Forsyth
Forsyth v. Humana, Inc.
Opinion
Lead Opinion
Thompson, J.
Opinion by Judge DAVID R. THOMPSON; Partial Concurrence and Partial Dissent by Judge'WALLACE.
ORDER
An opinion in this case was filed November 5, 1996, and published at 99 F.3d 1504 (9th Cir.1996).
On November 19, 1996, the appellees filed a petition for rehearing and suggestion for rehearing en banc. The panel voted unanimously to grant the petition for rehearing, withdraw the opinion filed November 5,1996, and issue a new opinion. Judge D. Thompson voted to reject the suggestion for rehearing en banc, and Judges Wallace and G. Thompson so recommended. The full court was advised of the suggestion for rehearing en bane, and no judge of the court called for rehearing en banc.
As a result of the foregoing, the appellees’ petition for rehearing is GRANTED. The opinion filed November 5, 1996, and published at 99 F.3d 1504 (9th Cir.1996) is WITHDRAWN. Pursuant to the order granting rehearing, a new majority opinion, together with a separate opinion by Judge Wallace, is filed contemporaneously with this order. The suggestion for en bane rehearing of the opinion filed November 5, 1996 is REJECTED.
*1472 OPINION
There are two groups of plaintiffs in this case: (1) the employer…
Concurrence in Part
Wallace, J.
concurring and dissenting:
I concur with the majority in large measure, but its analysis of the antitrust claims in part IV.C. is so troubling that I cannot agree. Although reasonable minds can differ, in this complex economic terrain, I am *1483 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. 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 holding that there is a genuine factual dispute on this issue, the majority points to two categories of evidence submitted by Forsyth. The first depends on a faulty inference about cross-price elasticity of demand, and the second is insufficient to avoid summary judgment.