Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 1 of 263
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` Volume 1
`
` Pages 1 - 262
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`BEFORE THE HONORABLE LAUREL BEELER, MAGISTRATE JUDGE
`
`DJENEBA SIDIBE, JERRY JANKOWSKI, )
`SUSAN HANSEN, DAVID HERMAN, )
`OPTIMUM GRAPHICS, INC., and )
`JOHNSON POOL & SPA, on behalf of )
`themselves and all others )
`similarly situated, )
` )
` Plaintiffs, )
` VS. ) NO. 12-cv-4854-LB
` )
`SUTTER HEALTH, )
` ) San Francisco, California
` Defendant. )
`___________________________________)
`
` Wednesday, February 9, 2022
`
`
`TRANSCRIPT OF TRIAL PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiffs:
` CONSTANTINE CANNON PC
` 335 Madison Avenue
` Ninth Floor
` New York, New York 10017
` BY: MATTHEW L. CANTOR, ESQ.
` JEAN KIM, ESQ.
` LLOYD CONSTANTINE, ESQ.
` JAMES J. KOVACS, ESQ.
`
`
`Reported By: BELLE BALL, CSR 8785, CRR, RDR
` DEBRA L. PAS, CSR 11916, CRR, RMR, RPR
` Official Reporters, U.S. District Court
`
` (Appearances continued, next page)
`
`
`
` Volume 1
`
` Pages 1 - 262
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`BEFORE THE HONORABLE LAUREL BEELER, MAGISTRATE JUDGE
`
`DJENEBA SIDIBE, JERRY JANKOWSKI, )
`SUSAN HANSEN, DAVID HERMAN, )
`OPTIMUM GRAPHICS, INC., and )
`JOHNSON POOL & SPA, on behalf of )
`themselves and all others )
`similarly situated, )
` )
` Plaintiffs, )
` VS. ) NO. 12-cv-4854-LB
` )
`SUTTER HEALTH, )
` ) San Francisco, California
` Defendant. )
`___________________________________)
`
` Wednesday, February 9, 2022
`
`
`TRANSCRIPT OF TRIAL PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiffs:
` CONSTANTINE CANNON PC
` 335 Madison Avenue
` Ninth Floor
` New York, New York 10017
` BY: MATTHEW L. CANTOR, ESQ.
` JEAN KIM, ESQ.
` LLOYD CONSTANTINE, ESQ.
` JAMES J. KOVACS, ESQ.
`
`
`Reported By: BELLE BALL, CSR 8785, CRR, RDR
` DEBRA L. PAS, CSR 11916, CRR, RMR, RPR
` Official Reporters, U.S. District Court
`
` (Appearances continued, next page)
`
`
`
`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 2 of 263
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`APPEARANCES, CONTINUED:
`
`For Plaintiffs:
` FARMER BROWNSTEIN JAEGER GOLDSTEIN
` KLEIN & SIEGEL LLP
` 235 Montgomery Street
` Suite 835
` San Francisco, California 94104
` BY: DAVID C. BROWNSTEIN, ESQ.
` DAVID M. GOLDSTEIN, ESQ.
`
` THE MEHDI FIRM, PC
` One Market
` Spear Tower, Suite 3600
` San Francisco, California 94105
` BY: AZRA Z. MEHDI, ESQ.
`
` STEYER LOWENTHAL BOODROOKAS
` ALVAREZ & SMITH LLP
` 235 Pine Street
` 15th Floor
` San Francisco, California 94104
` BY: ALLAN STEYER, ESQ.
`
` PEARSON SIMON & WARSHAW LLP
` 350 Sansome Street
` Suite 680
` San Francisco, California 94104
` BY: JILL M. MANNING, ESQ.
`
`For Defendant:
` JONES DAY
` 555 South Flower Street
` 50th Floor
` Los Angeles, California 90071
` BY: JEFFREY ALAN LEVEE, ESQ.
`
` JONES DAY
` 555 California Street
` 26th Floor
` San Francisco, California 94104
` BY: DAVID C. KIERNAN, ESQ.
`
` JONES DAY
` 1755 Embarcadero Road
` Palo Alto, California 94303
` BY: CATHERINE T. ZENG, ESQ.
`
`(Appearances continued, next page)
`
`
`
`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 3 of 263
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`APPEARANCES, CONTINUED:
`
`For Defendant:
` BARTKO ZANKEL BUNZEL & MILLER
` One Embarcadero Center
` Suite 800
` San Francisco, California 94111
` BY: ROBERT H. BUNZEL, ESQ.
` OLIVER Q. DUNLAP, ESQ.
`Also Present:
` DANIELA ALMEIDA
` PAM MARINO
` DAVID KLEIN
` STEVE TUHOLSKI
`
`
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 4 of 263
` 4
`JURY VOIR DIRE
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`11:42
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`Wednesday - February 9, 2022
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` 9:14 a.m.
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`P R O C E E D I N G S
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`(Prospective jurors enter the courtroom.)
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`THE CLERK: If I could have you all stand and please
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`raise your right hand.
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`(Jury panel sworn.)
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`THE CLERK: Thank you. Please be seated.
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`THE COURT: All right. Good morning, everybody.
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`Thank you for being here.
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`As I mentioned as you came in, everybody here today --
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`we're a little crowded today -- we're committed in the
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`pandemic. I'm going to introduce everyone in the courtroom in
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`a minute. We're trying to run as safe a courtroom as we can.
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`Today we're a little bit more crowded because there are so
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`many of you. In the end, we'll seat ten jurors, so there will
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`be many fewer in the courtroom. You will be able to maintain
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`social distancing from you.
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`But as I did say, everybody in the courtroom here today,
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`including all the jurors, we're all fully boosted. So that
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`sort of demonstrates the commitment we have to running a safe
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`courtroom. And witnesses will be vaccinated during the trial.
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`So that is a little bit by way of the safety.
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`My name is Laurel Beeler. I'm the trial judge assigned to
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`the case, and I'm going to just give you a little bit of an
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`introduction.
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 5 of 263
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`JURY VOIR DIRE
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`Just so you know, the case -- we'll talk a bit more about
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`this in a minute -- is probably about four weeks for evidence,
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`maybe a bit more. That's the time commitment.
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`I know you've all been time screened, but I wanted to let
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`you know that that's why we're here. We're here for a civil
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`trial, and I'll tell you more about that in a minute.
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`But I've introduced myself. I'm going to introduce other
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`people in the courtroom that you may see during the trial.
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`You met Elaine Kabiling, who is my Courtroom Deputy. So
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`she is in charge of a lot of logistics of the case and is
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`someone that you'll interact with if you're selected for the
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`jury and is the person who can answer your questions.
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`People who are selected for the jury end up wearing juror
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`badges, and it's one of the rules that no one can talk with you
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`during the trial. So we're not being impolite. But that's --
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`you will see that the lawyers will give you a wide berth if you
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`go to the cafeteria. People will know that you're jurors.
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`Elaine can help navigate all of that. So that's her job.
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`This is Debra Pas, who is one of our two court reporters.
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`The other is named Belle Ball. And their job is to take down
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`what we say here today. To make a good record you'll find that
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`sometimes, they'll do as you saw Debra do it to me, she said,
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`"Don't forget the mic." It's difficult sometimes for people to
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`hear with the masks that we're wearing, and so that's her job,
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`to take down the record and she will sometimes interrupt all of
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 6 of 263
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`JURY VOIR DIRE
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`09:17
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`us.
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`I'll just let you know that there are other people in the
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`courtroom who are with me. I have two law clerks here, two
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`externs here. You may see them during the course of the trial.
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`And that's -- that's the Court folks.
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`In a minute I will have the lawyers introduce themselves
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`to you; but first, as I said, this is a civil case and the
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`lawyers have agreed on a statement that tells you what the case
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`is about. They'll also give you a little mini introduction to
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`the case as part of the process here today, and I'll talk about
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`what that process looks like in a minute.
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`So here is -- I'm going to start with the joint statement,
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`and then I'll let the lawyers introduce themselves and folks
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`who are at their table.
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`So this is a civil case brought against Sutter Health --
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`"Sutter" for short -- by several individuals and businesses on
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`behalf of themselves and a class of several million people and
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`businesses in Northern California that have paid premiums for
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`health insurance.
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`Sutter provides health care services to over 3 million
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`Californians, including members of the plaintiff class, and it
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`does so through 24 hospitals, a number of outpatient
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`facilities, and several physician organizations in Northern
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`California.
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`The plaintiffs claim that Sutter is able to force the
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 7 of 263
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`JURY VOIR DIRE
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`09:18
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`health insurers to accept certain terms in Sutter's contracts
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`and that Sutter's practices violate California's antitrust laws
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`and insulate it from competition from other hospitals.
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`According to plaintiffs, these contracts and practices
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`allow Sutter to unlawfully charge higher prices for hospital
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`services in Northern California.
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`Plaintiffs further claim that virtually all of Sutter's
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`higher hospital prices have been passed onto the class members
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`in the form of higher health insurance premiums that they paid.
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`Plaintiffs contend that these premiums would have been lower
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`had Sutter not engaged in the conduct they challenge.
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`Sutter denies these claims and maintains it has not
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`violated California's antitrust laws or caused higher hospital
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`prices. Sutter asserts that the challenged contract terms
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`protect valid volume discounts and that the terms have
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`benefited health care consumers by leading to lower prices and
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`increased investments in patient care, safety, quality in
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`struggling hospitals. Sutter further asserts that plaintiffs
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`cannot show that the alleged harms outweigh the alleged
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`benefits.
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`Plaintiffs assert that the benefits Sutter claims do not
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`result from the conduct they challenge and, in any event,
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`Sutter could have achieved these claimed benefits in other
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`ways.
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`So you'll hear in a minute from the lawyers who will tell
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 8 of 263
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`JURY VOIR DIRE
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`09:19
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`you a bit more conversationally what the case is about, but
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`that's the joint statement.
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`So I think that I'll have the parties introduce
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`themselves, and I'll start with the plaintiffs table here.
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`So, Mr. Cantor, do you want to take the lead on
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`introducing people at your table and yourself?
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`MR. CANTOR: Can everyone hear me?
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`Good morning. Thank you for being here. My name is
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`Matthew Cantor, and I'm a partner at the law firm of
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`Constantine Cannon. I'm joined today by my partner Jean Kim.
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`MS. KIM: Hi.
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`MR. CANTOR: Our jury consultant, Daniel Cooper.
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`My colleague, James Kovacs.
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`Our co-counsel, Jill Manning.
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`MS. MANNING: Good morning.
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`MR. CANTOR: My partner, Lloyd Constantine.
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`MR. CONSTANTINE: Hi.
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`MR. CANTOR: From the firm of Farmer Brownstein, our
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`co-counsel David Goldstein and David Brownstein.
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`MR. BROWNSTEIN: Good morning.
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`MR. CANTOR: And from the firm of Steyer Lowenthal,
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`our co-counsel Allan Steyer.
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`Thank you.
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`THE COURT: All right. Mr. Bunzel, maybe introduce
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`your team.
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 9 of 263
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`JURY VOIR DIRE
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`09:21
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`MR. BUNZEL: Good morning, ladies and gentlemen. My
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`name is Rob Bunzel and I represent Sutter Health.
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`And with me today at the defense table: Steve Tahalski,
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`David Klein, David Kiernan.
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`Pamela Marino from Sutter Health.
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`Daniela Almeida, also from Sutter Health.
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`Oliver Dunlap, Kate Zeng, and Jeffrey LeVee.
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`Thank you.
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`THE COURT: Okay. So what -- I'll just tell you a
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`little bit about everybody's job in the courtroom.
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`So I'm the judge. So judges decide the legal issues in a
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`case, and I'll tell you what the law is. Those are Jury
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`Instructions.
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`The lawyers put on the evidence through witnesses and
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`documents. That's what lawyers do, they put on the evidence.
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`Sometimes they argue; but when they argue, that's not evidence.
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`But their job is to put on the evidence.
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`And jurors find the facts from the witness testimony and
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`documents and then follow the law as I give it to you. I'm
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`going to read you a Jury Instruction that captures that.
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`So this is the instruction that we read jurors when we
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`impanel them. We say:
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`Members of the jury, it is your duty to find the facts
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`from all the evidence in the case. To those facts you will
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`apply the law as I give it to you. You must follow the law as
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`JURY VOIR DIRE
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`09:22
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`I give it to you whether you agree with it or not, and you must
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`not be influenced by any personal likes, dislikes, opinions,
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`prejudices, or sympathy. That means you must decide the case
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`solely on the evidence before you.
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`And, you know, we'll give you -- and jurors receive an
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`oath, and then we say: You will recall you took an oath to do
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`so.
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`At the end of the trial, I will give you final
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`instructions and the final instructions will govern your
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`duties. And I'll tell you then that the instructions -- you
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`don't read into the instructions or anything that I say or do
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`that I have an opinion regarding the evidence or what your
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`verdict should be.
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`So it's pretty simple. I mean, the law is essentially
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`established by me and given to you in the form of instructions.
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`You apply those instructions to the facts that the lawyers put
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`on and you decide what the facts are. So it's a pretty simple
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`process, but we explain it to you upfront so you basically know
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`what everybody's obligations are.
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`So what happens next is the lawyers are going to ask you
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`some questions.
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`Thank you very much for putting in all the time that
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`you've put into answering the questions on the questionnaire
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`that you received. It saves a lot of time. We appreciate your
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`candor.
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`JURY VOIR DIRE
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`09:24
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`I will say this. There are no wrong answers to the
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`questions that the lawyers will ask you today, the voir dire
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`questions. What everyone is trying to do is just make sure
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`that jurors can be fair to both sides.
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`So not every case is for every person, we understand that,
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`and so your candor is what we appreciate. It is an awkward way
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`to have a conversation, voir dire. People ask you questions
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`and it just seems odd. And here we are in a courtroom full of
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`people, and it can sometimes feel uncomfortable.
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`But I'll say this about the jury process. Most people who
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`are selected to be in a jury, and some of you may have been
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`before, usually end up thinking it's a remarkable experience.
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`I know that every case that I'm able to hear -- I used to have
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`a seat at the table as a lawyer, and now I have a different
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`seat in the room as a judge, but I always learn something from
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`it. And I think in a very real way it's your democracy in
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`action.
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`So I hope you'll actually find even today's questioning to
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`be an interesting experience. And if it does at any time feel
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`too personal, we can accommodate that, too. And the way we can
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`do that is we can have a private conversation with you, and so
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`we'll figure out mechanically how to do that.
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`So feel free to ask. All you have to say is: I would
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`prefer to answer that question privately. By "privately" would
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`be with me and the lawyers, but it wouldn't be in the full
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`JURY VOIR DIRE
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`courtroom.
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`So the other thing I wanted to say about the jury
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`selection process is we often refer to you by your numbers.
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`That seems really impersonal, but there are a lot of you and it
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`makes for a cleaner record and so the lawyers may or may not
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`address you by name too, but don't be surprised if it's just by
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`number. So I wanted to alert you to that, too.
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`And with that, I think that we can ask the lawyers to make
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`a brief statement about their case to help you understand the
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`voir dire.
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`And thank you, Elaine, for arranging the microphone.
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`That's great.
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`So Mister -- plaintiffs go first. That's just how it
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`works. So Mr. Cantor will begin.
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`MR. CANTOR: Thank you, Your Honor.
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`Your Honor, one issue has come to light that we may want
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`to talk to you in private just for one second.
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`THE COURT: Sure. We can put it on the record later.
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`That's fine.
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`MR. CANTOR: Thank you.
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`THE COURT: I'll just say on the record for this,
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`sorry. Sometimes issues come up and we do talk about them. We
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`really try to minimize that to avoid inconveniencing you, but
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`sometimes stuff happens.
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`So let's have a quick side conversation, and we'll put it
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 13 of 263
` 13
`MINI OPENING STATEMENT / CANTOR
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`on the record at a break.
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`MR. CANTOR: Thank you.
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`(Side bar held off the record.)
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`THE COURT: Sorry about that folks. Nothing all that
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`serious. We were just trying to talk about some logistic
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`issues, and I think we've sorted it out.
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`All right. So, Mr. Cantor, the floor is yours.
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`MINI OPENING STATEMENT
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`MR. CANTOR: Good morning, ladies and gentlemen. The
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`judge has given us permission to speak with a surgical mask, as
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`opposed to a K95 mask, so that you can hear us clearly. So
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`that's why I switched masks for this.
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`My name again is Matthew Cantor, and I am a partner at the
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`firm of Constantine Cannon. And I'm joined by my co-counsel,
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`as you heard today.
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`I'm specifically joined by my partner Jean Kim, who also
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`will be speaking with you today. And my co-counsel David
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`Brownstein may be speaking with some of you as well.
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`We wanted to thank you at the outset of this matter for
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`the time and for the attention that you've already given to it.
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`I mean, we know we live in difficult times, so that makes your
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`attendance here today all the more remarkable. Frankly, this
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`case could not go forward without your participation and
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`neither could our justice system. So thank you.
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`As the judge said, this is a class action. We represent a
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 14 of 263
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`MINI OPENING STATEMENT / CANTOR
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`plaintiff class of over 3 million Northern California employers
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`and people that paid premiums for health insurance. Most of
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`the employers are small businesses, and the class members come
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`from all walks of life. They're teachers and restaurant owners
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`and nurses and tech entrepreneurs. They're your community
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`members.
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`And the class has brought this case under California
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`antitrust law. Now, antitrust law prohibits actions that harm
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`consumers like the class members. The class members have
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`brought this case against Sutter Health, who is the defendant
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`here, because Sutter knowingly and intentionally wronged.
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`Sutter Health did so by forcing class members to pay
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`higher prices for health insurance coverage than they should
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`have. By forcing class members to pay these significantly
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`higher prices, Sutter caused class members in total to lose
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`hundreds of millions of dollars.
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`So what is Sutter? Well, Sutter is a dominant hospital
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`company located right here in Northern California. It earns
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`billions of dollars in revenues each and every year, and it
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`holds a multibillion-dollar investment portfolio.
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`Sutter owns 24 hospitals, but in many Northern California
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`areas Sutter's hospitals are the only hospitals around, like up
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`the coast, near the Oregon border, in Crescent City.
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`Note that this case is against the Sutter Company. It's
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`not against its doctors or its nurses or its medical personnel.
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 15 of 263
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`MINI OPENING STATEMENT / CANTOR
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`Now, health insurance plans that cover the medical costs
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`for millions of Northern Californians simply had to have
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`Sutter's only-game-in-town hospitals in the medical provider
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`networks that they assembled for their members, and these
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`health plans included Anthem Blue Cross and Blue Shield of
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`California and UnitedHealthcare and Aetna and Health Net. If
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`these health plans did not include these Sutter hospitals in
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`their networks, they would not have been able to offer health
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`insurance to businesses and people in these Northern California
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`areas at all.
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`This gave Sutter tremendous economic power, and Sutter
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`used this economic power to force these health plans to enter
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`into anti-competitive contracts and to pay substantially higher
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`hospital prices.
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`Well, how did Sutter do this? Sutter did this by offering
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`the health plans an ultimatum. They told them that they had to
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`contract for all Sutter hospitals or they would get none of
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`them.
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`Specifically, Sutter told these health plans that if they
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`wanted to contract for any Sutter hospital for the benefit of
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`their members, including those Sutter hospitals that are the
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`only game in town, then they'd have to enter into systemwide
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`contracts with Sutter that contained anti-competitive clauses
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`that covered all Sutter hospitals, including those Sutter
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`hospitals located in areas where people and health plans have a
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 16 of 263
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`MINI OPENING STATEMENT / CANTOR
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`choice, like right here in San Francisco.
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`And as these health plans could not operate in Northern
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`California areas without Sutter's only-game-in-town hospitals
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`in their networks, the health plans had no choice but to sign
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`these all-or-nothing contracts.
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`Now, these all-or-nothing contracts required health plans
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`to pay higher hospital prices for Sutter hospitals, especially
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`in areas where hospitals otherwise -- Sutter hospitals
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`otherwise should have faced significant competition on the
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`prices that they charged from other hospitals.
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`But that was not all that Sutter did. Through these
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`contracts Sutter also interfered with the ability of these
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`health plans to offer alternative and effective lower-priced
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`quality health insurance options to Northern California
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`businesses and people. Options that would have featured
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`lower-priced quality non-Sutter hospitals.
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`The evidence will show that the health plans wanted to and
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`even tried to offer these options in Northern California, just
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`like they did in Southern California where these more
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`affordable product options flourished; but in Northern
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`California, they just could not effectively offer these
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`products because of Sutter's forced restrictive contracts.
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`Sutter's contracts stifled the growth of lower-priced
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`quality health insurance options that would have otherwise been
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`available to Northern California consumers.
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 17 of 263
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`MINI OPENING STATEMENT / CANTOR
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`Now, in the end, the main harm that Sutter inflicted was
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`not suffered by the health plans. Indeed, the health plans are
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`not even the plaintiffs in this case.
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`Rather, Sutter's conduct resulted in substantial harm to
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`everyday Northern California businesses and people that paid
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`for health insurance, and that's because virtually all of the
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`high hospital prices that Sutter charged the health plans were
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`passed on to class members as part of the premiums that they
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`paid.
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`You see, the Affordable Care Act, which some people refer
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`to as Obamacare, required the health plans to ensure that at a
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`minimum 80 to 85 percent of their premiums be made up of the
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`monies that they spent on their members' medical treatment,
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`including the treatment of their members at the higher-priced
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`Sutter hospitals.
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`Consequently, the Affordable Care Act, among other things,
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`caused the health plans to pass on Sutter's high hospital
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`prices to the premium-paying class members. As a result, the
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`class members were the ones that ultimately foot the bill for
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`virtually all of Sutter's high prices. Something that Sutter
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`was very well aware of.
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`Now, there are two important things to note about Sutter's
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`economic power and higher prices.
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`First, its power was not limited by the presence of other
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`hospitals, particularly Kaiser Permanente hospitals in Northern
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 18 of 263
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`MINI OPENING STATEMENT / CANTOR
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`California. As many of you know, if you get Kaiser insurance,
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`then you can only visit Kaiser hospitals and doctors on any
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`network basis. Well, for many people, Kaiser hospitals and
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`doctors are just not an option because the doctors that they
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`historically visit are not part of the Kaiser network, there
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`are no Kaiser hospitals located near them or their loved ones,
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`and their employers -- or their employers did not offer Kaiser
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`insurance as an option to them.
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`And the evidence will show that when Sutter raised prices
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`to the Anthems and the Uniteds of the world, which it did
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`repeatedly, those health plans could not say to Sutter that,
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`you know, we're not going to pay your prices and contract with
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`you. We're going to contract with the Kaiser hospitals
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`instead. And that's because Kaiser hospitals never had sought
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`to be part of a non-Kaiser insurance company network, like
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`those assembled by Blue Shield or Aetna.
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`Kaiser hospitals were not an alternative for any of the
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`health plans that covered the medical treatment of the over
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`3 million class members.
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`Second, Sutter's anti-competitive conduct did not help it
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`to provide consumers with any benefits, especially those
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`consumers that paid Sutter's higher prices. It did not allow
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`for Sutter to provide any superior medical quality. If
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`anything, the evidence in this case will show that Sutter's
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`executives admitted that Sutter's medical quality is about
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 19 of 263
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`MINI OPENING STATEMENT / CANTOR
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`average.
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`And Sutter's conduct did not allow for greater patient
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`access to hospital services. The other Northern California
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`hospitals were able to offer substantial services to all types
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`of patients, including those covered by Medicare or Medicaid,
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`or those that had no insurance whatsoever. And they did
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`this -- excuse me.
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`(Cell phone interruption.)
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`MR. CANTOR: So the other Northern California
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`hospitals were able to offer these substantial services to
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`Medicare, Medicaid, and uninsured patients; and they were able
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`to do that without resorting to Sutter's anti-competitive acts.
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`I mean, UCSF did not engage in Sutter's anti-competitive
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`conduct nor did Dignity hospitals nor did Stanford hospitals
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`nor did Adventist hospitals nor did John Muir hospitals,
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`et cetera.
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`And in sum, the evidence will show that Sutter harmed
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`class members through anti-competitive conduct and that between
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`2011 and the first quarter of 2020 Sutter caused class members
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`to collectively pay approximately $411 million more than they
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`should have paid for health insurance.
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`Given this evidence, the class members will ask the jury
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`to find that Sutter violated antitrust law and to award them
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`$411 million in damages to cover the financial losses that
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`Sutter intentionally inflicted upon them.
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 20 of 263
` 20
`MINI OPENING STATEMENT / BUNZEL
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`Thank you.
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`MINI OPENING STATEMENT
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`MR. BUNZEL: Good morning, ladies and gentlemen.
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`And Sutter Health, as well as the plaintiffs, greatly
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`appreciate your service. To see all of you walk through that
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`door despite what's been going on in our country and engage in
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`this democratic process is truly inspiring, especially for
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`those of us who live in this world and courthouse. And I know
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`many of you don't, and it can be alien, and we're going to make
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`sure that it's not for you and that this case is well presented
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`and that you understand the issues in the case.
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`One of the things Mr. Cantor said or implied in his
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`opening was that the class members who paid money to insurance
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`companies paid more for their health care at Sutter Health.
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`That's not true. They paid more to insurance companies, the
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`biggest insurance companies in the country, if not the world.
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`That will be the evidence in the case.
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`I'm proud to represent Sutter Health with our team here.
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`We believe after you hear all the evidence in this case, you'll
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`find that Sutter committed no anti-competitive conduct.
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`First and foremost, as you evaluate this, this is an
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`antitrust case. Antitrust cases and the law exist to protect
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`competition.
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`You're going to find in this case that nothing that Sutter
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`has done has affected competition between hospitals in Northern
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 21 of 263
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`MINI OPENING STATEMENT / BUNZEL
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`California. You will see the evidence of the University of
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`California, Kaiser, Dignity, Stanford, John Muir, and many
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`others competing head-to-head with Sutter on a regular basis
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`for patients and that this is a very healthy, robust
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`environment for hospital competition.
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`You will also hear evidence that Sutter during the class
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`period, which is from 2011 to 2020 -- 2021, has lost a
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`substantial number of patients. It has lost them largely to
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`Kaiser and to others.
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`And during that time, Sutter has, despite huge cost
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`inflation -- we all know that costs are going up. Real estate
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`prices are going up. Rents and everything else are going up.
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`Operating expenses are going up. But Sutter has moderated its
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`prices and kept down the increases in the low single digits,
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`and it's losing market share to Kaiser and to the other
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`hospitals at the same time. That is not the pattern for an
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`antitrust violation. We believe you will see that clearly in
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`this case.
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`You've heard that -- from the plaintiffs that Sutter has
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`significant so-called market power, economic power, to force
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`these large insurance companies to do certain things under
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`certain agreements.
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`The evidence will be that the markets that the plaintiffs
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`put forward are gerrymandered, and they're going to ask you to
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`ignore Kaiser. You just heard Mr. Cantor ask you to ignore
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`Case 3:12-cv-04854-LB Document 1570 Filed 08/08/22 Page 22 of 263
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`MINI OPENING STATEMENT / BUNZEL
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`Kaiser, even though it insures more commercial patients than
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`any other Northern California provider.
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`Kaiser is the largest hospital system in Northern
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`California, competes with -- with Sutter, not j
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