F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 29 2000
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    HUNTSMAN CHEMICAL
    CORPORATION, a Utah corporation,

               Plaintiff-Counter-
               Defendant-Appellee,

    v.                                                  No. 98-4157
                                                  (D.C. No. 94-CV-473-B)
    HOLLAND PLASTICS COMPANY,                            (D. Utah)
    an Iowa corporation,

               Defendant-Counter-
               Claimant-Appellant,

         and

    J. D. SCHIMMELPHENNIG,

               Defendant.


                            ORDER AND JUDGMENT          *




Before EBEL , KELLY , and BRISCOE , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Appellant Holland Plastics Company [hereinafter “Holland”] appeals from

an order granting summary judgment in favor of appellee Huntsman Chemical

Corporation [hereinafter “Huntsman”] on Holland’s counterclaim for price

discrimination in violation of the Robinson-Patman Price Discrimination Act,

15 U.S.C. § 13(a), and for treble damages under Section 4 of the Clayton Act,

15 U.S.C. § 15. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse.


                       I. Background Facts and Proceedings

      We review the district court’s grant of summary judgment de novo.

See McKnight v. Kimberly Clark Corp.   , 

, 1128 (10th Cir. 1998).

In conducting that review,

      [w]e examine the record to determine whether any genuine issue of
      material fact was in dispute; if not, we determine [whether] the
      substantive law was applied correctly, and in so doing we examine
      the factual record and reasonable inferences therefrom in the light
      most favorable to the party opposing the motion.

Viewing the evidence in this light, the record shows the

following: Huntsman, a manufacturer of modified expanded polystyrene beads

(hereinafter “beads”) supplied Holland and one of Holland’s primary competitors,

                                        -2-
Iowa EPS, with beads at the same price until sometime in 1990. Both Holland

and Iowa EPS produced foam board from the beads and sold the board to end

users. The board price quoted to end users was directly related to and dependent

upon bead price, and the greatest factor in competition was board price. In 1990,

Huntsman began delivering beads to Iowa EPS at a significantly lower price

through a wholesale agreement with a third party, Cellofoam North America.

As a result, Iowa EPS passed on the savings by submitting lower board price bids

to its customers and potential customers. While Holland had successfully

competed against Iowa EPS before 1990 and had a similar market share of the

business, Holland’s revenues and sales decreased from 1990 until it declared

bankruptcy in 1994. During this same time period, Iowa EPS increased its

volume business and its market share. Holland produced testimony that, after

1990, it lost customers, potential customers, and market share because it could

not meet the price at which Iowa EPS was able to sell the board to end users.

      In 1994, Huntsman sued Holland for breach of an open account and

Holland counterclaimed for price discrimination. Huntsman filed a motion for

summary judgment in July 1997, alleging that Holland had not produced evidence

sufficient to establish a prima facie case of violation of the Robinson-Patman Act;

that it had failed to produce evidence of a causal connection between any alleged

violation of the Act and its alleged damages; and that its theory of damages was


                                        -3-
impermissible as a matter of law under   Rose Confections, Inc. v. Ambrosia

Chocolate Co. , 

, 394 (8th Cir. 1987).   1
                                                         See Appellant’s App., Vol. I

at 28. Holland responded with the above-described evidence showing price

discrimination, causal connection, proof of losses, and an expert report that

estimated actual damages. Huntsman’s reply focused on the legal argument that,

under Rose Confections , Holland could not prove what its damages were in

a violation-free state of affairs by basing them on the assumption that Holland

would have received the same discriminatory price as Iowa EPS, and that

Holland’s expert had improperly based his calculations solely on that assumption.

See Appellant’s App., Vol II at 511-16. In its surreply, which was not produced

for this court, Holland apparently asserted that Iowa EPS was Holland’s single

competitor in Iowa, thus making    Rose Confections inapplicable.     See 

1
        In this case, based on the fact that the Clayton Act is a remedial statute
whose purpose “is to place the antitrust plaintiff as far as possible in the position
it would have occupied but for the [antitrust] violation,” the court held that “any
calculation of section 4 damages must strive to approximate a violation-free state
of 

. The court held that an expert’s damage model
whose calculations were based on what profits the disfavored purchaser would
have made had it been given the same discriminatory benefit as the favored
purchasers was therefore impermissible because if it had also been given the
discriminatory price, other disfavored purchasers would have been discriminated
against and the violation would continue.      See 

The court noted
that if the disfavored purchaser and the favored purchaser had been the only
competitors in the market, it may have been proper to base damages on an
assumption that the disfavored purchaser would receive the discriminatory
benefit but for the antitrust violation.  See 

                                          -4-
531. It also apparently argued that the issue was controlled by          Hasbrouck v.

Texaco, Inc. , 

(9th Cir. 1987),      aff’d , 

(1990), in which

the court permitted consideration of damages based on the disfavored purchaser

receiving the discriminatory price.     See Appellant’s App., Vol. II at 545. The

court denied the motion in February 1998, concluding that Holland had submitted

enough evidence to survive summary judgment.           See 

       In March 1998, Huntsman moved for reconsideration of the court’s

decision. It argued that the record did not support Holland’s assertion that Iowa

EPS was the single competitor and claimed that Holland had misstated facts

concerning Holland and Iowa EPS’s revenues and raw purchases. Demonstrating

that Holland had previously stated in its answers to interrogatories that it had

other competitors besides Iowa EPS, Huntsman argued that, without support from

depositions, interrogatories, admissions, or affidavits, Holland’s “new” assertion

that Iowa EPS was its sole competitor could not be considered by the court.

See 

Huntsman also argued that the court had erred in failing to grant

summary judgment on its legal proposition that Holland’s expert’s report was

based on an “irreparably flawed model of damages” and that Holland had failed to

produce direct evidence of actual antitrust injury.     

       The court held a hearing on Huntsman’s motion for reconsideration on

May 12, 1998. The court asked for another briefing on Holland’s “case for


                                             -5-
damages,” and told the parties to “[a]ttach as exhibits anything else that you

think that you need to.”   

The court asked Holland specifically to

demonstrate, if it could, a causal connection between damages and the price

differential with anecdotal evidence, and to produce evidence to support its

damage theory in regard to the expert report and/or to produce other evidence

from which a jury could conclude that Holland suffered economic harm as a result

of the price discrimination.   See 

On the same day, the court

granted Huntsman’s motion for an extension of time in which to file its expert

report, which it had never submitted as required by Fed. R. Civ. P. 26(a)(2).

See 

       On June 2, 1998, Holland filed a motion for additional time to file its

supplemental brief, accompanied by a motion for leave to conduct additional

discovery of Iowa EPS and Huntsman regarding damage issues and a motion

to submit a supplemental expert report that would calculate damages without

consideration of the reduction in price component forbidden in   Rose Confections .

See 

Holland noted that Huntsman would suffer no prejudice

because it had not yet deposed Holland’s expert and still had not submitted its

expert’s report, and trial had not been set. Huntsman objected to additional

discovery and supplementation of the expert’s report, arguing that it would incur

additional expert expense to rebut any new theories of recovery, that Holland had


                                           -6-
failed to comply with Fed. R. Civ. P. 56(f), and that it would be prejudiced by

further delay.   See 

       On June 22, 1998, the district court granted Holland additional time in

which to file its brief but denied leave to conduct additional discovery or to

supplement its expert’s report with the new calculations because it had failed

to comply with Rule 56(f) and because it would unjustifiably delay the case.

See 

at 562. On July 2, 1998, Holland filed supplemental answers

to interrogatories and a document entitled “Clarification of Facts in Resistance

to Motion for Summary Judgment” which included a “clarification affidavit”

of Holland’s expert, the supplemental answers to Huntsman’s second set of

interrogatories, and answers to Huntsman’s third set of interrogatories.       See 

Huntsman moved to strike the clarification of facts and supplemental

answers to interrogatories, arguing that they were submitted in violation of

the court’s discovery ruling and its order that Holland could not submit a

supplemental expert report.    See 

Holland argued that the documents

were not additional discovery, that its expert’s clarification was not a

supplemental report espousing a different theory, and that the supplemental

interrogatories were not inconsistent with the previous record.       See 

       After a hearing, the court granted the motion to strike and the motion for

summary judgment. At the hearing, the court ruled that the clarification of facts


                                            -7-
and supplemental answers were contrary to his prior order and would not be

considered. See 

The court did not rule on the adequacy of the

evidence with respect to the fact of damages because that was “a closer question”

and it was “not sure there is not a valid underlying case,” but that the case was

being “thrown out” because of “the way it has been presented in litigation.”    

The court also did not comment on Holland’s argument that, even if the

expert report could not be used, there was sufficient testimony in the record to

raise a genuine issue of material fact regarding the amount of damages arising

from price discrimination.   See 

                                     II. Discussion

      Holland raises three issues for appeal: (1) the district court erred in

striking and refusing to consider for summary judgment purposes its clarification

of facts and supplemental answers to interrogatories; (2) its expert’s damage

model was not improper as a matter of law; and (3) apart from the expert report,

enough evidence regarding damages had been submitted to survive summary

judgment.

      A. Court’s refusal to consider supplemental summary judgment

evidence.   Holland does not contest the court’s denial of its motion to conduct

further discovery or submit a supplemental expert report under Rule 56(f); rather

it contends that the court erred in striking its supplemental affidavits and sworn

                                           -8-
answers that were submitted without the need for additional discovery. Thus,

although the parties couch the court’s refusal to consider the supplemental

evidence as one involving “discovery issues” in which the standard of review is

abuse of discretion, see Jensen v. Redevelopment Agency        , 

, 1553

(10th Cir. 1993) (affirming denial of Rule 56(f) motion for additional discovery),

in resolving the legal issue whether a court has given the non-moving party a

sufficient opportunity under Rule 56 to rebut a motion for summary judgment

absent additional discovery, we review the submitted summary judgment evidence

de novo. See 

(stating that reviewing court conducts

de novo review of record to determine whether a genuine issue of material fact

is in dispute); see, e.g., Adams v. Campbell County Sch. Dist.      , 

,

1353-54 (10th Cir. 1973) (reversing summary judgment because court “deprived

[non-moving party] of an adequate opportunity to be heard and denied them the

right to present controverting material” and noting, in concurring opinion, that

a non-moving party has the right on summary judgment to explain the record

asserted by moving party or to deny its effect by counter-affidavit);     Peck v.

Horrocks Eng’rs, Inc. , 

, 955 (10th Cir. 1997) (conducting de novo

review of the affidavit, stating that party has right to submit affidavits only when

that affidavit “set[s] forth specific facts showing that there is a genuine issue for

trial” under Rule 56(e), and holding court did not abuse discretion in refusing to


                                            -9-
consider affidavit that did not meet that standard (quotation omitted));       United

States v. Mills , 

, 697 (10th Cir. 1966) (independently reviewing

affidavit submitted by nonmoving party and determining that court erred in

refusing to consider it).

       We begin by noting that Huntsman did not present evidence that Iowa EPS

was not Holland’s primary competitor. Rather, one of its key arguments in its

motion for reconsideration was its allegation that there was an         absence of record

evidence that Iowa EPS was Holland’s primary competitor and that Holland’s first

interrogatory answers stated that it had many competitors. As stated above, the

court invited Holland to attach to its supplemental brief whatever controverting

exhibits it needed to support its objections to the motion for reconsideration.

       A review of Holland’s expert’s “clarification affidavit” shows that he

explained that his damages model was based on the presumption made in his

May 1997 addendum that Holland’s primary market was within 100 to 150 miles

of Gilman, Iowa; that Iowa EPS was Holland’s only other major competitor in

that area; and that was why he excluded from the damages model competitors that

were outside that area.     See Appellant’s App., Vol. III at 573. Contrary to

Huntsman’s assertions, the expert’s original presumptions were not “new”

allegations made after the close of the discovery period and his “clarification

affidavit” explanation of them did not contradict his earlier report.       Cf. 

                                            -10-
at 130-31 (May 12, 1997 addendum to expert report noting that Holland and

Iowa EPS were the two primary producers in the Iowa market and explaining

why the costs were lower for producers within 100 miles of their plants). The

“clarification affidavit” also did not espouse a new theory of damages that had

been prohibited by the court in its order denying supplementation of the expert’s

report. In the tendered affidavit, by referring to his previously-submitted reports,

Holland’s expert also rebutted arguments made in Huntsman’s motion for

reconsideration regarding alleged misstatements of revenues and market share.

See 

at 573-74. The tendered affidavit therefore set forth facts

showing genuine issues for trial.

      Likewise, in its supplemental answers to interrogatories Holland did not

seek to contradict its first answers to interrogatories, but rather sought to “square”

those answers with its assertions that Iowa EPS was Holland’s only competitor in

its primary market area. The supplemental answers demonstrated to the court the

physical location of the other competitors listed in the original answers in relation

to Holland and Iowa EPS by referring to its expert’s geographical market graph

that had been submitted during the discovery period.    See 

Holland

could have submitted the same testimony through simply presenting an affidavit

instead of “supplemental answers.” The court abused its discretion in refusing to

consider Holland’s controverting affidavits and sworn supplemental answers and


                                          -11-
thereby denying it an opportunity to rebut Huntsman’s summary judgment motion.

Cf. Adams , 483 F.2d at 1353-54.

       B. The expert’s damage model.          Holland’s expert calculated Holland’s

lost profits on a damages model that assumed that, absent a price discrimination

violation, Holland would have received the same bead price as Iowa EPS.

The district court determined that the Supreme Court in       J. Truett Payne Co. v.

Chrysler Motors Corp. , 

(1981), prohibited use of a discriminatory

price as a basis to determine damages in price discrimination cases.      See

Appellant’s App., Vol. III   at 796, 806. The court also believed that allowing the

disfavored buyer to assume, for purposes of calculating damages, that it would

have received the discriminatory price absent the violation did not “approximate

a violation free environment” under     Rose Confections and concluded that

Holland’s expert’s damage model was “inappropriate.”          

Holland

argues that J. Truett Payne Co.    does not prohibit use of the discriminatory price

as an aid in calculating damages, and we agree.

       In J. Truett Payne Co.   a car dealership alleged that the manufacturer’s

refusal to offer it the same incentives as other dealers caused it to pay more for

its cars than other dealers had to, thus violating the Robinson-Patman Act.

It contended that, at a minimum, damages should be measured by the amount

of the price difference multiplied by the number of car purchases.      See 451 U.S.


                                           -12-
at 559-60. The Fifth Circuit disagreed with the dealer’s theory that minimum

“automatic damages” flow from the fact of price discrimination and reversed the

jury award, finding that the dealer had failed to introduce substantial evidence of

injury attributable to the incentive programs as well as evidence of the amount of

any losses suffered because of such injury.          See 

       The Supreme Court held that proof of Robinson-Patman price

discrimination does not automatically entitle a plaintiff to damages under § 4

of the Clayton Act because a violation of Robinson-Patman may be proved

without the disfavored purchaser having actually been injured.            See 

In determining whether the plaintiff had presented enough evidence to survive

a motion for directed verdict on liability, the court noted that the plaintiff had

failed to show whether its competitors actually passed on their lower costs to their

customers. See 

The plaintiff had only testified generally that price

discrimination was one of the causes of the dealership going out of business

because it lost sales to competitors; that the discrimination caused him to “force”

business by giving more for trade-ins; and that his average gross profit on used

car sales was below his competitors’ (though the same evidence revealed that his

average profit on new sales was higher).       See 

Significantly,

plaintiff’s expert testified regarding what the competitive market may have been

like if plaintiff had received the same discriminatory bonuses from the


                                              -13-
manufacturer.   See 

The Court did not question whether this testimony

was a permissible assumption. Rather, the Court stated that the expert’s evidence

of injury was weak because of the plaintiff’s failure to show that the favored

retailers in fact lowered their retail prices because they received the incentives.

See 

& n.4, 565. The Court remanded to the Fifth Circuit to determine

whether the evidence supported a causal inference of actual antitrust injury

arising from the incentive programs.   See 

If sufficient evidence existed

to permit such an inference, then the “relaxed damages rules” would apply to

permit an award of damages under the “just and reasonable inference”of damage

standard. See 

Nowhere in the opinion did the Court imply that it is

improper for an expert to use in a damages model a comparison of the profits the

disfavored plaintiff would have made had it received the same discriminatory

price as his favored competitors. The Court simply held that evidence of the

amount of price discrimination,   standing alone , is not sufficient to prove damages

actually suffered from an antitrust injury.

      Holland argues that Hasbrouck v. Texaco, Inc.     buttresses its position that

its expert could properly base lost profits on what the disfavored purchaser would

have made if it had received the discriminatory price. In this case, twelve service

station owners successfully sued their supplier, Texaco, for selling gasoline to

their competitors for between 2.5 and 5.75 cents/gallon lower than they paid.


                                         -14-


. On the issue of damages, Texaco made similar arguments

as Huntsman does in this case: that the plaintiff failed to prove actual injury that

the antitrust laws were designed to prevent; that there was no direct causal

connection between any such injury and Texaco’s conduct because of the

independent, intervening pricing decisions of plaintiff’s favored competitors; and

that the district court improperly allowed the jury to consider the overcharge to

the disfavored purchasers in its calculation of damages.       See 

The

Ninth Circuit stated that, to prove actual injury, the plaintiff had to show that

he lost sales and profits as a result of Texaco’s discriminatory conduct.     See 

The plaintiff had testified as to diverted sales and lost profits, presented

evidence of the favored buyer’s increase in sales volume over the specific time

period, and “testified that they would have recouped the lost revenues had they

received a [similar] price break on their purchases of gasoline from Texaco.”

Former customers testified that they switched service stations

because of lower prices.    

Circuit held that this testimony was

sufficient to support a finding of both actual antitrust injury and causation.

See 

in Hasbrouck , like Holland’s expert, presented a market analysis

that compared the plaintiff’s actual prices, volume, and profits to estimated

amounts had the price discrimination not occurred. In some analyses, the expert


                                            -15-
assumed that Texaco had raised its prices to the favored buyers; in others, the

expert assumed that Texaco lowered its prices to the disfavored buyers.      See 

claim that evidence of the overcharge was not a permissible

consideration for the amount of damages, the Ninth Circuit stated that the

       various projections simply permitted the jury to compare estimates of
       damages in different market situations, allowing them to determine
       what [the plaintiff’s] sales and profits would have been in the
       absence of price discrimination. Obviously, such a determination
       necessarily entails postulating the elimination of the price
       differential, either by increasing the favored buyer’s price,
       decreasing the disfavored buyer’s price, or a combination of the two.

The court stated that any danger that the jury may have awarded

“automatic damages” based on the overcharge theory was offset by the district

court’s oral admonition and the jury instructions.     

       On appeal to the United States Supreme Court, although Texaco’s petition

for certiorari couched the issue as whether a retailer could “predicate injury and

recover treble damages on the basis of how much better off he would have been

had he, too, received the wholesaler discount,”      see Robert H. Whaley & Keith B.

Leffler, Private Actions & Proof of Damages in Secondary Line Cases--the

Texaco Inc. v. Hasbrouck Experience      , 59 Antitrust L.J. 811, 819 n.34 (1991), the

Court addressed only Texaco’s contention that legitimate functional discounts do

not violate the Clayton Act because a seller is not responsible for its customer’s

independent resale pricing decisions.     

. It left the Ninth


                                            -16-
Circuit’s discussion regarding proper damage models intact. In its discussion,

however, the Court noted that the damages expert had estimated what the

plaintiffs’ profits would have been if they had paid the same prices as their

favored competitors and that the jury had based its award on this testimony.

See 

The Court later stated that this testimony provided a “sufficient

basis for an acceptable estimate of the amount of damages.”    

Under

Hasbrouck , therefore, the district court in this case improperly prohibited the use

of Holland’s expert’s report.

      In the case before us, Holland presented evidence that it and Iowa EPS

were the primary competitors in the Iowa geographic area and that Huntsman had

directly delivered beads to Iowa EPS in amounts similar to those delivered to

Holland for the discriminatory price over a long period of time. Holland argues

that it was reasonable for its expert to assume that Holland would have received

the discounted price absent Huntsman’s price discrimination because the

discriminatory price was obviously an economically viable one for Huntsman.

Thus, there was arguably no danger that basing a calculation of lost profits on the

lower price given to Iowa EPS would perpetuate an illegal discriminatory pricing

scheme as proscribed by   Rose Confections , 816 F.2d at 394. Whether the price

given to Iowa EPS was an economically viable one that Holland could have

expected to receive absent the price discrimination is a jury question. While


                                          -17-
Holland’s expert report is certainly subject to criticism in certain areas, those

matters are for cross-examination at trial and we cannot say as a matter of law

that the theory espoused therein does not have a basis in fact that could sustain a

jury award.

      C. Sufficient evidence to support alternative theory          . Holland argues

that the court further erred by granting summary judgment when it had presented

sufficient evidence from other witnesses besides its expert to support an award

of damages.   See, e.g., J. Truett Payne Co.   , 451 U.S. at 564 n.4 (stating that “if

by reason of the discrimination, the preferred producers have been able to divert

business that would otherwise have gone to the disfavored shipper, damage has

resulted to the extent of the diverted profits. If the effect of the discrimination

has been to force the shipper to sell at a lowered price . . . damage has resulted to

the extent of the reduction.” (quotation omitted)). Huntsman argues that Holland

failed to specifically identify lost sales attributable to the price discrimination and

that the testimony presented was insufficient to support an award of damages.

This is not an appeal from denial of a motion for directed verdict after a full trial

on the merits, however. In a summary judgment motion, a sufficiency inquiry

asks only whether there was enough evidence to establish a genuine issue of

material fact regarding the issue.




                                           -18-
        It is well established that a “relaxed” damage rule applies once a plaintiff

establishes anticompetitive injury from a Robinson-Patman Act violation.         See

Hasbrouck , 496 U.S. at 572-73. Antitrust damages are rarely susceptible of

concrete, detailed proof and once antitrust injury is shown, antitrust plaintiffs

should not face unduly rigorous standards for proving damages.        See 

is based on the well-established tenet that “it does not come with very good grace

for the wrongdoer to insist upon specific and certain proof of the injury which

it has itself inflicted.”   J. Truett Payne Co. , 451 U.S. at 566-67. Huntsman

conceded Robinson-Patman liability for purposes of the summary judgment

motion.

        Holland presented testimony that it had previously been competitive with

Iowa EPS until Iowa EPS received lower prices in 1990 that allowed it to

underbid Holland and forced Holland to sustain losses in order to keep customers.

See Appellant’s App., Vol. I at 126, 130-32, 219-20, 232-33, 254; Vol. II at

439-40. It presented testimony from an end user that it bought Iowa EPS board

instead of board manufactured by Holland solely because the Iowa EPS board

was cheaper, see 

I at 282, and that it would usually buy the cheaper

product in most instances,     see 

It also presented testimony that the

lower the bead cost, the greater the profitability,   see 

Supp. App.

at 610, and that if Iowa EPS had paid even one or two cents more per pound, it


                                             -19-
would have made a difference in whether it had profits or losses on its bids.

See Appellant’s App., Vol. II at 346; Appellant’s Supp. App. at 604. It produced

net income figures showing actual amount of losses during the period from

1990-94. See Appellant’s App., Vol. I at 124. The jury could infer from this

evidence that Holland’s market share would have remained the same absent

illegal price discrimination and that, absent the illegal discrimination, Holland

could have made a profit on bids to customers such that its yearly net losses

would not have increased to over $250,000 in a period of four years. We hold

that Holland satisfied its burden of showing genuine issues of material fact in

regard to the existence and amount of damages.

      The judgment of the United States District Court for the District of Utah is

REVERSED, and we REMAND for further proceedings consistent with this order

and judgment.

                                                     Entered for the Court


                                                     David M. Ebel
                                                     Circuit Judge




                                         -20-