Lifespan v. NEMC, et al.

2011 DNH 133

Opinion

Lifespan v. NEMC, et al. CV-06-421-JL 8/26/11

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

Lifespan Corporation

v. Civil N o . 06-cv-421-JNL Opinion N o . 2011 DNH 133 New England Medical Center, Inc., now known as Tufts Medical Center Parent, Inc., and New England Medical Center Hospitals, Inc., now known as Tufts Medical Center, Inc.

and

Martha Coakley, Attorney General for the Commonwealth of Massachusetts, Intervenor

OPINION & ORDER

This case arises from a dispute between Lifespan

Corporation, a non-profit healthcare system in Rhode Island, and

New England Medical Center (“NEMC”), a non-profit hospital in

Massachusetts, over their brief and unsuccessful affiliation.

This court recently issued findings of fact and rulings of law

after a bench trial, awarding about $14 million to Lifespan on

its claim against NEMC for breach of their disaffiliation

agreement and also awarding about $14 million to NEMC and the

Massachusetts Attorney General (who had intervened pursuant to

her supervisory authority over that state’s public charities) on

their counterclaims against Lifespan for indemnification and

breach of fiduciary duty, respectively. See Lifespan Corp. v .

New Eng. Med. Ctr., Inc., --- F. Supp. 2d ----, 2011 U.S. Dist.

LEXIS 56525, 2011 WL 2134286 (D.R.I. May 2 4 , 2011) (“Findings & Rulings”). Judgment then entered accordingly. See document n o .

224. Both sides have now moved to alter or amend the judgment in

various respects. See Fed. R. Civ. P. 52(b), 59(e). This court

rules on their motions as set forth below.

I. Amount of damages

Lifespan has moved to amend the judgment to reduce the

amount of damages it owes for failing to negotiate inflationary

increases in the reimbursement rates paid to NEMC by health

insurers Cigna and United from 2000 to 2002. See Findings &

Rulings at ¶¶ 99-102, appendix. The issue in dispute is which

inflation rate should be used to calculate the damages for the

first of those three years (2000). This court used “the total,

compounded inflation [rate] for 1998 and 1999,” because “the

United and Cigna contracts had not been negotiated since 1997,”

when Lifespan first assumed responsibility for overseeing NEMC’s

payor contracts. Id. at appendix n.**.

Lifespan argues that this court should have used only the

1999 inflation rate. But this court stands by its earlier

ruling. Had Lifespan negotiated inflationary increases in the

Cigna and United reimbursement rates for 2000, those increases

would not have accounted solely for the previous year’s

inflation; they would have and should have accounted for all of

2 the inflation since the reimbursement rates were last negotiated

in 1997.

Contrary to what Lifespan argues, using the compounded

1998/1999 inflation rate to calculate the damages for 2000 is not

the same thing as imposing damages against Lifespan for failing

to negotiate inflationary increases for 1999 (the year before

this court found it should have, see Findings & Rulings at n.17).

No damages have been awarded for 1999. This court’s damages

calculation is based on the assumption that the reimbursement

rates paid by Cigna and United would have stayed at the static

1997 level through the end of 1999. By that point, however,

Lifespan could have and should have negotiated inflationary

increases for 2000 to account for the intervening inflation in

1998 and 1999, bringing the reimbursement rates back to the

inflation-adjusted 1997 level. Lifespan’s request to reduce the

amount of damages it owes is denied.

II. Prejudgment interest

Both sides have moved to alter or amend the judgment to

include prejudgment interest. NEMC and the Massachusetts

Attorney General argue that interest should be awarded on

everyone’s damages. Lifespan, hoping for the best of both

worlds, argues that interest should be awarded only on its

damages, not NEMC’s. Both sides agree that Rhode Island law

3 governs whether and how much prejudgment interest to award. See,

e.g., R.I. Charities Trust v . Engelhard Corp., 267 F.3d 3 , 8 (1st

Cir. 2001) (explaining that Rhode Island law on prejudgment

interest governs in federal diversity cases brought in that

forum, “even where [as here] the dispute is controlled by the

substantive law of another state”). This court will analyze each

issue in turn.

A. Whether to award interest

Rhode Island has a prejudgment interest statute that

provides in relevant part:

In any civil action in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages interest at the rate of twelve percent (12%) per annum thereon from the date the cause of action accrued, which shall be included in the judgment entered therein.

R.I. Gen. Laws § 9-21-10. “The dual purpose of prejudgment

interest” under that statute, according to the Rhode Island

Supreme Court, “is to encourage early settlement of claims and to

compensate an injured plaintiff for delay in receiving

compensation to which he or she may be entitled.” Metro. Prop. &

Cas. Ins. C o . v . Barry, 892 A.2d 915, 919 (R.I. 2006) (citing

Martin v . Lumberman’s Mut. Cas. Co., 559 A.2d 1028, 1031 (R.I.

1989)).

4 The Rhode Island Supreme Court “has long held that the

awarding of [prejudgment] interest is a ministerial act for the

clerk of the court, not an issue to be decided by the court.”

Cardi Corp. v . State, 561 A.2d 3 8 4 , 387 (R.I. 1989) (citing a

line of cases that began with Kastal v . Hickory House, Inc., 187

A.2d 2 6 2 , 264 (R.I. 1963)). In other words, “once the claim for

damages has been duly reduced to judgment the addition of

interest is peremptory” and “automatically awarded.” Id. The

rationale behind this approach is that the statute “speaks

imperatively and directly not to the court but to the clerk,”

admitting of “no conditions or reservations,” and it “is not the

court’s business” when confronted with “a statute so clear and

unambiguous” to “read[] into [it] something contrary to its

unequivocal language,” regardless of whether it “comports with

[the court’s] ideas of justice, expediency or sound public

policy.” Kastal, 187 A.2d at 264-65.

There has been one case, however, where the Rhode Island

Supreme Court concluded that an award of prejudgment interest

“would be inappropriate” for a plaintiff who had rejected an

early settlement offer equal to her ultimate recovery, because

such an award “would promote neither of the purposes of § 9-21-

10.” Martin, 559 A.2d at 1031. Several courts have interpreted

Martin to mean that “under Rhode Island law, a court may choose

not to follow the statutory mandate if the award of interest, in

5 light of the facts of the case, does not further policy goals.”

Fratus v . Rep. W . Ins. Co., 147 F.3d 2 5 , 31 (1st Cir. 1998); see

also Buckley v . Brown Plastics Mach., LLC, 368 F. Supp. 2d 1 6 7 ,

169-70 (D.R.I. 2005); Commercial Assocs. v . Tilcon Gammino, Inc.,

801 F. Supp. 939, 942-43 (D.R.I. 1992), aff’d, 998 F.2d 1092 (1st

Cir. 1993); DeCesare v . Lincoln Benefit Life Co., N o . PB-99/2048,

2005 WL 372300, at * 2 , 2005 R.I. Super. LEXIS 2 5 , at *5-6 (R.I.

Super. C t . Jan. 1 3 , 2005) (unpublished).

Even i f , despite the clear language of § 9-21-10 (which this

court regards as unambiguous), courts have discretion not to

award prejudgment interest on equitable grounds, this court would

nevertheless award it here, because doing so promotes both of the

statutory purposes. First, such an award would help to

“encourage early settlement of claims.” Barry, 892 A.2d at 919.

Early settlement would have been particularly welcome here,

because it would have kept Lifespan and NEMC--two non-profit

organizations with similar missions to provide health care to the

people of New England--from diverting resources away from that

mission to pay for their attorneys and other litigation expenses.

Lifespan argues that NEMC made early settlement impossible by

hurling a “kitchen sink of hyperbolic accusations,” which made

Lifespan’s liability “totally unknowable and not predictable.”

But that is itself hyperbole. While NEMC’s broader theories of

liability proved unsuccessful, see, e.g., Findings & Rulings at

6 ¶¶ 106, 1 7 8 , and 199, Lifespan was held liable for particular

conduct, relating to NEMC’s payor contracts and an interest rate

swap transaction, that even its own executives acknowledged was

hard to justify, see id. at ¶¶ 7 6 , 117. That liability was

hardly “unknowable” or “unpredictable.” Moreover, cases settle

all the time with uncertain liability.

Second, an award of prejudgment interest will “compensate

[both sides] for delay in receiving compensation to which [they

were] entitled.” Barry, 892 A.2d at 919. NEMC, in particular,

has waited about a decade to be compensated for Lifespan’s

misconduct during their affiliation. Lifespan argues that NEMC

essentially compensated itself by withholding (or, as Lifespan

puts i t , “holding hostage”) payments due Lifespan under the

affiliation agreement, which roughly equaled the amount of

Lifespan’s liability. See Findings & Rulings at ¶¶ 1 6 , 49-55.

But NEMC withheld those payments only from 2006 to 2008 (the last

payment in 2008 was by far the largest), whereas its damages were

incurred from 2000 to 2002, meaning that NEMC still waited about

half a decade before being compensated.1 An award of interest

would compensate it for that delay. See, e.g., Fratus, 147 F.3d

at 31 (affirming award of interest where plaintiffs had “been

1 Moreover, Lifespan will be awarded interest to compensate it for the delay in receiving those payments. See Part II.B, infra 7 forced to wait many years for the money to which they were

unquestionably entitled”).

Lifespan also argues that the Massachusetts Attorney General

caused some of the delay by waiting years to intervene in this

case. But Lifespan has not shown that the Attorney General’s

delay in intervening was unreasonable. See Findings & Rulings at

n.4 (rejecting Lifespan’s laches defense to the Attorney

General’s claims); Lifespan Corp. v . New Eng. Med. Ctr., Inc.,

N o . 06-421, 2010 WL 3718952 (D.R.I. Sept. 2 0 , 2010) (rejecting

Lifespan’s statute of limitations defense). Moreover, there is

no reason to believe that the litigation or settlement

discussions would have taken a materially different course if the

Attorney General had intervened earlier. S o , even assuming

arguendo that unreasonable and prejudicial delay by the plaintiff

could be a permissible basis for denying prejudgment interest

under Rhode Island law, but see Roy v . Star Chopper Co., 584 F.2d

1124, 1135-36 (1st Cir. 1978) (noting that, under Kastal, 187

A.2d at 265, “possible prejudice resulting from a dilatory

plaintiff was not a reason” to deny interest), no such delay

occurred here.

B. Amount of interest award

There is still the question of when interest began accruing

on each side’s damages. The statute provides that interest must

8 be calculated “from the date the cause of action accrued.” R.I.

Gen. Laws § 9-21-10. Both sides agree that Lifespan’s claim for

breach of contract accrued on the dates when NEMC failed to make

payments that the contract required:

• January 2 , 2006 for the first withheld payment of $1,830,000;

• January 2 , 2007 for the second withheld payment of $1,830,000; and

• March 2 5 , 2008 for Lifespan’s $10,243,948 share of the Medicare recovery that NEMC received on that date.

See Findings & Rulings at ¶¶ 49-55. So Lifespan is entitled to

prejudgment interest on each of those amounts from the date of

accrual to the date of the amended judgment, at the statutory

rate of 12 percent per year. See Part V , infra (ordering the

clerk to amend the judgment to include that award of prejudgment

interest).

The parties disagree over when NEMC’s indemnification claim

and the Massachusetts Attorney General’s claim for breach of

fiduciary duty accrued. Lifespan argues that this court should

use the date when they filed suit as the accrual date because it

is unclear precisely when NEMC and the Attorney General incurred

those damages. But the opposite is true. This court

specifically found that NEMC and the Attorney General’s damages

accrued on the following dates:

• $8,318,791 in damages for Lifespan’s misconduct in connection with an interest rate swap transaction accrued on November 1 , 2002, when NEMC terminated the swap transaction

9 and refinanced its bonds, see Findings & Rulings at ¶¶ 130- 3 1 , 1 4 4 , 1 4 8 , 155; 2

$699,057 in damages for Lifespan’s failure to negotiate inflationary increases in Cigna’s reimbursement rates were incurred during the year 2000, see id. at appendix, such that December 3 1 , 2000 is the proper accrual date;

$490,135 in damages for Lifespan’s failure to negotiate inflationary increases in United’s reimbursement rates were incurred during the year 2000, see id., such that December 3 1 , 2000 is the proper accrual date;

$1,046,450 in damages for Lifespan’s failure to negotiate inflationary increases in Cigna’s reimbursement rates were incurred during the year 2001, see id., such that December 3 1 , 2001 is the proper accrual date;

$892,593 in damages for Lifespan’s failure to negotiate inflationary increases in United’s reimbursement rates were incurred during the year 2001, see id., such that December 3 1 , 2001 is the proper accrual date;

$1,413,297 in damages for Lifespan’s failure to negotiate inflationary increases in Cigna’s reimbursement rates were incurred during the year 2002, see id., such that December 3 1 , 2002 is the proper accrual date; and

2 Lifespan argues that the swap damages were not truly realized on November 1 , 2002, because those damages reflect “present value savings” that NEMC lost as of November 1 , 2002, id. at ¶ 1 3 1 , meaning that NEMC’s “actual damages would not occur until the bonds [were] being paid down, on dates following [November 1 , 2002] and into the future.” But it is well established under Rhode Island law that prejudgment interest can be “properly assessed on all future damages awarded to plaintiff,” including “present value” damages of the sort awarded here. La Plante v . Am. Honda Motor Co., 27 F.3d 7 3 1 , 744 (1st Cir. 1994) (citing Pray v . Narragansett Improvement Co., 434 A.2d 923, 930-31 (R.I. 1981)); see also Barbato v . Paul Revere Life Ins. Co., 794 A.2d 4 7 0 , 472-73 (R.I. 2002) (suggesting, in a case where the defendant was held liable for failing to make a series of monthly payments, that “the better method . . . is to discount the payments to their [present] value on the date the damages first began to accrue, and then to apply the prejudgment interest rate to the total sum of the discounted monthly payments”).

10 • $1,316,381 in damages for Lifespan’s failure to negotiate inflationary increases in United’s reimbursement rates were incurred during the year 2002, see id., such that December 3 1 , 2002 is the proper accrual date.

So NEMC and the Attorney General are entitled to prejudgment

interest on each of those amounts from the date of accrual to the

date of the amended judgment, at the statutory rate of 12 percent

per year. See Part V , infra (ordering the clerk to amend the

judgment to include those awards).

Lifespan argues, in the alternative, that this court should

use the date of the disaffiliation agreement as the accrual date

for NEMC’s damages, because NEMC’s claims were based on the

indemnification provision in that agreement and thus could not

have been asserted any earlier. But the agreement essentially

just transformed NEMC’s pre-existing claims against Lifespan for

breach of fiduciary duty (which, as the Massachusetts Attorney

General’s recovery shows, were meritorious) into parallel claims

for indemnification. See id. at ¶¶ 36-48; Lifespan Corp. v . New

Eng. Med. Ctr., Inc., 731 F. Supp. 2d 2 3 2 , 243 (D.R.I. 2010)

(“NEMC, while agreeing to the release [of its tort claims],

effectively hedged its risk by negotiating a broad

indemnification provision to protect itself against losses caused

by Lifespan’s misrepresentations, willful misconduct, or gross

negligence”). It would be unjust, and inconsistent with the

parties’ agreement, to treat that switch from tort claims to

11 indemnification claims as cutting off NEMC’s right to interest

accrued before the agreement.

Moreover, even if NEMC’s interest award were confined to the

post-agreement period, the Massachusetts Attorney General’s award

would not b e . She was not a party to the agreement; her claims

were for breach of fiduciary duty, not indemnification. Lifespan

argues that her interest award should instead be confined to the

period after her intervention in this case, because she

unreasonably delayed in intervening. But this court has already

rejected that argument as a basis for denying interest, see Part

II.A, supra, and likewise rejects it as a basis for reducing the amount of such interest.3

III. Attorneys’ fees

NEMC has moved for an award of attorneys’ fees in the amount

of $1,152,215 and non-taxable expenses in the amount of

$43,929.62, see Fed. R. Civ. P. 54(d)(2), arguing that it is

contractually entitled to such an award under the indemnification

provision in the disaffiliation agreement. Specifically, NEMC

3 Lifespan also argues that the Attorney General’s accrual date should trump NEMC’s accrual date because breach of fiduciary duty “was the primary cause of action asserted against it.” But the fiduciary duty and indemnification claims were on equal footing; neither was “primary” over the other (if that even matters). And, in any event, they accrued at the same time, as explained supra.

12 argues that fees and non-taxable expenses incurred in proving its

indemnification claim against Lifespan constitute further covered

“losses” that Lifespan also must indemnify. Lifespan argues, in

response, that it is too late for NEMC to seek fees and expenses

under the indemnification provision, because NEMC failed to

provide pretrial notice of its intent to do so and then failed to

present evidence of its fees and expenses at trial.4 Lifespan

also contests NEMC’s interpretation of the indemnification

provision as covering attorneys’ fees and expenses.

Rule 54(d)(2)(A) provides that a claim for attorneys’ fees

and non-taxable expenses may be made by postjudgment motion

“unless the substantive law requires those fees to be proved at

trial as an element of damages.” One such situation where the

rule “does not . . . apply”--and the exception does--is when fees

are “sought under the terms of a contract.” Fed. R. Civ. P.

54(d)(2)(A), advisory committee notes (1993). In evaluating

contractual fee claims, however, “courts have differentiated

between claims for attorney’s fees based on ‘prevailing party’

contractual provisions,” which generally may be raised in a

postjudgment motion (because only then can the prevailing party

be determined), “and claims for attorney’s fees based on other

4 If it is not too late, then Lifespan argues that i t , too, should be allowed to seek indemnification of fees and expenses (notwithstanding its equal failure to provide notice or evidence of such a claim), because it prevailed on many issues.

13 types of contractual provisions,” which generally must be proved

at trial. Rockland Trust C o . v . Computer Associated Int’l, Inc.,

N o . 95-11683, 2008 WL 3824791, *5 (D. Mass. Aug. 1 , 2008) (citing

Pride Hyundai, Inc. v . Chrysler Fin. Co., 355 F. Supp. 2d 6 0 0 ,

603 (D.R.I. 2005)).

The contractual provision on which NEMC is relying here is

not a “prevailing party” provision (and, even if it were, this

court has already ruled that “neither side has a significantly

stronger claim to the title of prevailing party,” because “the

case essentially resulted in a tie,” document n o . 2 3 7 , at 2 ) .

Rather, it is an indemnification provision that requires Lifespan

to indemnify NEMC for certain losses caused by its

misrepresentations, willful misconduct, or gross negligence.

Courts have generally concluded that an “indemnification clause

provide[s] for attorney’s fees as an element of damages,” which

means that claims for indemnification of fees and expenses must

be proved at trial, not by way of a postjudgment motion. Kraft

Foods N . Am., Inc. v . Banner Eng’g & Sales, Inc., 446 F. Supp. 2d

551, 578 (E.D. V a . 2006) (citing Pride Hyundai, 355 F. Supp. 2d

at 603). 5 Whether or not that reasoning applies in every case,

5 See also, e.g., Callaway v . Wiltel Commc’ns, LLC, N o . 06- 0579, 2007 WL 2902878, at *7 (N.D. Okla. Oct. 2 , 2007); Fed. Agric. Mortg. Corp. v . It’s a Jungle Out There, Inc., N o . 03- 3721, 2006 WL 1305212, at *1-3 (N.D. Cal. May 9, 2006) (citing Carolina Power & Light C o . v . Dynegy Mktg. & Trade, 415 F.3d 354 (4th Cir. 2005)); Phillips v . Grendahl, N o . 00-1382, 2001 WL 1110370, at *2 (D. Minn. Sept. 1 9 , 2001); Schlerman v . Kansas

14 it is apt here, where NEMC’s claim for fees and expenses is based

on the same indemnification provision that governed each of the

claims on which this court awarded damages to NEMC following

trial. See Findings & Rulings at ¶¶ 36-48, 103-107, 145-155,

178, and 199.

NEMC never attempted at trial to prove its claim for

indemnification of fees and expenses. Indeed, NEMC never even

mentioned fees and expenses in the “damages” section of its pre-

trial statement, see document n o . 1 7 1 , at 23-25, its proposed

findings and rulings, see documents n o . 171-3 and 2 2 1 , or its

post-trial brief, see document n o . 210. Moreover, while NEMC’s

pleadings did request that this court award “costs and expenses

in this Action, including attorneys’ fees,” document n o . 1 0 2 , at

2 7 , NEMC never specifically notified Lifespan--in its pleadings

or other prejudgment filings--that it intended to seek fees and

expenses under the indemnification provision, as opposed to

seeking them on some other basis (such as Mass. Gen. L . ch. 93A,

§ 1 1 , which NEMC expressly invoked in its pleadings as a basis

for fees, see document n o . 1 0 2 , at 2 7 ) . So NEMC’s postjudgment

claim for indemnification of fees and expenses, in addition to

City Aviation Ctr., Inc., N o . 92-2211, 1994 WL 675323, at *3 (D. Kan. Nov. 1 7 , 1994) (citing Stuart M . Speiser, Attorneys’ Fees § 13.7, at 628 (1973)).

15 being an inefficient use of the judicial process, came as an

unfair surprise to Lifespan.6

“The award of attorneys’ fees in such a situation can . . .

be denied completely due to a failure on the part of the party

seeking them to carry its burden of proof at trial.” Pride

Hyundai, 355 F. Supp. 2d at 603. This court regards that result

as fair and appropriate under the particular circumstances of

this case. NEMC “had its opportunity under Rule 54 to prove its

attorney’s fees at trial” and thereby save judicial and party

resources--or, at the very least, to provide specific notice of

its claim for indemnification of fees and expenses and to seek

either Lifespan’s agreement7 or this court’s permission to

litigate the matter postjudgment--“and chose not to do so.”

Kraft Foods, 446 F. Supp. 2d at 578. As a result, NEMC “has lost

its opportunity to prove its entitlement to attorney’s fees, and

none will be awarded.” Id.

6 Again, Lifespan contests NEMC’s interpretation of the indemnification provision as covering fees and expenses. This court need not reach that argument, in light of its ruling that NEMC cannot recover fees and expenses under Rule 54(d)(2)anyway. 7 Cf., e.g., Crowe v . Bolduc, 365 F.3d 8 6 , 97 n.7 (1st Cir. 2004) (declining to consider whether a postjudgment motion for indemnification of attorneys’ fees was timely because “the timing of the motion was dictated by the terms of an agreement between the parties”).

16 IV. Expert fees

NEMC has also moved for an award of expert fees in the

amount of $366,131.50, see Fed. R. Civ. P. 54(d)(2), arguing that

the disaffiliation agreement entitles it to indemnification for

those expenses as well. This court rejects that argument for the

reasons just discussed in Part I I I , supra.8 It is worth noting,

moreover, that very little of NEMC’s expert testimony actually

contributed to its recovery under the indemnification provision.

See, e.g., margin order dated May 2 6 , 2011 (noting that this

court “has not assessed any liability to Lifespan” based on one

expert’s testimony). Indeed, much of that testimony was rejected

as unpersuasive. See, e.g., Findings & Rulings at ¶¶ 5 9 , 6 7 , 7 0 ,

78-79, 8 3 , 1 8 8 , 1 9 0 , nn.11, 1 6 , 1 8 . S o , even if an award of

expert fees were otherwise appropriate, this court cannot discern

(nor has NEMC provided) any meaningful and reliable way of

calculating the small fraction of the experts’ work that might be

worthy of compensation under the indemnification provision.

In the alternative, NEMC argues that it is at least entitled

to reimbursement of $31,150 in expenses that it incurred in

connection with depositions of its experts. See Fed. R. Civ. P.

26(b)(4)(E) (“Unless manifest injustice would result, the court

8 To the extent that NEMC is seeking those fees as taxable t costs, this court rejects its argument for the reasons discussed in its earlier ruling that “each party shall bear its own costs.” Document n o . 2 3 7 , at 2

17 must require that the party seeking discovery: (i) pay the

expert a reasonable fee for time spent in responding to discovery

under Rule 26(b)(4)(A),” which authorizes expert depositions).

But, setting aside whether NEMC would be entitled to such

expenses under Rule 26(b)(4)(E), or whether it would be just to

award them to NEMC but not to Lifespan, courts have discretion to

reject such a request if it “is not brought within a reasonable

time.” 6 James Wm. Moore et a l . , Moore’s Federal Practice §

26.80[3][c], at 26-487 (3d ed. 2010) (citing cases). NEMC’s

postjudgment request for discovery-related expenses incurred

about three years ago, see document n o . 226, at 27-30 (indicating

that NEMC’s experts were deposed in June 2008), is unreasonably

late and therefore denied.

Finally, NEMC argues that this court, pursuant to its

“inherent equitable authority” to prevent abuse of the judicial

process, should award $87,681 as reimbursement for the expert

fees that NEMC paid to antitrust expert Mark Botti, whose

testimony became unnecessary after Lifespan, midway through

trial, abandoned its argument that antitrust law precluded it

from negotiating payor contracts jointly on behalf of NEMC and

its physician groups. See Findings & Rulings at ¶ 87 (“Lifespan

likely could have forced NEMC’s physician groups to negotiate

jointly with the hospital”). NEMC argues that Lifespan knew or

should have known that fact witnesses would offer other

18 explanations for the lack of joint negotiations, obviating the

need for testimony by antitrust experts. But this court does not

find that Lifespan abused the judicial process or otherwise acted

improperly. Lifespan, too, invested resources in the antitrust

argument, but (commendably) abandoned it when trial testimony

pointed in a different direction. It is worth noting, moreover,

that even with the antitrust argument out of the way, NEMC failed

to prove that Lifespan was liable for failing to negotiate on

behalf of NEMC’s physician groups. See id. at ¶¶ 9 7 , 106.

V. Conclusion

For the reasons set forth above, the parties’ respective

motions to alter or amend the judgment9 are DENIED, except to the

extent that they seek prejudgment interest on their respective

damages, which is GRANTED to all parties. The clerk shall amend

the judgment to include awards of prejudgment interest, as set

forth in Part II.B, supra.

SO ORDERED.

/€ Joseph N . Laplante ited States District Judge

Dated: August 2 6 , 2011

9 Documents n o . 2 2 8 , 229, 2 3 2 , and 239.

19 Deming E . Sherman, Esq. Patricia A . Sullivan, Es Rachel K. Caldwell, Esq. Bruce A . Singal, Esq. David A . Wollin, Esq. Jeffrey T . Rotella, Esq. Michelle Peirce, Esq. Eric Carriker, Esq. Jonathan C . Green, Esq. Patrick J. Tarmey, Esq.