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