Petition for Writ of Certiorari — Snodgrass-King Pediatric Dental Associates, P.C., et al., Petitioners v. DentaQuest USA Insurance Co., Inc.
Supreme Court briefNov 25, 2019
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the United States Court of
Appeals for the Sixth Circuit
(June 11, 2019) . . . . . . . . . . . . . . . App. 1
Appendix B Memorandum Opinion and Order in
the United States District Court for
the Middle District of Tennessee
Nashville Division
(February 23, 2018) . . . . . . . . . . App. 27
Appendix C Order Denying Rehearing and
Rehearing En Banc in the United
States Court of Appeals for the Sixth
Circuit
(August 29, 2019) . . . . . . . . . . . . App. 86
App. 1
APPENDIX A
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0301n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 18-5271/5284
[Filed June 11, 2019]
____________________________________________
SNODGRASS-KING PEDIATRIC
)
DENTAL ASSOCIATES, P.C.;
)
DAVID J. SNODGRASS, D.D.S.,
)
)
Plaintiffs-Appellants/Cross-Appellees, )
)
v.
)
)
DENTAQUEST USA INSURANCE
)
COMPANY, INC.,
)
)
Defendant-Appellee/Cross-Appellant.
)
____________________________________________ )
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT
OF TENNESSEE
OPINION
Before: MERRITT, GUY, and MOORE, Circuit
Judges.
App. 2
KAREN NELSON MOORE, Circuit Judge. The
“First and Fourteenth Amendment protections, codified
in 42 U.S.C. § 1983, are triggered only in the presence
of state action . . . .” Lansing v. City of Memphis, 202
F.3d 821, 828 (6th Cir. 2000). Generally, a private
party is not considered a state actor unless one of the
state-action tests outlined in our precedent applies. The
question in this case is whether there was a legally
sufficient basis upon which a reasonable jury could find
that a private party was a state actor under the
state-compulsion test. In a well-reasoned opinion, the
district court decided that there was not. We agree.
I. BACKGROUND
TennCare is the State of Tennessee’s Medicaid
program; it pays for medical procedures for persons
who are unable to pay. This dispute specifically
involves the TennCare Kids Dental Services program.
Tennessee is not an “any willing provider” state, which
means that the State does not have to include any and
all willing providers who want to participate in the
TennCare network. R. 400 (Trial Tr. II at 200–01)
(Page ID #11032–33). Instead, the State contracts with
a dental-benefits manager, and that dental-benefits
manager then selects a network of dental providers to
treat patients. R. 403 (Trial Tr. III at 11) (Page ID
#11268); R. 478-11 (Contract).
DentaQuest USA Insurance Company, Inc.
(“DentaQuest”) has been TennCare’s dental-benefits
manager since May 2013. R. 478-11 (Contract) (Page ID
#14226). In 2004, DentaQuest acquired Doral Dental,
which served as the dental-benefits manager from 2002
to 2010. R. 403 (Trial Tr. III at 11) (Page ID #11268).
App. 3
Doral eventually changed its name to DentaQuest of
TennCare, LLC. Id. Snodgrass-King Pediatric is a
dental practice group that has five offices throughout
Middle Tennessee, R. 399 (Trial Tr. I-B at 83–84) (Page
ID #10813–14), and is managed in part by Dr. David
Snodgrass (collectively, “Snodgrass”). From 1998 to
2003, and again from 2009 to 2013, Snodgrass treated
TennCare dental patients. R. 400 (Trial Tr. II at 68–
69) (Page ID #10900–01). This case arises from
DentaQuest’s 2013 decision to exclude Snodgrass from
the TennCare network.
A. Prior Lawsuits
To provide context for the instant dispute, it is
helpful to recount briefly the history between
Snodgrass, TennCare, and DentaQuest (as well as
Doral, the DentaQuest predecessor). This lawsuit is the
third in a trilogy of First Amendment retaliation suits
filed by Snodgrass. The first two settled, with the
defendants admitting no wrongdoing. The district court
provides a fuller overview of the history of this tense
relationship in its post-trial opinion. See
Snodgrass-King Pediatric Dental Assocs., P.C. v.
DentaQuest USA Ins. Co., 295 F. Supp. 3d 843, 851–54
(M.D. Tenn. 2018). These suits provide some helpful
background and are relevant to Snodgrass’s First
Amendment activity. The facts relevant to state action,
however, center on DentaQuest’s 2013 decision to
exclude Snodgrass from TennCare and the lead up to
that decision.
App. 4
1. First Lawsuit
Snodgrass began voicing concerns to various
government and TennCare officials about DentaQuest’s
(or Doral’s) management of TennCare “from the month
after Doral Dental entered the State.” R. 400 (Trial Tr.
II at 140) (Page ID #10972). In 2003, Doral excluded
Snodgrass from the TennCare network, purportedly
because of Snodgrass’s excessive usage of
stainless-steel crowns. R. 398 (Trial Tr. V at 224) (Page
ID #10693). As a result of Snodgrass’s exclusion, their
patients began calling and writing letters to
TennCare’s Dental Director, Dr. James Gillcrist. R. 400
(Trial Tr. II at 75–76) (Page ID #10907–08). Gillcrist
apparently told Dr. Snodgrass’s partner, Dr. King, that
if the calls and letters continued, Gillcrist would have
Snodgrass investigated and shut down. Id. A
subsequent Tennessee Bureau of Investigation audit,
however, found no wrongdoing. Id. at 76–78 (Page ID
#10908–10). Eventually, Snodgrass reapplied to
participate in TennCare. These requests were denied.
Id. at 143 (Page ID #10975). After that, Dr. Snodgrass
filed his first lawsuit against Doral based on the 2003
exclusion. See R. 476-5 (2008 Compl.) (Page ID
#13861). The two sides settled in 2009. Doral admitted
no wrongdoing. R. 476-6 (2009 Settlement at ¶ 19)
(Page ID #13873).
2. 2009 Settlement & Second Lawsuit
As part of the 2009 settlement, Doral agreed to
credential and permit Snodgrass to participate in
TennCare. Id. at ¶¶ 3–4 (Page ID #13870). Then in
April 2009, TennCare apparently wanted to delay
Snodgrass’s credentialing (and thus readmission into
App. 5
TennCare). R. 477-9 (Page ID #14176) (an April 2009
Doral internal email stating that, “[W]e were asked by
[TennCare’s new general counsel] to hold on
credentialing [S]nodgrass providers until today . . . .
[TennCare] . . . has a policy directly related to
[S]nodgrass which I think is designed to keep him out
or we [i.e., Doral] incur penalties.”). Eventually,
Snodgrass threatened “aggressive action against” Doral
if they did not credential the dentists, so Doral did so.
Id. Once Snodgrass joined the network, Doral required
Snodgrass to obtain preapproval for stainless-steel
crowns. R. 400 (Trial Tr. II at 149) (Page ID #10981).
When Snodgrass refused to obtain preapproval, Doral
then withheld payments to Snodgrass, and Dr.
Snodgrass filed another lawsuit in 2010. Id.; R. 476-7
(2010 Compl.) (Page ID #13878). The case settled in
2011, and the defendants admitted no wrongdoing.
R. 476-8 (2011 Settlement at ¶ 8(a)) (Page ID #13937).
B. This Lawsuit & Snodgrass’s 2013 Exclusion
from TennCare
In 2010, DentaQuest lost the TennCare
dental-benefits-manager contract to Delta Dental.
R. 400 (Trial Tr. II at 93) (Page ID #10925). Delta
admitted almost all the Snodgrass providers into
TennCare. Id. at 109, 212 (Page ID #10941, 11044).
Meanwhile, prior to DentaQuest’s preparations to bid
for a new 2013 contract, a 2011 DentaQuest internal
email noted that Snodgrass was a “critical provider” in
Tennessee, but that Snodgrass was “[n]ot a supporter
of DQ [i.e., DentaQuest].” R. 479-13 at 4 (Page ID
#14449).
App. 6
1. DentaQuest Meets with TennCare
At some point in 2012, DentaQuest began preparing
for an upcoming February 2013 Request For Proposal
(“RFP”) to bid for a new TennCare contract. Around
December 2012, DentaQuest executives met with
Gillcrist and Dr. Wendy Long (TennCare’s Chief
Medical Officer). TennCare told DentaQuest that
TennCare did not intend to renew its contract with
Delta. TennCare and DentaQuest also discussed the
type of arrangement TennCare wanted with its next
dental-benefits manager—specifically, the possibility of
a risk-based structure where the dental-benefits
manager would share in profits and losses. See
generally R. 404 (Trial Tr. IV at 182–86) (Page ID
#11630–34).
2. DentaQuest Internal Emails that Follow
the TennCare Meeting
Following this meeting, several internal
DentaQuest emails were exchanged. First, on
December 20, 2012, Cheryl Polmatier, a DentaQuest
executive who did not attend the December 2012
meeting, sent an email stating:
I just received the [Tennessee] data that I had
requested on the old TennCare network, current
CoverKids network, large groups, etc. so we can
have an internal discussion based upon concerns
that [other DentaQuest executives] shared about
the State’s position on large groups, Snodgrass
and others that we need to “keep out” of the
network.
App. 7
R. 478-4 (Page ID #14201) (emphasis added). On
December 27, Polmatier sent another email:
It’s my understanding from previous
conversations that there are certain providers
and large provider groups that TennCare would
prefer that we not have in our network. . . .
. . . Let me know who knows which offices
(besides Snodgrass), and from there we can
reach out to [DentaQuest’s in-house counsel] and
understand the position we need to take in
communication regarding our network build for
TennCare.
R. 478-5 (Page ID #14204) (emphasis added). Michele
Blackwell, a Vice President at DentaQuest, responded,
“I do not believe any of us know specific providers to
date,” but explained that what would “likely happen is
once TennCare chooses its dental vendor they will
provide a list of provider offices which have significant
[utilization-review] issues and ask the [dental-benefits
manager] to take this into account when finalizing its
network.” R. 479-6 (Page ID #14382).
Then a January 2, 2013 email showed that
DentaQuest was working on its proposed TennCare
network for the RFP and, in that context, DentaQuest
was reviewing a Snodgrass settlement to ensure there
were no “problems with his settlement language.”
R. 478-3 (Page ID #14198). After that, Polmatier sent
additional emails on January 8:
If we wanted to amend any CoverKids provider,
with the exception of Snodgrass (33 providers),
we’d be amending approximately 720 unique
App. 8
providers to participate in Tenncare. . . . If we
know who we want to invite, I think we could
start to amend….but it will create noise for
anyone we don’t invite who wants in. But if
we’re going to amend the entire [CoverKids]
network, everyone but Snodgrass, I think it
wouldn’t hurt to start now. . . .
R. 478-6 (Page ID #14206–08) (emphasis added).
Polmatier also testified that as of January 2013, she
had decided that if DentaQuest won the TennCare
contract, she did not want Snodgrass in the network.
R. 403 (Trial Tr. III at 57–58) (Page ID #11314–15).
By around January 24, 2013, DentaQuest had
formulated “Network Goals.” R. 479-1 (Page ID
#14368). Barry Major, a DentaQuest employee (who did
not attend the December 2012 meeting), authored
these draft goals, which included, “Keep Dr. Snodgrass
out of the network.” Id. Major—called as a witness by
Snodgrass—testified that he wanted Snodgrass kept
out of the network because of a prior altercation
between Dr. Snodgrass and another DentaQuest
employee, Kevin Miller. R. 404 (Trial Tr. IV at 69–71)
(Page ID #11517–19). Further, Major testified that he
had not talked to anyone from the State about
Snodgrass. Id. Ultimately, Polmatier requested that
the “Keep Dr. Snodgrass out” be deleted (and it was)
from the final version of the “Network Goals” document
submitted with the RFP. Id. at 73 (Page ID #11521).
App. 9
3. TennCare Releases the RFP
DentaQuest Wins the Contract
and
On February 1, 2013, Tennessee released the RFP
for a new dental-benefits manager for TennCare.
R. 403 (Trial Tr. III at 25–26) (Page ID #11282–83). On
February 5, Polmatier sent an email that explained
that DentaQuest “had an issue with a problem
provider, Dr. Snodgrass, and long story short, he sued
us to participate with Tenncare and Coverkids, and
participates with Coverkids today.” R. 479-2 (Page ID
#14370). The next week, on February 13, Polmatier
sent an email about the RFP with an attached
PowerPoint. R. 478-15 (Page ID #14355). The
PowerPoint’s summary slide noted that, “According to
the State’s Dental Director, the RFP winner will be
largely based on a carefully selected network.”
R. 479-8 (Page ID #14389). It further stated that, “The
winner [of the RFP] will be given five months to build
out a network prior to the go live date of Oct 1[,]” and
that, “No attempt to contract with providers should be
implemented prior to announcement of bid winner.” Id.
The PowerPoint also included six “Large Provider
Groups,” which included Snodgrass. Id. (Page ID
#14402).
On April 2, 2013, DentaQuest submitted its
response to the RFP. About one month later, on May 1,
2013, Tennessee awarded the TennCare
dental-benefits-manager contract to DentaQuest.
R. 403 (Trial Tr. III at 26) (Page ID #11283). Two days
after DentaQuest won the contract, Major sent
Polmatier an email, stating:
App. 10
I was thinking about how to deal with the cases
where Analytics recommendations to exclude
only apply to a subset of providers at a
particular [location]. What do you think of the
following process?
[Describes a process that includes allowing a
location into the network if less than 50% of the
billing from the location came from “Tier 4
providers,” with the “Tiers” being based on
utilization-review data]
The only problem is that we’d have to figure out
a way to justify excluding Snodgrass due to the
fact that he would be allowed to stay in the
network using this criteria. We could lower the
criteria to 40% but then we’d lose some other
providers. . . . If not, we may need to get a little
more creative.
R. 479-3 (May 3, 2013 Email) (Page ID #14373)
(emphasis added). Ultimately, DentaQuest excluded
locations where all the providers were at a Tier 4 level.
R. 404 (Trial Tr. IV at 15–16) (Page ID #11463–64).
DentaQuest thus listed Snodgrass as an “include
entity” at one point because Snodgrass did not meet
this “exclude” criterion. Id. at 15 (Page ID #11463).
On May 15, the TennCare-DentaQuest contract was
signed. R. 478-11 (Contract) (Page ID #14226). The
contract contained a specific provision for providers,
like Snodgrass, with multiple service locations.
R. 478-12 (Contract at ¶ A.51) (Page ID #14264). This
provision stated:
App. 11
[N]o entity owning or operating multiple
practice locations nor any individual provider
nor group of providers operating multiple
practice locations, may be credentialed by the
Contractor [i.e., DentaQuest] at more than one
location at the time of the initial credentialing
by the Contractor. . . . The requirement of one
initial location may be waived, at the sole
discretion of the Contractor, only for providers in
good standing who are current TennCare
providers, with a proven record of delivery of
quality dental care, at the time of the Contract
start date.
Id. (emphasis added).
On July 26, 2013, DentaQuest sent a letter to all
providers in Tennessee that explained DentaQuest’s
administration of the TennCare program would begin
on October 1, 2013. R. 476-9 (Page ID #13940). The
letter described two necessary processes to be
considered for the TennCare network: (1) revalidation
by TennCare; and (2) the eligibility determination by
DentaQuest. Id. This second process involved
considerations such as satisfying a “peer-reviewed
selection process and criteria.” Id. The criteria did not
include the number of offices that a provider might
have.
Around September 2013, TennCare sent
DentaQuest a “pool of providers” that TennCare
validated. R. 404 (Trial Tr. IV at 22) (Page ID #11470).
TennCare validated all the Snodgrass providers, R. 403
(Trial Tr. III at 48) (Page ID #11305), except one oral
surgeon, R. 479-11 (Page ID #14429). All the Snodgrass
App. 12
providers applied to be in the TennCare network.
R. 400 (Trial Tr. II at 177) (Page ID #11009).
4. DentaQuest Excludes Snodgrass From the
TennCare Network
Then, on September 19, 2013, Major sent Polmatier
an email that included the TennCare network
selections. R. 479-10 (Page ID #14407). These
selections were made, in part, by applying a so-called
“large-provider rule.” This rule, which was not
documented in any written policy, supposedly applied
to providers with three or more locations in areas
without access needs—but of the providers operating in
Tennessee, DentaQuest applied this rule to Snodgrass
alone. R. 404 (Trial Tr. IV at 31) (Page ID #11479). An
accompanying spreadsheet to Major’s email showed
that the Snodgrass providers were excluded because
Dr. Snodgrass was labeled as a “secondary network,”
meaning he ran afoul of the large-provider rule, and
the other providers were “[a]ffiliated w[ith] [the]
secondary network.” R. 479-10 (Page ID #14415,
14423–24). Major explained that those in a “secondary
network” consisted of “[p]roviders . . . that are
currently participating at excluded locations that we
would consider letting in if they worked for one of our
included locations. Most of these are Snodgrass
providers.” Id. (Page ID #11407). DentaQuest did not
list Snodgrass as a provider that was excluded because
of utilization-review problems. See id.
On October 1, 2013, DentaQuest began to manage
the TennCare network. R. 403 (Trial Tr. III at 26)
(Page ID #11283). Months later, on December 12, 2013,
Snodgrass’s Chief Operating Officer emailed
App. 13
DentaQuest asking for an update on whether
Snodgrass would be credentialed. R. 478-7 (Page ID
#14212).
On December 16, DentaQuest sent Snodgrass
providers (and other excluded providers) a letter that
indicated Snodgrass’s participation in TennCare was
terminated without cause and, effective January 1,
2014, Snodgrass could no longer submit claims for
reimbursement to TennCare. R. 476-11 (Page ID
#13949). At trial, Major testified that no one from the
State ever told him or pressured him to exclude
Snodgrass from the network. R. 404 at (Trial Tr. IV at
47–48 (Page ID #11495–96). Polmatier testified the
same. Id. at 72, 83 (Page ID #11520, 11531).
On January 3, 2014 Snodgrass sent DentaQuest a
letter asking DentaQuest to reconsider its decision to
exclude Snodgrass or to give reasons for the decision.
R. 476-12 (Page ID #13952). DentaQuest responded
and stated that it would not reconsider. R. 476-13
(Page ID #13957). The letter further explained that
DentaQuest had an “extensive and widely distributed
network” in the areas where Snodgrass operated, and
therefore, Snodgrass was not included in the network.
Id. (Page ID #13957–58).
DentaQuest made several admissions in this case.
First, DentaQuest excluded Snodgrass because of the
large-provider rule. R. 403 (Trial Tr. III at 47) (Page ID
#11304). Second, of the providers that practiced in
Tennessee, DentaQuest applied this rule to Snodgrass
alone. Id. at 51–52 (Page ID #11308–09). And third,
DentaQuest admitted that its “decision not to include
Snodgrass-King providers in the DentaQuest network
App. 14
in 2013 was not based upon an evaluation of the
quality or efficiency of care provided by Snodgrass-King
providers.” R. 406 (Trial Tr. VI at 80) (Page ID #11839).
Snodgrass also presented an expert at trial who, after
reviewing DentaQuest’s methodology and data,
concluded that “the data did not support exclusion of
Snodgrass-King from the provider network.” R. 403
(Trial Tr. III at 133–34) (Page ID #11390–91); see also
id. at 161–62 (Page ID #11418–19).
5. Snodgrass Files this Lawsuit
Snodgrass filed this lawsuit in March 2014. This
time, the parties did not reach a settlement. As
relevant here, Snodgrass claimed that DentaQuest and
TennCare retaliated against Snodgrass in violation of
their First Amendment rights. See R. 1 (Compl.).
DentaQuest is the sole remaining defendant.
C. District Court’s Summary Judgment Ruling &
the Pretrial Conference
The district court denied DentaQuest’s motion for
summary judgment as to the state-action issue, the
First Amendment claim, and damages claims no longer
relevant to this appeal (because, as will be explained,
we affirm the district court’s post-trial state-action
ruling). See Snodgrass-King Pediatric Dental Assocs.,
P.C. v. DentaQuest USA Ins. Co., No. 3:14-cv-0654,
2016 WL 4705711, at *13 (M.D. Tenn. Sept. 2, 2016). In
its opinion, the district court relied heavily on the
email evidence presented by Snodgrass. See id. at *5–6.
But later, at the November 7, 2016 pretrial
conference, the district court expressed concern about
Snodgrass’s proof on state action. R. 395 (Pretrial Conf.
App. 15
Tr. at 2–6) (Page ID #10453–57); see also
Snodgrass-King, 295 F. Supp. at 850 n.3. In response,
Snodgrass represented that “[t]here’s going to be
evidence of Dr. Gillcrist [from TennCare] and his
involvement specifically with respect to Dr. Snodgrass.”
R. 395 (Pretrial Conf. Tr. at 3) (Page ID #10454); see
also id. at 6 (Page ID #10457) (Snodgrass’s counsel
stating that Gillcrist and other witnesses “will go to
[prove state action].”). Specifically, the district court
noted that it was trying to discern “the anticipated
proof that the State of Tennessee had a motive to
retaliate, and . . . how did the State act on that . . . by
precluding plaintiffs from being in [the TennCare
network].” Id. at 6 (Page ID #10457). In its post-trial
opinion, the district court noted that, “[n]o one from
TennCare testified at trial.” Snodgrass-King, 295
F. Supp. 3d at 850.
In sum, it appears that before trial, despite denying
summary judgment, the district court was concerned
that the email evidence, without more, may not be
legally sufficient to support a finding of state action.
Snodgrass placated these concerns by stating that
witnesses would show TennCare’s involvement. The
district court later concluded that, “[t]his did not
happen.” Id. at 850 n.3.
D. Jury Award for Snodgrass & the Judgment as
a Matter of Law Ruling
The case was tried before a jury and Snodgrass
prevailed. But on February 23, 2018, the district court
granted DentaQuest’s motion for judgment as a matter
of law and thus vacated the jury verdict.
Snodgrass-King, 295 F. Supp. 3d at 849. On the issue
App. 16
of state action, and specifically the state-compulsion
test, the district court concluded that, “[a] reasonable
jury might conclude that TennCare ‘approved,’
‘acquiesced,’ ‘encouraged,’ or even ‘incentivized’
DentaQuest’s 2013 exclusion of Snodgrass-King from
the TennCare network. But this is not legally sufficient
to constitute State action.” Id. at 866. “The main issue
with Snodgrass-King’s theory” on state action, the
district court found, was “that there is no evidence to
support it.” Id. at 865. The district court noted that “it
is undisputed that DentaQuest made the final decision
on which providers were allowed in the network in
October 2013,” and the district court concluded that “no
evidence [supports the contention] that TennCare
significantly encouraged or coerced this result.” Id. at
865–66 (emphasis added).
II. STANDARD OF REVIEW
We review de novo a district court’s grant of a
motion for judgment as a matter of law. Griffin v.
Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012). Under
Federal Rule of Civil Procedure 50, a court may grant
a motion for judgment as a matter of law “[i]f a party
has been fully heard on an issue during a jury trial and
the court finds that a reasonable jury would not have
a legally sufficient evidentiary basis to find for the
party on that issue.” FED. R. CIV. P. 50(a)(1). In the
specific context of this case, there must have been a
“legally sufficient evidentiary basis” upon which a
reasonable jury could find state action. See id.
App. 17
III. STATE ACTION & THE STATE
COMPULSION TEST
Section 1983 provides a cause of action for First
Amendment retaliation if a plaintiff shows that:
“(1) the plaintiff engaged in protected conduct; (2) an
adverse action was taken against the plaintiff that
would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) . . . the
adverse action was motivated at least in part by the
plaintiff’s protected conduct.” King v. Zamiara, 680
F.3d 686, 694 (6th Cir. 2012) (citing Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)).
But the “First and Fourteenth Amendment protections,
codified in 42 U.S.C. § 1983, are triggered only in the
presence of state action . . . .” Lansing, 202 F.3d at 828.
“A private party, acting on its own, cannot
ordinarily be said to deprive a citizen of her right to
Free Speech.” Wilcher v. City of Akron, 498 F.3d 516,
519 (6th Cir. 2007); see also Campbell v. PMI Food
Equip. Grp., Inc., 509 F.3d 776, 783 (6th Cir. 2007) (“As
a general rule, [s]ection 1983 does not . . . prohibit the
conduct of private parties acting in their individual
capacities.”) (alteration in original) (internal quotation
marks omitted). A private party “can be held to
constitutional standards” only “when its actions so
approximate state action that they may be fairly
attributed to the state.” S.H.A.R.K. v. Metro Parks
Serving Summit Cty. (“SHARK”), 499 F.3d 533, 564
(6th Cir. 2007) (quoting Lansing, 202 F.3d at 828).
We have recognized four tests to determine whether
a private party’s “challenged conduct is fairly
attributable to the State: (1) the public function test;
App. 18
(2) the state compulsion test; (3) the symbiotic
relationship or nexus test; and (4) the entwinement
test.” Marie v. Am. Red Cross, 771 F.3d 344, 362 (6th
Cir. 2014); see also id. at 362 n.6 (noting that precedent
often enumerates three tests, but recent cases include
separate discussions on the entwinement test). Only
the state-compulsion test is relevant here because
Snodgrass has failed to develop an argument on the
nexus test that was also at issue in the district court.
See SHARK, 499 F.3d at 564–65. The nexus argument
is thus forfeited. See id.
“The state compulsion test requires that a state
exercise such coercive power or provide such significant
encouragement, either overt or covert, that in law the
choice of the private actor is deemed to be that of the
state.” Id. at 565 (quoting Lansing, 202 F.3d at 829);
see also Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
The Supreme Court has explained that “[m]ere
approval of or acquiescence in the initiatives of a
private party is not sufficient to justify holding the
State responsible for those initiatives under the terms
of the Fourteenth Amendment.” Blum, 457 U.S. at
1004–05. More is needed. “[A] plaintiff must allege and
prove that state officials coerced or participated in the
[private actor’s] decision-making” process. Wilcher, 498
F.3d at 520. The inquiry “begins by identifying ‘the
specific conduct of which the plaintiff complains.’” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999)
(quoting Blum, 457 U.S. at 1004). The state-action
analysis is, therefore, necessarily “a normative and
fact-bound endeavor.” SHARK, 499 F.3d at 564 (citing
Brentwood Acad. v. Tenn. Secondary Sch. Athletic
Ass’n, 531 U.S. 288, 295–96 (2001)).
App. 19
The jury here found that DentaQuest’s retaliatory
actions against Snodgrass could be attributed to the
State of Tennessee, and specifically TennCare. The
district judge determined that no evidence could
support this finding. Based on the record evidence in
this case, the district court correctly concluded that
“[t]he main issue with Snodgrass-King’s theory is that
there is no evidence to support it.” Snodgrass-King, 295
F. Supp. 3d at 865. On appeal, Snodgrass argues that
the “[t]he emails alone are enough” to supply legally
sufficient evidence of state action, see First Br. at 34,
and Snodgrass offers three additional grounds to
support state action. For the reasons explained below,
the emails are not enough, and the other grounds are
not persuasive.
Even in the light most favorable to Snodgrass, the
emails do not show the sort of coercion, participation,
or significant encouragement required by our
precedent. For one, the emails precede Tennessee
awarding DentaQuest the dental-benefits-manager
contract. The one exception is the May 3, 2013 email
from Major to Polmatier that indicated that
DentaQuest may need to “get a little more creative” to
justify excluding Snodgrass. R. 479-3 (Page ID #14373).
Although the emails as a whole evidence TennCare’s
“position” and “preference” to “keep out” Snodgrass, the
contract between DentaQuest and TennCare itself
leaves total discretion in the hands of DentaQuest as it
relates to providers with “multiple practice locations,”
see R. 478-12 (Contract at ¶ A.51) (Page ID #14264),
including Snodgrass. Moreover, the process for
admission into the TennCare network was twofold:
(1) revalidation by TennCare, and (2) an eligibility
App. 20
determination by DentaQuest. The fact is that
TennCare revalidated all Snodgrass providers, except
one oral surgeon. R. 403 (Trial Tr. III at 48) (Page ID
#11303); R. 479-11 (Page ID #14429). Snodgrass
presented no evidence that TennCare was involved in
or coerced the actual decision-making process to
exclude Snodgrass in 2013. See Wilcher, 498 F.3d at
520. Once DentaQuest won the TennCare contract and
once TennCare revalidated the Snodgrass providers,
the State had no say in this matter, and DentaQuest
“made a free-will choice to” exclude Snodgrass. See
SHARK, 499 F.3d at 565; see also Sullivan, 525 U.S. at
54 (“Such permission of a private choice cannot support
a finding of state action.”). No evidence suggests a
contrary conclusion.
To be clear, when a State contracts out the
management of its Medicaid program(s) to a private
party, we do not hold that the private contractor can
never be deemed a state actor. We simply hold “that in
order to support such a theory, a plaintiff must
[present evidence] and prove that state officials coerced
or participated in the company’s decision-making to the
extent required to trigger state actor status.” See
Wilcher, 498 F.3d at 520. Here, however, the jury did
“not have a legally sufficient evidentiary basis to find”
that DentaQuest was a state actor. See FED. R. CIV. P.
50(a)(1).
A review of our case law shows why. On more
compelling facts, we have not found state action. For
example, in SHARK, park rangers (who were state
actors) asked a private contractor in charge of a
deer-culling program if the private contractor was able
App. 21
to delete tapes that captured images of the deer cull.
499 F.3d at 558. An animal rights organization had
installed cameras in the park and intended to share the
tapes with news organizations. Id. There, state officials
called the private contractor into the park, expressed
concerns about the tapes and asked if the images on
them could be erased, and then the private contractor,
“addressing [the rangers’] concerns,” erased the images.
Id. Even on these facts, we held that the
state-compulsion test was not satisfied. Id. at 565 (“[T]o
the extent that [the state actors] ‘encouraged’ [the
private contractor], this is not the type of significant
encouragement which would turn [the private
contractor’s] choice to delete the tapes into that of
government action.”).
Moreover, in Wilcher, the City of Akron entered into
a franchise agreement with Time Warner, a private
actor, to administer the City’s public-access television.
498 F.3d at 518. Under the agreement, Time Warner
could “promulgate rules and regulations for the
[public-access] channel; but before new rules [could]
become effective, they [were] ‘subject to approval of [the
City], whose approval [could] not be unreasonably
withheld.’” Id. A producer of public-access
programming claimed that, in response to the City’s
concerns regarding citizen complaints about sexually
explicit content on the channel, Time Warner instituted
a $25 fee for each tape submitted for broadcast. Id. Per
the franchise agreement, Time Warner submitted this
regulation to the City and the mayor approved it. Id.
Again, we held that the there was no state action. Id.
at 520 (reasoning that the plaintiff failed to allege that
App. 22
city officials coerced or participated in the private
actor’s decision-making).
No other cases help Snodgrass. Although
TennCare’s “position” might have been to “keep out”
Snodgrass, “[t]here is nothing in the record to show
that . . . state law or any state entity required
[DentaQuest] to take any . . . actions” against
Snodgrass. See Campbell, 509 F.3d at 784; cf. id. (a
state offering incentives to a private actor to make a
certain decision, without more, is not sufficient to
support state action under the nexus test). In this case,
there is no evidence of any incentives, or threatened
penalties, offered by TennCare to DentaQuest related
to the 2013 decision. To the contrary, after TennCare
revalidated Snodgrass providers, the decision-making
authority was entirely in the hands of DentaQuest.
Snodgrass presented no evidence to suggest that
TennCare, after it awarded DentaQuest the contract
and revalidated Snodgrass, was involved in the
subsequent decision to exclude. Furthermore, that
DentaQuest was bidding on a lucrative contract (and
won that contract) is not sufficient to find state action.
See Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.
1992) (“[A]lthough the state provided a significant
portion of the funding of [the private actor], the state
did not choose the members of the Board of Trustees,
nor did it choose the executive director or make
personnel policies or decisions for [the private actor].
Thus, nothing in the record suggests that the state
exercised such coercive power or provided such
encouragement as to make [the private actor’s]
personnel decision state action [under the statecompulsion test].”).
App. 23
Finally, Snodgrass offers two other arguments for
finding state action; neither is persuasive. First, the
prior lawsuits are relevant to Snodgrass’s underlying
First Amendment claim. But these suits do not move
the needle on state compulsion for “the specific conduct
of which the plaintiff complains” in this lawsuit—the
2013 decision to exclude. See Blum, 457 U.S. at 1004.
At any rate, the prior lawsuits, contrary to Snodgrass’s
assertions on appeal, did not establish that DentaQuest
or TennCare retaliated against Snodgrass in the past
because the defendants admitted to no wrongdoing.
Second, the fact that DentaQuest formulated the “largeprovider rule” as a pretext and that there was no other
medical reason to exclude Snodgrass are not evidence,
in and of themselves, that TennCare was involved in
the decision to exclude Snodgrass. And as mentioned,
the witnesses that Snodgrass called at trial also
disavowed any State involvement.
IV. CONCLUSION
There is considerable evidence in this case about
what DentaQuest did. Not so for what the State did to
coerce or strongly encourage DentaQuest. Accordingly,
we affirm, and we need not address the issues raised by
the parties on cross-appeal.
App. 24
RALPH B. GUY, JR., Circuit Judge, dissenting.
I cannot agree that the evidence presented at trial was
insufficient to permit a reasonable juror to find state
action under the state-compulsion test. Although the
decision granting DentaQuest’s renewed motion for
judgment as a matter of law is reviewed de novo, we
nonetheless apply deferential standards to the jury’s
verdict. See Mosby-Meachem v. Memphis Light, Gas &
Water Div., 883 F.3d 595, 602 (6th Cir. 2018). Namely,
we must view all of the evidence and draw all
reasonable inferences in the light most favorable to
Snodgrass-King and may “not weigh the evidence,
evaluate the credibility of the witnesses, or substitute
[our] judgment for that of the jury.” Id. (citation
omitted). A Rule 50(b) motion may be granted only if
there was no genuine issue of material fact for the jury
to decide, and “reasonable minds could not come to a
conclusion other than one favoring the movant.” Id.
(citation omitted).
Here, the jury was properly instructed with respect
to the state-compulsion test that “Snodgrass-King must
show that the State of Tennessee provided such
coercion or significant encouragement, whether overtly
or covertly, that the specific action in question—the
decision not to invite Snodgrass-King into the
TennCare network in 2013—is attributable to the State
of Tennessee.” (Page ID # 10394.) The instructions
explained that it would not be enough to show that
DentaQuest had a close relationship to the state,
contracted with the state, received state funds, or
administered a state program. (Page ID # 10393-94.)
Importantly, the jury was also instructed that the
State’s mere approval of or acquiescence to
App. 25
DentaQuest’s private decision would not be sufficient
to prove state action. (Page ID # 10393.) The jury found
there was state action, and I cannot conclude that there
was no evidence to support the jury’s finding in that
regard.
DentaQuest insisted that it was the decision maker.
It is, of course, precisely for that reason that it was
necessary to prove state action. Nor is it dispositive
that witnesses disavowed any state involvement. It is
true that there was no direct evidence of a demand or
quid pro quo—either of which would be sufficient but
not necessary to prove state action. Rather,
Snodgrass-King relied on circumstantial evidence to
meet that burden. I conclude, as the district court did
in denying summary judgment, that a reasonable
inference can be drawn from DentaQuest’s internal
emails that TennCare “covertly pressured or provided
significant encouragement to [DentaQuest] to
formulate its provider network in such a way as to
exclude [Snodgrass-King].” (Page ID # 7254.)
Moreover, although the claim concerns the 2013
decision, the jury could consider evidence that
TennCare pressured DentaQuest both to delay its
reinstatement of Snodgrass-King after settlement of
the first lawsuit and to enforce a new policy that
impacted only Snodgrass-King and led to the second
lawsuit.
Ultimately, the evidence detailed by the district
court and the parties on appeal is sufficient to support
a reasonable inference that TennCare pressured
DentaQuest in the past, said it wanted to replace Delta
Dental in part because it “let anyone in to the
App. 26
network,” and conveyed in the closed-door pre-bid
meeting that DentaQuest was to do whatever was
necessary to keep Snodgrass-King out of the network if
DentaQuest was to win back the coveted contract.
Although more than one reasonable inference may be
drawn from DentaQuest’s emails, a reasonable jury
could also conclude that DentaQuest understood
TennCare’s position vis-à-vis Snodgrass-King; made
pre-bid plans to exclude Snodgrass-King from any
future network at TennCare’s request; and, after being
awarded a contract that could be terminated for any
reason, excluded Snodgrass-King under circumstances
that a jury could find were pretextual. To the extent
other reasonable inferences may be drawn, reasonable
minds could not come to but one conclusion favoring
DentaQuest. Because there was evidence to support
the finding of state action, I respectfully dissent.
App. 27
APPENDIX B
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
NO. 3:14-cv-00654
CHIEF JUDGE CRENSHAW
[Filed February 23, 2018]
________________________________
SNODGRASS-KING PEDIATRIC )
DENTAL ASSOCIATES, P.C. and )
DAVID J. SNODGRASS,
)
)
Plaintiffs,
)
)
v.
)
)
DENTAQUEST USA
)
INSURANCE CO., INC.,
)
)
Defendant.
)
________________________________ )
MEMORANDUM OPINION
This case was tried before a jury from November 1422, 2016. The sole issue was whether in 2013
DentaQuest USA Insurance Co., Inc. (“DentaQuest”),
retaliated against Snodgrass-King Pediatric Dental
Associates, P.C., and David J. Snodgrass, D.D.S.
(collectively “Snodgrass- King”), in violation of the First
App. 28
Amendment to the United States Constitution. (Doc.
No. 331.) The jury returned a verdict in favor of
Snodgrass-King for $7.4 million in compensatory
damages and $14.8 million in punitive damages. (Doc.
No. 391.) Before the Court are Snodgrass-King’s
Motions to Alter Judgment to Provide for Prejudgment
Interest and Post-Judgment Interest (Doc. No. 410), for
Attorney’s Fees (Doc. No. 418), and to Supplement
Motion for Attorney’s Fees (Doc. No. 446). Also before
the Court are DentaQuest’s Motion for Judgment as a
Matter of Law (Doc. No. 411) and for a New Trial (Doc.
No. 413). On February 20, 2018, the Court heard oral
argument on DentaQuest’s Motion for Judgment as a
Matter of Law (Doc. No. 411). For the following
reasons, DentaQuest’s Motion for Judgment as a
Matter of Law (Doc. No. 411) is GRANTED,
DentaQuest’s Motion for a New Trial (Doc. No. 413) is
CONDITIONALLY GRANTED, and SnodgrassKing’s Motions to Alter Judgment (Doc. No. 410) and
for Attorney’s Fees (Doc. Nos. 408, 446) are DENIED
AS MOOT.
I. JUDGMENT AS A MATTER OF LAW
DentaQuest argues that no reasonable jury could
find that it was a state actor in its exclusion of
Snodgrass-King from the TennCare network in 2013
for the purposes of 28 U.S.C. § 1983. (Doc. No. 412 at
6.) Alternatively, DentaQuest contends that no
reasonable jury could find that Snodgrass-King
established a First Amendment violation. (Id. at 19.)
Under Federal Rule of Civil Procedure 50(b), a court
may grant a motion for judgment as a matter of law
“only if in viewing the evidence in the light most
App. 29
favorable to the non-moving party, there is no genuine
issue of material fact for the jury, and reasonable
minds could come to but one conclusion, in favor of the
moving party.” Radvansky v. City of Olmsted, 496 F.3d
609, 614 (6th Cir. 2007). The party seeking a judgment
as a matter of law must “overcome the substantial
deference owed a jury verdict.” Id. The court may not
“reweigh the evidence or assess the credibility of
witnesses.” Id.
A. EVIDENCE AT TRIAL
Snodgrass-King is a multi-office dental practice
group that has five dental offices in middle Tennessee.
(Doc. No. 399 at 83.) Its offices are located in
Williamson, Davidson, Wilson, and Rutherford
Counties. (Doc. No. 400 at 194.) The practice
encompasses all types of dentistry, including
orthodontics, pediatric and adult dentistry, and oral
surgery. (Doc. No. 399 at 84.) Snodgrass-King treated
TennCare dental patients, who are generally under the
age of twenty-one, until 2003, and then again from
2009-13. (Doc. No. 400 at 67, 69.) Snodgrass-King also
participates in the CoverKids network, another state
government assistance dental network for children.
(Doc. No. 403 at 91.) Testifying for Snodgrass-King
were its two partners, Snodgrass and John Terry King,
D.D.S. (Doc. No. 400 at 57, 118.) Two other dentists
who work for Snodgrass-King, Miriam Hall, D.D.S.,
and Crystal Gilreath Rucker, D.M.D., also testified at
trial. (Doc. No. 399 at 75; Doc. No. 400 at 29.)
For the purposes of this Opinion, TennCare is a
state entity that pays certain fees for medical
App. 30
procedures for persons who are unable to pay.1 (Doc.
No. 400 at 39-40.) Tennessee is not an “any willing
provider state,” meaning that it does not have to
include any and all willing providers who desire to
participate in its TennCare network. (Id. at 200-01.)
Instead, TennCare uses a Dental Benefits Manager to
contract with a network of dental providers to treat its
patients for reimbursement. (Id. at 200; Doc. No. 403 at
11.)
Dr. James Gillcrist was the Dental Director of the
Bureau of TennCare (“TennCare”) at all times relevant
to this lawsuit. (Doc. No. 400 at 164; Doc. No. 404 at
131.) Wendy Long, M.D., was the Chief Medical Officer
of TennCare during the same timeframe.2 (Doc. No.
449-1 at 29; Ex. 152 at 22327.) Manny Martins was the
Deputy Director of Finance and Administration in
2001, and subsequently became Director of the Bureau
of TennCare at the time of Snodgrass-King’s 2003
1
Specifically, the parties presented evidence regarding the
TennCare Kids Dental Services. While the Bureau of TennCare is
much broader than only the TennCare Kids Dental Services, the
Court constrains itself to the evidence presented at trial when
describing the facts of this case. For a complete description of all
services that TennCare provides, see TennCare’s website at
www.tn.gov/tenncare.
2
Long is currently the Director of TennCare and the Director of
Health Care Finance and Administration for the State of
Tennessee. Dr. Wendy Long, TennCare: Division of Health Care
Finance & Administration (June 27, 2017), available at
https://www.tn.gov/tenncare/article/deputy-commissioner.
App. 31
termination from the TennCare network. (Doc. No. 400
at 171.) No one from TennCare testified at trial.3
DentaQuest has been the Dental Benefits Manager
for TennCare since 2013. From 2002 to 2010, Doral
Dental of Tennessee, LLC (“Doral”) was TennCare’s
Dental Benefits Manager. (Doc. No. 403 at 11.) In 2004,
DentaQuest, LLC, purchased the membership interest
in Doral. (Id.) Doral subsequently changed its name to
DentaQuest of TennCare, LLC, to reflect its new status
as a DentaQuest company. (Id.) “[A] number of
individuals who played significant roles in the success
of [Doral’s work with] the TennCare program from
2002-2010 are still with [DentaQuest, LLC in 2013]”
and remained involved in DentaQuest’s operation of
the TennCare dental network. (Doc. No. 449-1 at 14;
Ex. 9 at 546.)
1. Doral’s 2003 Decision to Exclude
Snodgrass-King From the TennCare
Network
Starting around 2001, Snodgrass voiced his
concerns about the management of the TennCare
network to a number of Tennessee officials. (Doc. No.
400 at 140; Ex. 59 at 120.) Snodgrass testified: “I’ve
voiced my concerns to my state representatives, to my
3
This is significant because the Court expressed its concern about
the proof on state action at the pretrial conference. At that time,
Snodgrass-King’s counsel responded that it would present
Gillcrist’s testimony to prove state action. This did not happen.
Nevertheless, there is circumstantial evidence about what
TennCare did or did not do prior to the 2013 decision to exclude
Snodgrass-King that becomes critical to the state action analysis.
App. 32
U.S. congressman, to my U.S. senator. I’ve voiced my
concerns to governmental—every governmental official
that I knew the name of.” (Doc. No. 400 at 140.) He
wrote letters critical of Doral and TennCare to
Governor Phil Bredesen (Ex. 59 at 132), as well as
directly to TennCare officials (Ex. 59 at 120, 132).
On May 16, 2003, Doral’s Tennessee peer review
committee, consisting of Chairman F. William Taylor,
D.D.S., four other dentists, and Doral Executive
Michelle Blackwell, reviewed twenty of Snodgrass’
patient files. (Doc. No. 398 at 218, 248; Ex. 608.) Doral
kept the provider name confidential, so that the peer
review committee did not know whose files it was
reviewing. (Doc. No. 406 at 36.) Blackwell, Doral’s nondentist representative, composed the agenda and
provided the record, while the Tennessee-licensed
dentists made the findings of fact and
recommendations. (Id. at 68.) The Tennessee peer
review committee found that Snodgrass excessively
utilized stainless steel crowns, and recommended
Snodgrass’ termination from the TennCare network.
(Doc. No. 398 at 224; Ex. 611.) The Tennessee peer
review committee sent that recommendation to Doral.
(Doc. No. 398 at 239-40; Doc. No. 406 at 50.)
On May 30, 2003, Doral acted on that
recommendation when Norris Knight, D.D.S., the
Credential Committee Chairman for Doral, sent a
letter to Snodgrass explaining that Snodgrass was too
aggressive in his use of stainless steel crowns. (Ex.
612.) That letter did not state that Snodgrass soon
would be terminated, but rather that he would be
subject to “revised criteria requirements” to determine
App. 33
the medical necessity of some stainless steel crowns
procedures. (Id.) Snodgrass explained that he used
more stainless steel crowns than other doctors because
his patients consisted of children with the greatest
medical problems that needed more aggressive
treatment. (Doc. No. 400 at 280.)
On July 1, 2003, Doral terminated, without cause,
all Snodgrass-King providers from participating in the
TennCare network, effective July 9, 2003. (Id. at 69-70,
136, 256.) After Snodgrass inquired about the reason
Doral excluded him, he learned that Doral’s Tennessee
peer review committee had recommended his
termination. (Id. at 243; Ex. 611.) Doral executive
Steven Pollock took part in the decision to terminate
Snodgrass-King, along with Blackwell and other
executives. (Doc. No. 449-1 at 5-6.) Pollock testified
that TennCare had concerns about including Snodgrass
in the network, and, as TennCare was Doral’s
customer, Doral discussed with TennCare how to
handle Snodgrass. (Id. at 21.)
The relationship between the State and SnodgrassKing continued to grow more tense. At some point in
2003, Snodgrass informed Nashville’s Channel 4 News
about his termination from the TennCare network.
(Doc. No. 404 at 135.) Channel 4’s Investigative Team
went to Gillcrist’s house to interview him about that
decision. (Id. at 135-36.) On July 16, 2003, David
Florsheim, an account management employee for
Doral, wrote a letter to Pollock, Director of Provider
Services Marcel Tetzlaff, Brett Bostrack, and two other
Doral management employees, explaining that
Florsheim had a conversation with Gillcrist about
App. 34
Snodgrass directing his patients to call the State and
TennCare about his termination from the network.
(Doc. No. 449-1 at 25-26.) Gillcrist said that TennCare
and the governor’s office had been “inundated with
calls” by the Snodgrass-King patients. (Id. at 26.)
In mid-July 2003, Gillcrist called King to inform
him that Snodgrass-King’s patients were calling
Gillcrist’s office and the governor’s office about the
termination. (Doc. No. 400 at 72-74.) He told King that
if his patients did not stop writing letters to and calling
his office and the governor’s office, he would have
Snodgrass-King “investigated” and “shut down.” (Id. at
75-76.) On July 24, 2003, Dr. Taylor emailed Gillcrist,
Blackwell, and four other people stating that a video on
a Knoxville, Tennessee, news channel about SnodgrassKing’s termination from the TennCare network was
“ridiculous.” (Doc. No. 398 at 252; Ex. 111.) On July 29,
2003, the Tennessee Bureau of Investigation (“TBI”)
initiated an audit of Snodgrass-King. (Doc. No. 400 at
76, 158.) The audit found nothing out of the ordinary,
and the TBI closed the matter on September 10, 2004.
(Id. at 78, 158.)
On June 24, 2004, Blackwell sent an email to
Bostrack, Pollock, and other DentaQuest management
employees. (Doc. No. 404 at 136-37.) In it, she stated
that Gillcrist asked for Doral to update Martins on any
potential litigation by Snodgrass regarding his
termination from the network. (Id. at 139; Ex. 113 at
6402.) Snodgrass had not filed a lawsuit at that time.
(Doc. No. 404 at 139.)
In 2006, two dentists from Snodgrass-King applied
to rejoin the TennCare network of providers. Doral
App. 35
denied their applications despite Blackwell admitting
that Doral could use pediatric dentists in its network in
Williamson County. (Doc. No. 400 at 143; Doc. No. 403
at 11-12.) In 2007, five Snodgrass-King dentists applied
to rejoin the TennCare network of providers, and Doral
denied their applications. (Doc. No. 400 at 143.)
Snodgrass testified that this was the straw that broke
the camel’s back that led to the ten years of litigation
between the parties. (Id.)
2. The 2008 Lawsuit Challenging the 2003
Decision to Exclude Snodgrass-King from
the TennCare Network
In 2008, Snodgrass filed a lawsuit against Doral
based on the 2003 exclusion of all Snodgrass-King
providers from the TennCare network. (Doc. No. 400 at
112; Ex. 57.) Snodgrass brought the lawsuit under 42
U.S.C. § 1983, alleging multiple constitutional
violations, including First Amendment retaliation. (Ex.
57.) On March 17, 2009, Snodgrass-King and Doral
settled the case, with Doral continuing to deny liability.
(Doc. No. 400 at 248; Ex. 32 at 4636.) As part of the
settlement, however, Doral reimbursed Snodgrass’
costs and attorney’s fees, donated money to the
University of Tennessee, its College of Dentistry, and
Meharry Medical College of Dentistry. (Doc. No. 400 at
146; Ex. 32 at 4632.) Doral also agreed to include all of
Snodgrass-King’s providers in the TennCare network.
(Doc. No. 400 at 146; Ex. 32 at 4633.) This agreement
bound all of Doral’s “heirs, executors, legal
representatives, successors and assigns.” (Ex. 32 at
4635.)
App. 36
On April 24, 2009, as part of the settlement of the
2008 lawsuit, Doral was in the process of credentialing
the Snodgrass-King providers when DentaQuest’s
Senior Vice President of Dental Management Kevin
Klein had a “heated” discussion with TennCare. (Doc.
No. 449-1 at 28; Ex. 330 at 22332.) Wendy Long asked
Klein to delay credentialing Snodgrass-King providers
so that TennCare could review a new policy it was
issuing. (Ex. 330 at 22332.) However, when Snodgrass
threatened “aggressive action” against Doral if it did
not finish credentialing his providers, Doral felt it had
no choice but to do so. (Id.) Klein informed Pollock, who
is now Doral’s President, that TennCare “has a policy
directly related to [S]nodgrass which [he thought was]
designed to keep him out or [Doral would] incur
penalties.” (Id.) Under the settlement agreement of the
2008 lawsuit, however, Doral was obligated to allow
Snodgrass-King into the network, so Klein was
“worried about” Doral’s relationship with TennCare
when Long expressed resistance. (Id.)
On May 7, 2009, Pollock sent Long a letter
regarding TennCare’s “recently implemented Policy
and Procedures for Reinstatement of Terminated
Providers.” (Doc. No. 449-1 at 29; Ex. 152 at 22327.)
Pollock told Long that Doral could not implement this
Policy when reinstating Snodgrass-King’s providers
because Doral had already credentialed his providers.
(Ex. 152 at 22327.) Pollock explained that he could not
legally interfere with the settlement agreement
without Snodgrass’ consent, and he needed time to
“work through details of this unique situation and
appropriately respond to TennCare’s requirements.”
(Id.)
App. 37
On May 15, 2009, Blackwell sent a letter to Long
detailing that Doral was reinstating Snodgrass-King’s
providers in the network and planned to monitor
Snodgrass’ billing practices and treatment decisions.
(Ex. 59 at 22-23.) Klein sent Pollock a follow-up email
on May 26, 2009, which Pollock forwarded to
DentaQuest’s Chief Executive Officer Fay Donohue,
stating that Doral had reached an agreement with
TennCare and needed to get Snodgrass to consent to it.
(Ex. 333 at 18748.) Based on the agreement with the
State, Doral began requiring Snodgrass to obtain prior
approval for every stainless steel crown that he would
install. (Doc. No. 400 at 148; Doc. No. 403 at 12.) This
protocol only applied to Snodgrass. (Doc. No. 403 at 12.)
Snodgrass refused to comply with this protocol because
he did not feel it was necessary to do so. (Doc. No. 400
at 149.) As a result, Doral withheld payment for work
done by Snodgrass. (Id.) Doral’s action resulted in a
new lawsuit.
3. The 2010 Lawsuit
On March 23, 2010, Snodgrass filed a second
lawsuit, this time against DentaQuest of Tennessee,
LLC, and the State of Tennessee, and multiple State
officials, including Gillcrist. (Id. at 113, 150; Ex. 59.)
Snodgrass alleged multiple federal constitutional
violations, as well as an interference with contractual
relationship claim. (Ex. 59.) He alleged that
“DentaQuest received pressure from Defendant Bureau
of TennCare’s then Director, Manny Martins, to
terminate [Snodgrass] as a provider.” (Id. at 95.) On
February 24, 2011, the parties settled the second
lawsuit, and DentaQuest paid Snodgrass the
App. 38
reimbursements that it withheld without admitting
liability. (Doc. No. 400 at 151, 248; Ex. 33 at 4268.)
4. TennCare Makes Delta Dental its Dental
Benefits Manager
In 2010, Delta Dental became the Dental Benefits
Manager for the TennCare network. (Doc. No. 400 at
93.) Delta Dental admitted all Snodgrass-King
providers into the TennCare network except for an
orthodontist at the Mount Juliet office who was
excluded based on network needs. (Id. at 109, 177, 21213.) Snodgrass conceded that TennCare did not require
Delta Dental to exclude this provider from the network.
(Id. at 191.)
On March 17, 2011, Megan Ryczek, an employee at
DentaQuest sent an email to another DentaQuest
employee, Account Executive Mary Murack, regarding
DentaQuest’s “critical providers” in the CoverKids
network. (Doc. No. 404 at 173-74, 177; Ex. 124.) A
DentaQuest employee put Snodgrass on the list as a
“critical provider,” stating that he is “well connected
politically and very vocal.” (Ex. 124 at 18375.) It also
noted that Snodgrass was “not a supporter of
[DentaQuest].” (Doc. No. 404 at 178; Ex. 124 at 18375.)
5. DentaQuest’s Internal Preparation for the
2013 TennCare Request for Proposal
At some point in 2012, Blackwell, who is now Vice
President of the Florida Market, and Senior Vice
President for Market Development Robert Lynn met
App. 39
with Gillcrist and Long at the TennCare office.4 (Doc.
No. 404 at 182-84.) Blackwell was the only person who
attended the meeting that testified at trial. TennCare
also shared with Blackwell and Lynn that TennCare
did not intend to renew its contract with Delta Dental.
(Id. at 185.) She testified that they discussed that
TennCare anticipated issuing in 2013 a Request for
Proposal, an invitation to apply to be the Dental
Benefits Manager for TennCare. (Id. at 184.) They
discussed the type of arrangement TennCare and
DentaQuest might want if DentaQuest won the
contract. (Id.) Specifically, Blackwell explained that
TennCare wanted its Dental Benefits Manager to agree
to either a risk-based or some type of risk-share
arrangement, in which TennCare and the Dental
Benefits Manager would share in the profits and the
losses. (Id. at 185, 227.) Blackwell testified that
winning the contract was important to DentaQuest.
(Id. at 186.)
In December 2012, DentaQuest began preparing for
TennCare’s 2013 Request for Proposal. (Doc. No. 449-2
at 9.) Blackwell testified that at some point in late2012, TennCare’s Procurement Office sent its Request
of Proposal to DentaQuest Sales Director Mark
Sniegocki. (Doc. No. 404 at 180.) On December 5, 2012,
DentaQuest’s Regional Director for Provider Relations
Barry Major sent an internal email to DentaQuest’s inhouse counsel Ronald Price, Vice President for Regional
4
Blackwell testified that she could not recall if DentaQuest’s Sales
Director Mark Sniegocki was at the meeting, although she stated
that he testified in a previous deposition that he was not. (Doc. No.
404 at 183-84.)
App. 40
Networks Cheryl Polmatier, and others that was titled
“FW: Snodgrass Provider Agreements.” (Doc. No. 449-2
at 14; Ex. 37.) The email had a document attached with
the then-current contract in place between Delta
Dental and the Snodgrass-King providers. (Doc. No.
449-2 at 14.) That same day, Director and Associate
Counsel Ronald Price forwarded to Vice President and
Deputy General Counsel Hawkins and Lynn a 2009
email chain regarding the 2009 settlement agreement
between Doral and Snodgrass-King that resulted in
Snodgrass-King’s readmission in the dental network.
(Id. at 15-16.)
On December 20, 2012, Polmatier responded to an
internal email from Blackwell, DentaQuest employee
Kimberly Johnson, and Sniegocki, stating that they
needed to have an “internal discussion based upon the
concerns that Todd [Cruse], Mark [Sniegocki], and Bob
[Lynn] shared about the State’s position on large
groups, Snodgrass and others that we need to ‘keep out’
of the network.” (Id. at 20; Doc. No. 403 at 81; Ex. 39 at
5910.) On December 27, Polmatier sent another
internal email to Sniegocki, Lynn, and Cruse sharing
some information about the potential Tennessee
network. (Doc. No. 449-2 at 21; Doc. No. 404 at 61; Doc.
No. 403 at 87; Ex. 42.) In the email, Polmatier stated
that it was her understanding that “there are certain
providers and large provider groups” that TennCare
would prefer DentaQuest not include in its network,
and asked for a list of those providers. (Ex. 42 at 3418.)
In that context, she stated: “Let me know who knows
which offices (besides Snodgrass), and from there we
can reach out to Ron Price and understand the position
we need to take in communication regarding our
App. 41
network build for Tenn[C]are.” (Id. at 3418.) On
January 17, 2013, Blackwell responded that nobody
knew of any specific providers that TennCare did not
want in its network, but that TennCare would send a
list of providers with significant utilization review
issues and the vendor should take that into account.
(Doc. No. 404 at 63; Ex. 2 at 6160.)
On January 2, 2013, Cruse sent an email to Lynn,
copying Pollock, ensuring that DentaQuest is working
on its proposed network in response to the anticipated
Request for Proposal. (Doc. No. 449-2 at 17; Ex. 40.) In
that context, he stated that Ron Price had sent him the
2009 Snodgrass settlement agreement to ensure that
DentaQuest did not encounter any “problems with his
settlement language.” (Doc. No. 449-2 at 18; Ex. 40 at
25934.)
On January 8, 2013, Polmatier sent an email to
Lynn, Sniegocki, and Price regarding a strategy that
DentaQuest was considering to form its TennCare
network. (Doc. No. 449-2 at 22-23; Doc. No. 403 at 91;
Ex. 41.) Hawkins testified that the strategy utilized the
CoverKids contracts as the base for the TennCare
program. (Doc. No. 449-2 at 23.) Polmatier wrote that
if DentaQuest “wanted to amend any CoverKids
provider, with the exception of Snodgrass (33
providers),” it would amend approximately 720
providers to participate in TennCare. (Id.; Ex. 41 at
26757.) She added that if DentaQuest was going to
“amend the entire [CoverKids] network, everyone but
Snodgrass,” it would not hurt if DentaQuest started
doing so immediately. (Doc. No. 449-2 at 25; Doc. No.
403 at 91; Ex. 41 at 26757.)
App. 42
Later, Polmatier sent a follow-up email to the same
people stating that DentaQuest did not “know who the
other providers are specifically that the State is not
interested in.” (Doc. No. 449-2 at 24; Ex. 41 at 26755.)
She stated that DentaQuest knew that TennCare did
not like working with “mobile units [or] large group
practices.” (Doc. No. 449-2 at 24; Ex. 41 at 26755.) She
advised that DentaQuest may want to “await the
analysis and any further information from the
state/Gilcrest (sic) on who [TennCare does not] want to
work with.” (Doc. No. 449-2 at 24; Ex. 41 at 26756.)
Ultimately, DentaQuest chose to bid on TennCare’s
2013 Request for Proposal using DentaQuest USA
Insurance Company, Inc. (Doc. No. 449-2 at 23.)
Polmatier testified that, as of January 2013, she had
decided that if DentaQuest won the TennCare contract,
she did not want Snodgrass to participate in its
network. (Doc. No. 403 at 58.)
On January 12, 2013, Snodgrass wrote an email to
Senator Jack Johnson, his state senator in Williamson
County. (Doc. No. 400 at 214; Ex. 1.) In the email,
Snodgrass complained about the “TennDent (Delta
Dental) Group Practice/Multiple Office Provider
Credentialing Criteria.” (Doc. No. 400 at 216; Ex. 1.)
Snodgrass believed that Delta Dental’s Multiple Office
Provider Credentialing Criteria violated his First
Amendment rights. (Doc. No. 400 at 217; Ex. 1.)
On January 24, 2013, DentaQuest’s Regional
Director for Provider Relations Barry Major sent
Polmatier an email with a draft of network plans for
certain states, including Tennessee. (Doc. No. 403 at
71-72; Ex. 4.) For Tennessee, Major wrote that a
App. 43
network goal was to win the TennCare contract. (Doc.
No. 403 at 72; Ex. 4 at 5381.) Another network goal
was to amend or re-contract a “right-sized network for
TennCare.” (Doc. No. 403 at 72-73; Ex. 4 at 5381.) As
part of amending the TennCare network, Major wrote
that a goal was to “[k]eep Dr. Snodgrass out of the
network.” (Doc. No. 403 at 73; Ex. 4 at 5381.) Major
testified that this was just his draft of network goals
and Polmatier had not agreed to them yet. (Doc. No.
404 at 64.) He testified that he wanted to keep
Snodgrass out of the network because Snodgrass was
in an altercation with his friend from DentaQuest,
Kevin Miller, two years earlier. (Id. at 70.) While Major
did not identify any other Tennessee providers
DentaQuest wanted to exclude in this document,
Polmatier testified that DentaQuest was not familiar
with most Tennessee providers yet. (Doc. No. 403 at
74.) Instead, Polmatier was familiar with Snodgrass
based on his history with DentaQuest and she knew
that Snodgrass-King was a large practice, and
TennCare had a preference not to contract with large
practice groups. (Id. at 74-75.) She further testified
that DentaQuest “certainly want[ed] to make the State
happy, but ultimately [the decision to invite providers
into the network came] down to access of care.” (Id. at
75.) In the final draft of the network goals, Polmatier
did not include the proposed goal to exclude Snodgrass
because she did not feel it was appropriate. (Doc. No.
404 at 73.)
6. TennCare’s 2013 Request for Proposal
On February 1, 2013, TennCare officially released
its Request for Proposal. (Doc. No. 403 at 25-26.) On
App. 44
February 5, 2013, Polmatier sent an email to her
superior Vicki Coats and Senior Vice President and
Chief Dental Officer John Luther, Coats’ superior. (Id.
at 77; Ex. 5 at 3141.) That email detailed how Doral
lost the TennCare contract to Delta Dental in 2010,
possibly because of price. (Ex. 5 at 3141.) The email
also explained that the State is “very unhappy with
Delta— said that they let anyone in the network and do
not manage the network.” (Id.) Polmatier also described
Snodgrass as a “problem provider.” (Id.; Doc. No. 403 at
79.) She did so because Snodgrass had previously sued
DentaQuest “to participate with Tenn[C]are and
CoverKids, and he participates with CoverKids today.”
(Doc. No. 403 at 79; Ex. 5 at 3141.)
On February 13, 2013, Polmatier sent an internal
email to Sniegocki, Lynn, Blackwell, Cruse, Major, and
two other DentaQuest management employees, asking
for help identifying who the “key players/associations”
were in Tennessee. (Doc. No. 403 at 69-70; Ex. 44 at
767.) Attached to the email was a PowerPoint
presentation that an employee made for Major
regarding its strategy for Tennessee. (Doc. No. 404 at
74; Ex. 634.) On the summary page, the PowerPoint
presentation read that “[a]ccording to the State’s dental
director, the [Request for Proposal] winner will be
largely based on a carefully selected network.” (Doc.
No. 404 at 77; Ex. 634 at 4893.) Major testified that
TennCare required submission of the proposed network
before awarding the contract to a particular dental
benefits manager, rather than the normal process of
selecting a dental benefits manager who then creates
the network. (Doc. No. 404 at 78-79.) The PowerPoint
presentation included the six “large provider groups” in
App. 45
Tennessee, one of which is Snodgrass-King. (Id. at 81;
Ex. 634 at 4906.)
On April 2, 2013, DentaQuest submitted its
response to TennCare’s Request for Proposal. (Doc. No.
403 at 102; Doc. No. 449-1 at 14; Ex. 9.) In that
document, it stated that it was “pleased to share that
a number of individuals who played significant roles in
the success of the TennCare program from 2002-2010
are still with [DentaQuest] and are part of [its]
proposed staff.” (Doc. No. 449-1 at 14; Ex. 9 at 546.)
DentaQuest planned to build its network by
“establishing the provider panel from our existing
CoverKids network, which includes many dentists from
[DentaQuest’s] original TennCare network.” (Doc. No.
403 at 103; Ex. 9 at 565.) Once DentaQuest had
identified those providers, it would “send them an
amendment to their contract.” (Doc. No. 403 at 103; Ex.
9 at 565.)
7. TennCare’s Decision on the 2013 Request
for Proposal
On May 1, 2013, TennCare named DentaQuest as
its Dental Benefits Manager. (Doc. No. 403 at 26.) As
part of the contract, TennCare allowed DentaQuest to
credential one location of a provider with multiple
service locations. (Id. at 99; Ex. 22 at 29.) If
DentaQuest wanted to credential more than one
location, the contract required it to visit the other
locations and obtain a waiver from TennCare to allow
App. 46
the other locations to be included in the network.5 (Doc.
No. 403 at 99; Ex. 22 at 29.) At some point later in the
process, Gillcrist waived the site visit requirement.6
(Doc. No. 403 at 100.)
On May 3, 2013, Major sent an email to Polmatier
with a proposal on how to handle cases where analytics
recommended to exclude only a subset of providers at
a particular location. (Doc. No. 403 at 95-96; Ex. 45 at
7108.) His proposal would rank locations in four tiers
based on utilization review data. (Ex. 45 at 7108.)
DentaQuest would allow a location in the network if
less than fifty percent of the billing from the location
came from tier four providers. (Id.) Major identified one
problem with his method: that DentaQuest would
“have to figure out a way to justify excluding Snodgrass
due to the fact that he would be allowed to stay in the
network using this criteria.” (Id.; Doc. No. 403 at 96.)
Major suggested DentaQuest may be able to decrease
the percentage of billing from tier four providers at
each location to forty percent, but that may create
access problems with fewer providers in the network.
(Doc. No. 403 at 96; Ex. 45 at 7108.) If it chose not to
decrease the percentage, Major noted that DentaQuest
5
The contract did not allow DentaQuest to contract with mobile
units unless they are located in areas “underserved by community
providers.” (Doc. No. 403 at 101.)
6
This is important because this provision of the contract formed
the basis of DentaQuest’s belief that the State had a preference
against large group providers. TennCare’s subsequent waiving of
the requirement, in the light most favorable to Snodgrass-King,
shows that the State did not actually have a preference against
large group providers. (Doc. No. 403 at 99-100.)
App. 47
“may need to get a little more creative [to justify
excluding Snodgrass].” (Doc. No. 403 at 97; Ex. 45 at
7108.) Major testified that ultimately DentaQuest did
not use this proposal, but instead it excluded locations
that included exclusively tier four providers. (Doc. No.
404 at 18-19.)
On May 17, 2013, TennCare held a “Kickoff Meeting
with DentaQuest.” (Doc. No. 403 at 35; Ex. 46 at 6297.)
Pollock, now DentaQuest’s Chief Operating Officer, and
Bostrack, now DentaQuest’s Regional Vice President
for Sales and Client Services, attended this meeting on
behalf of DentaQuest. (Ex. 46 at 6297.) No testimony
suggested that Snodgrass-King was mentioned at this
Kickoff Meeting. On May 20, 2013, DentaQuest’s Chief
Analytics Officer Saju Puthussery sent an email to
Polmatier and her counterpart, Ken Hammer,
regarding information learned at the Kickoff Meeting.
(Id. at 6295; Doc. No. 403 at 35.) Puthussery informed
Polmatier and Hammer that the State would be
sending the utilization data for the past three years,
when Delta Dental was the Dental Benefits Manager.
(Doc. No. 403 at 38; Ex. 46 at 6295.) DentaQuest could
use that data in gathering information on the
Tennessee providers to build its network. (Doc. No. 403
at 37.) DentaQuest’s “Network Provider Methodology
and Process” document stated that it would select
providers to be included in the TennCare network
based on four “performance variables”: provider tier,
statistical outlier test results, claim review clinical
denial rates, and dental record audit results. (Id. at 3940; Ex. 8 at 4890-91.)
App. 48
All Snodgrass-King providers applied to be part of
the TennCare network. (Doc. No. 400 at 177.) On July
26, 2013, DentaQuest, through Major, sent a letter to
all providers in Tennessee, including Snodgrass-King
providers, describing how DentaQuest will determine
a provider’s eligibility to be a TennCare provider. (Id.
at 178-179; Doc. No. 403 at 40-41; Ex. 50 at 5640.) This
criteria included a “peer-review selection process and
criteria,” which matched the four “performance
variables” in DentaQuest’s “Network Provider
Methodology and Process” document. (Doc. No. 403 at
41; Ex. 50 at 5640.) It did not include a criterion for the
number of offices any provider may have. (Doc. No. 403
at 42.) On September 4, 2013, DentaQuest, through
Major, sent a letter to all providers, including
Snodgrass-King’s providers, reminding them that
“DentaQuest will extend an invitation to contract to
eligible dentists who: (a) [a]re re-evaluated by the state
of Tennessee; (b) [h]ave been successfully credentialed
by DentaQuest; and (c) [s]atisfy the . . . peer reviewed
selection process and criteria.” (Id. at 49; Doc. No. 400
at 180; Ex. 51 at 2929.) The “peer reviewed selection
process and criteria” were the same criteria listed in
the July 26, 2013 letter.7 (Ex. 51 at 2929.) The
formation of the network “relies on close collaboration
between providers, TennCare, and DentaQuest.” (Id.;
Doc. No. 403 at 49-50.)
7
Snodgrass-King argued to the jury and at oral argument that its
providers met all the criteria in this letter. DentaQuest’s exclusion
of Snodgrass-King from the TennCare network, therefore,
indicates a retaliatory motive.
App. 49
That summer, TennCare sent DentaQuest the “pool
of providers” that TennCare credentialed, which are
the providers that it permitted DentaQuest to include
in its network. (Doc. No. 404 at 22.) All Snodgrass-King
providers were successfully credentialed by the State.
(Doc. No. 403 at 48.) Around this time, DentaQuest
created what it referred to as its “large provider rule.”
(Id. at 31.) Under this rule, DentaQuest would exclude
any “large provider,” which it defined as a provider
with more than three offices, unless there was an
access need in the county. (Doc. No. 403 at 60.)
On September 19, 2013, Major sent an email to
Polmatier and DentaQuest employee Shawn Massey,
titled “TennCare Network Selections.” (Doc. No. 404 at
88; Ex. 70.) This email explained DentaQuest’s process
in inviting or rejecting providers from its network.
(Doc. No. 404 at 89.) The spreadsheet showed that
many Snodgrass-King providers were excluded because
they were “affiliated with [a] secondary network
exclusion,” meaning that they ran afoul of
DentaQuest’s large provider rule. (Ex. 70.) Other
Snodgrass-King providers were excluded because they
were part of a large provider practice group. (Id.; Doc.
No. 404 at 117.) Major’s email suggested that
DentaQuest would consider letting many of the
Snodgrass-King providers in DentaQuest’s network if
they worked at a different location. (Ex. 70 at 4700.)
DentaQuest did not put Snodgrass-King providers in
the category of individuals and entities that were
prohibited from joining the network because they had
utilization review problems. (Id.)
App. 50
8. DentaQuest Excludes Snodgrass-King
Providers
On October 1, 2013, DentaQuest began managing
the TennCare dental network. (Doc. No. 403 at 26.) On
December 12, 2013, Jason Keen, the Chief Operating
Officer and Chief Financial Officer at Snodgrass-King,
sent an email to Ann Mallin, an employee at
DentaQuest, asking for an update on Snodgrass-King’s
status “with respect to credentialing.” (Doc. No. 449-2
at 27; Doc. No. 404 at 38; Ex. 48 at 25876.) Mallin
forwarded this email to Major, who forwarded it to
Cruse, Price, DentaQuest’s outside counsel Bill West,
and Polmatier. (Doc. No. 449-2 at 28; Ex. 48 at 2587576.) Major then forwarded the email to DentaQuest’s
Senior Vice President and General Counsel David
Abelman. (Doc. No. 449-2 at 28; Ex. 48 at 25874-5.) On
December 16, 2013, Snodgrass-King’s providers
received a letter from DentaQuest, through Major,
terminating Snodgrass-King’s participation in the
network without cause.8 (Doc. No. 400 at 138, 182-83;
Ex. 67 at 5670.)
On January 3, 2014, Snodgrass-King, through its
attorneys, wrote a letter to Major at DentaQuest
requesting that DentaQuest reconsider its decision to
exclude Snodgrass-King from the TennCare network or
explain why DentaQuest excluded Snodgrass-King
from the network. (Doc. No. 400 at 184; Ex. 60.) On
January 14, 2014, the attorney for DentaQuest
8
In addition to Snodgrass-King, DentaQuest also did not invite
approximately two hundred other providers into the network. (Doc.
No. 400 at 222.)
App. 51
responded to Snodgrass-King’s inquiries by declining
its “request for a reconsideration and reversal of its
decision not to invite [Snodgrass-King] to participate in
its TennCare network.” (Ex. 61 at 5725.) DentaQuest
explained that its network included approximately 140
providers in Davidson County, thirty-four in
Williamson County, forty-four in Rutherford County,
seventeen in Wilson County, and twenty-two in Maury
County. (Id. at 5725-26.) “As a consequence of this
extensive and widely distributed network, the services
of Snodgrass-King were not included in the
DentaQuest TennCare network.” (Id. at 5726.)
DentaQuest admitted that “the only reason that
DentaQuest has given for not including a single
Snodgrass-King provider in its DentaQuest network is:
‘the offices were set aside due to the fact that they were
a large entity provider entity with multiple locations in
an area projected to exceed access targets.’” (Doc. No.
403 at 47.) DentaQuest also admitted that its decision
“not to include Snodgrass-King providers in the
DentaQuest network in 2013 was not based upon an
evaluation of the quality or efficiency of care provided
by Snodgrass-King providers.” (Doc. No. 406 at 80.)
Snodgrass-King’s providers are the only providers that
practiced dentistry in Tennessee that DentaQuest set
aside because of its “large provider rule.” (Doc. No. 403
at 51-52, 120-22; Ex. 23.) Polmatier testified that the
other large providers were invited in the network
because they had oral surgeons, which are difficult to
find in Medicaid, and Snodgrass-King did not have one
App. 52
listed.9 (Doc. No. 403 at 121.) Major testified that he
learned that Snodgrass-King was the only provider
group excluded under the Large Provider Rule only
after Snodgrass filed the instant lawsuit. (Doc. No. 404
at 121.)
Polmatier also testified that DentaQuest excluded
the Snodgrass-King providers because they had
utilization review problems. (Doc. No. 403 at 63.) She
testified that utilization review identifies “outliers,”
meaning “dentists that fall outside how their peers
practice.” (Id.) Those outliers are “flagged” for
utilization review and then investigated by
DentaQuest’s auditors. (Id.) Polmatier explained that
DentaQuest had “flagged” at least one of the
Snodgrass-King providers for utilization review
problems, but that she did not know which provider
that DentaQuest flagged or whether DentaQuest
flagged Snodgrass or King. (Id. at 68-69.)
9. Expert Proof at Trial
Christopher Lovin, C.P.A., A.B.V., C.F.F., C.F.E., a
partner in the valuation and litigation support services
division of the accounting firm Lattimore Black Morgan
& Cain, P.C., testified on behalf of Snodgrass-King
regarding whether DentaQuest should have excluded
all Snodgrass-King’s providers using DentaQuest’s
criteria. (Id. at 133.) After reviewing the selection
methodology and process that DentaQuest used and
9
Dr. Urbanek, Snodgrass-King’s oral surgeon, did not get
revalidated by TennCare and therefore was not in TennCare’s pool
of providers, so DentaQuest was unable to consider him for its
network. (Ex. 651 at 4836.)
App. 53
using the data DentaQuest provided, Lovin concluded
that the data did not support exclusion of any
Snodgrass-King location from the TennCare network.
(Id. at 133-34.) He reasoned that DentaQuest created
four tiers of providers in each county in Tennessee,
ranging from the highest quality and efficiency to the
lowest quality and efficiency. (Id. at 140.) If all of a
location’s providers were in the fourth tier, they would
be excluded from the network. (Id. at 141.)
Approximately eight percent of Snodgrass-King
providers were fourth tier providers, with the average
Snodgrass-King provider falling in tier two. (Id. at 143,
157.) DentaQuest rated all providers with similar
utilization scores as Snodgrass-King as tier two. (Id. at
159.)
Lovin also analyzed outliers in utilization, as
DentaQuest did in creating its network, and he found
that none of the Snodgrass-King providers were
outliers. (Id. at 147-48.) DentaQuest also looked at
percentage of claims denied, and Snodgrass-King had
eight percent of its claims denied, while the average
was 15.5 percent. (Id. at 150-51.) Lovin also noted that
DentaQuest disputed one provider’s claims of about
$5,995.00, but did not see that as a reason to exclude
that provider because other providers in the same
county had higher disputed amounts, up to $298,000,
and were not considered to be excluded. (Id. at 153.)
Lovin agreed that data on these factors was limited,
and that he was not sure if DentaQuest used it to make
its network inclusion decisions. (Id. at 176.)
Lovin also analyzed DentaQuest’s large provider
rule. (Id. at 161.) He compared Snodgrass-King with
App. 54
Heartland Dental, a group with four offices in the same
counties as Snodgrass-King. (Id.) Overall, SnodgrassKing had a better performance score than Heartland
Dental. (Id. at 162.) Lovin concluded that there was no
real reason why Heartland Dental was included in the
network and Snodgrass-King was excluded. (Id.) In
reaching this conclusion, Lovin assumed, incorrectly,
that Snodgrass-King had an oral surgeon as Heartland
Dental did. (Id. at 184.) Based on Lovin’s review of
DentaQuest’s data, the exclusion of Snodgrass-King
providers cost DentaQuest $950,000.00 more than it
would have paid if it included Snodgrass-King in the
network. (Id. at 166.)
B. ANALYSIS
Snodgrass-King’s sole claim is that DentaQuest
retaliated against it for exercising its First Amendment
rights in violation of 42 U.S.C. § 1983. DentaQuest
maintains that Snodgrass-King did not present any
evidence of state action, nor of retaliation. (Doc. No.
412 at 4-25.) It also moves for judgment as a matter of
law on punitive damages. (Id. at 25.) Snodgrass-King
counters that it presented sufficient evidence to
support the jury verdict. (Doc. No. 433.)
1. Under Color of State Law
To succeed on a claim for a violation of 42 U.S.C.
§ 1983, a plaintiff must establish that he or she was
denied a constitutional right by a person acting under
color of state law. Carl v. Muskegon Cty., 763 F.3d 592,
595 (6th Cir. 2014). DentaQuest and its employees are
all private actors, generally not subject to liability
under § 1983. Lansing v. City of Memphis, 202 F.3d
App. 55
821, 828 (6th Cir. 2000). A private actor’s conduct must
equate to “state action” within the meaning of the
Fourteenth Amendment to the United States
Constitution to satisfy the “under color of state law”
requirement. Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 n.2 (2001) (citing
Lugar v. Edmondson Oil Co., 457 U.S. 922, 934-35
(1982)). The “First Amendment is applicable to the
States through the Due Process Clause of the
Fourteenth Amendment.” Va. State Bd. of Pharmacy v.
Va. Citizens Consumer Council, Inc., 425 U.S. 748, 749
n.1 (1976) (citing Bigelow v. Virginia, 421 U.S. 809, 811
(1975)).
The state action analysis hinges on whether the
challenged conduct of the private entity may be fairly
attributable to the State. Blum v. Yaretsky, 457 U.S.
991, 1004 (1982) (citing Jackson v. Metro. Edison Co.,
419 U.S. 345, 351 (1974)). In Blum, one of the first
pivotal state action cases decided by the Supreme
Court, Medicaid patients challenged a private
hospital’s determination that they should be
transferred to a lower level of care. Id. at 995. The
Supreme Court determined that state action did not
exist even though the private hospital’s decisions on
the Medicaid patients were determined largely by
following state regulations. Id. at 1007-11. The
Supreme Court explained that there was not
a sufficiently close nexus between the State and
the challenged action of the regulated entity so
that the action of the latter may be fairly treated
as that of the State itself. Jackson v. Metro.
Edison Co., 419 U.S. 345, 351 (1974). The
App. 56
purpose of this standard is to assure that
constitutional standards are invoked only when
it can be said that the State is responsible for the
specific conduct of which the plaintiff
complains. . . . [A]lthough the factual setting of
each case [is] significant, . . . a State normally
can be held responsible for a private decision
only when it has exercised coercive power or has
provided such significant encouragement, either
overt or covert, that the choice must in law be
deemed to be that of the State. Flagg Bros., Inc.
v. Brooks, 436 U.S. 149, 166 (1978)).
Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis
in original). The state regulations did not “dictate” the
private hospital’s decisions, so the Supreme Court held
that the private hospital was not a “state actor” for the
purposes of § 1983. Id. at 1010.
“Only by sifting facts and weighing circumstances
can the nonobvious involvement of the State in private
conduct be attributed its true significance.” Moose
Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972)
(quoting Burton v. Wilmington Parking Auth., 365 U.S
715, 722 (1961)). A finding of state action is rare; “the
frequent reality that the State regulates private
entities or cooperates with them does not transform
private behavior into state behavior.” Thomas v.
Nationwide Children’s Hosp., No. 17-3631, --- F.3d ---,
2018 WL 844672, at *2 (6th Cir. Feb. 14, 2018) (citing
Jackson, 419 U.S. at 350). Courts strive to “‘preserv[e]
an area of individual freedom by limiting the reach of
federal law’ and avoi[d] the imposition of responsibility
on a State for conduct it could not control.’” Brentwood
App. 57
Acad., 531 U.S. at 295. (quoting Nat’l Collegiate
Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988)
(internal quotations omitted)).
Although determining what conduct is “fairly
attributable is a matter of normative judgment, and
the criteria lack simplicity,” id., the United States
Court of Appeals for the Sixth Circuit has recognized
four tests to assist in determining whether private
action has a close enough nexus to the State to
constitute state action: (1) whether the private entity
was serving a traditionally public function (the “public
function test”); (2) whether the government coerced or
substantially encouraged the action taken by the
private entity (the “state compulsion test”); (3) whether
the public and private entities have a symbiotic
relationship (the “symbiotic relationship or nexus
test”); and (4) whether the public and private entities
are so entwined that it is fair to apply constitutional
standards to the private entity’s actions (the
“entwinement test”). Marie v. Am. Red Cross, 771 F.3d
344, 362-64 (6th Cir. 2014); Lindsey v. Detroit Entm’t,
LLC, 484 F.3d 824, 828 (6th Cir. 2007) (citation
omitted). At trial, the Court instructed the jury on the
state compulsion test and the symbiotic relationship or
nexus test. (Doc. No. 383 at 34-37.)
Under any of the tests, the first step in deciding
whether the private actor’s conduct constituted “state
action” is to ascertain “the specific conduct of which the
plaintiff complains.” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum, 457
U.S. at 1004). This stems from the requirement that
the state must significantly involve itself with
App. 58
“‘invidious discriminations [or retaliation] . . .’ in order
for the discriminatory [or retaliatory] action to fall
within the ambit of the constitutional prohibition.”
Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972)
(quoting Reitman v. Mulkey, 387 U.S. 369, 380 (1967));
see Redmond v. The Jockey Club, 244 F. App’x 663,
673-74 (6th Cir. Aug. 2, 2007) (Clay, J., concurring)
(quoting Bier v. Fleming, 717 F.2d 308, 311 (6th Cir.
1983) (discussing state action)). Here, the challenged
conduct is DentaQuest’s 2013 exclusion of SnodgrassKing providers from the TennCare network. See Am.
Mfrs. Mut. Ins. Co., 526 U.S. at 51 (finding on a
Fourteenth Amendment due process claim that the
“specific conduct of which the plaintiff complains” was
the private party’s decision that the plaintiff is
challenging, not the unconstitutional motivation).
a. State Compulsion Test
Under the state compulsion test, to prove that a
private actor’s conduct constituted state action, the
plaintiff must prove that the state exercised “such
coercive power or provide[d] such significant
encouragement, either overt or covert, that in law the
choice of the private actor is deemed to be that of the
state.” Campbell v. PMI Food Equip. Grp., Inc., 509
F.3d 776, 784 (6th Cir. 2007) (quoting Wolotsky v.
Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)). “More than
mere approval or acquiescence in the initiatives of the
private party is necessary to hold the state responsible
for those initiatives.” Id. (quoting Wolotsky, 960 F.2d at
1335). A private party’s “free-will choice” does not
constitute state action, even if state agents
“encouraged” the choice, S.H.A.R.K. v. Metro Parks
App. 59
Serving Summit Cty., 499 F.3d 553, 565 (6th Cir.
2007), “approve[d]” or “incentive[ized]” to the choice,
Campbell, 509 F.3d at 784; but only if the State acts in
such a way to make it responsible for the choice. Blum,
457 U.S. at 1004. Although the State may incentivize
the private party to do certain actions, if it does not
“require” the action through its significant
encouragement or coercion, the private party’s reaction
to the State’s incentives will not be sufficient to make
the private party’s choice “deemed to be that of the
state.” Campbell, 509 F.3d at 784. Because the state
action analysis is a fact-based inquiry, it is useful to
review the published cases on state action to glean in
this case, with the facts taken in light most favorable
to Snodgrass-King, fall on the “significant
encouragement or coercion” scale.
Campbell held that a state can incentivize certain
actions without it being deemed state action. 509 F.3d
at 784. After the State offered tax incentives for a
manufacturing company to open a plant in Piqua, Ohio,
the company closed its Dayton, Ohio plant and moved,
firing its Dayton workers. Id. at 779-80. Now without
a job, the workers sued, alleging state action because
the company closed the Dayton plant to relocate its
functions to Piqua, Ohio, where the company received
a significant tax abatement designed “to attract new
business operations.” Id. at 780. The Sixth Circuit
found that the level of the state’s encouragement was
not enough to satisfy the state compulsion test:
There is nothing in the record to show that any
of the state entities “exercised such coercive
power or provided such encouragement as to
App. 60
make [PMI’s] decision state action.” PMI, a
private company, made a business decision to
voluntarily enter into a contract with
government entities, to close its Dayton Plant,
and to terminate the workers. No state law or
any state entity required PMI to take any of
those actions. Indeed, the Agreement required
only that PMI open a facility in Piqua. It did not
require PMI to close facilities elsewhere or lay
off existing employees.
Id. at 784 (quoting Wolotsky, 960 F.2d at 1335).
Wilcher v. City of Akron, 498 F.3d 516 (6th Cir.
2007), narrowed a finding of state action further.
There, Time Warner Cable attempted to promulgate
new rules for its public access station, which the City
had to approve in order to become effective. Id. at 518.
The Mayor approved the new rules, and a citizen who
was affected by those rules brought suit. Id. The court
found that Time Warner Cable was not a state actor for
the purposes of § 1983 because the plaintiff did not
“allege that city officials coerced Time Warner into
proposing the new regulations.” Id. at 520. To support
a finding of state action, the Sixth Circuit held that the
plaintiff must “prove that state officials coerced or
participated in the company’s decision-making to the
extent required to trigger state action status.” Id. at
520.
Finally, S.H.A.R.K. teaches that encouragement,
without more, does not rise to the level of significant
encouragement required for a private party’s conduct
to transform into conduct of the state. 499 F.3d at 565.
After Metro Parks contracted with a private party to
App. 61
assist in a planned deer-culling operation, S.H.A.R.K.,
a nonprofit organization, installed cameras to tape the
rangers killing the deer so that it could give the tapes
to local news stations. Id. 557-58. Two rangers
discovered the cameras and took them down. Id. at 558.
The rangers then called the head of the private party
assisting with the deer-culling operation to the ranger
cabin, told him what was on the tapes, and asked
whether he knew how to erase the tapes. Id. The
private actor then erased the tapes while the rangers
watched without attempting to stop him. Id. The Sixth
Circuit found that the private actor “made a free-will
choice to erase the images,” and to the extent the
rangers encouraged him, “this is not the type of
significant encouragement that would turn [the private
actor’s] choice to delete the tapes into that of
government action. Id. at 565.
b. Application of the State Compulsion
Test
While the historical evidence was helpful
background knowledge of the tense relationship
between these parties and TennCare, Snodgrass-King
correctly aims its argument on state action in the 201213 timeframe—when DentaQuest made its decision to
exclude Snodgrass-King from the TennCare network.
(Doc. No. 433 at 15.) Snodgrass-King identifies three
evidentiary bases that overlap upon which it believes
a reasonable jury could find state action: (1) a clearly
stated directive from TennCare to “keep out” Dr.
Snodgrass through Gillcrist or Long; (2) that
DentaQuest was motivated by an incentive to win the
TennCare contract to become the Dental Benefits
App. 62
Manager; and (3) the “keep out” remark may have been
used by TennCare in the context of discussions with
DentaQuest about the contract to be the Dental
Benefits Manager. (Id.) DentaQuest responds that “no
evidence at trial showed a ‘clearly stated directive’ from
Dr. Gillcrist or corroborated Plaintiffs’ theory about the
December 2012 meeting, and the remainder of the
evidence is legally insufficient to constitute state action
(Doc. No. 445 at 7.)
First, there was no clearly stated directive from
TennCare to “keep out” Snodgrass-King. The internal
email Snodgrass-King relies on, written by Polmatier,
who was not at the 2012 meeting with TennCare, says
that the sales team shared concerns with her that the
State would like DentaQuest to “keep out” SnodgrassKing from the TennCare network. (Ex. 39 at 5910.)
This was hardly news—the State and Snodgrass have
had a rocky relationship dating back to 2001. This
email, however, does not say that the State required or
demanded that DentaQuest to “keep out” SnodgrassKing providers in order to win the contract. Rather, it
is a DentaQuest internal email discussing
DentaQuest’s strategy and at most the State’s
preference to have the best chance of winning the
anticipated Request for Proposal. If Snodgrass-King
wanted a reasonable jury to believe that this language
was the directive from the State, it would need to
present some direct or circumstantial evidence to link
the “keep out” phrase on other equivalent language to
TennCare. The email, when put in context of the entire
record, is simply not proof for a reasonable jury to find
that the State coerced or significantly encouraged, as
precedent requires, DentaQuest’s 2013 decision.
App. 63
Indeed, in the context of all the proof at trial, in the
light most favorable to Snodgrass-King, the email only
states TennCare’s preference regarding SnodgrassKing, which has been known by the parties since at
least 2001. While DentaQuest wanted to make the
State happy, the State telling DentaQuest its
preferences or hope or desire in advance of the Request
for Proposal does not, without more, permit the
conclusion that TennCare is responsible for
DentaQuest’s actions.
The other two evidentiary basis Snodgrass-King
claims supports a finding of state action are also not
sufficient. The Sixth Circuit already held that
incentives from the state are insufficient to
“significantly encourage or coerce” private action.
Campbell, 509 F.3d at 784. And Campbell, Wilcher,
and S.H.A.R.K. all involved contracts with the state
that would likely expire, so the private actor would
have incentive to keep the state actors satisfied.
Ultimately, a reasonable jury could not find that the
State so significantly encouraged or coerced
DentaQuest’s decision to make it fairly attributable to
the State.
At oral argument, Snodgrass-King argued that the
historical background information, the December 27,
2012 (Ex. 42) and January 8, 2013 emails (Ex. 41), and
that Snodgrass-King was the only large provider dental
group excluded under DentaQuest’s “large provider
rule” also suggested that the State coerced or
significantly encouraged DentaQuest to exclude
Snodgrass-King. These, however, only suggest the
State’s involvement when read in conjunction with the
App. 64
December 20, 2012 “keep out” email. DentaQuest
would have the jury speculate that because the State
was angry in 2009 when Doral allowed Snodgrass-King
in the TennCare network, the State then terminated
Doral as its Dental Benefits Manager, hired Delta
Dental, and then terminated Delta Dental as the
Dental Benefits Manager when it also allowed
Snodgrass-King in its network. Snodgrass-King then
would have the jury believe that the State told
DentaQuest to “keep out” Snodgrass-King providers
from the TennCare network and it would win the
contract. It then sent multiple emails indicating the
State preferred having Snodgrass-King out of the
network, and the final decision was made as to
Snodgrass-King providers in January 2013.
The main issue with Snodgrass-King’s theory is that
there is no evidence to support it. Even assuming the
State terminated DentaQuest as the Dental Benefits
Manager in 2010 because it allowed Snodgrass-King in
the network—which seems far-fetched—it would seem
that the State would then coerce or significantly
encourage Delta Dental to exclude Snodgrass-King
from the TennCare network. That did not happen.
There is no evidence as to why the State terminated
Delta Dental as its Dental Benefits Manager other
than it was not “managing the network” to the State’s
liking. And while it is true that the only name that
appears on any of DentaQuest’s internal emails is
Snodgrass’ name, and it is possible that someone from
the State told DentaQuest its “preference” or “position”
to exclude Snodgrass-King from the network, it is
undisputed that DentaQuest made the final decision on
which providers were allowed in the network in
App. 65
October 2013. There is no evidence that TennCare
significantly encouraged or coerced this result.
Snodgrass-King’s persuasive authority does not
require, a different result. In Fitzgerald v. Mountain
Laurel Racing, Inc., 607 F.2d 589 (3d Cir. 1979), the
private horse racing track expelled a horse from its
stables for violation a Racing Commission Rule. The
Third Circuit held that the private track was operating
as an arm of the State because it was using its
delegated authority from the State to enforce state
regulations. Id. at 597. Key to the decision was that the
officials from the Racing Commission “personally and
actively participated in the specific conduct challenged
by Fitzgerald.” Id. Here, DentaQuest was not enforcing
a state regulation when it decided in 2013 to exclude
Snodgrass-King from the TennCare network. Rather,
it was responsible for creating a network that could
serve the TennCare population based on access needs.
No state official told DentaQuest that Snodgrass-King
was violating one of its rules, although DentaQuest did
create a “large provider rule” because it believed the
State had a preference against large providers. Overall,
the facts are too dissimilar for Fitzgerald to carry much
weight in the Court’s decision.10
On the other hand, the cases in which private actor
excludes a person or takes an action, such as
DentaQuest’s 2013 exclusion of Snodgrass-King from
10
Snodgrass-King also cites the concurrence in Paige v. Coyner,
614 F.3d 273 (6th Cir. 2010). However, there, the majority rejected
the state action analysis, finding that a state actor was being sued
for its own actions. Id. at 280. Thus, the Court does not give weight
to a concurrence that the majority specifically rejected.
App. 66
the TennCare network, are more informative. Blum,
Campbell, Wilcher, and even Fitzgerald all involved
allegations that the state was involved in or coerced the
exclusion of a person by a private actor. In those cases,
the State had to be intimately involved in the final
decision in order to constitute state action, such as in
Fitzgerald where the private actor was behaving as an
“arm of the state.” Proof that the State “approved,”
“acquiesced,” “encouraged,” or even “incentivized” the
exclusion of the plaintiff was not enough. When
combined with S.H.A.R.K., where the State officials
called the private actor to their ranger station, showed
them the damning tape, and watched the private actor
erase the tape, the facts indicate that the State’s
encouragement of DentaQuest’s 2013 decision did not
reach the level of significant encouragement required
under precedent. TennCare officials told DentaQuest
that TennCare was going to release a Request for
Proposal, DentaQuest then kept Snodgrass-King out of
the network while TennCare officials watched, and
TennCare awarded DentaQuest the contract.
A reasonable jury might conclude that TennCare
“approved,” “acquiesced,” “encouraged,” or even
“incentivized” DentaQuest’s 2013 exclusion of
Snodgrass-King from the TennCare network. But this
is not legally sufficient to constitute State action.
Accordingly, DentaQuest is entitled to judgment as a
matter of law.
2. Close Nexus Test
The Court also charged the jury on the close nexus
or symbiotic relationship test. (Doc. No. 383 at 36-37.)
“Under the symbiotic [relationship] or nexus test, a [§]
App. 67
1983 claimant must demonstrate that there is a
sufficiently close nexus between the government and
the private party’s conduct so that the conduct may be
fairly attributed to the state itself.” Chapman v. Higbee
Co., 319 F.3d 825, 834 (6th Cir. 2003) (en banc) (citing
Wolotsky, 960 F.2d at 1335). The plaintiff must
demonstrate that “the state is intimately involved in
the challenged private conduct in order for that conduct
to be attributed to the state.” Wolotsky, 960 F.2d at
1335 (citing Jackson v. Metro. Edison Co., 419 U.S.
345, 351 (1974)). The inquiry is “fact-specific, and the
presence of state action is determined on a case-by-case
basis.” Chapman, 319 F.3d at 834 (citing Burton v.
Wilmington Parking Auth., 365 U.S. 715 (1961)).
Here, there is no evidence that TennCare was
“intimately involved” in DentaQuest’s decision to
exclude Snodgrass-King providers from the TennCare
network in 2013. Rather, the only evidence, at most,
shows that TennCare had a preference to exclude
Snodgrass-King, that TennCare may have told
DentaQuest its preference, and that DentaQuest
decided to act on TennCare preferences. However,
there is no proof of any close interaction between the
State and DentaQuest regarding the exclusion of
Snodgrass-King from the TennCare network after the
mid- to late-2012 meeting. There is not a “sufficiently
close nexus” so that TennCare is responsible for
DentaQuest’s conduct. No reasonable jury could
conclude that the TennCare and DentaQuest had a
symbiotic relationship when the DentaQuest excluded
Snodgrass-King providers from the TennCare network
in 2013. The motion for judgment as a matter of law
will be granted on this basis as well.
App. 68
II. MOTION FOR A NEW TRIAL
Pursuant to Federal Rule of Civil Procedure 50(c),
if the Court grants a motion for judgment as a matter
of law, “it must also conditionally rule on any motion
for a new trial by determining whether a new trial
should be granted if the judgment is later vacated or
reversed.” DentaQuest moves for a new trial for six
reasons: (1) the jury’s verdict was against the great
weight of the evidence; (2) the jury instructions
contained errors requiring a new trial; (3) the jury
relied on speculative evidence in awarding SnodgrassKing $7.4 million in compensatory damages;
(4) Snodgrass-King’s attorneys continually violated
Court orders and introduced irrelevant evidence at
trial; (5) the punitive damages award is excessive; and
(6) the Court erred on certain evidentiary rulings. (Doc.
No. 414.)
Federal Rule of Civil Procedure 59(a)(1)(A) allows a
court to grant a new trial on some or all of the issues
after a jury trial “for any reason for which a new trial
has heretofore been granted in an action at law in
federal court.” Generally, a district court should grant
a motion for a new trial only “when a jury has reached
a ‘seriously erroneous result’ as evidenced by: (1) the
verdict being against the weight of the evidence; (2) the
damages being excessive; or (3) the trial being unfair to
the moving party in some fashion, i.e., the proceedings
being influenced by prejudice or bias.” Mosby-Meachem
v. Memphis Light, Gas & Water Div., --- F.3d ---, 2018
WL 988895, at *7 (6th Cir. Feb. 21, 2018) (quoting
Holmes v. City of Massillon, Oh., 78 F.3d 1041, 1045-46
(6th Cir. 1996)). The burden of demonstrating the
App. 69
necessity of a new trial is on the moving party. The
ultimate decision of whether to grant such relief is a
matter vested within the sound discretion of the
district court. Clarksville-Montgomery Cty. Sch. Sys. v.
U.S. Gypsum Co., 925 F.2d 993, 1002 (6th Cir. 1991).
A. WEIGHT OF THE EVIDENCE
DentaQuest first argues that the weight of the
evidence did not support the jury verdict, incorporating
its argument from the Motion for Judgment as a
Matter of Law. (Id. at 7-8.) “If, having given full respect
to the jury’s findings, the judge on the entire evidence
is left with the definite and firm conviction that a
mistake has been committed, it is to be expected that
the judge will grant a new trial.” C. Wright & A. Miller,
11 Federal Practice and Procedure § 2806, at 93 (3d ed.
2012). If the Sixth Circuit decides that Snodgrass-King
produced sufficient evidence of state action, the jury’s
decision was not otherwise against the clear weight of
the evidence.
DentaQuest argues that the jury’s finding that
Snodgrass-King established a First Amendment
violation is against the clear weight of the evidence.
(Doc. No. 414 at 8 (referring to Doc. No. 412 at 19)).
Specifically, DentaQuest argues that Snodgrass-King
did not present any proof that DentaQuest’s 2013
decision to exclude Snodgrass-King from the TennCare
network in 2013 was motivated at least in part by
Snodgrass-King’s protected conduct. (Id.) SnodgrassKing argues that DentaQuest is not reading the facts
in the light most favorable to the jury verdict. (Doc. No.
433 at 19.)
App. 70
To prevail on a First Amendment retaliation claim,
a plaintiff must prove: (1) the plaintiff engaged in
constitutionally protected conduct; (2) the defendant
took an adverse action against the plaintiff that would
deter a person of ordinary firmness from continuing to
engage in that conduct; and (3) the plaintiff’s protected
conduct motivated the defendant’s adverse action at
least in part. Wurzelbacher v. Jones-Kelley, 675 F.3d
580, 583 (6th Cir. 2012) (citing Mezibov v. Allen, 411
F.3d 712, 717 (6th Cir. 2005)).
If there is state action in this record, SnodgrassKing presented sufficient circumstantial evidence for a
jury to infer and conclude that DentaQuest’s 2013
decision to exclude all Snodgrass-King providers from
the TennCare network was motivated at least in part
by Snodgrass’ prior lawsuits and opposing DentaQuest
as TennCare’s Dental Benefits Manager. The Court
instructed the jury that it must find causation to
return a verdict for Snodgrass-King. (Doc. No. 383 at
38-39, 42-44.) After viewing the facts in the light most
favorable to Snodgrass-King, the jury’s decision on
First Amendment retaliation was not against the great
weight of the evidence.
B. JURY INSTRUCTIONS
DentaQuest argues that errors in the jury
instructions require the Court to grant a new trial. (Id.
at 8.) The relevant question is whether the jury
instructions, taken as a whole, “adequately inform the
jury of the relevant considerations and provide the jury
with a sound basis in law with which to reach a
conclusion.” E.E.O.C. v. New Breed Logistics, 783 F.3d
1057, 1074 (6th Cir. 2015) (quoting Pivnick v. White,
App. 71
Getgey & Meyer Co., LPA, 552 F.3d 479, 488 (6th Cir.
2009)). A district court should grant a new trial for
erroneous jury instructions only “if they are confusing,
misleading, and prejudicial.” Id. (citing Pivnick, 552
F.3d at 488). A district court should not grant a new
trial for an erroneous jury instruction “where the error
is harmless.” Id. at 1074-75 (citing Pivnick, 552 F.3d at
488).
First, DentaQuest argues that the jury instruction
regarding state action (Doc. No. 383 at 34-37) was
erroneous because it defined the “challenged action” as
“DentaQuest USA’s 2013 decision not to invite
Snodgrass-King into the TennCare network.” (Id. at 3637.) DentaQuest believes that the challenged action
includes the retaliatory motive, i.e., opposition to
Snodgrass-King’s protected First Amendment activity.
(Doc. No. 414 at 8-9.) As discussed in the Judgment as
a Matter of Law section of this Memorandum Opinion,
the unconstitutional motivation is not relevant to the
challenged action analysis.11 Therefore, the Court
properly instructed the jury on state action.
Second, DentaQuest argues that the jury
instruction regarding the “motivating factor” element
of the First Amendment retaliation claim (Doc. No. 383
11
There is no binding case that explicitly states whether the State
must have an unconstitutional motivation under the state action
analysis. However, as discussed in Blum, Campbell, Wilcher, and
S.H.A.R.K., as well as the numerous other cases cited in Section I
of this Memorandum Opinion, no case discussed or required the
State to have an unconstitutional motivation to constitute state
action under § 1983. As such, the Court did not include this in its
jury instructions.
App. 72
at 42) was erroneous because it did not require
Snodgrass-King to prove that TennCare’s motivating
factor in coercing DentaQuest into excluding
Snodgrass-King from the TennCare network was
Snodgrass-King’s protected First Amendment activity.
(Doc. No. 414 at 10.) To prevail on a First Amendment
retaliation claim, a plaintiff must prove: (1) the
plaintiff engaged in constitutionally protected conduct;
(2) the defendant took an adverse action against the
plaintiff that would deter a person of ordinary firmness
from continuing to engage in that conduct; and (3) the
plaintiff’s protected conduct motivated the defendant’s
adverse action at least in part. Wurzelbacher v. JonesKelley, 675 F.3d 580, 583 (6th Cir. 2012) (citing
Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005)).
Had Snodgrass-King proven state action, then
DentaQuest would have become an arm of the State,
and its retaliatory motive would have been the State’s
retaliatory motive. Because the Court explicitly
required the jury to find that DentaQuest was a state
actor prior to making a finding on First Amendment
retaliation, the jury instructions did not error.
Third, DentaQuest challenges the jury instruction
regarding whether to award punitive damages. (Doc.
No. 414 at 10 (citing Doc. No. 383 at 55)). DentaQuest
argues the Court’s jury instruction should have
required Snodgrass-King to prove that DentaQuest
acted with “evil motive or intent, or that [DentaQuest’s
actions] involve[] reckless or callous indifference to the
federally protected rights of [Snodgrass-King].” (Id. at
10-11 (quoting King, 788 F.3d at 216)). While the
Court’s jury instruction requiring a factual finding that
DentaQuest acted “intentionally, recklessly, or
App. 73
maliciously” may differ in form from DentaQuest’s
proposed instructions, the Court finds no substantive
difference.
“[E]vil motive or intent” requires “at a minimum . . .
recklessness in its subjective form.” Kolstad v. Am.
Dental Ass’n, 527 U.S. 526, 536 (1999). Malice is also
interchangeable with “evil motive or intent.” See
Kolstad, 527 U.S. at 548 n.2 (1999). Therefore, the jury
is permitted to find that Snodgrass-King was entitled
to punitive damages based on a finding that
DentaQuest acted “intentionally, recklessly, or
maliciously.” Insofar as the Court’s chosen language
differs from the traditional formulation cited by
DentaQuest, any difference was harmless.
Last, DentaQuest argues, without authority, that
the Court’s verdict form was “over-simplistic” and did
not ensure that “the jury read, understood, deliberated
and resolved each element of the claim.” (Doc. No. 414
at 11.) The decision on whether to use a general verdict
form or a specific verdict form is within the “sound
discretion of the trial court.” Workman v. Frito-Lay,
Inc., 165 F.3d 460, 465 (6th Cir. 1999). DentaQuest
presents no authority dictating that the Court abused
its discretion in using a general verdict form on a
single-claim case where it instructed the jury that it
must first find state action in order to find for the
plaintiff.
C. COMPENSATORY DAMAGES
DentaQuest argues that the compensatory damage
award was based on speculation and is excessive. (Doc.
No. 414 at 11.) It argues, as it argued to the jury at
App. 74
trial, that the largest damage award supported by the
evidence is $448,698 per year, which was 25% of
Snodgrass-King’s operating income for 2013. (Doc. No.
414 at 12.) However, it argues that any award would be
based on pure speculation, and the jury should have
awarded nominal damages if it were to find in
Snodgrass-King’s favor on liability. (Doc. No. 414 at 1213; Doc. No. 412 at 27.) The proof at trial permitted the
jury to find otherwise.
As a result of being excluded from the TennCare
network, approximately 20,000 TennCare patients had
to stop using Snodgrass-King. (Doc. No. 400 at 82, 28687.) Snodgrass estimated that about thirty percent of
his practice constituted TennCare patients. (Id. at 199.)
Snodgrass-King’s Hermitage office was forced to reduce
its hours from four-and-a-half days per week to one day
per week. (Id. at 82.)
From 2011 to 2012, Snodgrass-King’s operating
income decreased from $3,022,196.78 to $2,226,471.17.
(Id. at 264; Ex. 703 at 9558.) Snodgrass testified that at
that time he only recently opened his Mt. Juliet office,
which is why Snodgrass-King lost so much operating
income. (Doc. No. 400 at 264.) However, he admitted
that the Hermitage office lost $568,000.00 over the
same period. (Id. at 265.) From 2012 to 2013,
Snodgrass-King’s operating income decreased again to
$1,794,792.93, (Id. at 266; Ex. 704 at 9679.) Snodgrass
testified that this was because he had “more staff, more
doctors, more expenses” with the new Mt. Juliet office.
(Doc. No. 400 at 266.)
Snodgrass-King presented Jerry W. Faulkner,
C.P.A., to testify on damages. (Doc. No. 404 at 239.)
App. 75
Faulkner does accounting and audit and income tax,
consulting, and litigation support at the accounting
firm of Faulkner, Mackie & Cochran. (Id. at 241-42.) In
October 2016, Faulkner conducted a lost profits
calculation for Snodgrass-King for the years 2014 to
2018 because DentaQuest’s TennCare contract lasted
three years and had two one-year renewal options. (Id.
at 245, 247.) He estimated that Snodgrass-King’s lost
TennCare operating profits, minus the avoided costs
that the company did not have to incur, constituted
$1.855 million for the twelve-month period ending
December 1, 2014. (Id. at 247.) For the following year,
Faulkner estimated that Snodgrass-King’s lost revenue
profits constituted $2.18 million. (Id. at 248.) For the
nine month period ending September 30, 2016,
Faulkner estimated Snodgrass-King’s lost operating
profits were $1.402 million. (Id.) If TennCare extended
DentaQuest’s contract to September 30, 2017, which it
did (id. at 272), that would add $1.9 million to
Snodgrass-King’s lost operating profits, totaling $7.4
million. (Id. at 249.) If TennCare extended
DentaQuest’s contracts to September 30, 2018, another
$1.845 million would be added to Snodgrass-King’s
loss, totaling $9.245 million. (Id.)
Generally, “a jury verdict will not be set aside or
reduced as excessive unless it is beyond the maximum
damages that the jury reasonably could find to be
compensatory for a party’s loss.” Sykes v. Anderson,
625 F.3d 294, 322 (6th Cir. 2010) (quoting Am. Trim,
L.L.C. v. Oracle Corp., 383 F.3d 462, 475 (6th Cir.
2004)). A district court should remit a compensatory
damages award “only when, after reviewing all the
evidence in the light most favorable to the prevailing
App. 76
party, it is convinced that the verdict is clearly
excessive; resulted from passion, bias, or prejudice; or
is so excessive or inadequate as to shock the conscience
of the court.” Id. (quoting Am. Trim., 383 F.3d at 475).
“If there is any credible evidence to support a verdict,
it should not be set aside.” Id. (quoting Am. Trim., 383
F.3d at 475).
Here, the only evidence in the record on damages is
Faulkner’s testimony. The Court has previously found
Faulkner’s testimony reliable (Doc. No. 335 at 2), and
a reasonable jury could rely on it and give it whatever
weight it believed is appropriate. The jury did not
accept all of Faulkner’s analysis because it did not
award damages for October 2017-September 2018.
Credible evidence supports the jury verdict.
D. VIOLATIONS OF COURT ORDERS
DentaQuest moves for a new trial because
Snodgrass-King’s counsel violated the Court’s orders.
(Doc. No. 414 at 14.) The relevant question under Rule
59 is “whether misconduct in a trial of a cause of action
is of such a nature that a fair or impartial verdict
cannot be reached.” City of Cleveland, 624 F.2d at 756
(quoting Travelers Fire Ins. Co. v. Ranney-Davis
Mercantile Co., 173 F.2d 844, 851 (10th Cir. 1949)). In
determining whether “there is a reasonable probability
that the verdict of a jury has been influenced by
improper conduct, . . . a court must examine . . . the
totality of the circumstances, including the nature of
the comments, their frequency, their possible relevancy
to the real issues before the jury, the manner in which
the parties and the court treated the comments, the
App. 77
strength of the case (e.g., whether it is a close case),
and the verdict itself.” Id. (internal quotations omitted).
Here, Snodgrass-King’s attorneys mentioned the
contract value twice during the course of the trial, and
the Court gave a curative instruction. (Doc. No. 404 at
225.) When the Court denied the motion for a mistrial,
it noted that “we don’t have . . . consistent conduct
regarding the $38 million reference.” (Id. at 205); see
McMillan v. Castro, 405 F.3d 405, 412 (6th Cir. 2005)
(“[D]istrict courts should issue a curative instruction at
the time counsel raises an objection to specific
questioning or conduct that could be viewed as hostile
or biased.”). After weighing the City of Cleveland
factors, and based on the Court’s observations at trial
as well as its review of the record itself, the Court does
not believe the jury was prejudiced by the amount
DentaQuest received from TennCare under their
contract. As such, it conditionally denies a new trial on
this ground.
On the remainder of the alleged attorney
misconduct for Snodgrass-King, DentaQuest did not
object to the mentioning of the location of the offices of
the testifying witnesses, nor did it object to any
mention of a “dental home.”12 The Court is not aware of
any order that Snodgrass-King violated by this
testimony. Based on the City of Cleveland factors,
12
The other alleged errors DentaQuest raises in this section were
raised in a perfunctory manner without analysis. The Court,
however, has considered all of DentaQuest’s arguments reviewed
the citations to the record (Doc. No. 415 at 14) and determined that
a new trial is not warranted for attorney misconduct.
App. 78
those issues did not influence the jury and are not
grounds for a new trial.
E. PUNITIVE DAMAGES
DentaQuest argues that its conduct was not
reprehensible enough to justify a punitive damages
award. (Doc. No. 414 at 19.) When the jury finds that
the defendant retaliated against the plaintiff’s exercise
of his First Amendment rights, “the defendant
necessarily acts with the purpose of infringing upon the
plaintiff’s federally protected rights.” Id. (citing
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999) (en banc)). Here, if the jury was reasonable in
finding state action and that DentaQuest retaliated
against Snodgrass-King’s exercise of its First
Amendment rights, a reasonable jury could find that
DentaQuest acted “with the purpose of infringing upon
[Snodgrass-King’s] federally protected rights.” Id.
Accordingly, DentaQuest’s Rule 59 motion is
conditionally denied on this ground.
Alternatively, DentaQuest argues that the amount
of punitive damages violates due process, and that the
Court should reduce the punitive damages award to
below a 1:1 ratio with compensatory damages. (Doc.
No. 414 at 21-23.) Snodgrass-King argues disagrees.
(Doc. No. 435 at 18.)
Due process applies to punitive damages awards
because “[e]lementary notions of fairness enshrined in
our constitutional jurisprudence dictate that a person
receive fair notice not only of the conduct that will
subject him to punishment, but also of the severity of
the penalty that a State may impose.” Id. at 417
App. 79
(quoting BMW of N. Am. v. Gore, 517 U.S. 559, 574
(1996)). “To the extent an award is grossly excessive, it
furthers no legitimate purpose and constitutes an
arbitrary deprivation of property.” Id. (citing Pac. Mut.
Life Ins. Co. v. Haslip, 449 U.S. 1, 54 (1991) (O’Connor,
dissenting)). Three considerations guide whether a
jury’s punitive damage award is excessive: “(1) the
degree and reprehensibility of the conduct; (2) the
disparity between the harm suffered by the plaintiff
and the punitive damages award; and (3) the difference
between the punitive damages and the civil penalty
imposed in comparable cases.” Sykes, 625 F.3d at 32223 (quoting Gibson v. Moskowitz, 523 F.3d 657, 664
(6th Cir. 2008)).
The first factor weighs in favor of the jury’s punitive
damages award. The Court instructed the jury that
punitive damages are reserved for “egregious conduct,”
and they may only be considered if DentaQuest acted
“intentionally, recklessly, or maliciously.” (Doc. No. 383
at 55.) The jury made this finding by clear and
convincing evidence. (Id.; Doc. No. 388 at 2.) Therefore,
“the degree and reprehensibility of the conduct” favors
Snodgrass-King.
The disparity between the harm suffered by the
plaintiff and the punitive damages award is 2:1. That
is, the punitive damages award is double the jury’s
compensatory damage award. (Doc. No. 388 at 1; Doc.
No. 390.) While this ratio may favor a plaintiff in a case
with lower compensatory damages, in a case with such
a “substantial” compensatory damage award, a 2:1
ratio may go beyond the “outermost limit of the due
process guarantee.” State Farm Mut. Auto. Ins. Co. v.
App. 80
Campbell, 538 U.S. 408, 425 (2003). Generally, when
the “compensatory damages award [is] large and the
defendant’s conduct” is reprehensible, a 1:1 ratio is
appropriate. Bridgeport Music, Inc. v. Justin Combs
Pub., 507 F.3d 470, 488 (6th Cir. 2007); see also Burton
v. Zwicker & Assocs., PSC, 577 F. App’x 555, 566 (6th
Cir. Aug. 22, 2014) (upholding the district court’s
remittitur reducing the amount of damages to a 1:1
ratio from 1.7:1).
Neither side produced any similar cases for the
Court to consider the third factor. While DentaQuest
provided other First Amendment retaliation claims
from district courts within the Sixth Circuit, those
cases involved much smaller compensatory damages
awards in favor of individuals rather than large
companies. (See Doc. No. 414 at 22 (compiling cases)).
As such, those cases did not involve the large amount
of compensatory damages that the jury awarded
Snodgrass-King here. (Id.)
The jury’s punitive damage award shocks the
judicial conscience. The Court conditionally grants a
remittitur on punitive damages to a 1:1 ratio, reducing
the punitive damage award to $7.4 million. The Court
also conditionally grants a new trial on both liability
and punitive damages should Snodgrass-King reject
the conditional remittitur.
F. EVIDENTIARY RULINGS
DentaQuest argues that it is entitled to a new trial
because the Court improperly excluded a January 27,
2014 letter (Doc. No. 401-1 at 7). (Doc. No. 414 at 20.)
In the letter, TennCare responded to Snodgrass-King’s
App. 81
January 16, 2014 letter (Ex. 61) by stating it had no
role in the decision to terminate Snodgrass-King from
the network. (Doc. No. 406 at 24-26.) DentaQuest offers
no new arguments on this issue. The Court stands by
its ruling that the letter is not admissible for the
reasons stated on the record. (Id.)
DentaQuest argues that the Court erred in limiting
DentaQuest to one witness regarding Snodgrass-King’s
quality of care. (Doc. No. 414 at 25.) However, the
Court did not limit DentaQuest in this way. On
November 18, 2016, Snodgrass-King filed a motion to
exclude the testimony of Lauren Grzegorcyk, a former
Snodgrass-King patient who was unsatisfied with
Snodgrass-King’s quality of care. (Doc. No. 371.)
Counsel for Snodgrass-King asked if DentaQuest was
going beyond the one witness, and the Court stated, “I
don’t know what his proof is, but I certainly think
that’s appropriate, given the proof.” (Doc. No. 404 at
307.) DentaQuest then chose to only present one
witness on quality of care, which the Court allowed.
(Doc. No. 373.) The fact that DentaQuest now regrets
its strategy and wishes that it presented four witnesses
on quality of care is not a ground for a new trial.
Finally, DentaQuest argues that the accumulation
of multiple alleged evidentiary errors require the Court
to grant a new trial. (Doc. No. 414 at 26-27.) The Court
will not address every evidentiary ruling that went
against DentaQuest, but having considered each of
DentaQuest’s arguments, the Court will adopt its
rulings for the reasons given at trial, and its rulings on
the expert testimony for the reasons stated at the
November 7, 2017 Pretrial Conference. (Doc. No. 335 at
App. 82
2 (incorporating the reasons given at the pretrial
conference)). These rulings are not grounds for a new
trial.
G. CONCLUSION
For the foregoing reasons, pursuant to Rule 50(c),
should the Court of Appeals reverse the Court’s
determination on the Motion for Judgment as a Matter
of Law, DentaQuest’s Motion for a Remittitur is
CONDITIONALLY GRANTED. The punitive
damages award is conditionally reduced to
$7,400,000.00. DentaQuest’s Motion for a New Trial is
CONDITIONALLY GRANTED. If Snodgrass-King
rejects the remittitur, the Court will hold a new trial
both on liability and damages should this case be
remanded. If Snodgrass-King conditionally accepts the
remittitur, DentaQuest’s Motion for a New Trial will be
conditionally denied.
III. CONCLUSION
For the foregoing reasons, DentaQuest’s Motion for
Judgment as a Matter of Law (Doc. No. 411) is
GRANTED, DentaQuest’s Motion to for Remittitur or
a New Trial is CONDITIONALLY GRANTED with
respect to the remittitur and CONDITIONALLY
GRANTED with respect to the new trial, SnodgrassKing’s Motions to Alter Judgment (Doc. No. 410) and
for Attorney’s Fees (Doc. Nos. 418, 446) are DENIED
AS MOOT.
App. 83
The Court will issue an appropriate order.
s/ ____________________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
App. 84
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
NO. 3:14-cv-00654
CHIEF JUDGE CRENSHAW
[Filed February 23, 2018]
________________________________
SNODGRASS-KING PEDIATRIC )
DENTAL ASSOCIATES, P.C. and )
DAVID J. SNODGRASS,
)
)
Plaintiffs,
)
)
v.
)
)
DENTAQUEST USA
)
INSURANCE CO., INC.,
)
)
Defendant.
)
________________________________ )
ORDER
For the reasons in the accompanying Memorandum
Opinion:
1. Snodgrass-King’s Motion to Alter Judgment (Doc.
No. 410) is DENIED AS MOOT;
2. DentaQuest’s Motion for Judgment as a Matter of
Law (Doc. No. 411) is GRANTED;
3. DentaQuest’s Motion to for Remittitur or a New
Trial (Doc. No. 413) is CONDITIONALLY
App. 85
GRANTED with respect to the remittitur and
CONDITIONALLY GRANTED with respect to
the new trial. The punitive damages award is
CONDITIONALLY REDUCED to $7,400,000.00.
Within fourteen days of the date of this Order,
Snodgrass-King is ORDERED file a Notice with
the Court as to whether it conditionally accepts the
remittitur or whether it rejects the remittitur.
Should it conditionally accept the remittitur, the
Motion for a New Trial will be CONDITIONALLY
DENIED without further order of the Court.
Should it reject the remittitur, the Motion for a New
Trial will be CONDITIONALLY GRANTED; and
4. Snodgrass-King’s Motions for Attorney’s Fees (Doc.
No. 418, 446) are DENIED AS MOOT.
Accordingly, the Court’s Judgment (Doc. No. 391) is
VACATED, and the Clerk is directed to enter
judgment in favor of DentaQuest, pursuant to Federal
Rule of Civil Procedure 58.
IT IS SO ORDERED.
s/ ____________________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
App. 86
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 18-5271/5284
[Filed August 29, 2019]
____________________________________________
SNODGRASS-KING PEDIATRIC
)
DENTAL ASSOCIATES, P.C.;
)
DAVID J. SNODGRASS, D.D.S.,
)
)
Plaintiffs-Appellants/Cross-Appellees,
)
)
v.
)
)
DENTAQUEST USA INSURANCE
)
COMPANY, INC.,
)
)
Defendant-Appellee/Cross-Appellant.
)
____________________________________________ )
ORDER
BEFORE: MERRITT, GUY, and MOORE, Circuit
Judges.
The court received a petition for rehearing en banc.
The original panel has reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original
submission and decision of the cases. The petition then
App. 87
was circulated to the full court. No judge has requested
a vote on the suggestion for rehearing en banc.
Therefore, the petition is denied. Judge Guy would
grant rehearing for the reasons stated in his dissent.
ENTERED BY ORDER OF THE COURT
s/______________________________
Deborah S. Hunt, Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.