F I L E D

United States Court of Appeals

Tenth Circuit

APR 27 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL D. MITCHAEL, D.C.; CRAIG A.

FARNEY, D.C.; MARK E. RENO, D.C.;

DANIEL H. KELLY, D.C.; DOUGLAS J.

SCHOENHOFER, D.C.; CURTIS A.

WHEELER, D.C.; NATHAN E. HOLMAN,

D.C.; TIMOTHY D. BOLZ, D.C.; JAY

CARTER, D.C.; ROBERT L. DOPPS, D.C.;

DAVID MARTINEZ, D.C.; GARY S.

LARKIN, D.C.; KERRY L. COULTER,

D.C.; KATHRYN VAN WINKLE, D.C.;

LARRY THOMPSON, D.C.,

Plaintiffs - Appellants,

MARK A. BECK, D.C., doing business as

BECK CHIROPRACTIC CLINICS; FRED

DOPPS, D.C.; BENJAMIN BOWERS, D.C.;

DANIEL DOPPS, D.C.; TODD FARNEY,

D.C.; JOEL JOHNSON, D.C.; BRAD

DOPPS, D.C.; JOHN DOPPS, D.C.; TERRY

L. FARNEY, D.C., individually and on

behalf of all others similarly situated,

Plaintiffs/Counter-Defendants/

Appellants,

No. 98-3038

v.

INTRACORP, INC.,

Defendant - Appellee,
-2-

FARM BUREAU MUTUAL INSURANCE

COMPANY, INC.; KFB INSURANCE

COMPANY, INC.; FARMERS INSURANCE

COMPANY, INC.; MID CENTURY

INSURANCE COMPANY; SHELTER

MUTUAL INSURANCE COMPANY;

SHELTER GENERAL INSURANCE

COMPANY; STATE FARM AUTOMOBILE

INSURANCE COMPANY; STATE FARM

FIRE AND CASUALTY COMPANY;

TRINITY UNIVERSAL INSURANCE

COMPANY OF KANSAS, INC.,

Defendants/Counter-Claimants/

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NO. CV-94-1049-MLB)

Susan R. Schrag, Morris, Laing, Evans, Brock & Kennedy, Wichita, Kansas

(Robert W. Coykendall, Morris, Laing, Evans, Brock & Kennedy, Wichita,

Kansas; Ryan Hodge, Ray Hodge & Associates, Wichita, Kansas; Windell G.

Snow and Carolyn Sue Edwards, Wichita, Kansas, with her on the briefs), for

Appellants.

James D. Oliver (Jay F. Fowler and Mark A. Biberstein with him on the brief),

Foulston & Siefkin, L.L.P., Wichita, Kansas, for Appellee, Intracorp, Inc.

Heidi Dalenberg, Schiff Hardin & Waite, Chicago, Illinois (Richard L. Honeyman

and Donald N. Peterson II, Kahrs, Nelson, Fanning, Hite & Kellog, Wichita,

Kansas; David A. Morris, Stanford J. Smith, Jr., and Kenneth P. Leyba, Curfman,

Harris, Rose & Smith, L.L.P., Wichita, Kansas; Nicholas S. Daily, Depew &

Gillen, Wichita, Kansas; J. Stan Sexton, Hampton, Royce, Engleman & Nelson,

Salina, Kansas; Marci A. Eisenstein, Schiff Hardin & Waite, Chicago, Illinois;

and H. Lee Turner, Turner & Boisseau, Great Bend, Kansas, with her on the

brief), for Appellees, Insurance Companies.
*The Honorable H. Dale Cook, United States District Court for the

Northern District of Oklahoma, sitting by designation.

1Although they filed and pled their case as a class action, plaintiffs have

apparently not sought class certification. 

-3-

Before ANDERSON and McWILLIAMS, Circuit Judges, and COOK,

*

 District

Judge.

ANDERSON, Circuit Judge.

Plaintiffs, nineteen chiropractors led by Dr. Mark A. Beck d/b/a Beck

Chiropractic Clinics, appeal the district court’s grant of summary judgment to

defendants, as well as several other adverse rulings, in this antitrust case.1

Defendants are a group of insurance companies: Farm Bureau Mutual Insurance

Company, KFB Insurance Company, Farmers Insurance Company, Mid Century

Insurance Company, Shelter Mutual Insurance Company, Shelter General

Insurance Company, State Farm Automobile Insurance Company, State Farm Fire

& Casualty Company, and Trinity Universal Insurance Company of Kansas

(“Insurers”). An additional defendant is Intracorp, a “utilization review

company,” to which various insurance companies, including the Insurers, submit

insurance claims for review. 
2Plaintiffs also brought claims under RICO and various state laws. 

Defendants filed motions to dismiss the civil RICO and fraud claims, which the

district court denied. After the court granted summary judgment to defendants on

the federal antitrust claim, plaintiffs moved to amend their complaint to dismiss

the RICO claim. The court granted that motion and, on its own initiative,

dismissed the state law claims as well for lack of continued supplemental

jurisdiction.

3While there are nine named insurance company defendants, some of them

are related, so that there are, “functionally speaking,” five companies. See

Memorandum and Order at 5, Appellants’ App. Vol. XIV at 3768.

-4-

Plaintiffs brought this antitrust action against the Insurers and Intracorp,

alleging that Intracorp and the Insurers violated § 1 of the Sherman Act, 15

U.S.C. § 1, as well as Kansas antitrust laws, by utilizing Intracorp’s insurance

review process to fix prices and treatment schedules for chiropractic care

provided pursuant to automobile insurance policies issued by the Insurers.2 We

affirm the district court’s entry of summary judgment to defendants, as well as its

other orders.

BACKGROUND

Taking the facts as averred by the plaintiffs, and construing all reasonable

inferences therefrom in a light most favorable to the plaintiffs, the record reveals

the following:

The Insurers write automobile liability insurance policies in Kansas.3

Under Kansas law, those policies must provide minimum no fault personal injury
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protection (“PIP”) benefits for injuries the insured may sustain in an automobile

accident. By statute, PIP benefits are “allowances for all reasonable expenses . . .

for necessary health care” for injuries covered by the insurance policy. Kan. Stat.

Ann. § 40-3103(k) (1993). Kansas law does not define “reasonable” or

“necessary,” and insurance companies have the right to challenge the

reasonableness and necessity of any claimed benefits or care. This case involves

the Insurers’ determinations of reasonable and necessary expenses and health care

for chiropractic treatment provided as PIP benefits. 

Typically, when an insured seeks PIP benefits from one of the Insurers for

chiropractic care for injuries sustained in a car accident, the chiropractor accepts

a partial assignment of those benefits, provides treatment to the insured, and bills

the insurance company for the services rendered. If the Insurer decides to review

the claim for reasonableness and necessity, it either conducts the review itself

in-house, or uses an outside consultant such as Intracorp. Intracorp is a whollyowned subsidiary of Connecticut General Corporation which, in turn, is a whollyowned subsidiary of CIGNA. Intracorp is not itself an insurance company, nor is

Connecticut General or CIGNA. CIGNA has approximately one hundred

subsidiary corporations, however, some of which are insurance companies. 

Intracorp is one of several medical utilization review companies in the

Wichita area. Intracorp has provided to the Insurers two types of chiropractic
4Concurrent review was introduced because it theoretically permits more

efficient and economic care by avoiding unnecessary treatments before they are

provided. Its success in that regard is, however, unclear. 

-6-

claim review: retrospective and concurrent. Retrospective review evaluates the

necessity and reasonableness of treatment fees after the services have been

provided. Concurrent review evaluates the necessity and reasonableness of fees

while treatment is on-going, commencing with the initial diagnosis.4 Plaintiffs

challenge both Intracorp’s retrospective and concurrent review practices, claiming

that the Insurers, through Intracorp’s review process, arbitrarily limited costs and

reduced the number of treatments allowed for chiropractic care.

Plaintiffs do not specifically allege and document the extent to which each

Insurer actually used Intracorp’s services, although all the Insurers used Intracorp

at some point for at least some of their retrospective reviews, and all but one

Insurer used Intracorp at some point for at least some of their concurrent reviews. 

As the district court found, “[e]ach Insurer contracted with Intracorp at different

points in time and for different durations. The fact remains, however, that for at

least three continuous years, 1/1989 - 1/1992, all Insurers were contracting with

Intracorp for some of their retrospective review services.” Memorandum and

Order at 9 n.10, Appellants’ App. Vol. XIV at 3772. 

When retrospectively reviewing the reasonableness of chiropractic claims,

Intracorp and State Farm and, beginning in 1992, Farmers, used a fee survey
5The district court stated that “[t]here is no evidence regarding which

survey, if any, the other Insurers consulted to evaluate the reasonableness of

chiropractic claims not referred to Intracorp.” Memorandum and Order at 10

n.11, Appellants’ App. Vol. XIV at 3773. 

6As did the district court, we have experienced frustration in attempting to

extract relevant facts from the voluminous record in this case. Plaintiffs at times

make global statements about defendants’ conduct, but a review of the record

citation upon which they rely indicates that the conduct applies to only one

(continued...)

-7-

called “Fee Facts.”5

 Fee Facts is an independent publication which contains

information on chiropractic fees throughout the nation, broken down by

geographical area and individual procedure. It lists the fees at or below which

80% of area chiropractors charge, at or below which 90% of area chiropractors

charge, as well as the average charge. 

Beginning in January 1992, Intracorp began reviewing chiropractic claims

submitted to it under a concurrent review program called Targeted Care Review

(“TCR”). TCR was a three-level review providing on-going evaluation of a

treatment plan. In implementing TCR, Intracorp utilized a program developed by

independent chiropractors and used by Intracorp under license, as well as various

of its own internally developed evaluative criteria. Farmers never used

Intracorp’s TCR service. State Farm’s use “was minimal and ceased shortly after

Intracorp’s concurrent review program began.” Id. at 7 n.8, Appellants’ App.

Vol. XIV at 3770. Shelter used it from January through August 1992. Trinity and

Farm Bureau also utilized TCR to some extent.6 
6

(...continued)

defendant. For example, in discussing Intracorp’s TCR service, plaintiffs state

that “[u]nder this program all chiropractic bills were reviewed by Intracorp.” 

Appellants’ Br. at 5. The record citations, Appellants’ App. Vol. V at 1271-72,

Vol. VII at 1833, only support the conclusion that Farm Bureau, for some

unspecified period of time, referred all chiropractic claims to Intracorp. The

number of chiropractic claims actually submitted by Farm Bureau to Intracorp is

unclear. Moreover, that particular record citation reveals nothing about any of the

Insurers other than Farm Bureau. 

-8-

Whether conducting its review concurrently or retrospectively, Intracorp

reviewed chiropractic services and charges, identified those which it considered

unnecessary and/or unreasonable, and recommended to the particular Insurer the

amount to be paid and/or the number of treatments to be allowed. While the

evidence does not establish that the Insurers were obligated to follow Intracorp’s

recommendations, the district court concluded that, “[d]rawing all reasonable

inferences in favor of plaintiffs, . . . [the] Insurers almost always followed

Intracorp’s recommendations.” Memorandum and Order at 11, Appellants’ App.

Vol. XIV at 3774. 

With respect to the amounts charged, Intracorp generally recommended that

the Insurers not pay chiropractic bills exceeding the eightieth percentile as set

forth in Fee Facts. Further, “[a]ll defendants considered chiropractic charges at

or below the eightieth percentile of Fee Facts to be reasonable.” Id. While

charges exceeding that eightieth percentile figure were not considered

presumptively reasonable, “Insurers frequently paid above the eightieth percentile
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on claims reviewed in-house . . . [while] they rarely paid above the eightieth

percentile [on claims reviewed by Intracorp].” Id. at 3774-75. However, as the

district court pointed out, plaintiffs have not demonstrated the statistical

significance of these cost recommendations in that they present no evidence that

the Insurers reduced a statistically significant number of claims. 

With respect to Intracorp’s recommendations regarding treatment

schedules, plaintiffs rely heavily on an affidavit prepared by Kathy Barr, a legal

assistant employed by plaintiff Beck. The Barr affidavit describes 749 cases of

chiropractic claim review, 287 of which were conducted by Intracorp. Ms. Barr

does not identify what proportion of all chiropractic reviews this represents,

either in terms of all chiropractic reviews conducted by the Insurers, all PIP

benefits claims for chiropractic treatment, or all of Intracorp’s chiropractic

reviews. Ms. Barr reports that 95% of the time, when the actual number of

chiropractic visits exceeded thirty, the reviewer recommended that the insurance

company cut the number of visits deemed necessary. Barr Aff. at ¶ 14,

Appellants’ App. Vol. VIII at 2098-99. She also reports that 80% of the time,

when the actual treatment duration exceeded three months, the reviewer

recommended cutting the duration of treatment. Id. at ¶ 15, Appellants’ App.

Vol. VIII at 2099. She does not identify how many times Intracorp made that

recommendation, although the supporting data shows that all the reviewers
7As the district court observed, “Barr fails to mention a few other

interesting points. Insurers refused to pay for at least one visit for 60% of all

claims in which the number of visits was thirty or fewer. Insurers cut 76% of all

749 files down to twenty-five or fewer sessions. They cut 56% of all files to

twenty or fewer sessions.” Memorandum and Order at 15, Appellants’ App. Vol.

XIV at 3778. Further, “[o]f the 282 patient files indicating more than thirty

treatment sessions, Insurers paid for twenty or fewer sessions 33% of the time,

twenty-one to twenty-five sessions 26% of the time, twenty-six to thirty sessions

23% of the time, and more than thirty sessions 18% of the time.” Id. at 15-16,

Appellants’ App. Vol. XIV at 3778-79. 

-10-

(Intracorp and other independent consultants and internal reviews by Farmers) at

times recommended reducing the number of treatments, and not only when the

number of treatments exceeded thirty.7 

The parties presented no evidence on the Insurers’ individual or collective

market shares for PIP insurance, nor on the “market share of Insurers’ PIP

insureds for chiropractic care.” Memorandum and Order at 5, Appellants’ App.

Vol. XIV at 3768. Additionally, as noted by the district court, “[t]he record does

not reflect (1) the percentage of chiropractic claims selected for review either by

each Insurer or by Insurers as a group, (2) out of those selected, the percentage of

claims referred to outside companies for review, or (3) the percentage of those

referrals sent to Intracorp.” Id. at 7, Appellants’ App. Vol. XIV at 3770. 

 With respect to the interaction between the defendant Insurers, the district

court found the following facts established: 

Leading up to and during the alleged conspiracy, agents of

defendants discussed among themselves, in telephone conversations,
-11-

through correspondence, at conventions or seminars, and in meetings

with the Kansas Insurance Commissioner, their individual procedures

for review of chiropractic claims, the merits of Fee Facts, and the

universal adoption of a uniform fee schedule that would be

acceptable to chiropractors for use in determining whether a

chiropractic charge is reasonable. There is no direct testimony or

evidence that the agents discussed (1) treatment caps whether termed

as schedules, protocols, or otherwise, (2) effecting a general

reduction in chiropractic charges (as distinct from reducing insurance

company payouts on unnecessary or unreasonable chiropractic

claims), (3) uniform use of TCR, (4) uniform adoption of the

eightieth percentile of Fee Facts as a price ceiling or as

presumptively marking the top end of reasonable rates, (5)

establishing a monopoly or oligopoly, (5) (sic) discouraging their

insureds from patronizing chiropractors, or (6) (sic) any other

restraint of trade.

Plaintiffs have presented no evidence regarding the specific

criteria each Insurer employed to determine whether to review a

claim. Instead, they have merely presented evidence that a list of

suggested referral criteria created by Intracorp was found in each

Insurer’s files. There is no evidence that any Insurer adopted

Intracorp’s suggested criteria. Insurers do not appear to deny,

however, that the review criteria used by each Insurer contained

certain common elements. Although the record is not a model of

clarity, Insurers appear to have uniformly used the following referral

criteria: (1) more than 26 visits within ninety days in a course of

treatment exceeding ninety days, (2) more than two modalities per

office visit, (3) x-rays of a larger area of the spine than where the

patient described pain, (4) multiple x-rays, (5) treatments considered

duplicative, and (6) use of unorthodox treatments, such as

thermography.

Memorandum and Order at 12-14, Appellants’ App. Vol. XIV at 3775-77

(footnote omitted). 

From all of the above facts, plaintiffs derive either an explicit or implicit

agreement among the Insurers and Intracorp to fix prices and treatment schedules
8Both in the district court and on appeal, no one has separately discussed

the claims based on Kansas law. See Memorandum and Order at 3 n.4,

Appellants’ App. Vol. XIV at 3766. The district court concluded “that state and

federal law are functionally equivalent,” and did not separately analyze plaintiffs’

claims under state law. Id. Like the district court, we conclude that our

resolution under federal law adequately disposes of plaintiffs’ claims under state

law.

-12-

for chiropractic care, in violation of § 1 of the Sherman Act and the Kansas

antitrust laws.8 They accordingly brought this action. 

Before discovery commenced, the defendants moved for summary judgment

on the antitrust claims. After the summary judgment motions were filed, the court

ruled that the initial phase of discovery would be limited to the issue of the

existence of an antitrust conspiracy. Discovery proceeded, and more than seventy

witnesses were deposed and thousands of pages of documents were produced.

Terry G. Lee, a former employee of defendant Farmers, was deposed during

the course of discovery. In his deposition, he testified that, with the exception of

a July 1991 meeting at the Kansas Insurance Commissioner’s office, he never

discussed price caps or schedules with any of the Insurers, nor was he aware of

any chiropractic treatment frequency cut-off, nor did he attend any meeting,

except in July 1991, at the Insurance Commissioner’s office where chiropractic

bill review was discussed. After the close of discovery, however, plaintiffs

produced an affidavit from Mr. Lee in which he arguably contradicted his

deposition, or at least more clearly recalled discussions and meetings where
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pricing and treatment protocols were discussed. Defendants moved to strike the

Lee affidavit and the court granted the motion, finding “that the submission of

Lee’s affidavit represents an attempt to create a sham issue of fact.” 

Memorandum and Order at 2, Appellants’ App. Vol. XIV at 3750. Several

months into discovery the plaintiffs moved, pursuant to 28 U.S.C. § 455(a)-(b)(2),

for the recusal of the district court judge.

After discovery was closed, plaintiffs submitted their brief in opposition to

defendants’ summary judgment motions. They included therewith a 22-volume

appendix consisting of more than 4000 pages of documents and other materials, to

which plaintiffs failed to attach an authenticating affidavit. Further briefing

ensued, including defendants’ objection to plaintiffs’ filings in opposition on the

ground that they failed to comply with D. Kan. R. 56.1.

After the close of discovery, the district court ruled on the various motions

pending before it. It (1) granted the defendants’ motion for summary judgment,

finding that there was insufficient evidence of the existence of an agreement in

violation of the antitrust laws; (2) struck all the documents upon which plaintiffs

relied to controvert defendants’ summary judgment motions, on the ground that

they violated Fed. R. Civ. P. 56 and local Rule 56.1; (3) struck the Lee affidavit;

and (4) denied plaintiffs’ motion to have the judge recuse. 
-14-

Plaintiffs appeal, arguing the court erred in (1) striking the Lee affidavit

and their documents filed in opposition to defendants’ summary judgment

motions; (2) finding that plaintiffs failed to demonstrate a factual dispute on the

existence of an agreement to restrain trade thereby entitling the defendants to

summary judgment; and (3) failing to recuse from this case. We affirm the

district court in all respects. 

DISCUSSION

I. Evidentiary Rulings

Before addressing whether the district court properly granted summary

judgment to defendants on plaintiffs’ § 1 antitrust claim, we first address the

propriety of the court’s evidentiary rulings which plaintiffs challenge on appeal. 

As indicated, the district court struck Mr. Lee’s affidavit, as well as plaintiffs’

22-volume unauthenticated appendix filed in opposition to defendants’ motion for

summary judgment. “Like other evidentiary rulings, we review a district court’s

decision to exclude evidence at the summary judgment stage for abuse of

discretion.” Sports Racing Servs., Inc. v. Sports Car Club of America, Inc., 131

F.3d 874, 894 (10th Cir. 1997). We find no abuse in either case.
9Were we to consider the Lee affidavit as circumstantial evidence of an

antitrust conspiracy, we agree with the Insurers and the district court that the

affidavit is unpersuasive because much of it is conclusory, vague, and/or lacking

in foundation. A crucial paragraph purporting to state Mr. Lee’s personal

knowledge of an anticompetitive agreement states that “Farmers and other auto

carriers, including State Farm, Kansas Farm Bureau, Shelter and possibly Trinity

had an agreement or understanding that we all needed to be using uniform pricing

and treatment schedules in paying auto first and third party medical claims.” Lee

Aff. ¶ 4, Appellants’ App. Vol. VIII at 2203-04. Mr. Lee fails to state how he

learned of this agreement, who exactly represented the other insurance companies,

how he could speak for what they wanted or needed, when this agreement or

understanding was formed, and how it was to operate. 

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A. Mr. Lee’s Affidavit

Mr. Lee worked for defendant Farmers for twelve years, from 1982 to 1993. 

The circumstances of his leaving Farmers, and incidents which have occurred

since his departure, make it amply clear why, as the district court observed, “there

is no love to be lost between Lee and Farmers.” Appellants’ App. Vol. XIV at

3753. The district court struck Mr. Lee’s affidavit because its submission

“represents an attempt to create a sham issue of fact,” id. at 3750, and because the

court was convinced, after considering Mr. Lee’s deposition testimony, that

“plaintiffs were deliberately sandbagging defendants,” id. at 3759. After

carefully reviewing Mr. Lee’s deposition and affidavit, as well as the evidence in

this case, we agree with the district court. It therefore did not abuse its discretion

in striking Mr. Lee’s affidavit. See Sports Racing Servs., Inc., 131 F.3d at 894.9
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B. Documents in Opposition

In opposition to the Insurers’ motion for summary judgment, plaintiffs filed

with the district court approximately 4000 pages of documents, consisting of “550

deposition exhibits, and 119 other documents produced during discovery or

gathered from sources other than through the formal discovery process.” 

Appellants’ Br. at 30. As the plaintiffs concede, “[t]hese documents were

submitted to the Court without an authenticating affidavit attached to them.” Id.

The Insurers did not object to that lack of authentication at that time. 

Plaintiffs, perhaps anticipating a challenge to the admissibility of those

documents, served on defendants requests for admissions and interrogatories. 

Certain of the Insurers filed motions for protective orders and the matter was

referred to a magistrate judge, who directed all parties to “attempt in good faith to

reach stipulations regarding the use of the documents in plaintiffs’ response to

defendants’ motion for summary judgment.” Appellants’ App. Vol. IV at 1152. 

The parties thereafter corresponded among themselves and ultimately

reached the following stipulation: 

Each defendant stipulates and agrees not to raise objections in

connection with the pending summary judgment motions on the

ground of authenticity of documents or on the ground that a

document was not maintained by that defendant in the normal course

of business as to any documents which (1) were produced by that

defendant during the course of discovery in this matter and which

bear bates numbers affixed by that defendant, and (2) were authored

by an employee of that defendant.
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Appellants’ App. Vol. XIV at 3860. Plaintiffs did not provide the court with that

stipulation until after the court struck their documents, ruling, in the course of

granting defendants’ summary judgment motions, that the documents failed to

comply with Fed. R. Civ. P. 56 and local Rule 56.1.

On appeal, plaintiffs argue the court erred in sua sponte striking their

responsive documents for lack of authentication. As the defendants point out,

however, the district court struck those documents for several reasons:

[P]laintiffs (1) failed to “specifically controvert” defendants’

statements of facts with denials or counter-statements that fairly met

the substance of defendants’ statements, (2) failed to support many of

their facts with adequate citations to the record, (3) intermixed their

responses and their own statements of “facts” with legal arguments

and asserted inferences to be drawn from the facts, (4)

mischaracterized much of the evidence, and (5) failed to present

much of their documentary evidence in an admissible form.

Memorandum and Order at 4, Appellants’ App. Vol. XIV at 3767. Thus, it is

clear, as defendants argue, that the failure to authenticate the 4000 pages of

documents was but one ground for striking them. The documents also wholly

failed to comply with the requirement that they specifically controvert the

defendants’ fact statements with adequate and accurate record support. Indeed,

the district court’s order denying plaintiffs’ motion to reconsider its summary

judgment ruling makes it clear that a different resolution of the authentication
10As the court stated, “[c]onsideration of the struck papers would have

made no difference in the court’s resolution of any issue in light of the court’s

other rulings on plaintiffs’ presentation of the facts.” Appellants’ App. Vol. XIV

at 3864. 

11Technically, having affirmed the district court’s decision to strike

plaintiffs’ responsive documents, we could simply affirm summary judgment to

defendants on the ground that plaintiffs have failed to controvert defendants’

evidence demonstrating the absence of an antitrust conspiracy. See Universal

Money Centers, Inc. v. American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir.

1994) (noting that once the moving party carries its initial burden to show the

absence of an issue of genuine fact, non-moving party may not rest on allegations

in pleadings, but “‘must set forth specific facts showing that there is a genuine

issue for trial’” (quoting Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc.,

912 F.2d 1238, 1241 (10th Cir. 1990)). However, like the district court, we

alternatively address the merits of the grant of summary judgment, on the

assumption that plaintiffs at least attempted to controvert defendants’ averments. 

-18-

issue would not have changed the court’s ultimate decision to grant judgment to

defendants.10

We therefore affirm the district court’s order striking plaintiffs’ responsive

documents, and deeming the Insurers’ and Intracorp’s fact statements

uncontroverted for summary judgment purposes. We now turn to the propriety of

the court’s grant of summary judgment.11

II. Summary Judgment

We review the grant of summary judgment de novo, applying the same

standard as did the district court. Sports Racing Servs., Inc., 131 F.3d at 882. 

Thus, summary judgment is proper “‘if the pleadings, depositions, answers to
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interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.’” Law v. NCAA, 134 F.3d 1010, 1016

(10th Cir.) (quoting Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996)), cert.

denied, 119 S. Ct. 65 (1998). Plaintiffs have alleged that the Insurers and

Intracorp, through various fee and treatment review services utilized by Intracorp

and by the Insurers, agreed to fix prices and treatment schedules and protocols for

chiropractic treatment.

Section 1 of the Sherman Act “forbids agreements in restraint of trade.” 

SCFC ILC, Inc. v. Visa USA, Inc., 36 F.3d 958, 962 (10th Cir. 1994). While § 1

generally forbids only “unreasonable” agreements, certain practices, like pricefixing, “are entirely void of redeeming competitive rationales” and are therefore

deemed “per se illegal under section 1.” Id. at 963; see also Law, 134 F.3d at

1017. Other agreements alleged to restrain trade are analyzed under a “rule of

reason.” Law, 134 F.3d at 1016-17. Accordingly, to survive defendants’ motion

for summary judgment, the plaintiffs must first demonstrate the existence of an

agreement, whether by direct or by circumstantial evidence. See Cayman

Exploration Corp. v. United Gas Pipeline Co., 873 F.2d 1357, 1361 (10th Cir.

1989). 
-20-

A. Direct Evidence

The plaintiffs make several arguments concerning direct evidence of the

existence of an agreement: first, they rely upon Copperweld Corp. v.

Independence Tube Corp., 467 U.S. 752 (1984), to argue that, by virtue of its

insurance company sibling subsidiaries and/or its parent CIGNA, we should view

Intracorp as an insurance company for antitrust purposes, such that its alleged

agreements with the Insurers to review chiropractic charges constitute a

horizontal agreement in restraint of trade, per se illegal under § 1; second, they

argue that, should we not view Intracorp as a horizontal competitor of the

Insurers, but rather an independent third party consultant, there is nonetheless

sufficient evidence that it agreed with the Insurers to restrain trade; and third,

they argue there is direct evidence of an agreement directly between the Insurers. 

We reject all these arguments.

1. Intracorp as an Insurer under Copperweld

The Court held in Copperweld that a parent corporation and its wholly

owned subsidiary could not “conspire” within the meaning of § 1: “the

coordinated activity of a parent and its wholly owned subsidiary must be viewed

as that of a single enterprise for purposes of § 1 of the Sherman Act.” 

Copperweld, 467 U.S. at 771. This is so because “[a] parent and its wholly
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owned subsidiary have a complete unity of interest[, and t]heir objectives are

common, not disparate; their general corporate actions are guided or determined

not by two separate corporate consciousnesses, but one.” Id. 

Plaintiffs wish to extend Copperweld to hold that a subsidiary and its

parent, or a subsidiary and a sister subsidiary, can be considered one entity for all

§ 1 purposes, and either one can be liable for conspiring to restrain trade, even

where there is no evidence that both were involved in the challenged conduct. 

We reject this extension. Despite Copperweld’s expansive language about the

economic unity of a parent and subsidiary, the Court held only that “the

coordinated activity” of a parent and subsidiary must be viewed as that of a single

enterprise for § 1 purposes. Id. (emphasis added). Like the district court, echoing

the sentiments of another district court, we decline to be the first court to interpret

Copperweld dicta in the expansive way plaintiffs wish. See Bellsouth Adver. &

Publ’g Corp. v. Donnelley Info. Publ’g, Inc., 719 F. Supp. 1551, 1568 (S.D. Fla.

1988), rev’d on other grounds, 999 F.2d 1436 (11th Cir. 1993). In the absence of

any specific evidence of coordinated activity, we will not consider Intracorp as an

insurance company on the same horizontal level as the Insurers merely because it
12Plaintiffs characterize CIGNA as a “giant insurance conglomerate.” 

Appellants’ Br. at 15. Plaintiffs further assert that “there was abundant evidence

of a concerted effort by CIGNA to ensure that Intracorp was furthering the

purposes of CIGNA and its insurance company subsidiaries.” Id. at 21. 

However, as Intracorp points out, that “abundant evidence” consists of various

facts, or circumstances, which are typical of any parent and subsidiary. Our

review of the record, as illuminated by plaintiffs’ record citations, fully supports

the district court’s conclusion that “[t]here is no evidence of any involvement by

Intracorp’s parent or sister corporations in this case [and t]here is no evidence

that Intracorp is merely the alter ego of its parent or sister corporations.” 

Memorandum and Order at 26, Appellants’ App. Vol. XIV at 3789. 

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happens to be the wholly owned subsidiary of a company, CIGNA, which owns

other subsidiaries which are insurance companies.12

 

2. Intracorp as Consultant

Plaintiffs also argue that, even if we do not view Intracorp as a horizontal

competitor of the Insurers (i.e., in reality another insurance company), the

agreements between it and the Insurers to provide medical utilization reviews

constitute the requisite § 1 agreements. We reject this argument. Absent some

indication that these agreements have facilitated a conspiracy among the Insurers

to restrain trade, we do not conclude that, standing alone, these individual

agreements for Intracorp to review the reasonableness of fees charged are

unlawful under § 1. See Quality Auto Body, Inc. v. Allstate Ins. Co., 660 F.2d

1195, 1203 (7th Cir. 1981) (holding that agreements between insurance companies

and auto repair shops to perform repairs at prevailing competitive rate did not
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alone violate antitrust laws). As we discuss below, plaintiffs fail to demonstrate

that there is any factual dispute about the existence of any illegal agreement so as

to preclude granting defendants summary judgment.

3. Agreement Between Insurers

Plaintiffs also argue there is direct evidence of an agreement between the

Insurers to fix prices and treatment schedules. Before the district court, plaintiffs

argued that Mr. Lee’s affidavit, “the statement of Farmers’ and Intracorp’s

attorneys in connection with state court proceedings,” and “the testimony of

Barbara Peters” substantiate their claim of direct evidence of an agreement. 

Memorandum and Order at 26, Appellants’ App. Vol. XIV at 3789 (citing Doc.

401 at 34). On appeal, they argue only that Mr. Lee’s affidavit constitutes direct

evidence justifying the denial of summary judgment. We have affirmed the

court’s decision to strike Mr. Lee’s affidavit. We discern no other relevant

evidence from the record. We accordingly affirm the district court’s

determination that plaintiffs proffered insufficient direct evidence of an

agreement to warrant a denial of summary judgment to defendants. 
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B. Circumstantial Evidence

Plaintiffs further argue that they presented sufficient circumstantial

evidence of an agreement between the Insurers so as to avoid summary judgment. 

The district court held they did not, and we agree.

Circumstantial evidence may support the existence of an illegal § 1

agreement. Cayman Exploration Corp., 873 F.2d at 1361. However, on summary

judgment, antitrust law “limits the range of permissible inferences from

ambiguous evidence in a § 1 case.” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 587-88 (1986). “To survive a motion for summary

judgment . . . , a plaintiff seeking damages for a violation of § 1 must present

evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted

independently.” Id. at 588 (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465

U.S. 752, 764 (1984)); see also Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1391

(10th Cir. 1992). Thus, “[t]he acceptable inferences which we can draw from

circumstantial evidence vary with the plausibility of the plaintiffs’ theory and the

danger associated with such inferences.” In re Baby Food Antitrust Litig., 166

F.3d 112, 124 (3d Cir. 1999). As we have observed, “ambiguous conduct that is

as consistent with permissible competition as with illegal conspiracy does not by

itself support an inference of antitrust conspiracy under Sherman Act section 1.” 
-25-

Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal and Prof’l

Publications, Inc., 63 F.3d 1540, 1556 (10th Cir. 1995).

Plaintiffs argue that “the facts showing the consistency of behavior by the

insurer defendants, coupled with the facts showing that the reviews by Intracorp

were performed on a consistent basis, demonstrates [sic] a consistency of action

sufficient to support a circumstantial case for the existence of an agreement.”

Appellants’ Reply Br. at 8. While consciously parallel behavior may contribute to

a finding of antitrust conspiracy, it is insufficient, standing alone, to prove

conspiracy. Cayman Exploration Corp., 873 F.2d at 1361. Such parallel behavior

may, however, support the existence of an illegal agreement “when augmented by

‘additional evidence from which an understanding among the parties may be

inferred.’ Such evidence may include a showing that the parties ‘are acting

against their own individual business interests, or that there is motivation to enter

into an agreement requiring parallel behavior.’” Monument Builders of Greater

Kansas City, Inc. v. American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1481

(10th Cir. 1989) (quoting 2 J. Von Kalinowski, Antitrust Laws & Trade

Regulation § 6.01[3][a][ii], at 6-36 to 6-37 (1989)); see also In re Baby Food

Antitrust Litig., 166 F.3d at 122 (noting that courts require “plus factors,” which

are “‘the additional facts or factors required to be proved as a prerequisite to

finding that parallel action amounts to a conspiracy’” (quoting Phillip Areeda,
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Antitrust Law ¶ 1433(e) (1986)). Mere exchanges of information, even regarding

price, are not necessarily illegal, in the absence of additional evidence that an

agreement to engage in unlawful conduct resulted from, or was a part of, the

information exchange. See In re Baby Food Antitrust Litig., 166 F.3d 112, 118

(3d Cir. 1999); United States v. Suntar Roofing, Inc., 897 F.2d 469, 475 (10th

Cir. 1990). 

The district court held, after carefully examining all the record evidence

upon which plaintiffs rely, that “[t]he evidence demonstrates parallel conduct

among all five Insurers only with respect to their common use of Intracorp for

retrospective review of chiropractic claims, using the eightieth percentile of Fee

Facts as the presumptive measure of reasonableness, from 1989 to 1992.” 

Memorandum and Order at 28, Appellants’ App. Vol. XIV at 3791. It further

found that that parallel conduct failed to support the inference of conspiracy,

because plaintiffs failed to demonstrate that defendants had a motive to conspire

or that they acted interdependently. We agree.

First, we agree with the district court that Intracorp clearly is entitled to

summary judgment, as plaintiffs do not even seriously attempt to articulate

Intracorp’s motive or necessity to conspire with the Insurers to reduce the cost

and frequency of chiropractic treatments provided by the Insurers as PIP benefits. 
-27-

We further agree that plaintiffs fail to demonstrate why the Insurers also

should not prevail on summary judgment. Plaintiffs argue they have advanced a

plausible economic theory for the claimed conspiracy, in that the Insurers desired

to “[s]tabilize [p]rices and [c]ut [c]osts.” Appellants’ Br. at 38. They also assert

that the Insurers would be motivated to act jointly by a fear that an individual

Insurer attempting to lower costs would risk losing clientele because chiropractors

would refuse to treat that Insurer’s patrons. Finally, plaintiffs argue the Insurers

would be motivated to act jointly because they could more easily defend bad faith

refusal-to-pay claims by asserting conformity to industry practice. We agree with

the district court that plaintiffs’ theories are unsupported by the evidence. 

Plaintiffs’ posited economic theory—that the Insurers are motivated to

conspire in order to reduce costs and stabilize prices—is based largely on a

purported agreement to cap chiropractic fees at 80% under Fee Facts

(representing the figure at or below which 80% of area chiropractors charge for a

particular procedure). While perhaps sounding initially appealing, the evidence

shows this agreement would make little economic sense from the Insurers’

perspective. Indeed, it would as likely result in increased costs for the Insurers,

as chiropractors charging less than the 80% fee would be inclined to raise their
13In support of this argument, plaintiffs rely upon a chart showing the

average cost, the 80% cost and the 90% cost for one chiropractic procedure. 

Appellants’ App. Vol. VI at 1445. Aside from the fact that this chart relates to

only one chiropractic procedure, which makes extrapolations about all

chiropractic procedures difficult, it also in fact shows an increase in the average

cost of that procedure from 1990 through 1993, as well as increases in the 80%

and 90% figures. This hardly supports the inference that the Insurers were

engaged in a conspiracy to reduce costs.

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fees to that level, if that is what all the Insurers were willing to pay, and

plaintiffs’ evidence in fact suggests just that.13

With respect to the argument that the Insurers feared unilateral action

would cause them to lose clients, as well as the argument that the Insurers were

motivated to act jointly because of concerns about bad faith litigation, we agree

with and adopt the district court’s analysis and assessment of both the evidence,

which we have independently reviewed, and the law. 

Finally, plaintiffs’ failure to place the asserted instances of cost and

treatment cuts in a larger economic context renders plaintiffs’ claimed conspiracy

entirely speculative. We have carefully reviewed every piece of evidence cited to

us by plaintiffs as circumstantially indicative of the existence of an agreement

between the Insurers and/or Intracorp. At most, they show that the Insurers

shared a common concern about chiropractic cost containment, and that, at times,

some of them shared information about how each one individually handled

chiropractic claims and that, at times, the Insurers used Intracorp to review
-29-

chiropractic claims. Under Matsushita, plaintiffs have simply failed to present

evidence tending to exclude the possibility that the defendants acted

independently out of a legitimate and reasonable concern to control chiropractic 

costs. 

We therefore hold that plaintiffs have presented neither direct nor

circumstantial evidence sufficient to withstand defendants’ motions for summary

judgment. We affirm the district court’s grant of summary judgment on

plaintiffs’ antitrust claims.

III. Recusal

Plaintiffs filed a motion seeking Judge Belot’s recusal from this case. They

argue that “in light of the nature of the claims, the time period covered by the

claims, and the fact that the judge, prior to assuming the bench, had an extensive

insurance defense practice, had represented some of the defendants, and had

worked with some of the defense witnesses in the past created a situation in

which the judge’s impartiality might reasonably be questioned.” Appellants’ Br.

at 45. We review the denial of a motion for recusal for an abuse of discretion. 

Cauthon v. Rogers, 116 F.3d 1334, 1336 (10th Cir. 1997). We find no abuse in

this case.
14At the hearing on plaintiffs’ motion to recuse, one of plaintiffs’ counsel

conceded that they were not arguing any personal bias or prejudice on the part of

Judge Belot. 

-30-

28 U.S.C. § 455(a) provides for the disqualification of a judge “in any

proceeding in which his impartiality might reasonably be questioned.” 

Section 455(b)(1) provides for disqualification “[w]here he has a personal bias or

prejudice concerning a party, or personal knowledge of disputed evidentiary facts

concerning the proceeding.” Finally, § 455(b)(2) provides for disqualification

“[w]here in private practice he served as lawyer in the matter in controversy, or a

lawyer with whom he previously practiced law served during such association as a

lawyer concerning the matter . . . .” Plaintiffs initially sought Judge Belot’s

recusal under all three provisions. As the district court found, plaintiffs presented

no evidence even suggesting that the judge had any personal bias or prejudice

under § 455(b)(1) or that the judge or a lawyer with whom he was previously

associated served as counsel in the matter in controversy under § 455(b)(2).14

Thus, they are left with their claim of recusal under § 455(a). 

Under § 455(a), “a judge has a continuing duty to recuse before, during, or,

in some circumstances, after a proceeding, if the judge concludes that sufficient

factual grounds exist to cause an objective observer reasonably to question the

judge’s impartiality.” United States v. Cooley, 1 F.3d 985, 992 (10th Cir. 1993). 

The crux of plaintiffs’ complaint about Judge Belot is that, prior to becoming a
15Plaintiffs suggest that Judge Belot’s or his former partner’s prior

representation of insurance companies may not have been “unrelated” to this case. 

“The actions taken may well have been part of the overall strategy of some of the

insurers to cap chiropractic reimbursement rates.” Appellants’ Br. at 48. That is

pure speculation; there is absolutely no evidence connecting any prior litigation

involving Judge Belot or his former partner and this case. 

-31-

judge, he had represented some of the defendant Insurers, or at least represented

some of their insureds, and that his former partner had been selected in 1987 as

one of State Farm’s defense attorneys for chiropractic claims. We agree with the

district court that that is insufficient to require recusal under § 455.

Included in the non-exclusive list of matters ordinarily insufficient to

justify recusal are “mere familiarity with the defendant(s), or the type of charge,

or kind of defense presented.” Nichols v. Alley, 71 F.3d 347, 351 (10th Cir.

1995) (quoting Cooley, 1 F.3d at 994). Reduced to its essence, that is what

plaintiffs argue should cause Judge Belot to recuse from this case—familiarity

with insurance defense work. Plaintiffs concede that “[t]he fact that Judge Belot

represented two of the defendants in unrelated matters would not automatically

require him to recuse himself.” Appellants’ Br. at 47. We agree with the district

court that Judge Belot was also not obligated under § 455(a) to recuse himself

from this case because he and/or his former partner had represented insurance

companies in other insurance-related litigation.15 
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CONCLUSION

For the foregoing reasons, the judgment and orders of the district court are

AFFIRMED.