ROYAL MILE COMPANY, INC. et al v. UPMC et al
MEMORANDUM OPINION re 441 Partial MOTION for Reconsideration re 432 Memorandum Opinion & Order, 433 Order, MOTION FOR PARTIAL RECONSIDERATION OR, IN THE ALTERNATIVE, CLARIFICATION OF THIS COURTS SEPTEMBER 20, 2016 MEMORANDUM OPINION AND ORDER MOTION for Clarification filed by COLE'S WEXFORD HOTEL, INC.. Signed by Chief Judge Joy Flowers Conti on 2/1/17. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
COLE’S WEXFORD HOTEL, INC.,
on its own behalf and on behalf of all
others similarly situated
UPMC and HIGHMARK INC.,
) Civil Action No. 10-1609
CONTI, Chief District Judge.
Pending before the court is a motion for reconsideration filed by plaintiff Cole’s Wexford
Hotel, Inc. (“plaintiff” or “Cole’s Wexford”). (ECF No. 441.) On October 26, 2016, defendant
Highmark Inc. (“defendant” or “Highmark”) filed a response to defendant’s motion for
reconsideration. (ECF No. 444.) As set forth below, the court finds that plaintiff did not meet the
standards for granting a motion for reconsideration.
On September 20, 2016, this court issued an opinion responding to objections made by
both parties with respect to the special master’s amended report and recommendation no. 4.
(ECF No. 432.) In this opinion, the court, inter alia, denied plaintiff’s request to discover the
actual rates that Highmark charged from 1999 through 2001, and the base rates that the
Pennsylvania Insurance Department (“PID”) approved for Highmark during this time period. The
court denied this request for two reasons. First, the court found that the requested rates were not
relevant because they could not be used for the purpose for which they were requested, namely
to conduct a benchmark analysis, as described by plaintiff’s expert Dr. Jeffrey Leitzinger (“Dr.
Leitzinger”). Second, the court found that the requested rates were not relevant because the
plaintiff did not demonstrate that this information could be used in a manner that would not
violate the filed rate doctrine.
On October 18, 2016, Cole’s Wexford filed a motion requesting that this court
reconsider, or, in the alternative, clarify its decision and order with respect to the court’s decision
to deny plaintiff’s request to discover Highmark’s base rates and approved rates between 1999
and 2001. (ECF No. 441.) On October 26, 2016, Highmark filed a response to defendant’s
motion. (ECF No. 444.) The motion is now fully briefed and ripe for disposition.
II. Legal Standards Applicable to Motions for Reconsideration
The purpose of a motion to reconsider is “to correct manifest errors of law or fact or to
present newly discovered evidence.” Bootay v. KBR, Inc., 437 F.App’x 140, 146-47 (3d Cir.
2011) (citing Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). In order to be
successful on a motion for reconsideration, the movant must demonstrate a “definite and firm
conviction that a mistake has been committed,” or that the court overlooked arguments that were
previously made. United States v. Jasin, 292 F.Supp.2d 670, 676 (E.D. Pa. 2003). There are
three circumstances in which a court may grant a motion for reconsideration: (1) there has been
an intervening change in the law; (2) new evidence is now available that was not available when
the court entered judgment; or (3) there is a need to correct a clear error of law or fact, or to
prevent manifest injustice. Fed. R. Civ. P. 59(e); Allah v. Ricci, 532 F.App’x 48, 51 (3d Cir.
2013) (citing Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)); Max’s Seafood Café v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing N. River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). By reason of the interest in finality, at least at the
district court level, motions for reconsideration should be sparingly granted. See Rottmund v.
Cont’l Assurance Co., 813 F.Supp. 1104, 1107 (E.D. Pa. 1992).
Motions for reconsideration are not designed to provide litigants with a “second bite at
the apple.” Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995). A motion
for reconsideration is not to be used to relitigate, or “rehash,” issues the court already decided, or
to ask a district court to rethink a decision it, rightly or wrongly, already made. Williams v. City
of Pittsburgh, 32 F.Supp.2d 236, 238 (W.D. Pa. 1998); Reich v. Compton, 834 F.Supp. 753, 755
(E.D. Pa. 1993), aff’d in part, rev’d in part, 57 F.3d 270 (3d Cir. 1995); Keyes v. Nat’l R.R.
Passenger Corp., 766 F.Supp. 277, 280 (E.D. Pa. 1991). A motion for reconsideration is not to
be used as a way to advance additional arguments that the litigant could have made, but chose
not to make, sooner, or as an opportunity for a litigant, having lost, to change theories of the case
and advance new, often contradictory, evidence in support. Bell v. City of Phila., 275 F.App'x
157, 160 (3d Cir. 2008); Spence v. City of Phila., 147 F.App’x 289, 291-92 (3d Cir. 2005);
Bhatnagar, 52 F.3d at 1231; Trenton v. Scott Paper Co., 832 F.2d 806, 810 (3d Cir. 1987); Miller
v. Court of Common Pleas of Erie Cnty., No. 12-206, 2014 WL 108585, at *2 (W.D. Pa. Jan. 10,
Plaintiff requests that this court reconsider its prior determination that the regulated rates
Highmark charged from 1999 to 2001, which plaintiff requested as part of discovery, were not
relevant for the purpose of conducting a benchmark analysis as described by Dr. Leitzinger.
Plaintiff argues that the court applied a restrictive interpretation of Dr. Leitzinger’s explanation
about how he would go about constructing a benchmark model, this interpretation was based on
a clear error of fact, and allowing this interpretation to stand would be a manifest injustice. (ECF
No. 441.) In particular, plaintiff takes issue with the court’s understanding of Dr. Leitzinger’s
statement that “the primary focus in constructing the but for world, if possible, is to find a period
in time during which the same market participants were competing in this same environment free
of the effects of the specific anticompetitive behavior at issue.” (ECF No. 408-2 at 32 ¶ 8.)
Plaintiff claims that “[t]his Court appears to want to require perfect symmetry in the companies
that participate in the market in the period at issue and in the benchmark period.” (ECF No. 441
at 5.) Plaintiff argues that this understanding of Dr. Leitzinger’s model is incorrect and that “it
would be manifest injustice to allow this [the court’s] analysis to become the law of the case.”
(Id. at 4.)
The court must deny plaintiff’s motion for reconsideration on several grounds. First, the
motion for reconsideration is unfounded because the court did not solely rest its decision on the
reasoning with which the plaintiff takes issue. Plaintiff is under the impression that the court
misinterpreted or did not fully understand how a benchmark model works and how the requested
rates would be used in the construction of Dr. Leitzinger’s model, and as a result the court was
too restrictive in what it considered a viable and relevant benchmark period. While the court
determined that the requested rates were irrelevant based on Dr. Leitzinger’s own explanation of
his methodology, the court alternatively rested its decision on the concern that any use of the
requested rates by plaintiffs would run afoul of the filed rate doctrine. Nowhere in its motion for
reconsideration does plaintiff request that the court reconsider its findings with respect to the
filed rate doctrine or contend that the court’s determination that the use of the requested rates
would violate the filed rate doctrine was a “manifest error of law or fact.” Even if the court were
to reconsider its decision and find that the requested rates do, in fact, provide a relevant
benchmark under Dr. Leitzinger’s methodology, the court would still deny plaintiff’s discovery
request on the ground that the information sought could not be used without violating the filed
rate doctrine. Because plaintiff did not show that granting the motion to reconsider would in any
way alter the court’s ultimate decision, there is no basis to find that the court’s prior decision
constituted a clear error of law or fact that must be remedied to prevent a manifest injustice. The
court, therefore, need not consider whether its reasoning with respect to Dr. Leitzinger’s
benchmark analysis constituted a clear error as alleged by plaintiff in the motion to reconsider.
For the purpose of developing a full record, however, the court will explain why plaintiff’s
argument that the court applied an unreasonable interpretation of Dr. Leitzinger’s methodology
is likewise not an appropriate ground for granting plaintiff’s motion for reconsideration.
Plaintiff argued that this court misconstrued Dr. Leitzinger’s explanation of his
benchmark economic model when it held that the requested rates were not relevant because
“1999 through 2001 does not represent a period of time during which the same market
participants that were competing in the same market environment free from the effects of
anticompetitive behavior.” (ECF No. 432 at 34) (emphasis in original). Plaintiff now argues that
Dr. Leitzinger’s model does not require the same participants or the same environment, but that
it merely calls for “market participants and market environments that are as similar as possible to
those in the class period,” (ECF No. 441 at 5) and that the court, in requiring that the same
participants and same environment, held plaintiff to a rigid and unreasonable standard.
In choosing to emphasize the words “same market participants” and “same market
environment” in its original opinion, this court did not impose its understanding of how the
benchmark economic model works, but instead relied upon Dr. Leitzinger’s own explanation.
(ECF No. 408-2 at 32 ¶ 8.) Webster’s Third New International Dictionary defines “same” as
“resembling in every way : not different in relevant essentials at one time . . . being one without
addition, change, or discontinuance : having one nature or individuality : of like nature or
identity : identical.” Webster’s Third New International Dictionary 2007 (1993); United States v.
Husmann, 765 F.3d 169, 173 (3d Cir. 2014) (“We look to dictionary definitions to determine the
ordinary meaning of a word.”). It is uncontested that between 1999 and 2001 Highmark did not
have identical market participants to HHIC and did not compete in an identical market
environment. While plaintiff may now wish to modify Dr. Leitzinger’s testimony to describe his
model as requiring similar market participants and a similar market environment, plaintiff’s
desire to present a new or “clearer” explanation of Dr. Leitzinger’s methodology is not an
appropriate basis for reconsideration; motions to reconsider are not to be used as a way to
advance different or additional arguments that the litigant could have made, but chose not to
make, sooner. Bell, 275 F.App'x at 160; Spence, 147 F.App’x at 291–92; Bhatnagar, 52 F.3d at
1231; Trenton, 832 F.2d 806 at 810 (3d Cir. 1987); Miller, 2014 WL 108585, at *2. Plaintiff’s
argument that this court should not have construed the word “same” to have its ordinary
meaning, but should have assumed a less precise understanding of their expert’s own words does
not constitute a clear error of law or fact, and is, therefore, not an appropriate basis for granting a
motion to reconsider.
Even if the court were to concede that Dr. Leitzinger implicitly meant “similar” where he
used the word “same,” plaintiff still did not provide the court with a basis to conclude that the
regulated rates Highmark charged from 1999 to 2001 were similar to what HHIC would have
charged Cole’s Wexford during that time, but for the alleged UPMC-Highmark conspiracy.
Between 1999 and 2001, HHIC was not participating in a regulated market. Conversely, during
this time period, Highmark was a regulated entity participating in a regulated environment. Dr.
Leitzinger’s testimony does not adequately explain how a regulated entity competing in a
regulated market is similar to how an unregulated entity would have competed in that regulated
market. Without a basis to find that Highmark is a similar enough entity to provide a valid
benchmark, the court is unable to conclude that the discovery requested is relevant.
Dr. Leitzinger speculates that there is a possibility that the requested rates could provide
viable benchmark data. Dr. Leitzinger couches the usefulness of the requested rates with
qualifications such as “depending on what the data actually show” and “data for the class period,
could potentially be used to construct a viable economic damages model.” (ECF No. 441-1 at 2 ¶
3) (emphasis added). The speculative nature of Dr. Leitzinger’s testimony is problematic. In re
Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994) (an “expert’s opinion must be based
on the ‘methods and procedures of science’ rather than on ‘subjective belief or unsupported
speculation.’”). Dr. Leitzinger based his belief that Highmark’s rates could potentially provide a
viable benchmark comparison, on his “understanding that Plaintiffs have alleged that Highmark
and HHIC are closely related entities.” (ECF No. 441-1 ¶ 4.) Where an expert has “merely
accepted [a party’s] testimony as true . . . without any scientific or technical basis to verify that
conclusion, the District Court [is] well within its discretion to conclude that [the expert’s]
proposed testimony [is] merely an “unsupported speculation” or “subjective belief.” Senese v.
Liberty Mut. Ins. Co., Civ. Action No. 14-3952, 2016 WL 5682553, at *3 (3d Cir. Oct. 3, 2016).
Here, Dr. Leitzinger failed to illustrate how the requested rates are similar to the rates HHIC
would have charged Cole’s Wexford during the class period, and any contention of similarity,
however vague, is based on Dr. Leitzinger’s speculation and unsubstantiated assertions by
The court is not convinced that it made a clear error of law or fact in its original
determination that HHIC’s unregulated rates were not the same or, even considering Dr.
Leitzinger’s clarifications, similar enough to Highmark’s regulated rates to provide a valid
benchmark for Dr. Leitzinger’s model. While plaintiff may disagree with this determination, mere
disagreement with the court’s decision is not an appropriate basis for a motion for reconsideration.
Williams, 32 F.Supp.2d at 238; Reich, 834 F.Supp. at 755; Keyes, 766 F.Supp. at 280.
District courts should sparingly grant motions for reconsideration. Rottmund, 813
F.Supp. at 1107. Here, plaintiff did not show that there was an intervening change in the law
since this court issued its ruling; plaintiff did not provide previously unavailable evidence; and
plaintiff did not show that there is a need to correct a clear error of law or fact, or to prevent a
manifest injustice. Because plaintiff did not meet the standards for granting a motion for
reconsideration, the motion will be denied.
An appropriate order will be entered.
Dated: February 1, 2017
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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