## 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 & Kenn edy, 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, withher on the briefs), for Appellants. James D. Oliver (Jay F. Fowler and Mark A. Biberste in with him on the brief), Foulston & Siefkin, L.L.P., Wichita, Kansas, for Ap pellee, Intracorp, Inc. Heidi Dalenberg, Schiff Hardin & Waite, Chicago, Il linois (Richard L. Honeyman and Donald N. Peterson II, Kahrs, Nelson, Fanning, Hite & Kellog, Wichita, Kansas; David A. Morris, Stanford J. Smith, Jr., an d Kenneth P. Leyba, Curfman, Harris, Rose & Smith, L.L.P., Wichita, Kansas; Nich olas S. Daily, Depew & Gillen, Wichita, Kansas; J. Stan Sexton, Hampton, R oyce, Engleman & Nelson, Salina, Kansas; Marci A. Eisenstein, Schiff Hardin & Waite, Chicago, Illinois; and H. Lee Turner, Turner & Boisseau, Great Bend, K ansas, 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 designati on.

1 Although they filed and pled their case as a class action, plaintiffs have apparently not sought class certification. -3- Before ANDERSON and McWILLIAMS , Circuit Judges, andCOOK , * 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 g rant of summary judgment to defendants, as well as several other adverse ruling s, in this antitrust case. 1 Defendants are a group of insurance companies: Farm Bureau Mutual Insurance Company, KFB Insurance Company, Farmers Insurance C ompany, 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, inc luding the Insurers, submit insurance claims for review.2 Plaintiffs also brought claims under RICO and vario us state laws.

Defendants filed motions to dismiss the civil RICO and fraud claims, which the district court denied. After the court granted sum mary judgment to defendants on the federal antitrust claim, plaintiffs moved to am end 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.

3 While there are nine named insurance company defend ants, some of them are related, so that there are, “functionally speak ing,” five companies. See Memorandum and Order at 5, Appellants’ App. Vol. XI V at 3768. -4- Plaintiffs brought this antitrust action against th e 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 ut ilizing Intracorp’s insurance review process to fix prices and treatment schedule s for chiropractic care provided pursuant to automobile insurance policies issued by the Insurers. 2 We affirm the district court’s entry of summary judgme nt 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 t he plaintiffs, the record reveals the following: The Insurers write automobile liability insurance p olicies in Kansas. 3 Under Kansas law, those policies must provide minim um no fault personal injury-5-

protection (“PIP”) benefits for injuries the insure d 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 defi ne “reasonable” or “necessary,” and insurance companies have the rightto challenge the reasonableness and necessity of any claimed benefit s or care. This case involves the Insurers’ determinations of reasonable and nece ssary 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 a ccident, the chiropractor accepts a partial assignment of those benefits, provides tr eatment to the insured, and bills the insurance company for the services rendered. I f the Insurer decides to review the claim for reasonableness and necessity, it eith er conducts the review itself in-house, or uses an outside consultant such as Intracorp. Intracorp is a whollyowned subsidiary of Connecticut General Corporationwhich, in turn, is a whollyowned subsidiary of CIGNA. Intracorp is not itself an insurance company, nor is Connecticut General or CIGNA. CIGNA has approximat ely one hundred subsidiary corporations, however, some of which are insurance companies. Intracorp is one of several medical utilization rev iew companies in the Wichita area. Intracorp has provided to the Insure rs two types of chiropractic4 Concurrent review was introduced because it theoret ically 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. Retro spective review evaluates the necessity and reasonableness of treatment fees afte r the services have been provided. Concurrent review evaluates the necessity and reasonableness of fees while treatment is on-going, commencing with the in itial diagnosis. 4 Plaintiffs challenge both Intracorp’s retrospective and concurrent review practices, claiming that the Insurers, through Intracorp’s review proce ss, arbitrarily limited costs and reduced the number of treatments allowed for chirop ractic care. Plaintiffs do not specifically allege and document the extent to which each Insurer actually used Intracorp’s services, althoug h all the Insurers used Intracorp at some point for at least some of their retrospect ive reviews, and all but one Insurer used Intracorp at some point for at least s ome of their concurrent reviews. As the district court found, “[e]ach Insurer contra cted with Intracorp at different points in time and for different durations. The fa ct 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 se rvices.” Memorandum and Order at 9 n.10, Appellants’ App. Vol. XIV at 3772. When retrospectively reviewing the reasonableness o f chiropractic claims, Intracorp and State Farm and, beginning in 1992, Farmers, used a fee survey5 The district court stated that “[t]here is no evide nce regarding which

survey, if any, the other Insurers consulted to eva luate the reasonableness of chiropractic claims not referred to Intracorp.” Me morandum and Order at 10 n.11, Appellants’ App. Vol. XIV at 3773.

6 As did the district court, we have experienced frus tration in attempting to extract relevant facts from the voluminous record i n this case. Plaintiffs at times make global statements about defendants’ conduct, b ut a review of the record citation upon which they rely indicates that the co nduct applies to only one (continued...) -7- called “Fee Facts.” 5 Fee Facts is an independent publication which con tains information on chiropractic fees throughout the nat ion, broken down by geographical area and individual procedure. It lis ts 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 reviewin g chiropractic claims submitted to it under a concurrent review program c alled Targeted Care Review (“TCR”). TCR was a three-level review providing on -going evaluation of a treatment plan. In implementing TCR, Intracorp uti lized a program developed by independent chiropractors and used by Intracorp und er license, as well as various of its own internally developed evaluative criteria . Farmers never used Intracorp’s TCR service. State Farm’s use “was min imal 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 thr ough August 1992. Trinity and Farm Bureau also utilized TCR to some extent. 66 (...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, Appell ants’ 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 chiropract ic claims to Intracorp. The number of chiropractic claims actuallysubmitted 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 retro spectively, Intracorp reviewed chiropractic services and charges, identif ied 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 t o 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] Insu rers almost always followed Intracorp’s recommendations.” Memorandum and Orderat 11, Appellants’ App. Vol. XIV at 3774. With respect to the amounts charged, Intracorp gene rally recommended that the Insurers not pay chiropractic bills exceeding t he eightieth percentile as set forth in Fee Facts. Further, “[a]ll defendants con sidered chiropractic charges at or below the eightieth percentile of Fee Facts to b e reasonable.” Id. While charges exceeding that eightieth percentile figure were not considered presumptively reasonable, “Insurers frequently paidabove the eightieth percentile-9-

on claims reviewed in-house . . . [while] they rare ly paid above the eightieth percentile [on claims reviewed by Intracorp].” Id. at 3774-75. However, as the district court pointed out, plaintiffs have not dem onstrated the statistical significance of these cost recommendations in that they present no evidence that the Insurers reduced a statistically significant nu mber of claims. With respect to Intracorp’s recommendations regardi ng treatment schedules, plaintiffs rely heavily on an affidavit prepared by Kathy Barr, a legal assistant employed by plaintiff Beck. The Barr aff idavit describes 749 cases of chiropractic claim review, 287 of which were conduc ted by Intracorp. Ms. Barr does not identify what proportion of all chiropract ic reviews this represents, either in terms of all chiropractic reviews conduct ed 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, wh en the actual number of chiropractic visits exceeded thirty, the reviewer r ecommended that the insurance company cut the number of visits deemed necessary. Barr Aff. at ¶ 14, Appellants’ App. Vol. VIII at 2098-99. She also re ports that 80% of the time, when the actual treatment duration exceeded three m onths, 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 reviewers7As the district court observed, “Barr fails to ment ion a few other

interesting points. Insurers refused to pay for atleast 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 fewersessions. They cut 56% of all files to twenty or fewersessions.” 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 few er 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 “marketshare of Insurers’ PIP insureds for chiropractic care.” Memorandum and Or der at 5, Appellants’ App. Vol. XIV at 3768. Additionally, as noted by the di strict court, “[t]he record does not reflect (1) the percentage of chiropractic clai ms 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 defend ant Insurers, the district court found the following facts established:

Leading up to and during the alleged conspiracy, ag ents of defendants discussed among themselves, in telephone conversations,-11-

through correspondence, at conventions or seminars, and in meetings with the Kansas Insurance Commissioner, their indiv idual procedures for review of chiropractic claims, the merits of Fe e Facts, and the universal adoption of a uniform fee schedule that w ould be acceptable to chiropractors for use in determining whether a chiropractic charge is reasonable. There is no dir ect testimony or evidence that the agents discussed (1) treatment caps whether termed as schedules, protocols, or otherwise, (2) effectin g a general reduction in chiropractic charges (as distinct from reducing insurance company payouts on unnecessary or unreasonable chir opractic claims), (3) uniform use of TCR, (4) uniform adopti on of the eightieth percentile of Fee Facts as a price ceilin g or as presumptively marking the top end of reasonable rat es, (5) establishing a monopoly or oligopoly, (5) (sic) dis couraging their insureds from patronizing chiropractors, or (6) (si c) any other restraint of trade. Plaintiffs have presented no evidence regarding the specific criteria each Insurer employed to determine whetherto review a claim. Instead, they have merely presented evidenc e that a list of suggested referral criteria created by Intracorp wa s found in each Insurer’s files. There is no evidence that any Ins urer adopted Intracorp’s suggested criteria. Insurers do not ap pear to deny, however, that the review criteria used by each Insu rer contained certain common elements. Although the record is no t 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 sp ine than where the patient described pain, (4) multiple x-rays, (5) tr eatments 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 eith er an explicit or implicit agreement among the Insurers and Intracorp to fix p rices and treatment schedules8 Both in the district court and on appeal, no one ha s separately discussed

the claims based on Kansas law. See Memorandum and Order at 3 n.4, Appellants’ App. Vol. XIV at 3766. The district co urt concluded “that state and federal law are functionally equivalent,” and did n ot 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 S herman Act and the Kansas antitrust laws. 8 They accordingly brought this action. Before discovery commenced, the defendants moved fo r summary judgment on the antitrust claims. After the summary judgmen t 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 pr oceeded, and more than seventy witnesses were deposed and thousands of pages of do cuments were produced. Terry G. Lee, a former employee of defendant Farmer s, was deposed during the course of discovery. In his deposition, he tes tified that, with the exception of a July 1991 meeting at the Kansas Insurance Commiss ioner’s office, he never discussed price caps or schedules with any of the I nsurers, nor was he aware of any chiropractic treatment frequency cut-off, nor d id he attend any meeting, except in July 1991, at the Insurance Commissioner’ s office where chiropractic bill review was discussed. After the close of disc overy, however, plaintiffs produced an affidavit from Mr. Lee in which he argu ably contradicted his deposition, or at least more clearly recalled discu ssions and meetings where-13-

pricing and treatment protocols were discussed. De fendants moved to strike the Lee affidavit and the court granted the motion, fin ding “that the submission of Lee’s affidavit represents an attempt to create a s ham issue of fact.” Memorandum and Order at 2, Appellants’ App. Vol. XI V 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 th eir brief in opposition to defendants’ summary judgment motions. They include d therewith a 22-volume appendix consisting of more than 4000 pages of docu ments and other materials, to which plaintiffs failed to attach an authenticating affidavit. Further briefing ensued, including defendants’ objection to plaintif fs’ filings in opposition on the ground that they failed to comply with D. Kan. R. 5 6.1. After the close of discovery, the district court ru led 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 m otions, 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) s triking the Lee affidavit and their documents filed in opposition to defendan ts’ summary judgment motions; (2) finding that plaintiffs failed to demo nstrate 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 th is case. We affirm the district court in all respects.

DISCUSSION I. Evidentiary Rulings Before addressing whether the district court proper ly granted summary judgment to defendants on plaintiffs’ § 1 antitrustclaim, 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 a ffidavit, as well as plaintiffs’ 22-volume unauthenticated appendix filed in opposit ion to defendants’ motion for summary judgment. “Like other evidentiary rulings, we review a district court’s decision to exclude evidence at the summary judgmen t 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 i n either case.9 Were we to consider the Lee affidavit as circumstan tial evidence of an

antitrust conspiracy, we agree with the Insurers an d the district court that the affidavit is unpersuasive because much of it is con clusory, vague, and/or lacking in foundation. A crucial paragraph purporting to s tate Mr. Lee’s personal knowledge of an anticompetitive agreement states th at “Farmers and other auto carriers, including State Farm, Kansas Farm Bureau, Shelter and possibly Trinity had an agreement or understanding that we all neede d to be using uniform pricing and treatment schedules in paying auto first and th ird party medical claims.” Lee Aff. ¶ 4, Appellants’ App. Vol. VIII at 2203-04. M r. 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

. -15- A. Mr. Lee’s Affidavit Mr. Lee worked for defendant Farmers for twelve yea rs, from 1982 to 1993. The circumstances of his leaving Farmers, and incid ents which have occurred since his departure, make it amply clear why, as th e district court observed, “there is no love to be lost between Lee and Farmers.” Ap pellants’ App. Vol. XIV at 3753. The district court struck Mr. Lee’s affidavi t because its submission “represents an attempt to create a sham issue of fa ct,” id. at 3750, and because the court was convinced, after considering Mr. Lee’s de position testimony, that “plaintiffs were deliberately sandbagging defendant s,” 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 th erefore did not abuse its discretion in striking Mr. Lee’s affidavit. See Sports Racing Servs., Inc. , 131 F.3d at 894. 9-16-

B. Documents in Opposition In opposition to the Insurers’ motion for summary j udgment, plaintiffs filed with the district court approximately 4000 pages of documents, consisting of “550 deposition exhibits, and 119 other documents produc ed 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 af fidavit attached to them.” Id. The Insurers did not object to that lack of authent ication at that time. Plaintiffs, perhaps anticipating a challenge to the admissibility of those documents, served on defendants requests for admiss ions and interrogatories. Certain of the Insurers filed motions for protectiv e orders and the matter was referred to a magistrate judge, who directed all pa rties to “attempt in good faith to reach stipulations regarding the use of the documen ts in plaintiffs’ response to defendants’ motion for summary judgment.” Appellants’ App. Vol. IV at 1152. The parties thereafter corresponded among themselve s and ultimately reached the following stipulation: Each defendant stipulates and agrees not to raise o bjections in connection with the pending summary judgment motion s on the ground of authenticity of documents or on the groun d that a document was not maintained by that defendant in th e normal course of business as to any documents which (1) were prod uced 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.-17-

Appellants’ App. Vol. XIV at 3860. Plaintiffs did not provide the court with that stipulation until after the court struck their docu ments, ruling, in the course of granting defendants’ summary judgment motions, thatthe 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. A s 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-stateme nts 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) fail ed to present much of their documentary evidence in an admissible form. Memorandum and Order at 4, Appellants’ App. Vol. XI V at 3767. Thus, it is clear, as defendants argue, that the failure to aut henticate the 4000 pages of documents was but one ground for striking them. Th e documents also wholly failed to comply with the requirement that they spe cifically controvert the defendants’ fact statements with adequate and accur ate record support. Indeed, the district court’s order denying plaintiffs’ moti on to reconsider its summary judgment ruling makes it clear that a different res olution of the authentication10 As the court stated, “[c]onsideration of the struckpapers would have

made no difference in the court’s resolution of anyissue in light of the court’s other rulings on plaintiffs’ presentation of the fa cts.” Appellants’ App. Vol. XIV at 3864.

11 Technically, having affirmed the district court’s d ecision to strike plaintiffs’ responsive documents, we could simply a ffirm summary judgment to defendants on the ground that plaintiffs have faile d 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 it s 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, li ke the district court, we alternatively address the merits of the grant of su mmary judgment, on the assumption that plaintiffs at least attempted to co ntrovert defendants’ averments. -18- issue would not have changed the court’s ultimate d ecision to grant judgment to defendants. 10
We therefore affirm the district court’s order stri king plaintiffs’ responsive documents, and deeming the Insurers’ and Intracorp’ s fact statements uncontroverted for summary judgment purposes. We n ow 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, ap plying 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-19-

interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act 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 th at the Insurers and Intracorp, through various fee and treatment reviewservices utilized by Intracorp and by the Insurers, agreed to fix prices and treat ment schedules and protocols for chiropractic treatment. Section 1 of the Sherman Act “forbids agreements inrestraint of trade.” SCFC ILC, Inc. v. Visa USA, Inc. , 36 F.3d 958, 962 (10th Cir. 1994). While § 1 generally forbids only “unreasonable” agreements, c ertain 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 a re analyzed under a “rule of
reason.” Law , 134 F.3d at 1016-17. Accordingly, to survive def endants’ motion for summary judgment, the plaintiffs must first dem onstrate the existence of an agreement, whether by direct or by circumstantial e vidence. 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 di rect evidence of the existence of an agreement: first, they rely upon C opperweld Corp. v. Independence Tube Corp. , 467 U.S. 752 (1984), to argue that, by virtue of its insurance company sibling subsidiaries and/or its p arent 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 horiz ontal competitor of the Insurers, but rather an independent third party con sultant, there is nonetheless sufficient evidence that it agreed with the Insurer s to restrain trade; and third, they argue there is direct evidence of an agreementdirectly between the Insurers. We reject all these arguments.

1. Intracorp as an Insurer under Copperweld The Court held in Copperweldthat a parent corporation and its wholly owned subsidiary could not “conspire” within the me aning of § 1: “the coordinated activity of a parent and its wholly own ed 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-21-

owned subsidiary have a complete unity of interest[ , and t]heir objectives are common, not disparate; their general corporate acti ons are guided or determined not by two separate corporate consciousnesses, but one.” Id. Plaintiffs wish to extend Copperweldto 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 cons piring 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 coordinatedactivity” of a parent and subsidiary must be viewe d as that of a single enterprise for § 1 purposes. Id. (emphasis added). Like the district court, echoin g the sentiments of another district court, we declin e to be the first court to interpret Copperwelddicta 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 o f any specific evidence of coordinated activity, we w ill not consider Intracorp as an insurance company on the same horizontal level as t he Insurers merely because it12 Plaintiffs characterize CIGNA as a “giant insurance conglomerate.”

Appellants’ Br. at 15. Plaintiffs further assert t hat “there was abundant evidence of a concerted effort by CIGNA to ensure that Intra corp was furthering the purposes of CIGNA and its insurance company subsidi aries.” Id. at 21. However, as Intracorp points out, that “abundant ev idence” consists of various facts, or circumstances, which are typical of any p arent 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 c ase [and t]here is no evidence that Intracorp is merely the alter ego of its paren t or sister corporations.” Memorandum and Order at 26, Appellants’ App. Vol. X IV at 3789. -22- happens to be the wholly owned subsidiary of a comp any, 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 anothe r insurance company), the agreements between it and the Insurers to provide m edical utilization reviews constitute the requisite § 1 agreements. We rejectthis argument. Absent some indication that these agreements have facilitated aconspiracy among the Insurers to restrain trade, we do not conclude that, standin g alone, these individual agreements for Intracorp to review the reasonablene ss 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 prevail ing competitive rate did not-23-

alone violate antitrust laws). As we discuss below , plaintiffs fail to demonstrate that there is any factual dispute about the existen ce of any illegal agreement so as to preclude granting defendants summary judgment.

3. Agreement Between Insurers Plaintiffs also argue there is direct evidence of a n agreement between the Insurers to fix prices and treatment schedules. Be fore the district court, plaintiffs argued that Mr. Lee’s affidavit, “the statement of Farmers’ and Intracorp’s attorneys in connection with state court proceeding s,” and “the testimony of Barbara Peters” substantiate their claim of direct evidence of an agreement. Memorandum and Order at 26, Appellants’ App. Vol. X IV at 3789 (citing Doc. 401 at 34). On appeal, they argue only that Mr. Le e’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 th e district court’s determination that plaintiffs proffered insufficien t direct evidence of an agreement to warrant a denial of summary judgment t o defendants.-24-

B. Circumstantial Evidence Plaintiffs further argue that they presented suffic ient 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 o f an illegal § 1 agreement. Cayman Exploration Corp. , 873 F.2d at 1361. However, on summary judgment, antitrust law “limits the range of permis sible 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 motio n for summary judgment . . . , a plaintiff seeking damages for a violation of § 1 must present evidence ‘that tends to exclude the possibility’ th at the alleged conspirators acted independently.” Id. at 588 (quoting Monsanto Co. v. Spray-Rite Serv. C orp. , 465 U.S. 752, 764 (1984)); see also Coffey v. Healthtrust, Inc. , 955 F.2d 1388, 1391 (10th Cir. 1992). Thus, “[t]he acceptable inferenc es which we can draw from circumstantial evidence vary with the plausibility of the plaintiffs’ theory and the danger associated with such inferences.” In re Bab y 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 conspiracyunder Sherman Act section 1.”-25-

Multistate Legal Studies, Inc. v. Harcourt Brace Jo vanovich Legal and Prof’l Publications, Inc. , 63 F.3d 1540, 1556 (10th Cir. 1995). Plaintiffs argue that “the facts showing the consis tency 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 para llel behavior may contribute to a finding of antitrust conspiracy, it is insufficie nt, standing alone, to prove conspiracy. Cayman Exploration Corp. , 873 F.2d at 1361. Such parallel behavior may, however, support the existence of an illegal a greement “when augmented by ‘additional evidence from which an understanding am ong the parties may be inferred.’ Such evidence may include a showing that the parties ‘are acting against their own individual business interests, orthat there is motivation to enter into an agreement requiring parallel behavior.’” M onument Builders of Greater Kansas City, Inc. v. American Cemetery Ass’n of Kan sas , 891 F.2d 1473, 1481 (10th Cir. 1989) (quoting 2 J. Von Kalinowski, Anti trust Laws & Trade Regulation§ 6.01[3][a][ii], at 6-36 to 6-37 (1989)); see als o 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 b e proved as a prerequisite to finding that parallel action amounts to a conspirac y’” (quoting Phillip Areeda,-26-

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 fr om, 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, In c. , 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 de monstrates 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. X IV at 3791. It further found that that parallel conduct failed to support the inference of conspiracy, because plaintiffs failed to demonstrate that defen dants had a motive to conspire or that they acted interdependently. We agree. First, we agree with the district court that Intrac orp clearly is entitled to summary judgment, as plaintiffs do not even serious ly attempt to articulate Intracorp’s motive or necessity to conspire with th e Insurers to reduce the cost and frequency of chiropractic treatments provided b y the Insurers as PIP benefits.-27-

We further agree that plaintiffs fail to demonstrat e why the Insurers also should not prevail on summary judgment. Plaintiffs argue they have advanced a plausible economic theory for the claimed conspirac y, in that the Insurers desired to “[s]tabilize [p]rices and [c]ut [c]osts.” Appel lants’ 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. Fina lly, plaintiffs argue the Insurers would be motivated to act jointly because they coul d more easily defend bad faith refusal-to-pay claims by asserting conformity to in dustry practice. We agree with the district court that plaintiffs’ theories are un supported by the evidence. Plaintiffs’ posited economic theory—that the Insure rs are motivated to conspire in order to reduce costs and stabilize pri ces—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 a rea chiropractors charge for a particular procedure). While perhaps sounding init ially appealing, the evidence shows this agreement would make little economic sen se from the Insurers’ perspective. Indeed, it would as likely result in increasedcosts for the Insurers, as chiropractors charging less than the 80% fee wou ld be inclined to raise their13 In support of this argument, plaintiffs rely upon achart showing the

average cost, the 80% cost and the 90% cost for one chiropractic procedure. Appellants’ App. Vol. VI at 1445. Aside from the f act that this chart relates to only one chiropractic procedure, which makes extrap olations about all chiropractic procedures difficult, it also in fact shows an increase in the average cost of that procedure from 1990 through 1993, as w ell as increases in the 80% and 90% figures. This hardly supports the inferenc e that the Insurers were engaged in a conspiracy to reduce costs. -28- fees to that level, if that is what all the Insurer s were willing to pay, and plaintiffs’ evidence in fact suggests just that. 13 With respect to the argument that the Insurers fear ed unilateral action would cause them to lose clients, as well as the ar gument 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 as sessment 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 e very 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, th ey show that the Insurers shared a common concern about chiropractic cost con tainment, and that, at times, some of them shared information about how each one individually handled chiropractic claims and that, at times, the Insurer s used Intracorp to review-29-

chiropractic claims. Under Matsushita , plaintiffs have simply failed to present evidence tending to exclude the possibility that th e defendants acted independently out of a legitimate and reasonable co ncern to control chiropractic

costs. We therefore hold that plaintiffs have presented ne ither direct nor circumstantial evidence sufficient to withstand def endants’ 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 rec usal from this case. They argue that “in light of the nature of the claims, t he time period covered by the claims, and the fact that the judge, prior to assum ing 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 pa st 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 recusa l for an abuse of discretion. Cauthon v. Rogers , 116 F.3d 1334, 1336 (10th Cir. 1997). We find no abuse in this case.14 At the hearing on plaintiffs’ motion to recuse, one of plaintiffs’ counsel

conceded that they were not arguing any personal bi as or prejudice on the part of Judge Belot. -30- 28 U.S.C. § 455(a) provides for the disqualificatio n of a judge “in any proceeding in which his impartiality might reasonab ly 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) p rovides 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 servedduring such association as a lawyer concerning the matter . . . .” Plaintiffs i nitially sought Judge Belot’s recusal under all three provisions. As the distric t 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 wit h whom he was previously associated served as counsel in the matter in contr oversy under § 455(b)(2). 14 Thus, they are left with their claim of recusal und er § 455(a). Under § 455(a), “a judge has a continuing duty to r ecuse before, during, or, in some circumstances, after a proceeding, if the j udge concludes that sufficient factual grounds exist to cause an objective observe r 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 Belotis that, prior to becoming a15 Plaintiffs suggest that Judge Belot’s or his formerpartner’s prior

representation of insurance companies may not have been “unrelated” to this case. “The actions taken may well have been part of the o verall strategy of some of the insurers to cap chiropractic reimbursement rates.” Appellants’ Br. at 48. That is pure speculation; there is absolutely no evidence c onnecting any prior litigation involving Judge Belot or his former partner and thi s case. -31- judge, he had represented some of the defendant Ins urers, or at least represented some of their insureds, and that his former partnerhad been selected in 1987 as one of State Farm’s defense attorneys for chiroprac tic claims. We agree with the district court that that is insufficient to require recusal under § 455. Included in the non-exclusive list of matters ordin arily insufficient to justify recusal are “mere familiarity with the defe ndant(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 th at “[t]he fact that Judge Belot represented two of the defendants in unrelated matt ers would not automatically require him to recuse himself.” Appellants’ Br. at47. 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 partnerhad represented insurance companies in other insurance-related litigation. 15-32- CONCLUSION For the foregoing reasons, the judgment and orders of the district court are
AFFIRMED.