PUBLISH
         
                           UNITED STATES COURT OF APPEALS
         Filed 11/29/96
                                   TENTH CIRCUIT
                            ___________________________
         
         ARLENE M. BROWN, M.D.; FAMILY  PRACTICE   
         ASSOCIATES, P.C.,                         
                                                   
         Plaintiffs-Appellees,                     
                                                         No. 95-2293
         v.                                        
                                                   
         PRESBYTERIAN HEALTHCARE SERVICES;  VALERIE
         MILLER; VICKIE WILLIAMS, D.O.,            
                                                   
         Defendants-Appellants,                    
                                                   
         and                                       
                                                   
         SIERRA BLANCA MEDICAL ASSOCIATES,  P.A.;  
         GARY JACKSON, D.O.,                       
                                                   
         Defendants.                               
         ------------------------------------      
         ARLENE M. BROWN, M.D., FAMILY  PRACTICE   
         ASSOCIATES, P.C.,                         
                                                   
         Plaintiffs-Appellants,                          No. 96-2013
                                                   
         v.                                        
                                                   
         PRESBYTERIAN HEALTHCARE SERVICES,         
         VALERIE MILLER, SIERRA BLANCA  MEDICAL    
         ASSOCIATES, P.A., VICKIE  WILLIAMS, D.O., 
         GARY JACKSON, D.O.,                       
                                                   
         Defendants-Appellees.                     
                                                   
                   ___________________________
                  ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF NEW MEXICO
                               (D.C. No. CIV-93-719-JP)
                            ___________________________
         
         Thomas C. Bird (David W. Peterson of Keleher & McLeod, P.A.; and Phil 
         Krehbiel of Krehbiel, Bannerman, Horn & Hisey, P.A., Albuquerque, New 
         Mexico, with him on the briefs) of Keleher & McLeod, P.A., Albuquerque, New 
         Mexico, for Plaintiffs-Appellees.
         
         Bruce Hall (Edward Ricco and Theresa W. Parrish with him on the briefs) of 
         Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, New Mexico, for 
         Defendants-Appellants.
                            ___________________________
         
         Before BRORBY, RONEY,(1) and LOGAN, Circuit Judges.
                            ___________________________
         
         BRORBY, Circuit Judge.
                            ___________________________
         

              Dr. Arlene Brown, a family physician, and her professional association, 

         Family Practice Associates, P.C. (hereinafter collectively referred to as "Dr. 

         Brown"), brought suit against Presbyterian Healthcare Services, Valerie Miller, 

         Vickie Williams, D.O., Sierra Blanca Medical Associates, P.A., and Gary 

         Jackson, D.O., seeking injunctive relief and damages for violation of Sections 1 

         and 2 of the Sherman Act, 15 U.S.C.  1 and 2 (1994), unreasonable restraint of 

         trade and unfair trade practices in violation of Section 57 of the New Mexico
         













         (1)       The Honorable Paul H. Roney, Senior United States Circuit Judge for the 
         Eleventh Circuit, sitting by designation.
         
         





         Annotated Statutes, bad faith breach of contract, intentional interference with 

         contract, defamation, and prima facie tort.  Dr. Brown's causes of action arose 

         from the revocation of her obstetrical hospital staff privileges by Lincoln County 

         Medical Center,(1) and from the hospital's subsequent report of this revocation to 

         the National Practitioner Data Bank under the category of "Incompetence/

         Malpractice/Negligence."  According to Dr. Brown, the defendants' 

         "anticompetitive motives" were at the heart of these actions.

         

              After a three week jury trial, the jury rendered a verdict in favor of Dr. 

         Brown on the defamation claim, tortious interference with contract claim, and 

         certain of her antitrust claims.  Thereafter, the district court set aside the jury's 

         awards of damages on the tortious interference with contract claim, and the jury's 

         award of punitive damages against Dr. Williams on the antitrust claims.  Dr. 

         Brown and Defendants Presbyterian Healthcare Services, Ms. Miller and Dr. 

         Williams appeal from the district court's order and amended judgment.

         






























         (1)       Defendant Presbyterian Healthcare Services, a nonprofit New Mexico 
         corporation, manages and operates Lincoln County Medical Center under an 
         agreement with Lincoln County, New Mexico.
         
         





         I.  Factual Background

              Dr. Arlene Brown, a Board-certified family physician, began practicing 

         family medicine in Ruidoso, New Mexico, in 1983.  Dr. Brown joined the medical 

         staff of Lincoln County Medical Center, and in 1992 she held clinical privileges 

         at the hospital in obstetrics and other areas.  Dr. Vickie Williams, a physician 

         specializing in obstetrics and gynecology in Ruidoso, is an economic competitor 

         of Dr. Brown.

         

              In early 1992, Dr. Williams participated in an informal peer review of three 

         patients treated by Dr. Brown.  Dr. Williams expressed concerns about the quality 

         of care reflected in the patients' charts and prepared typewritten comments on the 

         charts.  Valerie Miller, Lincoln County Medical Center's Administrator, then 

         referred the charts to specialists outside the hospital for review.  The outside 

         reviewing physicians' comments were submitted to Lincoln County Medical 

         Center's Executive Committee.  At a meeting of the Executive Committee on July 

         13, 1992, Dr. Brown agreed to a requirement to consult with an obstetrics 

         specialist in treating high-risk obstetrical patients.

         

              In February 1993, Valerie Miller instituted formal peer review proceedings 

         against Dr. Brown by sending a complaint to the Medical Staff Executive
         
         





         Committee, charging Dr. Brown with failure to abide by the consultation 

         agreement.  The Executive Committee instituted formal peer review proceedings 

         against Dr. Brown by appointing a panel of three physicians to conduct a hearing 

         on the complaint.  At the hearing in April 1993, the panel reviewed the charts of 

         two patients treated by Dr. Brown and heard testimony from Dr. Williams and Dr. 

         Brown.  The next day, the hearing panel issued its report, concluding Dr. Brown 

         breached her agreement to obtain appropriate consultation and recommending 

         removal of Dr. Brown's obstetrical privileges.  Thereafter, the Medical Executive 

         Committee approved the panel's recommendation and Lincoln County Medical 

         Center's Board of Trustees adopted the recommendation.(2)

         

              Following the Board of Trustees' disciplinary action, Lincoln County 

         Medical Center submitted a report to the National Practitioner Data Bank 

         concerning the revocation of Dr. Brown's obstetrical privileges.(3)  Glenda Perry, the hospital's medical staff coordinator, prepared the report in collaboration with 

         Ms. Miller.  One blank on the report called for insertion of an "Adverse Action 

         Classification Code."  Ms. Perry and Ms. Miller settled on the code entitled 

         "Incompetence/ Malpractice/ Negligence."

         

              When Dr. Brown received a copy of the hospital's data bank report, she 

         submitted a report of her own to the National Practitioner Data Bank stating 

         Lincoln County Medical Center never found her negligent, incompetent or guilty 

         of malpractice.  The National Practitioner Data Bank then notified Lincoln 

         County Medical Center of Dr. Brown's objection to the report, and provided the 

         hospital with an opportunity to revise its report.  However, the hospital elected 

         not to amend the data bank report.

         

              Although unrelated to the revocation of Dr. Brown's obstetrical privileges, 

         in 1992 a family practice physician named Dr. Mark Reib contacted a 

         Presbyterian Healthcare Services recruiter to discuss family medicine practice 

         opportunities in Ruidoso, New Mexico.  When Dr. Reib expressed an interest in
         (2)       Dr. Brown subsequently appealed the Board of Trustees' decision. 
         However, on May 20, 1993, the Board's Appeal Panel affirmed the Board of 
         Trustees' decision, with one minor modification.  The modification allowed Dr. 
         Brown to reapply for privileges after fulfilling certain training requirements.
         (3)       The National Practitioner Data Bank is an organization created under the 
         Health Care Quality Improvement Act to collect information on physicians, 
         including reports of adverse peer review actions.  See 45 C.F.R. Part 60 (1995). 
         "Each health care entity must report to the Board of Medical Examiners ... [a]ny 
         professional review action that adversely affects the clinical privileges of aphysician."  45 C.F.R. 60.9(a).  The Board of Medical Examiners must in turn 
         report this information to the National Practitioner Data Bank.  45 C.F.R. 
         60.9(b).
         
         





         joining Dr. Brown's practice, the recruiter informed Dr. Reib the hospital would 

         only offer him a financial recruitment package if he were to go to work for 

         Lincoln County Medical Center or in direct competition with Dr. Brown.  Dr. 

         Reib chose not to join Dr. Brown's medical practice.

         

         II.  Trial and Subsequent Procedural History

              In March 1995, the trial of this action commenced before a jury.  Almost 

         three weeks later, the jury returned a special verdict in Dr. Brown's favor on her 

         defamation claim, intentional interference with contract claim, and on certain of 

         her antitrust claims.(4)  The district court entered judgment in accordance with the 

         jury's findings, trebling, as required by law,(5) the antitrust damages against Ms. 

         Miller and Dr. Williams.  Thereafter, pursuant to Fed. R. Civ. P. 50(b) and 59(c), 

         the defendants filed a motion for judgment as a matter of law or to alter or amend the judgment or for a new trial.  In a comprehensive and detailed "Memorandum 

         Opinion and Order," the district court set aside the jury's award of compensatory 

         and punitive damages against Presbyterian Healthcare Services on the intentional 

         interference with contract claim, and the jury's award of punitive damages against 

         Dr. Williams on the antitrust claim.(6)  The district court rejected all of the 

         defendants' remaining arguments and entered an amended judgment in conformity 

         with its opinion.

         

              Dr. Brown appeals the district court's amended judgment, raising two 

         issues:  (1) whether the district court erred in vacating the compensatory and 

         punitive damages awards for tortious interference with contract and (2) whether 

         the district court erred in vacating the punitive damages award against Dr. 

         Williams.  The appeal of Presbyterian Healthcare Services, Ms. Miller and Dr. 

         Williams raises four issues:  (1) whether the district court erred in determining 

         the defendants were not immune as a matter of law from damages resulting from 

         the revocation of Dr. Brown's obstetrical privileges; (2) whether the district court 

         erred in determining the defendants were not immune as a matter of law from 

         damages resulting from the data bank report; (3) whether the district court erred
         



         (4)       Specifically, the jury entered the following awards of damages:  (1) 
         $112,000.00 against Ms. Miller and Dr. Williams on the antitrust claims; (2) 
         $30,000.00 against Ms. Miller on the defamation claim; (3) $7,500.00 in 
         compensatory damages and $75,000.00 in punitive damages against Presbyterian 
         Healthcare Services on the intentional interference with contract claim; (4) 
         $75,000.00 in punitive damages against Ms. Miller on the antitrust and 
         defamation claims; and (5) $75,000.00 in punitive damages against Dr. Williams 
         on the antitrust claims.  The jury found in favor of defendants Dr. Jackson and 
         Sierra Blanca Medical Associates with respect to all claims against them.
         (5)       See 15 U.S.C.  15(a) (1994).
         (6)       The court set aside the former pursuant to Fed. R. Civ. P. 50(b), and the 
         latter pursuant to Fed. R. Civ. P. 59(e).
         
         





         in denying the defendants' motion for judgment as a matter of law on the merits of 

         Dr. Brown's antitrust claims; and (4) whether the district court erred in denying 

         the defendants' motion for judgment as a matter of law on the merits of Dr. 

         Brown's defamation claim.  After thoroughly reviewing the parties' briefs, the 

         district court's Memorandum Opinion and Order, and all relevant statutes and case 

         law, we conclude the district court erred in setting aside the jury's awards of 

         damages on Dr. Brown's intentional interference with contract claim.  However, 

         with respect to the remaining issues raised by the parties on appeal, we find the 

         district court's rulings were proper and in accordance with law.

         

         III.  Dr. Brown's Appeal

              Dr. Brown first contends the district court erred in vacating as a matter of 

         law the jury's award of compensatory and punitive damages against Presbyterian 

         Healthcare Services on the tortious interference with contract claim.  The Court 

         reviews the district court's order granting judgment as a matter of law de novo, 

         applying the same standard as the district court.  Thompson v. State Farm Fire & 

         Casualty Co., 34 F.3d 932, 941 (10th Cir. 1994).  The legal standard for granting 

         judgment as a matter of law is identical to the standard for granting summary 

         judgment under Fed. R. Civ. P. 56.  Pendleton v. Conoco, Inc., 23 F.3d 281, 286 

         (10th Cir. 1994).  When applying this standard, a court is to examine the factual
         
         





         record and reasonable inferences therefrom in the light most favorable to the 

         party opposing the motion for summary judgment or judgment as a matter of law. 

         Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995) (citing Applied 

         Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 

         1990).  Judgment as a matter of law should be affirmed only if the evidence is 

         insufficient to permit a jury to properly return a verdict in the opposing party's 

         favor.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1985).

         

              In the present case, the jury found Presbyterian Healthcare Services liable 

         for tortious interference with contract and awarded Dr. Brown $7,500.00 in 

         compensatory damages and $75,000.00 in punitive damages on this claim.  In its 

         Memorandum Opinion and Order, however, the district court vacated the award of 

         compensatory damages, concluding Dr. Brown had failed to present adequate 

         proof of actual damages on this claim.  Since the punitive damages award for 

         tortious interference "was connected only to the jury's finding that [Presbyterian 

         Healthcare Services] intentionally interfered with plaintiffs' contractual relations," 

         the district court also set aside the $75,000.00 punitive damages award.

         

              Dr. Brown claims the district court erred in vacating the awards of damages 

         for tortious interference with contract because the record contains sufficient
         
         





         evidence to support the jury's awards.  Presbyterian Healthcare Services, on the 

         other hand, contends Dr. Brown did not establish damages for tortious 

         interference with "reasonable certainty" and therefore, the district court properly 

         set aside the jury's awards of damages on this claim.  As noted by the district 

         court, damages that are based on conjecture, speculation, or guesswork are not 

         recoverable.  Smith v. Babcock Poultry Farms, Inc., 469 F.2d 456, 459 (10th Cir. 

         1972) (citing United States v. Griffith, Gornall & Carman, Inc., 210 F.2d 11 (10th 

         Cir. 1954)).  However, the fact damages are difficult to ascertain will not 

         necessarily bar recovery.  Id.  Under New Mexico law, which is applicable in the 

         present case, "[t]he lack of certainty that will prevent a recovery is uncertainty as 

         to the fact of damages, not as to the amount."  Camino Real Mobile Home Park 

         Partnership v. Wolfe, 891 P.2d 1190, 1201 (N.M. 1995).  Damages need not be 

         computed with "mathematical certainty" and recovery will not be denied where 

         the evidence "afford[s] a reasonable basis for estimating [plaintiff's] loss." 

         Archuleta v. Jacquez, 704 P.2d 1130, 1134 (N.M. Ct. App. 1985).  In reviewing a 

         jury's award of damages, the court should sustain the award unless it is clearly 

         erroneous or there is no evidence to support the award.  Hudson v. Smith, 618 

         F.2d 642, 646 (10th Cir. 1980).

         


         





              Here, Dr. Brown's alleged damages for intentional interference with 

         contract stem from Presbyterian Healthcare Services' interference with Dr. 

         Brown's attempts to hire Dr. Mark Reib.  In an effort to prove the hospital's 

         interference with Dr. Reib caused her damages, Dr. Brown presented testimony at 

         trial from Dr. Michael McDonald, an economic expert.  Dr. McDonald testified 

         regarding the additional patient receipts Dr. Steven Frey,(7) a family practitioner 

         who joined Dr. Brown's practice in May 1992, brought in to Dr. Brown's practice 

         in 1992 and 1993.  According to Dr. McDonald, Dr. Frey's patient receipts 

         averaged around $6,000.00 per month in 1992, and almost $15,000.00 per month 

         in 1993.  Dr. McDonald also testified concerning the additional costs Dr. Brown 

         would have incurred in obtaining additional patient revenues.  Based on Dr. 

         Brown's 1993 financial statements, Dr. McDonald determined Dr. Brown's costs 

         would increase by 34.1 cents for every dollar of additional receipts.  Hence, Dr. 

         McDonald concluded "65.9 percent of any increment in patient receipts will go to 

         the bottom line, the net income of [Dr. Brown's practice]."

          

              Dr. George Rhodes, Jr., an economist for the defense, also testified 

         concerning the additional revenue Dr. Frey brought in to Dr. Brown's practice in 

         1992 and 1993.  Dr. Rhodes testified the hiring of Dr. Frey  increased the revenue 

         to Dr. Brown's practice by $15,000.00 to $20,000.00 per month in 1993. 

         Additionally, Dr. Rhodes firmly concluded the addition of another physician to 

         Dr. Brown's practice would result in an increase in the practice's revenue.

         

              From the above testimony, it is clear Presbyterian Healthcare Services' 

         interference with the hiring of Dr. Reib caused financial harm to Dr. Brown's 

         practice.  Although the testimony of Dr. McDonald and Dr. Rhodes does not 

         provide a precise model for determining the extent of Dr. Brown's damages, it 

         does provide a reasonable basis for estimating the plaintiff's loss.  From the 

         testimony regarding the amount of additional revenue Dr. Frey brought into Dr. 

         Brown's practice, the jury could have reasonably determined the hiring of Dr. 

         Reib would have resulted in a similar increase in revenue. Such a determination 

         finds support in New Mexico law (see, e.g., Ranchers Exploration & Dev. Corp. 

         v. Miles, 696 P.2d 475, 477 (N.M. 1985) (historic profits of established business 

         (7)       The court notes the credentials and background of Dr. Frey and Dr. Reib 
         are strikingly similar.  Dr. Frey completed a family practice residency in 1983, 
         while Dr. Reib completed a family practice residency in 1984.  Following 
         completion of their respective residency programs, Dr. Frey and Dr. Reib each 
         spent three to four years in the Navy.  Apparently, the two doctors were stationed 
         together on Guam and became friends.  Dr. Frey and Dr. Reib each entered a 
         private family medicine practice after their respective stints in the Navy.
         
         





         may be considered in determining lost profits) (citing J.R. Watkins Co. v. Eaker, 

         244 P.2d 540, 544 (N.M. 1952)), and is particularly sound in light of the similar 

         training and professional backgrounds of Dr. Frey and Dr. Reib, and the temporal proximity of the period in which Dr. Frey began his employment with Dr. Brown 

         to the period in which Presbyterian Healthcare Services interfered with the hiring 

         of Dr. Reib.  Finally, from Dr. McDonald's testimony concerning the amount of 

         additional costs Dr. Brown would have incurred from increased patient revenues, 

         the jury could have reached a rational conclusion as to the amount of lost profits 

         Dr. Brown's practice incurred due to Presbyterian Healthcare Services' tortious 

         interference with contract.

         

              As explained in Restatement (Second) of Torts, once an injured person 

         establishes his business or transaction would have been profitable,

              it is not fatal to the recovery of substantial damages that he is unable 
              to prove with definiteness the amount of the profits he would have 
              made or the amount of harm that the defendant has caused.  It is only 
              essential that he present such evidence as might reasonably be 
              expected to be available under the circumstances.
         
         Restatement (Second) of Torts  912(d), at 483 (1979).  Given the circumstances 

         of this case, we believe the evidence concerning the increase in revenues resulting 

         from the recruitment of Dr. Frey was a reasonable method of establishing 

         damages.  This is especially so in light of the fact that the certainty of damages 

         "was 'made hypothetical by the very wrong' of the defendant."  See Restatement 

         (Second) of Torts  774A comt. c (1979).  We find the jury's award of
         
         





         compensatory damages to be reasonably based upon sufficient evidence in the 

         record, and we therefore reverse the district court's order vacating this award.

         

              Having reversed the district court's order vacating the jury's award of 

         compensatory damages for tortious interference with contract, we must next 

         determine whether its order setting aside the jury's award of punitive damages on 

         this claim should stand.  The district court set aside the punitive damages award 

         solely because it was dependent on the jury's award of compensatory damages on 

         the tortious interference claim.  Since we have reinstated the compensatory 

         damages award, the punitive damages award likewise must be reinstated.  We 

         therefore reverse the district court's order vacating the jury's award of punitive 

         damages on the tortious interference with contract claim.

         

              Dr. Brown also contends the district court erred in setting aside the jury's 

         award of punitive damages against Dr. Williams on the antitrust claim.  The 

         district court did so pursuant to Fed. R. Civ. P. 59(e), which ruling we review for 

         abuse of discretion.  Webber v. Mefford, 43 F.3d 1340, 1345 (10th Cir. 1994). 

         Under the abuse of discretion standard,

              a trial court's decision will not be disturbed unless the appellate court 
              has a definite and firm conviction that the lower court made a clear 
              error of judgment or exceeded the bounds of permissible choice in
         
         





              the circumstances.  When we apply the "abuse of discretion" 
              standard, we defer to the trial court's judgment because of its first-
              hand ability to view the witness or evidence and assess credibility 
              and probative value.
         
         Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994) (quoting McEwen v. City of 

         Norman, 926 F.2d 1539, 1553-54 (10th Cir. 1991)).  In this circuit, abuse of 

         discretion is defined as "'an arbitrary, capricious, whimsical, or manifestly 

         unreasonable judgment.'"  FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir. 

         1994) (quoting United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir. 

         1991)).

         

              In the present case, the jury found Dr. Williams liable on the antitrust 

         conspiracy claims and awarded punitive damages against her in the amount of 

         $75,000.00.  Thereafter, in accordance with 15 U.S.C.  15(a) (1994),(8) the district 

         court entered an award of treble damages against Dr. Williams on the antitrust 

         claims.  However, the district court vacated the jury's award of punitive damages 

         against Dr. Williams, noting such an award would be duplicative because the 

         treble damages provision already embodies punitive damages.

         



























         (8)       15 U.S.C.  15(a) provides in pertinent part, "any person who shall be 
         injured ... by reason of anything forbidden in the antitrust laws ... shall recover 
         threefold the damages by him sustained."
         
         





              Dr. Brown now contends the district court erroneously set aside the 

         punitive damages award because "[t]he Defendants proposed a verdict form 

         calling for punitive damages for antitrust violations."  According to Dr. Brown, 

         the defendants "invited" the jury to erroneously award punitive damages against 

         Dr. Williams, and consequently, the defendants are now precluded from seeking 

         judicial review of this "invited error."  As an initial matter, the court notes it is 

         clearly improper to allow a plaintiff to recover punitive damages along with 

         trebled damages on an antitrust claim.  "Punitive damages beyond the statutory 

         trebled damages cannot be awarded for an antitrust violation.  The enhancement 

         of damages in an antitrust case is the damages trebled."  McDonald v. Johnson & 

         Johnson, 722 F.2d 1370, 1381 (8th Cir. 1983) (citing Clark Oil Co. v. Phillips 

         Petroleum Co., 148 F.2d 580, 582 (8th Cir.) (treble damage provision 

         encompasses both punitive and compensatory damages), cert. denied, 326 U.S. 

         734 (1945)).  See also Spence v. Southeastern Alaska Pilots' Ass'n, 789 F. Supp. 

         1014, 1029 (D. Alaska 1992) ("[p]unitive damages are not available on federal 

         anti-trust claims").

         

              Notwithstanding the patent impropriety of allowing a plaintiff to recover 

         punitive damages on an antitrust claim, Dr. Brown argues Dr. Williams' failure to 

         object to the jury instructions and verdict sheet that permitted the recovery of
         
         





         such damages serves to preclude subsequent judicial review of the jury's award of 

         punitive damages.  As Dr. Brown points out, an appellant may not generally 

         complain on appeal of errors he has himself induced or invited.  See, e.g., 

         Meredith v. Beech Aircraft Corp., 18 F.3d 890 (10th Cir. 1994) (citing Gundy v. 

         United States, 728 F.2d 484, 488 (10th Cir. 1984)).  However, where the jury has 

         returned a special verdict, the trial judge is obligated to apply appropriate legal 

         principles to the facts found by the jury.  Thedorf v. Lipsey, 237 F.2d 190, 193 

         (7th Cir. 1956).  "[I]t is for the court to decide upon the jury's answers ... what 

         the resulting legal obligation is."  Id.  Moreover, in determining whether to grant 

         or deny a Rule 59(e) motion to alter or amend the judgment, the district court is 

         vested with considerable discretion.  Edward H. Bohlin Co. v. Banning Co., 6 

         F.3d 350, 355 (5th Cir. 1993) (citing Lavespere v. Niagara Machine & Tool 

         Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990)).  The district court may grant a 

         motion to alter or amend the judgment where it is necessary to correct manifest 

         errors of law.  Charles Alan Wright et al., Federal Practice and Procedure:  Civil 

         2d  2810.1, at 124-25 (1995).

         

              In the case at bar, the jury instructions and special verdict form were 

         exhaustive and labyrinthine.  The jury's responsibilities included determining the 

         liability of six defendants for as many as seven distinct claims.  The special
         
         





         verdict form alone was twelve pages and contained more than thirty individual 

         questions.  Given the numerous parties, claims and overall complexity of the case, 

         we do not believe the trial judge abused his discretion in vacating the jury's award 

         of punitive damages against Dr. Williams.  As stated in the district court's 

         Memorandum Opinion and Order, "it would have been impractical and confusing 

         to the jury to have drafted the special verdict to include all of the combinations of 

         circumstances under which punitive damages could or could not have been 

         awarded against various defendants."  The district court's decision to vacate the 

         award of punitive damages served to correct a manifest error of law and did not 

         prejudice Dr. Brown.  Under these circumstances, we are not left with "a definite 

         and firm conviction that the lower court made a clear error of judgment or 

         exceeded the bounds of permissible choice in the circumstances."  Hence, we 

         affirm the district court's order vacating the award of punitive damages against 

         Dr. Williams.

         

         IV.  Appeal of Presbyterian Healthcare Services, Dr. Williams and Ms. 

         Miller

              Presbyterian Healthcare Services, Dr. Williams and Ms. Miller contend the 

         district court erred in:  (1) failing to find the defendants immune, as a matter of 

         law, from antitrust and defamation damages under the Health Care Quality
         
         





         Improvement Act and (2) failing to grant judgment as a matter of law in the 

         defendants' favor on the merits of Dr. Brown's antitrust and defamation claims. 

         As stated, we review the denial of a motion for judgment as a matter of law de 

         novo, applying the same legal standard used by the district court.  Thompson, 34 

         F.3d at 941.  Judgment as a matter of law should only be granted if the evidence, 

         when viewed in the light most favorable to the party opposing the motion, could 

         not support a verdict in that party's favor.  Anderson, 477 U.S. at 257.

         

              First, the defendants argue the trial court erred in failing to find them 

         immune, as a matter of law, from damages resulting from the revocation of Dr. 

         Brown's obstetrical privileges, under the Health Care Quality Improvement Act. 

         In 1986, Congress adopted the Health Care Quality Improvement Act in response 

         to "[t]he increasing occurrence of medical malpractice and the need to improve 

         the quality of medical care."  See  42 U.S.C.  11101(1), (2) (1994).  Recognizing 

         "[t]he threat of private money damage liability ... unreasonably discourages 

         physicians from participating in effective professional peer review," see 42 

         U.S.C.  11101(4), Congress deemed it essential for the legislation to provide 

         qualified immunity from damages actions for hospitals, doctors and others who 

         participate in professional peer review proceedings.  Imperial v. Suburban Hosp. 

         Ass'n, Inc., 37 F.3d 1026, 1028 (4th Cir. 1994).  Thus, under the Health Care
         
         





         Quality Improvement Act, a peer review participant is immune from private 

         damage claims stemming from the peer review action provided the review action 

         is taken:

              (1) in the reasonable belief that the action was in the furtherance of 
              quality health care,
         
              (2) after a reasonable effort to obtain the facts of the matter,
         
              (3) after adequate notice and hearing procedures are afforded to the 
              physician involved or after such other procedures as are fair to the 
              physician under the circumstances, and
         
              (4) in the reasonable belief that the action was warranted by the facts 
              known after such reasonable effort to obtain facts and after meeting 
              the requirement of paragraph (3).
         
         42 U.S.C.  11111(a)(1), 11112(a) (1994).  A peer review action is presumed to 

         have met the preceding standards necessary for immunity.  42 U.S.C.  11112. 

         However, if a plaintiff challenging a peer review action proves, by a 

         preponderance of the evidence, any one of the four requirements was not 

         satisfied, the peer review body is no longer afforded immunity from damages 

         under the Health Care Quality Improvement Act.  42 U.S.C.  11112(a); see, e.g., 

         Islami v. Covenant Medical Center, Inc., 822 F. Supp. 1361, 1377-78 (N.D. Iowa 

         1992) (review participants not entitled to immunity as matter of law because 

         plaintiff presented sufficient evidence for a jury to conclude review participants 

         did not provide plaintiff with fair and adequate process).  Courts apply an
         
         





         objective standard in determining whether a peer review action was reasonable 

         under 42 U.S.C. 11112(a).  See, e.g., Mathews v. Lancaster Gen'l Hosp., 87 F.3d 

         624, 635 (3d Cir. 1996); Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992).

         

              In the present case, the formal peer review hearing was held to determine 

         whether Dr. Brown had agreed to seek consultation for high-risk obstetrical 

         patients and if so, whether Dr. Brown had breached this agreement.  During the 

         hearing, Ms. Miller outlined the hospital's position, and the Panel reviewed the 

         charts of two patients Dr. Brown treated.  Both Dr. Williams and Dr. Brown 

         testified at the hearing.  Following approximately two hours of deliberations, the 

         review panel concluded Dr. Brown had breached her agreement to obtain 

         appropriate consultation and recommended removal of Dr. Brown's privileges to 

         practice obstetrics at Lincoln County Medical Center.

         

              At trial, Dr. Brown presented sufficient evidence for a reasonable jury to 

         find, by a preponderance of the evidence, the peer review action was not taken 

         after a "reasonable effort to obtain the facts of the matter."  Dr. Norman Lindley, 

         a physician specializing in obstetrics and gynecology, testified on behalf of Dr. 

         Brown.  Dr. Lindley reviewed the charts for every obstetrics patient Dr. Brown 

         treated for the six-month period preceding her revocation and concluded Dr.
         
         





         Brown recognized high-risk obstetrics patients and obtained appropriate 

         consultation when necessary.  Dr. Lindley also testified the peer review panel's 

         review of only two charts prior to revoking Dr. Brown's obstetrical privileges was 

         unreasonably narrow and did not provide a reasonable basis for concluding Dr. 

         Brown posed a threat to patient safety.

         

              Thus, from Dr. Lindley's testimony, a reasonable jury could have found the 

         panel's review to be unreasonably restrictive and not taken after a "reasonable 

         effort to obtain the facts."  Such a finding removes the defendants from the 

         qualified immunity provided by the Health Care Quality Improvement Act. 

         Hence, we conclude the district court did not err in failing to find Presbyterian 

         Healthcare Services, Ms. Miller and Dr. Williams immune, as a matter of law, 

         from damages stemming from the revocation of Dr. Brown's obstetrical 

         privileges.(9)

          

              Next, Ms. Miller argues the district court erred in failing to find her 

         immune, as a matter of law, from damages on Dr. Brown's defamation claim.  The 

         Health Care Quality Improvement Act confers immunity on any person who 

         makes a report to the National Practitioner Data Bank "without knowledge of the 

         falsity of the information contained in the report."  42 U.S.C.  11137(c) (1994). 

         Thus, immunity for reporting exists as a matter of law unless there is sufficient 

         evidence for a jury to conclude the report was false and the reporting party knew 

         it was false.

         

              Although the data bank report in this case listed the reason for Lincoln 

         County Medical Center's disciplinary action as "negligence/incompetence/mal-

         practice," the record reveals neither the review panel nor the hospital's Board of 

         Trustees ever found Dr. Brown negligent, incompetent or guilty of malpractice.
         (9)       The defendants appear to argue the testimony of Dr. Lindley is irrelevant 
         because the defendants presented evidence from a number of doctors who testified 
         the review panel's actions satisfied the requirements of 42 U.S.C.  11112(a). 
         According to the defendants, "a difference of opinion among experts" does not 
         raise an issue as to the objective reasonableness of the inquiry.  We are not 
         persuaded by the defendant's view.  Under its theory, a peer review participant 
         would be absolutely immune from liability for its actions so long as it produced a 
         single expert to testify the requirements of 42 U.S.C.  11112(a) were satisfied. 
         This would be in direct contravention to Congress' intention to provide "qualified 
         immunity."  Moreover, to remove a plaintiff's claims from the jury simply because 
         "a difference of opinion among experts" exists would abrogate the jury'sresponsibility to weigh the evidence and determine the credibility of witnesses. 
         See, e.g., Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 930 
         (10th Cir.) ("entire jury system is anchored to the jurors' determination of 
         credibility of witnesses and the weight to be given their testimony"), cert. denied, 
         469 U.S. 853 (1984).  Thus, in determining whether a peer review participant is 
         immune under the Health Care Quality Improvement Act, the proper inquiry for the 
         court is whether Dr. Brown has provided sufficient evidence to permit a jury to find she 
         has overcome, by a preponderance of the evidence, any of the four statutory elements 
         required for immunity under 42 U.S.C.  11112(a).  See, e.g., Austin, 979 F.2d at 734. 
         In this case, we believe Dr. Brown presented sufficient evidence to overcome the 
         presumption and allow the issue to be decided by the jury.
         
         





         Rather, the review panel merely determined Dr. Brown breached her agreement to 

         obtain appropriate consultation.  Although the panel members were "concerned 

         that [Dr. Brown] does not recognize complicated obstetrics or is reluctant to refer 

         such cases," the panel "felt that Dr. Brown was competent to do uncomplicated 

         obstetrics."  Ms. Miller, who was involved in the preparation and review of the 

         report, received a copy of the committee's written findings and was fully aware of 

         the committee's conclusions and the Board of Trustee's action against Dr. Brown. 

         Thus, the record contains sufficient evidence from which a reasonable jury could 

         have concluded the data bank report was false and Ms. Miller knew of its falsity. 

         We therefore affirm the district court's determination Ms. Miller is not immune 

         from defamation damages, as a matter of law, under the Health Care Quality 

         Improvement Act.

         

              Presbyterian Healthcare Services, Ms. Miller and Dr. Williams also claim 

         the district court erred in failing to enter judgment as a matter of law in their 

         favor on the merits of Dr. Brown's antitrust claims.  The jury in this case 

         determined Ms. Miller and Dr. Williams joined in a conspiracy to exclude Dr. 

         Brown from competing in the Ruidoso, New Mexico, market.  However, the jury 

         did not conclude Presbyterian Healthcare Services participated in the conspiracy. 

         Since the decision to revoke Dr. Brown's medical privileges was made by an
         
         





         independent, nonconspirator (Lincoln County Medical Center's Board of 

         Trustees), the defendants contend Ms. Miller and Dr. Williams could not have 

         proximately caused the revocation and, therefore, cannot be held liable for Dr. 

         Brown's injuries.

         

              A private plaintiff seeking to invoke the antitrust laws must show the 

         defendants caused her alleged injury.  Todorov v. DCH HealthCare Authority, 921 

         F.2d 1438, 1459 (11th Cir. 1991) (citing Cargill, Inc. v. Monfort of Colo., Inc., 

         479 U.S. 104 (1986)).  The key question in determining the defendants' ability to 

         "cause a restraint [of trade] to be imposed" is whether the defendants had control 

         over the decisionmaking process, or the ability to coerce or unduly influence the 

         decision.  See Oksanen v. Page Memorial Hosp., 945 F.2d 696, 705-06 (4th Cir. 

         1991) (medical staff had no control where Board of Trustees requested and 

         encouraged medical staff to take corrective action), cert. denied, 502 U.S. 1074 

         (1992); Weiss v. York Hosp., 745 F.2d 786, 819 n.57 (3d Cir. 1984) (given 

         dominant role of medical staff and limited nature of review, evidence supported 

         jury's finding medical staff violated antitrust laws), cert. denied, 470 U.S. 1060 

         (1985); Islami v. Covenant Medical Center, Inc., 822 F. Supp. 1361, 1383 (N.D. 

         Iowa 1992) (medical staff had ability to coerce or unduly influence decision). 

         Where a reasonable jury could conclude from the evidence that the defendants
         
         





         controlled, coerced, or unduly influenced the decision that resulted in a restraint 

         of trade, a genuine issue of material fact exists on the issue of causation. 

         Oksanen, 945 F.2d at 705-06; Weiss, 745 F.2d at 819 n.57; Islami, 822 F. Supp. at 

         1383.

         

              Here, neither Ms. Miller nor Dr. Williams voted on the decision to revoke 

         Dr. Brown's obstetrical privileges.  However, the record reveals both Ms. Miller 

         and Dr. Williams played an influential role in bringing about the revocation.  The 

         jury heard evidence at trial which tended to show Dr. Williams, a competitor of 

         Dr. Brown, and Teresa McCallum, a nurse who had made anti-semitic remarks 

         about Dr. Brown in Dr. Williams' presence, were responsible for identifying all 

         five of Dr. Brown's charts that were reviewed during the two peer review 

         proceedings.  Dr. Williams authored the criticisms that Ms. Miller sent to the 

         outside reviewing physicians, and she testified against Dr. Brown at the 

         revocation peer review proceeding.  Ms. Miller asked Dr. Williams to prepare the 

         summary of criticisms that were attached to the cases sent to the outside 

         reviewing physicians even though Dr. Brown had complained to Ms. Miller about 

         a personality conflict between Dr. Williams and Dr. Brown.  Furthermore, Ms. 

         Miller instituted the formal peer review proceedings against Dr. Brown by 

         sending a complaint to the Medical Staff Executive Committee, she presented the
         
         





         "hospital's position" at the formal review proceeding, and she served on the Board 

         of Trustees.

         

              Thus, the record is replete with evidence tending to show Ms. Miller and 

         Dr. Williams were the catalysts behind, or played a crucial role in, every step of 

         the proceedings against Dr. Brown.  Viewing the entire evidence in the light most 

         favorable to Dr. Brown, we believe a reasonable jury could have concluded Dr. 

         Williams and Dr. Brown controlled, coerced or unduly influenced the 

         decisionmaking process.  We therefore affirm the district court's denial of the 

         defendants' motion for judgment as a matter of law on the merits of Dr. Brown's 

         antitrust claims.

         

              Finally, Ms. Miller argues the district court erred in failing to grant 

         judgment as a matter of law in her favor on the merits of Dr. Brown's defamation 

         claim.  According to Ms. Miller, Dr. Brown failed to establish the data bank 

         report caused actual injury to her reputation.  Under New Mexico law, a plaintiff 

         must prove actual injury to state a claim for defamation; damages cannot be 

         presumed in a defamation action.  Newberry v. Allied Stores, Inc., 773 P.2d 1231, 

         1236 (N.M. 1989) (citing Poorbaugh v. Mullen, 653 P.2d 511, 520 (N.M. Ct. 

         App.), cert. denied, 653 P.2d 878 (N.M. 1982)).  However, actual injury is not
         
         





         limited to out-of-pocket loss.  Id.; see also Cowan v. Powell, 856 P.2d 251, 253 

         (N.M. Ct. App. 1993).  As stated by the New Mexico Supreme Court in Newberry, 

         "the more customary types of actual harm inflicted by defamatory falsehood 

         include impairment of reputation and standing in the community, personal 

         humiliation, and mental anguish and suffering."  773 P.2d at 1236 (quoting 

         Marchiondo v. Brown, 649 P.2d 462, 470 (N.M. 1982)).

         

              In the case at bar, the record reveals Dr. Brown sought to obtain obstetrical 

         privileges at Gerald Champion Memorial Hospital after the revocation by Lincoln 

         County Medical Center.  Pursuant to federal regulations, every hospital that 

         receives an application for clinical privileges must check with the National 

         Practitioner Data Bank for reports on the applicant.  45 C.F.R.  60.10(a)(1) 

         (1995).  Thus, as part of the application process at Gerald Champion Memorial 

         Hospital, Dr. Brown had to undergo a hearing and explain the reason Lincoln 

         County Medical Center revoked her obstetrical privileges.  As the district court 

         found, we believe sufficient evidence exists for a jury to have concluded Dr. 

         Brown suffered impairment of reputation and standing in the community or 

         personal humiliation when she had to explain why Lincoln County Medical 

         Center revoked her privileges based on "negligence/incompetence/malpractice." 

         Although Gerald Champion Memorial Hospital ultimately granted obstetrical
         
         





         privileges to Dr. Brown, "an opportunity for rebuttal seldom suffices to undo 

         harm [sic] of defamatory falsehood."  See Gertz v. Robert Welch, Inc., 418 U.S. 

         323, 344 n.9 (1974).  We therefore affirm the district court's decision to deny the 

         defendants' motion for judgment as a matter of law on the merits of Dr. Brown's 

         defamation claim.

         

         V.  Conclusion 

              For the reasons stated above, we REVERSE the district court's order and 

         judgment vacating the jury's award of compensatory and punitive damages on Dr. 

         Brown's tortious interference with contract claim.  We AFFIRM the judgment of 

         the district court in all other respects.