Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 1 of 49 UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO NEW MEXICO ONCOLOGY AND HEMATOLOGY CONSULTANTS, LTD., Case No. 12-526 MV/GBW Plaintiff, v. PRESBYTERIAN HEALTHCARE SERVICES, and PRESBYTERIAN NETWORK, INC., PRESBYTERIAN INSURANCE COMPANY, INC., and PRESBYTERIAN HEALTH PLAN, INC., Defendants. DEFENDANTS’ ANSWER TO THIRD AMENDED COMPLAINT For their answer to Plaintiff’s Third Amended Complaint, Defendants Presbyterian Healthcare Services and Presbyterian Network, Inc., Presbyterian Insurance Company, Inc., and Presbyterian Health Plan, Inc. (“Defendants”), by and through their attorneys, hereby respond as follows: RESPONSE TO INTRODUCTION 1. Answering the allegations of Paragraph 1 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services employs approximately 575 physicians, many of whom work on a part-time or as-needed basis, and admit that Presbyterian Healthcare Services has the largest number of inpatient discharges in New Mexico and the largest number of staffed hospital beds. Defendants deny the remaining allegations of Paragraph 1. 2. Defendants deny the allegations contained in Paragraph 2 of Plaintiff’s Third Amended Complaint. Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 2 of 49 3. Defendants deny the allegations contained in Paragraph 3 of Plaintiff’s Third Amended Complaint. 4. Defendants deny the allegations contained in Paragraph 4 of Plaintiff’s Third Amended Complaint. 5. Defendants deny the allegations contained in Paragraph 5 of Plaintiff’s Third Amended Complaint. 6. Defendants deny the allegations contained in Paragraph 6 of Plaintiff’s Third Amended Complaint. 7. Answering the allegations of Paragraphs 7-17 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s RICO claim in its Order dated August 22, 2014, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants deny that they have committed mail or wire fraud, deny that they have violated the RICO statute, and deny that they have violated the 340B Program. RESPONSE TO JURISDICTION AND VENUE 8. Answering the allegations of Paragraph 18 of Plaintiff’s Third Amended Complaint, Defendants admit that this Court has jurisdiction over this matter. Defendants deny the remaining allegations of Paragraph 18. 9. Answering the allegations of Paragraph 19 of Plaintiff’s Third Amended Complaint, Defendants admit that Plaintiff purports to bring claims under Sections 1 and 2 of the Sherman Act. Defendants deny the remaining allegations of Paragraph 19. 10. Answering the allegations of Paragraph 20 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s RICO claim in its Order dated August 22, 2014, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-19, and Defendants deny that they have violated the RICO statute. -2- Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 3 of 49 11. Answering the allegations of Paragraph 21 of Plaintiff’s Third Amended Complaint, Defendants admit that Plaintiff purports to bring state law claims for tortious interference with existing and prospective contractual relationships and common law unfair competition. Defendants further state that the Court dismissed Plaintiff’s state law claim for injurious falsehood in its Order dated August 22, 2014, and therefore no answer is necessary. To the extent any answer to that claim is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-20. Defendants deny the remaining allegations of Paragraph 21. 12. Answering the allegations of Paragraph 22 of Plaintiff’s Third Amended Complaint, Defendants admit that venue is proper in this District. Defendants deny the remaining allegations of Paragraph 22. RESPONSE TO PARTIES 13. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 23 of the Third Amended Complaint, and therefore deny them. 14. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 24 of the Third Amended Complaint, and therefore deny them. 15. Answering the allegations of Paragraph 25 of Plaintiff’s Third Amended Complaint, Defendants admit that medical oncology includes the diagnosis, management and treatment of cancer. 16. Answering the allegations of Paragraph 26 of Plaintiff’s Third Amended Complaint, Defendants admit that hematology services include the diagnosis, management and treatment of benign and malignant diseases of the blood and blood forming tissues, including, by way of example, the diagnosis and treatment of leukemia. To the extent the rest of Paragraph 26 relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 26, and therefore deny them. -3- Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 4 of 49 17. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 27 of Plaintiff’s Third Amended Complaint, and therefore deny them. 18. Answering the allegations of Paragraph 28 of Plaintiff’s Third Amended Complaint, Defendants admit that radiation oncology services include various methods to treat cancer. To the extent the rest of Paragraph 28 relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 28, and therefore deny them. 19. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 29 of Plaintiff’s Third Amended Complaint, and therefore deny them. 20. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 30 of Plaintiff’s Third Amended Complaint, and therefore deny them. 21. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 31 of Plaintiff’s Third Amended Complaint, and therefore deny them. 22. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 32 of Plaintiff’s Third Amended Complaint, and therefore deny them. 23. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 33 of Plaintiff’s Third Amended Complaint, and therefore deny them. 24. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 34 of Plaintiff’s Third Amended Complaint, and therefore deny them. 25. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 35 of Plaintiff’s Third Amended Complaint, and therefore deny them. 26. Answering the allegations contained in Paragraph 36 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services is a not-for-profit corporation. Defendants deny the remaining allegations of Paragraph 36. 27. Answering the allegations contained in Paragraph 37 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services manages eight acute care hospitals in New Mexico. Defendants further admit that Presbyterian Hospital and -4- Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 5 of 49 Presbyterian Kaseman Hospital are located in Albuquerque, New Mexico, and that Presbyterian Rust Medical Center is located in Rio Rancho, New Mexico. Defendants state further that the question of whether Presbyterian Hospital is the largest hospital in Albuquerque and New Mexico depends on the criteria used to measure size. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 37, and therefore deny them. 28. Answering the allegations contained in Paragraph 38 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services manages acute care hospitals that are located in Clovis, Espanola, Ruidoso, Socorro, and Tucumcari, New Mexico. 29. Answering the allegations contained in Paragraph 39 of Plaintiff’s Third Amended Complaint, Defendants state that Southwest Health Foundation holds 100 percent of the common stock of Defendant Presbyterian Network, Inc., which itself, in turn, holds 100 percent of the common stock of Presbyterian Insurance Company, Inc. and Presbyterian Health Plan, Inc. Defendants also admit that Presbyterian Insurance Company, Inc. and Presbyterian Health Plan, Inc. offer various health insurance products. Defendants deny that Defendant Presbyterian Network, Inc. offers insurance products. Defendants admit that Presbyterian Network, Inc., Presbyterian Insurance Company, Inc. and Presbyterian Health Plan, Inc. are forprofit entities. 30. Answering the allegations contained in Paragraph 40 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Network, Inc.’s principal place of business is 9521 San Mateo Blvd., N.E., Albuquerque, New Mexico, 87113-2237. Defendants also admit that Presbyterian Insurance Company, Inc.’s principal place of business is 2501 Buena Vista S.E., Albuquerque, New Mexico, 87106 and that Presbyterian Health Plan, Inc.’s principal place of business is 9521 San Mateo Blvd., N.E., Albuquerque, New Mexico, 871132237. -5- Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 6 of 49 31. Answering the allegations contained in Paragraph 41 of Plaintiff’s Third Amended Complaint, Defendants admit that Southwest Health Foundation creates a level of separation between PHS and PHP. Defendants deny the remaining allegations of Paragraph 41. 32. Answering the allegations contained in Paragraph 42 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services is a not-for-profit corporation and admit that PHP is a for-profit corporation. Defendants deny the remaining allegations of Paragraph 42. 33. Defendants deny the allegations contained in Paragraph 43 of Plaintiff’s Third Amended Complaint and state further that Plaintiff’s definition of “PHP” makes the allegations inaccurate because Presbyterian Network, Inc. is not a health insurance company. 34. Defendants deny the allegations contained in Paragraph 44 of Plaintiff’s Third Amended Complaint. 35. Defendants deny the allegations contained in Paragraph 45 of Plaintiff’s Third Amended Complaint and state further that Plaintiff’s definition of “PHP” makes the allegations inaccurate because Presbyterian Network, Inc. is not a health insurance company. 36. Answering the allegations contained in Paragraph 46 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Medical Group is a division of Presbyterian Healthcare Services, which employs approximately 575 physicians. Defendants also admit that the physicians employed by Presbyterian Healthcare Services include primary care physicians and a wide range of specialists, including medical oncologists. RESPONSE TO TRADE AND COMMERCE 37. Defendants deny the allegations contained in Paragraph 47 of Plaintiff’s Third Amended Complaint. 38. Defendants deny the allegations contained in Paragraph 48 of Plaintiff’s Third Amended Complaint. -6- Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 7 of 49 39. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 49 of Plaintiff’s Third Amended Complaint, and therefore deny them. 40. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 50 of Plaintiff’s Third Amended Complaint, and therefore deny them. 41. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 51 of Plaintiff’s Third Amended Complaint, and therefore deny them. 42. Answering the allegations of Paragraph 52 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services receives revenue from insurance carriers that are located both within the state of New Mexico and in states other than New Mexico, including United HealthCare and Cigna. Defendants deny the remaining allegations of Paragraph 52. 43. Answering the allegations of Paragraph 53 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services has purchased equipment, supplies, and medicine from suppliers and manufacturers that are located in states other than New Mexico. Defendants deny the remaining allegations of Paragraph 53. 44. Defendants deny the allegations contained in Paragraph 54 of Plaintiff’s Third Amended Complaint. RESPONSE TO ANTITRUST CLAIMS 45. Answering the allegations of Paragraph 55 of Plaintiff’s Third Amended Complaint, Defendants admit that hospitals providing inpatient care, health insurance companies, and physicians, among others, all provide or arrange for health care services. Defendants deny the remaining allegations of Paragraph 55. 46. To the extent Paragraph 56 of Plaintiff’s Third Amended Complaint relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 56, and therefore deny them. Defendants admit that Presbyterian Healthcare Services owns two hospitals that are licensed to provide inpatient -7- Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 8 of 49 hospital services in Albuquerque, New Mexico. Defendants deny all remaining allegations of Paragraph 56. 47. Answering the allegations of Paragraph 57 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-56. Defendants deny the remaining allegations of Paragraph 57. 48. To the extent Paragraph 58 of Plaintiff’s Third Amended Complaint relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 58, and therefore deny them. Defendants admit that the number of staffed beds in the hospitals owned by Presbyterian Healthcare Services in Albuquerque, New Mexico varies, but typically exceeds 400. Defendants deny all remaining allegations of Paragraph 58. 49. Answering the allegations of Paragraph 59 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-58. Defendants deny the remaining allegations of Paragraph 59. 50. Answering the allegations of Paragraph 60 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-59. Defendants deny the remaining allegations of Paragraph 60. -8- Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 9 of 49 51. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 61 of Plaintiff’s Third Amended Complaint, and therefore deny them. 52. Answering the allegations in Paragraph 62 of Plaintiff’s Third Amended Complaint, Defendants admit that the market for private health insurance often is separate from the market for publicly provided health insurance. Defendants deny the remaining allegations of the paragraph. 53. Defendants deny the allegations contained in Paragraph 63 of Plaintiff’s Third Amended Complaint. 54. Defendants deny the allegations contained in Paragraph 64 of Plaintiff’s Third Amended Complaint. 55. Defendants deny the allegations contained in Paragraph 65 of Plaintiff’s Third Amended Complaint. 56. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 66 of Plaintiff’s Third Amended Complaint, and therefore deny them. 57. To the extent Paragraph 67 of Plaintiff’s Third Amended Complaint relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 67, and therefore deny them. Defendants deny all remaining allegations of Paragraph 67. 58. Defendants deny the allegations contained in Paragraph 68 of Plaintiff’s Third Amended Complaint. 59. Defendants deny the allegations contained in Paragraph 69 of Plaintiff’s Third Amended Complaint. 60. Answering the allegations of Paragraph 70 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services provides oncology services. To the extent Paragraph 70 of Plaintiff’s Third Amended Complaint relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 70, and therefore deny them. -9- Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 10 of 49 61. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 71 of Plaintiff’s Third Amended Complaint, and therefore deny them. 62. Answering the allegations of Paragraph 72 of Plaintiff’s Third Amended Complaint, Defendants state that Presbyterian Healthcare Services currently employs 10 medical oncologists, including two in Clovis. 63. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 73 of Plaintiff’s Third Amended Complaint, and therefore deny them. 64. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 74 of Plaintiff’s Third Amended Complaint, and therefore deny them. 65. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 75 of Plaintiff’s Third Amended Complaint, and therefore deny them. 66. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 76 of Plaintiff’s Third Amended Complaint, and therefore deny them. 67. Defendants deny the allegations contained in Paragraph 77 of Plaintiff’s Third Amended Complaint. 68. Answering the allegations of Paragraph 78 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services provides radiation oncology services. To the extent Paragraph 78 of Plaintiff’s Third Amended Complaint relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 78, and therefore deny them. 69. Answering the allegations contained in Paragraph 79 of Plaintiff’s Third Amended Complaint, Defendants admit that MD Anderson employs two radiation oncologists who work at Presbyterian Healthcare Services. 70. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 80 of Plaintiff’s Third Amended Complaint, and therefore deny them. 71. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 81 of Plaintiff’s Third Amended Complaint, and therefore deny them. - 10 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 11 of 49 72. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 82 of Plaintiff’s Third Amended Complaint, and therefore deny them. 73. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 83 of Plaintiff’s Third Amended Complaint, and therefore deny them. 74. Answering the allegations of Paragraph 84 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-83. Defendants deny the remaining allegations of Paragraph 84. 75. Defendants deny the allegations contained in Paragraph 85 of Plaintiff’s Third Amended Complaint. 76. Defendants deny the allegations contained in Paragraph 86 of Plaintiff’s Third Amended Complaint. 77. Answering the allegations of Paragraph 87 of Plaintiff’s Third Amended Complaint, Defendants admit that oncology services generally include, among other services, medical oncology services and radiation oncology services. Defendants deny that Comprehensive Oncology Services constitutes a relevant antitrust market. Defendants deny the remaining allegations of Paragraph 87. 78. Answering the allegations of Paragraph 88 of Plaintiff’s Third Amended Complaint, Defendants admit that cardiology services and oncology services generally are not interchangeable. 79. Defendants deny the allegations contained in Paragraph 89 of Plaintiff’s Third Amended Complaint. 80. Defendants deny the allegations contained in Paragraph 90 of Plaintiff’s Third Amended Complaint. - 11 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 12 of 49 81. Defendants deny the allegations contained in Paragraph 91 of Plaintiff’s Third Amended Complaint. 82. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 92 of Plaintiff’s Third Amended Complaint, and therefore deny them. 83. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 93 of Plaintiff’s Third Amended Complaint, and therefore deny them. 84. Defendants deny the allegations contained in Paragraph 94 of Plaintiff’s Third Amended Complaint. 85. Answering the allegations of Paragraphs 95-97 of Plaintiff’s Third Amended Complaint, Defendants admit that Medicare is limited generally to persons who are 65 years of age and older. Defendants further admit that Medicaid is available only to individuals who meet certain financial or physical criteria. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraphs 95-97, and therefore deny them. 86. Defendants deny the allegations contained in Paragraph 98 of Plaintiff’s Third Amended Complaint. 87. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 99 of Plaintiff’s Third Amended Complaint, and therefore deny them. 88. Defendants deny the allegations contained in Paragraph 100 of Plaintiff’s Third Amended Complaint. 89. Answering the allegations of Paragraphs 101-103 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-100. Defendants admit that hospitals often provide inpatient services to treat a variety of illnesses and medical conditions. Defendants also admit that certain medical conditions require specialized equipment and access to medical services that are typically offered in a hospital. Defendants further admit that open - 12 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 13 of 49 heart surgery requires specialized operating rooms, highly trained support teams, and access to other medical services in case of complications. Defendants deny the remaining allegations of Paragraphs 101-103 of the Third Amended Complaint. 90. Defendants deny the allegations contained in Paragraph 104 of Plaintiff’s Third Amended Complaint. 91. Answering the allegations contained in Paragraph 105 of Plaintiff’s Third Amended Complaint, Defendants admit that New Mexico’s population is largely concentrated in urban areas throughout the state. Defendants deny the remaining allegations of Paragraph 105. 92. Defendants admit the allegations contained in Paragraph 106 of Plaintiff’s Third Amended Complaint. 93. Answering the allegations of Paragraphs 107-115 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-106. Defendants admit that Presbyterian Hospital is located in Albuquerque and that Presbyterian Hospital provides an advanced and comprehensive set of health care services in New Mexico. Defendants also admit the geographic distances alleged in Paragraphs 108-12: the city of Gallup is approximately 140 miles away from Albuquerque; the city of Tucumcari is approximately 170 miles away from Albuquerque; and, the city of Santa Fe is approximately 60 miles away from Albuquerque. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraphs 107-115 of Plaintiff’s Third Amended Complaint, and therefore deny them. 94. Answering the allegations of Paragraph 116 of Plaintiff’s Third Amended Complaint, Defendants admit that cancer can be a chronic condition and that cancer patients often are very sick and may require numerous appointments with a treating physician. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 116, and therefore deny them. - 13 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 14 of 49 95. Answering the allegations of Paragraph 117 of Plaintiff’s Third Amended Complaint, Defendants admit that patients suffering from cancer will sometimes experience emergencies that will lead to their hospitalization. Defendants further admit that Presbyterian Hospital’s medical oncologists who reside in Albuquerque do not have admitting privileges in any hospital located in Santa Fe. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 117, and therefore deny them. 96. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraphs 118-120 of Plaintiff’s Third Amended Complaint, and therefore deny them. 97. Defendants deny the allegations contained in Paragraph 121 of Plaintiff’s Third Amended Complaint. 98. Answering the allegations contained in Paragraphs 122-124 of Plaintiff’s Third Amended Complaint, Defendants admit that a private health insurance company looking to sell its insurance products to individuals residing in Albuquerque would likely consider offering such individuals a product that, among other things, affords access to hospitals and physicians located in Albuquerque. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraphs 122-124, and therefore deny them. 99. Defendants deny the allegations contained in Paragraph 125 of Plaintiff’s Third Amended Complaint. 100. Answering the allegations contained in Paragraph 126 of Plaintiff’s Third Amended Complaint, Defendants admit that hospitals, free standing medical centers, physicians, and health insurers each participate in providing or arranging for healthcare services. Defendants deny the remaining allegations of Paragraph 126. 101. Answering the allegations of Paragraph 127 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by - 14 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 15 of 49 reference, as if fully set forth here, their answers to Paragraphs 1-126. Defendants deny the remaining allegations of Paragraph 127. 102. Defendants deny the allegations contained in Paragraphs 128-130 of Plaintiff’s Third Amended Complaint. 103. Answering the allegations contained in Paragraph 131 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services employs primary care physicians and specialists. Defendants deny the remaining allegations of Paragraph 131. 104. Answering the allegations contained in paragraph 132 of Plaintiff’s Third Amended Complaint, Defendants deny that no independent licensed acute care hospital has opened in Albuquerque within the past 30 years. Defendants admit the remaining allegations contained of Paragraph 132. 105. Defendants deny the allegations contained in Paragraph 133 of Plaintiff’s Third Amended Complaint. 106. Answering the allegations contained in Paragraph 134 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Network, Inc. acquired FHP of New Mexico in or around 1997. Defendants deny the remaining allegations of Paragraph 134. 107. Answering the allegations contained in Paragraph 135 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services employs approximately 575 physicians. Defendants deny the remaining allegations of Paragraph 135. 108. Defendants deny the allegations contained in Paragraph 136 of Plaintiff’s Third Amended Complaint. 109. Answering the allegations contained in Paragraph 137 of Plaintiff’s Third Amended Complaint, Defendants admit that the Heart Hospital entered the market and deny that the Heart Hospital’s entry was “temporary.” Defendants deny the remaining allegations of Paragraph 137. 110. Defendants deny the allegations contained in Paragraph 138 of Plaintiff’s Third Amended Complaint. - 15 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 16 of 49 111. To the extent the allegations contained in Paragraph 139 of Plaintiff’s Third Amended Complaint relate to persons or entities other than Defendants, including any private health insurers, Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 139, and therefore deny them. Defendants deny the remaining allegations of Paragraph 139. 112. Answering the allegations contained in Paragraph 140 of Plaintiff’s Third Amended Complaint, Defendants admit that UNM Hospital is the only Level I trauma center in New Mexico. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 140, and therefore deny them. 113. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 141 of Plaintiff’s Third Amended Complaint, and therefore deny them. 114. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 142 of Plaintiff’s Third Amended Complaint, and therefore deny them. 115. Defendants deny the allegations contained in Paragraph 143 of Plaintiff’s Third Amended Complaint. 116. Defendants deny the allegations contained in Paragraph 144 of Plaintiff’s Third Amended Complaint. 117. Defendants deny the allegations contained in Paragraph 145 of Plaintiff’s Third Amended Complaint. 118. Answering the allegations of Paragraph 146 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-145. Defendants deny the remaining allegations of Paragraph 146. - 16 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 17 of 49 119. Answering the allegations contained in Paragraph 147 of Plaintiff’s Third Amended Complaint, Defendants deny that any Defendant maintains a dominant and secure market position. Defendants deny the remaining allegations of Paragraph 147. 120. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 148 of Plaintiff’s Third Amended Complaint, and therefore deny them. 121. Defendants deny the allegations contained in Paragraph 149 of Plaintiff’s Third Amended Complaint. 122. Defendants generally admit the allegations contained in Paragraph 150 of Plaintiff’s Third Amended Complaint. 123. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 151 of Plaintiff’s Third Amended Complaint, and therefore deny them. 124. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 152 of Plaintiff’s Third Amended Complaint, and therefore deny them. 125. Answering the allegations contained in Paragraph 153 of Plaintiff’s Third Amended Complaint, Defendants state that it is not accurate to characterize a “modern health insurance company” as one which “purchases and re-sells medical services.” Defendants otherwise generally admit the allegations contained in Paragraph 153 of Plaintiff’s Third Amended Complaint but state that these allegations are not universally true in all circumstances. 126. Defendants generally admit the allegations contained in Paragraph 154 of Plaintiff’s Third Amended Complaint but state that these allegations are not universally true in all circumstances. 127. Answering the allegations of Paragraph 155 of Plaintiff’s Third Amended Complaint, Defendants admit that traditional indemnity insurance used to be the norm. Defendants deny the remaining allegations of Paragraph 155. - 17 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 18 of 49 128. Defendants deny the allegations contained in Paragraph 156 of Plaintiff’s Third Amended Complaint and state further that the nature of traditional indemnity arrangements has changed over the decades. 129. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 157 of Plaintiff’s Third Amended Complaint, and therefore deny them. 130. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 158 of Plaintiff’s Third Amended Complaint, and therefore deny them. 131. Answering the allegations of Paragraph 159 of Plaintiff’s Third Amended Complaint, Defendants admit that HMOs are designed to lower medical costs, and that HMOs generally sign contracts with hospitals and physicians. Defendants deny the remaining allegations of Paragraph 159 and state further that the allegations over-simplify a complicated subject. 132. Defendants deny the allegations of Paragraph 160 of Plaintiff’s Third Amended Complaint and state further that the allegations over-simplify a complicated subject. 133. Defendants admit the allegations contained in Paragraph 161 of Plaintiff’s Third Amended Complaint. 134. Defendants deny the allegations contained in Paragraph 162 of Plaintiff’s Third Amended Complaint. 135. Answering the allegations contained in Paragraph 163 of Plaintiff’s Third Amended Complaint, Defendants admit that under HMO and PPO models, health insurers may offer access to certain medical providers for a fee. Defendants deny the remaining allegations of Paragraph 163 and state further that the allegations over-simplify a complicated subject. 136. Defendants deny the allegations contained in Paragraph 164 of Plaintiff’s Third Amended Complaint and state further that the allegations over-simplify a complicated subject. - 18 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 19 of 49 137. Answering the allegations contained in Paragraph 165 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian and St. Joseph Hospital developed an HMO. Defendants deny the remaining allegations of Paragraph 165. 138. Answering the allegations contained in Paragraph 166 of Plaintiff’s Third Amended Complaint, Defendants admit that in a competitive market, hospitals must compete against one another. To the extent that the allegations in Paragraph 166 purport to define a relevant antitrust market, Defendants deny them. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 166, and therefore deny them. 139. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 167 of Plaintiff’s Third Amended Complaint, and therefore deny them. 140. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 168 of Plaintiff’s Third Amended Complaint, and therefore deny them. 141. Defendants deny the allegations contained in Paragraph 169 of Plaintiff’s Third Amended Complaint and state further that the allegations contain an incomplete hypothetical, and the use of the word “similar” makes the allegations vague. 142. To the extent that the allegations contained in Paragraph 170 of Plaintiff’s Third Amended Complaint purport to define a relevant antitrust market, Defendants deny them. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 170, and therefore deny them. 143. To the extent that the allegations contained in Paragraph 171 of Plaintiff’s Third Amended Complaint purport to define a relevant antitrust market, Defendants deny them. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 171, and therefore deny them. - 19 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 20 of 49 144. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 172 of Plaintiff’s Third Amended Complaint, and therefore deny them. 145. Defendants deny the allegations contained in Paragraph 173 of Plaintiff’s Third Amended Complaint and state further that the allegations contain an incomplete hypothetical. 146. To the extent that the allegations contained in Paragraph 174 of Plaintiff’s Third Amended Complaint purport to define a relevant antitrust market, Defendants deny them. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 174, and therefore deny them. 147. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 175 of Plaintiff’s Third Amended Complaint, and therefore deny them. 148. Defendants deny the allegations contained in Paragraph 176 of Plaintiff’s Third Amended Complaint. 149. Answering the allegations contained in Paragraph 177 of Plaintiff’s Third Amended Complaint, Defendants admit that Larry Stroup has been quoted as stated in Paragraph 176. Defendants deny the remaining allegations of Paragraph 177. 150. Answering the allegations contained in Paragraphs 178-179 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services joined with St. Joseph in the 1970s to start one of the first HMOs in the state: MasterCare. Defendants deny the remaining allegations of Paragraphs 178-179. 151. Answering the allegations contained in Paragraph 180 of Plaintiff’s Third Amended Complaint, Defendants admit that the MasterCare plan was in operation for approximately ten years. Defendants deny the remaining allegations of Paragraph 180. 152. Answering the allegations contained in Paragraph 181 of Plaintiff’s Third Amended Complaint, Defendants admit that in or around 1985, St. Joseph and Presbyterian - 20 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 21 of 49 Healthcare Services launched HealthPlus of New Mexico, Inc. Defendants deny the remaining allegations of Paragraph 181. 153. Answering the allegations contained in Paragraph 182 of Plaintiff’s Third Amended Complaint, Defendants admit that in or around 1985, St. Joseph and Presbyterian Healthcare Services launched HealthPlus of New Mexico, Inc. Defendants further admit that the first member enrolled in HealthPlus in March 1986. Defendants deny the remaining allegations of Paragraph 182. 154. Answering the allegations contained in Paragraph 183 of Plaintiff’s Third Amended Complaint, Defendants admit that Jim Hinton became the CEO of Presbyterian Healthcare Services in 1995. Defendants deny the remaining allegations of Paragraph 183. 155. Answering the allegations contained in Paragraph 184 of Plaintiff’s Third Amended Complaint, Defendants admit that the CFO of Presbyterian Healthcare Services, Dale Maxwell, has been quoted as stated in Paragraph 184. Defendants deny the remaining allegations of Paragraph 184. 156. Answering the allegations contained in Paragraph 185 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Network, Inc. acquired the sole interest in HealthPlus in the 1990s. Defendants also admit that HealthPlus’ name was changed to Presbyterian Health Plan, Inc. in or around 1998. Defendants deny the remaining allegations of Paragraph 185. 157. Answering the allegations contained in Paragraph 186 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Network, Inc. expanded its Medicare managed care program with the acquisition of FHP of New Mexico in or around 1997. Defendants also admit that FHP of New Mexico was previously owned by PacifiCare. Defendants deny the remaining allegations of Paragraph 186. 158. Defendants deny the allegations contained in Paragraph 187 of Plaintiff’s Third Amended Complaint. - 21 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 22 of 49 159. Defendants deny the allegations contained in Paragraph 188 of Plaintiff’s Third Amended Complaint. 160. Answering the allegations of Paragraph 189 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-188. Defendants deny the remaining allegations of Paragraph 189. 161. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 190 of Plaintiff’s Third Amended Complaint, and therefore deny them. 162. Answering the allegations contained in Paragraph 191 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services employs physicians. Defendants deny the remaining allegations of Paragraph 191. 163. Answering the allegations contained in Paragraph 192 of Plaintiff’s Third Amended Complaint, Defendants admit that the CFO of Presbyterian Healthcare Services, Dale Maxwell, has been quoted as stated in Paragraph 192. Defendants deny the remaining allegations of Paragraph 192. 164. Defendants deny the allegations contained in Paragraph 193 of Plaintiff’s Third Amended Complaint. 165. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 194 of Plaintiff’s Third Amended Complaint, and therefore deny them. 166. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 195 of Plaintiff’s Third Amended Complaint, and therefore deny them. - 22 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 23 of 49 167. Defendants deny the allegations contained in Paragraph 196 of Plaintiff’s Third Amended Complaint. 168. Answering the allegations contained in Paragraph 197 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian did not employ a significant number of physicians prior to 1995. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations contained in Paragraph 197 of Plaintiff’s Third Amended Complaint, and therefore deny them. 169. Answering the allegations contained in Paragraph 198 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services acquired FHP of New Mexico in or around 1997. Defendants deny the remaining allegations of Paragraph 198. 170. Defendants deny the allegations contained in Paragraph 199 of Plaintiff’s Third Amended Complaint. 171. Answering the allegations contained in Paragraph 200 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services created the Presbyterian Medical Group. Defendants deny the remaining allegations of Paragraph 200. 172. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 201 of Plaintiff’s Third Amended Complaint, and therefore deny them. 173. Answering the allegations contained in Paragraph 202 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Medical Group is a division of Presbyterian Healthcare Services, which employs approximately 575 physicians, and that the number of physicians employed by Presbyterian Healthcare Services increased significantly between 2000 and 2005. Defendants deny the remaining allegations of Paragraph 202. 174. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 203 of Plaintiff’s Third Amended Complaint, and therefore deny them. - 23 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 24 of 49 175. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 204 of Plaintiff’s Third Amended Complaint, and therefore deny them. 176. Defendants deny the allegations contained in Paragraph 205 of Plaintiff’s Third Amended Complaint. 177. Defendants deny the allegations contained in Paragraph 206 of Plaintiff’s Third Amended Complaint. 178. Defendants deny the allegations contained in Paragraph 207 of Plaintiff’s Third Amended Complaint. 179. Answering the allegations contained in Paragraph 208 of Plaintiff’s Third Amended Complaint, Defendants admit that the Heart Hospital entered the market. Defendants deny the remaining allegations of Paragraph 208. 180. Answering the allegations contained in Paragraph 209 of Plaintiff’s Third Amended Complaint, Defendants admit that in or around the mid-1990s, Presbyterian Healthcare Services had the largest cardiac care center in Albuquerque. 181. Answering the allegations contained in Paragraph 210 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services employed primary care physicians in the 1990s. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations contained in Paragraph 210 of Plaintiff’s Third Amended Complaint, and therefore deny them. 182. Answering the allegations contained in Paragraph 211 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian and St. Joseph were invited to participate in a proposal to build a heart hospital in Albuquerque, and admit that St. Joseph agreed to participate and that Presbyterian did not. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations contained in Paragraph 211 of Plaintiff’s Third Amended Complaint, and therefore deny them. - 24 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 25 of 49 183. Defendants deny the allegations contained in Paragraph 212 of Plaintiff’s Third Amended Complaint. 184. Defendants deny the allegations contained in Paragraph 213 of Plaintiff’s Third Amended Complaint. 185. Defendants deny the allegations contained in Paragraph 214 of Plaintiff’s Third Amended Complaint. 186. Answering the allegations contained in Paragraph 215 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services employs cardiologists and cardiac surgeons. Defendants deny the remaining allegations of Paragraph 215. 187. Defendants deny the allegations contained in Paragraph 216 of Plaintiff’s Third Amended Complaint. 188. Answering the allegations contained in Paragraph 217 of Plaintiff’s Third Amended Complaint, Defendants deny that Presbyterian took any efforts to block a loan allegedly sought by the Heart Hospital. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations contained in Paragraph 217 of Plaintiff’s Third Amended Complaint, and therefore deny them. 189. Defendants deny the allegations contained in Paragraph 218 of Plaintiff’s Third Amended Complaint. 190. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 219 of Plaintiff’s Third Amended Complaint, and therefore deny them. 191. Defendants deny the allegations contained in Paragraph 220 of Plaintiff’s Third Amended Complaint. 192. On information and belief, Defendants admit the allegations contained in Paragraph 221 of Plaintiff’s Third Amended Complaint. - 25 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 26 of 49 193. Answering the allegations contained in Paragraph 222 of Plaintiff’s Third Amended Complaint, Defendants admit that NMOHC physicians were, and remain, on staff at Presbyterian Healthcare Services to provide oncology services. 194. Defendants generally admit the allegations contained in Paragraph 223 of Plaintiff’s Third Amended Complaint but state that other oncologists also provided services to PHP enrollees as well. 195. Defendants generally admit the allegations contained in Paragraph 224 of Plaintiff’s Third Amended Complaint but deny the allegations related to the proposed relevant market. 196. To the extent that the allegations contained in Paragraph 225 of Plaintiff’s Third Amended Complaint purport to define a relevant antitrust market, Defendants deny them. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 225, and therefore deny them. 197. Answering the allegations contained in Paragraph 226 of Plaintiff’s Third Amended Complaint, Defendants admit that PHP experienced financial stress and lost tens of millions of dollars during 1998 and 1999. Defendants deny the remaining allegations of Paragraph 226. 198. Defendants deny the allegations contained in Paragraph 227 of Plaintiff’s Third Amended Complaint. 199. Defendants admit the allegations contained in Paragraph 228 of Plaintiff’s Third Amended Complaint. 200. Defendants admit the allegations contained in Paragraph 229 of Plaintiff’s Third Amended Complaint. 201. Defendants deny the allegations contained in Paragraph 230 of Plaintiff’s Third Amended Complaint. 202. Defendants deny the allegations contained in Paragraph 231 of Plaintiff’s Third Amended Complaint. - 26 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 27 of 49 203. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 232 of Plaintiff’s Third Amended Complaint, and therefore deny them. 204. Answering the allegations contained in Paragraph 233 of Plaintiff’s Third Amended Complaint, Defendants admit that NMOHC and Presbyterian discussed developing an arrangement to jointly develop a cancer center in or around 2002. Defendants deny the remaining allegations of Paragraph 233. 205. Answering the allegations contained in Paragraph 234 of Plaintiff’s Third Amended Complaint, Defendants admit that a joint venture with NMOHC was not pursued. Defendants deny the remaining allegations of Paragraph 234. 206. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 235 of Plaintiff’s Third Amended Complaint, and therefore deny them. 207. Answering the allegations contained in Paragraph 236 of Plaintiff’s Third Amended Complaint, Defendants admit that NMOHC built a facility that it refers to as a cancer center and that Defendants were not involved in the creation of the cancer center. 208. Defendants deny the allegations contained in Paragraph 237 of Plaintiff’s Third Amended Complaint. 209. Defendants deny the allegations contained in Paragraph 238 of Plaintiff’s Third Amended Complaint. 210. Defendants deny the allegations contained in Paragraph 239 of Plaintiff’s Third Amended Complaint. 211. Answering the allegations contained in Paragraph 240 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services expanded Presbyterian Hospital in downtown Albuquerque in or around 2005. Defendants deny the remaining allegations of Paragraph 240. - 27 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 28 of 49 212. Defendants deny the allegations contained in Paragraph 241 of Plaintiff’s Third Amended Complaint. 213. To the extent Paragraph 242 of Plaintiff’s Third Amended Complaint relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 242, and therefore deny them. Defendants deny the remaining allegations of Paragraph 242. 214. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in paragraph 243 of Plaintiff’s Third Amended Complaint, and therefore deny them. 215. Answering the allegations contained in Paragraph 244 of Plaintiff’s Third Amended Complaint, Defendants admit that cancer patients often have chronic health problems. Defendants deny the remaining allegations contained in Paragraph 244. 216. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 245 of Plaintiff’s Third Amended Complaint, and therefore deny them. 217. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 246 of Plaintiff’s Third Amended Complaint, and therefore deny them. 218. Answering the allegations contained in Paragraph 247 of Plaintiff’s Third Amended Complaint, Defendants admit that the elimination of unnecessary hospitalizations can be a safe practice. Defendants deny the remaining allegations of Paragraph 247. 219. To the extent Paragraph 248 of Plaintiff’s Third Amended Complaint relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny those allegations, and therefore deny them. Defendants deny that the CEO of Presbyterian Healthcare Services threatened NMOHC in any way. Defendants deny the remaining allegations of Paragraph 248. - 28 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 29 of 49 220. To the extent Paragraph 249 of Plaintiff’s Third Amended Complaint relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny those allegations, and therefore deny them. Defendants deny the remaining allegations of Paragraph 249. 221. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 250 of Plaintiff’s Third Amended Complaint, and therefore deny them. 222. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 251 of Plaintiff’s Third Amended Complaint, and therefore deny them. 223. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 252 of Plaintiff’s Third Amended Complaint, and therefore deny them. 224. To the extent Paragraph 253 of Plaintiff’s Third Amended Complaint relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny those allegations, and therefore deny them. Defendants deny the remaining allegations of Paragraph 253. 225. Defendants deny the allegations contained in Paragraph 254 of Plaintiff’s Third Amended Complaint. 226. Defendants deny the allegations contained in Paragraph 255 of Plaintiff’s Third Amended Complaint. 227. Answering the allegations contained in Paragraph 256 of Plaintiff’s Third Amended Complaint, Defendants admit that physicians employed by Presbyterian Healthcare Services have been encouraged to refer patients to other physicians employed by Presbyterian Healthcare Services. Defendants deny the remaining allegations of Paragraph 256. 228. Defendants deny the allegations contained in Paragraph 257 of Plaintiff’s Third Amended Complaint. - 29 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 30 of 49 229. Defendants deny the allegations contained in Paragraph 258 of Plaintiff’s Third Amended Complaint. 230. Defendants deny the allegations contained in Paragraph 259 of Plaintiff’s Third Amended Complaint. 231. Defendants deny the allegations contained in Paragraph 260 of Plaintiff’s Third Amended Complaint. 232. Defendants deny the allegations contained in Paragraph 261 of Plaintiff’s Third Amended Complaint. 233. Defendants deny the allegations contained in Paragraph 262 of Plaintiff’s Third Amended Complaint. 234. Defendants deny the allegations contained in Paragraph 263 of Plaintiff’s Third Amended Complaint. 235. Defendants deny the allegations contained in Paragraph 264 of Plaintiff’s Third Amended Complaint. 236. Defendants deny the allegations contained in Paragraph 265 of Plaintiff’s Third Amended Complaint. 237. Defendants deny the allegations contained in Paragraph 266 of Plaintiff’s Third Amended Complaint. 238. Defendants deny the allegations contained in Paragraph 267 of Plaintiff’s Third Amended Complaint. 239. Answering the allegations contained in Paragraph 268 of Plaintiff’s Third Amended Complaint, Defendants admit that PHP has not refused to contract with NMOHC. Defendants deny the remaining allegations contained in Paragraph 268. 240. Answering the allegations contained in Paragraph 269 of Plaintiff’s Third Amended Complaint, Defendants admit that PHP and NMOHC entered into a provider contract in 2003. Defendants deny the remaining allegations of Paragraph 269. - 30 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 31 of 49 241. Defendants deny the allegations contained in Paragraph 270 of Plaintiff’s Third Amended Complaint. 242. Defendants deny the allegations contained in Paragraph 271 of Plaintiff’s Third Amended Complaint. 243. Answering the allegations contained in Paragraph 272 of Plaintiff’s Third Amended Complaint, Defendants state that Jim Hinton sits on the boards of PHS, Presbyterian Insurance Co., Inc., and Presbyterian Health Plan, Inc. Defendants deny the remaining allegations contained in Paragraph 272 of Plaintiff’s Third Amended Complaint. 244. Defendants lack sufficient knowledge or information to admit or deny the allegations contained in Paragraph 273 of Plaintiff’s Third Amended Complaint, and therefore deny them. 245. Answering the allegations contained in Paragraph 274 of Plaintiff’s Third Amended Complaint, Defendants admit that PHP did not contract with Navitas. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations contained in Paragraph 274 of Plaintiff’s Third Amended Complaint, and therefore deny them. 246. Defendants deny the allegations contained in of Paragraph 275 of Plaintiff’s Third Amended Complaint. 247. Defendants deny the allegations contained in Paragraph 276 of Plaintiff’s Third Amended Complaint. 248. Defendants deny the allegations contained in Paragraph 277 of Plaintiff’s Third Amended Complaint. 249. Defendants deny the allegations contained in Paragraph 278 of Plaintiff’s Third Amended Complaint. 250. Answering the allegations of Paragraph 279 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by - 31 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 32 of 49 reference, as if fully set forth here, their answers to Paragraphs 1-278. Defendants deny the remaining allegations of Paragraph 279. 251. To the extent Paragraph 280 of Plaintiff’s Third Amended Complaint relates to persons or entities other than Defendants, Defendants lack sufficient knowledge or information to admit or deny those allegations, and therefore deny them. Defendants deny the remaining allegations contained in Paragraph 280. 252. Defendants deny the allegations contained in Paragraph 281 of Plaintiff’s Third Amended Complaint. 253. Defendants deny the allegations contained in Paragraph 282 of Plaintiff’s Third Amended Complaint and specifically deny that Presbyterian is engaged in anticompetitive actions. 254. Defendants deny the allegations contained in Paragraph 283 of Plaintiff’s Third Amended Complaint. 255. Defendants generally admit the allegations contained in Paragraph 284 of Plaintiff’s Third Amended Complaint except that Defendants lack sufficient knowledge or information as to the percentage of Medicare patients who choose to enroll in a type of managed care plan, and on that basis deny those allegations. 256. Defendants deny the allegations contained in Paragraph 285 of Plaintiff’s Third Amended Complaint. 257. Answering the allegations contained in Paragraph 286 of Plaintiff’s Third Amended Complaint, Defendants admit that chemotherapy includes treatment with drugs that are administered orally, non-intravenously, and intravenously. Defendants also admit that these drugs include both the chemotherapy drugs and various other support drugs. Defendants further admit that NMOHC provides chemotherapy services to its patients at its cancer center. Defendants deny the remaining allegations of Paragraph 286. 258. Defendants admit the allegations contained in Paragraph 287 of Plaintiff’s Third Amended Complaint. - 32 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 33 of 49 259. Answering the allegations contained in Paragraph 288 of Plaintiff’s Third Amended Complaint, Defendants admit that certain drugs can lose their efficacy if not handled properly. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 288 of Plaintiff’s Third Amended Complaint, and therefore deny them. 260. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 289 of Plaintiff’s Third Amended Complaint, and therefore deny them. 261. Answering the allegations contained in Paragraph 290 of Plaintiff’s Third Amended Complaint, Defendants admit that in April 2012, in order to reduce the overall cost of prescription drugs for its members, PHP changed the process by which PHP makes certain drugs available to PHP’s Medicare Advantage members. Under the new policy, PHP covers members enrolled in the Medicare Advantage program for certain drugs only when those drugs are obtained through a designated PHP specialty pharmacy network provider. Defendants further state that Defendants offered to ship these drugs to NMOHC, on an as needed basis, for each NMOHC patient who purchased the covered chemotherapy and support drugs from a designated PHP specialty pharmacy network provider. Defendants deny the remaining allegations of Paragraph 290. 262. Defendants deny the allegations contained in Paragraph 291 of Plaintiff’s Third Amended Complaint. 263. Defendants deny the allegations contained in Paragraph 292 of Plaintiff’s Third Amended Complaint. 264. Defendants deny the allegations contained in Paragraph 293 of Plaintiff’s Third Amended Complaint. 265. Defendants deny the allegations contained in Paragraph 294 of Plaintiff’s Third Amended Complaint. 266. Defendants deny the allegations contained in Paragraph 295 of Plaintiff’s Third Amended Complaint. - 33 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 34 of 49 267. Defendants deny the allegations contained in Paragraph 296 of Plaintiff’s Third Amended Complaint. 268. To the extent that the allegations contained in Paragraph 297 of Plaintiff’s Third Amended Complaint purport to define a relevant antitrust market, Defendants deny them. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 297 of Plaintiff’s Third Amended Complaint, and therefore deny them. 269. Defendants deny the allegations contained in Paragraph 298 of Plaintiff’s Third Amended Complaint. 270. Defendants deny the allegations contained in Paragraph 299 of Plaintiff’s Third Amended Complaint. 271. Defendants deny the allegations contained in Paragraph 300 of Plaintiff’s Third Amended Complaint. 272. Defendants deny the allegations contained in Paragraph 301 of Plaintiff’s Third Amended Complaint. RESPONSE TO THE MANDATE 273. Answering the allegations of Paragraph 302 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-301. 274. Answering the allegations of Paragraphs 303-470 of Plaintiff’s Third Amended Complaint, Defendants state that these allegations pertain to Plaintiff’s RICO claim, which the Court dismissed in its Order dated August 22, 2014, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants deny that they have committed mail or wire fraud, deny that they have violated the RICO statute, and deny that they have violated the 340B Program. 275. Answering the allegations of Paragraph 303 of Plaintiff’s Third Amended Complaint, Defendants state that Presbyterian Hospital and its associated outpatient departments and clinics comprise a covered entity for purposes of the 340B Program. For purposes of the - 34 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 35 of 49 340B Program, Presbyterian Kaseman Hospital and Rust Medical Center are registered as remote locations of Presbyterian Hospital. Defendants also admit that Espanola Hospital, Plains Regional Medical Center, Dan. C. Trigg Memorial Hospital, and Lincoln County Medical Center are each, together with their respective outpatient departments and clinics, covered entities for purposes of the 340B Program. Through the 340B Program, these entities are able to purchase outpatient pharmaceuticals at a discount. Defendants deny the remaining allegations of Paragraph 303. 276. Answering the allegations of Paragraph 304 of Plaintiff’s Third Amended Complaint, Defendants admit that covered entities may sell 340B Drugs to individuals who satisfy certain eligibility requirements. Defendants deny the remaining allegations of Paragraph 304. 277. Answering the allegations of Paragraph 305 of Plaintiff’s Third Amended Complaint, Defendants admit that the 340B Program covers the following outpatient drugs: (i) FDA-approved prescription drugs; (ii) Over-the-counter (OTC) drugs written on a prescription; (iii) Biological products that can be dispensed only by a prescription (other than vaccines); or (iv) FDA-approved insulin. Defendants also admit that to be eligible to receive 340B-purchased drugs, patients must receive health care services other than drugs from the 340B covered entity, with limited exceptions. Defendants also state that Presbyterian Healthcare Services complies with the rules of the 340B Program. Defendants deny the remaining allegations of Paragraph 305. 278. Answering the allegations of Paragraph 306 of Plaintiff’s Third Amended Complaint, Defendants admit that to be eligible to receive 340B-purchased drugs, patients must receive health care services other than drugs from the 340B covered entity, with limited exceptions. Defendants also state that Presbyterian Healthcare Services complies with the rules of the 340B Program. Defendants deny the remaining allegations of Paragraph 306. 279. Answering the allegations of Paragraphs 307-313 of Plaintiff’s Third Amended Complaint, admit that in April 2012, in order to reduce the overall cost of prescription drugs for - 35 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 36 of 49 its members, PHP changed the process by which PHP makes certain drugs available to PHP’s Medicare Advantage members. Under the new policy, PHP covers members enrolled in the Medicare Advantage program for certain drugs only when those drugs are obtained through a designated PHP specialty pharmacy network provider. Defendants further state that Defendants offered to ship these drugs to NMOHC, on an as needed basis, for each NMOHC patient who purchased the covered chemotherapy and support drugs from a designated PHP specialty pharmacy network provider. Defendants deny the remaining allegations in Paragraphs 307-313, and deny that they have violated the 340B Program. 280. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 314 of Plaintiff’s Third Amended Complaint, and therefore deny them. 281. Answering the allegations of Paragraphs 315-320 of Plaintiff’s Third Amended Complaint, Defendants generally admit that chemotherapy drugs consist of a broad range of drugs that are used to treat a patient’s cancer, and patients need to receive the proper dosage of the chemotherapy drug and support drugs they are prescribed, in accordance with their treatment schedule. Defendants deny the remaining allegations of Paragraphs 315-320. 282. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraphs 321-330 of Plaintiff’s Third Amended Complaint, and therefore deny them. 283. Defendants admit the allegations contained in Paragraph 331 of Plaintiff’s Third Amended Complaint. 284. Answering the allegations of Paragraph 332 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian’s specialty pharmacy dispenses oral oncology and chemotherapy support drugs, among other drugs. 285. Answering the allegations of Paragraph 333-369 of Plaintiff’s Third Amended Complaint, Defendants admit that the 340B Program is codified at 42 U.S.C. Section 256b and that the 340B Program has various eligibility requirements. Defendants also admit that Presbyterian Hospital and its associated outpatient departments and clinics comprise a covered - 36 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 37 of 49 entity for purposes of the 340B Program. For purposes of the 340B Program, Presbyterian Kaseman Hospital and Rust Medical Center are registered as remote locations of Presbyterian Hospital. Defendants also admit that Espanola Hospital, Plains Regional Medical Center, Dan. C. Trigg Memorial Hospital, and Lincoln County Medical Center are each, together with their respective outpatient departments and clinics, covered entities for purposes of the 340B Program. Defendants deny the remaining allegations in Paragraphs 333-369, and deny that they have a scheme to fraudulently purchase and sell 340B Drugs. 286. Defendants deny the allegations contained in Paragraphs 370-427 of Plaintiff’s Third Amended Complaint, and specifically deny that Presbyterian has engaged in diversion of 340B Drugs. 287. Defendants deny the allegations contained in Paragraphs 428-439 of Plaintiff’s Third Amended Complaint, and specifically deny that they have violated the RICO statute. 288. Defendants deny the allegations contained in Paragraphs 440-470 of Plaintiff’s Third Amended Complaint, and specifically deny that they have violated the RICO statute. RESPONSE TO COUNT I – UNLAWFUL MAINTENANCE OF MONOPOLY POWER 289. Answering the allegations of Paragraph 471 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-470. 290. Defendants deny the allegations contained in Paragraph 472 of Plaintiff’s Third Amended Complaint. 291. Defendants deny the allegations contained in Paragraph 473 of Plaintiff’s Third Amended Complaint. 292. Defendants deny the allegations contained in Paragraph 474 of Plaintiff’s Third Amended Complaint. - 37 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 38 of 49 293. Defendants deny the allegations contained in Paragraph 475 of Plaintiff’s Third Amended Complaint. 294. Defendants deny the allegations contained in Paragraph 476 of Plaintiff’s Third Amended Complaint. 295. Defendants deny the allegations contained in Paragraph 477 of Plaintiff’s Third Amended Complaint. RESPONSE TO COUNT II – UNLAWFUL MAINTENANCE OF MONOPOLY POWER 296. Answering the allegations of Paragraph 478 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-477. 297. Answering the allegations of Paragraphs 479-484 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-478. Defendants deny the remaining allegations in Paragraphs 479-484. RESPONSE TO COUNT III – ATTEMPTED MONOPOLIZATION 298. Answering the allegations of Paragraph 485 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-484. 299. Defendants deny the allegations contained in Paragraph 486 of Plaintiff’s Third Amended Complaint. 300. Defendants deny the allegations contained in Paragraph 487 of Plaintiff’s Third Amended Complaint. - 38 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 39 of 49 301. Defendants deny the allegations contained in Paragraph 488 of Plaintiff’s Third Amended Complaint. 302. Answering Paragraph 489 of Plaintiff’s Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services has acute care hospitals and outpatient clinics that offer patients oncology services in Albuquerque. Defendants deny the remaining allegations of Paragraph 489. 303. Defendants deny the allegations contained in Paragraph 490 of Plaintiff’s Third Amended Complaint. RESPONSE TO COUNT IV – MONOPOLIZATION (STATE LAW) 304. Answering the allegations of Paragraph 491 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-490. 305. Defendants deny the allegations contained in Paragraph 492 of Plaintiff’s Third Amended Complaint. 306. Answering the allegations of Paragraphs 493-495 of Plaintiff’s Third Amended Complaint, Defendants state that these allegations pertain to Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market, which the Court dismissed in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-492 and deny that they have maintained a monopoly in the market for Inpatient Hospital Services. Defendants deny the remaining allegations in Paragraph 493-495. 307. Defendants deny the allegations contained in Paragraph 496 of Plaintiff’s Third Amended Complaint. 308. Defendants deny the allegations contained in Paragraph 497 of Plaintiff’s Third Amended Complaint. - 39 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 40 of 49 RESPONSE TO COUNT V – MONOPOLIZATION (STATE LAW) 309. Answering the allegations of Paragraph 498 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-497. 310. Answering the allegations of Paragraphs 499-504 of Plaintiff’s Third Amended Complaint, Defendants state that the Court dismissed Plaintiff’s claim for monopolization of an alleged “Inpatient Hospital Services” market in its Order dated March 14, 2016, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-498. Defendants deny the remaining allegations in Paragraphs 499-504. RESPONSE TO COUNT VI – ATTEMPTED MONOPOLIZATION (STATE LAW) 311. Answering the allegations of Paragraph 505 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-504. 312. Answering the allegations of Paragraph 506 of Plaintiff’s Third Amended Complaint, Defendants deny that Comprehensive Oncology Services constitutes a relevant antitrust market. Defendants deny the remaining allegations contained in Paragraph 506 of Plaintiff’s Third Amended Complaint. 313. Answering the allegations of Paragraph 507 of Plaintiff’s Third Amended Complaint, Defendants deny that Comprehensive Oncology Services constitutes a relevant antitrust market. Defendants deny the remaining allegations contained in Paragraph 507 of Plaintiff’s Third Amended Complaint. 314. Defendants deny the allegations contained in Paragraph 508 of Plaintiff’s Third Amended Complaint. - 40 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 41 of 49 315. Answering Paragraph 509 of the Third Amended Complaint, Defendants admit that Presbyterian Healthcare Services has acute care hospitals and outpatient clinics that offer patients oncology services in Albuquerque. To the extent Paragraph 509 alleges that Albuquerque is a relevant market, Defendants deny that allegation. Defendants deny the remaining allegations of Paragraph 509. 316. Defendants deny the allegations contained in Paragraph 510 of Plaintiff’s Third Amended Complaint. RESPONSE TO COUNT VII – TORTIOUS INTERFERENCE (REFERRAL PRACTICES) 317. Answering the allegations of Paragraph 511 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-511. 318. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 512 of Plaintiff’s Third Amended Complaint, and therefore deny them. 319. Answering the allegations of Paragraph 513 of Plaintiff’s Third Amended Complaint, Defendants deny that they are engaged in efforts to prevent referrals. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 513 of Plaintiff’s Third Amended Complaint, and therefore deny them. 320. Answering the allegations of Paragraph 514 of Plaintiff’s Third Amended Complaint, Defendants deny that they are engaged in efforts to prevent referrals. Defendants lack sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 514 of Plaintiff’s Third Amended Complaint, and therefore deny them. 321. Defendants deny the allegations contained in Paragraph 515 of Plaintiff’s Third Amended Complaint. 322. Defendants deny the allegations contained in Paragraph 516 of Plaintiff’s Third Amended Complaint. - 41 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 42 of 49 323. Defendants deny the allegations contained in Paragraph 517 of Plaintiff’s Third Amended Complaint. 324. Defendants deny the allegations contained in Paragraph 518 of Plaintiff’s Third Amended Complaint. RESPONSE TO COUNT VIII – COMMON LAW UNFAIR COMPETITION AND INJURIOUS FALSEHOOD 325. Answering the allegations of Paragraph 519 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-518. 326. Answering the allegations of Paragraphs 520-521 of Plaintiff’s Third Amended Complaint, Defendants state that Plaintiff’s state law claim for injurious falsehood was dismissed by the Court in its Order dated August 22, 2014, and therefore no answer is necessary. To the extent any answer is deemed necessary as to that claim, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-519. Defendants deny the remaining allegations in Paragraphs 520-521. RESPONSE TO COUNT IX – RICO CLAIM AGAINST PRESBYTERIAN HEALTHCARE SERVICES 327. Answering the allegations of Paragraph 522 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-521. 328. Answering the allegations of Paragraphs 523-531 of Plaintiff’s Third Amended Complaint, Defendants state that Plaintiff’s RICO claim was dismissed by the Court in its Order dated August 22, 2014, and therefore no answer is necessary. To the extent any answer is deemed necessary, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-522. Defendants also deny that they have violated the RICO statute or any other statute referenced in the Third Amended Complaint. - 42 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 43 of 49 RESPONSE TO COUNT X – TORTIOUS INTERFERENCE WITH EXISTING AND PROSPECTIVE ECONOMIC ADVANTAGE (THE SALE OF CHEMOTHERAPY DRUGS AND SUPPORT DRUGS) 329. Answering the allegations of Paragraph 532 of Plaintiff’s Third Amended Complaint, Defendants incorporate by reference, as if fully set forth here, their answers to Paragraphs 1-531. 330. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 533 of Plaintiff’s Third Amended Complaint, and therefore deny them. 331. Answering the allegations of Paragraph 534 of Plaintiff’s Third Amended Complaint, Defendants admit that cancer can be a chronic condition that requires an extended course of treatment. Defendants deny the remaining allegations of Paragraph 534 of Plaintiff’s Third Amended Complaint. 332. Defendants lack sufficient knowledge or information to admit or deny the allegations of Paragraph 535 of Plaintiff’s Third Amended Complaint, and therefore deny them. 333. Defendants deny the allegations contained in Paragraph 536 of Plaintiff’s Third Amended Complaint. 334. Answering the allegations of Paragraph 537 of Plaintiff’s Third Amended Complaint, Defendants admit that PHP requires certain drugs to be purchased from Presbyterian Health Plan’s Specialty Pharmacy Network. Defendants deny the remaining allegations of Paragraph 537. 335. Defendants deny the allegations contained in Paragraph 538 of Plaintiff’s Third Amended Complaint. 336. Defendants deny the allegations contained in Paragraph 539 of Plaintiff’s Third Amended Complaint. 337. Defendants deny the allegations contained in Paragraph 540 of Plaintiff’s Third Amended Complaint. - 43 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 44 of 49 338. Answering the Prayer for Relief in Plaintiff’s Complaint, Defendants deny that Plaintiff is entitled to any relief whatsoever. GENERAL DENIAL Defendants deny any allegations not specifically responded to above, whether expressed, implied or contained in headings appearing throughout the Third Amended Complaint. AFFIRMATIVE DEFENSES Defendants assert the following defenses without assuming the burden of proof as to any issue that otherwise would rest upon Plaintiff. First Affirmative Defense (Failure to state a claim) Each of the causes of action fails to state a claim upon which relief can be granted. Second Affirmative Defense (Failure to Join Proper Parties) Plaintiff has failed to join one or more necessary and/or indispensable parties. Third Affirmative Defense (Legitimate Business Conduct) Plaintiff’s Third Amended Complaint is barred because all of Defendants’ actions, as alleged in the Third Amended Complaint, were undertaken in good faith, with the absence of malicious intent, and were the result of lawful, pro-competitive, independent conduct carried out in furtherance of Defendants’ business interests. Fourth Affirmative Defense (Justification) Plaintiff’s Third Amended Complaint is barred, in whole or in part, because any conduct engaged in by defendants has been reasonable, based upon independent, legitimate business and economic justifications, and without any purpose or intent to injure Plaintiff or others. - 44 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 45 of 49 Fifth Affirmative Defense (Proximate Cause) Plaintiff’s Third Amended Complaint is barred because Defendants’ conduct was not the proximate cause of Plaintiff’s alleged injuries. Sixth Affirmative Defense (Estoppel and Waiver) Plaintiff’s Third Amended Complaint is barred in whole or in part by the doctrines of estoppel and/or waiver and other applicable equitable doctrines. Seventh Affirmative Defense (Unclean Hands) Plaintiff’s Third Amended Complaint is barred in whole or in part by reason of Plaintiff’s unclean hands. Eighth Affirmative Defense (Laches) Plaintiff is barred from any recovery against Defendants by reason of the doctrine of laches. Ninth Affirmative Defense (Failure to Mitigate) Plaintiff is barred from recovery by its failure to mitigate injury and its failure to mitigate damages. Tenth Affirmative Defense (Speculative Damages) Plaintiff’s claims for damages are barred, in whole or in part, because Plaintiff’s alleged damages, if any, are speculative and unforeseeable, and because it is impossible to ascertain and allocate such damages. - 45 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 46 of 49 Eleventh Affirmative Defense (No Antitrust Injury) Plaintiff’s Third Amended Complaint is barred because it has not suffered and will not suffer antitrust injury as a result of Defendants’ conduct, and lacks standing to assert the claims made in the Third Amended Complaint. Twelfth Affirmative Defense (No Harm to Competition) Plaintiff’s claims against Defendants fail because Defendants’ actions, as alleged in the Third Amended Complaint, have not harmed competition. Thirteenth Affirmative Defense (Off-Set) Any amount to be recovered by Plaintiff is offset, in whole or in part, by amounts owed by Plaintiff to Defendants. Fourteenth Affirmative Defense (Statute of Limitations) Plaintiff’s Third Amended Complaint is barred in whole or in part by the applicable statutes of limitations. Fifteenth Affirmative Defense (Comparative Fault) Plaintiff’s claims are barred, in whole or in part, because any and all injuries alleged in the Third Amended Complaint, the fact and extent of which Defendants deny, were directly and proximately caused or contributed to by the acts, statements, and/or admissions of Plaintiff and/or third-party entities other than Defendants. Sixteenth Affirmative Defense (Additional Affirmative Defenses) Defendants have not knowingly or intentionally waived any applicable affirmative defenses and reserve the right to assert and rely on such other applicable affirmative defenses as - 46 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 47 of 49 may become available or apparent during discovery proceedings. Defendants further reserve the right to amend their answer and/or affirmative defenses accordingly and/or to delete affirmative defenses that they determine during the course of subsequent discovery are not applicable. DEMAND FOR JURY TRIAL Defendants hereby demand that this case be tried by a jury. WHEREFORE, Defendants pray that: A. Plaintiff take nothing by reason of its Third Amended Complaint; B. Plaintiff’s Third Amended Complaint be dismissed with prejudice; C. Defendants recover their costs of suit; and D. Defendants be awarded such further relief as the Court deems just and proper. - 47 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 48 of 49 Dated: April 11, 2016 /s/ Jeffrey A. LeVee Jeffrey A. LeVee Kate Wallace JONES DAY 555 South Flower Street Fiftieth Floor Los Angeles, CA 90071.2300 Telephone: +1.213.489.3939 Facsimile: +1.213.243.2539 /s/ Charles K. Purcell Bruce Hall Charles K. Purcell RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A. P.O. Box 1888 Albuquerque, NM 87103 Telephone: (505) 765-5900 Facsimile: (505) 768-7395 Attorneys for Defendants Presbyterian Healthcare Services, Presbyterian Network, Inc., Presbyterian Insurance Company, Inc., and Presbyterian Health Plan, Inc. - 48 - Case 1:12-cv-00526-MV-GBW Document 376 Filed 04/11/16 Page 49 of 49 CERTIFICATE OF SERVICE I hereby certify that on April 11, 2016, I electronically filed the foregoing using the CM/ECF system, which will send notification of such filing to the following: Geoffrey D. Rieder FOSTER, RIEDER & JACKSON, P.C. 201 Third Street, NW, Suite 1300 P.O. Box 1607 Albuquerque, NM 87102 geoff@frjlaw.com George M. Sanders 150 N. Michigan Ave., Suite 2800 Chicago, IL 60601 gsanders@gmslaw.net /s/ Jeffrey A. LeVee Jeffrey A. LeVee NAI-1500952120 - 49 -