Technical Resource Services, Inc. v. Dornier Medical Systems, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

Nos. 95-2565 & 95-3220

D. C. Docket No. 91-762-CIV-ORL-19

TECHNICAL RESOURCE SERVICES, INC.,

Plaintiff-Appellant,

versus

DORNIER MEDICAL SYSTEMS, INC.,

Defendant-Appellee.

Appeals from the United States District Court
for the Middle District of Florida

(February 12, 1998)

Before HATCHETT, Chief Judge, ANDERSON, Circuit Judge, and LAY*,
Senior Circuit Judge.

ANDERSON, Circuit Judge:

_________________________
* Honorable Donald P. Lay, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
 These consolidated appeals arise from a civil antitrust

dispute which was the subject of two jury trials. We affirm the

district court's entry of judgment for the appellee and, with one

exception, affirm the district court's award of costs to the

appellee.

I. FACTS

Appellee Dornier Medical Systems, Inc. ("DMSI") sells,

supplies, and services Dornier lithotripters, which are

manufactured by Dornier Medizintechnik, GmbH ("DMT"), DMSI's

German parent company. Lithotripters are medical devices which

dissolve kidney stones through the use of shock waves. Appellant

Technical Resource Services, Inc. ("TRS") is an independent

service organization which services lithotripters.

DMT invented the first lithotripter, the HM-3, in the early

1980's. This invention revolutionized the treatment of kidney

stones by eliminating the need for invasive surgery. The next

generation of Dornier lithotripters was the HM-4, which received

FDA approval in 1987.1 Both the HM-3 and the HM-4 remain in use,

as does the MFL 5000, the HM-4's successor.

TRS contends that DMSI engaged in unlawful, anticompetitive

conduct in order to maintain control of the servicing market for

Dornier lithotripters and to prevent competition from TRS and

1
Since 1988, several other lithotripter manufacturers have received FDA
approval.

2
other independent service organizations. TRS's allegations are

as follows. TRS alleges that until 1989, DMSI's lithotripter

sales contracts required Dornier lithotripter buyers to purchase

a DMSI service contract, and that these service contracts

automatically renewed from year to year unless the buyer notified

DMSI that it wished to terminate the contract. TRS also alleges

that DMSI used various tactics to maintain control of Dornier

lithotripter spare parts. In particular, TRS contends that DMSI

sold parts only to Dornier lithotripter owners and users. TRS

also alleges that DMSI took special advantage of the HM-3's

energy source, the shock wave generator. Rather than selling

replacement shock wave generators, DMSI had an exchange program

under which a shock wave generator that needed to be replaced

would be exchanged with DMSI for a new one. TRS contends that

DMSI's shock wave generator exchange program prescribed an

arbitrarily short lifespan for shock wave generators, limited

TRS's access to shock wave generators, and prevented TRS from

performing both shock wave generator service and full HM-3

service.

The HM-3's successor, the HM-4, uses software for its

operation and servicing. This software is copyrighted, and DMSI

limits access to it. The gist of TRS's complaint regarding the

HM-4 software is that DMSI has refused to provide TRS with the

HM-4 diagnostic software and manuals, and that without these

materials, it is cumbersome to perform service on the HM-4.

3
 II. PROCEDURAL HISTORY

TRS filed this lawsuit against DMSI on October 11, 1991,

alleging violations of §§ 1 and 2 of the Sherman Act.2 TRS's

claim under § 1 is a tying claim: TRS contends that DMSI

possessed power in the lithotripter market and unlawfully used

this market power to force buyers of Dornier lithotripters to

accept unwanted service contracts. TRS thus claims that Dornier

lithotripters are the "tying product" and service for Dornier

lithotripters is the "tied product." TRS also claims that DMSI

violated § 2 of the Sherman Act by unlawfully monopolizing and

unlawfully attempting to monopolize the service market for

Dornier lithotripters.

Following contentious and protracted discovery and pre-trial

proceedings, this case was tried to a jury beginning on May 13,

1993. The Honorable Patricia C. Fawsett3 presided over the seven
week jury trial and submitted to the jury a special verdict form.

See Fed. R. Civ. P. 49(a). Section I of the special verdict form

contained three interrogatories regarding TRS's § 2

monopolization claim. The jury wrote "No Decision" under each of

2
Section 1 of the Sherman Act states in pertinent part that "[e]very
contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign nations,
is hereby declared to be illegal." 15 U.S.C. § 1.
Section 2 of the Sherman Act provides in relevant part that "[e]very person
who shall monopolize, or attempt to monopolize, or combine or conspire with any
other person or persons, to monopolize any part of the trade or commerce among
the several States, or with foreign nations, shall be deemed guilty of a felony."
15 U.S.C. § 2.

3
U.S. District Judge for the Middle District of Florida.

4
these interrogatories. Section II of the special verdict form

contained four interrogatories regarding TRS's § 2 attempt to

monopolize claim. The jury also wrote "No Decision" under each

of these interrogatories. Section III of the special verdict

form contained interrogatories regarding TRS's § 1 tying claim.

The jury responded to these interrogatories as follows:

8. Has TRS proven by a preponderance of the
evidence that there were separate markets for
Dornier lithotripters, the tying product, and
service for Dornier lithotripters, the tied
product?

No Decision

Yes ___ No ___

9. Has TRS proven by a preponderance of the
evidence that DMSI possessed sufficient
economic power in the lithotripter market to
coerce the buyer to purchase service for
Dornier lithotripters, the tied product?

Yes ___ No X
10. Has TRS proven by a preponderance of the
evidence that DMSI forced the buyer to
purchase the tied product?

Yes ___ No X
11. Has TRS proven by a preponderance of the
evidence that the arrangement had an
anticompetitive effect in the tied product
market?

No Decision

Yes ___ No ___

12. Has DMSI proven by a preponderance of the
evidence that the tying arrangement was
justified by a legitimate business reason?

5
 No Decision

Yes ___ No ___

Section IV of the special verdict form contained two

interrogatories regarding injury and damages; the jury did not

respond at all to those interrogatories.

Judge Fawsett polled the jury and determined that the jurors

were unanimous in their decision as to interrogatories 9 and 10,

but that they were unable to reach a decision as to the remaining

interrogatories. Judge Fawsett then dismissed the jury. DMSI

moved for judgment on TRS's § 1 tying claim based on the jury's

answers to interrogatories 9 and 10. Judge Fawsett denied this

motion, reasoning that the jury's failure to reach a decision on

interrogatory 8 was fatally inconsistent with the jury's answers

to interrogatories 9 and 10.

A new trial was scheduled, and this case was transferred to

the Honorable Louis C. Bechtle.4 DMSI renewed its motion for

judgment on TRS's § 1 tying claim based on the jury's answers to

interrogatories 9 and 10. Judge Bechtle reconsidered Judge

Fawsett's earlier ruling and granted DMSI's motion for judgment

on the § 1 tying claim.

TRS's § 2 claims were then the subject of a new jury trial

before Judge Bechtle. This trial began on March 9, 1994, and

lasted almost six weeks. A special verdict form was again

4
Senior U.S. District Judge for the Eastern District of Pennsylvania, sitting
by designation in the Middle District of Florida.

6
submitted to the jury, to which the jury responded as follows:

I. SHERMAN ACT - SECTION 2 MONOPOLIZATION CLAIM

1. What do you find to be the relevant
market in this case? (check one)

X The servicing of Dornier brand
lithotripters (including the sale of parts).

___ The servicing of all brands of
lithotripters (including the sale of parts).

___ The sale of lithotripter systems,
including the machine as well as its
servicing (including the sale of parts).

(Answer Question No. 2)

2. Has TRS proven that DMSI possessed
monopoly power in the relevant market?

Yes X No ___

(If your answer is "yes," go to Question No.
3. If your answer is "no," go to Question
No. 5)

3. Has TRS proven that DMSI willfully
maintained that monopoly power by
anticompetitive means or for anticompetitive
purposes?

Yes ___ No X
(If your answer is "yes," go to Question No.
4. If your answer is "no," go to Question
No. 5)

4. Has DMSI proven a legitimate business
justification for its acts?

Yes ___ No ___

(Answer Question No. 5)

7
II. SHERMAN ACT - SECTION 2 ATTEMPT TO MONOPOLIZE
CLAIM

5. Has TRS proven that DMSI had a specific
intent to achieve a monopoly in the relevant
market?

Yes ___ No X

(If your answer is "yes," go to Question No.
6. If your answer is "no," go to Question
No. 9)

6. Has TRS proven that DMSI engaged in
predatory or anticompetitive conduct in
furtherance of this intent?

Yes ___ No ___

(If your answer is "yes," go to Question No.
7. If your answer is "no," go to Question
No. 9)

7. Has TRS proven that there was a dangerous
probability that DSMI would succeed in
achieving this monopoly?

Yes ___ No ___

(If your answer is "yes," go to Question No.
8. If your answer is "no," go to Question
No. 9)

8. Has DMSI proven a legitimate business
justification for its acts?

Yes ___ No ___

(Go to "Instructions for Question No. 9")

III. INJURY

Instructions for Question No. 9

(If you answered "yes" to Question Nos. 2 and
3, and answered "no" to Question No. 4,
answer Question No. 9. If you answered "yes"

8
 to Question Nos. 5, 6 and 7, and answered
"no" to Question No. 8, answer Question No.
9. Otherwise, do not answer Question No. 9.)

9. Has TRS proven that it sustained injury
to its business which was directly and
proximately caused by DMSI's violation of
Section 2 of the Sherman Act?

Yes ___ No ___

Based on the jury's special verdict, Judge Bechtle entered

judgment for DMSI on TRS's § 2 claims. TRS moved for judgment as

a matter of law on its § 2 claims and on DMSI's asserted business

justification defenses. In the alternative, TRS moved for a new

trial on the grounds that the jury's verdict was internally

inconsistent and contrary to the great weight of the evidence,

and also on the ground that the district court improperly

excluded relevant evidence. Judge Bechtle denied TRS's motion,

and thereafter entered an order awarding DMSI $184,778.84 in

costs.

III. ISSUES ON APPEAL

On appeal, TRS argues that the district court erred by

denying TRS's motion to amend its complaint to add a new tying

claim. TRS further asserts that the district court erroneously

granted judgment for DMSI based on the juries' verdicts because

the juries' answers to the special verdict interrogatories were

inconsistent. In addition, TRS argues that the second jury's

verdict was contrary to the great weight of the evidence and that

TRS is entitled to judgment as a matter of law on DMSI's business

9
justification defenses to the § 2 claims. Finally, TRS attacks

the district court's award of costs to DMSI.5

IV. ANALYSIS

A. Proposed Amendment to Complaint

TRS filed its complaint against DMSI on October 11, 1991.

DMSI answered on February 14, 1992. Discovery in this case ended

on January 4, 1993. On January 5, 1993, TRS filed under seal a

motion seeking to amend its complaint to add an additional § 1

tying claim alleging that Dornier lithotripter spare parts are

the tying product and Dornier lithotripter servicing is the tied

product.6 In an April 19, 1993, order, Judge Fawsett denied this

5
TRS makes several additional arguments which warrant little discussion. TRS
argues that the district court erred by not imposing sanctions on DMSI for
allegedly altering service meeting minutes produced during discovery, and by not
conducting an evidentiary hearing on this issue. After carefully reviewing the
record and the arguments made to the district court in this regard, we cannot
conclude that the district court abused its broad discretion.
We also cannot conclude that the district court abused its discretion by
not ordering a new trial for TRS on the § 1 tying claim based on DMSI's delay in
producing or withholding of documents in discovery. Additionally, we are not
persuaded that the district court erred by refusing to allow TRS to conduct
certain depositions, and we therefore reject TRS's argument in this regard.
TRS further asserts that the district court made several erroneous
evidentiary rulings which warrant a new trial on TRS's claims. We review the
district court's evidentiary rulings for an abuse of discretion, and reverse
those rulings only when the party asserting error has shown prejudice to a
substantial right. Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997). We
find no abuse of discretion and therefore decline to disturb the district court's
evidentiary rulings.

6
TRS also unsuccessfully moved to amend its complaint to name DMSI's parent
companies as defendants. TRS's counsel informed this court at oral argument that
TRS filed suit in the Northern District of Georgia against DMSI's parent
companies after briefing had been completed in this appeal. In light of this
development, TRS acknowledged that its argument that the district court erred by
refusing to add the parent companies to the instant lawsuit is now moot. We

10
motion, indicating that TRS had delayed unduly in presenting the

motion.7 Judge Fawsett explained that TRS had argued to her that

DMSI had been on notice for several months that TRS intended to

add the new tying claim. However, Judge Fawsett reasoned that if

DMSI had had such notice for months, then TRS must also have

known for several months that the new tying claim existed, yet

failed to make a motion to amend earlier. Judge Fawsett

explained that if the motion to amend were granted, the trial,

which at that time was scheduled for June 1993, would almost

certainly be delayed.

After this case had been transferred to Judge Bechtle, TRS

filed a renewed motion to amend its complaint. Judge Bechtle

also denied this motion.

Rule 15(a) of the Federal Rules of Civil Procedure provides

that "leave [to amend a party's pleading] shall be freely given

when justice so requires." In defining the scope of Rule 15(a),

the Supreme Court has explained that

[i]n the absence of any apparent or declared reason--
such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance
of the amendment, futility of amendment, etc.--the

therefore need not address this issue.

7
Judge Fawsett also stated that TRS had improperly filed the motion under
seal, which caused delay in the district court's consideration of the motion.
Excessive filings under seal apparently were a problem in this case and were
burdensome for the district court. In a separate order entered before Judge
Fawsett's order denying TRS's motions to amend, but after TRS had filed its
motions to amend, Judge Fawsett reprimanded the parties for improperly filing an
excessive number of documents under seal, and ordered that numerous documents be
unsealed.

11
 leave sought should, as the rules require, be "freely
given."

Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962).

See also Jameson v. Arrow Co., 75 F.3d 1528, 1534-35 (11th Cir.

1996); Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 761 (11th

Cir. 1995). We review a district court's denial of a motion to

amend for an abuse of discretion. Foman, 371 U.S. at 182, 83 S.

Ct. at 230; Jameson, 75 F.3d at 1534.

In its brief to this court, TRS argued that DMSI was on

notice by September 1992 that TRS intended to propose the new

tying claim amendment. However, as Judge Fawsett observed, if

DMSI was on notice of the possibility of this claim in September

1992, so too was TRS. TRS nonetheless inexplicably waited until

January 5, 1993, after discovery was completed, to make its

motion to add a new substantive claim.8 This proposed new claim

would have increased the complexity of an already complex

lawsuit, and probably would have required that discovery be

reopened. Although ordinarily leave to amend should be "freely

given," dual concerns that TRS delayed unduly and that the

proposed amendment would have unduly prejudiced DMSI lead us to

conclude that the district court did not abuse its discretion by

denying TRS's motion to amend.

8
TRS implied in its initial appellate brief and at oral argument that it
delayed in making the motion to add the new tying claim because it was awaiting
the Supreme Court's decision in Eastman Kodak Co. v. Image Technical Services,
Inc., 504 U.S. 451, 112 S. Ct. 2072 (1992). This argument ignores the fact that
Eastman Kodak was decided on June 8, 1992, almost seven months before TRS's
motion to amend and almost seven months before discovery was completed in this
case.

12
 B. Judgment for DMSI on the §§ 1 and 2 claims

1. Consistency of the Juries' Verdicts

TRS asserts that the district court erred by granting

judgment for DMSI based on the juries' special verdicts because

the juries' answers to the special verdict interrogatories were

inconsistent. Both juries in this case were given a special

verdict form pursuant to Rule 49(a) of the Federal Rules of Civil

Procedure. See generally 9A Charles Alan Wright & Arthur Miller,

Federal Practice and Procedure §§ 2505-2510 (2d ed. 1994)

(discussing special verdicts). In evaluating a claim that a

jury's answers to a Rule 49(a) special verdict are inconsistent,

the Seventh Amendment demands that, if there is a view
of the case which makes the jury's answers consistent,
this Court must adopt that view. It does not matter
whether [the appellant] can suggest equally plausible
reasons for the verdict that would require reversal.
The test to be applied in reconciling apparent
conflicts between the jury's answers is whether the
answers may fairly be said to represent a logical and
probable decision on the relevant issues as submitted .
. . .

Aquachem Co., Inc. v. Olin Corp., 699 F.2d 516, 521 (11th Cir.
1983) (citations and internal quotations omitted). See also
Hattaway v. McMillian, 903 F.2d 1440, 1449 (11th Cir. 1990);

Burger King Corp. v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983),

cert. denied, 465 U.S. 1102, 104 S. Ct. 1599 (1984). "[I]t is

the duty of the courts to attempt to harmonize the answers, if it

is possible under a fair reading of them: 'Where there is a view

of the case that makes the jury's answers to special

interrogatories consistent, they must be resolved that way.'"

13
Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 119, 83 S.

Ct. 659, 666 (1963) (quoting Atlantic & Gulf Stevedores, Inc. v.

Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S. Ct. 780, 786

(1962)).

a) The First Jury's Verdict

In order to prove a § 1 tying arrangement that is per se

illegal, a plaintiff must establish at least the following basic

elements:

1) that there are two separate products, a "tying"
product and a "tied" product; 2) that those products
are in fact "tied" together--that is, the buyer was
forced to buy the tied product to get the tying
product; 3) that the seller possesses sufficient
economic power in the tying product market to coerce
buyer acceptance of the tied product; and 4)
involvement of a "not insubstantial" amount of
interstate commerce in the market of the tied product.

Tic-X-Press, Inc. v. Omni Promotions Co., 815 F.2d 1407, 1414
(11th Cir. 1987). See also Eastman Kodak Co. v. Image Technical

Servs., Inc., 504 U.S. 451, 462, 112 S. Ct. 2072, 2079-80 (1992);

Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1574

(11th Cir. 1991), cert. denied, 506 U.S. 903, 113 S. Ct. 295
(1992).

In evaluating TRS's § 1 tying claim, the first jury answered

"No Decision" to interrogatory 8 regarding whether there were

separate markets for Dornier lithotripters, the tying product,

and service for Dornier lithotripters, the tied product. The

jury answered "no" to interrogatory 9 regarding whether DMSI

possessed sufficient economic power in the lithotripter market to

14
force buyers of Dornier lithotripters to purchase service for the

lithotripters, and "no" to interrogatory 10 regarding whether

DMSI forced the buyers to purchase the tied product. TRS argues

that the jury's answers to interrogatories 9 and 10 are

inconsistent with the jury's inability to answer interrogatory 8.

TRS contends that a jury could not answer interrogatories 9 and

10 without first deciding what the relevant market is for this

case because definition of the relevant market is necessary in

order to assess whether DMSI possessed sufficient power in that

market to engage in unlawful tying.

Judge Fawsett agreed with TRS's argument and denied DMSI's

motion for judgment on the § 1 tying claim. However, after this

case was transferred to Judge Bechtle following the first jury

trial, Judge Bechtle reconsidered Judge Fawsett's ruling and

granted DMSI's motion for judgment on the § 1 tying claim.9 We

agree with Judge Bechtle that the first jury's answers to

interrogatories 9 and 10 are not fatally inconsistent with the

jury's failure to answer interrogatory 8 and require judgment for

DMSI on the § 1 tying claim.

Interrogatory 9 asked the jury whether TRS had proven that

9
Judge Bechtle was not bound by Judge Fawsett's earlier ruling. In general,
when a case is transferred from one district judge to another, the parties should
not treat the transfer as an opportunity to relitigate all of the first judge's
rulings. United States v. Williams, 728 F.2d 1402, 1406 (11th Cir. 1984).
However, the second district judge may reconsider the first judge's rulings when
final judgment has not yet been entered. See id.; Robinson v. Parrish, 720 F.2d
1548, 1550 (11th Cir. 1983); Gregg v. U.S. Indus., Inc., 715 F.2d 1522, 1530,
clarified on reh'g, 721 F.2d 345 (11th Cir. 1983), cert. denied, 466 U.S. 960,
104 S. Ct. 2173 (1984).

15
DMSI had "sufficient economic power in the lithotripter market to

coerce the buyer to purchase service for Dornier lithotripters,

the tied product." (emphasis added). This phrasing in effect

asked the jury to assume arguendo that there are separate markets

for lithotripters and lithotripter servicing, and then to

evaluate whether or not DMSI possessed sufficient economic power

in the lithotripter market to coerce buyers to purchase Dornier

lithotripter servicing. Thus, a reasonable explanation for the

jury's answer to interrogatory 9 is that although the jury was

unable to agree as to whether or not there were separate markets

for Dornier lithotripters and Dornier lithotripter servicing, the

jury assumed without deciding, for the purpose of answering

interrogatory 9, that there were separate markets, and then

concluded that even if this assumption were true, DMSI did not

possess sufficient economic power in the lithotripter market.10
Similarly, a reasonable explanation for the jury's answer to

interrogatory 10, which asked the jury whether TRS had proven

that DMSI forced buyers to purchase the tied product, is that the

jury assumed without deciding that there are in fact separate

markets for Dornier lithotripters and Dornier lithotripter

servicing, but that even if this assumption were true, TRS failed

10
TRS argues that the jury finding of insufficient economic power might have
related to the larger market of lithotripter sales and the servicing thereof, and
that such a finding said nothing about the crucial issue of market power in the
smaller market for the tying product, lithotripter sales. However, TRS's
argument is wholly without merit because interrogatory 9 is expressly addressed
to the smaller lithotripter market. Thus, the jury found that TRS had failed to
prove that "DMSI possessed sufficient economic power in the lithotripter market
to coerce the buyer to purchase service for Dornier lithotripters, the tied
product." (emphasis added).

16
to prove that DMSI forced buyers to purchase servicing.

As the above discussion indicates, there is a fair and

reasonable reading of the jury's answers that makes them

consistent; we therefore accept that view. See Gallick, 372 U.S.

at 119, 83 S. Ct. at 666; Aquachem, 699 F.2d at 521. Because the

jury concluded that DMSI did not possess the requisite economic

power in the tying product market (interrogatory 9) and because

the jury found that DMSI had not forced the buyer to purchase the

tied product (interrogatory 10), we conclude that Judge Bechtle

did not err by entering judgment for DMSI on the § 1 tying claim

based on the partially completed special verdict form. The

jury's unanimous findings that TRS failed to prove two elements

that are essential to a successful tying claim compel the grant

of judgment for DMSI on the § 1 tying claim, despite the jury's

inability to answer the other tying claim interrogatories.

Regardless of how the jury might have answered interrogatory 8,

or for that matter, interrogatories 11 and 12, the jury's

negative answers to interrogatories 9 and 10 conclusively

preclude TRS from prevailing on its tying claim. See Bristol
Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 190-91

(4th Cir. 1994) (affirming entry of judgment based on a partially

completed special verdict form); Audette v. Isaksen Fishing

Corp., 789 F.2d 956, 958 (1st Cir. 1986) (same); Skyway Aviation

Corp. v. Minneapolis, Northfield & Southern Ry. Co., 326 F.2d

701, 704 (8th Cir. 1964) (same).

17
 b) The Second Jury's Verdict

TRS also argues that the second jury's answers to the

special verdict interrogatories regarding TRS's § 2 claims are

inconsistent. TRS brought two claims under § 2 of the Sherman

Act: a monopolization claim and an attempt to monopolize claim.

A § 2 monopolization claim has two elements:

"(1) the possession of monopoly power in the relevant
market and (2) the willful acquisition or maintenance
of that power as distinguished from growth or
development as a consequence of a superior product,
business acumen, or historic accident."

Eastman Kodak, 504 U.S. at 481, 112 S. Ct. at 2089 (quoting
United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S. Ct.

1698, 1704 (1966)). See also Levine v. Central Florida Med.

Affiliates, Inc., 72 F.3d 1538, 1555 (11th Cir.), cert. denied,

117 S. Ct. 75 (1996); T. Harris Young & Assocs. v. Marquette

Elecs., 931 F.2d 816, 823 (11th Cir.), cert. denied, 502 U.S.

1013, 112 S. Ct. 658 (1991).

In order to prove an attempt to monopolize claim under § 2,

a plaintiff must show that (1) the defendant has engaged in

predatory or anticompetitive conduct, (2) the defendant engaged

in such conduct with the specific intent to monopolize, and (3)

there existed a dangerous probability that the defendant might

have achieved monopoly power. Spectrum Sports, Inc. v.

McQuillan, 506 U.S. 447, 456, 113 S. Ct. 884, 890-91 (1993); U.S.
Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th

Cir. 1993). Additionally, in evaluating a § 2 attempt to

18
monopolize claim, it is necessary to consider the relevant market

and the defendant's power in that market. Spectrum Sports, 506

U.S. at 459, 113 S. Ct. at 892; U.S. Anchor Mfg., 7 F.3d at 994;

T. Harris Young & Assocs., 931 F.2d at 823.

A defendant can escape § 2 liability if the defendant's

actions can be explained by legitimate business justifications.

See Eastman Kodak, 504 U.S. at 483 & n.32, 112 S. Ct. at 2091 &

n.32; Times-Picayune Pub. Co. v. United States, 345 U.S. 594,

627, 73 S. Ct. 872, 890 (1953).

In deciding TRS's § 2 claims, the second jury defined the

product market narrowly, as TRS proposed, to include only the

servicing of Dornier lithotripters (interrogatory 1). The jury

found that DMSI possessed monopoly power in the Dornier

lithotripter servicing market (interrogatory 2), but that DMSI

did not willfully maintain that monopoly power by anticompetitive

means or for anticompetitive purposes (interrogatory 3). The

jury further found that DMSI did not have the specific intent to

achieve a monopoly in the Dornier lithotripter servicing market

(interrogatory 5).

A fair and reasonable reading of the jury's verdict is that

the jury chose to credit some or all of DMSI's business

justifications, and consequently concluded that DMSI did not

willfully maintain its monopoly power and did not have the

specific intent to achieve a monopoly. Challenging this

conclusion, TRS argues that DMSI's only attempt to explain its
behavior was to state that it was responding to competition from

19
other original equipment manufacturers. TRS asserts that this

explanation was irrelevant because the jury found that the

relevant market was the servicing of Dornier lithotripters, and

other original equipment manufacturers did not service Dornier

lithotripters. We reject TRS's argument because its premise is

faulty.11 DMSI's attempts to explain its behavior were not

limited to the one explanation identified and challenged by TRS.

In addition to stating that it was responding to competition from

other original equipment manufacturers, DMSI also asserted, inter
alia, the following business justifications, which are not

rendered irrelevant by the jury's definition of the relevant

market: (1) concerns about its product liability exposure, (2) a

desire to guarantee quality service and parts availability to its

customers, (3) the need to protect its trade secrets and

proprietary information, (4) the decision not to assume the added

costs of becoming a parts wholesaler, (5) the past litigiousness

of, and prior disputes with, TRS, and (6) a decision not to help

its rival, TRS. We conclude that the jury could have chosen to

credit some or all of these asserted business justifications.12

11
We also doubt that the identified explanation is rendered irrelevant
because of the jury's definition of the relevant market. However, we need not
address that issue in light of the ample other business justifications discussed
below.

12
TRS has not challenged the legal viability of these business
justifications; we therefore need not consider any such argument. We do note,
however, that at least two of DMSI's asserted business justifications were
expressly recognized in Eastman Kodak. See 504 U.S. at 483-85, 112 S. Ct. at
2091-92 (explaining that triable issues of fact existed regarding Kodak's
asserted business justification defenses of providing quality service and
controlling inventory costs).

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 TRS argues that the second jury's answers to the

interrogatories are fundamentally inconsistent with the

conclusion that the jury chose to credit some or all of DMSI's

business justifications. To support this argument, TRS points to

the jury's failure to answer interrogatories 4 and 8, which asked

whether DMSI had proven a legitimate business justification.

However, the jury's failure to answer interrogatories 4 and 8 is

amply explained by an examination of the jury's instructions.

The special verdict form explicitly instructed the jurors that if

they answered interrogatory 3 "no," which they did, they should

skip interrogatory 4 and go to interrogatory 5. Similarly, the

special verdict form also instructed the jurors that if they

answered interrogatory 5 "no," which they did, they should skip

interrogatories 6 - 8 and go to interrogatory 9. Judge Bechtle

so instructed the jury when giving the jury instructions; and

when the special verdict was read in open court, the jury

foreperson indicated that the jury so understood the

instructions. In light of these instructions, it is not

inconsistent for the jury both to have credited some or all of

DMSI's business justifications and not to have answered

interrogatories 4 and 8. Cf. Gallick, 372 U.S. at 118-22, 83 S.
Ct. at 666-67 (focusing on the trial court's instructions to the

TRS does argue, as a factual matter, that DMSI's asserted business
justifications were pretextual and that TRS was therefore entitled to judgment
as a matter of law on these business justification defenses. Having reviewed the
record, we conclude that DMSI's business justification defenses presented factual
issues that were properly submitted to the jury for resolution. We thus reject
TRS's argument in this regard.

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jury in resolving a challenge to the consistency of a special

verdict). Because there is a reading of the jury's verdict which

makes the verdict consistent, we must adopt that view. Id. at

119, 83 S. Ct. at 666; Aquachem, 699 F.2d at 521. We thus

conclude that the second jury's verdict was not fatally

inconsistent.

Because the jury found that DMSI had not willfully

maintained its monopoly power by anticompetitive means or for

anticompetitive purposes, TRS failed to prove an essential

element of its § 2 monopoly claim. Similarly, because the jury

found that DMSI did not have the specific intent to achieve a

monopoly in the relevant market, TRS failed to prove an essential

element of its § 2 attempt to monopolize claim. These

dispositive jury findings compel us to conclude that Judge

Bechtle properly entered judgment for DMSI on the § 2 claims.

2. Sufficiency of the Evidence
TRS also argues that the second jury's verdict was against

the great weight of the evidence and that a new trial is

therefore warranted on the § 2 claims. After the second jury

trial, TRS moved for a new trial on this ground, and Judge

Bechtle denied TRS's motion. We review a district court's

disposition of a motion for a new trial for an abuse of

discretion. Insurance Co. of North America v. Valente, 933 F.2d

921, 923 (11th Cir. 1991); Blu-J, Inc. v. Kemper C.P.A. Group,
916 F.2d 637, 643 (11th Cir. 1990). This deferential standard of

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review is especially appropriate where, as here, the district

court denied the motion and left undisturbed the jury's

determinations. See Valente, 933 F.2d at 925. Our review of the

record in this case reveals that there was ample evidence to

support the second jury's determinations, and that Judge Bechtle

did not abuse his discretion by denying TRS's motion for a new

trial.

C. Costs
TRS contests the district court's award of $184,778.84 in

costs to DMSI under 28 U.S.C. §§ 1821 and 1920. This court will

not disturb a costs award in the absence of a clear abuse of

discretion. Cochran v. E.I. duPont de Nemours, 933 F.2d 1533,

1540 (11th Cir. 1991), cert. denied, 502 U.S. 1035, 112 S. Ct.

881 (1992). We conclude that the district court did not abuse

its discretion in awarding costs to DMSI, with the exception of

the award for videographer expenses. A portion of the $5,950.48

award to DMSI for videographer expenses appears to include

reimbursement for the cost of renting video equipment to play

videotaped depositions at the two trials. Such video equipment

rental expenses may not be awarded as costs. Morrison v.
Reichhold Chems., Inc., 97 F.3d 460, 465-66 (11th Cir. 1996).13

We therefore vacate the award of $5,950.48 for videographer

expenses, and we remand only that portion of the costs award to

13
We note that Morrison was decided after the costs award in this case was
calculated.

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the district court for a recalculation of such costs in that

category as are permissible. In all other respects, the costs

award is affirmed.

V. CONCLUSION

We affirm the district court's judgment for appellee DMSI on

appellant TRS's §§ 1 and 2 claims, and we affirm in part and

vacate and remand in part the district court's order awarding

DMSI costs.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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