“Indeed, pre-2006 evidence is highly relevant to both plaintiffs’ tying claim and their unreasonable course of conduct claim,” Judge Koh wrote.
Specifically, the purchasers were barred from presenting evidence regarding admissions by Sutter executives, Sutter’s switch from the individual negotiating to the systemwide contracting system, Sutter’s imposition of the allegedly anticompetitive contract terms during that transition, and the health plans’ objections to those terms and the switch.
Among that excluded evidence were memos and testimony from Sutter executives in which they discussed the “increased leverage,” potential gains and likely opposition from insurers when it came to systemwide contracting. At one point, Sutter’s then-Chief Financial Officer Robert Reed gave a deposition in which he stated that the purpose of making the switch was to garner “vastly better results,” results that he clarified meant “better pricing,” according to the order. And in a 2006 memo, future CEO Sarah Krevans stated, “Related to the health plans, we force them to pay us more. They do pay us more, and they don’t like us … Mainly we pushed them because we could,” per the order.
