to the management of the
SUBJECT ENTITY regarding the consideration of a prospective transaction of the
SUBJECT INTEREST.
The opinions expressed in this REPORT are restricted to that use and not valid if
used for any other purpose. Any other use of this REPORT may lead the user to an
incorrect conclusion for which the VALUATOR assumes no responsibility. No other use
of this REPORT is permitted without the express written authorization of the VALUATOR.
Possession of this REPORT or a copy thereof does not carry with it the right of publication.
It may not be used for any other purpose, in whole or in part, by anyone except [Omni],
for whom this REPORT was prepared, or conveyed to any other third party without the
previous express written consent of the VALUATOR.” (Doc. 197-2, pp. 9)

12

therefore, the expected prices produced from the regression analysis contained no
information about market power by design. (Id.) The Corporate Defendants represent
that, because market power is captured only in the residual—that is, the difference
between the expected price and actual observed price—Dr. McCarthy’s analysis
compares the residuals for each hospital in Florida to assess the relative market power
of the Health First hospitals. (Id. at 11.) Consequently, Dr. McCarthy explains that his
regression analysis determines the portion of the price explained by the observable
non-market power factors to better isolate the portion of the price attributable to market
power. (Id. at 12.)
Based on the foregoing, the Corporate Defendants reject the criticism of Plaintiffs’
liability expert, Dr. H.E. Frech, III (“Dr. Frech”), who avers that Dr. McCarthy should have
applied the standard error of the forecast (“SEF”) 5 to account for variation in the
dependent variable—the actual, or observed, prices left unexplained by the expected
prices as estimated by the regression. (Id. at 11–12.) According to Dr. McCarthy, applying
the SEF in this manner would have double-counted the residual. (Id. at 12.) Additionally,
Dr. McCarthy explains that the breadth of Dr. Frech’s confidence intervals is not surprising
because the expected prices, unlike the observed prices, do not account for any measure
of possible market power. (Id.) The gist of this argument is that Dr. Frech’s confidence
intervals compare apples to oranges. According to Dr. McCarthy, a properly computed
confidence interval for his analysis reveals a much narrower confidence interval. (Id.
at 12–13.)

5

According to Plaintiffs, SEF is a measure of the degree of accuracy of a forecast.
(Doc. 197, p. 24.)

13

In addressing Plaintiffs’ criticism of the Negative and Flipped Correlations, the
Corporate Defendants contend that Dr. McCarthy’s regression model is a “reduced form”
model and, therefore, “does not presume a specific defined ‘structural’ relationship
between the dependent variable and the explanatory variables of the regression.” (Id.
at 13.) The Corporate Defendants represent that: (1) a “reduced form” regression model
can account for multiple and possibly competing structural relationships at the same time
(id. at 13–14 (citing THAD W. MIRER, ECONOMIC STATISTICS & ECONOMETRICS 368–71 (3d
ed. 1995))); and (2) as such, reduced form regression models often yield results that
“have coefficient estimates that are statistically insignificant, . . . signs that are different
than what economic theory may predict in a vacuum for any one variable, or that even
change when estimated based on data from different time periods.” (Id. at 14.) Moreover,
referencing case law from the U.S. Supreme Court and within the U.S. Court of Appeals
for the Eleventh Circuit, the Corporate Defendants aver that purported errors in the way
an economist performs a regression analysis go to the weight, and not the admissibility,
of the expert’s opinion. (Id. at 15–16.) Finally, the Corporate Defendants point to a lack of
evidence tending to show that: (1) the results of Dr. McCarthy’s regression would change
if the model was “corrected” as suggested by Dr. Frech; (2) the reliability of the regression
model is questionable; or (3) Dr. McCarthy’s regression methodology was so incomplete
or inaccurate that an economist would not have relied on it in rendering an opinion. (Id.
at 16.)
As to Dr. McCarthy’s Damages Opinion, the Corporate Defendants argue that it
was reasonable for Dr. McCarthy to use the variable costs identified in the HCC Valuation
Report to perform his alternative estimate of damages because: (1) such costs were

14

determined in 2009 and 2010—entirely independent of the instant litigation; (2) the
authors of the HCC Valuation Report had the necessary expertise to determine the
difference between a fixed and variable cost; and importantly, (3) the authors consulted
with Omni management and ownership in preparing the valuation report and also
considered historical trends. (Id. at 5, 6.) As such, Dr. McCarthy concluded that the HCC
Valuation Report was “the best independent information available to identify each
category of operating costs as fixed, variable or partially variable in response to changes
in physician counts.” (Doc. 225, ¶ 57.) To corroborate this conclusion, the Corporate
Defendants cite deposition testimony from Dr. Deligdish, in which he stated that Omni
“cooperated with the valuation and the individuals doing the valuations so that they could
provide the most accurate valuation of the company,” and “provided them with full and
total access to any information they requested.” (Doc. 214-7, p. 9.) Therefore, the
Corporate Defendants contend that it was not unreasonable for Dr. McCarthy to rely on
the HCC Valuation Report without further consultation with its authors and without
conducting any further independent investigation. (Doc. 214, p. 8.)
As an initial matter, there is no challenge to Dr. McCarthy’s qualifications. Plaintiffs’
objections are primarily geared toward the reliability of his data. Pursuant to the principles
espoused in Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1998), all expert testimony
should be evaluated for its relevance and reliability under criteria appropriate to the given
discipline. See also SMS Sys. Maint. Serv. Inc. v. Dig. Equip. Corp., 188 F.3d 11, 25
(1st Cir. 1999) (“An expert must vouchsafe the reliability of the data on which he relies
and explain how the cumulation of that data was consistent with standards of the expert’s
profession.”).

15

Upon consideration, the Court finds that Dr. McCarthy’s regression analysis model
is reliable and that his explanation in response to Plaintiffs’ criticisms are reasonable.
Importantly, the weight Dr. McCarthy’s Liability Opinion is to be afforded, in light of the
apparent inconsistencies in the Flipped and Negative Correlations, will have to be
developed on cross examination and ultimately evaluated by the jury. Drs. McCarthy and
Frech clearly disagree about the significance of such factors; however, this does not
mean that the Court should “select” one expert over the other. Such a selection would
usurp the function of the jury and counsel advocacy. Additionally, while the wide range of
confidence interval values may indeed undercut the usefulness of Dr. McCarthy’s opinion,
it does not render the opinion inadmissible. The Court admits that the breadth of such
range did present a close call as to whether Dr. McCarthy’s opinion meets the Daubert
“fit” or helpfulness prong. Nonetheless, for now, the Court concludes that the opinion is
admissible.
As to Dr. McCarthy’s Damages Opinion, while Plaintiffs challenge the propriety of
Dr. McCarthy’s wholesale adoption of Omni’s fixed and variable costs as set forth in the
HCC Valuation Report, they do not argue that the methodology employed in the report is
itself unsound. Whether such use undermines the reliability of Dr. McCarthy’s opinion is
a “garbage in, garbage out” objection that is best left for cross examination. Standing
alone, Dr. McCarthy’s Damages Opinion may or may not be sufficient to support a
defense verdict, but it is admissible. Therefore, Plaintiffs’ Daubert motion is due to be
denied.
b.

Dr. Frech

According to the Corporate Defendants, Dr. Frech intends to provide expert

16

testimony: (1) defining the relevant product markets for Defendants’ alleged
anticompetitive conduct; (2) determining whether Health First possessed monopoly
power and caused anticompetitive effects; and (3) evaluating whether there are any
efficiency justifications that might outweigh such anticompetitive effects. (Doc. 194,
p. 2.) The Corporate Defendants contend that the Court should exclude Dr. Frech’s
testimony because his methodology is flawed and his opinions are based on insufficient
or incorrect facts or data that are contradicted by the record. (Id. at 1, 3.) Specifically, the
Corporate Defendants maintain that Dr. Frech has not conducted any competitive pricing
analysis of any market but, instead, has relied solely on the allegations in the Complaint,
Plaintiffs’ interrogatory answers, and select documents provided to him by another
expert’s assistant. (Id. at 3.) The Corporate Defendants also maintain that Dr. Frech’s
theory of liability: (1) has not been subject to peer review; (2) has an uncertain potential
rate of error; and (3) is not generally accepted. (Id. at 20–21.)
The Corporate Defendants primarily criticize Dr. Frech’s definition of the SBC
geographical market and the cluster markets for services within that market. The Court
declines to exclude Dr. Frech’s opinion on this basis. As a threshold matter, Dr. Frech’s
report sets forth, in painstaking detail, the economic and factual grounds for his definition
of the geographical market. (See Doc. 194-1, pp. 110–127.) These grounds are well in
line with the Supreme Court’s instruction that the definition of a relevant market should
be a “pragmatic” exercise, “not a formal, legalistic one.” Brown Shoe Co. v. United States,
370 U.S. 294, 336 (1962). Moreover, as set forth in Dr. Frech’s report, the SBC
geographic market is also supported by Health First’s own internal documents and
positions taken in prior litigation. (See Doc. 194-1, pp. 119, 121.) The Supreme Court has

17

also recognized that there is “no barrier to combining in a single market a number of
different products or services where that combination reflects commercial realities.”
United States v. Grinnell Corp., 384 U.S. 563, 572 (1966).
The remainder of the Daubert motion criticizes Dr. Frech’s purported testimony as
either contradicted by record evidence or factually unsupported. (See Doc. 194, pp. 13–
20, 22–24.) Though the Corporate Defendants partially attack this testimony as “untested
conclusions,” the Court agrees with Plaintiffs’ view that Health First’s challenge largely
amounts to a motion for summary judgment. (See Doc. 212, pp. 14–15.) “[I]t is not the
role of the district court to make ultimate conclusions as to the persuasiveness of the
proffered evidence.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341
(11th Cir. 2003). As such, the Court declines to follow the Corporate Defendants down
the path of conflating admissibility with sufficiency. Indeed, “[t]he Daubert analysis should
not supplant a trial on the merits.” Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir.
2002).
On balance, the Court finds that the Corporate Defendants’ Daubert motion as to
Dr. Frech is also due to be denied.
c.

Dr. Singer

In a second Daubert motion, the Corporate Defendants move to exclude the
testimony of Dr. Singer on the grounds that his methodology is flawed and his opinions
are based on insufficient or incorrect facts or data. (Doc. 199, p. 1.) Specifically, the
Corporate Defendants argue that: (1) because Dr. Singer’s testimony relies on the
testimony of Dr. Frech, it is flawed to the same extent that Dr. Frech’s testimony is flawed;
(2) Dr. Singer purports to testify that Plaintiffs should be awarded damages that do not

18

flow from Defendants’ alleged anticompetitive conduct; and (3) Dr. Singer’s damage
calculations are contradicted by the facts and based on erroneous assumptions. (Id. at 1–
2.)
Importantly, the Corporate Defendants take issue with Dr. Singer’s seemingly blind
acceptance of testimony that Plaintiffs’ injuries were caused by Defendants’ Alleged
Common Scheme. (Id. at 5–10.) That is, the Corporate Defendants contend that
Dr. Singer failed to consider alternative explanations or independently investigate the
basis for such testimony. (See id. at 8–9.) Other challenges to Dr. Singer’s report include
arguments that he misattributed damages (see id. at 11–12 15–16, 19) and assumed a
zero attrition rate among Omni physicians alleged to have left the practice as a result of
Defendants’ conduct (id. at 9-10).
In response, Plaintiffs argue that a damages expert may properly assume
causation. (Doc. 213, p. 3.) Plaintiffs also point to portions of Dr. Singer’s deposition in
which he testified that he independently reviewed Plaintiffs’ evidence for corroboration
and explicitly recognized that Omni has at times experienced attrition for reasons
unrelated to Defendants’ conduct. (See Doc. 199-1, pp. 25, 26, 88 n.22.)
The Court construes the Corporate Defendants’ challenge as an attack on
Dr. Singer’s damages model based on the failure to include all possible variables with
respect to causation. However, “[a]ntitrust law does not require that the defendant be the
exclusive cause of the plaintiff’s injury but only a ‘material’ one.” Gulf States
Reorganization Grp. v. Nucor Corp., 466 F.3d 961, 965 (11th Cir. 2006). Thus, while Dr.
Singer’s testimony may very well be subject to scrutiny on cross-examination, the Court
finds that it is not excludable on this basis.

19

In a similar vein, although the Corporate Defendants contend that Plaintiffs have
the burden of disaggregating losses in the event that some losses are attributable to
Defendants’ illegal acts and other losses are not (Doc. 199, p. 4), the Court is persuaded
by contrary authority. The Supreme Court has concluded that, where “the evidence
sustain[s] verdicts for the plaintiffs,”
in the absence of more precise proof, the jury [may] conclude
as a matter of just and reasonable inference from the proof of
the defendants’ wrongful acts and their tendency to injure
plaintiffs’ business, and from the evidence of the decline in
prices, profits[,] and values, not shown to be attributable to
other causes, that defendants’ wrongful acts had caused
damage to the plaintiffs.”
Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264 (1946). Referencing proof of
damage in antitrust suits, the Bigelow Court reiterated that “[t]he most elementary
conceptions of justice and public policy require that the wrongdoer shall bear the risk of
uncertainty which his own wrong has created.” Id. at 265. In such circumstances, “the
wrongdoer may not object to the plaintiff’s reasonable estimate of the cause of injury and
of its amount, supported by the evidence, because not based on more accurate data
which the wrongdoer’s misconduct has rendered unavailable.” Id. Such authority supports
Plaintiffs’ contention that the burden should be on the violator—if liability is established—
to disaggregate monetary losses. From there, the jury may be charged with carving out
of Dr. Singer’s testimony monetary losses unrelated to the challenged conduct, if any. As
such, the Corporate Defendants’ motion to exclude the testimony of Dr. Singer is due to
be denied.
THE SUMMARY JUDGMENT MOTIONS
I.

Standards

20

Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
As to issues for which the movant would bear the burden of proof at trial, the “movant
must affirmatively show the absence of a genuine issue of material fact, and support its
motion with credible evidence demonstrating that no reasonable jury could find for the
non-moving party on all of the essential elements of its case.” Landolfi v. City of
Melbourne, Fla., 515 F. App’x 832, 834 (11th Cir. 2012) (citing Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)). As to issues for which the non-movant would
bear the burden of proof at trial, the movant has two options: (1) the movant may simply
point out an absence of evidence to support the nonmoving party’s case; or (2) the movant
may provide “affirmative evidence demonstrating that the nonmoving party will be unable
to prove its case at trial.” U.S. v. Four Parcels of Real Property in Green and Tuscaloosa
Ctys. in State of Ala., 941 F.2d 1428, 1438 (11th Cir. 1991) (citing Celotex Corp., 477 U.S.
at 325).
“The burden then shifts to the non-moving party, who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of material fact
exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citing Fitzpatrick, 2 F.3d
at 1115–17). “A factual dispute is genuine ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Four Parcels, 941 F.2d at 1437 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The Court must view the evidence and all reasonable inferences drawn from the
evidence in the light most favorable to the non-movant. Battle v. Bd. of Regents,

21

468 F.3d 755, 759 (11th Cir. 2006). However, “[a] court need not permit a case to go to a
jury . . . when the inferences that are drawn from the evidence, and upon which the
non-movant relies, are ‘implausible.’” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,
743 (11th Cir. 1996).
II.

Corporate Defendants’ Motion for Summary Judgment (“MSJ”)
A.

Statute of Limitations

As a preliminary matter, the Court elects to address the Corporate Defendants’
final argument in its MSJ—its contention that Plaintiffs’ claims are partially barred by the
four-year statute of limitations applicable to their antitrust and state law claims. See
15 U.S.C. § 15b; Fla. Stat. §§ 95.11(3)(f), 95.11(3)(p). Plaintiffs initiated the instant action
on September 27, 2013. (See Doc. 1.) As such, the Corporate Defendants maintain that
any claims or damages that accrued prior to September 27, 2009, are time barred.
(Doc. 201, p. 33.) In particular, the Corporate Defendants argue that Plaintiffs may not
seek any damages predicated on the termination of: (1) Omni’s provider contracts with
HFHP on October 1, 2008; (2) Dr. Dowdell’s provider agreement with HFHP in February
2007; or (3) Dr. Komar’s employment at the Heath First emergency intensive care unit in
January 2009. (Id. at 33, 34, 37.) The Corporate Defendants also contend that, because
Dr. Seminer disposed of his Omni shares in March 2009, any damages he suffered were
sustained at that time and are thus barred. (Id. at 38.)
In response, Plaintiffs urge the Court to apply the continuing violation doctrine.
(Doc. 235, p. 40.) In support, Plaintiffs argue that none of their claims are solely
predicated on the termination of their provider agreements, but rather on Defendants’
ongoing Alleged Common Scheme, inclusive of the 2013 MIMA Acquisition. (Id. at 39.)

22

Indeed, Plaintiffs point to Dr. Singer’s damages report, which describes the effects of
Omni’s continuing exclusion from the HFHP network, inclusive of the 2008 termination.
(Doc. 235-47, ¶ 10.)
The former Fifth Circuit thoroughly addressed the application of the continuing
violation doctrine in Poster Exchange, Inc. v. National Screen Service Corporation,
517 F.2d 117 (5th Cir. 1975), a decision that is binding on this Court. See Bonner v. City
of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981). The plaintiff in Poster Exchange
alleged that the defendants engaged in a continued, unlawful antitrust conspiracy,
monopoly, and attempted monopoly within the motion picture accessory industry.
517 F.2d at 119. One of the three issues on appeal was the applicability of the statute of
limitations to the plaintiff’s claim of a continuing antitrust conspiracy. Id. at 122. The Fifth
Circuit agreed with the plaintiff’s assertion that it was entitled to recover damages caused
by the defendants’ continuation of the alleged monopoly and conspiracy and that such
actions should be treated “as a continuing series of acts upon which successive causes
of action may accrue.” Id. at 124–25. In so concluding, the Fifth Circuit highlighted that
the plaintiff’s complaint was “based on continuing antitrust behavior, not merely the
continuing damage it feels from a single day’s monopoly and refusal to deal” outside the
limitations period. Id. at 125. Moreover, the Poster Exchange court stated that binding
authority “la[id] to rest the theory that . . . suit upon a continued antitrust violation must
be prosecuted from the first act of illegality (plus, of course, any period during which the
limitations period was tolled.)” Id. at 126. The Fifth Circuit also distinguished between a
violation that is final at its impact, such as the immediate and permanent destruction of a
plaintiff’s business, and the violation at issue in Poster Exchange, whereby “the action

23

complained of the was the exclusion of [the plaintiff] from any participation in the [relevant
industry],” noting that in the latter example, “such action, while perhaps unequivocal, was
not [necessarily] permanent.” Id. at 126–27. However, the Fifth Circuit also clarified that
“a newly accruing claim for damages must be based on some injurious act actually
occurring during the limitations period, not merely the abatable but unabated inertial
consequences of some pre-limitations action”—that is, the plaintiffs must demonstrate
that the defendant’s actions during the limitations period caused it harm. Id. at 128.
In anticipation of Plaintiffs’ continuing violation argument, the Corporate
Defendants rely on case law providing that, “[w]here rights and liabilities are finalized by
a contract or by denial of a contract, and damages are at that time provable with certainty,
the statute of limitations begins to run at that time.” Midwestern Waffles Inc. v. Waffle
House, Inc., 734 F.2d 705, 715 (11th Cir. 1984); see also City of El Paso v. Darbyshire
St. Co., 575 F.2d 521, 523 (5th Cir. 1978). In support, the Corporate Defendants contend
that the termination of Omni and Dr. Dowdell’s provider agreements were final and
unequivocal as of October 1, 2008, and February 1, 2007, respectively. (Doc. 201, p. 35.)
The Corporate Defendants also argue that HFHP did not create any new or accumulating
injuries by any subsequent refusals to deal. (Id. at 36.) Indeed, the Corporate Defendants
maintain that all damages claimed by Omni and Dr. Dowdell in the instant litigation stem
from the original termination of their provider agreements and not from any subsequent
refusals to deal, as these were merely reaffirmations of the initial termination. (Id. at 36,
37.) To this point, Plaintiffs counter that Health First genuinely entertained reinstating
Omni’s provider agreement on multiple occasions over the years following Omni’s
termination. (Doc. 235, p. 40.)

24

Under Midwestern Waffles, if Plaintiffs’ subsequent requests for reinstatement as
participating providers with HFHP were genuine—i.e., if Plaintiffs had reason to believe
that their original terminations were subject to reconsideration—then “there would be a
new alleged injury when a genuine subsequent request was denied.” 734 F.2d at 715.
Upon consideration of the record, the Court finds that Plaintiffs have produced evidence
sufficient to warrant the application of the continuing violation doctrine. The instant action
is more akin to the circumstances presented in Poster Exchange and the example of a
genuine request for reinstatement as set forth in Midwestern Waffles. Plaintiffs cite to
exhibits that demonstrate that HFHP considered reinstating Plaintiffs’ provider
agreements during the limitations period. (Doc. 238-36, 238-37, Doc. 238-38,
Doc. 238-51, pp. 8–11.) This evidence shows that in two instances Health First
conditioned Omni’s reinstatement on its purchase of HFHP insurance for its employees
(Doc. 238-36) and its individual physicians joining a physicians group, such as MIMA, that
was “in line with Health First[’s] interest” (Doc. 238-51, pp. 10–11). The record also
supports Plaintiffs’ contention that HFHP considered reinstating Dr. Dowdell in March of
2008. (Doc. 298-29.) Thus, HFHP’s continued exclusion of Dr. Dowdell from the HFHP
network despite his requests for reinstatement during the limitations period may also be
fairly construed as new injuries under the continuing violation doctrine. (See Doc. 235-38,
¶¶ 15–16.)
Similarly, the Corporate Defendants argue that the state law claims of Omni,
Dr. Deligdish, SOAR, Dr. Komar, Boone, PAS, and Dr. Dowdell are also barred by the
statute of limitations. (Doc. 201, pp. 37–38.) While it is true, as Defendants argue, that
under Florida law a cause of action accrues from the time the injury is first inflicted on the

25

plaintiff, Carter v. Cross, 373 So. 2d 81 (Fla. 3d DCA 1979), it is also true that Florida
recognizes the continuing tort doctrine. Seaboard Air Line R.R. Co. v. Holt, 92 So. 2d 169,
170 (Fla. 1956). In light of the foregoing, the Court finds that the application of the
continuing tort doctrine is also warranted under the circumstances. As such, Defendants
are not entitled to judgment as a matter of law on their statute of limitations defense at
this time.
B.

Count I

In Count I of the Complaint, Plaintiffs allege that the MIMA Acquisition was an
impermissible merger in restraint of trade, thus violating Section 7 of the Clayton Act.
(Doc. 57, ¶¶ 291–99.) Section 7 prohibits acquisitions “where in any line of commerce or
in any activity affecting commerce in any section of the country, the effect of such
acquisition may be substantially to lessen competition, or tend to create a monopoly.”
Polypore Int’l, Inc. v. Fed. Trade Comm’n, 686 F.3d 1208, 1213 (11th Cir. 2012) (quoting
15 U.S.C. § 18). Importantly, “Congress used the words ‘may be substantially to lessen
competition’ to indicate that its concern was with probabilities, not certainties.” Brown
Shoe Co., 370 U.S. at 323 (1962).
The crux of the Corporate Defendants’ MSJ as to Count I is that Plaintiffs have
uncovered no evidence that the MIMA Acquisition substantially lessened competition or
tended to create a monopoly in the relevant market for physician services in SBC.
(Doc. 201, p. 3.) The Court disagrees.
In the Complaint, Plaintiffs aver that, by acquiring the largest independent
physicians group in SBC, Health First substantially lessened competition in the market
for physician services by: (1) requiring that former MIMA physicians no longer accept

26

Medicare Advantage plans not offered by Health First, thereby forcing patients who
wished to maintain their relationships with their physicians to switch to Health First’s
Medicare Advantage plans; and (2) ensuring that all employed physicians referred
patients exclusively to Health First’s hospitals, physicians, and ancillary service providers.
(Id. ¶¶ 3, 263, 294.)
The parties first dispute whether the MIMA Acquisition is a vertical or horizontal
merger. (See Doc. 235, p. 9; Doc. 249, pp. 4–5.) As Plaintiffs’ Complaint alleges that the
MIMA Acquisition was a vertical merger (see, e.g., Doc. 57, ¶ 261), Plaintiffs are entitled
to proceed under this theory if supported by the evidence.
As defined by the Supreme Court, “[e]conomic arrangements between companies
standing in a supplier-customer relationship are characterized as ‘vertical.’” Brown Shoe
Co., 370 U.S. at 323. On the other hand, “[a]n economic arrangement between
companies performing similar functions in the production or sale of comparable goods or
services is characterized as ‘horizontal.’” Id. at 334.
Defendants admit that Health First is a non-for-profit corporation, with its principal
place of business in SBC, which bills itself as “Central Florida’s only fully integrated health
system.” (Doc. 11, p. 11.) Additionally, Health First is the parent corporation of: (1) HRMC;
(2)

Cape

Canaveral

Hospital;

(3) Palm

Bay

Hospital;

(4) Viera

Hospital;

(5) HF Physicians; and (6) HFHP. (Id.) Moreover, at the time of the MIMA Acquisition,
MIMA was the largest independent physicians group in SBC. (Doc. 111, p. 3.) In light of
these admissions, the Court finds that Plaintiffs’ characterization of the MIMA Acquisition
as a vertical merger is supported by the evidence as MIMA and Health First’s other
subsidiaries can be fairly described as downstream suppliers in Health First’s integrated,

27

vertical market. See Joshua S. Gans, Concentration-Based Merger Tests and Vertical
Market Structure, 50 J.L. & ECON. 661, 670 (2007) (explaining that the nature of a
vertically integrated firm is its function as a net supplier of inputs and that “[a] merger
between any upstream and downstream firm is a pure vertical integration”).
In evaluating how a vertically integrated firm may lessen competition in a
geographic market, the Supreme Court explained that,
[t]he primary vice of vertical merger or other arrangement
tying a customer to a supplier is that, by foreclosing the
competitors of either party from a segment of the market
otherwise open to them, the arrangement may act as a clog
on competition, which deprives rivals of a fair opportunity to
compete.
Brown Shoe Co., 370 U.S. at 323–24 (citing Standard Oil Co. of Cal. v. United States,
337 U.S. 293, 314 (1949)). Therefore, “the diminution of the vigor of competition which
may stem from a vertical arrangement results primarily from a foreclosure or share of the
market otherwise open to competitors.” Id. at 328.
Contrary to the Corporate Defendants’ contention, Plaintiffs maintain that they
have produced sufficient evidence to demonstrate that the MIMA Acquisition substantially
lessened competition in SBC. (Doc. 235, pp. 3–4.) First, Plaintiffs point to Kimberley
Nowakowski’s deposition testimony that physicians employed by HF Physicians are
required to refer patients to Health First facilities or providers, unless: (1) the patient
chooses otherwise; (2) medical necessity requires otherwise; or (3) the patient’s
insurance payer provides otherwise. (Doc. 235-38, p. 21.) Second, in his expert report,
Dr. Frech concludes that, through acquisition and alignment, Health First has foreclosed
more than 25% of the physician services market by its Exclusive Referral Practice.
(Doc. 235-1, p. 81.) Finally, Plaintiffs produced a document entitled “HFMG Medicare

28

Advantage Transition Plan Summary” which outlines a plan for eliminating all non-HFHP
Medicare Advantage plans, as established during the MIMA Acquisition. (Doc.235-4,
p. 2.)
Upon consideration of the evidence, the Court finds that there is a genuine issue
of material fact as to whether the MIMA Acquisition substantially lessens competition or
tends to create a monopoly in SBC, thus foreclosing judgment as a matter of law as to
Count I. 6
C.

Count II

In Count II, Plaintiffs allege that Health First and HRMC 7 have monopolized the
acute care inpatient hospital services market in SBC in violation of Section 2 of the
Sherman Act. (Doc. 57, ¶¶ 300–314.) Specifically, Plaintiffs aver that Health First’s
monopoly power in the inpatient hospital services market is demonstrated by: (1) its ability
to exclude rival providers of inpatient hospital services; (2) its ability to raise prices to
private health insurers and other third-party payors to above-competitive levels; and (3) its
near 70% market share. (Id. ¶ 302.) Plaintiffs also allege that Health First has exercised,
maintained, and exploited this monopoly power through exclusionary and anticompetitive
conduct, including the Exclusive Referral Practice, group boycotts, concerted refusals to
6

The Court also rejects the Corporate Defendants’ argument that Plaintiffs lack
standing to sue because they have not been totally excluded from the market. (See
Doc. 201, p. 3 n.2.) As previously stated, “[t]he primary vice of vertical merger or other
arrangement tying a customer to a supplier is that, by foreclosing the competitors of either
party from a segment of the market otherwise open to them, the arrangement may act as
a clog on competition, which deprives rivals of a fair opportunity to compete.” Brown Shoe
Co., 370 U.S. at 323–24 (emphasis added). Moreover, nowhere in the Corporate
Defendants’ cited authority does the Eleventh Circuit pronounce that antitrust injury
requires complete exclusion from the relevant market. See Gulf States, 466 F.3d 961.
7 For purposes of addressing the Corporate Defendants’ MSJ as to Count II only,
the Court will refer to Health First and HRMC collectively as “Defendants.”

29

deal, and monopoly leveraging. (Id. ¶ 305.)
“Section 2 of the Sherman Act provides that every person who shall monopolize,
or attempt to monopolize any part of the trade or commerce among the several States
shall be deemed guilty of a felony.” Morris Commc’ns Corp. v. PGA Tour Inc.,
364 F.3d 1288, 1293 (11th Cir. 2004) (citing 15 U.S.C. § 2). In particular,
[t]he offense of monopoly under § 2 of the Sherman Act has
two elements: (1) the possession of monopoly power in the
relevant market[;] and (2) the willful acquisition or
maintenance of that power as distinguished from growth or
development as a consequence of a superior product,
business acumen, or historic accident.
Id. at 1293–94 (quoting Grinnell Corp., 384 U.S. at 570–71). “The first element, monopoly
power, is the power to control prices in or to exclude competition from the relevant market.
The second element requires predatory or exclusionary acts or practices that have the
effect of preventing or excluding competition within the relevant market.” Id. at 1294. “In
order for a practice to be exclusionary, it must harm the competitive process and thereby
harm consumers.” Id.
In their MSJ as to Count II, the Corporate Defendants contend that Plaintiffs have
presented no evidence that either Health First or HRMC: (1) has the ability to control
prices or exclude competition; or (2) engaged in any exclusionary conduct. (Doc. 201,
pp. 5–8.) Plaintiffs counter that: (1) Health First’s market share is prima facie evidence of
monopoly power in the hospital market; and (2) the substantial barriers to entry in that
market reinforce the power conferred by that market share. (See Doc. 235, p. 11–18.)
As stated by the Eleventh Circuit, “[t]he principal measure of actual monopoly
power is market share.” U.S. Anchor Mfg., Inc. v. Rule Indus., 7 F.3d 986, 999
(11th Cir. 1993). Dr. Frech’s expert report concludes that Health First’s share of the

30

hospital market was 86.8% in 2014. (Doc. 235-1, p. 68 tbl.4.) Based on this evidence, the
Court concludes that Plaintiffs have created a genuine issue of material fact as to
Defendants’ ability to exclude competition from the relevant market. See Rule Indus.,
7 F.3d at 999 (stating that “a sufficiently large market share may alone create a genuine
dispute over whether the defendant possessed a dangerous probability of successfully
monopolizing a market despite the existence of other facts tending to make
monopolization unlikely, thereby precluding summary judgment for the defendant”).
Indeed, the Eleventh Circuit has explicitly pronounced that binding circuit precedent
compels the conclusion that “[a] market share estimated with reasonable confidence to
fall between 60 and 65% suffices to raise a jury question concerning dangerous
probability.” Id. (citing MaGhee v. N. Propone Gas Co., 858 F.2d 1487, 1506
(11th Cir. 1988)); see also Grinnell Corp., 384 U.S. at 571 (finding that an 87% market
share “leaves no doubt” as to monopoly power). In assessing whether an entity
possesses monopoly power within a market, courts typically examine market structure in
search of circumstantial evidence of monopoly power, such as whether the firm has a
predominant market share and whether there is freedom of, or barriers to, entry. McWane
Inc. v. Fed. Trade Comm’n, 783 F.3d 814, 830 (11th Cir. 2015).Therefore, evidence of
Defendants’ 86.8% market share in the inpatient hospital services market, coupled with
Plaintiffs’ evidence demonstrating the existence of high barriers to entry into the relevant
market (see Doc. 235-1, pp. 69–70), presents a jury question as to the first element
required for liability on Count II.
The Court similarly concludes that Plaintiffs have raised a factual issue for
determination by the jury with respect to the second element of their claim in Count II—

31

the willful acquisition or maintenance of monopoly power as evidenced by the exclusion
of competitors within the relevant market. Dr. Frech concluded that Defendants’
exclusionary practices have resulted in antitrust injury—namely, the diversion of referrals
from its providers—in multiple markets, including the acute-care inpatient services
market. (Doc. 235-1, pp. 5–6, 87–90.) This evidence is corroborated by witness testimony
elaborating on the specific ways in which Defendants engaged in exclusionary practices
through its Exclusive Referral Practice. (E.g., Doc. 235-38, pp. 5–6; Doc. 235-42, pp. 5–
6; Doc. 238–45, pp. 4–5.) As such, the Corporate Defendants’ MSJ as to Count III is due
to be denied.
D.

Counts III, IV, V, and VI

In Counts III through VI of the Complaint, Plaintiffs assert several attempted
monopolization claims under Section 2 of the Sherman Act. (Doc. 57, ¶¶ 315–366.)
Specifically, Plaintiffs allege that: (1) Health First and HF Physicians attempted to
monopolize the physician services market (Count III); (2) Health First, HMRC, and
HF Physicians attempted to monopolize the ancillary services market (Count IV);
(3) Health First and HFHP attempted to monopolize the private health insurance market
(Count V); and (4) Health First and HFHP attempted to monopolize the Medicare
Advantage Market (Count VI). (Id.)
Under § 2 of the Sherman Act, “the conduct of a single firm [is] unlawful only when
it actually monopolizes or threatens to do so.” Spectrum Sports, Inc. v. McQuillan, 506
U.S. 447, 459 (1993). Thus, to state a claim for attempted monopolization, a plaintiff must
demonstrate: (1) that the defendant possessed the specific intent to achieve monopoly
power by predatory or exclusionary conduct; (2) that the defendant did in fact commit

32

such anticompetitive conduct; and (3) a dangerous probability that the defendant might
have succeeded in its attempt to achieve monopoly power. Rule Indus., 7 F.3d at 993.
“Most attempts to measure monopoly power involve quantifying the degree of
concentration in a relevant market and/or the extent of a particular firm's ability to control
productive capacity in that market.” Id. at 994. Other relevant determinants of the market
power of a prospective predator include the absolute and relative market shares of
competing firms, “the strength and capacity of current competitors, the potential for
entry[,] the historic intensity of competition[,] and the impact of the legal or natural
environment. Id. (quoting In re Int’l Tel. & Tel. Corp., 104 F.T.C. 280, 412 (1984)).
However, “[d]espite the seemingly broad array of factors employed by the Federal Trade
Commission, the principal judicial device for measuring actual or potential market power
remains market share, typically measured in terms of a percentage of total market sales.”
Rule Indus., 7 F.3d at 994.
Moreover, “[i]n evaluating a § 2 attempt to monopolize claim, it is necessary to
consider the relevant market . . .” Tech. Res. Servs., Inc. v. Dornier Med. Sys., Inc.,
134 F.3d 1458, 1466 (11th Cir. 1998) (citing Spectrum Sports, 506 U.S. at 459). As such,
the Court will, in turn, discuss whether the respective Defendants are entitled to summary
judgment on Plaintiffs’ attempted monopolization claims within each relevant market.
1.

Physician Services Market

In their attempted monopolization claim in Count III, Plaintiffs allege that the
relevant market is the physician services market in SBC. (Doc. 57, ¶ 316.) The Corporate
Defendants contend that Plaintiffs’ claim fails as a matter of law because: (1) a dangerous
probability of success cannot be shown when the defendant possesses less than 50% of

33

the market; (2) there are low entry barriers into the physician services market; and
(3) there is no evidence of any specific intent by HF Physicians to monopolize the
physicians services market. (Doc. 249, p. 7; see also Doc. 201, p. 10.) The Corporate
Defendants also maintain that Plaintiffs failed to properly define a relevant market.
(Doc. 201, p. 10.)
With respect to the Corporate Defendants’ contention that Plaintiffs have failed to
define a relevant market, Plaintiffs’ point to their response to the Corporate Defendants’
Daubert motion to exclude the testimony of Dr. Frech—a motion which the Court intends
to deny. (Doc. 235, p. 21.) In similar fashion, the Court rests on its prior pronouncement
that the markets defined by Dr. Frech are sufficient for admission under Daubert. The
Court thus rejects the Corporate Defendants’ conclusory argument that the physician
services market is inadequately defined.
As to the first element of an attempted monopolization claim, the Court agrees with
Plaintiffs that a reasonable juror could infer that Health First and HF Physicians
possessed the specific intent to monopolize based on the unfair or predatory nature of
their tactics, particularly in coercing market participants to maximize referrals within the
Health First system and minimize referrals outside of it. (Doc. 235-39, ¶ 6); see also
Spectrum Sports, 506 U.S. at 459 (explaining that a finding that a defendant has engaged
in unfair or predatory tactics may be sufficient to prove the necessary intent to
monopolize). Additionally, Plaintiffs have produced evidence showing that physicians
employed by Health First have unilaterally terminated all Medicare Advantage plans not
offered by Health First (see Doc. 235-4), which Plaintiffs argue would cause Health First
to forego significant sources of revenue. As the Eleventh Circuit has recognized, “[t]he

34

unilateral termination of a voluntary (and thus presumably profitable) course of dealing”
may suggest “a willingness to forsake short-term profits to achieve an anticompetitive
end,” from which the intent to achieve monopoly power by exclusionary conduct may be
inferred. See Verizon Commc’ns, Inc. v. Law Offices of Curtis V. Trinko, LLP, 50 U.S. 398,
409 (2004); see also Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585,
610–611 (1985). Such evidence is also sufficient to meet the second element of Plaintiffs’
attempted monopolization claim in Count III.
Finally, the Court disagrees with the Corporate Defendants’ interpretation of Rule
Industries as containing a per se requirement that a defendant possess at least a 50%
market share to constitute a dangerous probability of success under the third element of
an attempted monopolization claim. The Court acknowledges that in concluding that there
was insufficient evidence from which the jury could have found a dangerous probability
of monopolization, the Rule Industries court held that, as a matter of law, there was no
dangerous probability of success because the defendant possessed less than 50% of the
market throughout the time of the alleged conduct. Rule Indus., 7 F.3d at 1000–01.
However, in the same decision, the Rule Industries court drew attention to the Fifth
Circuit’s cautionary remarks in Cliff Ford Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 207
n.2 (5th Cir 1969), that “one must be particularly wary of the numbers game of market
percentage when considering an attempt to monopolize suit under the dangerous
probability standard.” Rule Indus., 7 F.3d at 999. Accordingly, the Undersigned elects to
follow the approach taken in Gen. Cigar Holdings, Inc. v. Altadis, S.A., in which the court
stated that, “consistent with [Rule Industries], if a plaintiff is to sustain an attempted
monopolization claim with an allegation of less than 50% market share, he must also

35

allege other reasons that make a monopoly dangerously probable.” 205 F. Supp. 2d 1335,
1351 (S.D. Fla. 2002), aff'd sub nom., 54 F. App'x 492 (11th Cir. 2002).
Here, notwithstanding the fact that Health First possesses only a 27% market
share in the physician services market (Doc. 235-1, p. 81 n.245; see also Doc. 201-8,
48:17–23), Plaintiffs provide evidence from their liability expert suggesting that:
(1) markets for specialist physicians are significantly concentrated and involve substantial
barriers to entry (see Doc. 235-1, pp. 52, 55–56 & n.152); (2) Health First’s vertical
integration, combined with its dominance in the market for acute inpatient hospital
services, allows it to impair competition in multiple markets through exclusionary tactics
and facilitate the exercise of monopoly power in markets, such as physician services,
where its market share appears relatively low when viewed in isolation (Doc. 235-38, ¶ 6);
and (3) absent “the dramatic contraction in the scale of Omni’s operations resulting from
Omni’s exclusion from [HFHP],” Health First’s market share in physician services would
have been lower (id. ¶ 8). Additionally, in his declaration, Dr. Frech vouches that
HF Physicians’ market share in certain specialties is substantially higher than its share in
physician services overall. (Id. ¶ 10 & tbl.1.) In light of this showing and the factors
enumerated in Rule Industries, the Court concludes that the combined effect of Health
First’s 86% market share in the inpatient hospital services market, its 27% market share
in the physician services market, and its ability to exclude competitors throughout is
sufficient to create a jury question as to Health First and HF Physicians’ “dangerous
probability of achieving market power.” Thus, Count III survives the Corporate
Defendants’ MSJ.

36

2.

Ancillary Services Market

Count IV of the Complaint alleges that Health First, HRMC, and HF Physicians
attempted to monopolize the ancillary services market in SBC in violation of Section 2 of
the Sherman Act. (Doc. 57, ¶¶ 328–40.) The Complaint defines the ancillary services
market as “axillary or supplemental services provided by a licensed physician or medical
practice to support diagnosis and treatment of a patient’s condition.” (Id. at ¶ 63.) As
alleged, such services include: (1) diagnostic services (e.g., x-rays and laboratory
testing); (2) durable medical equipment and medical devices (e.g., crutches and
orthotics), (3) therapies (e.g., radiation therapy and dialysis); and (4) outpatient surgeries
(e.g., in-house surgery suits and ambulatory surgery centers). (Id. at ¶ 64.) According to
the Complaint, “[a]ncillary services are purchased in conjunction with medical or hospital
care” and are most commonly “covered and paid for by the patient’s insurance”;
additionally, “patients are often directed to a particular ancillary service provider by their
doctors or health plan.” (Id.) Because patients’ health plans typically only reimburse for
services performed by approved ancillary service providers (id. ¶ 66), Plaintiffs allege that
Health First has acquired a dominant share of the ancillary services market in SBC
through its ownership and control of numerous subsidiaries (id. ¶ 70.) Finally, Plaintiffs
allege that immediately following the MIMA Acquisition, the former MIMA physicians
began: (1) terminating business relationships with ancillary service providers outside the
Health First system; and (2) directing all ancillary services to Health First’s own
higher-priced providers. (Doc. 57, ¶ 270.) As a result, Plaintiffs aver that prices are higher,
there are fewer alternatives for participants in the ancillary services market in SBC, and

37

that their ability to effectively compete in this market has been substantially limited. (Id.
¶¶ 332, 334.)
In support of their MSJ as to Count IV, the Corporate Defendants first present
deposition testimony from Dr. Frech, in which he admits that he does not intend to offer
any opinions as to the ancillary services market. (Doc. 201, p. 11 (citing Doc. 201-8,
23:12–21, 33:5–13, 46:8–9).) As “[c]onstruction of a relevant economic market or a show
of monopoly power in that market” must be supported by expert testimony, the Corporate
Defendants contend that Plaintiffs have abandoned this claim. (Id. (citing Am. Key Corp.
v. Cole Nat’l Corp., 762 F.2d 1529, 1579 (11th Cir. 1985).) Second, the Corporate
Defendants maintain that, because Plaintiffs have failed to demonstrate that Defendants
had a share of the market that was 50% or greater, they cannot prove that Defendants
possessed a dangerous probability of success. (Id.) Finally, the Corporate Defendants
contend that: (1) Plaintiffs cannot produce any evidence of specific intent by the relevant
Defendants to monopolize the ancillary services market; and (2) there are low entry
barriers into the ancillary services market. (Doc. 249, p. 7.)
In response, Plaintiffs cite numerous opinions in Dr. Frech’s report as to the nature
and effects of Health First’s conduct in the ancillary services market. (Doc. 235, p. 21
(citing, inter alia, Doc. 235-1, ¶¶ 160, 165, 173, 197).) Additionally, Plaintiffs again
maintain that Rule Industries did not set a bright-line rule requiring that a dangerous
probability of success be demonstrated by possession of a market share that is greater
than 50% during the relevant time period. (Id. at 22.) Instead, Plaintiffs argue that the
conduct supporting their claim for attempted monopolization of the physician services
market is sufficient to support their claim for attempted monopolization of the ancillary

38

services market because many of them are providers of both physician and ancillary
services and sustained damages in the ancillary services market as a result of Health
First’s conduct. (Id.) Additionally, Plaintiffs contend that Health First has the power to force
physicians to refer HFHP patients to Health First facilities for ancillary services by refusing
to credential participating physicians to perform ancillary services at other locations. (Id.
(citing Doc. 235-58, ¶ 8).)
Upon consideration of the evidence, the Court concludes that Plaintiffs have
produced sufficient evidence to support the elements of an attempted monopolization
claim in the ancillary services market. Here, Dr. Frech’s report concludes, inter alia, that:
(1) Health First has foreclosed 39% of radiologists in SBC through its exclusive
relationship with Brevard Physicians Associates (Doc. 235-1, ¶¶ 165, 159); and (2) Health
First’s exclusive dealing arrangements have harmed competition in the physician and
ancillary services markets (id. ¶ 197). The Court agrees with Plaintiffs that it is the role of
counsel, not the expert, to procure the relevant testimony at trial to support Plaintiffs’
claims. (See Doc. 235, p. 22.)
The declaration of Dr. Dowdell further corroborates the alleged exclusionary
conduct. Dr. Dowdell specializes in interventional pain management and is the CEO,
medical director, and sole shareholder of SOAR. (Doc. 235-58, ¶¶ 1, 3.) Dr. Dowdell
declares that, during his tenure as an HFHP participating provider from 2003 to 2006, he
was advised that Health First expected him to bring all his insured patients to Palm Bay
Pain Clinic and to perform procedures on HFHP patients exclusively at Health First
ambulatory surgery centers. (Id. ¶ 6.) HFHP also required its participating physicians to
perform all X-rays, DEXA, MRIs, labs, physical therapy, and other ancillary services at a

39

Health First facility. (Id. ¶ 8.) According to Dr. Dowdell, this requirement greatly
inconvenienced his patients and resulted in delays in diagnosis and treatment. (Id.)
On November 1, 2006, Peter Weiss (“Dr. Weiss”)—CEO of HFHP—visited
Dr. Dowdell’s office to discuss pain management. (Id. ¶ 7.) At that time, Dr. Weiss learned
that Dr. Dowdell was performing most of his surgical procedures at his in-office operating
suite, as opposed to Health First facilities. 8 (Id.) According to Dr. Dowdell, Dr. Weiss was
also aware that Dr. Dowdell was not bringing all his patients to Palm Bay Pain Clinic and
Melbourne Same Day Surgery as previously instructed. (Id.) During the meeting,
Dr. Dowdell requested credentialing with HFHP to perform X-rays and other ancillary
services in his office. (Id. ¶ 8.) Two days later, Dr. Weiss informed Dr. Dowdell that the
HFHP Board had voted to terminate his contract—effective February 2007—based on
their belief that he potentially jeopardized patient care. (Id. ¶¶ 8, 9.) However, Dr. Dowdell
believes that he was terminated because he did not comply with the requirement that he
perform all of his surgical procedures at Health First facilities. (Id. ¶ 10.) Indeed, according
to Dr. Dowdell’s declaration, he met with Health First Medical Director Dr. Joe Collins
(“Dr. Collins”) and HFHP Director of Provider Relations Katie Fleming (“Ms. Fleming”)
on April 16, 2008, at which time Dr. Collins informed him that HFHP had no quantifiable
evidence that any of his medical procedures jeopardized patient care. (Id. ¶ 11, 12.)
Nonetheless, in response to Dr. Dowdell’s request at the meeting as to whether he could
bring an HFHP participating provider into his practice, Dr. Dowdell was told that if a

8

In his declaration, Dr. Dowdell avers that his office operating suite was certified
by the Department of Health. (Doc. 235-58, ¶ 7.)

40

participating HFHP provider joined his practice, then that provider’s contract would be
terminated. (Id. ¶ 13.)
Prior to and after his termination from HFHP, Dr. Dowdell continued to see patients
at HRMC. (Id. ¶ 18.) However, the nurse managers at HRMC often ignored his orders to
refer these patients to non-Health First facilities; instead, the HRMC nurses transferred
such

patients

to

Health

First

facilities.

(Id.)

Additionally,

despite

continued

communications with Health First and HFHP and repeated attempts at reinstatement,
Dr. Dowdell’s application to rejoin HFHP was continuously denied. (See id. ¶¶ 11, 12, 15,
16.)
As previously mentioned, specific intent may be inferred from predatory or
exclusionary conduct. See Spectrum Sports, 506 U.S. at 459. Consequently, the Court
finds that, based on the foregoing evidence of exclusionary conduct, a reasonable juror
could conclude that Health First possessed the specific intent to achieve monopoly power
in the ancillary services market and that Health First did in fact commit such
anticompetitive conduct. See Rule Indus., 7 F.3d at 993.
Finally, the Court reiterates its prior conclusion that Plaintiffs need not demonstrate
that a defendant possess a 50% or greater market share to constitute a dangerous
probability of success for an attempted monopolization claim if other factors are present.
Although market share is the principal device utilized by courts to measure monopoly
power, the extent of a firm’s ability to control productive capacity in a market may
alternatively be indicative of monopoly power. See Rule Indus., 7 F.3d at 994. Here, the
interrelated nature of Health First’s alleged exclusionary treatment, location, and referral
practices supports Plaintiffs’ contention that Health First has the ability to control

41

productive capacity in the ancillary services market. Notably, Dr. Frech concludes that
Health First’s foreclosure of the physician services market through acquisition and
alignment has anticompetitive effects on the ancillary services market by directing
referrals to Health First hospitals and foreclosing referrals to other sources of ancillary
services. (Doc. 235-1, ¶ 165.) Further illustration of the interconnected nature of these
markets is evidenced by Dr. Frech’s correlation of the decline in Omni’s collections on
ancillary services as physicians left its practice. (Doc. 235-47, ¶ 27.) To this end,
Dr. Frech has compiled multiple tables demonstrating Omni’s forgone revenues for
ancillary services. (Doc. 235-47 ¶¶ 27–29, 37, 38; id. at 17–18 tbls.5A–5D, 21–22
tbls.6A–6D, 28–29 tbls.8A–8D, 30–31 tbls.9A–9D).)
Dr. Frech also concludes that, generally, a hospital’s vertical integration into health
plans “significantly increases health plans’ bargaining power with independent physicians
and ancillary service providers.” (Doc. 235-1, ¶ 126.) Specific to Health First, Dr. Frech
summarizes the anticompetitive nature of its vertical integration as a series of
exclusionary activities designed to reduce competition among hospitals, physicians,
health plans, and ancillary service providers, which it enforced through penalties for
non-compliance—namely, termination of provider contracts. (Id. ¶¶ 147, 156, 197.) Given
the parallel nature of the physician services and ancillary services markets, Dr. Dowdell’s
declaration, and Dr. Frech’s conclusions—including his quantification of the foreclosure
of radiologists in SBC—the Court is unable to conclude, as a matter of law, that Health
First does not possess a dangerous probability of successfully achieving a monopoly of
the ancillary services market in SBC. Not only does the evidence create a question of fact
as to Health First’s ability to control productive capacity in this market, but it also supports

42

a finding that there are substantial barriers to entry in the ancillary services market—i.e.,
the procurement of HFHP participating provider contracts predicated on the agreement
to engage in exclusive referral and treatment practices that potentially violate the
Sherman Act. Consequently, the Corporate Defendants’ MSJ is due to be denied with
respect to Count IV.
3.

Private Health Insurance Market

At the outset of its response to the Corporate Defendants’ MSJ, Plaintiffs concede
that there is insufficient evidence to support their claim under Count V of the Complaint
for attempted monopolization of the private health insurance market. (Doc. 235, p. 7, n.1.)
Consequently, Plaintiffs purport to voluntarily dismiss this claim. (Id.) As the Corporate
Defendants have already filed a MSJ and do not stipulate to dismissal (see Doc. 201;
Doc. 249, p. 7, n.7), the Court construes Plaintiffs’ concession as a request for voluntary
dismissal by Court order pursuant to Federal Rule of Civil Procedure 41(a)(2) and finds
that it is due to be granted. Accordingly, the Court will dismiss Count V of the Complaint
with prejudice.
4.

Medicare Advantage Market

Count VI of the Complaint alleges that Health First and HFHP attempted to
monopolize the Medicare Advantage Market. (Doc. 57, ¶¶ 354–66.) In particular, Plaintiffs
allege that Health First wields a dominant share of the Medicare Advantage market in
SBC through its ownership and control of HFHP. (Id. ¶ 355.) According to Plaintiffs, Health
First has enhanced and abused this market power through exclusionary conduct, which
has harmed Plaintiffs, who participate in the relevant market as suppliers. (Id. ¶¶ 357,
359.) Specifically, Plaintiffs contract with private health insurers to offer services as part

43

of their provider networks, while insurers offering Medicare Advantage plans pay Plaintiffs
for services rendered to their Medicare Advantage enrollees. (Id. ¶ 359.) Plaintiffs allege
that Health First’s exclusionary course of conduct has substantially limited their ability to
effectively compete in this market. (See id. ¶ 360.)
In their MSJ as to Count VI, the Corporate Defendants argue that: (1) there is no
evidence that Medicare Advantage is a separate market from traditional Medicare
coverage (Doc. 201, p. 12); (2) Plaintiffs cannot produce any admissible evidence of a
conspiracy and do not otherwise have proof of any unlawful exclusionary conduct (id. at
12–13); (3) HFHP’s declining market share, new entry to market, and the lack of evidence
of inhibited growth or competition therein support a finding that Health First and HFHP do
not have a dangerous probability of success with respect to monopolization of the
Medicare Advantage market (id. at 13–14); and (4) there is no evidence of specific intent
to monopolize this market (Doc. 249, p. 8). Plaintiffs counter each of these arguments.
(Doc. 235.)
As an initial matter, the Court agrees with Plaintiffs that Medicare Advantage is a
product independent of Medicare, and thus the Medicare Advantage market is distinct
from the traditional Medicare market. (See Doc. 235, pp. 22-23.) Importantly, this is the
position taken by the Antitrust Division of the U.S. Department of Justice. See United
States v. UnitedHealth Grp. Inc., 1:08-cv-00322-ESH (D.D.C. Feb. 25, 2008), Doc. 1. This
position is further supported by Dr. Frech’s report, which cites at least two corroborating
journal articles. (Doc. 235-1, ¶ 60.)
The remainder of the Corporate Defendants’ arguments challenge the sufficiency
of the evidence supporting the elements of an attempted monopolization claim. To

44

establish the intent element, Plaintiffs point to documentation outlining the steps of Health
First’s strategy—formulated during the MIMA Acquisition—to unilaterally terminate all
non-Health First Medicare Advantage plans formerly accepted by MIMA. (Doc. 235-4.)
The Corporate Defendants contend that, in light of the MIMA Acquisition, such termination
constitutes a permissible unilateral refusal to deal because Health First hospitals have
never contracted with any other Medicare Advantage plans. (Doc. 201, pp. 12–13.)
However, the unilateral termination of a voluntary and presumably profitable course of
dealing may be indicative of anticompetitive intent where it suggests a willingness to
forsake short-term profits to achieve an anticompetitive end. See Trinko, 540 U.S. at 409
(summarizing the Aspen Skiing exception). Consequently, the Court finds this evidence
sufficient to raise a jury question as to the intent element of an attempted monopolization
claim.
Next, Plaintiffs argue that Health First’s refusal to accept any Medicare Advantage
plans outside its own constitutes anticompetitive conduct. (Doc. 235, p. 23.) Plaintiffs also
maintain that the vertical integration of the Health First system injures competing
Medicare Advantage plans because they are denied access to patients treated at HRMC,
which Plaintiffs contend is the only hospital in SBC with Level II Trauma Center, Level II
Neonatal Intensive Care Unit, and an air ambulance. (Id. at 23; see also Doc. 57, ¶ 116.)
Additionally, Plaintiffs argue that Health First’s Exclusive Referral Practice cements this
effect within the physician services market. (Doc. 235, p. 24.) Upon consideration, the
Court agrees that Health First’s exclusion of HRMC—a “must have” hospital in SBC—
from all competing Medicare Advantage plans evidences anticompetitive exclusive
dealing on the part of Health First and HFHP.

45

As to the third element, the Corporate Defendants underscore HFHP’s declining
share of the Medicare Advantage market in SBC, which has fallen from 100% in 2005 to
50–60% currently. (Doc. 201, p. 13.) Consequently, the Corporate Defendants contend
that this decline evidences a lack of market power, which the Court should consider in
determining whether there is a dangerous probability of successfully monopolizing the
market. (Id. at 14.) In particular, the Corporate Defendants represent that this significant
decline was created by new entry and expansion in the market by competitors, which
evidences a lack of barriers to entry. (Id.; see also Doc. 249, p. 8.) Additionally, the
Corporate Defendants argue that there is no evidence that new Medicare Advantage
plans have been unable to effectively compete and grow despite the Corporate
Defendants’ alleged exclusionary conduct. (Doc. 201, p. 14.)
Although Plaintiffs concede that Health First’s market share has declined, they
maintain that its remaining market share is well within the range associated with a
dangerous probability of achieving monopoly power. (Doc. 235, p. 24.) The Court agrees.
Indeed, the Corporate Defendants concede that HFHP currently possesses a 50 to 60%
share of the Medicare Advantage market. (Doc. 201, p. 13.) As contemplated by the
Eleventh Circuit, “a sufficiently large market share may alone create a genuine dispute
over whether the defendant possessed a dangerous probability of successfully
monopolizing a market despite the existence of other facts tending to make
monopolization unlikely, thereby precluding summary judgment for the defendant.” Rule
Indus., 7 F.3d at 999. The Court thus declines to depart from Eleventh Circuit precedent
concluding that “a dangerous probability of achieving monopoly power may be
established by a 50% share,” Rule Indus., 7 F.3d at 1000. While the Corporate

46

Defendants are free to argue at trial that low barriers to entry and a declining market share
negate the attempted monopolization claim that Plaintiffs allege in Count VI, the Court
may not weigh the evidence to foreclose Plaintiffs’ claim at this stage of the proceedings.
As such, the Corporate Defendants’ MSJ as to Plaintiffs’ attempted monopolization claim
in Count VI is due to be denied.
E.

Count VII

In Count VII, Plaintiffs assert a claim against all Defendants for a contract,
combination, or conspiracy in restraint of trade in violation of Section 1 of the Sherman
Act (“Section One Conspiracy Claim”). (Doc. 57, ¶¶ 367–379.) Specifically, Plaintiffs
allege that Defendants participated in a common scheme with co-conspirators 9 to restrain
trade and exclude competition in the aforementioned markets by engaging in:
(1) exclusive dealing arrangements; (2) tying arrangements; and (3) a group
boycott/concerted refusal to deal. (Id. ¶¶ 367–69.) Plaintiffs Omni, SOAR, IFS, and
Florida Pain allege that they were harmed by such conduct because: (1) they either had
their provider contracts terminated or were denied access to the Health First network for
refusing to agree to the exclusive dealing arrangements, which caused them to be denied
access to Health First’s enrollees; (2) the physicians who agreed to the exclusive dealing
arrangements have subjected them to a group boycott/concerted refusal to deal; (3) they
have stopped receiving inpatient referrals from HRMC; and (4) the exclusionary practices
have prevented them from growing their businesses due to a lack of referrals and the
inability to access a substantial segment of insured persons in SBC. (Id. ¶¶ 375–
9

According to Plaintiffs, all physicians and medical practices that agreed to Health
First’s exclusive dealing arrangements are Defendants’ co-conspirators—including MIMA
and its physicians prior to the MIMA Acquisition.

47

378). Additionally, Omni and SOAR allege that Health First has actively lured physicians
away from their practices. (Id. ¶¶ 375, 376.) Meanwhile, the individual Antitrust Plaintiffs—
Drs. Deligdish, Seminer, Dowdell, Gayles, Golovac, Grenevicki, and Komar—allege that
they were harmed by Defendants’ exclusionary practices because they have been:
(1) denied access to Health First’s members; and (2) blacklisted by Health First and, thus,
received no patient referrals from HF Physicians or its co-conspirators, regardless of the
patient’s insurance provider. (Id. ¶ 379.)
Section One of the Sherman Act provides that “[e]very contract, combination in the
form of trust or otherwise, or conspiracy, in restraint of trade or commerce . . . is declared
to be illegal.” 15 U.S.C. § 1. Therefore, to survive the Corporate Defendants’ motion for
judgment as a matter of law on their Section One Conspiracy Claim, Plaintiffs must prove
the existence of an agreement to restrain trade between two or more persons evidenced
by “a unity of purpose or a common design and understanding, or a meeting of minds in
an unlawful arrangement.” Harcros Chems., 158 F.3d at 569.
In their MSJ, the Corporate Defendants contend that they are entitled to judgment
as a matter of law because: (1) Plaintiffs cannot present any admissible evidence of any
agreement or conspiracy; and (2) no legitimate inference may be drawn from any
circumstantial evidence. (Doc. 201, p. 14.) In particular, the Corporate Defendants argue
that the only evidence Plaintiffs can produce in support of a conspiracy between MIMA
and Health First is inadmissible hearsay testimony from Dr. Deligdish. (Id. at 17–18.)
Additionally, the Corporate Defendants aver that purely circumstantial evidence implying
that HF Physicians and MIMA doctors conspired to admit patients only to Health First
hospitals—and not Wuesthoff—cannot defeat their MSJ because the record evidence

48

shows legitimate reasons why doctors would not want to admit patients to Wuesthoff—
namely, lack of the same services as Health First’s hospitals and quality concerns.
(Doc. 249, p. 9.)
In response, Plaintiffs point to documentary evidence that arguably raises
questions of material fact with respect to their Section One Conspiracy Claim, thus
precluding the grant of summary judgment. (Doc. 235, pp. 18–19.) First, Plaintiffs produce
an email from [e-mail] to [e-mail] in which the
sender references “the political relationship, now years in duration between HFHP and
MIMA” which “drives PET/CT and MRI to HRMC for [MIMA] patients.” (Doc. 238-15, p. 2.)
The email explains that “MIMA physicians do not have any choice in consulting
radiologists for health plan patients as [they] do in all other fields” and continues to identify
some of the sender’s concerns regarding two erroneous diagnoses and the quality and
standard of care by the HRMC radiologists. (Id.) The sender states that he does not know
how to fix the problem and that he cannot refer to anyone but these physicians. (Id.)
Additionally, Plaintiffs produced deposition testimony from a witness who points to the
behavior of MIMA as evidence of a conspiracy—specifically, that: (1) MIMA has over 100
doctors and 10,000 hospital admissions a year, yet only one percent of those admissions
is at Wuesthoff; and (2) MIMA has offices within one to three miles of Wuesthoff and has
moved its building and main headquarters closer to Wuesthoff, yet still does not utilize
Wuesthoff. 10 (Doc. 235-41, p. 6.)
Based on the foregoing, the Court finds that there is a genuine dispute of material

10

Contrary to Defendants’ arguments, none of Plaintiffs’ proffered testimony
constitutes hearsay.

49

fact as to whether an illegal conspiracy existed between MIMA and Health First to refer
patients only to Health First physicians and admit patients only to Health First hospitals.
Such circumstantial evidence is sufficient to defeat the MSJ. Rarely will a plaintiff be able
to establish the existence of a conspiracy with direct evidence of an explicit agreement;
indeed, “most conspiracies are inferred from the behavior of the alleged conspirators.” Id.
(quoting Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1573 (11th Cir. 1991)).
Thus, “[w]hen a plaintiff seeks to prove a conspiracy by inference, courts must be mindful
that on summary judgment the inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the party opposing the motion.’” Id. (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
The Court acknowledges that “antitrust law limits the range of permissible
inferences from ambiguous evidence in a § 1 case.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 588 (1986). Notably, “conduct as consistent with permissible
competition as with illegal conspiracy does not, standing alone, support an inference of
antitrust conspiracy.” Id. However, the Court finds that Plaintiffs’ evidence does not fall
into the latter category. Though the Corporate Defendants argue that there were
legitimate reasons why doctors would not want to admit patients to Wuesthoff, they point
only to Plaintiffs’ response stating that the scope and sale of Wuesthoff’s services are
significantly more limited than those of Health First. (Doc. 249, p. 9, n.12 (citing Doc. 238,
pp. 13–14).) A reasonable juror could conclude that MIMA physician Joseph McClure’s
email referencing the political relationship between MIMA and Health First and his
inability to refer patients to radiologists outside HRMC—despite quality concerns—is
more consistent with an illegal conspiracy than permissible competition. Consequently,

50

the Corporate Defendants’ motion as to Count VI is due to be denied. 11
F.

Count VIII

In Count VIII of the Complaint, Plaintiffs allege that all Defendants violated
Section 2 of the Sherman Act by engaging in a conspiracy to monopolize the market for
physician services, ancillary services, and Medicare Advantage plans in SBC (“Section
Two Conspiracy Claim”). (Doc. 57, ¶¶ 380–92.) According to Plaintiffs, Defendants have
participated in a common scheme designed to leverage Health First’s market power and
create a vertically-integrated healthcare monopoly in SBC through multiple forms of
exclusionary conduct. (Id. ¶ 380.) As in the alleged Section One Conspiracy Claim,
Plaintiffs aver that Health First’s co-conspirators consist of all the physicians and medical
practices that agreed to Health First’s exclusive dealing arrangements—including MIMA
and its physicians prior to the MIMA Acquisition. (Id. ¶ 382.) Plaintiffs allege that such
exclusionary conduct has hindered their ability to effectively compete in the relevant
markets in SBC, thereby causing injury to competition and consumers. (Id. ¶ 386, 385.)
Unlike a § 2 attempted monopolization claim, a claim for conspiracy to monopolize
does not require a showing of monopoly power. Levine v. Cent. Fla. Med. Affiliates,
72 F.3d 1538, 1556 (11th Cir. 1996). “Instead, a plaintiff proves a section 2 conspiracy to
monopolize by showing: ‘(1) concerted action deliberately entered into with the specific
intent of achieving a monopoly; and (2) the commission of at least one overt act in
furtherance of the conspiracy.’” Id. (quoting Todorov v. DCH Healthcare Auth.,
11

The Court also rejects the Corporate Defendants’ contention that portions of
Plaintiffs’ evidence falls outside the scope of the Complaint. (See Doc. 249, p. 9.) To the
contrary, Plaintiffs alleged a conspiracy based on exclusive dealing arrangements
between MIMA and Health First. (E.g., Doc. 57, ¶¶ 146–152, 368.) The evidence
produced by Plaintiffs supports exactly that.

51

921 F.2d 1439, 1460 n.35 (11th Cir. 1996)).
Incorporating the same arguments advanced in its MSJ as to Count VII, the
Corporate Defendants contend that Plaintiffs cannot produce any admissible evidence of
a conspiracy between the Corporate Defendants and any other entity. (Doc. 201, p. 20.)
Specifically, the Corporate Defendants maintain that their conduct constitutes a unilateral
refusal to deal based on legitimate business decisions. (Id.) Moreover, the Corporate
Defendants again posit that Plaintiffs have not set forth sufficient evidence to: (1) define
the ancillary services market; or (2) demonstrate that Health First possessed the required
intent to monopolize the markets for hospital services, physician services, and Medicare
Advantage insurance. (Id.) Plaintiffs similarly rely on their arguments in response to the
Corporate Defendants’ MSJ as to Count VII. (Doc. 235, p. 27.)
As it has done twice before in the instant Order, the Court again rejects the
Corporate Defendants’ contention that Plaintiffs have not adequately defined the ancillary
services market. Similarly, the Court declines to revisit the Corporate Defendants’
challenge as to the sufficiency of the evidence supporting a finding of specific intent to
monopolize the hospital services, physician services, and Medicare Advantage insurance
markets. Finally, the Court has already rejected the Corporate Defendants’ contention
that Plaintiffs’ proffered evidence is probative only of a permissible unilateral refusal to
deal, rather than an illegal conspiracy. As such, the Corporate Defendants’ MSJ as to
Count VIII also fails.
G.

Count IX

Turning to Plaintiffs’ state law claims, in Count IX of the Complaint, Plaintiffs seek
damages and injunctive relief against all Defendants for alleged violations of FDUTPA.

52

(Doc. 57, ¶¶ 393–405.) Plaintiffs predicate their FDUTPA claim on the Alleged Common
Scheme (see id. ¶ 397), which they contend constitutes immoral, unethical, oppressive,
and unscrupulous conduct that offends public policy and is substantially injurious to
consumers. (Id. ¶ 396.)
Under FDUTPA, Plaintiffs must demonstrate only that: (1) the alleged conduct was
unfair or deceptive; and (2) they were damaged by such unfair or deceptive conduct. True
Title, Inc. v. Blanchard, No. 6:06-cv-1871-Orl-19DAB, 2007 WL 430659, at *3 (M.D. Fla.
Feb. 5, 2007). A practice is unfair under FDUTPA if “it offends established public policy,
is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.”
Suris v. Gilmore Liquidating, Inc., 651 So. 2d 1282, 1283 (Fla. 3d DCA 1995) (citing
Spiegel, Inc. v. Fed. Trade Comm’n, 540 F.2d 287, 293 (7th Cir. 1976)). “Antitrust
violations are included within the conduct proscribed by the FDUTPA.” Marco Island
Cable, Inc. v. Comcast Cablevision of South, Inc., No. 2:04-cv-26-FTM-29DNF,
2006 WL 1814333, at *6 (M.D. Fla. July 3, 2006). Given that the Court has already
determined that the evidence supporting the antitrust violations alleged in Counts I
through VIII is sufficient to survive the Corporate Defendants’ MSJ, the Antitrust Plaintiffs
have met their burden with respect to the first element of a FDUTPA claim. 12 The
12

The Corporate Defendants also appear to dispute whether Plaintiffs are
consumers of services within the purview of FDUTPA. (See Doc. 201, pp. 200, 201.)
Though immaterial, the Court rejects this argument. Florida law has clearly established
that the 2001 amendment to FDUTPA eradicated the prior requirement that a plaintiff be
a consumer to seek relief under the statute. N. Am. Clearing, Inc. v. Brokerage Comput.
Sys., Inc., 666 F. Supp. 2d 1299, 1310 n.9 (M.D. Fla. 2009) (stating that “the 2001
Amendments to FDUTPA broadened its scope to allow any person or entity who has
suffered a loss as a result of unfair or deceptive acts or practices to commence a private
action for actual damages”); see also Caribbean Cruise Line, Inc. v. Better Bus. Bureau
of Palm Beach Cty., 169 So. 3d 164 (Fla. 4th DCA 2015) (same). Moreover, a claim under
FDUTPA need not even arise out of a consumer transaction. Furmanite America, Inc. v.

53

remaining Plaintiffs—Boone and PAS—have also produced sufficient evidence of unfair
and deceptive conduct on the part of Defendants. (E.g., Doc. 235-57.)
With respect to the second element, the Corporate Defendants first maintain that
the absence of evidence of actual damages, as defined by FDUTPA, is fatal to Plaintiffs’
claim for damages under the statute. (Doc. 201, pp. 20–23, Doc. 249, p. 9.) Specifically,
the Corporate Defendants maintain that Plaintiffs cannot demonstrate that the “things of
value” they have purchased have diminished in valued as a result of Defendants’ alleged
actions. (Doc. 201, p. 22.) The Court agrees.
Under Florida law, “[t]he measure of actual damages is the difference in the market
value of the product or service in the condition in which it was delivered and its market
value and the condition in which it should have been delivered according to the contract
of the parties.” 13 Rollins, Inc. v. Heller, 454 So. 2d 580, 585 (Fla. 3d DCA 1984). Neither
the Complaint, Plaintiffs’ response to the Corporate Defendants’ MSJ, nor Dr. Singer’s
damages report reveals a calculation of damages that fit within this definition. (See
Doc. 57, ¶¶ 393–405; see also Doc. 199-1, pp. 80–84; cf. Doc. 235, p. 22–23.) As such,
Plaintiffs’ claim for damages in Count IX fails as a matter of law.
Nonetheless, under FDUTPA,
anyone aggrieved by a violation of [the statute] may bring an
action to obtain a declaratory judgment that an act or practice
violates [the statute] and to enjoin a person who has violated,
is violating, or is otherwise likely to violate [the statute].

T.D. Williamson, Inc., 506 F.Supp.2d 1134, 1145–46 (M.D. Fla. 2007).
13 The only notable exception to this rule is “when the product is rendered valueless
as a result of the defect.” Rollins, Inc., 454 So. 2d at 585. In that circumstance, “the
purchase price is the appropriate measure of actual damages.” Id.

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Fla. Stat. § 501.211. Thus, “regardless of whether an aggrieved party can recover ‘actual
damages’ under section 501.211(2), it may obtain injunctive relief under section
501.211(1).” Wyndham Vacation Resorts v. Timeshares Direct, Inc., 123 So. 3d 1149,
1152 (Fla. 5th DCA 2012). As mentioned above, Plaintiffs also seek injunctive relief.
(Doc. 57, ¶ 393.) To this point, the Corporate Defendants maintain that Plaintiffs offer no
evidence that Dr. Gayles, Dr. Golovac, Dr. Dowdell, Dr. Grenevicki, or Boone were
“aggrieved” within the meaning of FDUTPA. (Doc. 201, p. 23.)
Florida’s Fifth District Court of Appeals (“Fifth DCA”) has stated that, for purposes
of § 501.211(1), an “aggrieved” person “must be able to demonstrate some specific past,
present, or future grievance.” Ahearn v. Mayo Clinic, 180 So. 3d 165, 173
(Fla. 5th DCA 2015). Consistent with prior case law, the Ahearn court concluded that an
aggrieved party is not required to suffer monetary damages to maintain an action for an
injunction under § 501.211(1). Id. at 171–73, 175. Rather, the Ahearn court found that the
meaning of “aggrieved” as used in § 501.211(1) is more consistent with the Black’s Law
Dictionary definition describing a person “angry or sad on grounds of perceived unfair
treatment” and, therefore, provides broader relief than FDUTPA’s damages provision. Id.
at 172, 175. However, the injury claimed cannot be merely speculative. Id. at 173.
Here, the Court finds that Dr. Singer’s damages report sets forth affirmative
evidence demonstrating that Dr. Gayles, Dr. Golovac, Dr. Dowdell, Dr. Grenevicki, and
Boone were aggrieved by Defendants’ alleged actions, which they contend harmed their
respective practices. (Doc. 199-1, pp. 116–137.) Such evidence, inter alia, is sufficient to
create a genuine issue of material fact as to Plaintiffs’ FDUTPA claim for injunctive relief.

55

Finally, the Corporate Defendants contend—once again—that HFHP is exempt
from suit pursuant to § 501.212(4)(a) of the Florida Statutes. (Id. at 23–24.) The Court
previously resolved this issue against Defendants in its Dismissal Order. (See Doc. 105,
pp. 29–31.) The Corporate Defendants do not present any new basis or evidence for their
exemption argument. As such, the Court construes their argument as an attempt to
re-litigate an issue already determined by the Court, and finds that it is due to be denied.
H.

Count X

In their tenth count, Plaintiffs assert a state law claim for tortious interference with
business relationships against all Defendants. (Doc. 57, ¶¶ 406–422.) Under Florida law,
“[t]he elements of the tort of intentional interference with an
advantageous business relationship are: 1) the existence of a
business relationship, not necessarily evidenced by an
enforceable contract; 2) knowledge of the relationship on the
part of the defendant; 3) an intentional and unjustified
interference with that relationship by the defendant; and 4)
damage to the plaintiff as a result of the breach of the
relationship.”
Magre v. Charles, 729 So. 2d 440, 443–44 (Fla. 5th DCA 1999). In particular, Plaintiffs
allege that Defendants interfered with three different types of business relationships:
(1) Plaintiffs’ relationships with patients insured by HFHP (“Patient Relationships”);
(2) Plaintiffs’ relationship with other doctors who previously referred patients to them or
otherwise utilized their services (“Referral Relationships”); and (3) Plaintiffs’
relationships with physicians in their practices whom Health First lured away to join other
practices (“Practice Relationships”). (Doc. 57, ¶ 406; see also Doc. 235, p. 30.)
The Corporate Defendants raise several grounds in support of their MSJ as to
Count X. First, the Corporate Defendants contend that: (1) Plaintiffs’ claim with respect to
their Referral Relationships fails as a matter of law because payment or compensation

56

for referrals is illegal and, therefore, business relationships relating to patient referrals are
not legally cognizable (Doc. 201, p. 24); (2) Plaintiffs cannot prove a business relationship
with identifiable patients and physicians or Defendants’ knowledge thereof (id. at 25, 26,
28); and (3) the record is devoid of any evidence of causation (id. at 25, 26, 28). The
Corporate Defendants also argue that Plaintiffs cannot prove that HFHP’s termination of
Plaintiffs’ provider contracts constituted unlawful interference because: (1) a claim for
tortious interference cannot exist against a party to the relationship interfered with; and
(2) such terminations were expressly permitted under the terms of the provider contracts.
(Id. at 26–27.) Finally, the Corporate Defendants contend that their actions are protected
under Florida’s competition privilege. (Id. at 28.) Upon consideration, the Court finds that
Plaintiffs have established a prima facie claim for tortious interference based on the
exhibits cited in their response. Therefore, the Corporate Defendants’ MSJ as to Count X
is due to be denied.
As an initial matter, the Court rejects the Corporate Defendants’ argument that a
physician-referral relationship cannot form the basis of a tortious interference claim as it
is squarely at odds with existing Florida law. See, e.g., Magre, 729 So. 2d 440. Indeed,
Plaintiffs’ alleged damage does not turn on the procurement of an illegal referral fee but,
rather, on their loss of paying patients as a result of Defendants’ interference with their
provider contracts stemming from their refusal to refer all patients to Health First facilities.
(See, e.g., Doc. 199-1, p. 38.)
In Magre, Florida’s Fifth DCA reversed a grant of summary judgment in favor of
the defendant on a tortious interference claim. Id. at 444. The facts of the case involved
a surgeon’s allegedly defamatory letter to his colleagues criticizing the plaintiff—

57

Dr. Magre—following the hospital’s full reinstatement of Dr. Magre’s previously
suspended staff privileges. Id. at 442. In his complaint, Dr. Magre alleged that the
defendant had intentionally interfered with his relationship with the hospital and members
of its medical staff who referred patients to him because the letter contained “untrue
statements concerning his professional skill and reputation.” Id. at 442, 444. Ultimately,
the Magre court concluded that, because the letter came after Dr. Magre’s reinstatement
with full staff privileges, it did not constitute intentional interference with a business
relationship with the hospital, but may have constituted intentional and unjustified
interference with Dr. Magre’s business relationship with other doctors who refer patients
to him. Id. at 444.
In a similar case, Florida’s Third DCA reversed the lower court’s dismissal of the
plaintiffs’ tortious interference claim on the ground that the plaintiffs sufficiently alleged a
cause of action for tortious interference and that the competition privilege was a question
of fact to be resolved at trial. Greensberg v. Mount Sinai Med. Ctr. of Greater Miami, Inc.,
629 So.2d 252, 256 (Fla. 3d DCA 1993). Specifically, in Greensberg, two cardiac
surgeons experienced difficulty obtaining operating room time and assisting hospital
personnel after Dr. Greensberg resigned as chairman of the department. Id. at 254. The
newly-appointed chairman allegedly: (1) induced referring physicians to send patients to
him instead of plaintiffs; and (2) refused to honor the recommendations of referring
physicians who sent patients to plaintiffs. Id. at 254–55. According to the Greensberg
plaintiffs, the defendants also told patients that plaintiffs no longer practiced cardiac
surgery at the hospital and set up numerous obstacles to prevent plaintiffs from
performing even emergency surgeries. Id. at 255. On appeal, the Third DCA agreed that

58

the Greensberg plaintiffs had adequately alleged intentional interference with their
relationships with referring physicians and patients. Id. at 255–56.
Finally, in Scheller v. American Medical International Inc., 502 So.2d 1268
(Fla. 4th DCA 1987), the doctor-plaintiff brought a claim for tortious interference with an
advantageous business relationship, alleging that the defendants interfered with his
relationship with other physicians and their patients by preventing plaintiffs from offering
pathology services at the hospital and interfering with his billing. Id. at 1271–72. As a
result, the Scheller plaintiff alleged that he lost patients and patient referrals. Id. at 1272.
In reversing the lower court’s dismissal, the Fourth DCA held that the plaintiff’s allegations
were sufficient to state a cause of action for tortious interference. Id. In light of the
foregoing authorities, the Court finds that the Corporate Defendants’ first contention is not
well taken.
The Corporate Defendants’ second argument is equally unfounded. Indeed,
Plaintiffs have produced sufficient evidence to demonstrate Defendants’ knowledge of
Plaintiffs’ business relationship with identifiable patients and physicians and, contrary to
the Corporate Defendants’ contention, Plaintiffs do not allege a business relationship with
the public at large. First, Plaintiffs produced a form letter sent from Dr. Collins to insured
patients following the termination of its provider contract with Dr. Dowdell, encouraging
Dr. Dowdell’s patients to select a new physician from an enclosed list of participating
providers in order to retain coverage for services. (Doc. 235-17.) Plaintiffs also present
correspondence from MIMA physician Stephen Blythe to Dr. Weiss at Health First,
informing Dr. Weiss: (1) that HFHP’s termination of Omni’s provider agreement had
precipitated the receipt of ten to twenty daily phone calls from patients seeking new

59

primary care physicians; and (2) of the problem created by his inability to refer patients to
a physician not yet credentialed by HFHP. (See Doc. 235-16.) Plaintiffs contend that the
foregoing evidence supports their position that Health First: (1) intended for patients
insured by HFHP to seek out other treating physicians; (2) had knowledge of the
substantial numbers of patients who did exactly that; and (3) was aware of the importance
to patients of seeking in-network providers. (Doc. 235, p. 31.) The Court agrees.
Based on the record evidence, a reasonable juror could also conclude that the
Corporate Defendants had knowledge of Plaintiffs’ prior Referral Relationships with HFHP
participating physicians. At his deposition, Dr. Weiss testified that, “[i]f any participating
physician in [HFHP] was referring routinely to doctors that were not participating in the
plan, that would have caused a great deal of attention on the part of the leadership.”
(Doc. 235-50, p. 7.) Finally, it is beyond genuine dispute that the Corporate Defendants
would have had knowledge of the relationship between Plaintiffs and the physicians they
recruited to join HF Physicians, who were members of Plaintiffs’ respective practices at
the time.
Plaintiffs have also set forth sufficient evidence to create a factual issue as to
whether Defendants’ interference with Plaintiffs’ Patient, Referral, and Practice
Relationships was intentional or unjustified. Importantly, the parties offer contradicting
theories with respect to the reasons for Defendants’ conduct. Though the Corporate
Defendants contend that their actions are shielded by Florida’s competition privilege, this
determination is more appropriately reserved to the jury under the present circumstances.
To establish the competition privilege, the Corporate Defendants must show, inter alia,
that it did not employ improper means and it did not intend to create or continue an illegal

60

restraint on competition. Int’l Sales & Serv., Inc. v. Austral Insulated Prods.,
262 F.3d 1152, 1159 (11th Cir. 2001). Such elements are hotly-debated issues in the
instant litigation and both parties have produced evidence from which a reasonable juror
could reach different conclusions. As such, summary judgment on the Corporate
Defendants’ competition privilege defense is not warranted. Indeed, “when there is room
for different views, the determination of whether the interference was improper or not is
ordinarily left to the jury, to obtain its common feel for the state of community mores and
for the manner in which they would operate upon the facts in question.” Mfg. Research
Corp. v. Greenlee Tool Corp., 693 F.2d 1037, 1040 (11th Cir. 1982).
The Corporate Defendants’ final basis for summary judgment on Count X is that
Plaintiffs are unable to produce any evidence of causation. (Doc. 201, p. 25.) This
challenge is thus directed to the fourth element of a tortious interference claim, which
requires Plaintiffs to prove damages as a result of Defendants’ interference with their
Patient, Referral, and Practice Relationships. Upon consideration, the Court finds that
Dr. Singer’s damage report presents enough evidence to withstand the Corporate
Defendants’ summary judgment challenge on this issue. (See Doc. 199-1, pp. 85–141);
see also Wolicki-Gables v. Arrow Int’l., Inc., 641 F. Supp. 2d 1270, 1288 (M.D. Fla. 2009)
(recognizing that proximate causation is ordinarily determined by the jury, unless the court
finds that the issue is undisputed after considering all facts and reasonable inferences in
favor of the nonmoving party). Nonetheless, the Corporate Defendants are free to
reassert their challenges to Dr. Singer’s damage calculations during cross examination
at trial.

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I.

Refusals to Deal

As a final matter, the Corporate Defendants advance a catchall argument that the
absence of any admissible evidence of a conspiracy renders their conduct lawful
unilateral refusals to deal. (Doc. 201, pp. 29–33; Doc. 249, p. 2.) The Corporate
Defendants also argue that the Aspen Skiing exception is inapplicable here because
Plaintiffs lack evidence of anticompetitive intent or effect. (Doc. 249, pp. 2–4.) As outlined
in its analysis of Plaintiffs’ individual claims, the Court disagrees.
However, even if the Court were to accept the Corporate Defendants’ argument
that their conduct was done for legitimate business reasons, Plaintiffs have produced
evidence to raise a material issue of fact as to this contention. Pursuant to Eleventh Circuit
case law, “[o]nce the defendant has met its burden to show its valid business justification,
the burden shifts to the plaintiff to show that the proffered business justification is
pretextual.” Morris Commc’ns, 364 F.3d at 1295. Plaintiffs point to multiple pieces of
evidence, which suggest that the Corporate Defendants’ purported business reasons are
pretextual. (See Doc. 235, pp. 33–39.) As such, the Court declines to grant the Corporate
Defendants’ MSJ on this basis. “It is well-established that summary judgment is
inappropriate to decide questions of scienter, knowledge, and intent.” Ross v. Bank
South, N.A., 885 F.2d 723, 751 n.8 (11th Cir. 1989). Finally, the Court is mindful of the
Supreme Court’s instruction that “summary procedures should be used sparingly in
complex antitrust litigation where motive and intent play leading roles[.]” Poller v.
Columbia Broad. Sys., Inc., 386 U.S. 464, 491 (1962).
III.

Individual Defendants’ Motion for Summary Judgment
Defendants Means and Senne also move for summary judgment on Counts VII

62

through X of the Complaint. (Docs. 189, 195.)
According to the Complaint, Means and Senne were executive members of Health
First and HRMC, respectively, during the time of the alleged unlawful conduct. (See
Doc. 57, ¶¶ 30, 31.) Specifically, Plaintiffs allege that Means and Senne initiated
conversations with physicians in the Medical Practice Plaintiffs’ practice groups following
the termination of the relevant practice’s provider contracts with HFHP. (Id. ¶¶ 154, 155.)
Plaintiffs allege that, during these conversations, the Individual Defendants “actively
lured” physicians away from the Medical Practice Plaintiffs by informing the physicians
that “they could regain access to Health First’s patients and referrals if they left their
practice and joined HF Physicians or an independent group more loyal to Health First”—
that is, one in which the physicians had agreed to enter into exclusivity arrangements
pursuant the Exclusive Referral Practice. (Id. ¶ 153, 154.) The Medical Practice Plaintiffs
allege that the foregoing conduct caused them injury by creating conditions which
prevented them from achieving growth. (Id. ¶ 153.)
The Complaint also alleges that Means and Senne authorized, participated in,
directed, and/or ratified the unlawful acts described therein, thus demonstrating that they
actively and knowingly engaged in a scheme designed to achieve anticompetitive ends—
namely, unlawfully maintaining Health First’s hospital monopoly and attempting to
monopolize several other healthcare-related markets. (Id. ¶¶ 189, 191, 193, 195.) As
examples of such affirmative conduct, Plaintiffs represent that: (1) Means instructed the
CEO of Wuesthoff to stay out of SBC and told physicians at a HRMC medical staff
meeting, “if you sign letters of support for Wuesthoff, we will know who you are”; and

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(2) Senne explicitly instructed Omni that it could participate in HFHP’s network if it agreed
to admit its patients exclusively to Health First’s hospitals. (Id. ¶¶ 190, 194.)
In their respective MSJs, Means and Senne contend that Plaintiffs cannot produce
any admissible evidence to demonstrate that they participated in, directed, or ratified the
alleged illegal conduct. (Doc. 189, p. 2; Doc. 195, p. 2.) In response, Plaintiffs argue that
there is a genuine dispute of material fact with respect to Senne and Means’s individual
liability and personal participation. (Doc. 236.) Upon review of the record, the Court
concludes that, while it is not particularly strong, Plaintiffs’ proffered evidence is sufficient
to raise issues of material fact from which a reasonable juror could infer knowing
participation on the part of the Individual Defendants.
A.

Counts VII and VIII

A director, officer, or agent of a corporate entity may be individually liable for
violations of the Sherman Act if he or she authorizes, orders, or participates in any of the
actions constituting an antitrust violation. See 15 U.S.C. § 24; see also United States v.
Wise, 370 U.S. 405, 416 (1962); Longleaf Mitigation Dev. Co. v. Fla. Mitigation Providers,
LLC, 519 F.Supp.2d 1233, 1236 (M.D. Fla. 2007).
1.

Count VII

To survive the Individual Defendants’ motion on their Section One Conspiracy
Claim, Plaintiffs must prove the existence of an agreement to restrain trade between two
or more persons evidenced by “a unity of purpose or a common design and
understanding, or a meeting of minds in an unlawful arrangement.” Harcros Chems.,
158 F.3d at 569. Here, Plaintiffs allege that Means and Senne “directly participated in the
common scheme by, inter alia, inviting physicians to enter exclusive dealing

64

arrangements [with] Health First and convincing physicians to leave those practices which
refused to join the conspiracy.” (Doc. 57, ¶ 370.) Upon consideration, the Court finds that
Plaintiffs have produced sufficient evidence of Means and Senne’s personal participation
in such common scheme to subject them to individual liability for Plaintiffs’ Section One
Conspiracy Claim.
In particular, Plaintiffs point to correspondence from Senne from which a
reasonable juror could infer that he helped perpetuate the alleged conspiracy by requiring
MIMA physicians to refer cancer patients exclusively to Health First’s cancer center as a
condition of MIMA’s participation in HFHP. (See Doc. 236-4.) Additionally, in its Dismissal
Order, the Court previously held that Plaintiffs’ meetings with Health First representatives,
coupled with their subsequent exclusion from HFHP and “blacklisting” by HFHP network
providers, adequately provided the context for the alleged agreement to boycott
physicians who refused to enter into exclusive referral arrangements with Health First.
(Doc. 105, p. 29.) To that end, Dr. Seminer’s declaration (Doc. 236-12) provides
supporting evidence of the alleged conspiracy. Indeed, Dr. Seminer’s declaration
recounts a conversation in which Senne agreed to contract with Omni for inclusion of its
Sheridan Surgery Center within HFHP’s network on the condition that Omni admit all its
patients to Health First institutions and turn over several of its best primary care
physicians to Health First. (Id. ¶ 6.) In another declaration, former Omni shareholder and
current Omni employee Dr. Peter Tarashi (“Dr. Tarashi”) stated that he met with Senne
and Means following HFHP’s termination of Omni’s participation agreement.
(Doc. 236-13, ¶¶ 2, 3.) In that meeting, Dr. Tarashi was told that he could become a
participating provider with HFHP only if: (1) he signed an individual contract with HFHP

65

and left Omni; or (2) Dr. Deligdish and Dr. Seminer no longer had leadership roles at
Omni and were not included in such contract. (Id. ¶ 5.) The Court finds that these
declarations demonstrate that Senne and Means knowingly participated in and helped
perpetrate the alleged conspiracy.
2.

Count VIII

In Count VIII, Plaintiffs allege the same conduct on the part of the Individual
Defendants as they do in Count VII. (See Doc. 57, ¶ 383.) The elements of a Section Two
Conspiracy Claim, as alleged in Count VIII, include: (1) concerted action deliberately
entered into with the specific intent of achieving a monopoly; and (2) the commission of
at least one overt act in furtherance of the conspiracy. Levine, 72 F.3d at 1556.
As an initial matter, the Court concludes that Dr. Tarashi and Dr. Seminer’s
declarations (Docs. 236-12, 236-13), as well as Senne’s correspondence regarding
MIMA’s exclusive referral of cancer patients to Health First facilities (Doc. 236-4), are also
sufficient to support the contention that Senne and Means participated in the alleged
Section Two Conspiracy Claim. Additionally, at his deposition, Emil Miller testified that,
during discussions with Means about the opportunities for Wuesthoff and Health First to
work collectively together, he was told that Wuesthoff should withdraw its application to
build a hospital in SBC and “get out of the market.” (Doc. 236-15, p. 5.) Such testimony
is certainly probative of Means’s personal perpetuation of the alleged Section Two
Conspiracy Claim and, specifically, his intent to achieve a monopoly.
B.

Counts IX and X

Finally, the Court finds that Plaintiffs have produced sufficient evidence to support
their FDUTPA and tortious interference claims against the Individual Defendants.

66

As previously iterated, to bring a claim under FDUTPA, a plaintiff need only plead
that: (1) the alleged conduct was unfair or deceptive; and (2) the plaintiff was damaged
by such conduct. True Title, 2007 WL 430659, at *3. A reasonable juror could conclude
that the above-cited evidence is probative of unfair and deceptive conduct. Additionally,
Plaintiffs contend that such conduct was part of the Alleged Common Scheme
perpetuated through the Corporate Defendants. The Court has already concluded that
the record contains adequate proof that Plaintiffs were aggrieved by this common scheme
and may, thus, seek injunctive relief under FDUTPA. However, as aforementioned,
Plaintiffs’ damages evidence is insufficient to support a claim for actual damages under
the statute.
Lastly, the elements of tortious interference require Plaintiffs to demonstrate:
(1) the existence of a business relationship; (2) that Defendants had knowledge of that
relationship; (3) that Defendants intentionally and unjustifiably interfered with that
relationship; and (4) that Plaintiffs were damaged as a result of such interference. Magre,
729 So. 2d at 443–44. The Individual Defendants’ primary challenges to Plaintiffs’ tortious
interference claim are that: (1) Plaintiffs lack admissible evidence as to Means and
Senne’s participation in the common scheme; and (2) the termination of the Omni contract
was proper and based on legitimate business reasons. (Doc. 189, p. 14, Doc. 195,
pp. 10–11.) However, the record evidence previously discussed supports the contrary
conclusion that Senne and Means individually participated in the Alleged Common
Scheme, which Plaintiffs also allege as the basis for their tortious interference claim.
Indeed, the alleged interference with Plaintiffs’ Patient, Referral, and Practice
Relationships includes luring Omni providers to other medical practices, persuading Omni

67

patients to switch to alternative medical providers, terminating Omni’s provider contracts,
and blacklisting physicians. As the Court concluded in its analysis of the Corporate
Defendants’ MSJ, there are genuine issues of material fact as to the propriety of such
conduct, which the Court must leave for the jury’s determination at trial.
CONCLUSION 14
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1.

Plaintiffs’ Daubert Motion to Exclude Defendants’ Expert Testimony and
Incorporated Memorandum of Law (Doc. 197) is DENIED.

2.

Defendants’ Motion to Exclude the Testimony of Dr. H.E. Frech, III and
Incorporated Memorandum of Law (Docs. S-194, 207) is DENIED.

3.

Defendants’ Motion to Exclude the Testimony of Dr. Hal J. Singer and
Incorporated Memorandum of Law (Docs. S-199, 208) is DENIED.

4.

Corporate Defendants’ Joint Motion for Summary Judgment and
Incorporated Memorandum of Law (Docs. S-201, 209), Defendant Michael
D. Means’[s] Motion for Summary Judgment (Doc. 189), and Defendant
Jerry Senne’s Motion for Summary Judgment (Doc. 195) are GRANTED IN
PART AND DENIED IN PART.
a.

Pursuant to Federal Rule of Civil Procedure 41(a)(2), Count V of the
Third Amended Complaint (Doc. 57, ¶¶ 341–53) is DISMISSED
WITH PREJUDICE.

b.

Plaintiffs’ claim for actual damages in Count IX is DISMISSED WITH

14

Any remaining arguments raised in the parties’ motions but not expressly
addressed in this Order are rejected.

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PREJUDICE. However, Plaintiffs are entitled to proceed on their
claim for injunctive relief in Count IX.
c.

In all other respects, Defendants’ Motions for Summary Judgment
are DENIED.

DONE AND ORDERED in Chambers in Orlando, Florida, on August 13, 2016.

Copies:
Counsel of Record

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