Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance

WILL, Senior District Judge,

concurring in the judgment.

I concur with the court’s opinion because I read it as consistent with the traditional standards for granting or denying a preliminary injunction. Recently, in Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429 (7th Cir.1986), this court reaffirmed the continuing viability of the traditional standards, despite the wide-ranging revisions suggested in dictum by the opinions in Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir.1984) and American Hospital Supply Corp. v. Hospital Products Limited, 780 F.2d 589 (7th Cir.1986). In those cases, the court, while professing merely to review the law of preliminary injunctions, devised a novel “sliding scale” method of analysis. While intellectually diverting, the formula — and the heightened standard of appellate review which accompanied it — have been criticized as virtually abolishing the customary discretion of the trial judge in deciding preliminary injunction motions. See American Hospital, 780 F.2d at 608 (Swygert, *1347J., dissenting) (“in this circuit, despite vigorous protestations to the Contrary, the standard of review of the grant or denial of a preliminary injunction is effectively de novo”)', Roland, 749 F.2d at 396-404 (Swygert, J., dissenting).

The Lawson court, recognizing the possibility of conflicting interpretations, read Roland and American Hospital as “in harmony with the traditionally flexible and discretionary responsibilities of the district judge, sitting as chancellor in equity, in preliminary injunction matters.” At 595. I heartily concur.

In the present case, Judge Steckler’s fine opinion gave thorough consideration to all the relevant factors: the adequacy of a legal remedy, the balance of harms, the public interest, and the plaintiffs’ likelihood of success on the merits. I scarcely think the quality of justice dispensed in his court would have been improved had he invoked the formula “grant the preliminary injunction if but only if P x Hp > (1 — P) X Hd.” See American Hospital, 780 F.2d at 593. At best, I suspect it would have diverted him from the equitable nature of the task at hand.

There is an old and wise saying: “if it ain’t broke, don’t fix it.” As evidenced by Judge Steckler’s decision and opinion, the traditional standards “ain’t broke.” I view today’s decision, like the recent decision in Lawson, as an attempt to “bury with kindness” the legal revisionism undertaken in Roland and American Hospital and therefore I concur.