Forsyth

Opinion by Judge D. THOMPSON; Partial concurrence and Partial dissent by Judge WALLACE.

There are two groups of plaintiffs in this case: (1) the employer purchasers of group health insurance policies issued by Humana Health Insurance of Nevada (Premium Pay-ors); and (2) the employee beneficiaries of those policies who made coinsurance payments for health care received (Co-Payors).

The Co-Payors received hospital care from Humana Hospital-Sunrise (Sunrise Hospital), an acute care facility which is owned and operated by defendant Humana, Inc. Under its insurance agreements with the Co-Pay-ors, Humana Health Insurance of Nevada (Humana Insurance) was obligated to pay 80% of the employees’ hospital charges over and above a designated deductible amount; the Co-Payors were to pay the remaining 20%. Unknown to the plaintiffs, Humana Insurance negotiated a discount with Sunrise Hospital. Because of this discount, Humana Insurance ultimately paid significantly less than its 80% share of Sunrise Hospital’s charges and the Co-Payors paid significantly more than their 20% co-payment share.

The Co-Payors contend Humana Insurance breached its contract with them, and violated the Employee…

concurring and dissenting:

I concur with the majority in large measure, but two parts of the opinion are so troubling that I cannot agree. The first deals with the antitrust claims in part IV.C. Here we differ, although reasonable minds can differ; in this complex economic terrain. I am inclined to the position that the district court did not err in concluding that Forsyth’s evidence for a submarket of for-profit hospitals was insufficient to survive summary judgment. The majority’s analysis of this issue displays a subtle but important error of market definition theory. The majority also inadvertently mischaracterizes. the district court’s treatment of the RICO damages issue for the Co-Payor class (part IV.D.3.). I would affirm.

Forsyth 'contends that Humana monopolized or attempted to monopolize a market for major for-profit acute care hospitals in Clark County, Nevada. The district court held that Forsyth failed to establish the existence of a separate market for for-profit hospitals within the general Clark County hospital market. In reversing and holding this is a material fact in dispute, the majority points to two categories of evidence submitted by Forsyth. The first…