FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                           September 7, 2012
                                      PUBLISH             Elisabeth A. Shumaker
                                                              Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 GEORGE S. COHLMIA, JR., M.D.
 and CARDIOVASCULAR
 SURGICAL SPECIALISTS CORP., an
 Oklahoma Corporation,

             Plaintiffs-Appellants,
 v.                                                 No. 09-5124
 ST. JOHN MEDICAL CENTER,
 HOWARD W. ALLRED, M.D., and
 WILLIAM C. BURNETT, M.D.,

             Defendants-Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
          FOR THE NORTHERN DISTRICT OF OKLAHOMA
                 (D.C. NO. 4:05-CV-00384-GKF-PJC)


Michael L. Barkett, The Barkett Law Firm PLLC, Tulsa, Oklahoma, for
Appellants.

William H. Spitler, McDonald, McCann & Metcalf, LLP (G. Michael Lewis,
Doerner, Saunder, Daniels & Anderson, LLP, Tulsa, Oklahoma, and James W.
Conner, Jr., and Jason L. Glass, Richards & Connor, PLLP, Tulsa, Oklahoma,
with him on the brief), Tulsa, Oklahoma, for Appellees.


Before TYMKOVICH, McKAY, and HOLMES, Circuit Judges.


TYMKOVICH, Circuit Judge.
      Dr. George Cohlmia, a cardiovascular and thoracic surgeon in the Tulsa,

Oklahoma area, sued St. John Medical Center (SJMC) alleging a number of

federal and state antitrust and business tort claims. 1 His claims followed SJMC’s

suspension of his medical privileges after a pair of surgeries, one resulting in

death and another in permanent disfigurement. In response, SJMC asserted an

affirmative defense that it was immune under federal law from damages pursuant

to the Health Care Quality Improvement Act, 42 U.S.C. § 11101, et seq.

(HCQIA). SJMC also moved for summary judgment on the antitrust and tort

claims, arguing they failed for lack of evidentiary support.

      The district court granted summary judgment on all claims, finding SJMC

was immune from damages under the HCQIA, and further that Dr. Cohlmia had

not met his burden of showing disputed facts that would demonstrate

anticompetitive conduct or injury. Exercising jurisdiction under 28 U.S.C.

§ 1291, and after a thorough de novo review of the record, we AFFIRM the

district court’s grants of summary judgment, and the cost award to SJMC.




      1
         Dr. Cohlmia initially included a number of additional defendants in his
complaints, see Aplt. App. at 260–64, but those defendants settled prior to the
disposition below. See Docket Entry 430 (05/18/2009). At this time, the only
parties left in this case are Dr. Cohlmia and the corporate entity through which he
practices, along with SJMC and two of its physicians in their individual
capacities.

                                         -2-
                                I. Background

      Dr. Cohlmia’s claims arise from two distinct events. The first involves

SJMC’s suspension of his medical privileges following two surgeries performed

at its hospital in June 2003. The second involves Dr. Cohlmia’s attempts at

developing a specialty heart hospital in 2001 and 2002.

      A. SJMC Surgeries

      In June 2003, Dr. Cohlmia performed thoracotomy surgeries at SJMC on

two patients diagnosed with lung cancer. One patient died seven days later and

the other was permanently disfigured as a result of the surgery. Following a

report of these results, Dr. Allred, SJMC Vice-President of Medical Affairs (and a

physician specializing in colorectal surgery), conducted a review of the surgeries

to assess whether any physician error was involved. During the course of his

review of the surgeries, he interviewed a pathologist, a thoracic surgeon, the

medical oncologist who treated one of the patients post-surgery, and a

pulmonologist. Ultimately, Dr. Allred determined that “there was an inadequate

workup . . . before [the patients] were operated on.” Aple. Supp. App. at 1005.

As a result, he and the members of the hospital’s Medical Staff Executive Office

concluded Dr. Cohlmia’s treatment of the two patients demonstrated “significant

error in clinical judgment,” and that his continued practice at SJMC posed

potential harm to patients. 

authority pursuant to the



                                        -3-
SJMC Medical Staff Bylaws, Dr. Cohlmia’s privileges to practice at SJMC were

suspended.

      Once informed of this decision, and in accordance with SJMC bylaws, Dr.

Cohlmia immediately requested a formal hearing to respond to the concerns. Dr.

Cohlmia met with Dr. Allred and David Pynn, the President of SJMC, prior to the

hearing, but no resolution of the suspension issue was reached. At a three-day

hearing in August 2003, presided over by former United States District Court

Judge Thomas R. Brett, Dr. Cohlmia presented the testimony of seven physicians,

including one expert, and SJMC presented the testimony of seven physicians,

including three experts. Dr. Cohlmia testified at length during the hearing. In

September 2003, Judge Brett issued a Report, Recommendation and Judgment,

finding that the suspension of Dr. Cohlmia was “the result of a thorough review,

by appropriate SJMC multidisciplinary medical staff physician specialists, of the

medical records regarding major thoracic surgery procedures.” 

respect to the patient who subsequently died, Judge Brett found that Dr.

Cohlmia’s actions demonstrated “a lack of sound medical judgment,” and a

“marked deviation from the recognized standard of care.” 

respect to the patient who was disfigured, Judge Brett found that “Dr. Cohlmia’s

failure to employ extensive workup and staging prior to” the surgery “reflected a

gross deviation in medical judgment.” 

Judge Brett

concluded that SJMC “was justified for medical reasons in summarily suspending

                                        -4-
Dr. Cohlmia’s medical and surgical privileges pursuant to . . . SJMC By-laws.”

to Judge Brett’s findings, the Medical Executive Committee of

the SJMC Medical Staff reviewed the Report and voted, thirteen to two, to uphold

Dr. Cohlmia’s suspension. The SJMC Board of Directors approved the Report as

well, after giving Dr. Cohlmia another chance to present formal opposition to

Judge Brett’s findings. By November 2003, all of the review proceedings were

concluded and Dr. Cohlmia’s medical privileges were terminated.

      B. Specialty Heart Hospital

      Prior to his initial suspension, Dr. Cohlmia participated in several business

ventures that bear on the claims in this appeal.

      In 1994, Dr. Cohlmia founded Cardiovascular Surgical Specialists Corp.

(CVSS), the corporate entity through which he practices. CVSS, which employed

a number of associate physicians in addition to Dr. Cohlmia, provided a variety of

surgical services, including cardiovascular surgery, thoracic surgery, vascular

surgery, and endovascular surgery. In June 2003, Dr. Cohlmia personally had

active medical staff privileges at several hospitals in the Tulsa area: SJMC,

Hillcrest Medical Center (HMC), Saint Francis, and SouthCrest.

      In the spring of 2001, Dr. Cohlmia began exploring the idea of opening a

specialty heart hospital in Tulsa. He retained the services of a consulting group,

Technology Risk Management Group, along with other professionals to assist him

                                         -5-
in this project (collectively, the Development Team). In February 2002, Saint

Francis—where Dr. Cohlmia had privileges—announced its own plans to open a

free-standing heart hospital, operating as a joint venture between Saint Francis

and local physicians acting as investors. Many of the physician investors had

previously been solicited by the Development Team as potential investors in Dr.

Cohlmia’s venture. In April 2002, the Development Team distributed a Private

Placement Memorandum (PPM) to potential investors. The PPM included

business plans, financial projections, organizational documents, and the terms

under which investors could participate. Notably, the PPM also acknowledged

Saint Francis’s proposed heart hospital, describing it as “slightly larger,” but

“similar in scope of services as the one described in this offering.” 

Cohlmia’s venture failed to attract any investors and the offer made by

the PPM expired at the end of May 2002. The CEO of the consulting group

retained by Dr. Cohlmia later stated that the venture failed because many

potential investors were uncomfortable with the level of control that Dr. Cohlmia

would have over the hospital, given that he was known “for not being able to

maintain business associations,” and that he “had been involved in litigation with

a number of former business associates.” 

addition to having been

beaten to the market by Saint Francis, the consultant offered his “professional

opinion” that, by June 2002, it was clear that the venture “would not be

successful.” 

      Beginning in early 2003, HMC instituted a moratorium on certain high-risk,

cardiovascular surgical procedures—procedures that Dr. Cohlmia performed on a

regular basis. As a result of the moratorium, Dr. Cohlmia shifted much of his

practice to SJMC. After learning of his suspension at SJMC, HMC also placed

restrictions on Dr. Cohlmia’s privileges in July 2003. In October 2004, after

review of certain cases at HMC, the HMC Medical Executive Committee

recommended that Dr. Cohlmia’s privileges not be renewed. In April 2006, after

several hearings and reviews—during which time Dr. Cohlmia continued to

practice at HMC—the decision was affirmed. Additionally, Dr. Cohlmia

voluntarily relinquished his privileges at SouthCrest and Saint Francis. 2

      While the review at HMC was ongoing, Dr. Cohlmia and Tahlequah City

Hospital (TCH) formed a joint venture in Tahlequah, Oklahoma, where Dr.

Cohlmia continues to practice at this time. He draws patients from the same

market area that SJMC operates in, and he describes the venture as “successful,”

and with “excellent” results. 

also continues to see patients out of

a non-surgical office in Tulsa.

      C. Procedural History

      Dr. Cohlmia filed his First Amended Complaint in September 2005, raising

a number of claims. As a result of the dismissal and repleading of some claims,

      2
          Dr. Cohlmia urges that he was “forced to withdraw” from these
institutions as a result of “sham peer review” that was completed “for political
purposes,” Aplt. Br. at 24, but the record does not support this assertion.

                                         -7-
the remaining claims before the district court below were: (1) violations of

Sections 1 and 2 of the Sherman Antitrust Act, and Section 4 of the Clayton Act;

(2) violations of the Oklahoma Antitrust Reform Act; and (3) tortious interference

with contract and prospective advantage. SJMC asserted an affirmative defense

pursuant to the HCQIA that it was immune from damages.

      Dr. Cohlmia’s claims survived a motion to dismiss, Cohlmia v. Ardent

Health Services, LLC, 

, 1265 (N.D. Okla. 2006) (Cohlmia I),

but after discovery SJMC moved for summary judgment on all claims, as well as

on its affirmative defense of HCQIA immunity. The district court broke the

motion into three segments, receiving briefing on (1) the HCQIA defense; (2) the

antitrust claims; and (3) the tort claims. The district court went on to grant all

three summary judgment motions and award costs to SJMC. Dr. Cohlmia now

appeals the grants of summary judgment, as well as the cost award.

                                  II. Discussion

      Our review of the district court’s order will begin with the question of

HCQIA immunity, and then consider the federal antitrust claims followed by the

state law claims. We conclude with the cost award. Our review of the district

court’s grants of summary judgment is de novo. Gwinn v. Awmiller, 

, 1215 (10th Cir. 2004).




                                          -8-
      A. HCQIA

      Dr. Cohlmia first challenges the grant of HCQIA immunity. Enacted in

1986, HCQIA provides immunity to hospitals or doctors who perform peer

reviews or challenges to professional conduct where patient care is at issue.

HCQIA was adopted out of concern “that medical professionals who were

sufficiently fearful of the threat of litigation will simply not do meaningful peer

review, thus leaving patients at the mercy of people who should have been

corrected or removed from their positions.” IB Phillip E. Areeda & Herbert

Hovenkamp, Antitrust Law 19 n.1 (3d ed. 2006) (internal quotation omitted).

      HCQIA provides immunity from “damages under any law of the United

States or of any State . . . with respect to [a professional review] action.” 42

U.S.C. § 11111(a)(1). A “professional review action” is “an action or

recommendation of a professional review body which is taken or made in the

conduct of professional review activity, which is based on the competence or

professional conduct of an individual physician (which conduct affects or could

affect adversely the health or welfare of a patient or patients), and which affects

(or may affect) adversely the clinical privileges, or membership in a professional

society, of the physician.” 

The entity or persons that undertake

the professional review are immune under HCQIA as long as they substantially

comply with a list of objective standards set forth in the Act. 

The “immunity applies only to hospital or clinic dismissals in

                                         -9-
which the subject’s professional conduct is at issue. It creates no immunity

whatsoever for purely ‘commercial’ terminations, such as dropping a specialist

when a hospital enters into an exclusive agreement with a different specialist.”

IB Areeda & Hovenkamp 21.

         The Act sets forth the procedures the professional review action should

honor, and provides for immunity when actions are undertaken based on a

reasonable belief that patient health is at issue. The immunity applies to actions

taken:

               (1) in the reasonable belief that the action was in the
               furtherance of quality health care;

               (2) after a reasonable effort to obtain the facts of the
               matter;

               (3) after adequate notice and hearing procedures are
               afforded to the physician involved or after such other
               procedures as are fair to the physician under the
               circumstances; and

               (4) in the reasonable belief that the action was warranted
               by the facts known after such reasonable effort to obtain
               facts and after meeting the requirement of paragraph (3).

         A professional review action is presumed to have met the standards for

HCQIA immunity unless the presumption is rebutted by the preponderance of the

evidence. 

objective standard in determining whether a peer




                                           -10-
review action was reasonable under [§ 11112(a)].” Brown v. Presbyterian

Healthcare Servs., 

, 1333 (10th Cir. 1996).

      The district court focused its analysis on the fact that Dr. Cohlmia’s

evidence failed to rebut the presumption of regularity and concluded that no

reasonable jury could find that Dr. Cohlmia had overcome the presumption. On

appeal, Dr. Cohlmia argues the evidence would support an inference rebutting

SJMC’s procedures and reasonableness, relying solely on Brown. 3 In Brown, we

held a plaintiff had successfully rebutted the HCQIA presumption at trial by

presenting an expert who argued that the hospital’s review of two cases prior to

revoking the plaintiff-physician’s privileges was unreasonably narrow and that the

hospital should not be entitled to a presumption under the second factor, which

provides immunity only after a “reasonable effort to obtain the facts of the

matter.” 

         The district court distinguished Brown and rejected Dr. Cohlmia’s
reliance on the case, finding:

            It was clear in Brown that an economic competitor had
            instigated the review, made false misstatements to the
            National Practitioner Databank, that the doctor had been
            found negligent and the competitor testified against the
            plaintiff[. I]n that case there was overwhelming proof
            of conjuring up evidence against the doctor. Here, the
            evidence of ulterior motive is inferential and in this case
            the Court concludes that the plaintiff has not rebutted
            the presumptions set out under the statute.

Aplt. App. at 3123.

                                        -11-
      But two important differences exist between this appeal and Brown. First,

Brown went to trial and the jury determined that the hospital should not be

entitled to immunity under HCQIA. We were reviewing the hospital’s argument

that the district court failed to find it immune as a matter of law. We rejected that

argument and affirmed, finding the disputed facts at trial would support the jury’s

verdict. 

and more importantly, the district court below

evaluated the record evidence presented by Dr. Cohlmia and found that it was not

sufficient to rebut the HCQIA presumption in this case. In Brown, the claimed

malpractice at issue developed over a long period of time, and could not be

evaluated except through a lengthy review of the entire period, something the

hospital failed to do. Here, in contrast, SJMC and the requisite reviewing bodies

were only concerned with the two, acute patient incidents at issue that preceded

Dr. Cohlmia’s initial suspension. 4

      SJMC argues that the record is undisputed it undertook “reasonable efforts

to obtain the facts of the matter before its Board made a final decision.” Aple.

Br. at 34. For example, SJMC brought in three independent, outside physician

      4
         Likewise, Brown does not stand for the proposition that a mere battle of
the experts is sufficient to overcome the presumption. “[W]hen the issue subject
to peer review only concerns a single incident, summary suspension will
inherently require less intensive fact finding and data compilation than would be
the case with a review of a physician’s care over several years.” Johnson v.
Christus Spohn, No. C-06-138, 

, at *9 (S.D. Tex. Feb. 8, 2008).
In Johnson, the court held that a hospital took reasonable efforts to obtain the
facts when it investigated only one case, involving a lack of adequate and timely
care for a chicken pox patient, prior to terminating a doctor’s staff privileges.

                                         -12-
experts to review the cases, and all testified under oath that the pre-surgery

workup was inadequate and that the surgeries were unnecessary. SJMC also

consulted a cardiac surgeon, a pathologist, a pulmonologist, and a medical

oncologist in regards to the care Dr. Cohlmia provided, each of whom expressed

concerns that the treatment of the two patients fell well below the standard of care

required of a cardiothoracic surgeon. Finally, it retained an independent arbiter to

review the evidence, and Judge Brett’s report thoroughly documents and supports

SJMC’s methodology and conclusions.

      In response, Dr. Cohlmia points to a memo written by Dr. Allred on June

26, 2003—prior to the suspension, but after the two surgeries were performed—

criticizing Dr. Cohlmia’s professional judgment. See Aplt. App. at 1333. In the

memo, which appears to be a note for Dr. Allred’s personal files detailing an in-

person conversation he had with a colleague, Dr. Allred opines about a

“significant problem” with Dr. Cohlmia’s care and states: “[i]t is very difficult to

remove someone from the staff once they have full privileges.” 

this memo is the best evidence showing that the suspension proceedings

were merely a pretext in order to take away his privileges. He believes this is

evidenced by the fact that the memo does not specifically mention the two cases

that were then under review that precipitated the suspension in early July.

      But it is unclear why this inference would follow from the memo. The

memo is detailing a conversation that Dr. Allred had already had with a

                                         -13-
colleague. Dr. Allred was listening to and responding to concerns articulated by

another physician and Dr. Allred had not yet made public his concerns about the

two surgeries. It would have been odd—and potentially a violation of privacy or

medical ethics—for Dr. Allred to disclose his investigation to an unrelated

physician prior to its completion, which did not occur until ten days later. We

agree with the district court that nothing about the memo undercuts the thorough

and independent review completed by SJMC in the course of its decision to

terminate Dr. Cohlmia’s medical staff privileges.

      And, despite the allegations of bad faith, “[t]he real issue is the sufficiency

of the basis for the [Hospital’s] actions.” Bryan v. James E. Holmes Regional

Med. Ctr., 

, 1335 (11th Cir. 1994). It is the objective reasonableness

of the review body’s actions and determinations that count. And it is worth

noting that Dr. Allred, who initiated the peer review investigation as a part of his

position as Vice-President of Medical Affairs, is a colorectal surgeon and not a

medical competitor of Dr. Cohlmia. But even if he were a competitor, application

of HCQIA immunity is based on “the sufficiency of the basis for the [Hospital’s]

actions,” and not who initiates the peer review process. 

also IB Areeda & Hovenkamp 21 n.6 (noting that peer review actions initiated




                                         -14-
by a physician’s competitors are permissible) (citing Monroe v. AMI Hosps., 

, 1028–29 (S.D. Tex. 1994)). 5

      As the Eleventh Circuit has said, “[t]he role of federal courts on review of

[HCQIA] actions is not to substitute our judgment for that of the hospital’s

governing board or to reweigh the evidence regarding the renewal or termination

of medical staff privileges.” 

(internal quotation omitted).

Instead, “[t]he intent of [HCQIA] was not to disturb, but to reinforce, the

preexisting reluctance of courts to substitute their judgment on the merits for that

of health care professionals and of the governing bodies of hospitals in an area

within their expertise.” 

not rebut the presumption afforded SJMC by HCQIA.

Accordingly, the district court did not err in granting summary judgment based on

immunity under HCQIA.

      B. Other Federal and State Claims

      Having found that SJMC’s actions fall within the grant of immunity by

HCQIA, we must determine the scope of that immunity. HCQIA grants immunity


      5
         In addition, none of Dr. Cohlmia’s direct competitors at SJMC
participated in any stage of the peer review process. See Aple. Supp. App. at 545
and 1096 (identifying competitors as Drs. Garrett, Blankenship, and Fore); 

1201–02, and 1204–05 (listing attendance at the various stages of
review). As to expert review, during the hearing presided over by Judge Brett,
SJMC engaged the services of a thoracic surgeon who was currently on an
extended sabbatical from medical practice—so certainly not a competitor at the
time. See 

only against a monetary damage award, 42 U.S.C. § 11111(a)(1), but not claims

for injunctive or other equitable relief. See Imperial v. Suburban Hosp. Ass’n, 

, 1031 (4th Cir. 1994) (reviewing the legislative history of HCQIA, and

noting that the final language was meant to be limited to damages only because a

broader protection “might be abused and serve as a shield for anti-competitive

economic actions under the guise of quality controls”).

      In his complaint, Dr. Cohlmia sought injunctive relief and reinstatement of

staff privileges, so we are required to review the merits of his federal and state

claims. We agree with the district court that these claims lack merit, and we

dispose of them for the same reasons.

             1. Federal Antitrust Claims

      Dr. Cohlmia’s complaint raises claims under Sections 1 and 2 of the

Sherman Antitrust Act, as well as Section 4 of the Clayton Antitrust Act.

      Section 1 of the Sherman Act prohibits “[e]very contract, combination . . .

or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1. But

“[i]ndependent action is not proscribed.” Monsanto Co. v. Spray-Rite Serv.

Corp., 

, 761 (1984). “Only after an agreement is established will a

court consider whether the agreement constituted an unreasonable restraint of

trade.” AD/SAT v. AP, 

, 232 (2d Cir. 1999). Thus, “to survive [a]

motion for summary judgment, the plaintiffs must first demonstrate the existence

of an agreement, whether by direct or circumstantial evidence.” Mitchael v.

                                        -16-
Intracorp, Inc., 

, 856–57 (10th Cir. 1999). And generally, the

Sherman Act only prohibits unreasonable restraints on trade. See Diaz v. Farley,

, 1182 (10th Cir. 2000).

      Alternatively, Section 2 of the Sherman Act prohibits actions by “person[s]

who shall monopolize, or attempt to monopolize, or combine or conspire with any

other person or persons, to monopolize any part of the trade or commerce.” 15

U.S.C. § 2. Unlike Section 1, Section 2 can be violated by a single economic unit

without requiring any contract, combination, or conspiracy. Six Twenty-Nine

Productions, Inc. v. Rollins Telecasting, Inc., 

, 482 (5th Cir. 1966).

But to do so requires “the possession of monopoly power in the relevant market

and . . . the willful acquisition or maintenance of that power as distinguished from

growth or development as a consequence of a superior product, business acumen,

or historic accident.” United States v. Grinnell Corp., 

, 570–71

(1966).

      Section 4 of the Clayton Act addresses the question of “antitrust injury”

and provides a remedy to “[a]ny person who shall be injured in his business by

reason of anything forbidden in the antitrust laws.” 15 U.S.C. § 15. The

expansive language is meant to “create a private enforcement mechanism . . . [to]

deter violators and deprive them of the fruits of their illegal actions, and . . .

provide ample compensation to the victims of antitrust violations.” Blue Shield of

Virginia v. McCready, 

, 472 (1982).

                                          -17-
      In evaluating Dr. Cohlmia’s claims, the district court found that there was

no evidence of antitrust injury, no injury in fact, no evidence of causation, and

most importantly, no evidence that any conduct was anything other than

unilateral. Dr. Cohlmia’s appeal primarily takes issue with three of the district

court’s findings: (1) whether there was evidence of antitrust injury, (2) whether

SJMC had sufficient market power, and (3) whether there was sufficient evidence

of conspiracy.

             a. Antitrust Injury

      To establish an antitrust injury, Dr. Cohlmia “must allege a business or

property injury, an antitrust injury, as defined by the Sherman Act.” Tal v.

Hogan, 

, 1257–58 (10th Cir. 2006) (internal quotation omitted).

“The primary concern of the antitrust laws is the corruption of the competitive

process, not the success or failure of a particular firm” or individual. 

“only buyers and sellers in the defendants’ market are within the

target of the antitrust laws.” Comet Mech. Contractors, Inc. v. E.A. Cowen

Constr., Inc., 

, 406 (10th Cir. 1980). Thus, an antitrust injury

requires “an injury of the type the antitrust laws were intended to prevent and that

flows from that which makes defendants’ acts unlawful.” 

(citation and quotation omitted).

      Dr. Cohlmia contends that, acting through a “sham peer review process,”

SJMC and others conspired to exclude him from the market for cardiology

                                         -18-
services in Tulsa. He argues his exclusion from the Tulsa marketplace, by itself,

harmed competition by reducing the number of physicians available to provide the

type of medical services he typically provides.

      In support of this argument, he relies on the Supreme Court’s decision in

Summit Health v. Pinhas, 

(1991). In Summit Health, the Court

considered the antitrust claim of an opthamologist whose medical privileges were

revoked after he refused to use an assistant surgeon—resulting in higher costs for

himself—during procedures that he performed at the hospital. The physician was

known throughout the industry for his skill and speed in these types of surgeries,

and he argued that requiring him to provide an assistant at his own cost was

unnecessary and improper. 

hospital engaged in a peer review

process that ended with the revocation of his medical privileges. The Court found

the doctor’s claims “that members of the peer review committee conspired with

others to abuse th[e] process and thereby deny [him] access to the market . . . .

ha[d] a sufficient nexus with interstate commerce to support federal jurisdiction.”

Cohlmia argues the Court’s decision applies here as well.

       But Summit Health was decided on much narrower grounds. Rather than

standing for the proposition that the “actual effect on the market is not

controlling” and “the federal power to protect free markets may be exercised to

punish conduct which threatens to impair competition even when no actual harm

results,” Aplt. Br. at 28, Summit Health was decided on purely jurisdictional

                                         -19-
grounds. The Court was simply answering whether the case should survive a

motion to dismiss for lack of federal jurisdiction, and was considering whether an

opthamologist in the Los Angeles market was engaged in interstate

commerce—the answer was yes. Summit Health does not stand for the

proposition that the process SJMC used here injured competition.

      Nor is there antitrust injury every time someone is excluded from a medical

hospital as a result of peer review:

             A staffing decision does not itself constitute an antitrust
             injury. “If the law were otherwise, many a physician’s
             workplace grievance with a hospital would be elevated
             to the status of an antitrust action. To keep the antitrust
             laws from being so trivialized, the reasonableness of a
             restraint is evaluated based on its impact on competition
             as a whole within the relevant market.”

BCB Anesthesia Care Ltd. v. Passavant Mem’l Area Hosp. Ass’n., 

,

669 (7th Cir. 1994) (quoting Oksanen v. Page Mem’l Hosp., 

, 708

(4th Cir. 1991)) (emphasis added). In order to recover, Dr. Cohlmia must show

that patients are denied access to cardiology services in the relevant market. See

also Mathews v. Lancaster Gen. Hosp., 

, 641 (3d Cir. 1996) (“An

antitrust plaintiff must prove that challenged conduct affected the prices, quantity

or quality of goods or services, not just his own welfare.”) (internal quotation

omitted).

      Based on these authorities, the question is whether harm to competition has

been demonstrated. The district court found no credible evidence from which to

                                         -20-
infer injury. Rather, the court concluded that “[Dr.] Cohlmia’s loss of privileges

at [SJMC] has [not] had market wide impact on the provision of any of the

surgery or interventional cardiology services [he] claims to provide. Market wide

prices, quantity or quality were not affected by [Dr.] Cohlmia’s loss of

privileges.” Aplt. App. at 3124. We agree with this assessment of the record.

      Finally, Dr. Cohlmia points to a Third Circuit case, Brader v. Allegheny

Gen. Hosp., 

(3d Cir. 1995), for the proposition that the denial of

medical staff privileges can injure competition. We do not quarrel with that

general proposition. But although Dr. Cohlmia alleged facts in his complaint

sufficient to survive a motion to dismiss—which is what the district court

concluded in Cohlmia I—to overcome a motion for summary judgment, he must

“meet his burden of presenting specific facts, by reference to specific exhibits in

the record”; it is not the court’s job to “comb the record in order to make” the

non-movant’s arguments for him. Mitchell v. City of Moore, 

, 1199

(10th Cir. 2000). The court in Brader acknowledged as much: “[a]fter Summit

Health, the adequacy of a physician’s contentions regarding the effect on

competition is typically resolved after discovery, either on summary judgment or

after 

. Here, Dr. Cohlmia failed to show evidence of an




                                        -21-
“impact on competition as a whole within the relevant market.” BCB Anesthesia

(internal quotation omitted). 6

      In sum, as the district court found, there is no record evidence of antitrust

injury.

             b. Market Share and Market Power

      Another element of an antitrust claim requires the plaintiff to show the

defendant can wield “market power.” To do so, a plaintiff must show evidence of

either power to control prices or the power to exclude competition. Reazin v.

Blue Cross & Blue Shield, Inc., 

, 966 (10th Cir. 1990). Power over

price and competition may depend on various market characteristics, such as

“market trends, number and strength of other competitors, and entry barriers.”

Shoppin’ Bag of Pueblo, Inc. v. Dillon Cos., 

, 162 (10th Cir. 1986).

“Market share is relevant to the determination of the existence of market or

monopoly power, but market share alone is insufficient to establish market

power.” 

(internal quotation marks omitted). And the


      6
         Dr. Cohlmia cites a number of other cases in support of his view that
antitrust injury can be demonstrated without an “actual lessening of competition
or an increase in prices.” Aplt. Br. at 32 (quoting Blue Shield of 

). But the cases he cites were primarily decided at the motion to
dismiss stage when the court is still determining jurisdiction, and are predicated
on a finding of “an abusive peer review process”—a finding we rejected above by
concluding that SJMC is entitled to HCQIA immunity. See Balaklaw v. Lovell, 

, 795 n.2 (2d Cir. 1994); Fuentes v. South Hills Cardiology, 

(3d Cir. 1991); Mishler v. St. Anthony’s Hosp. Sys., 

(10th Cir.
1981); Full Draw Prods. v. Easton Sports, Inc., 

(10th Cir. 1999).

                                         -22-
absence of market share may give rise to a presumption that market power does

not exist. 

Cohlmia’s expert testified that SJMC controlled between 15.8% and

19.3% of the market, and SJMC does not dispute this quantitative conclusion.

From this testimony, Dr. Cohlmia argues that market share “between 17% and

25% . . . is sufficient to show monopoly power.” Aplt. Br. at 34 (citing Valley

Liquors, Inc. v. Renfield Importers, Ltd., 

, 667 (7th Cir. 1987)). But

as SJMC notes, this is hardly a bright-line, or even a commonly accepted, metric.

See 

(We have not determined “a firm market share

percentage . . . before a finding of monopoly power can ever be sustained. We

prefer the view that market share percentages may give rise to presumptions, but

will rarely conclusively establish or eliminate market or monopoly power.”); see

also Colorado Interstate Gas Co. v. Natural Gas Pipeline Co., 

, 694

n.18 (10th Cir. 1989) (“While the Supreme Court has refused to specify a

minimum market share necessary to indicate a defendant has monopoly power,

lower courts generally require a minimum market share of between 70% and

80%.”). Thus, while high market shares may give rise to presumptions of market

power, a market share of less than 20% is woefully short under any metric from

which to infer market power. See also Domed Stadium Hotel, Inc. v. Holiday

Inns, Inc., 

, 490 (5th Cir. 1984) (“[U]ndisputed evidence of low

market share may make monopolization an impossibility as a matter of law.”); IIB

                                       -23-
Areeda & Hovenkamp 250 (“We . . . presume that market shares below 50 or 60

percent do not constitute monopoly power . . . . [and e]ven without an absolute

rule, a clear presumption will almost always be decisive.”).

      Given the low market share at issue here, Dr. Cohlmia argues he can still

demonstrate market power by showing “other compelling structural evidence . . .

to support monopolization.” Dimmitt Agri.. Indus., Inc. v. CPC Int’l, Inc., 

, 529 (5th Cir. 1984). Since the market share percentages held by SJMC

are well shy of clear market power, in determining whether there is any “other

compelling structural evidence,” we consider the strength of competition and the

difficulty or ease of entry into the market. Shoppin’ 

.

      With respect to the strength of competition, there are four hospital systems

in Tulsa that perform the types of surgeries at issue and SJMC is not even the

largest—Saint Francis is. In addition, a specialty heart hospital operated by Saint

Francis competed with SJMC, HMC, and SouthCrest at the relevant times here.

While performing surgery is a capital-intensive process, for a market the size of

Tulsa, four hospital systems do not indicate significant market power by any one

player. To the contrary, the record shows each participant in Tulsa had a roughly

equivalent share of the market, and no one entity was exercising market power. 7

      7
         Additionally, we disagree with Dr. Cohlmia’s citation to Oltz v. St.
Peter’s Community Hosp., 

(9th Cir. 1988), for the proposition that
anti-competitive behavior by a hospital can evidence antitrust injury for “two
different segments of the economy. . . . the market in which anesthesia providers
                                                                      (continued...)

                                        -24-
      As to barriers of entry, SJMC points out that fourteen new surgeons have

entered the market since 1994, with many of them being recruited by Dr.

Cohlmia. While Dr. Cohlmia makes a legitimate argument that exclusion by one

hospital can lead to a domino effect of exclusion by other hospitals, he still does

not overcome the fact that the mishandled surgeries justified SJMC’s peer review.

And as we discussed above, the peer review process resulted in a suspension

decision affirmed by a neutral evaluator. The peer review process is no more an

entry barrier than any standard requiring professionals to maintain certain

professional credentials.

      Assuming that SJMC lacked the requisite market power, Dr. Cohlmia’s

claims may still be pursued for those Section 1 violations that do not require a

showing of market power. Thus, a demonstration of anticompetitive conduct can

be based on actual adverse effects to competition. FTC v. Indiana Fed’n of

Dentists, 

, 460–61 (1986).

      Dr. Cohlmia’s claim falls short here as well. He points to SJMC’s

“concerted refusal to deal with Plaintiff and the coercion of patients.” Aplt. Br.

at 36. But he is not entitled to practice at SJMC or any other hospital; and he

      7
        (...continued)
compete for staff privileges . . . [and] the patient market for anesthesia services.”

the Ninth Circuit did so hold, the facts in Oltz indicate that St.
Peter’s had an 84% market share for surgical services. 

such a
case, an exclusive agreement to exclude the plaintiff from the market—where
such a large showing of market share is demonstrated and conceded by the
defendants—is fair evidence of antitrust injury.

                                         -25-
never explains how his patients were coerced by SJMC. If he is referring to a

reduction of choice in the market for physicians, that argument is simply circular

and refers back to his claims of market power, which he cannot support.

      In sum, we agree with the district court that Dr. Cohlmia has not

demonstrated SJMC has sufficient market power to control prices or exclude

competition.

               c. Proof of Conspiracy

      An inference of conspiracy is impermissible if the defendants “had no

rational economic motive to conspire, and if their conduct is consistent with

other, equally plausible explanations.” Matsushita Elec. Indus., Co. v. Zenith

Radio Corp., 

, 596 (1986).

      Dr. Cohlmia argues he demonstrated ample evidence of conspiracy, and

that the district court failed to consider his evidence taken as a whole, rather than

individually. Dr. Cohlmia’s arguments are predicated on his belief that SJMC

was conspiring against him to block his specialty heart hospital—an unsuccessful

venture that failed to attract any investors. Dr. Cohlmia’s claims are speculative

at best, and even viewing these arguments in the best light possible, there is

simply no evidence of an actual conspiracy. For the same reasons as the district

court, we agree summary judgment on the conspiracy claims was proper.

      In sum, the district court did not err in granting summary judgment on the

federal antitrust claims.

                                         -26-
             2. State Antitrust Claims

      Next, we turn to Dr. Cohlmia’s state antitrust claims.

      Under the Oklahoma Antitrust Reform Act, it is unlawful for any person to

monopolize, attempt to monopolize, or conspire to monopolize any part of trade

or commerce in a relevant market within the state. Okla. Stat. Tit. 79 § 203(B).

This is essentially the same as the federal test and, as with those claims, the

district court properly awarded summary judgment.

      One notable difference though, is that it is unlawful for any person in

control of an essential facility to unreasonably refuse to give a competitor access

if the effect of such refusal is to injure competition. 

An

“essential facility” is, among other things, a facility “which is controlled by an

entity that possesses monopoly power.” 

      As discussed above, SJMC lacked monopoly power, so for the same

reasons, the state law claim fails. In addition, Dr. Cohlmia had privileges at

several of the other local hospitals at the time of his suspension from SJMC, so he

was not “locked out,” Aplt. Br. at 10, of an essential facility, as required by the

Act. And it is not anti-competitive for a hospital to restrict privileges of medical

professionals deemed unsafe to practice in a facility. See Pontius v. Children’s

Hosp., 

, 1370 (W.D. Pa. 1982) (reasoning that it would be

“inappropriate to apply a doctrine which would prevent a hospital from keeping

doctors it had adjudged unqualified off of its staff”).

                                         -27-
       Dr. Cohlmia points to an Oklahoma case where the court struck down a

contractual provision preventing a surgeon from practicing within a 20-mile

radius of Tulsa. Cardiovascular Surgical Specialists, Corp. v. Mammana, 

, 214–15 (Okla. 2002). But that case involved an onerous non-compete

agreement (ironically, drafted by Dr. Cohlmia’s corporate entity, a defendant in

the case) that completely excluded the surgeon from the market for two years. In

finding anti-competitive activity, the court was clear that the non-compete

effectively banned the surgeon “from practicing . . . within 100 miles” of the

community where he had previously been employed, and was “much broader than

necessary to protect any legitimate interest of” his former employer. 

this case, SJMC has properly received HCQIA immunity, and, at the time of

his suspension, Dr. Cohlmia had staff privileges at several other area hospitals

where he could practice. The record is clear that Dr. Cohlmia was upset with this

turn of events, but he ultimately chose to voluntarily resign his privileges at two

hospitals and move his primary practice to Tahlequah—which is still in the

market area as defined by his own expert. There is simply no basis to conclude

that SJMC violated Oklahoma state antitrust law or specifically, the “essential

facility” doctrine. 8

       8
        Dr. Cohlmia refers back to the district court’s opinion denying SJMC’s
motion to dismiss, Cohlmia I, as evidence of “the misuse of the peer review
process.” Aplt. Br. at 37. But the district court was ruling on Dr. Cohlmia’s
motion to dismiss—which is based on different evidentiary standards than a
                                                                      (continued...)

                                        -28-
      In sum, the district court properly granted summary judgment to SJMC on

Dr. Cohlmia’s state antitrust claims. Although he presented a coherent theory to

survive an initial motion to dismiss, once discovery was completed, the record

lacked sufficient evidence to support his claims.

             3. Tortious Interference with Contract

      Dr. Cohlmia also contends the district court erred in dismissing his tortious

interference with contract claim. We disagree.

      To state a claim for tortious interference with business or contractual

relations, the plaintiff must show: (1) he or she had a business or contractual right

that was interfered with; (2) the interference was malicious and wrongful and was

not justified, privileged, or excused; and (3) damage was proximately sustained as

a result of the interference. Mac Adjustment, Inc. v. Property Loss Research

Bureau, 

, 428 (Okla. 1979).

      Dr. Cohlmia claims that SJMC interfered with his contracts with two

groups: his patients and an insurer, Blue Cross/Blue Shield.

             a. Patient Contracts

      As to interference with patient contracts, Dr. Cohlmia argues that, at the

time SJMC suspended his privileges, both he and his patients were forced to leave


      8
        (...continued)
ruling for summary judgment. In this appeal, we review the grant of summary
judgment based on whether Dr. Cohlmia has marshaled record evidence to support
his claims, not mere allegations of wrongful conduct.

                                        -29-
the Tulsa market in order to continue treatment. As SJMC points out, the

relationship between a doctor and a patient is at-will; there is no contract at issue.

See also Vesom v. Atchison Hosp. Ass’n, 279 F. App. 624, 640 (10th Cir. 2008)

(finding that to recover, plaintiff must show a “contractual relationship or

exclusive arrangement with his patients on which to base his prospective loss”).

Dr. Cohlmia acknowledges this point, but argues that as a result of SJMC’s

conduct, his interactions with patients were made “more burdensome or

expensive.” Aplt. Br. at 46; see also John A. Henry & Co., v. T. G. & Y. Stores

Co., 

, 1071–72 (10th Cir. 1991). SJMC counters that Dr. Cohlmia

presented no evidence to support these allegations, and, at the time of his

suspension, Dr. Cohlmia had privileges at three other local hospital systems

where he could serve his patients. 9 Aple. Br. at 49.

      The district court held that Dr. Cohlmia failed to offer proof of his damages

and damages are not automatically presumed on the basis of a loss of privileges.

Aplt. App. at 701–02. In rebutting this determination, Dr. Cohlmia relies on the

Fifth Circuit’s decision in Kiepfer v. Beller, 

, 1220 (5th Cir. 1991),

which held that a physician can establish sufficient evidence for a tortious

interference claim by showing that defendant physicians interfered with his ability

      9
         Dr. Cohlmia disputes this characterization, stating that the area hospitals
were “already taking measures to deny [his] privileges,” in a “secret” review
process. Aplt. Rep. Br. at 14. But even so, his privileges were still intact at the
time of SJMC’s suspension. And in any event, as discussed below, Dr. Cohlmia
failed to provide proof of his damages, which is required for recovery.

                                         -30-
to obtain patient referrals. But in that case, the doctor at trial “sufficiently proved

that his damages—the complete loss of his referral practice—was a proximate

result of the [tortious interference.]” 

there is no evidence demonstrating a loss of patients or monetary

damages. But Dr. Cohlmia argues that the district court improperly denied his

request to submit an expert report detailing his damages. The court rejected the

report because Dr. Cohlmia failed to comply with the requirements of Federal

Rule of Civil Procedure 56(f), by not filing an affidavit indicating that he was

unable to present facts essential to justify his opposition to summary judgment. 10

Given that he failed to comply with the Rules, it was not an abuse of discretion

for the district court to reject Dr. Cohlmia’s filing based on his failure to comply

with Rule 56(f). 11

             b. Insurance Contracts

      As with his patients, Dr. Cohlmia fails to provide evidence of economic

damage to his relationship with Blue Cross/Blue Shield. The only reference in

Dr. Cohlmia’s briefs to this issue is that he “had to undergo appellate procedures

to remain available under the Blue Cross/Blue Shield insurance plans of



      10
         In 2010, Rule 56(f) was amended and the substance is now embodied in
Rule 56(d) instead. For simplicity’s sake, we refer to Rule 56(f) to comport with
the record in this case.
      11
         The merits of this evidentiary report are discussed in greater detail
below in subsection 4.

                                          -31-
thousands of patients.” Aplt. Br. at 45. While not specifically explained, it

appears Dr. Cohlmia is arguing that, once his privileges were suspended at one

hospital, he had to be “recertified” by other hospitals, to continue as a provider in

the insurance system. While this likely imposed some time cost, as with his

allegations as to patient interference, Dr. Cohlmia failed to properly submit

evidence detailing his losses.

      Accordingly, the district court did not err in its grant of summary judgment

with respect to tortious interference with contract.

             4. Intentional Interference with Prospective Economic Advantage

      Dr. Cohlmia’s final claim contends that SJMC wrongfully interfered with

his medical practice.

      To state a claim for malicious interference with prospective business

relations, the plaintiff must show: (1) the existence of a valid business relation or

expectancy; (2) knowledge of the relationship or expectancy on the part of the

interferor; (3) an intentional interference including or causing a breach or

termination of the relationship or expectancy; and (4) resultant damage to the

party whose relationship has been disrupted. Boyle Services, Inc. v. Dewberry

Design Group, Inc., 

, 880 (Okla. Civ. App. 2001). In order to prevail,

the plaintiff must show that the defendant used “some intentional or improper

conduct or means.” Overbeck v. Quaker Life Ins. Co., 

, 848 (Okla.

Civ. App. 1984).

                                         -32-
      Dr. Cohlmia identified two business expectancies that he claims were

interfered with by SJMC: (1) potential new patients, and (2) potential lost profits

from his specialty heart hospital venture.

      The new patient claim suffers from the same defects discussed above

regarding the insufficiency of evidence relating to existing patients, and need not

be restated here.

      As to the lost profits claim, Dr. Cohlmia claims SJMC was attempting to

frustrate his efforts to build and operate a new specialty heart hospital in the

Tulsa area. The district court found that this claim also suffered from “the

absence of proof of damages.” Aplt. App. at 702.

      Claims for damages based on future profits are generally prohibited since

they are typically uncertain and speculative. Weyerhaeuser Co. v. Brantley, 

, 1267 (10th Cir. 2007) (citations omitted). Oklahoma state law holds

that when a party seeks to recover loss of future profits, the profits should be

coming from an established business that shows with some certainty the future

losses. Plummer v. Fogley, 

, 241 (Okla. 1961).

      Dr. Cohlmia submitted an expert report to establish future profits, but the

court ruled that the report was inadmissible because Dr. Cohlmia failed to comply

with the requirements of Rule 56(f). See Aplt. App. at 701-02 (ruling); 1480

(report). Even if the court had received the report, SJMC argues that it “does not

speak to the certainty of profits, but is an extrapolation of tax returns and reliance

                                         -33-
on a pro forma (which is not part of the record and itself hearsay and

unreasonable).” Aple. Br. at 54.

      We agree. The expert report relies on economic projections going out

several years detailing Dr. Cohlmia’s expected profits from his specialty heart

hospital, but such projections are speculative at best. Given that the consultant

retained by Dr. Cohlmia for the specialty heart hospital project concluded that the

project “would not be successful” in June 2002—over a year before SJMC’s

suspension of Dr. Cohlmia—and that Dr. Cohlmia failed to attract a single

investor after distributing his PPM, the district court did not err in concluding

Oklahoma law required more evidence to support a damage award.

      The district court did not err in granting summary judgment with respect to

the intentional interference with prospective economic advantage claim.

             5. Various Other Motions

      As noted above, Dr. Cohlmia’s arguments realize the meager state of the

record regarding damages. But he argues that the district court erred by

overruling his motions to supplement the record. Unfortunately, Dr. Cohlmia

does not explain why the district court erred and simply points to cases showing

that summary judgment reversal is necessary when error occurs.

      The district court was well within its discretion to reject Dr. Cohlmia’s

motions for the simple fact that he did not comply with the required procedures




                                         -34-
for submission. Additionally, there is nothing here to suggest that they were so

substantively important that the outcome in this case would have been different.

      C. Cost Award

      Federal Rule of Civil Procedure 54 “creates a presumption that the district

court will award costs to the prevailing party,” and the district court “must

provide a valid reason for denying such costs.” In re Williams Sec. Litig. - WCG

Subclass, 

, 1147 (10th Cir. 2009). A prevailing party bears the

burden of establishing the costs to which it is entitled, Allison v. Bank One-

Denver, 

, 1248 (10th Cir. 2002), and the amount “must be

reasonable.” Callicrate v. Farmland Indus., 

, 1339 (10th Cir.

1998). But once the burden is met, the “burden shifts to the non-prevailing party

to overcome the presumption that these costs will be taxed.” In re 

.

      We review the legal analysis providing the basis for a fee award de novo,

W. Am. Ins. Co. v. AV&S, 

, 1230 (10th Cir. 1998), and the amount

of a fee or cost award for an abuse of discretion, Anchondo v. Anderson,

Crenshaw & Assocs., LLC, 

, 1101 (10th Cir. 2010).

      Dr. Cohlmia argues that the district court erred by (1) awarding costs to

SJMC in the first instance; and (2) even if awarding costs were legally proper, the

amount awarded was unreasonable. He argues the district court imputed certain

costs that had been borne by other defendants to SJMC when calculating their

                                        -35-
expenses—a problem because other defendants previously settled, and the various

parties agreed to bear their own costs as a part of that settlement. SJMC

disagrees, arguing that it only ever sought recovery for the costs that it paid out of

pocket.

      Dr. Cohlmia points to the copying costs as especially egregious, but as

SJMC notes, at the time of the fee award, the case had spanned over four years,

with almost 300,000 pages of discovery produced by SJMC at a cost of almost

$20,000. We have previously held that “the burden of justifying copy costs is not

a high one. A prevailing party need not justify each copy it makes. . . . [but,

instead] demonstrate to the district court that, under the particular circumstances,

the copies were reasonably necessary for use in the case.” In re 

(internal quotation marks omitted).

      The district court was in the best position to determine the reasonable

necessity of the copying cost award, and the record is clear that the court rejected

Dr. Cohlmia’s argument that SJMC only be awarded 3/16 of their proposed costs

(an argument presumably raised because SJMC accounted for 3/16 of the original

defendants). As the record and the district court made clear, “[t]he costs sought

by defendants were actual out-of-pocket costs. They are entitled to recover these

costs provided they were reasonably necessary to the litigation of the case.” Aplt.

App. at 3423.




                                         -36-
      Nothing in the record indicates that the district court’s cost award was

unreasonable. Accordingly, we AFFIRM the district court’s cost award.

                               III. Conclusion

      Based on the foregoing analysis, we AFFIRM the district court’s grants of

summary judgment and the cost award to SJMC.




                                        -37-