Opposition Brief — Kochert v. Greater Lafayette Health Services, Inc. (No. 06-822)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

No. 06-822

In The

Supreme Court of the Gnited States

CAROLYN KOCHERT, M.D.,

Petitioner,

GREATER LAFAYETTE HEALTH

SERVICES, INC., JOHN WALLING, and

ANESTHESIOLOGY ASSOCIATES, P.C.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

~ For The Seventh Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI OF

RESPONDENTS GREATER LAFAYETTE HEALTH

SERVICES, iNC. AND JOHN WALLING

LARRY R. FISHER

Counsel of Record

STUART & BRANIGIN LLP

300 Main Street, Suite 900

P.O. Box 1010

Lafayette, IN 47902-1010

Telephone: 765-423-1561

Facsimile: 765-742-8175

Counsel for the Respondents, Greater

Lafayette Health Services, Inc.

and John Walling

COCKEL® LAW BRIEF PRINTING CO. son) 225 6964

OK CALL COLLECT (402) 342 2831

~COUNTERSTATEMENT OF THE

QUESTIONS PRESENTED

1. Does the Petition present any compelling reason

for certiorari review when both the Seventh Circuit Court

of Appeals and the district court held that summary

judgment should have been granted to the Respondents

because the evidence proffered by Petitioner failed to

create any genuine issue of material fact that she suffered

an antitrust injury or had antitrust standing and the

testimony of Petitioner’s expert witnesses was neither

probative nor material to the resolution of these issues?

2. Does the Petitioner confuse the differing stan-

dards for the admissibility of expert testimony under FED.

R. Evip. 702 and Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993) with the production requirements

under FED. R. Civ. P. 56 and this Court’s prior opinions

governing the evidentiary standards for summary judg-

ments?

3. Did the Petitioner waive the second “Question

Presented” in her Petition by failing to present the issue

that “courts have an obligation to give reasons ... why

admissible expert evidence ... is not sufficient to avoid

summary judgment” [Petition at i] to the Seventh Circuit

Court of Appeals?

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

There are no parties to the proceedings other than

those listed in the caption.

Respondent, Greater Lafayette Health Services, Inc.,

is an Indiana domestic nonprofit corporation. The Sisters

of St. Francis Health Services, Inc., an Indiana privately

held nonprofit corporation, is the sole member of Greater

Lafayette Health Services, Inc.

iii

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF THE QUESTION PRE-

SE USTIE AT I ciiiouhdsiuiisieticcaionbbiodatienndvonibentbouetaniiesssanimabubiaamabeen i

PARTIES TO THE PROCEEDINGS AND RULE 29.6

SOE AIEEE \: Acdiicinehishinadireunbicnengtaiintieneteisdncbadiieneninen i

ee ee iitteitbictict ap tatietinvininitsctsintilmianins ill

SE I Fee ee cetts pits bntnartnninteinpitiniaheciaioaneis iv

SUMMARY OF THE REASONS FOR DENYING

I hsiteirinitced Aosultabshcisteessbininincadadencoenctvaimie ae

STATEMENT OF THE CASE’ ..ccvsccoscovecsovecsssovevesssscsoeses 4

REASONS FOR DENYING THE PETITION ............... 11

A. The District Court and the Seventh Circuit

Court of Appeals Properly Applied the Stan-

dards Under Rule 56 and This Court’s Prior _

RI i cccidisccsscchicinnsseibiinrdiacdasininiekiminneavinniaieeee 11

B. Kochert Waived the Second Question Pre-

sented in Her Petition by First Failing to Ad-

vance the Issue in the Seventh Circuit.............. 17

C. There Is No Obligation on Lower Courts to

Offer Explanations of Reasons Why Certain

Evidence Is Insufficient to Create a Genuine

Domeie OF PEGROTIML FE cccecesiscecccesncssevecsersnsseteeseeses 18

D. Kochert Failed to Establish any Genuine Issue

of Material Fact on the Issues of Antitrust In-

jury and Antitrust Standing........... ec eeeeeree 20

E. Kochert Also Failed to Establish any Genuine

Issue of Material Fact on Her Remaining Anti-

Ni insinntsccnatintciivacinidiuinnsctninpcaniaviimeneniices 22

GAIT ciasronsncsncnsntisdsarestinaecesenciintaetenioinesenees 25

TABLE OF AUTHORITIES

Page

CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ............ 17

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...14, 19

Bailey v. Allgas, Inc., 284 F.3d 1237 (11th Cir. 2002)....... 14

Barnes v. Kerr Corp., 418 F.3d 583 (6th Cir. 2005) .......... 13

Bell Atlantic v. Twombly, 126 S.Ct. 2965, cert.

granted (6-26-2006)...........s0seeee SORES A Pce ee Pepe RY SALE EE 16

Brooke Group v. Brown & Williamson Tobacco

CE. BO Die DIG COO) veviicsevsthavsiniisisatedecsiveriniviacsets 25

Brown Shoe Co. v. U.S., 370 U.S. 294 (1962) ............eceeeee 24

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429

OE BE Ca ence creneicktaninbsisesjsivberiahtlemingunciaa 21

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........eeeeeeee 19

City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) ...... 18

City of Springfield v. Kibbe, 480 U.S. 257 (1987)............. 17

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

ee iahacidatikondicinncerunresduintncoaniaiadiawiietens passim

Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 _

Fe Ae Ce Ce, SI i vetcvicersnenennensebenecnntisnuapaunonesnans 14

Duignan v. U.S., 274 U.S. 195 (1927).....<cccscccssssessascosseees 17

Fed. Trade Comm’n v. Freeman Hosp., 69 F.3d 260

GE MNS SUNN E siinecdstrucsidaiseceuscdénceéveschoisendoniniammeioceene 24

Flegel v. Christian Hosp., 4 F.3d 682 (8th Cir. 1993)....... 24

Goebel v. Denver and Rio Grande Western R.R. Co.,

ZIG F.Ba TOSS CIC Cle, DOOD) vcvivcsnsecccsscecccssaneserscsenvcesie 19

TABLE OF AUTHORITIES — Continued

Page

Maiorana v. U.S. Mineral Products Co. (In Re Joint

Eastern & Southern Dis. Asbestos Litig.), 52 F.3d

I i a cenaibanioenddiiinds 15, 16

Minn. Ass’n of Nurse Anesthetists v. Unity Hosp., 5

F. Supp. 2d 694, 707 (D. Minn. 1998), aff’d, 28

ee ee Re Ge Se Piccitinennnchisccneninncinesecsuserertiecetneeeres 24

Morgan v. United Parcel Service of America, Inc.,

380 F.3d 459 I IE SIE scciicerieishastieudaiebsannabtneveineines 14

Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998)............04 17

‘Rebel Oil Co., Inc. v. Atlantic Richfield Co., 146

ie I EE TIES Oi icdciencidsccnctterentoucenpnnasecaveceonties 14

Reeves v. Sanderson Plumbing Products, Inc., 530

SE CIT ai ssiinieacuccniciesicebnuide cebiniienanipbiaielstaiohubainnes 14, 15

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992)............. 18

Tri-Gen Inc. v. Intl Union of Operating Eng’rs,

Local 150, 433 F.3d 1024 (7th Cir. 2006)... eee 20

Wildbur v. Arco Chem. Co., 974 F.2d 631 (5th Cir.

cas, SENSES ehcp i LIRR aleve cn one eee Center e 19

RULES

NE I I Tr sos eeteicen beplaivnisiemnaninsantenteeneneuniouniael 16

I I ane begiinabegeennerinetatnniiabueial 19

SN Sl SENG. EL TLIND cisoncisundhsiaceddcvesvaviionsverstetaasisheweossnesodubuints 15

I I Ts dirlamiinmnnigitomanshbaseeeiniinl 15, 19

UI Te. Tt AT edesicigigummsunieivanioeouniuneuesncdendebbweutedebuabs passim

EE SEE IEE. WEED sn ccicctipnniccsnnvacensirenenenkaweseenee’ 1, 2, 12, 15, 26

TABLE OF AUTHORITIES -— Continued

Page

Rt Se Eee of rine ee med a eee SD CRT COR 1

Ry Mra, Bees Maiti setdinscemacsiebchidbacbdsdeinniteitiedc ets a ct 10

SECONDARY LEGAL RESOURCES

Andrew I. Gavil, After Daubert: Discerning the

Increasingly Fine Line Between the Admissibility

and Sufficiency of Expert Testimony in Antitrust

Litigation, 65 ANTITRUST L.J. 663, 702 (1997).............. 13

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED-

ERAL PRACTICE AND PROCEDURE § 2525, p. 300 (2d

"A ___PSRAR EAS crancoree nia Rita iene ove CAST ON NUS ears SEE MIO 15

Opinion and Expert Testimony in Federal and

State Courts, ALI-ABA Course of Study Materi-

als, MANUAL FOR COMPLEX LITIGATION, (4th ed.)

Se, i, Se CD hii aientnshcinsinicinssntedectcienvtoneses 16

SUMMARY OF THE REASONS

FOR DENYING THE PETITION

The petitioner, Carolyn Kochert, M.D. (“Kochert”) lost

on summary judgment. Contrary to Kochert’s arguments,

this case does not present any unique issue regarding the

relationship between admissibility of evidence under Rule

702 of the Federal Rules of Evidence and “sufficiency”

under Rule 56 of the Federal Rules of Civil Procedure.

Although Kochert attempts to show some “tension” be-

tween these two rules, the facts and evidence before the

lower courts show that Kochert simply failed to establish a

genuine issue of material fact on the elements of her case,

an appropriate and frequent outcome when a case does not

merit further attention by a district court.

The district court determined that there was no

genuine issue of material fact on several essential ele-

ments of Kochert’s case, and the Seventh Circuit affirmed

the district court on the basis that Kochert did not have

any antitrust injury and did not have antitrust standing.

Because there was no genuine issue of material fact,

summary judgment was properly granted and affirmed.

The opinion of the Seventh Circuit is based, not on any

“reweighing” of the evidence, but upon undisputed facts.

There is no significant issue of law or other compelling

reason, as contemplated by Supreme Court Rule 10, for

the Petition for Writ of Certiorari to be granted. The

decision of the Seventh Circuit does not conflict with any

other circuit court decision, does not decide an important

federal question, and does not depart from the accepted

and usual course of judicial proceedings. The issues

decided by the Seventh Circuit simply do not meet the

standards that guide this Court’s exercise of its certiorari

jurisdiction.

Although the district court denied the Defendants’

Daubert’ motions and found that the testimony of Ko-

chert’s experts was admissible, that ruling did not assure

Kochert that there would be genuine issues of material

fact. The expert testimony offered by Kochert may have

been admissible, but it did not establish any genuine issue

of material fact. This Court’s own opinions have previously

clarified the standards surrounding federal summary

judgment practice. The standard is not merely that certain

evidence meets or fails Daubert. The evidence before the

district court must create a genuine issue of material fact

on every element of a plaintiff’s case. The district court

and Seventh Circuit applied the basic rules of law regard-

ing summary judgment under Rule 56 and reached the

correct result.

Kochert’s argument that lower courts have an obliga-

tion to explain their reasons for granting summary judg-

ment in the face of admitted expert testimony is waived

because Kochert did not first present this issue or argu-

ment in support of it to the Seventh Circuit. Although

Kochert did raise and argue the issue regarding the

different standards between Rule 702 and Rule 56, she

never presented any issue of the district court’s obligation

and alleged failure to explain its reasoning in more detail.

In keeping with this Court’s practice of not reviewing

issues which have not first been considered by the court of

appeals, certiorari review of this issue should be denied.

* Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993). -_

Even if the issue had not been waived, both the

Seventh Circuit and the district court provided well-

reasoned and detailed analyses of the facts and the law to

support their decisions, and nothing more is mandated or

required by Rule 56. The decision of the Seventh Circuit

shows precisely the reasons for its opinion. Kochert lacked

antitrust standing and did not sustain an antitrust injury.

The testimony of Kochert’s experts was neither relevant

nor material to the resolution of these issues, nor did such

testimony establish any genuine issue of material fact.

The undisputed evidence, including the testimony of

Kochert’s expert witnesses, showed that two anesthesiol-

ogy groups were in direct competition with each other in

Tippecanoe County until June 1, 2001, and therefore there

could not have been any harm to competition before then.

Kochert began practicing pain management on a full time

basis in August, 2000. Kochert could not have sustained

any antitrust injury in June 2001 because she was no

longer a competitor in the practice of anesthesiology. The

undisputed facts established that Kochert did not have

any antitrust injury as a matter of law.

Neither of the lower courts “weighed” any evidence in

order to find that Kochert lacked antitrust standing. The

undisputed evidence demonstrated that there were other

persons including patients, insurance carriers, and physi-

cians who were in the practice of anesthesiology who

would have been more efficient enforcers of any antitrust

claim than Kochert.

The lower courts also did not weigh the evidence

regarding any of the remaining issues, including the

geographic market and Kochert’s damages experts. Be-

cause the Seventh Circuit affirmed the district court on

the issues of antitrust standing and antitrust injury, the

expert opinions regarding geographic market and damages

were not material to the Seventh Circuit’s decision. In any

event, the testimony of these experts was insufficient to

create any genuine issue of material fact. The Petition for

Writ of Certiorari-therefore presents no novel or compel-

ling issues, and the Petition should be denied.

STATEMENT OF THE CASE

Anesthesiology Associates, Inc. (“AA”) and Home

Hospital (“HH”) entered into a contract effective on Sep-

tember 1, 1994 for AA to be the exclusive provider of

surgical and obstetrical anesthesia services at HH. The

exclusive agreement was in effect continuously through

the time the district court granted summary judgment in

favor of the Defendants. Pet. App. at 2-3.

After the exclusive agreement was executed, AA

offered each anesthesiologist who had privileges at HH,

including Kochert, a subcontract to provide surgical and

obstetrical anesthesia services at HH. Pet. App. at 2. On

December 3, 1997, the members of AA voted unanimously

not to extend Kochert’s subcontract after it expired on

March 1, 1998 because of Kochert’s lack of civility and

history of closing areas for which she was responsible

which could have jeopardized AA’s exclusive contract with

HH. Resp. App. 1-3.

Prior to 1998, HH and St. Elizabeth Medical Center

(“SEMC”) were the two hospitals in Tippecanoe County

where patients could receive inpatient and obstetrical

anesthesia services. The two competing hospitals were

combined in 1998 to form Greater Lafayette Health

Services, Inc. (“GLHS”). Pet. App. at 2. Lafayette Anesthe-

siologists (“LA”) was formed in 1995 and Kochert became a

member of this practice group. Resp. App. at 6-7. On June

1, 1998, LA entered into an exclusive contract to provide

surgical and obstetrical anesthesia services to patients at

SEMC. Pet. App. at 2. Thus, on June 1, 1998, LA, includ-

ing Kochert, was a competitor with AA for outpatient

surgical, inpatient surgical, and obstetrical anesthesia

services for patients receiving such services in Tippecanoe

County, and Kochert was herself the beneficiary of an

exclusive contract for anesthesiology services.

Kochert had a longstanding interest in doing pain

management and discussed her intention of developing a

pain management practice on a full time basis with LA.

Kochert became board certified in pain management in

1999. Kochert opened her own pain management practice,

Advanced Pain Management (“APM”), on August 23, 1999.

Resp. App. at 8-9; Resp. App. at 22-23.

Between 1999 and 2000, pain management accounted

for an increasing percentage of Kochert’s practice. By

August 2000, Kochert devoted herself on a full time basis

to her pain management practice. Pet. App. at 3. Kochert

effectively ceased performing anesthesia services in

August, 2000. Kochert was removed from the LA schedule

for anesthesia services to patients at SEMC beginning in

August, 2000, at her own request, because she felt that her

pain management practice was growing and she would be

unable to continue working on the anesthesia schedule

and still continue to increase her pain management

practice. Resp. App. at 23-24.

Kochert applied for privileges at the Women’s Hospital

in Indianapolis on August 18, 2000. Kochert only sought

privileges for pain management and stated on her applica-

tion, “I do not intend to do surgical anesthesia.” Resp. App.

at 25-26, 28-29. Kochert terminated her membership in LA

in the summer of 2000. Resp. App. at 22. After Kochert left

LA and went into pain management on a full time basis,

she was not in competition with either LA or AA because

she was no longer providing anesthesia services to pa-

tients. Resp. App. at 14.

GLHS advised LA in February, 2001, that GLHS had

decided not to renew LA’s exclusive contract. GLHS

awarded the exclusive contract for anesthesia services at

SEMC to AA in 2001. Pet. App. at 2.

The evidence in this case failed to demonstrate any

actual harm to competition due to any exercise of market

power to increase the nominal price of anesthesia services.

Pet. App. at 27. In March, 1998, AA and LA each had a

standard rate for their services of $43 per unit. Resp. App.

at 11, 5. AA increased its rate to $48 per unit in 1999.

Resp. App. at 5. LA increased its rate to $48 per unit in

1998 or 1999. Resp. App. at 11. AA increased its standard

rate to $53 on March 6, 2000. Resp. App. at 5. LA in-

creased its standard rate to $52 per unit in the fall of

2001, and to $55 per unit on March 1, 2003. Resp. App. at

10-11, 20-21.

Although there were some anecdotal reports of inci-

dents where the anesthesia care was substandard, there

was no evidence to show there was any reduction in the

quality of care provided by AA after March 1, 1998. Pet.

App. at 27. Kochert’s expert witnesses agreed they had no

information that there was any reduction in the quality of

care since January 1, 1998. Resp. App. at 33, 36-37.

There are numerous misstatements of fact in the

Petitioner’s brief. Kochert asserts at page 6 of her brief

that, “Throughout the entire time period of this case,

through the filing of this Petition, petitioner remains in

Lafayette as a competitor in anesthesiology.” In fact,

Kochert ceased being a competitor in anesthesiology when

she decided to pursue her pain management practice on a

full-time basis in August, 2000. Pet. App. at 3; Resp. App.

at 26-27, 30-31.

Kochert asserts at page 7 that March 1, 1998 was “the

first occasion that a competitor in anesthesiology was

excluded from the market.” In fact, Kochert was not

excluded from competition in 1998 as Kochert and the

other LA doctors were direct competitors with AA in

Tippecanoe County when they were awarded the exclusive

contract at SEMC in 1998. The LA doctors also had privi-

leges to provide anesthesia services at the other hospitals

in the counties surrounding Tippecanoe. Resp. App. at 12-

13.

Kochert asserts at page 7 that Walling and Bochenek

“testified to the non-existence of the exclusive arrange-

ment requiring these subcontracts as of March 1, 1998.” In

fact, the evidence showed that the exclusive contract had

been renewed and was in force in 1998. Pet. App. at 2-3.

Kochert asserts at page 7 that as “a result of the

animus that occurred with Petitioner, and the operation of

the exclusive contract, Petitioner was forced to look for

other work in the field of medicine besides anesthesiology

as early as March 1, 1998.” This is incorrect. On June 1,

1998, LA was awarded the exclusive contract to provide

anesthesia services at SEMC. LA still held the exclusive

contract at SEMC and continued to provide anesthesia

services at SEMC in direct competition with AA until June

1, 2001. Kochert voluntarily abandoned her anesthesia

practice when she opened her pain management practice

on a full time basis in August, 2000. Resp. App. at 26-27,

30-31.

Kochert asserts at page 8 that she was “ready, willing

and able to continue practicing anesthesiology full time at

GLHS, as late as 2002-2003.” This, of course, would have

been impossible, as Kochert had already opened her own

pain management practice and was practicing pain man-

agement on a full time basis. Resp. App. at 26-27, 30-31.

Kochert asserts at page 22 that Seaman “established a

spectrum of anticompetitive behavior commencing in 1998

and culminating in 2001.” Neither Kochert nor Seaman

contended that there was any anticompetitive behavior

which established any antitrust injury in 1998 when

Kochert’s subcontract with AA was not renewed. Indeed,

Kochert conceded in her Memorandum in Opposition to

Defendants’ Rule 12 Motions to Dismiss that she did not

have any antitrust injury in 1998. Pet. App. at 23.

Because two separate hospitals had anesthesiol-

ogy practices, there was not an anti-competitive

effect to the market as the result of Dr. Kochert

alone being barred from practicing only at Lafay-

ette Home Hospital. Had she brought an anti-

trust injury at that time, she would have

legitimately faced a challenge for not alleging ‘an

antitrust injury’ for standing purposes; her injury

would have been limited to only her, as in many

of the cases cited by Defendants. Even after La-

fayette Home Hospital and St. Elizabeth merged,

Dr. Kochert was not precluded from half the

market - she and other members of LA could still

practice at St. Elizabeth’s.

Resp. App. at 39-40. Seaman acknowledged that Kochert

did not sustain any antitrust injury from the nonrenewal

of her subcontract with AA in 1998. Resp. App. at 35.

Seaman also conceded that the consolidation of the OB

unit at SEMC with the OB unit at HH did not constitute

an antitrust violation. Resp. App. at 34-35.

Kochert further asserts at page 22 that Respondents’

“exclusive dealing arrangement excluded Petitioner as a

direct competitor and entailed the use of Respondents’

market power.” This is incorrect. The nonrenewal of

Kochert’s subcontract by AA on March 1, 1998, did not

exclude Kochert as a direct competitor. Kochert and the

other LA doctors continued to compete with AA at SEMC

when they were awarded the exclusive contract for anes-

thesia services at SEMC on June 1, 1998. Resp. App. at 13.

The nonrenewal of LA’s exclusive contract at SEMC in

2001 did not exclude LA from continuing to compete with

AA in the geographic market which Seaman defined to

include the counties surrounding Tippecanoe County

because the LA doctors continued to provide anesthesia

services to patients at these hospitals. Resp. App. at 12-13.

By the time GLHS elected not to renew LA’s exclusive

contract at SEMC, however, Kochert was no longer a

competitor in the field of anesthesiology because she was

doing pain management on a full time basis at her own

medical facility. Resp. App. at 26-27, 30-31.

Kochert asserts at page 24 that even if she left the

market before 2001, she would still have standing “since

Seaman’s admitted testimony, combined with that offered

by Minore, Gertler and Ivankovich, found adverse com-

petitive effects as early as 1998.” As previously discussed,

Seaman conceded that the nonrenewal of Kochert’s sub-

contract in 1998 and the consolidation of SEMC and HH

OB units did not, themselves, cause any major anticom-

petitive concern. Resp. App. at 34-35. Minore and Ivank-

ovich’s opinions were limited to expressing opinions

regarding the quality of care. Minore admitted that he

knew nothing regarding the quality of care at SEMC.

Resp. App. at 32-33. Neither Minore nor Ivankovich

expressed any opinion that there had been any change in

the quality of care. Pet. App. at 110-116, 125-127.

Kochert asserts at page 25 that Gertler testified there

was a price increase of 26%. Gertler did not offer any

opinions regarding the specific facts of this case as he

admitted that he had no knowledge of the facts of this

case. Resp. App. at 16-17. The specific facts showed that

the rates AA and LA charged for anesthesia services

remained competitive with each other.

GLHS and John Walling further object to the mis-

statements of fact and additional argument contained in

the Petitioner’s Appendix beginning at page 132. Not only

does the Petitioner improperly extend her allowable page

limitations by continuing her argument in her appendix,

the purported showings of fact are not supported in the

record. The rules of this Court do not contemplate that

additional contentions may be made in the appendix. See

Sup. Cr. R. 14.2.

- REASONS FOR DENYING THE PETITION

A. The District Court and the Seventh Circuit Court

of Appeals Properly Applied the Standards Under

Rule 56 and This Court’s Prior Opinions.

Kochert’s entire argument is predicated upon her

contention that once the district court overruled the

Defendants’ Daubert challenges to the admission of the

testimony of Kochert’s expert witnesses, the district court

and the Seventh Circuit erred in weighing the sufficiency

of their testimony in granting and then affirming the

Defendants’ motions for summary judgment. Kochert

presents in section A of her Petition (pages 11-20) an

academic discussion of the relationship between admissi-

bility and sufficiency of evidence. The fallacy of this

argument is that it simply has no relevance to the deci-

sions reached by either the district court or the Seventh

Circuit.

Kochert asserts in her brief that the district court

“weighed the evidence and concluded that it was not

‘ultimately persuasive.’” In fact, neither the district court

nor the Seventh Circuit “weighed” the evidence. The words

“ultimately persuasive” quoted from the district court

appear in the court's Memorandum and Order dated

November 15, 2004 denying Defendants’ Daubert motions

(“Daubert Order”). Pet. App. at 35. The court did not weigh

the evidence and conclude that the testimony of Kochert’s

experts was not persuasive as Kochert’s Petition suggests.

To the contrary, what the district court actually stated in

its Daubert Order was, “It should be noted at the outset

that the fact that the proffered evidence has passed

muster under a Daubert analysis does not ensure or decide

whether such evidence is ultimately persuasive.” Pet. App.

at 35. Likewise, in the Memorandum and Order dated

December 29, 2004 granting the Defendants’ motions for

summary judgment (“Summary Judgment Order”), the

district court did not weigh the evidence and conclude that

the testimony of Kochert’s expert was not “persuasive.”

The word “persuasive” appears only once in the Summary

Judgment Order, in reference to the prior Daubert Order:

“Though the Court expressed judgments on the reliability

and methodology of expert witness testimony, it did not

pass judgment on whether those opinions were

persuasive or sufficient to create a genuine issue of

material fact.” (Emphasis supplied). Pet. App. at 19. The

district court merely recognized that the evidence may not

be persuasive in the end (i.e. to a jury if the case proceeded

to trial), or sufficient to create a genuine issue of material

fact for purposes of summary judgment.

The fact that the district court found the testimony of

Kochert’s expert witnesses to be admissible did not equate

to a finding that there would be genuine issues of material

fact. The thrust of Kochert’s argument to this Court

surrounds the differing standards between admissibility of

expert testimony under FED. R. Evip. 702 and Daubert and

the required burden of production under FED. R. Civ. P. 56

motions for summary judgment. Kochert then proceeds to

meld these two standards herself by making assertions

such as “[w]hen expert testimony is deemed admissible ...

it is invariably enough to create a dispute about a material

fact.” Petition at 14. Such a sweeping overstatement

betrays Kochert’s own misunderstanding of the production

requirements under Rule 56. There is, of course, no

requirement that all evidence be “expert” to create a

genuine issue of material fact. Nor is there any require-

ment that once expert evidence is deemed admissible, that

it will carry the day on summary judgment. Kochert’s own

citation to this Court establishes this point.

We could no more reliably reach conclusions on

sufficiency through invocation of Daubert’s fac-

tors than reach admissibility decisions through

evaluation of the nonmovant’s total burden of

production. This is not to suggest that if a

party’s motion to exclude expert testimony is

denied, it will later be foreclosed from as-

serting a motion for summary judgment.

Quite to the contrary, it preserves the clarity that

accompanies proper sequencing of the motions_

and makes it more likely that the court will ap-

proach the evidence as a whole at the summary

judgment stage with a greater appreciation for

the role and significance of the expert’s testi-

mony.

Andrew I. Gavil, After Daubert: Discerning the Increas-

ingly Fine Line Between the Admissibility and Sufficiency

of Expert Testimony in Antitrust Litigation, 65 ANTITRUST

L.J. 663, 702 (1997) (emphasis supplied). This distinction

was precisely what the district court recognized in this

case. The district court correctly discerned the different

standards and proper sequencing of its rulings, and

summary judgment was properly granted without any

weighing of the evidence.

Nothing in the cases cited by Kochert alter this

conclusion. In fact, Kochert now acknowledges that there

are at least four cases where the outcome was precisely

the same.’ See Barnes v. Kerr Corp., 418 F.3d 583 (6th Cir.

* In her initial argument to the Seventh Circuit, Kochert suggested

that there were no cases where this event had occurred. Resp. App. at

45. The four cases now cited by Kochert were presented to the Seventh

(Continued on following page)

2005); Morgan v. United Parcel Service of America, Inc.,

380 F.3d 459 (8th Cir. 2004); Bailey v. Allgas, Inc., 284

F.3d 1237 (11th Cir. 2002); and Rebel Oil Co., Inc. v.

Atlantic Richfield Co., 146 F.3d 1088 (9th Cir. 1998).

Although Kochert attempts to distinguish these cases in a

footnote, they all support the district court’s ruling in this

case. Even with admitted expert testimony, the district

court must evaluate all of the evidence in the record to

determine whether there is a genuine issue of material

fact. Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 150 (2000). Like each of the plaintiffs in these

four cases, Kochert simply failed to establish a genuine

issue of material fact, even with the admission of expert

testimony. “An expert witness may be qualified to testify

even though the expert’s conclusions are legally incorrect.”

Rebel Oil, 146 F.3d at 1097. Further, “[t]he test [for the

admission of expert testimony] under Daubert is not the

correctness of the expert’s conclusions but the soundness

of his methodology,” Jd. (quoting Daubert v. Merrell Dow

Pharmaceuticals Inc., 43 F.3d 1311, 1318 (9th Cir. 1995)).

The issue for summary judgment is not whether some

facts are in dispute. There is no “weighing” of the evidence

if the court determines that the evidence as a whole is not

sufficient to go to the jury. “There is no issue for trial

unless there is sufficient evidence favoring the nonmoving

party for a jury to return a verdict for that party.” Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “If the

evidence is merely colorable ... or it is not significantly

probative ... summary judgment may be granted.” Id. at

249-250.

Circuit by the defendants, and, as is the case here, Kochert was then

forced to attempt to distinguish them.

Moreover, the district court must review, not only the

evidence favorable to the nonmovant, but also the “evi-

dence supporting the moving party that is uncontradicted

and unimpeached, at least to the extent that that evidence

comes from disinterested witnesses.” Reeves, 530 U.S. at

151 (reviewing FED. R. Civ. P. 50(a) motion) (quoting

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 2525, p. 300 (2d ed. 1995)).

The Daubert decision itself recognizes that conventional

devices, including judgment as a matter of law and sum-

mary judgment, remain appropriate safeguards “where

the basis of scientific testimony meets the standards of

Rule 702” but the evidence is nevertheless insufficient to

allow the case to proceed to the jury. Daubert, 509 US. at

596.

The decisions of the district court and the Seventh

Circuit were properly decided under these standards. In

the face of undisputed evidence about Kochert’s anesthesi-

ology practice and lack of antitrust injury and standing,

the Seventh Circuit did not weigh the evidence or confuse

the standards between admissibility and the evidentiary

requirements for summary judgment.

The decision of the Seventh Circuit is also not in

“conflict” with other circuits, as Kochert suggests in her

Petition.’ Likewise, Kochert’s attempts to show a “conflict

* In particular, Kochert cites Maiorana v. U.S. Mineral Products,

Co. (In re Joint Eastern & Southern Dist. Asbestos Litig.), 52 F.3d 1124

(2nd Cir. 1995) as being in “direct conflict” with the opinion of the

Seventh Circuit here. This assertion is incorrect. Maiorana is factually

and procedurally dissimilar from the case at hand. The case involved an

alleged workplace exposure to asbestos allegedly causing colon cancer.

The expert testimony at issue was causation testimony based upon

epidemiological studies. The Second Circuit held that the district court

(Continued on following page)

in the circuits” by reference to course materials from a

recent ALI-ABA conference in San Francisco (Petition at 4)

which included submission of a portion of the Manual for

Complex Litigation, is unavailing and untrue to the actual

discussion referenced.’ In the referenced section, the

author discusses the “conflict in the circuits on the proper

interpretation of Daubert’s second prong” related to the

relevance or “fit” of expert scientific evidence to the spe-

cific case. In the present case, the district court did not

confuse the relevance of the scientific evidence to the case

at hand. Indeed, the court ruled that the testimony was

admissible. The quoted “conflict” has nothing to do with

the decisions of the district court or the Seventh Circuit.

Although Kochert’s arguments regarding the intersec-

tion of Rule 702 (including apparently Daubert) and Rule

56 undoubtedly make for interesting scholarly discussion,

the facts and rulings in this case do not present the issue.’

Kochert was unable to submit evidence sufficient to carry

improperly judged the credibility of the witnesses (“ ... the district

court’s analysis .. . was rife with independent assessments of witnesses’

conclusions and comparative credibilities. ...”). 52 F.3d at 1133. In the

instant case, because neither court weighed the evidence or invaded the

province of the jury, there is in fact no “direct conflict” with this case.

* See, Opinion and Expert Testimony in Federal and State Courts,

ALI-ABA Course of Study Materials, MANUAL FOR COMPLEX LITIGATION,

(4th ed.) § 23.25, pp. 202-203 (2006).

* Although Kochert attempts to obtain certiorari review on the

coattails of this Court's decision to grant such review in the case of Bell

Atlantic v. Twombly, 126 S.Ct. 2965, cert. granted (6-26-2006), there is

simply no correlation between that case and the instant case. Bell

Atlantic involves an issue of whether antitrust cases require heightened

pleading standards beyond the traditional “notice pleading” require-

ments of FED. R. Civ. P. 8 for purposes of surviving a motion to dismiss.

That is not an issue here, and except for the fact that both cases are

antitrust cases, there is no similarity.

her burden of production under Rule 56 due to the undis-

puted facts before the courts. None of the experts testified

that Kochert was practicing anesthesiology in 2001 be-

cause it is undisputed that she was not. None of Kochert’s

experts testified that she was eliminated from competition

in anesthesiology in 1998 because she was not. Thus, this

case presents no compelling basis for review of the issues

Kochert identifies, and Kochert’s Petition should be

denied.

B. Kochert Waived the Second Question Presented

in Her Petition by First Failing to Advance the

Issue in the Seventh Circuit.

Kochert, for the first time in her Petition, introduces

an issue regarding the alleged obligation of the district

court and the court of appeals to “give reasons - which

cannot include weighing the testimony - why admissible

expert evidence that reaches all material facts necessary

to establish a claim for relief under applicable law is not

sufficient to avoid summary judgment.” [Petition at i]. The

issue was not a part of any of the briefs or arguments

made by Kochert to the Seventh Circuit. Resp. App. at 41-

47. Because Kochert did not present this issue to the

Seventh Circuit for consideration, the issue is now waived.

This Court has typically declined to consider issues which

were “not pressed or passed upon below.” Duignan v. U.S.,

274 U.S. 195, 200 (1927); see also Adickes v. S.H. Kress &

Co., 398 U.S. 144, 147 (1970). “Where issues are neither

raised before nor considered by the Court of Appeals, this

Court will not ordinarily consider them.” Pa. Dep’t of Corr.

v. Yeskey, 524 U.S. 206, 212-213 (1998), see also City of

Springfield v. Kibbe, 480 U.S. 257, 258 (1987). The reason

for such restraint is that “|t]he Court decides which

questions to consider through well-established procedures;

allowing the able counsel who argue before [it] to alter

these questions or to devise additional questions at the

last minute would thwart this system.” Taylor v. Freeland

& Kronz, 503 U.S. 638, 645-646 (1992).

In City of Oklahoma City v. Tuttle, 471 U.S. 808, 815-

816 (1985), the Respondent failed to allege a nonjurisdic--

tional defect in her response to the Petition for Certiorari

review and the Court concluded that the defect had also

not been raised in the court of appeals. Holding that the

issue was waived, Justice Rehnquist stated for the Court:

“Our decision to grant certiorari represents a commitment

of scarce judicial resources with a view to deciding the

merits of one or more of the questions presented in the

petition.” Id. Given the scarce resources of the Court,

certiorari review of an issue that has been waived is not

appropriate, and Kochert’s request for such review should

be declined.

C. There Is No Obligation on Lower Courts to Offer

Explanations of Reasons Why Certain Evidence

Is Insufficient to Create a Genuine Issue of Ma-

terial Fact.

Even if the issue had not been waived, it has no merit

and thus does not meet the standards for review by this

Court. Kochert’s statement of this issue contains an

erroneous and unsupported conclusion that her expert

testimony “reaches all material facts” (Petition at p. 11),

thus somehow obligating the lower courts to offer an

additional explanation. As has been shown, the expert

opinions do not reach all material facts. Additional find-

ings were therefore unwarranted by the legal issues or the

facts of this case. Both courts provided clear and detailed

explanations of the reasons supporting their decisions and

why the undisputed facts did not create any genuine issue

of material fact. Kochert has offered no convincing reason

why federal courts should be required to address issues or

facts that are not significant to the basis for their deci-

sions. Indeed, as this Court has previously observed:

In our view, the plain language of Rule 56(c)

mandates the entry of summary judgment, after

adequate time for discovery and upon motion,

against a party who fails to make a showing suf-

ficient to establish the existence of an element

essential to that party’s case, and on which that

party will bear the burden of proof at trial. In

such a situation, there can be “no genuine issue

as to any material fact,” since a complete failure

of proof concerning an essential element of the

nonmoving party’s case necessarily renders all

other material facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).

Thus, there is no obligation for a court to address a fact

which becomes immaterial when a party with the burden

of proof fails to establish that there is a genuine issue of

material fact on an essentia) element of her case. This

Court has further expressly stated that “[t]here is no

requirement that the trial judge make findings of fact.”

Anderson, 477 U.S. at 250. This is consistent with FED. R.

Civ. P. 52(a) which states: “Findings of fact and conclusions

of law are unnecessary on decisions of motions under Rule

12 or 56....” Nor do the cases cited by Kochert support

any additional requirements with respect to rulings on

motions for summary judgment. See Goebel v. Denver and

Rio Grande Western R.R. Co., 215 F.3d 1083, 1088 (10th

Cir. 2000) (addressing a Daubert ruling, not a ruling on

summary judgment); Wildbur v. Arco Chem. Co., 974 F.2d

631, 644 (5th Cir. 1992) (specifically rejecting plaintiff’s

argument that district court’s failure to list or refer to each

factual and legal argument means court did not consider

these facts or arguments).

Moreover, both the district court and the Seventh

Circuit provided extensive explanations of the reasons for

their decisions. The district court’s Summary Judgment

Order addresses all counts of Kochert’s complaint and

provides a thorough explanation of the basis for the court’s

ruling. The Seventh Circuit likewise issued an extensive

opinion explaining in detail the basis for affirming the

district court. It is difficult to conceive what more should

be required. Although this issue has been waived for

failure to first present the issue to the Seventh Circuit,

Kochert’s arguments on this issue are without merit. In

either event, certiorari review is not justified.

D. Kochert Failed to Establish any Genuine Issue

of Material Fact on the Issues of Antitrust Injury

and Antitrust Standing.

Both the district court and the Seventh Circuit ruled

that the undisputed evidence established that Kochert did

not sustain any antitrust injury. In considering the issue,

the Seventh Circuit observed that the threshold question

was whether Kochert had suffered an antitrust injury. In

order to support her claim of an antitrust injury, Kochert

was required to demonstrate that her “claimed injuries are

‘of the type the antitrust laws were intended to prevent’

and ‘reflect the anticompetitive effect of either the viola-

tion or of ar.cicompetitive acts made possible by the viola-

tion.’” Tri-Gen Inc. v. Int'l Union of Operating Eng’rs,

Local 150, 433 F.3d 1024, 1031 (7th Cir. 2006) (quoting

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477

(1977)).

The Seventh Circuit recognized that Kochert’s anti-

trust injury theory was based upon her contention that

there was a continuum of anticompetitive events begin-

ning in 1998. After distinguishing the cases relied upon by

Kochert in support of her continuum theory, the Seventh

Circuit held that there was no evidence, including the

testimony of Kochert’s expert, Seaman, to support her

contention that any of the actions taken by GLHS prior to

2001 had any anticompetitive effects, or could support any

claim for an antitrust injury. Pet. App. at 11-12; Pet. App.

at 14.

Given the total absence of evidence to establish any

antitrust injury prior to 2001, the Seventh Circuit then

considered the record to determine whether Kochert had

sustained any antitrust injury when GLHS awarded the

exclusive contract at SEMC to AA effective June 1, 2001.

In order to establish an antitrust injury, it was necessary

for Kochert to show that the termination of the exclusive

contract between SEMC and LA in 2001 was the cause in

fact of Kochert’s injuries. The Seventh Circuit recognized

that this event did not cause her any injury because her

anesthesiology practice was “nonexistent by this point.”

Pet. App. at 14-15. Thus, the Seventh Circuit did not

weigh the testimony of Seaman or any of Kochert’s other

experts in holding that Kochert failed to establish any

antitrust injury.

In addition to finding that Kochert failed to sustain

any antitrust injury, the Seventh Circuit also upheld the

findings and conclusions of the district court that Kochert

lacked antitrust standing as a matter of law. Once again,

the decisions of the courts below that Kochert failed to

establish antitrust standing were based upon the undis-

puted evidence. The Seventh Circuit observed that the

existence of an identifiable class of persons whose self-

interest would normally motivate them to vindicate the

public interest diminishes the justification for allowing a

more remote party to sue for antitrust. Pet. App. at 15-16.

There was no dispute that the LA doctors had a much

more direct interest which would motivate them to protect

the public interest than did Kochert. In 2001, the LA ~

doctors, unlike Kochert, were still practicing anesthesiol- —

ogy. Id. Furthermore, consumers or insurers would also be

more efficient claimants if AA and GLHS were truly

manipulating the market in order to raise prices and drive

down the quality of care. The fact that Kochert was no

longer practicing anesthesiology demonstrated that the

causal connection between her injury and the antitrust

violation was “tenuous at best.” Pet. App. at 16. Thus, as

with the issue of antitrust injury, the Seventh Circuit

based its decision regarding antitrust standing on the

evidence which was undisputed.

E. Kochert Also Failed to Establish any Genuine

Issue of Material Fact on Her Remaining Anti-

trust Claims.

Because of its holding that Kochert failed to establish

either antitrust injury or antitrust standing, the Seventh

Circuit noted that it was “ultimately unnecessary” to

consider whether there was any credible evidence of the

type of anticompetitive effects alleged by Kochert. Pet.

App. at 17. It therefore was not necessary for the court of

appeals to even consider, let alone weigh, the testimony of

Gertler whether there had been any anticompetitive

increase in price, or the testimony of Minore and Ivankovich

whether there had been any anticompetitive actions which

had decreased the quality of care. Their testimony simply

was not at all material to the decision of the Seventh

Circuit. Despite recognizing that it was not necessary to

consider these issues or this testimony, the Seventh

Circuit nonetheless observed that “the record is bereft of

any credible evidence of the type of anticompetitive effects

alleged by Kochert.” Jd.

The undisputed evidence established that there was

no increase in any of the prices charged for anesthesia

services. Pet. App. at 17. It likewise was unnecessary for

the district court or the Seventh Circuit to weigh the

testimony of Gertler regarding whether the actions of

GLHS had caused any anticompetitive increase in price.

Gertler admitted that he had no knowledge of the facts of

this case. Resp. App. at 16-18. He admitted he did not

know if the hospitals even had an exclusive contract, or

what kind of contract they had or what happened to

prices. Resp. App. at 18-19. His opinions were based

entirely upon a paper which he had authored. Resp. App.

at 15-16. :

Kochert contends that she established antitrust

injuries as early as 1998 because there had been a de-

crease in the quality of care based upon the testimony of

her experts, Minore and Ivankovich. Neither the testi-

mony of Minore nor Ivankovich established any decrease

in the quality of care as a result of any exercise in market

power. The Seventh Circuit recognized this failure. Pet.

App. at 17. Further, Seaman conceded that there was no

testimony or evidence that the quality of care had de-

creased after March 1, 1998. Resp. App. at 36-37. Without

comparative information, evidence which is critical of the

quality of care is insufficient to establish an antitrust

violation as a matter of law. Flegel v. Christian Hosp., 4

F.3d 682, 688-689 (8th Cir. 1993); Minn. Ass’n of Nurse

Anesthetists v. Unity Hosp., 5 F. Supp. 2d 694, 707 (D.

Minn. 1998), aff'd, 28 F.3d 655 (8th Cir. 2000).

Kochert’s only expert who offered any opinion regard-

ing the scope of the geographic market was Seaman. The

proper geographic market is “that geographic area ‘to which

consumers can practically turn for alternative sources of

their product and in which the antitrust defendants face

competition.” Fed. Trade Comm’n v. Freeman Hosp., 69

F.3d 260, 268 (8th Cir. 1995). A determination of the proper

geographic market must be based on the “commercial

realities of the industry,” Brown Shoe Co. v. U.S., 370 U.S.

294, 336 (1962), and therefore, must involve a dynamic

analysis of where consumers could practically go, not where

they actually go. Freeman Hospital, 69 F.3d at 268-272.

The district court explained that Seaman’s opinions

regarding geographic market failed to create a genuine issue

of material fact for two reasons. First, Seaman’s own data

failed to establish a geographic market using the E-H test.

Seaman based his analysis on the Elzinga-Hogerty test (the

E-H test) which calculates a Lifo, a percentage of patients

who come from within the geographic area who go to GLHS,

as well as the Lofi, the percentage of patients from outside

the geographic area who go to GLHS. Pet. App. at 28. The

district court found that Seaman’s definition of the geo-

graphic market was too narrow. In doing so, the district

court did not weigh Seaman’s testimony. To the contrary,

the district court simply found that Seaman’s own data

failed to support his conclusions. When an expert opinion

is not supported by sufficient facts to validate it in the

eyes of the law, or other facts contradict or render the

opinion unreasonable, it cannot support a jury’s verdict.

Brooke Group v. Brown & Williamson Tobacco Corp., 509

U.S. 209 (1993). Second, the district court held that Sea-

man’s analysis of the geographic market ignores the com-

mercial realities of the Lafayette, Indiana area. Pet. App. at

30.

Seaman admitted that he did not do any investigation

or analysis to determine the quality of the physicians,

staff, equipment or facilities at the hospitals in the coun-

ties surrounding Lafayette. Resp. App. at 37-38. Seaman’s

own data shows that a significant number of patients

living within Seaman’s proposed eight county area travel

to other hospitals outside the area as almost 24% of the

persons living in Tippecanoe, Montgomery, and Clinton

Counties already go to hospitals in Marion County for

hospital services. Pet. App. at 30-31. In addition, the

hospitals in Marion County are very competitive with

GLHS. St. Vincent Hospital and Methodist Hospital in

Indianapolis are larger than GLHS and have a well

trained staff. These hospitals in Indianapolis compete with

GLHS for the more complex procedures. Resp. App. at 49.

Thus, contrary to Kochert’s protestations, the evidence

in this case was simply insufficient to create any genuine

issue of material fact on Kochert’s antitrust claims, and

the decisions of the lower courts were based upon sound

considerations and without any weighing of the evidence.

The Petition should therefore be denied.

CONCLUSION

An analysis of each of the issues decided by the district

court and the Seventh Circuit shows that neither court

weighed the opinions or testimony of Kochert’s experts in

reaching their decisions that the Respondents were entitled

to summary judgment. To the contrary, both courts deter-

mined that, notwithstanding the admissibility of this

evidence, the testimony and opinions of Kochert’s experts

failed to create any genuine issue of material fact. The

district court correctly recognized the distinction been the

admissibility of the expert testimony and the evidentiary

burdens of the parties in considering and granting sum-

mary judgment. Kochert confuses the standards by errone-

ously suggesting the mere admission of expert testimony

should have equated to a finding of a genuine issue of

material fact. Both courts carefully explained their reasons

why the undisputed evidence demonstrated there were no

genuine issues of material fact, and Kochert waived any

claims to the contrary by failing to present them to the

Seventh Circuit. Therefore, this case does not present any

novel issue or analysis of Rule 56 of the Federal Rules of

Civil Procedure or Rule 702 of the Federal Rules of Evi-

dence. Accordingly, and for all of the reasons stated above,

GLHS and Walling respectfully request that Kochert’s

Petition for Writ of Certiorari be denied.

Respectfully submitted,

LARRY R. FISHER

Counsel of Record

STUART & BRANIGIN LLP

300 Main Street, Suite 900

P.O. Box 1010

Lafayette, IN 47902-1010

Telephone: 765-423-1561

Facsimile: 765-742-8175

Counsel for the Respondents,

Greater Lafayette Health

Services, Inc. and John Walling

App. 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CAROLYN KOCHERT, M.D., )

Plaintiff,

Vv. )

LAFAYETTE HOME HOSPITAL, ) CAUSE NO.

INC., ANESTHESIOLOGY ) 4:98 CV 0053 AS

ASSOCIATES, P.C., and )

KENNETH J. BOCHENEK, M.D.,

Defendants. )

DEPOSITION OF KENNETH J. BOCHENEK, M.D.

The deposition upon oral examination of KENNETH

J. BOCHENEK, M.D., a witness sworn to before me,

Vickie Switzer, a notary public in and for the State of

Indiana, taken on behalf of the defendants, at the Law

Offices of Stuart & Branigin, 300 Main Street, Suite 800,

Lafayette, Tippecanoe County, Indiana, on the 8th day of

April, 1999, pursuant to the Indiana Rules of Trial Proce-

dure with written notice as to the time and place thereof.

« * *

[206] Q. What is the date of the meeting for which

these minutes were created?

A. December 3, 1997, 6:00 p.m.

Q. Is this the meeting that you earlier referred to

that’s the one in which you discussed the possibility of not

renewing the contract?

A. Yes, I believe it is.

App. 2

Q. Was there discussion at this meeting about not

renewing Dr. Kochert’s contract?

* * *

[207] Q. Do you recall what anyone else said during

this meeting?

A. A month and a half ago. It was the conclu-

sion as is written in the minutes here that an exten-

sion would not be offered to Dr. Kochert. What each

individual said at that meeting. I’m sorry I do not

know.

* * *

[208] Q. Did you determine her work performance

was sub-par?

WITNESS: Did I or did the corporation?

[209] MR. FOSTER: Either one. I'll take any

answer at this point.

A. My personal feelings were that it was unac-

ceptable.

Q. Could you tell me why?

A. Dr. Kochert is rude to patients. She’s abra-

sive and abrupt with physicians. She is rude to

hospital administration, and she is abrasive, conde-

scending and rude to hospital staff members.

Q. Is that all the reasons in your mind?

A. In my mind that’s enough.

* * *

App. 3

[211] Q. No. Is there anything else sufficient or more

than sufficient?

A. Yes. Her repeated attempts to undermine

the success of the contract.

Q. Could you please be specific?

A. Be specific? Her repeated attempts at leav-

ing an assigned area at Home Hospital to go to St.

Elizabeth’s Hospital to perform procedures. The

documented attempt and performance of abandon-

ing a call position at Home Hospital which is in

direct conflict with her independent contractor’s

contract which forbid her doing so. Her actions

intimidating patients to the point that they feared

for their lives. That’s a quote.

* * *

[212] Q.. - So far you have talked about repeated

attempts to undermine, repeated leaving of areas to go to

St. Elizabeth’s, abandoning an on call position.

A. Further undermining the morale of the

corporate members and independent contractor

members by substituting a false vacation book in

the surgical staffing office of Home Hospital. And is

there a reason that you are limiting it at the De-

cember date?

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CIVIL NO. 4:01CV27AS

CAROLYN G. KOCHERT, M.D.,

Plaintiff,

Vv. )

GREATER LAFAYETTE HEALTH ?

SERVICES, INC., d/b/a ST. ELIZA-?

BETH MEDICAL CENTER And

d/b/a LAFAYETTE HOME HOS-

PITAL, ANESTHESIOLOGY

ASSOCIATES, P.C., JOHN WALL-

ING and KENNETH BOCHENEK, ?

M.D.,

Defendants.

)

~~ ee” — ~S’ Sw

The continuing deposition upon oral examination of

KENNETH BOCHENEK, M.D., a witress sworn to before

me, Vickie Switzer, a notary public in and for the State of

Indiana, taken on behalf of the plaintiff, at the law offices

of Stuart and Branigin; 300 Main Street, Suite 900,

Lafayette, Indiana, on the 4th day of November, 2003,

pursuant to the Indiana Rules of Trial Procedure with

notice as to the time and place thereof.

* * *

App. 5

DEP. EXHIBIT 146

COMMERCIAL INSURANCE

9/1/94 — 2/1/97 $41.00

21/1/97 — 1/22/99 $43.00

1/22/99 — 3/6/00 $48.00

3/6/00 — $53.00

App. 6

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

‘HAMMOND DIVISION AT LAFAYETTE

CIVIL NO. 4:01CV27AS

CAROLYN G. KOCHERT, M.D.,

Plaintiff,

vs.

GREATER LAFAYETTE HEALTH ?

SERVICES, INC., d/b/a ST. ELIZA-?

BETH MEDICAL CENTER And ?

d/b/a LAFAYETTE HOME HOS. ?

PITAL, ANESTHESIOLOGY )

ASSOCIATES, P.C., JOHN WALL- ?

ING and KENNETH BOCHENEK,

MD.,

)

Defendants.

)

DEPOSITION OF BARBARA CONARD, M. D.

The deposition upon oral examination of BARBARA

CONARD, M. D., a witness sworn to before me, Maria S.

Estes, a notary public in and for the State of Indiana,

taken on behalf of the defendant, at the Law Offices of

Stuart & Branigin, 300 Main Street, Lafayette, Indiana,

on the 8th day of October, 2003, pursuant to the Indiana

Rules of Trial Procedure with notice as to the time and

place thereof.

* * *

[103] Q. Can you identify this document?

A. Okay, Articles of Organization of Lafayette

[104] Anesthesiologists LLC.

App. 7

MR. ZAREMSKI: Is it 108? What was the one

that were were just —

MS. WOODS: 108 -

_ MR. ZAREMSKI: -— that we were just -

MS. WOODS: 107.

MR. ZAREMSKI: 107.

A. Deposition 108 - Articles of ae of

Lafayette Anesthesiologists LLC.

Q. Doctor, I'd like you to just look at the second page

of this document. Do you recognize Dr. Farrell’s signature

on that?

A. Yeah.

Q. And this document indicates that the Articles of

the Organization were executed on March 16, 1995,

correct? On the second page, doctor —

A. Yes.

App. 8

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CASE NO, 4:01CV0027AS

CAROLYN G. KOCHERT, M.D.,

Plaintiff,

vs.

)

GREATER LAFAYETTE HEALTH ?

SERVICES, INC., d/b/a ST. )

ELIZABETH MEDICAL CENTER ?

And d/b/a LAFAYETTE HOME )

HOSPITAL, ANESTHESIOLOGY ?

ASSOCIATES, P.C., JOHN )

WALLING and KENNETH )

BOCHENEK, M_.D., ‘

Defendants.

DEPOSITION OF CAROLYN KOCHERT

The deposition upon oral examination of CAROLYN

KOCHERT, a witness sworn to before me, Maria S. Estes,

a notary public in and for the State of Indiana, taken on

behalf of the defendant, at the Law Offices of Stuart &

Branigin, 300 Main Street, Lafayette, Indiana, on the 4th

day of September, 2002, pursuant to the Indiana Rules of

Trial Procedure with notice as to the time and place

thereof.

a * *

{15) Q@. Okay. When was Advanced Pain Manage-

ment formed?

App. 9

A. Around August of ’99, but we actually had a name

before we actually did all the paperwork for it. So, ’'m not

sure exactly when we did all the paperwork —

+ * *

App. 10

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CIVIL NO. 4:01CV23AS

CAROLYN G. KOCHERT, M.D.,

Plaintiff,

GREATER LAFAYETTE HEALTH

SERVICES, INC., d/b/a ST.

ELIZABETH MEDICAL CENTER

And d/b/a LAFAYETTE HOME

HOSPITAL, ANESTHESIOLOGY

ASSOCIATES, P.C., JOHN

WALLING and KENNETH

BOCHENEK, M.D.,

Defendants.

me meee ee ee

The continuing deposition upon oral examination of

JOSEPH FARRELL, M.D., a witness sworn to before me,

Vickie Switzer, a notary public in and for the State of

Indiana, taken on behalf of the plaintiff, at the Unity

Medical Center, 1411 South Creasy Lane, Lafayette,

Indiana, on the 20th day of October, 2003, pursuant to the

Indiana Rules of Trial Procedure with notice as to the time

and place thereof.

* - io

[40] Q. What was the rate that your group was

charging before it raised to $55 per unit?

A. I believe it was $52 per unit.

App. 11

Q. When did the rate of $52 per unit go into [41]

effect?

A. 2001.

Q. Do you recall when in 2001 that rate went into

effect?

A. I believe in the fall. I don’t recall specifi-

cally.

* * *

[43] Q. Prior to increasing your group’s rate to $52

per unit in the fall of 2001, what was your group’s rate?

A. $48 per unit.

Q. Do you recall when your group raised its rates to

$48 per unit?

A. Would have been just prior to June of ’98. At

{44] that time, I’m not even sure we raised it at that

time. But that’s what it was going into the contract

with St. Elizabeth Hospital.

Q. I think your contract is one of the exhibits.

Perhaps to refresh your recollection, I believe that when

your group entered into the exclusive contract with St.

Elizabeth, the contract provided that as of June 1, 1998

your group’s per unit charge was $43; does that sound

correct?

A. Okay, that could well be.

Q. And it was sometime after that that your group

increased its rate to $48 per unit; do you recall that? While

the contract was still in effect.

App. 12

A. If it was $43 to start with, it seems that

sometime during that period we did increase it to

$48.

* * *

[47] Q. Now I understand that your group has a

contract at this time with St. Clare Hospital; is that

correct?

A. Yes.

Q. And essentially what are the services that you are

expected and required to provide to St. Clare under your

contract at St. Clare?

A. Coverage of the anesthesia needs of the

hospital in the operating room and the obstetrical

suite and elsewhere it’s required.

Q. So this would be coverage of outpatient surgical

anesthesia, inpatient surgical anesthesia, and OB anvs-

thesia, correct?

A. Yes.

[48] Q@. How many days a week is your group ex-

pected to provide that ievel of service?

A. Usually six owt of seven.

* * *

[49] Q. Are you currently providing anesthesia

services at St. Vincent Hospital in Frankfort?

A. Yes.

App. 13

[50] Q. And the same doctor who provides surgery

for outpatient anesthesia would also be qualified to pro-

vide services for inpatient or OB services at St. Vincent in

Frankfort, correct?

A. Yes.

Q. Other than yourself, are there any other doctors

from LA who are also providing anesthesia services at St.

Vincent’s in Frankfort?

A. Dr. Lempke and Dr. Gray.

* * *

[69] Q. When did you begin doing work at Logans-

port?

A. InI believe February of 2002, late February.

Q. Which of the doctors from LA worked at Logans-

A. All of us.

Q. Did your group have a contract with Logansport?

A. Yes.

+ x» *

{89] Q. When Lafayette Anesthesiologists got the

exclusive contract in June of 1998, I understand there

were five anesthesiologists who were members of your

group; is that correct?

A. Yes.

App. 14

{117} Q. After Dr. Kochert went into pain manage-

ment [118] on a full time basis did you regard Dr. Kochert

as a competitor of LA?

MR. FCSTER: Object to the extent it asks the

witness for a legal conclusion. Go ahead.

A. Probably not.

Q. And would that be because for all intents and

purposes she was no longer in the business of providing

anesthesia services for patients?

A. She was providing pain management ser-

vices. It’s a specialty area of anesthesia services and

she was not providing OR services. So in that sense

she wasn’t a competitor.

* 7 +

App. 15

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION OF LAFAYETTE

CAROLYN G. KOCHERT, M.D., )

Plaintiff,

VS. ) No. 4:01CV0027AS

GREATER LAFAYETTE .

HEALTH SERVICES, INC.,

d/b/a ST. ELIZABETH MEDICAL ?

CENTER and d/b/a LAFAYETTE

HOME HOSPITAL ANESTHE-

SIOLGY ASSOCIATES, P.C.,

JOHN WALLING, and

KENNETH BOCHENEK, M.D.,

Defendants.

ee eee eee ee

DEPOSITION OF PAUL J. GERTLER, PH.D.

Berkeley, California

Friday, February 6, 2004

Reported by:

JODI L. BOSETTI, RPR

CSR No. 11316

JOB No. 49390

* * *

{10} Q Okay. Well, what were you asked to do in this

case, Doctor?

A I was asked to comment on my research.

Q Okay. And what research is that?

A It’s the paper, “Strategic Integration of Hospitals

and Physicians.”

App. 16

Q And were you asked only to comment on that

paper or your research in general?

A Only on that paper.

Q_ Tell me how that paper came to be written?

* * *

[44] Q So am I correct, an individual practice asso-

ciation is some type of entity that is formed between

physicians and hospitals in order to hold managed care

contracts?

A Individual practice associations are a form of

physician groups. And when they also include hospitals in

them, their primary purpose is to deal with joint contract-

ing with managed care organizations.

Q Do you know if there are any such groups at issue

in this case?

A_ Ido not know.

Q And so, of course, if there are not, anything that

you say about these IPAs would not be relevant to this

case, correct?

MR. ZAREMSKI: Objection. That’s not what the

doctor is saying, nor the fact about not seeing an exclusive

contract. So please don’t put words in the doctor’s mouth.

Subject to that objection, you can answer if you can,

Doctor.

THE WITNESS: Now, could you —

App. 17

MS. WOODS: I’m going to move to strike the

speaking objection, and if you do it again we'll call [45] the

judge.

MR. ZAREMSKI: If you can appropriately ask

questions and not put words in the witness’s mouth then

we will all be better off. So let’s proceed.

BY MS. WOODS:

Q Answer the question, please, Doctor?

A Can you repeat it again, please.

Q She'll read it back.

(Record read.)

MR. ZAREMSKI: Continuing objection.

THE WITNESS: Well, I don’t know anything

about this case. I don’t know the facts of the case.

* * ok

[60] Q Do you have any —

A I should preempt, I’ve answered the question that

I have no information about this case and none has been

provided to me. So any questions you might ask about

relating specifically to these contracts or this hospital I

can’t answer.

Q Okay.

A So that might save us some time. But if you want

to ask it, then you can.

Q J want to make sure that we’ve made the record on

this then. So you are basically saying that you’ve written

App. 18

this paper, but you have no opinion as to how this paper

relates to the particular facts of this case; is that correct?

MR. ZAREMSKI: Objection. That’s not what

he’s testified to.

THE WITNESS: I said I don’t know the facts of

this case. I don’t know the particular facts of the specific

contract. What I can say is that unless it is a fully inte-

grated organization type, which is such in my paper, it is

not my belief that any relationship could lead to efficiency

or quality improvements unless it is that contract.

* * *

[103] Q Okay. But in any particular instance — and if

we can find ourselves for purposes of this litigation, since

this is what this case is about, to the actual prices that are

charged in Lafayette, Indiana by the two hospitals there —

you're not able to tell us whether those prices are a result

of the presence of any particular contracts those hospitals

may have with physicians, correct?

MR. ZAREMSKI: Objection.

THE WITNESS: I don’t know anything about

the Lafayette market.

BY MS. WOODS:

Q Okay.

A I want to be more precise. I don’t know the [104]

facts of the case. I don’t know even if there was a contract.

Q Or what kind of contract is was?

A Correct.

App. 19

Q Or what happened to prices?

A Correct.

App. 20

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION OF LAFAYETTE

CIVIL NO. 4:01CV27AS

CAROLYN G. KOCHERT, M.D.,

Plaintiff,

GREATER LAFAYETTE

HEALTH SERVICES, INC.,

d/b/a ST. ELIZABETH MEDICAL

CENTER And d/b/a LAFAYETTE

HOME HOSPITAL ANESTHESI-

OLGY ASSOCIATES, P.C.,

JOHN WALLING, and

KENNETH BOCHENEK, M.D.,

Defendants.

le ee ee ee a ee ee

The deposition upon oral examination of CYNTHIA

MEYER, a witness sworn to before me, Vickie Switzer, a

notary public in and for the State of Indiana, taken on

behalf of the defendants, at Unity Medical Center, Creasy

Lane, Lafayette, Indiana, on the 21st day of October, 2003,

pursuant to the Indiana Rules of Trial Procedure with

notice as to the time and place thereof.

* * *

[43] Q When did LA go to the standard charge of

$55.00 per unit?

A_ I believe it was March of 2003.

« * *

App. 21

[52] Q When did you raise your rates to $52.00 per

unit?

A That was September lst of 2001.

* * *

App. 22

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CIVIL NO. 4:01CV27AS

CAROLYN G. KOCHERT, M. D.,

Plaintiff,

vs.

GREATER LAFAYETTE

HEALTH SERVICES, INC.,

d/b/a ST. ELIZABETH MEDICAL

CENTER And d/b/a LAFAYETTE

HOME HOSPITAL ANESTHESI-

OLGY ASSOCIATES, P. C.,

JOHN WALLING, and

KENNETH BOCHENEK, M. D.,

Defendants.

ll i i ee ee ee oe a a oe

DEPOSITION OF CAROLYN KOCHERT

The deposition upon oral examination of CAROLYN

KOCHERT, a witness sworn to before me, Maria S. Estes,

a notary public in and for the State of Indiana, taken on

behalf of the defendant, at the Unity Healthcare, 1345

Unity Place, Lafayette, Indiana, on the 19th day of No-

vember, 2003, pursuant to the Indiana Rules of Trial

Procedure with notice as to the time and place thereof.

* * *

[46] Q Now, when you and Dr. Bigler were talking

about opening your practice, and if I’m not mistaken, it

was by August 1 that you had formed your practice and

left Lafayette [47] Anesthesiologists, correct?

A No.

App. 23

Q No? What’s the date?

A We actually opened our office on August 23rd, ’99.

Q Okay.

A And we did pain part-time and anesthesia part-

time for at least a year and did not separate from LA until

summer of 2000.

* * *

{250} Q Okay. Doctor, did there come a time when

you were no longer on the schedule at St. [251] Elizabeth

Hospital?

WITNESS: Schedule for elective cases?

MS. WOODS: For — yes, the surgery schedule

for the anesthesia schedule?

A Yes.

Q And when was that?

A Probably starting September or August of 2000.

Q Okay. Did you have a discussion with Dr. Farrell,

who was preparing the schedules at the time, as to

whether you should appear on the August schedule in

2000?

A Actually, I think I was on the — I don’t remember

which schedule it was, but yes, there was a discussion

with Dr. Farrell.

Q Okay. I’m going to show you what’s been previ-

ously marked, and this exhibit is 136. And those are some

schedules that Dr. Farrell produced during his deposition.

App. 24

I'll direct your attention to the last page, which is the

August 2001 schedule. I think you'll see that —

WITNESS: August 2000?

MS. WOODS: Yes.

Q - that your name does not appear on that [252]

schedule.

A That’s correct.

Q Okay, and Dr. Farrell testified that you were not

on the August 2000 schedule or on the schedule on a

regular basis after August of 2000.

MR. ZAREMSKI: I’m going to object insofar as

Dr. Farrell’s testimony speaks for itself.

MS. WOODS: Well, I’m sure it does but we’re

just trying to establish a context and move this along,

Miles.

Q So did you have any reason to believe that you

were on the schedule after August of 2000?

A No.

App. 25

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CIVIL NO. 4:01CV0027AS

CAROLYN G. KOCHERT,

Plaintiff,

GREATER LAFAYETTE

HEALTH SERVICES, INC.,

d/b/a ST. ELIZABETH MEDICAL

CENTER and d/b/a LAFAYETTE

HOME HOSPITAL ANESTHESI-

OLGY ASSOCIATES, P.C.,

JOHN WALLING, and

KENNETH BOCHENEK, M.D.

ee eee ee ee”

The continuation of the deposition of CAROLYN G.

KOCHERT, a witness sworn to before me, Vickie Switzer,

a notary public in and for the State of Indiana, taken on

behalf of the defendants, at the Unity Healthcare, 1345

Creasy Lane, Lafayette, Indiana, on the 1st day of Decem-

ber, 2003, pursuant to the Indiana Rules of Trial Proce-

dure with notice as to the time and place thereof.

* . *

[121] Q Can you identify Exhibit 203, please?

A It’s a letter from Women’s Hospital in Indianapo-

lis.

Q_ It’s a three-page exhibit.

App. 26

A Well the first part is a letter from Nan Todd to St.

Elizabeth. The second one is application, consent and

release, and the third one is clinical privileges for anesthe-

siology at Women’s Hospital in Indianapolis.

Q Is that your signature on the application for

privileges?

A Yes, it is.

Q What is the date of the application for privileges?

A 8/18/00.

Q Now does that help refresh your recollection that in

fact you did seek privileges at one hospital in Marion

County?

A I don’t even remember doing this but obviously I

did.

Q What was your reason for seeking privileges at

Women’s Hospital in Indianapolis?

A I don’t even know. I don’t remember — honest [122]

to God, I don’t remember this.

Q What privileges were you seeking?

A Anesthesia. That’s what it says, anesthesia privi-

leges. But “I do not intend to do surgical anesthesia.” I

think this must have been for pain management.

* * *

[139] Q So by August 1 of 2000 your pain manage-

ment practice had advanced to the point where you elected

App. 27

to open up a pain management practice apart from LA and

do that as a full time basis, correct?

A Yes.

App. 28

WOMEN’S HOSPITAL OF INDIANAPOLIS

CLINICAL PRIVILEGES

ANESTHESIOLOGY

“In emergency, any member of the Medical Staff to the

degree permitted by license and regardless of service or

staff status or lack thereof, shall be permitted and assisted

to do everything possible to save the life of a patient, using

every facility of the Hospital necessary, including calling

for any consultation necessary or desirable.” (Medical Staff

Bylaws, Article VII, Section 3)

I do hereby request the following privileges indicated. I

understand that in exercising any clinical privilege

granted, I am constrained by relevant Hospital and

Medical Staff Policies requiring consultations for difficult

diagnoses, conditions of extreme severity, and proce-

dures/conditions which are beyond my area of specializa-

tion and expertise, by Hospital policies concerning the

types of patients for whom it does not have appropriate

resources (facilities, equipment or personnel) to treat

except on an emergency basis, and by such special policies

as may from time to time be adopted.

Spinal anesthesia (Saddle Block) for vaginal delivery

¥ Intravenous regional anesthesia (Bier Block)

¥ Management of problems in pain relief by regional

anesthetic

¥ The support of life functions under stress of anes-

thetic and surgical manipulations

Y The clinical management of the patient unconscious

secondary to anesthesia

¥ The application of specific methods of respiratory therapy

App. 29

¥ Plexus anesthesia

¥ Management of problems in pain relief by regional

anesthetic

_¥_ The management of procedures for rendering a patient

insensible to pain and emotional stress during surgical,

obstetrical and certain medical procedures

_¥_ The management of problems in pain relief

_¥_ The management of problems in cardiac and respiratory

resuscitation

_¥_ The clinical management of various fluid, electrolytes and

metabolic disturbances during surgery/recovery stage

ADDITIONAL PRIVILEGES.

{I do not intend to do

surgical anesthesia]

/s/ Carolyn G. Kochert 8/18/00

PHYSICIAN’S SIGNATURE DATE

APPROVAL:

MEDICAL DIRECTOR OF ANESTHESIA DATE

App. 30

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CAROLYN G. KOCHERT, MLD.,

Plaintiff,

vs.

)

GREATER LAFAYETTE HEALTH ?

SERVICES, INC. d/b/a ST. ) ue

ELIZABETH MEDICAL CENTER ? Civil No.

and d/b/a LAFAYETTEHOME ?) 401CV0027AS

HOSPITAL, INC., ANESTHESI- ?

OLOGY ASSOCIATES, P.C., )

JOHN and WALLING and )

KENNETH J. BOCHENEK, MLD.,

)

Defendants.

PLAINTIFF’S ANSWERS TO INTERROGATORIES

PROPOUNDED BY DEFENDANT, GREATER

LAFAYETTE HEALTH SERVICES, INC.., et al.

Plaintiff, Carolyn G. Kochert, M.D. (“Kochert”), by and

through her attorneys, Miles J. Zaremski (“Zaremski’),

Michael B. Brohman and Ron S. Brand of Kamensky &

Rubinstein and Randall L. Vonderheide of Vonderheide

and Knecht, P.C., and pursuant to the June 4, 2003 order

of this Court, hereby responds to Interrogatories pro-

pounded by defendant, Greater Lafayette Health Services,

Inc. (“GLHS”), as follows.

App. 31

INTERROGATORIES

PROPOUNDED TO THE PLAINTIFF

* * *

15. Regarding Advance Pain Management (APM),

please state:

15g. The date that you devoted your full-time effort

to your pain management practice;

ANSWER

15g. August 1, 2000.

App. 32

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CAROLYN KOCHERT, M.D., )

Plaintiff,

vs.

GREATER LAFAYETTE

HEALTH SERVICES, INC.

CIVIL NO, 4:01CV27AS

d/b/a ST. ELIZABETH DEPOSITION OF DR.

MEDICAL CENTER, and WILLIAM STEPEHN

d/b/a LAFAYETTE HOME) MINORE

HOSPITAL, ANESTHESI- ? 12-19-03

OLOGY ASSOCIATES, P.C.,

JOHN WALLING and KEN-

NETH BOCHENEK, M.D.,

Defendants.

Deposition of DR. WILLIAM STEPHEN MINORE, a

witness of lawful age, taken on behalf of the defendants,

Anesthesiology Associates, P.C., John Walling and Ken-

neth Bochenek, M.D., in the above-entitled cause, wherein

Carolyn Kochert is the plaintiff and Greater Lafayette

Health Services, Inc., et al. are the defendants, pending in

the District Court of the United States for the Northern

District of Indiana, Northern Division, Hammond Division

at Lafayette, before Deb Fisher, notary Public in and for

Winnebago County, Illinois, in the offices of Rockford

Anesthesiologists Associated, 2202 Harlem Road in the

City of Loves Park, State of Illinois, on the 19th day of

December, 2003, commencing at 4:30 p.m., as reported and

transcribed by Deb Fisher, Certified Shorthand Reporter

in and for the State of Illinois.

* * *

App. 33

[173] Q. Do you have any opinion whether Dr.

Bochenek or any member of his group has deviated from

the standard of care regarding any care or treatment of

patients at St. Elizabeth?

A. I don’t believe I’ve ever made a comment

about St. Elizabeth Hospital, nor in my affidavits do

I reference St. Elizabeth Hospital, so I guess I’m a

little confused. But I'll stipulate I don’t know what

goes on at St. Elizabeth Hospital unless someone

provides me some information to review.

Q. Well, that’s just why I want to make sure that

we're clear on the record you’re not expressing any opin-

ions about whether there had been any deviation from the

standard of care regarding [174] any care and treatment of

any patients at St. Elizabeth.

MR. ZAREMSKI: I'm going to object insofar as

as long as there’s no inconsistency with paragraph 8 of the

doctor’s affidavit.

MR. PENNELL: You may answer.

A. Like I said, I don’t think I commented on

anything with respect to St. Elizabeth.

* * *

App. 34

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CAUSE NO. 4:01CV0027AS

CAROLYN G. KOCHERT, M.D.,

Plaintiff,

-Vs-

GREATER LaFAYETTE HEALTH .

SERVICES, INC., d/b/a ST. ELIZA-

BETH MEDICAL CENTER and

d/b/a LaFAYETTE HOME HOSPI-

TAL, ANESTHESIOLOGY ASSO-

CIATES, P.C., JOHN WALLING,

and KENNETH BOCHENEK, M.D.,

Defendants. /

DEPOSITION OF BRUCE A. SEAMAN, Ph.D.

Tuesday, January 28, 2004

9:03 a.m. — 5:40 p.m.

1325 Virginia Avenue

Atlanta, Georgia

REPORTED BY:

Sharon A. Gabrielli, RPR, CCR

Esquire Deposition Services

Atlanta Office Job #412373

Phone — 404.872.7890

* * *

[19] Q. Do you have any opinion in this case whether

the closure of the OB unit at St. E and consolidating that

with the OB unit at Home Hospital was an antitrust

violation?

App. 35

A. I would say that the mere closing of the OB unit

in and of itself as opposed to issues that are raised more

broadly by a series of events, just isolating the OB unit

closing in and of itself, that would not typically be an

antitrust violation.

* a *

[25] Q. Dr. Seaman, in Dr. Kochert’s Memorandum

in Opposition for Defendant’s Rule 12 Motion to Dismiss,

which was filed in this case on December 4, 2001, Dr.

Kochert makes the following statement on page 38 of her

brief: “Because two separate hospitals had anesthesiol-

ogy services, there was not an anticompetitive effect to the

market as a result of Dr. Kochert alone being barred from

practicing only at [26] Lafayette Home Hospital. Had she

brought an antitrust suit at that time, she would have

legitimately faced a challenge for not alleging an antitrust

injury for same purposes. Her injury would have been

limited only to her. As in many of the cases cited by the

defendants, even after Lafayette Home Hospital and St.

Elizabeth’s merged, Dr. Kochert was not precluded from

half of the market. She and other members of LA could

still practice at St. Elizabeth’s.”

Do you agree with that statement?

MR. ZAREMSKI: I’m going to object. That

statement comes out of a pleading in response to a Rule

12(b)\(6) proceeding. And it is done for advocacy purposes

and in a different context.

THE WITNESS: I have one quick clarifying

question, then I’ll of course answer it. What was the exact

source of that statement again; that was the pleading by

Dr. Kochert?

App. 36

Q. (By Mr. Pennell) It was her Memorandum in

Opposition to a Defendant’s Motion to Dismiss.

A. Right. I think the substance of that statement is

broadly consistent with the answer that I gave a moment

ago.

* * *

[81] Q@. Are you aware of any testimony or evidence

of whether the frequency of Dr. Bochenek’s leaving the

operating room is more or less after June 1, 2001 than it

was before June 1, 2001?

A. [Tm not aware of any testimony that specifically

addressed that issue of frequency prior to 2001 versus

after 2001. |

Q. Are you aware of any testimony or evidence [82]

as to whether his alleged conduct of frequently or regu-

larly listening to the radio has happened any more or less

frequently after June 1, 2001?

Mr. Zaremski: It has been asked and answered.

You can answer.

THE WITNESS: I think it is the same answer.

I’m not aware that anyone had even been specifically

asked that question.

Q. (By Mr. Pennell) Are you aware of any evidence

or testimony as to whether the quality of care provided by

Dr. Bochenek is better or worse after June 1, 2001 than it

was before that date?

A. I think it would have to be the same answer. I’m

not aware of a — I’m not aware of an answer to any deposi-

tion question or any affidavit that specifically attempted to

App. 37

quantify the severity pre-2001 or June 2001 versus post-

2001.

Q. Okay. Are you aware of any testimony or evidence

that the quality of care provided by AA as a group is better

or worse after June 1, 2001 than it was before June 1,

2001?

MR. ZAREMSKI: Asked and answered —- I'll

withdraw it.

You can answer.

[83] THE WITNESS: I think it’s the same

answer.

. o oe

[276] Q. You've not done any study or factual analy-

sis of the quality of the staff or facilities at these other

hospitals, correct?

A. I think quality of staff, generally defined, would

be difficult to get data on, absent subpoenas or something

of internal records of complaints.

Certainly descriptively, we know how many beds they

are. We know, for example — i can tell you this: In Tippe-

canoe County, using GLHS facilities and 740 beds, there

are ~ there is a bed for every 210 people in Tippecanoe

County.

In the surrounding counties, given the size of those

facilities, which is some reflection of their adequacy, the

number of people per bed or the —- there is a bed for every

999 people, I believe, in White County; there is a bed for

every 560-odd people, I believe, in Clinton County; and I

App. 38

believe that figure is about a bed for every 380 or so people

in Montgomery County.

Is that an adequate study? No. Does it reflect some-

thing about the adequacy of the facilities? Modestly. It

deals with number of beds.

Q. All right. Other than the number of beds, [277]

you have no facts or information about the quality of

facilities at any of these hospitals correct?

A. I would love, dearly love to see such a study done

by anyone else in this case and let me look at the data,

because I think it’s of some use. But I think it has been

very difficult to generate such a study.

* - *

App. 39

IN THE UN ITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CAROLYN G. KOCHERT, M.D.,

Plaintiff

Vv.

GREATER LAFAYETTE HEALTH

SERVICES, INC., d/b/a ST. ELIZA-

BETH MEDICAL CENTER and

d/b/a LAFAYETTE HOME HOSPI-

TAL, ANESTHESIOLOGY ASSO-

CIATES, P.C., JOHN WALLING,

and KENNETH BOCHENEK, M.D..,

Defendants.

4:01CV0027AS

me ee eee ee ee”

PLAINTIFF’S MEMORANDUM IN

OPPOSITION TO DEFENDANTS’

RULE 12 MOTIONS TO DISMISS

(Filed Dec. 4, 2001)

Plaintiff, Carolyn G. Kochert, M.D., by her attorneys,

Randall L. Vonderheide of Vonderheide & Knecht, P.C.,

and Miles J. Zaremski of Kamensky & Rubinstein; submit

this Memorandum in Opposition To Defendants’ Rule 12

Motions to Dismiss.

[38] Because two separate hospitals had anesthesiol-

ogy practices, there was not an anticompetitive effect to

the market as a result of Dr. Kochert alone being barred

from practicing only at Lafayette Home Hospital. Had she

brought an antitrust suit at that time, she would have

legitimately faced a challenge for not alleging an “anti-

trust injury” for standing purposes; her injury would have

been limited to only her, as in many of the cases cited by

App. 40

Defendants. Even after Lafayette Home Hospital and St.

Elizabeth’s merged, Dr. Kochert was not precluded from

half of the market — she and the other members of LA

could still practice at St. Elizabeth’s.

* * *

= App. 41

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 05-1196

Carolyn G. Kochert, M.D.

Plaintiff-Appellant,

Greater Lafayette Health Services, Inc.,

d/b/a Lafayette Home Hospital,

d/b/a St. Elizabeth Medical Center,

John Walling and Anesthesiology Associates, PC

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division

The Honorable Allen Sharp

No. 4:01cv0027

BRIEF AND APPENDIX OF

PLAINTIFF-APPELLANT CAROLYN G. KOCHERT, M.D.

Miles J. Zaremski

Alon Stein

Kamensky Rubinstein

Hochman & Delott, LLP

- 7250 N. Cicero Avenue

Suite 200

Lincolnwood, IL 60712

(847) 982-1776

Attorneys for Plaintiff-Appellant

App. 42

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS

Te OE FAS TE Ee oi baetesindareenccistesensaysasentesnsnsons iii

JURISDICTIONAL STATEMENT. .............cccccceeceeeveeees 2

ISSUES PRESENTED FOR REVIEW...............2:sseeeesees 1

STATEMENT OF THE CASE ......c0ccorscesssvssssesessecescevcees 3

Fic CaN A TG avis vi cistxeichnshisnenscintnatersisianterciove 3

Bis I, TOIT cdssisinientcntnienescsasnensnsateipivnetsiieciés 5

C. Disposition of the Court Below............. usecmeees 5

ERP OEE CE GG BU chcineasoinesccenteriasssvncedtenadnniedaneios 6

I. SUMMARY OF ARGUMENT .....................ceeee 18

II. ARGUMENT - STANDARDS OF REVIEW...... 23

BEL Soe Be iicisivvistcetstinswiniiinisteeiersieteaiaieds 24

IV. MATERIAL QUESTIONS OF FACT REMAIN

FOR A JURY TO DECIDE GIVEN THE OPIN-

IONS OF EXPERT TESTIMONY. ...........cccseeeeees 26

V. MATERIAL QUESTIONS OF FACT REMAIN

AS TO CONTINUUM OF EVENTS/ANTITRUST

STANDING, AND ANTITRUST INJURY ......... 33

VI. MATERIAL QUESTIONS OF FACT REMAIN

THAT DEFENDANTS RESTRAINED TRADE

AND MONOPOLIZED ANESTHESIOLOGY

Ee N isocernpcis aeeindtensthhniessauaunisvoreioaicianciies 36

A. The Relevant Markets.................:sescccsssseeees 36

DF I io toi iesnsisiicentsctiisaciientansvon 36

DZ. GOATS TIRII « cesccisiicssecccesenicrvices: ae

FROMMER TOT WAOG anes ccessasecservscdavscaces 37

b. Anesthesia Services. ............csceseeee. 44

VII.

VIII.

XII.

XIII.

App. 43

3. Market Share, Market Dominance, and

NI icvcicssiniccrceiditnaniiesesinenernentoneonss

MATERIAL QUESTIONS OF FACT REMAIN

THAT HARM TO COMPETITION HAS OC-

AFUE saciiavinneeavstnbiiapeoencinicuviviateinedenierunnnnesiets

A. Consumer Welfare (Quality of Care)...........

B. Pricing of Anesthesia Services .................0+

C. Output (Availability) of Anesthesia Ser-

MATERIALS QUESTIONS OF FACT RE-

MAIN WHETHER THE- EXCLUSIVE CON-

TRACTS WERE PRO-COMPETITIVE..............

MATERIAL EVIDENCE SHOWS UNLAW-

FUL TYING OF ANESTHESIA SERVICES TO

ERUNSE FS Fae IRIE TIN snseesecccsesoesasnvoontonceisoneaseen

MATERIAL QUESTIONS OF FACT REMAIN

WHETHER DEFENDANTS CONSPIRED TO

Ee SI siricnesvdcessediarncnvinvwninenibonsnieallineies

MATERIAL QUESTIONS OF FACT REMAIN

WHETHER DEFENDANTS CONSPIRED TO

BOYCOTT AND RESTRAIN TRADE.................

MATERIAL QUESTIONS OF FACT REMAIN

WHETHER DEFENDANTS CONSPIRED TO

MONOPOLIZE TO DENY CONSUMER AC-

CESS TO SERVICES IN AN ESSENTIAL FA-

MATERIAL QUESTIONS OF FACT REMAIN

WHETHER KOCHERT’S DAMAGES ARE

DIRECTLY ATTRIBUTABLE TO PRESERV-

Be A EO IE iciinvcnivininseitncdegnipnonnsiciensivin

I mice ss cmercinieisinreccmesenee

App. 44

ISSUES PRESENTED FOR REVIEW

I. Whether summary judgment is appropriate when:

A. The trial court has upheld under Daubert the

relevance and validity of expert opinions validating

all of plaintiff’s material factual contentions.

B. Kochert has produced substantial material evi-

dence that:

1. She has standing and has suffered antitrust

injury as a direct consequence of defendants’ ac-

tions excluding competition, including her com-

petition, from the relevant market.

2. Defendants have market power or monopoly

power in the relevant markets for hospital ser-

vices and anesthesiology service,

3. Defendants used their power in the relevant

market to exclude competition in the market for

anesthesiology services.

4. Defendants have caused demonstrable harm

to consumers of anesthesiology in the relevant

market by reducing the quality of services, in-

creasing their price, and decreasing the quantity

or availability of these services

5. Defendants failed to produce any irrefutable

evidence that the exclusion of competition pro-

duced legitimate, pro-competitive effects that

unambiguously outweighed the consumer harm

arising from Defendants’ conduct.

II. Whether summary judgment is appropriate when the

plaintiff has produced material evidence in support of

plaintiff’s alternative theories of antitrust liability that:

A. Defendants engaged in:

App. 45

1. Unlaw.. ying of access to hospital surgical

and obstetric care in the relevant market to the

purchase of anesthesiological services.

2. Unlawfully monopolizing the provision of

anesthesiological services in the relevant market.

3. Unlawfully conspiring to restrain trade and

engage in a boycott of competing suppliers of an-

esthesiology, including Kochert, in the relevant

market.

4. Denying competitive anesthesiology provid-

ers access to their monopoly hospital facilities to

the detriment of consumers.

III. Whether summary judgment is appropriate when

Kochert- produced material evidence that her damages

were a direct consequence of her exclusion from providing

anesthesiology services to consumers desiring those

services in the relevant market.

* * *

[29] Although it is difficult to prove a negative, a

thorough review of the case law has failed to uncover any

cases in which a court found that expert testimony was

both [30] relevant and reliable regarding material facts,

but that summary judgment was then appropriate.

* * *

App. 46

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 05-1196

Carolyn G. Kochert, M.D.

-Plaintiff-Appellant,

Greater Lafayette Health Services, Inc.,

d/b/a Lafayette Home Hospital,

d/b/a St. Elizabeth Medical Center,

John Walling and Anesthesiology Associates, PC

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division

~The Honorable Allen Sharp

- No. 4:01cv0027

REPLY BRIEF AND APPENDIX OF PLAINTIFF-

APPELLANT CAROLYN G. KOCHERT, M.D.

Miles J. Zaremski

Alon Stein

Kamensky Rubinstein

Hochman & Delott, LLP

7250 N. Cicero Avenue

Suite 200

Lincolnwood, IL 60712

(847) 982-1776

Attorneys for Plaintiff-Appellant

| App. 47

TABLE OF CONTENTS

TABLE OF AUTHORITIEG.............sssssscssscerceesseeseeenees

SOUT REPO BINION reevsocnedscvcncsucngrinninisossuntacvoinonebenserectorees

II.

Iii.

VI.

EXPERT TESTIMONY ESTABLISHES MATE-

RIAL QUESTIONS OF FACT. ............ccccceseeeereees

KOCHERT HAS ANTITRUST STANDING AND

HAS SUSTAINED ANTITRUST INJURY ..........

ROCKFORD MEMORIAL SUPPORTS KO-

CHERT’S GEOGRAPHIC MARKET .................

KOCHERT HAS SHOWN HARM TO COM-

FREE ITT sticerisccbeiewsatintinticnngiudapibicitiniaivnentaaintane

A. A Linkage Exists Between Quality of Care

and the Exclusive Contracts .................c0000

B. Diminished Output Remains an Issue and

SIGE TI FIO ercciisstnsichsousckerinavennicnscssadindees

C. Pricing Shows Harm to Competition ..........

GLHS AND AA FAIL TO ESTABLISH PRO-

COMPETITIVE EFFECTS ..............cccccccesssecseves

CONSPIRACY TO MONOPOLIZE/RES JUDI-

. * -

App. 48

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE —

CAROLYN KOCHERT, M.D.

Plaintiff,

GREATER LAFAYETTE HEALTH

SERVICES, INC., d/b/a ST.

ELIZABETH MEDICAL CENTER,

and d/b/a LAFAYETTE HOME

HOSPITAL, ANESTHESIOLOGY

ASSOCIATES, P.C., JOHN

WALLING and KENNETH

BOCHENEK, M.D.,

Defendants.

Civil No.

4:01CV27AS

AFFIDAVIT

Comes now Jeffrey R. Nagy, who being duly sworn

upon his oath, deposes and says:

1. I am presently employed by Greater Lafayette

Health Services, Inc. (GLHS) as the Executive Vice Presi-

dent and Chief Operating Officer responsible for the

operation of St. Elizabeth Medical Center (St. E) and

Home Hospital (HH) in Lafayette, Indiana. GLHS is a not-

for-profit corporation which was established in 1998 as the

owner and operator of St. E and HH as a result of the

consolidation of the two hospitals. Prior to the formation of

GLHS, St. E and HH were independently owned and

operated. Prior to the formation of GLHS, I was the Chief

Financial Officer for HH.

* . * *

App. 49

14. There are several hospitals in nearby counties

including White, Montgomery, Cass, Clinton, Boone,

Jasper and Warren counties which are within an hour

drive from Lafayette. These and other hospitals compete

for patients who require hospital services. These hospitals

compete with GLHS for patients who require outpatient

and most of the same inpatient services provided by

GLHS. There are a few high risk, more complicated

inpatient procedures, such as open heart surgery, which

are not performed in these hospitals. In these cases, GLHS

must compete with the hospitals in Indianapolis for

patients needing these services. St. Vincent’s hospitals in

Frankfort and Williamsport are affiliated with the St.

Vincent’s Hospital in Indianapolis. Given this affiliation,

referrals of patients to St. Vincent Hospital in Indianapolis

-would be a common occurrence. St. Vincent’s Hospital and

Methodist Hospital in Indianapolis are easily accessible to

patients living in the Lafayette area. The travel time on I-

65 between Lafayette and these Indianapolis hospitals is

just about one hour. St. Vincent’s Hospital and Methodist

Hospital in Indianapolis are each larger than GLHS. They

are excellent medical facilities and have highly trained

and skilled staffs and physicians.

15. The competition from these and other hospitals

act as constraint on any ability of GLHS to engage in any

anti-competitive behavior such as raising prices to uncom-

petitive levels or reducing quality. Almost 50% of GLHS’

patients reside outside of Tippecanoe County. GLHS would

risk the loss of a significant number of these patients as

well as patients living in Tippecanoe County if GLHS were

to attempt to engage in such uncompetitive behavior.

* * *

App. 50

Further affiant saith not.

/s/ Jeffrey R. Nagy

Jeffrey R. Nagy

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.