US_ACTIVE-101014147.4-CEKERNIC 2/2/09 6:16 PM

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

Highmark, Inc., § 

 § 

 Plaintiff, § Civil No: 4:03 CV-1384-Y 

 § 

 v. § Judge Terry R. Means 

 § 

Allcare Health Management Systems, Inc., § 

 § 

 Defendant. § 

REPLY OF HIGHMARK INC. TO ALLCARE’S RESPONSE IN 

OPPOSITION TO HIGHMARK’S MOTION 

FOR EXCEPTIONAL CASE FINDING AND AWARD OF 

ATTORNEY FEES AND EXPENSES 

Cynthia E. Kernick 

Pa. ID No. 43912 

Kevin S. Katona 

PA ID No. 91651 

REED SMITH LLP 

435 Sixth Avenue 

Pittsburgh, PA 15219 

(412) 288-4176/3848 

Eugene LeDonne 

N.Y. ID No. 2923258 

REED SMITH LLP 

599 Lexington Avenue 

29th Floor 

New York, NY 10022 

(212) 521-5402 

and 

Craig B. Florence 

Texas State Bar No. 07158010 

Robert Slovak 

Texas State Bar No. 24013523 

GARDERE WYNNE SEWELL L.L.P. 

1601 Elm Street, Suite 3000 

Dallas, TX 75201 

(214) 999-3000 

Case 4:03-cv-01384-Y Document 530 Filed 02/02/09 Page 1 of 15 PageID 14384
-iTABLE OF CONTENTS 

Page 

A. Allcare Admits Failure To Reasonably Investigate......................................................2 

B. Dr. Holland’s Opinion Was Insufficient to Prove Infringement.................................5 

C. Bad Faith Litigation Tactics...........................................................................................6 

Res Judicata and Collateral Estoppel.................................................................................6 

Shifting Claim Construction ..............................................................................................6 

False Representations to Judge Lancaster..........................................................................7 

Misrepresentations On Experts ..........................................................................................7 

Withholding the Corky Hoffman Reports..........................................................................7 

The "Five Motions"............................................................................................................8

Failure to Adequately Produce Documents .......................................................................8 

Settlement Discussions ......................................................................................................8 

D. An Award of Fees Is Appropriate Under Rule 11 and This Court’s Inherent 

Powers...............................................................................................................................9 

E. Conclusion......................................................................................................................10 

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TABLE OF AUTHORITIES 

Page

CASES

Fort James Corp. v. Solo Cup Co., 412 F.3d 1340 (Fed. Cir. 2005) .............................................. 4 

Get-A-Grip, II, Inc. v. Hornell Brewing Co., Inc., 2002 WL 234289 (E.D. 

Pa. Feb. 15, 2002) ............................................................................................................... 6 

In re Silica Prods. Liability Lit., 398 F. Supp. 2d 563 (S.D. Tex. 2005)........................................ 4 

LaserDynamics, Inc. v. Asus Computer Int’l., No. 2:06-CV-348, 2009 WL 

153161 (E.D. Tex. Jan. 21, 2009)....................................................................................... 4 

Serio-US Indus. v. Plastic Recovery Techs. Corp., 459 F.3d 1311 (Fed. 

Cir. 2006) .......................................................................................................................... 10 

View Eng’g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981 (Fed. Cir. 

2000) ............................................................................................................................... 5, 9 

Yamanouchi Pharm. Co. v. Danbury Pharmacal, Inc., 231 F.3d 1339 (Fed. 

Cir. 2000) .......................................................................................................................... 10 

RULES

Fed.R.Civ.P. 11............................................................................................................................... 6 

Fed.R.Civ.P. 11(c)(4)...................................................................................................................... 9 

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 Four lines into the Opposition, Allcare Health Management Systems, Inc. (“Allcare”) 

makes its first untrue statement: Allcare “never accused Highmark of infringing [Claim 1] either 

before or during this suit.” Both Allcare’s Answer and Counterclaim, Doc. No. 22 at ¶ 21 (Dec. 

16, 2003) and its first Amended Answer and Counterclaim, Doc. No. 35 at ¶ 20 (Jan. 30, 2004) 

specifically allege infringement of Claim 1. A few lines later, Allcare makes its second false

claim: “Allcare’s patent litigation counsel discussed the accused system [i.e. Highmark’s] with 

experts in the field to confirm his own determination of infringement.” In support, Allcare cites 

to the Declaration of Steven G. Hill (“Hill Dec.”) A.162-631

 (at ¶¶ 104-105). Mr. Hill represents 

that he discussed Highmark’s system with Allcare’s experts Dr. Holland and Mr. Kaliski before

asserting infringement. Id. Yet during discovery, these experts confirmed they were not

consulted as to Highmark’s system until September 2004 and April 2004, respectively, long after

Allcare asserted infringement. See SA 01–10. This may explain Mr. Hill’s repeated failures to 

provide documentary support for his six-year old recollections. A look at the underlying facts

confirms that Mr. Hill’s recollections are, charitably speaking, merely wishful. His selfinterested declaration should be dismissed as unsupported and inadmissible rhetoric. 

 The Robert Shelton Declaration (the “Shelton Dec.”) that was used in an attempt to rebut 

false representations to Judge Lancaster of the Western District of Pennsylvania, Opp. 22, suffers 

from the same failure to provide documents whose contents are “recalled” by Mr. Shelton. A 

review of only some of these documents confirms that Shelton, too, makes material 

misrepresentations of fact regarding his control over the actions of Seaport Survey, see infra at 7. 

 Messrs. Hill and Shelton are both interested parties to Highmark’s Motion; it is they 

whose bad acts justify Highmark’s Motion. Yet, as shown by the examples above, their 

 

1

 References to the record beginning with “A” refer to Allcare’s Appendix in Support of its Opposition 

(filed under seal on January 7, 2009). References to “HA” are to Highmark’s original appendix and 

“SA” are to Highmark’s Supplemental Appendix for which leave to file has been contemporaneously 

sought with the filing of this Reply. 

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declarations are based largely on the purported contents of documents not submitted to the Court 

despite the requirement of Local Rule 7.1(i)(1) (“a party who relies on documentary...or nondocumentary evidence...to oppose a motion must include such evidence in an appendix”). Most 

egregiously, the Hill Dec. presents generalities that Allcare heavily relies upon concerning an 

alleged opinion by Mr. Hill for which there is a dearth of hard proof. 

 To muddy the waters, the disjointed and scattershot Opposition relies on claim 

construction charts prepared in the Trigon action even though Highmark’s Motion is predicated 

upon Allcare’s frivolous assertions of infringement. The Opposition confuses facts related to 

Claim 1 with those related to Claim 52, confuses applicable law governing Fed.R.Civ.P. 11 with 

that governing 35 U.S.C. § 285, and repeatedly confuses the timing of events to support its 

arguments. (e.g. A0140, ¶ 12.) To benefit its position, Allcare again falsely suggests that there 

is a legal relationship between Trigon and Highmark and that their systems are the same. Opp. 2. 

Allcare knows this to be untrue. See SA 011 (Mr. Shelton to Seaport Surveys: “there are 

multiple entries for ‘Blue Cross Blue Shield’ which is appropriate since there’s at least one such 

healthcare group per state and these are separate entities” (emphasis added)), and PFOF 132. 

 Finally, Allcare does not dispute applicable legal standards. It simply cites, regardless of 

relevance, a litany of Federal Circuit cases summarily adopting a district court’s decision not to 

assess fees. When read, these cases actually confirm Highmark’s position. Allcare is betting 

that this Court will not look behind its arguments for record and case law support. Allcare is 

betting that its repeated declarations of good faith will outweigh the facts clearly proven in 

Highmark’s moving papers. Highmark respectfully asks the Court to ignore Allcare’s hyperbole 

and self-serving declarations and base its decision on the documented record. 

A. Allcare Admits Failure To Reasonably Investigate

The Opposition continues Allcare’s unmitigated efforts to pretend that Highmark and 

Trigon are related companies with similar systems. Its argument is akin to the following 

fallacious syllogism: “I examined this Dell computer and believe it infringes. Gateway also 

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makes a computer, therefore Gateway must infringe.” Allcare’s intractable fascination with the 

Trigon action―one that did not result in a finding of infringement―has exponentially expanded 

the cost of this action by forcing Highmark to file repeated motions designed to clarify the lack 

of significance of the claim construction rulings in Trigon (“Trigon Rulings”). A0169 at ¶131(b) 

– (f). Critically, this Court never held those rulings to be persuasive authority despite Allcare’s 

repeated incantations to the contrary. A0150, ¶ 61: 

The Court notes, however, that all references to the Trigon rulings will be 

evaluated purely for persuasive effect and will not be granted precedential weight. 

The Court’s present ruling does not, in any way, affect the right of the Court or 

any other entity given judicial authority during the pendency of this action to 

agree or disagree, wholly or in part, with the rulings made in the Trigon action. 

Those entities sitting in judicial authority over the above-styled and numbered 

cause retain their right in full to preside over this action as they deem appropriate 

and necessary, regardless of the decisions made by the district court for the 

Eastern District of Virginia in the Trigon action. 

See Doc. 245 at 6 n.7 (emphasis added). 

 Rather than litigating its case against Highmark, Allcare tried to make this litigation 

about what did or did not happen in the Trigon Action and the ghost of Trigon haunts this case 

still. Now, Allcare admits that it evaluated whether Highmark infringed based on Allcare’s 

understanding of the Trigon system, rather than Highmark’s own system. See A0140 (Hill Dec. 

at ¶12) (“Early in discovery, Allcare provided Highmark with a claim chart in this case (A5-21) 

which was of our pre-filing analysis of infringement against Trigon...”) (emphasis added); and 

Opp. 24 n.25 citing A0142 ¶ 22 (Dr. Holland investigated the Trigon system). Rather than 

undercutting the clear and convincing evidence offered by Highmark, Allcare’s efforts to 

shoehorn Allcare’s conclusions vis-à-vis Trigon into its alleged pre-filing investigation of 

Highmark underscores why this case is exceptional. 

 Allcare never explains why it commissioned a survey but didn’t include questions on 

whether limitations of Claim 102 or Claim element 52(c) existed in Highmark’s system. 

PFOF 99-102. It is more than a little ironic that Allcare now relies so heavily on the underlying 

facts of Trigon because Allcare never proved in court that the Trigon system infringed any claim 

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of the ‘105 Patent and analysis of that system thus is not exculpatory. PFOF 77-79. Moreover, 

Allcare refused to produce in discovery any information about the Trigon system, arguing that 

Trigon had designated its system information to be confidential, a fact confirmed by Trigon in 

filings to this Court (Doc. 299 at 2). Allcare cannot now reap a benefit from disclosure in 

apparent disregard of the Trigon Protective Order (see Opp. at 2, n.4; A0139 at ¶ 10) of long 

withheld information or rely upon Mr. Hill’s unsupported opinion that the two systems are the 

same. The pernicious nature of Allcare’s actions proves this case is, in fact, exceptional. 

Its reliance on the Trigon action seeks to mask Allcare’s failure to provide any 

documentary evidence disproving its prior admission that its only pre-filing infringement 

analysis was done by the lay Mr. Shelton. See PFOF 92-102. Nor does it competently explain 

the absence of the alleged Hill analysis on its privileged log and why no documents are 

submitted now to prove the existence of the analysis.2 A party cannot use an opinion of counsel 

to shield it from liability but then refuse to produce the opinion under the guise of “work 

product” as Allcare continues to do, even now (Opp. at 1 n. 3). Once a party announces that it 

will rely on advice of counsel, any privilege or work product protection is waived. Fort James 

Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed. Cir. 2005). Because Allcare refused (and 

continues to refuse) to produce the opinion, Allcare cannot rely upon it in opposing Highmark’s 

Motion. LaserDynamics, Inc. v. Asus Computer Int’l., No. 2:06-CV-348, 2009 WL 153161, at 

*3 & n.3 (E.D. Tex. Jan. 21, 2009) (parties may not rely on documents not produced during 

discovery); and In re Silica Prods. Liability Lit., 398 F. Supp. 2d 563, 617 n.93 (S.D. Tex. 2005) 

(documents must be produced if plaintiff wishes to rely on them). 

Allcare’s only documentary evidence of any infringement analysis is the November 4, 

2004 chart created by Mr. Hill (A0005-21). There is a timing problem with this evidence. On its 

 

2

 Its only justification is at A0104, 2d para., i.e., the legally improper position that documents 

containing legal advice, created after 1999, did not have to be identified on any privileged log. 

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face, it confirms it was created a year after Allcare’s Answer and Counterclaim first asserted 

infringement. Thus, Allcare’s only documented evidence of a pre-filing infringement analysis

actually post-dates its claim of infringement. And, as admitted by Allcare, even this analysis was 

based on Allcare’s view of the Trigon system. Opp. (passim); A0139, ¶ 10. This slight of hand, 

time-shifting, litigation tactic is just the sort of bad faith litigation tactic on which Highmark’s 

Motion is based. 

In the cases cited by Allcare (in which courts have found a comprehensive pre-filing 

investigation sufficient to avoid an exceptional case finding), it was because there was nothing 

more that could have been done, pre-filing, to assess potential infringement. Here there was 

more that Allcare could and should have done: (1) it could have evaluated Highmark’s system, 

instead of relying on its analysis of Trigon, and (2) its survey could have asked whether 

Highmark’s system entered data symbolic of patients’ symptoms for tentatively identifying a 

proposed mode of treatments. It did neither. Allcare’s complaint that Highmark refused, 

without litigation, to disclose a highly proprietary system containing confidential patient 

information (protected by HIPPA) does not excuse Allcare’s failure to do any reasonable 

investigation. View Eng’g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 986 (Fed. Cir. 2000) 

(failure to perform an infringement analysis is not reasonable). 

B. Dr. Holland’s Opinion Was Insufficient to Prove Infringement

 Allcare provides no reasonable explanation for its abrupt and summary dismissal of 

allegations of Claim 102 after 5+ years. The entirety of Allcare’s defense on this issue appears 

in the Opp. at 16. There, it pretends that Dr. Holland’s testimony vis-à-vis Claim 102 was not 

defective because (in Mr. Hill’s opinion) Dr. Holland had opined that the Highmark system 

“interconnected” the employee and patient as well as the employer and bank. Mr. Hill misses the 

point. The defect in Dr. Holland’s testimony was his admission that required participants did not 

interact (as opposed to being “interconnected”). (PFOF 35). Allcare has provided no response 

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to or explanations for Dr. Holland’s failure to find the requisite “interaction” in Highmark’s 

system. 

Allcare attempts to justify its unexplained withdrawal with prejudice of allegations of 

infringement of Claim 102 after five years by likening it to Highmark’s withdrawal of its 

counterclaims without prejudice after Highmark won on non-infringement. As Highmark 

contemporaneously advised this Court, Doc. 505, this was done in the interests of judicial 

economy so that Allcare’s appeal could proceed. Allcare’s hindsight argument that its 

withdrawal as to Claim 102 was a “strategic” decision, Opp. at 16, is not supported with a similar 

contemporaneous explanation. Its intent should have been noted in response to Highmark’s 

summary judgment motion. Instead, Allcare simply, and irresponsibly, failed to respond at all. 

Doc. 455 at 1. As to Allcare’s view that assertions as to Claim 1 didn’t belong in this action at 

all, Opp. at 5, this statement is inconsistent with Allcare’s extensive reliance on the Trigon 

Rulings which found that “[t]he basis of the ‘105 patent, [is] found in Claim 1 . . .” A0041 

(emphasis added). 

C. Bad Faith Litigation Tactics

 Allcare’s response to the collection of bad faith litigation tactics is to blame Highmark, 

make shallow excuses, and cite to cases such as the unreported Get-A-Grip, II, Inc. v. Hornell 

Brewing Co., Inc., 2002 WL 234289 (E.D. Pa. Feb. 15, 2002) in which the requested § 285 relief 

was based solely on prior sanctioned actions. A brief response to Allcare’s positions is set forth 

below. As shown, when viewed as a whole, Allcare’s actions are sanctionable. 

 Allcare defends its frivolous assertion of res judicata and collateral estoppel (another 

example of Allcare’s selective use of the Trigon case) by admitting that Allcare had not “had the 

opportunity to research the relevant authorities.” A0167, ¶ 24. Under Fed.R.Civ.P. 11, Allcare 

was required to “research the relevant authorities” before asserting these claims. Allcare 

characterizes its restating of proposed claim construction as “word-smithing,” Opp. 21, even 

though this Court struck the first round of claim construction briefing because “[r]ecent filings 

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with the Court [doc. # 270] indicate that the nature of the relief sought in the [Allcare] Motion 

[for Claim Construction] may have changed.” Doc. 271 at 1. This Court would not have struck 

the extensive briefing if Allcare’s changes were “mere word-smithing.” 

 Allcare defended its misrepresentations to Judge Lancaster by relying on Mr. Shelton’s 

undocumented “recollections” about the content of years old emails which recollections are 

contradicted by the emails themselves. See SA 13, 20, 21 (confirming it was Mr. Shelton who 

identified the companies to be surveyed and the individuals within those companies to be called); 

and SA 11-19 (confirming that it was Mr. Shelton who prepared the questions to be included in 

the survey). 

 To defend against the record confirming that Allcare paid its experts based on success, 

Opp. 21-22, Allcare provides Mr. Hill’s undocumented declaration contradicting Mr. Singer’s 

sworn recollection about Mr. Singer’s own compensation. Moreover, even if that compensation 

was agreed upon prior to litigation commencing as argued by Allcare, A0166 at ¶117, this would 

be irrelevant because Mr. Singer was still being paid during this action based on revenues 

collected from accused infringers (i.e., based on success). (Note that Mr. Hill cannot possibly 

have personal knowledge of events that occurred, as he says, “years before” any litigation, id., 

because he elsewhere admits to not having been hired until after Allcare began to sue for 

licenses. See A0137, ¶ 4). The claim that other experts were retained pre-litigation, Opp. 21-22, 

is absurd given Allcare’s business model, 10 year history of litigation, and consistent use of the 

same experts. 

Mr. Hill’s tortured explanation of why Allcare claimed the Corky (Creighton) Hoffman 

reports to be subject to the Trigon Protective Order even though they were produced to 

Highmark is just the sort of hair-splitting that made discovery so expensive. See A0186-189. 

Still claiming at least one report should never have been produced, Mr. Hill provides no 

explanation for why Trigon did not seek their return when advised by Highmark counsel of their 

disclosure. See HA 384 (at “cc”). 

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As to the Five Motions, Allcare never explains why they were served in the middle of a 

deposition nor does it deny that it falsely represented to the Court that a Rule 7.1 confer and 

consult had occurred when it had not. PFOF 137-139. Instead, it asks this Court to ignore its

actions and instead look to Highmark’s discovery motion practice which Allcare then extensively 

misrepresents. Opp. at 7. Only two of the Highmark listed motions, A0169-70, ¶131(g)–(h), 

were discovery motions. Half were related to Allcare’s continued improper efforts to inject the 

Trigon claim construction rulings into this case. Id. at (b)–(f). 

While defending Allcare’s failure to adequately produce documents, Mr. Hill now admits

that he did not do his own discovery investigation. Instead he merely relied upon the work done 

by an unrelated predecessor counsel. A0179, ¶ 167. This is a per se violation of the obligations 

of Rule 26(g)(1)―Mr. Hill was required to perform his own reasonable inquiry and could not 

simply assume that an unaffiliated prior counsel in an earlier litigation had gathered any 

documents that Highmark ultimately requested in this action (how could they have done so?). 

As to the long withheld Providence documents, Mr. Hill now excuses their production by 

claiming they were in storage, A0182-83 ¶ 177-178, ignoring Allcare’s duty to do a reasonable 

investigation in response to discovery requests. 

 Allcare repeatedly injects settlement discussions into its Opposition, see e.g. at 5, its logic 

being that, because Highmark could have been relieved of Allcare’s infringement claims by 

payment of a multi-million dollar ransom (at least $3.75 million, see A0142 ¶24), or even by 

something closer to $1MM (see A0120, ¶ 20), Highmark should bear the burden of defending 

against Allcare’s frivolous claims. If Allcare wants (improperly) to use settlement demands for 

proof of liability, these are evidence that Allcare knew of the weaknesses in its case because its 

demands dwindled pre-litigation from $142+ million, HA 127, 113-14, to $780,000 (Opp. 5) 

after Allcare inspected Highmark’s system. Allcare’s claim that Highmark is at fault because it 

refused to buy a license, A0120, ¶ 20, confirms that Allcare uses litigation to force unnecessary 

licenses. Because of this pattern and practice over a period of years and with dozens of 

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companies, this Court is permitted to consider Allcare’s business practices in an award of fees as 

a deterrence. Fed.R.Civ.P. 11(c)(4). 

 So many irrelevant issues (like settlement discussions) are raised by Allcare that it is 

impossible to address them all because of space limitations. For example, the number of patent 

cases instituted by Mr. Hill, A0135, ¶ 1, is not relevant.3

 The common courtesy of Highmark’s 

counsel is not relevant. Without supporting documents, whether Allcare orally provided to 

Highmark details of its infringement position, pre-filing, is not relevant. Opp. 2. It is not 

relevant that Highmark’s counsel attended a hearing in Trigon. Opp. 3. 

D. An Award of Fees Is Appropriate Under Rule 11 and This Court’s Inherent Powers 

 Allcare’s Opposition never competently denies, or explains, the absence of Mr. Hill’s 

alleged infringement opinion on its privilege log. It does not produce the opinion purportedly 

prepared by Mr. Hill, or even identify a date on which it was prepared. Moreover, the 

Opposition confirms that Allcare simply assumed without any stated basis that Highmark’s 

system was the same as Trigon’s. Opp. 2. This is not sufficient to rebut Highmark’s Motion. 

In bringing a claim of infringement, the patent holder, if challenged, must be 

prepared to demonstrate to both the court and the alleged infringer exactly why it 

believed before filing the claim that it had a reasonable chance of proving 

infringement. Failure to do so should ordinarily result in the district court 

expressing its broad discretion in favor of Rule 11 sanctions, at least in the 

absence of a sound excuse or considerable mitigating circumstances. 

View Eng’g, 208 F.3d at 986 (emphasis added). Allcare was required but failed to show 

“exactly” how it concluded that Highmark’s system contained the missing elements of Claims 52 

and 102. Its pre-litigation investigation has not been shown to be reasonable. 

 

3

 Mr. Hill suggests, e.g., that at the time of being retained by Allcare he had extensive experience in 

filing patent infringement actions. A 0135. After an exhaustive search, Highmark has been unable to 

find a single docket listing Mr. Hill as counsel to a patentee as of the date of the cease and desist letter 

to Highmark in April, 2002. (PFOF 83). His experience subsequently is not relevant. 

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E. Conclusion

 It is not enough, as Allcare asks, to look at each individual bad act and say that a single 

act, in and of itself, does not justify an exceptional case finding. Rather, the Court must look to 

the totality of Allcare’s actions, viewed as a whole and documented by the record. Yamanouchi 

Pharm. Co. v. Danbury Pharmacal, Inc., 231 F.3d 1339, 1347 (Fed. Cir. 2000). Mere argument

by Allcare, in 20/20 hindsight, does not defeat the extensively documented record presented by 

Highmark. 

 The substance of Allcare’s Opposition, as supported by the Hill and Shelton Declarations 

confirms Allcare’s cavalier approach in asserting and then prosecuting its claims of infringement 

against Highmark. Its tone suggests that Allcare believes, even now, that Highmark was obliged 

to simply “pay-up” rather than fight because Allcare was―ultimately―asking for a royalty less

than litigation costs. Opp. 5. Allcare’s failure to perform a reasonable investigation, fully 

research legal issues (e.g., res judicata and collateral estoppel), do a proper search for documents 

(see A182-83, ¶ 177-78) and continued sloppy choice of language (Mr. Hill now calls himself a 

“patent prosecution” lawyer, A0193, ¶ 222, when he is still not) is easily understood when 

viewed from the vantage point of a patent troll who had succeeded 30 times before in forcing a 

license. Because Allcare never expected that it would have to prove its case in court (thinking 

Highmark would fold its cards first), Allcare did not do a proper investigation, worry about holes 

in its expert’s opinion or concern itself with such mundane issues as properly searching its files 

for documents to produce. It has acted in bad faith from the first time it thought about suing 

Highmark. Each of the factors illuminated by Highmark favors the discretionary award of fees 

to Highmark so that “fee shifting may serve as an instrument of justice.” Serio-US Indus. v. 

Plastic Recovery Techs. Corp., 459 F.3d 1311, 1322 (Fed. Cir. 2006). 

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Respectfully submitted, 

By: /s/ Cynthia E. Kernick

Cynthia E. Kernick 

Pa. ID #43912 

Kevin S. Katona 

Pa. ID #91651 

REED SMITH LLP 

435 Sixth Avenue 

Pittsburgh, PA 15219 

(412) 288-4176 

Eugene LeDonne 

N.Y. ID No. 2923258 

REED SMITH LLP 

599 Lexington Avenue 

29th Floor 

New York, NY, 10022 

and 

Craig B. Florence 

Texas State Bar No. 07158010 

Robert Slovak 

Texas State Bar No. 24013523 

GARDERE WYNNE SEWELL L.L.P. 

1601 Elm Street, Suite 3000 

Dallas, TX 75201 

(214) 999-3000 

Dated: February 2, 2009 Counsel for Plaintiff Highmark, Inc. 

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CERTIFICATE OF SERVICE

 I hereby certify that on February 2, 2009, I electronically filed the foregoing document 

with the clerk of court for the U.S. District Court, Northern District of Texas, using the electronic 

case filing system of the court. The electronic case filing system sent a “Notice of Electronic 

Filing” to the following attorneys of record who have consented in writing to accept this Notice 

as service of this document by electronic means: 

Joseph F. Cleveland, Jr. 

Brackett & Ellis, P.C. 

100 Main Street 

Fort Worth, Texas 76102-3090 

Steven G. Hill, Esquire 

Hill, Kertscher & Wharton, LLP 

3350 Riverwood Parkway 

Suite 800 

Atlanta, Georgia 30339 

R. Darryl Burke 

McKool Smith, P.C. 

300 Crescent Court, Suite 1500 

Dallas, Texas 75201 

/s/ Cynthia E. Kernick

Counsel for Plaintiff Highmark, Inc. 

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