Opelousas General Hospital Authority, a Public Trust v. Louisiana Health Service & Indemnity Company D/B/A Blue cross/blue Shield of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-49

OPELOUSAS GENERAL HOSPITAL AUTHORITY,
A PUBLIC TRUST

VERSUS

LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY
D/B/A BLUE CROSS/BLUE SHIELD OF LOUISIANA

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 16-C-3647-C
HONORABLE LEDRICKA THIERRY, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Shannon J. Gremillion, John E. Conery, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Mark A. Cunningham
Michael C. Drew
Graham H. Ryan
Jones Walker, LLP
201 St. Charles Avenue, 49th Floor
New Orleans, Louisiana 70170
(504) 582-8318
COUNSEL FOR DEFENDANT/APPELLANT:
Louisiana Health Service & Indemnity Company

Richard Sherburne
Attorney At Law
Post Office Box 98029
Baton Rouge, Louisiana 70898
(225) 298-1666
COUNSEL FOR DEFENDANT/APPELLANT:
Louisiana Health Service & Indemnity Company

Pride J. Doran
Raven C. Boxie
Doran & Cawthorne, PLLC
Post Office Box 2119
Opelousas, Louisiana 70571
(337) 948-8008
COUNSEL FOR DEFENDANT/APPELLANT:
Louisiana Health Service & Indemnity Company

Ryan M. Kantor
Morgan, Lewis & Bockius
1111 Pennsylvania Avenue, NW
Washington, DC 20004-2541
(202) 739-5343
COUNSEL FOR DEFENDANT/APPELLANT:
Louisiana Health Service & Indemnity Company

Douglas Michael Chapoton
Attorney At Law
Post Office Box 98029
Baton Rouge, Louisiana 70898
(225) 295-2116
COUNSEL FOR DEFENDANT/APPELLANT:
Louisiana Health Service & Indemnity Company

Jessica W. Chapman
Attorney At Law
Post Office Box 98029
Baton Rouge, Louisiana 70898
(225) 295-2116
COUNSEL FOR DEFENDANT/APPELLANT:
Louisiana Health Service & Indemnity Company

Joseph C. Giglio, Jr.
Liskow & Lewis
Post Office Box 52008
Lafayette, Louisiana 70503
(337) 232-7424
COUNSEL FOR INTERVENOR/APPELLEE:
Blue Cross Blue Shield Association

James A. Brown
Liskow & Lewis
701 Poydras Street, Suite 5000
New Orleans, Louisiana 70139-5099
(504) 581-7979
COUNSEL FOR INTERVENOR/APPELLEE:
Blue Cross Blue Shield Association

Patrick Craig Morrow, Sr.
Morrow, Morrow, Ryan & Bassett
324 West Landry Street
Opelousas, Louisiana 70570
(337) 948-4483
COUNSEL FOR PLAINTIFF/APPELLEE:
Opelousas General Hospital Authority, A Public Trust

Michael H. Rubin
McGlinchey Stafford
301 Main Street, Suite 1400
Baton Rouge, Louisiana 70801
(225) 383-9000
COUNSEL FOR:
Louisiana Department of Insurance

Thomas Allen Filo
Cox, Cox, Filo, Camel & Wilson, LLC
723 Broad Street
Lake Charles, Louisiana 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF/APPELLEE:
Opelousas General Hospital Authority, A Public Trust

Shelton Dennis Blunt
Phelps Dunbar, LLP
Post Office Box 4412
Baton Rouge, Louisiana 70821-4412
(225) 346-0285
COUNSEL FOR:
Blue Cross Blue Shield of South Carolina

Stephen B. Murray
Stephen B. Murray, Jr.
Arthur M. Murray
Murray Law Firm
701 Poydras Street, Suite 4250
New Orleans, Louisiana 70139
(504) 525-8100
COUNSEL FOR PLAINTIFF/APPELLEE:
Opelousas General Hospital Authority, A Public Trust

Valerie E. Fontenot
Frilot, LLC
1100 Poydras Street, Suite 3700
New Orleans, Louisiana 70163-3600
(504) 599-8000
COUNSEL FOR:
Ochsner Clinic Foundation

Ryan K. French
Taylor Porter
Post Office Box 2471
Baton Rouge, Louisiana 70821
(225) 381-0262
COUNSEL FOR:
Franciscan Missionaries of Our Lady Health System, Inc.

William E. Kellner
Liskow & Lewis
Post Office Box 52008
Lafayette, Louisiana 70505-2008
(337) 232-7424
COUNSEL FOR INTERVENOR/APPELLEE:
Blue Cross Blue Shield Association
Blue Cross Blue Shield of Louisiana
Louisiana Health Service & Indemnity Company

CONERY, Judge.

Plaintiff, Opelousas General Hospital Authority, filed this antitrust matter as

a prospective class action in August 2016 naming Louisiana Health Service &

Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana (BCBSLA) as

the sole defendant. Plaintiff alleged therein that it had been disadvantaged in the

health care provider agreement it entered into with BCBSLA due to the insurer’s

participation in a plan involving related entities. BCBSLA’s present appeal

questions the trial court’s denial of BCBSLA’s motion for summary judgment by

which it sought dismissal of Plaintiff’s petition. For the following reasons, we

affirm. 1

FACTS AND PROCEDURAL HISTORY

Plaintiff’s petition is comprised of an introductory “Factual Background and

Allegations” section by which Plaintiff advanced the factual basis for its claim for

recovery due to injury caused by BCBSLA’s purported violations of antitrust

provisions related to restraint of trade and monopolistic practices. Plaintiff thereafter

framed its claim through the use of four “Counts.”

In Count I, Plaintiff identified itself as presumptive class representative of

those similarly situated in its overall claim that BCBSLA acted in violation of the

antitrust provisions of La.R.S. 51:121, et seq. Plaintiff’s claims stem, in part, from

BCBSLA’s participation in the “BlueCard Program” whereby patients from out of

state Blue Cross plans receive the same discounted in-network rates from

providers that were negotiated with each individual state’s Blue Cross insurer.

Plaintiff defined the class as all Louisiana healthcare providers who, at the time of

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This matter has previously appeared before this court, as detailed below.

the filing of the petition, were 1) citizens of Louisiana; 2) contracted with BCBSLA;

and 3) had one or more medical bills reimbursed pursuant to that contract for any

services rendered to a patient in Louisiana.

In Count II, Plaintiff specifically alleged that BCBSLA acted in concert with

the Blue Cross Blue Shield Association (the “Association”) and certain other Blue

Cross plans “to restrain trade and commerce in Louisiana, acts which are expressly

prohibited by La.R.S. 51:122.” In particular, Plaintiff claimed that as a result of

agreements between BCBSLA and Blue Cross companies, other Blue Cross

Companies were precluded from entering the Louisiana healthcare market and/or

contracting for their own reimbursement rates, thereby ensuring that BCBSLA

“would gain an extremely dominant and artificially high market share which could

not have been achieved but for the elimination of would be competitors from the

Louisiana healthcare market in the State of Louisiana.” Plaintiff alleged that such

contracts and actions constituted an impermissible restraint of trade and/or

commerce in violation of La.R.S. 51:122.

In Count III, Plaintiff alleged that BCBSLA’s entry into “unlawful”

agreements with other Blue Cross plans was an attempt to “monopolize the

Louisiana healthcare insurance market to the detriment of Plaintiff and the Plaintiff

Class members.” Plaintiff alleged that this practice violated La.R.S. 51:123, the

monopolization claim.

Given its allegations of violations under La.R.S. 51:122 and La.R.S. 51:123,

in Count IV, Plaintiff sought recovery of treble damages and attorney fees pursuant

to La.R.S. 51:137.

This case has been before this court on four different occasions on various

procedural rulings. Initially, a panel of this court affirmed the class certification.

2

See Opelousas Gen. Hosp. Auth. v. Louisiana Health Serv. & Indem. Co., 19-736

(La.App. 3 Cir. 11/12/19), 283 So.3d 619, writ denied, 19-1848 (La. 1/28/20), 291

So.3d 1054. (Opelousas I). By consolidated writ application, the panel later

affirmed the trial court’s denial of the Association’s petition for intervention, finding

no abuse of discretion in the trial court’s determination that to permit the intervention

would cause needless delay. See Opelousas Gen. Hosp. Auth. v. Louisiana Health

Serv. & Indem. Co., 19-265 (La.App. 3 Cir. 11/12/19), 284 So.3d 643, writ denied,

19-1912 (La. 1/28/20), 291 So.3d 1060 (Opelousas II). The panel recognized, in

part, that the Association sought to intervene merely as a method by which it would

seek removal to federal court where other actions were pending against various Blue

Cross entities. Plaintiff in this case had successfully avoided removal to federal

court as it proceeded against BCBSLA alone and did so purely under theories of

Louisiana law, not combined federal and state claims as alleged in the matters

proceeding in federal court.

This case returned to this court, in Opelousas General Hospital Authority v.

Louisiana Health Service & Indemnity Co., 21-174 (La.App. 3 Cir. 4/5/21), _ So.3d

_ (2021 WL 1251134) (Opelousas III), wherein a panel of this court affirmed the

trial court’s denial of BCBSLA’s motion to strike the motion for partial summary

judgment filed by Plaintiff. The panel rejected BCBSLA’s contention that Plaintiff’s

pursuit of the partial summary judgment would create a de facto uncertified subclass

whose interests were not being pursued by the motion under consideration. Rather,

the panel recognized that Plaintiffs were pursuing a partial summary judgment as

permitted by La.Code Civ.P. art. 966(A)(1), as Plaintiffs were merely seeking “to

dispose of claims on behalf of claimants where there exists no genuine issue of

material fact as to their ability to recover.” Id. at _. Responding to an argument

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reflecting shades of an argument appearing in the present appeal, the panel explained

that “[c]ontrary to BCBSLA’s contention, Plaintiffs have not abandoned their claims

as to the rest of the class in seeking to make use of the partial summary judgment

tool and they specifically reserve their right to later pursue claims on behalf of

claimants where there exists a genuine issue of material fact.” Id. at _.

In a corresponding appeal, the same panel addressed the merits of the trial

court’s granting of Plaintiff’s motion for partial summary judgment. See Opelousas

General Hospital Authority v. Louisiana Health Service & Indemnity Company, 21-

175 (La.App. 3 Cir. 4/5/21), 318 So.3d 259 (Opelousas IV). The trial court had

examined Plaintiff’s motion, which sought the return of contractual discounts for

Plaintiff’s patients who were insured by out-of-state Blue Cross insurers in light of

the underlying BlueCard program, and granted Plaintiff’s motion for partial

summary judgment, concluding that the framework operated in restraint of trade in

violation of La.R.S. 51:122. The trial court awarded Plaintiffs $416,830,039.60

together with costs and legal interest.

In Opelousas IV, before turning to the review of the partial summary judgment,

the panel first considered an exception of non-joinder filed by the Association for

the first time on appeal by which it asserted that it, along with all other Blue Cross

companies, were parties needed for just adjudication. BCBSLA joined in the

exception. The panel denied the exception, explaining that the record contained no

evidence supporting the exception since Plaintiff is “only seeking review of the

provider agreements with BCBSLA and money damages under those agreements.”

Id. at 267. Opelousas Gen. Hosp. Auth., 318 So.3d at 267 (emphasis added). The

panel also commented that Plaintiff was “not attacking the entire Blue Card Program

or any of the Association’s rules. Thus, there is no reason that complete relief could

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not be afforded in the absence of these additional parties.” Id. BCBSLA references

that statement in the present appeal, as reflected in the discussion below.

On the merits, the panel in Opelousas IV reversed the partial summary

judgment entered in favor of the Plaintiff on an evidentiary basis given the restraint

of trade claim at issue under La.R.S. 51:122. The panel again identified that the

“case before us only questions the agreements between the medical providers and

the insurer, BCBSLA” and therefore the query at issue involved only an allegation

of a “vertical” restraint of trade subject to a rule of reason analysis. Opelousas Gen.

Hosp. Auth., 318 So.3d at 269 (emphasis added). The panel specifically determined

that it was “prohibited from considering whether the Blue Card Program constituted

an illegal horizontal cartel” and that its analysis was therefore limited to the “vertical

provider agreements.” Id. at 269. On consideration of that agreement, however, the

panel concluded that Plaintiff failed to carry its burden of proof on the “rule of reason”

analysis insofar as it was required to demonstrate that BCBSLA “(1) engaged in

conspiracy (2) that restrained trade or injured competition (3) in a particular market.”

Id. While Plaintiff produced documentary evidence by introducing billing spread

sheets, the panel found that it provided no “evidence of injury to competition in

general” or the parameters of the “relative economic market,” the second and third

elements of the rule of reason analysis. Id. at 270. The panel theorized in dicta that

Plaintiff would have been able to prevail on a motion for summary judgment had it

supplied relevant evidence. Plaintiff, however, failed to produce such evidence in

support of its motion.

Following the release of the Opelousas III and IV opinions, BCBSLA filed

the motion for summary judgment now under review, seeking dismissal of the

entirety of Plaintiff’s petition, doing so “in light of the Third Circuit Court of

5

Appeal’s April 5, 2021 opinion in this action and a provision of the Louisiana

Insurance Code (La.R.S. 22:1007).”

BCBSLA first contended that this court identified the “vertical agreement”

between Plaintiffs and BCBSLA as the pertinent focal point in connection with

Plaintiff’s summary judgment motion, and that Plaintiff had conceded that point in

representations to the court. Referencing the petition, however, BCBSLA noted that

both Count II (restraint of trade in violation of La.R.S. 51:122) and Count III

(creation of a monopoly in violation of La.R.S. 51:123) involved allegations

regarding the contracts creating the BlueCard program, not the vertical agreements

involving the Plaintiff health care providers. BCBSLA thus argued that the panel’s

recognition that the pertinent inquiry involved only the vertical agreement and

foreclosed all possibility of Plaintiff recovering under the restraint of trade claim

under La.R.S. 51:122 and the monopoly claim under La.R.S. 51:123.

BCBSLA additionally argued that La.R.S. 22:1007(J)(2), as amended by the

legislature in 2016, specifically authorizes the type of provider agreement as

challenged by Plaintiff in its claim under La.R.S. 51:122. BCBSLA maintained that

since La.R.S. 22:1007(J)(2) provides the more specific and latest legislative

expression in the field, it precluded application of the antitrust statutory measures

advanced by Plaintiff’s petition, namely those related to Plaintiff’s contention that

the BlueCard program violated the prohibition on the restraint of trade as provided

by La.R.S. 51:122.

The trial court rejected BCBSLA’s arguments in denying its motion for

summary judgment. In reasons for ruling, the trial court found no compelling

statement from the prior rulings of this court that would mandate dismissal of the

petition. Moreover, the trial court found no statutory support for the contention that

6

La.R.S. 22:1007 negates application of La.R.S. 51:122 and La.R.S. 51:123, related

to the restraint of trade and monopoly claims respectively.

BCBSLA filed this timely appeal of that ruling. We consider this appeal

pursuant to La.R.S. 51:135, as relative to review of claims related to monopolies and

restraint of trade.2

ASSIGNMENTS OF ERROR

BCBSLA assigns the following as error:

1. The District Court erred as a matter of law by failing to grant
summary judgment on the BlueCard Claim in Count II of the
Petition because it relied on a fundamentally flawed reading of
La.R.S. 22:1007, which is inconsistent with the plain words of
the statute and the Louisiana Department of Insurance’s
interpretation of its own code.

2. The District Court erred as a matter of law by failing to grant
summary judgment on the Market Allocation and
Monopolization Claims when this Court has expressly stated that
Plaintiffs have limited their case to challenging the agreements
between providers and BCBSLA.

3. The District Court ignored Plaintiffs’ repeated judicial admission
that their case does not challenge any agreement among
BCBSLA, [the Association,] and the other Blue Plans and, as a
result, is limited to a vertical challenge of the provider
agreements, mandating summary judgment on Plaintiffs’
horizontal Market allocation and Monopolization Claims.

4. The District Court erred as a matter of law by failing to grant
summary judgment on the Blue Card, Market Allocation, and
Monopolization Claims because Plaintiffs submitted no evidence
and no statement of material facts as required by La. Code Civ.
Proc. art. 966 and Uniform District Court Rule 9.10.

2
Louisiana Revised Statutes 51:135 provides:

All interlocutory judgments in the cases affected by this Part, and not
otherwise provided for, shall be appealable within five days and shall be heard and
determined within twenty days after appeal is lodged, and any interlocutory
judgments not appealed, except those rendered during the progress of the trial, shall
be final, and shall not be reopened on final appeal. Such appeals shall be on the
original papers, on the order of the district judge, if a transcript cannot be prepared
in time.

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We address BCBSLA’s arguments in turn.

DISCUSSION

Summary Judgment

Louisiana Code of Civil Procedure Article 966(A)(3) provides that “a motion

for summary judgment shall be granted if the motion, memorandum, and supporting

documents show that there is no genuine issue as to material fact and that the mover

is entitled to judgment as a matter of law.” With regard to the applicable burden of

proof, Article 966(D)(1) provides:

The burden of proof rests with the mover. Nevertheless, if the mover
will not bear the burden of proof at trial on the issue that is before the
court on the motion for summary judgment, the mover’s burden on the
motion does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements essential
to the adverse party’s claim, action, or defense. The burden is on the
adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.

In reviewing the trial court’s ruling on a motion for summary judgment, an appellate

court applies the de novo standard of review using the same criteria applied by the

trial court in determining whether summary judgment is appropriate. Samaha v. Rau,

07-1726 (La. 2/26/08), 977 So.2d 880.

Assignment of Error 1 – Louisiana Revised Statutes 22:1007(J)(2)

In its first assignment of error, BCBSLA contends that the trial court erred in

failing to dismiss Plaintiff’s Count II claim based upon what BCBSLA characterizes

as a flawed reading of La.R.S. 22:1007. Titled “Requirements of provider contracts;

communications,” La.R.S. 22:1007 provides, in pertinent part:

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J. (1) A managed care organization that offers coverage for
healthcare services through one or more managed care plans shall not
require a provider, as a condition of participation or continuation in the
provider network of one or more health benefit plans of the managed
care organization, to serve in the provider network of all or additional
health benefit plans of the managed care organization. A managed care
organization is prohibited from terminating a provider agreement based
on the provider’s refusal to serve in the network for such additional
plans.

(2) Nothing in this Subsection shall prohibit a managed care
organization from enabling its affiliated members from other states to
obtain healthcare service benefits while traveling or living in the
managed care organization’s service area including extending the
provisions of the provider contract to provide for such services.

(Emphasis added.)

Plaintiff alleged in Count II that BCBSLA violated La.R.S. 51:122 3 by

requiring the subject health care providers to accept a negotiated reimbursement rate

when providing in-state care for out-of-state Blue Plan members. BCBSLA

maintains, however, that this type of arrangement is expressly provided for by

La.R.S. 22:1007(J)(2)., for “Requirements of Provider Contracts,” quoted infra.

As it did before the trial court, BCBSLA contends in this appeal that, since

La.R.S. 22:1007(J)(2) explicitly authorizes the agreements challenged by Plaintiff

in Count II, “a managed care organization is always free to extend the terms of its

provider contracts to its affiliated members from other states when they are traveling

or living in Louisiana.” (Emphasis added.) BCBSLA contends that, given the

legislature’s permissive view of that type of arrangement, there are no genuine issue

3
Louisiana Revised Statutes 51:122, titled “Contracts, combinations and conspiracies in
restraint of trade illegal; penalty,” provides, in pertinent part:

A. Every contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce in this state is illegal.

B. Whoever violates this Section shall be fined not more than five thousand
dollars, or imprisoned, with or without hard labor, not more than three years, or
both.

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of material fact, and that the challenged BlueCard provision comports with

Louisiana law, particularly La.R.S. 22:1007(J)(2). Focusing on that factual

component of the summary judgment standard, BCBSLA contends that “Plaintiffs

have produced no evidence to the contrary,” and, therefore, BCBSLA is entitled to

a judgment on Plaintiff’s “BlueCard claim.” Additionally, BCBSLA again suggests

that La.R.S. 22:1007(J)(2) is the more recent and specific statute in the field, and

that it must prevail as an exception to the more general antitrust statutes of La.R.S.

51:122 and 51:123.

BCBSLA correctly identifies the language of La.R.S. 22:1007(J)(2) as

permitting the type of arrangement complained of in Plaintiff’s BlueCard claim in

Count II. The statute does not otherwise, however, offer BCBSLA an absolute shield

from the restraint of trade prohibition of La.R.S. 51:122 alleged by Plaintiff and

which is at the heart of this issue. Rather, La.R.S. 22:1007, on its face, makes no

reference to the exclusive/preclusive effect of the statutory provision, or in any way

suggests that it operates outside the constraints of La.R.S. 51:122 as it pertains to

restraint of trade. In this case, the facts as to the latter claim have simply not been

developed and presented to the court so as to provide the larger context to the trial

court.

Furthermore, as Plaintiff suggests, reference to the statute as a whole indicates

that La.R.S. 22:1007(J)(2) directly pertains to (J)(1). Paragraph (J)(2) specifically

signals as much as it begins by stating that, “Nothing in this Subsection . . . .” The

legislature provided no explicit statement that La.R.S. 22:1007(J)(2) provides an

exception to the provisions of La.R.S. 51:122. Absent such an expression, the trial

court did not err in concluding that the statutory measures operate alongside one

another, with the type of agreement specifically permitted by La.R.S. 22:1007

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potentially implicating a violation of La.R.S. 51:122 under appropriate and proven

factual circumstances. Those facts have simply not been developed conclusively for

either party at this point in the proceeding for purposes of the partial summary

judgment at issue in this appeal.

Neither do we find merit in BCBSLA’s contention that La.R.S. 22:1007(J)(2)

must be given favor over the general restraint of trade provisions of La.R.S. 51:122,

given applicable standards of statutory construction. Reference to the entirety of the

applicable statutory construction principle is helpful here as the supreme court has

explained:

This Court has held that “it is a fundamental rule of statutory
construction that when two statutes deal with the same subject matter,
if there is a conflict, the statute specifically directed to the matter at
issue must prevail as an exception to the statute more general in
character.” Burge v. State, 10–2229 (La.2/11/11), 54 So.3d 1110, 1113.
Further, this Court has provided that the latest expression of legislative
will is considered controlling and prior enactments in conflict are
considered as tacitly repealed in the absence of an express repealing
clause. Pumphrey [v. City of New Orleans, 05-0979 (La. 4/4/06), 925
So.2d 1202]. “The legislature is presumed to have acted with
deliberation and to have enacted a statute in light of the preceding
statutes involving the same subject matter.” Holly & Smith Architects,
Inc. v. St. Helena Congregate Facility, Inc., 06–0582 (La.11/29/06),
943 So.2d 1037, 1045. Finally, recent statutory enactments support this
view. In 2006, the Legislature, by Acts 2006, No. 826, § 3, enacted La.
R.S. 24:177, which provides in part: “[t]he legislature is presumed to
have enacted an article or statute in light of the preceding law involving
the same subject matter and court decisions construing those articles or
statutes, and where the new article or statute is worded differently from
the preceding law, the legislature is presumed to have intended to
change the law.” La. R.S. 24:177(C).

McLane S., Inc. v. Bridges, 11-1141, pp. 9-10 (La. 1/24/12), 84 So.3d 479, 485

(emphasis added).

Notably, however, this analysis is dependent on “conflict” between statutes

dealing “with the same subject matter.” Id. There is again no readily apparent

conflict between La.R.S. 22:1007(J)(2) and the prohibition on the restraint of trade

11

as provided by La.R.S. 51:122 as advanced by Count II of Plaintiff’s petition. The

former provision instead plainly expresses the legislature’s permissive view of a

managed care organization’s reciprocal treatment of affiliated members. Title 22 is

otherwise silent as to the permissive breadth of such an arrangement, containing no

language removing the matter from the ambit of La.R.S. 51:122 under all

circumstances. In this case, those factual circumstances remain to be developed at

a trial on the merits as recognized in Opelousas IV when a panel of this court

similarly denied Plaintiff’s motion for partial summary judgment.

BCBSLA further contends within the first assignment of error that “Plaintiffs

also claim that BCBSLA violated La.R.S. 51:122 by including a restriction “in its

agreements that prevents providers from contracting for reimbursement rates with

other Blue Plans.” (Emphasis added.) BCBSLA, however, contends that such a

restriction does not exist but that it states the opposite. Namely, it points to

Paragraph 13.8 of its Provider Agreement with Plaintiff, Opelousas General, which

provides:

13.8 Non-Exclusive Agreement

This Agreement shall not be construed to be an exclusive agreement
between PLAN and MEMBER PROVIDER. Nothing in this
Agreement shall be construed to restrict PLAN or MEMBER PROVER
from entering into other contracts or agreements to provide health care
services to other health care delivery plans, patients, employer groups
or other entities.

BCBSLA correctly notes that Plaintiff did not offer evidence to the contrary in

opposition to the motion for summary judgment.

BCBSLA’s argument, however, does not accurately frame Plaintiff’s petition

under Count II as it relates to La.R.S. 51:122. BCBSLA focuses on its own contract

with Plaintiff, submitting its own Louisiana Provider Agreement into evidence.

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Although Plaintiff seeks damages stemming from its own Provider Agreement,

Plaintiff alleges that those damages related to BCBSLA’s contractual relations with

other entities. Count II provides, in its entirety:

COUNT II

VIOLATION OF LA. R.S. 51:122

29.

Plaintiff reiterates and reavers all preceding allegations of this
Petition.

30.

By entering into agreements with BCBSA and the other Blue
Cross/Blue Shield companies, Louisiana Blue Cross has contracted,
conspired and/or combined to restrain trade and commerce in
Louisiana, acts which are expressly prohibited by La. R.S. 51:122.

31.

Louisiana Blue Cross’s anti-competitive agreements and
Schemes precluded other Blue Cross/Blue Shield companies from
entering the Louisiana health care market and/or contracting for their
own reimbursements rates thereby ensuring that Louisiana Blue Cross
would gain an extremely dominant and artificially high market share
which could not have been achieved but for the elimination of would
be competitors from the Louisiana healthcare market in the state of
Louisiana.

32.

Defendant’s contracts, combinations and conspiracy in restraint
of trade and/or commerce in the state of Louisiana violate La. R.S.
51:122.

BCBSLA’s reliance on its Provider Agreement with Plaintiff, alone, cannot satisfy

the burden it suggests with regard to Count II. Rather, as explained above, the

surrounding factual evidence remains to be developed at a trial on the merits.

This assignment lacks merit.

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Assignment of Error 2 – Market Allocation and Monopolization Claims

BCBSLA next argues that it sought summary judgment on Plaintiff’s claims

as they relate to market allocation under La.R.S. 51:122 as brought by Claim 2 and

monopolization under La.R.S. 51:123. It argued that since both claims are

dependent on allegations pertaining to “horizontal” agreements between BCBSLA,

the Association, and out-of-state Blue Cross plans, they must be dismissed.

BCBSLA suggests, as it did to the trial court, that this court has “expressly

determined” that BCBSLA only challenges the “vertical agreement” between

BCBSLA and the Plaintiff health care providers.

On this point, BCBSLA references statements from this court in Opelousas

III and Opelousas IV. Specifically, BCBSLA points out that in discussing the

motion to strike at issue in Opelousas III, the panel explained that “[t]his suit only

involves provider agreements with BCBSLA and asserts only monetary claims under

Louisiana law.” Opelousas Gen. Hosp. Auth., _ So.3d at _. Additionally, in

Opelousas IV, the panel addressed the exception of non-joinder and remarked that

“Plaintiffs are only seeking review of the provider agreements with BCBSLA and

money damages under those agreements.” Opelousas Gen. Hosp. Auth., 318 So.3d

at 267. And, in its discussion of Plaintiff’s motion for partial summary judgment

under review at that time, the panel reiterated that “[t]he case before us only

questions the agreements between the medical providers and the insurer, BCBSLA.”

Id. at 269. BCBSLA finally notes that, given that limited question before the court,

the panel explained that “[w]e are prohibited from considering whether the BlueCard

Program constituted an illegal horizontal cartel and must limit our analysis to the

vertical provider agreements.” Id. at 269.

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BCBSLA argues that when the matter returned to the trial court for its

consideration of BCBSLA’s own motion for summary judgment, the above quoted

statements from Opelousas III and Opelousas IV were entitled to “conclusive

effect.” Given such conclusive effect, BCBSLA thus contends that the trial court

was required to dismiss those claims under both La.R.S. 51:122 and La.R.S. 51:123

as they related only to “horizontal” agreements between BCBSLA and related

entities.

In support of this position, BCBSLA references an excerpt from Arceneaux v.

Amstar Corp., 10-2329, p. 14 (La. 7/1/11), 66 So.3d 438, 448 (emphasis added), in

which the supreme court discussed the law of the case doctrine as follows:

The law of the case refers to a policy by which the court will not
reconsider prior rulings in the same case. Day v. Campbell–Grosjean
Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971).

The law of the case principle relates to (a) the binding
force of trial court rulings during later stages of the trial,
(b) the conclusive effects of appellate rulings at trial on
remand, and (c) the rule that an appellate court will
ordinarily not reconsider its own rulings of law on a
subsequent appeal. Among reasons assigned for
application of the policy are: the avoidance of indefinite
relitigation of the same issue; the desirability of
consistency of the result in the same litigation; and the
efficiency, and the essential fairness to both sides, of
affording a single opportunity for the argument and
decision of the matter at issue.

Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 84
(La.1973). However, even when applicable, the law of the case is
discretionary and should not be applied in cases of palpable error or
where application would result in injustice. Id.

BCBSLA’s claim fails on two fronts. First, in both Opelousas III and

Opelousas IV, the panel was discussing the case within the strict confines of the

interlocutory rulings presented therein. In Opelousas IV, in particular, it is important

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to recall that the panel addressed Plaintiff’s motion for partial summary judgment

that did not relate to the entirety of Plaintiff’s petition.

BCBSLA correctly observes that Plaintiff’s Count II, pertaining to La.R.S.

51:122’s prohibition on restraint of trade, and its Count III, pertaining to La.R.S.

51:123’s prohibition on monopolization of trade or commerce, involve factual

references to the agreements between BCBSLA, the Association, and the counterpart

BlueCard entities. BCBSLA’s narrow focus on those factual allegations, however,

is misleading. Rather, Plaintiff’s petition sets forth an overall claim based on the

“vertical agreement” between the Plaintiff health care providers and BCBSLA.

Examination of the petition from its “Factual Backgrounds and Allegations”

through its prayer for relief reveals the structure of Plaintiff’s claim. Plaintiff

initially related the existence of the BCBSLA BlueCard program created through the

interrelated contracts involving the Association and the corresponding out-of-state

entities. It asserted that “[t]hrough various agreements with affiliated Blue

Cross/Blue Shield companies and the [Association,] colluded to make Louisiana a

distinct “Service Area” and to allocate the Louisiana health insurance market free of

competition from any other Blue Cross/Blue Shield company[.]” However,

Plaintiff’s petition did so only within the context of Plaintiff’s own “vertical”

agreement with BCBSLA, the agreement by which it is claiming that it has been

placed at a disadvantage in the marketplace. Plaintiff specifically alleged that:

Plaintiff and the Plaintiff Class have been injured in their
business or property by reason of the foregoing violations of La.R.S.
51:122 and La.R.S. 51:123 in that they have been forced or coerced
into contracts providing for reimbursement for medical services and/or
have been reimbursed for medical services at rates far lower tha[n]
they would have been in the absence of Louisiana Blue Cross’s
restriction of trade and/or monopolization, and as such are entitled to

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three fold damages and reasonable attorney fees pursuant to La.R.S.
51:137.
(Emphasis added.) Plaintiff thereafter advanced the factual allegations underlying

BCBSLA’s participation in the alleged “Scheme,” doing so within the context of

La.R.S. 51:122 and La.R.S. 51:123, and suggesting that BCBSLA’s participation

therein violated both statutory provisions.

Subsequently returning to its prayer for damages advanced in Count IV,

Plaintiff again plainly alleged that, due to BCBSLA’s violations of La.R.S. 51:122

and La.R.S. 51:123, “Plaintiff and Plaintiff Class members have suffered damage to

their property and businesses” as they were “reimbursed for healthcare services

pursuant to Louisiana Blue Cross contracts at rates far lower than they would have

been in the absence of Louisiana Blue Cross’s scheme and agreements in restraint

of trade and contracts.” Plaintiff alleged that it was “also subjected to onerous and

less favorable contracted terms with Louisiana Blue Cross as a result of Defendant’s

monopolistic, overwhelming large market share, and the coercive effect of such

unlawful monopoly power wielded by Defendant Louisiana Blue Cross.” Given that

purported conduct, Plaintiff sought recovery in the form of treble damages as

allowed by La.R.S. 51:137.

Plaintiff’s petition obviously invokes the factual circumstances surrounding

BCBSLA’s agreements with the Association and the out-of-state BlueCard entities.

It does so, however, within its solitary claim for damages stemming from the

allegedly derivative and disadvantageous position it was placed in by its own health

care provider contract with BCBSLA. At no time did Plaintiff seek to invalidate the

alleged “horizontal” agreements between BCBSLA, the Association and its

counterpart out-of-state entities.

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This assignment lacks merit.

Assignment of Error 3 – Judicial Admissions

BCBSLA’s narrow focus on the claims surrounding the “horizontal”

agreements carries over into its third assignment of error by which it argues that “[i]t

should come as no surprise that this Court found that Plaintiffs’ claims are limited

to challenging provider agreements with BCBSLA: Plaintiffs themselves have

represented to multiple courts that they are not seeking any relief relating to

BCBSLA or other Blue Plans.” It contends that Plaintiff’s “concessions” in this

regard were strategic in nature so as to avoid a required joinder of the Association

and the out-of-state entities which would have required removal to federal court for

consolidation with multi-district litigation proceeding in federal court.

As with its argument in Assignment of Error 2, however, BCBSLA’s

argument ignores Plaintiff’s claim for recovery as advanced in its petition.

Plaintiff’s “strategy” in naming only BCBSLA as a defendant and in not seeking to

invalidate the “horizontal” agreements makes its claim a difficult one and delineates

a narrow path for it to walk at a trial on the merits. It is, however, of no moment in

analyzing BCBSLA’s motion for summary judgment.

Instead of admitting, confessing, or changing course in its arguments,

reference to the petition indicates that Plaintiff has consistently sought recovery due

to the allegedly disadvantageous position it was placed in through its own health

care agreement with BCBSLA. Notably, Plaintiff has filed a singular petition in this

case and has not named additional defendants, sought recovery from any entity other

than BCBSLA, or sought to invalidate any agreement, whether “horizontal” or

“vertical.” While it remains to be seen whether Plaintiff can satisfy such a nuanced

approach to the claim on its own health care provider agreement with BCBSLA, the

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record does not indicate that Plaintiff has otherwise ceded claims during the course

of litigation thus far.

This assignment lacks merit.

Assignment of Error 4 – Genuine Issue of Material Fact

In its final assignment of error, BCBSLA questions the trial court’s denial of

its motion for summary judgment on an evidentiary basis. It contends that its own

motion satisfied the procedural requirements of La.Code Civ.P. art. 966 and

Louisiana District Court Rule 9.10. It further suggested that its own evidentiary

production substantively showed that there were no genuine issues of material fact,

yet Plaintiff failed to satisfy Rule 9.10 as it did not respond to BCBSLA’s statement

of genuinely undisputed facts or include documentary references in opposition to

any such disputed facts. It argues that “[i]ndeed, Plaintiffs did not put forth even a

single document showing a material dispute for trial.”

In this regard, La.Dist.Ct. Rule 9.10 succinctly provides, in part, that:

(b) A memorandum in opposition to a motion for summary judgment
shall contain:

(1) A list of the material facts that the opponent contends are
genuinely disputed; and

(2) A reference to the document proving that each such fact is
genuinely disputed, with the pertinent part designated.

Rule 9.10 anticipates “genuinely disputed” facts. Again, however,

BCBSLA’s motion for summary judgment is one praying for recovery as a matter

of law as it poses questions related to statutory construction, construction of the

pleadings, and interpretation of this court’s prior rulings. Stated above in the

discussion of Assignment of Error 1, La.Code Civ.P. art. 966(A)(3) provides that “a

motion for summary judgment shall be granted if the motion, memorandum, and

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supporting documents show that there is no genuine issue as to material fact and that

the mover is entitled to judgment as a matter of law.” (Emphasis added.)

While the parties have vigorously disputed the import of the evidence

generated through discovery thus far, each side is entitled to and can best present all

relevant evidence bearing upon these important issues at a trial on the merits with a

full record then available for appellate review. We, therefore, affirm the trial court

and deny BCBSLA’s motion for summary judgment pursuant to La.Code Civ.P. art.

966.

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs

of this appeal are assigned to Defendant/Appellant, Louisiana Health Service &

Indemnity Company, d/b/a Blue Cross and Blue Shield of Louisiana.

AFFIRMED.

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