F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 27 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ANTHONY DIAZ, PAUL DIEHL and
ALLAN KAMINSKY,
Plaintiffs-Appellants,
v.
MICHAEL FARLEY, MORRIS
MATTHEWS, JOAN ABELE, No. 98-4136
COTTONWOOD OBSTETRICS &
GYNECOLOGY & INFERTILITY,
OLD FARM OBSTETRICS &
GYNECOLOGY, and JOHN DOES I-
X,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 94-CV-1184-B)
Jay D. Gurmankin (Eliot M. Cohen and Chris R. Hogle with him on the briefs),
Berman, Gaufin, Tomsic, Savage & Campbell, Salt Lake City, Utah, for
Plaintiffs-Appellants.
George A. Hunt, Williams & Hunt, Salt Lake City, Utah and Randy T. Austin,
Kirton & McConkie, Salt Lake City, Utah (R. Stephen Marshall, Durham, Jones &
Pinegar, Salt Lake City, Utah; Kenneth W. Yeates, Van Cott, Bagley, Cornwall &
McCarthy; R. Brent Stephens, Snow, Christensen & Martineau, Salt Lake City,
Utah, with them on the brief) for Defendants-Appellees.
Before TACHA, BRORBY and EBEL, Circuit Judges.
EBEL, Circuit Judge.
Drs. Diaz, Diehl, and Kaminsky (collectively, the “plaintiffs”) are
anesthesiologists with privileges at Cottonwood Hospital in Murray, Utah. They
brought an antitrust suit against three other anesthesiologists with privileges at
Cottonwood, Drs. Farley, Matthews, and Abele (collectively, the “individual
defendants”), and against two entities, Cottonwood Obstetrics & Gynecology &
Infertility (“Cottonwood Ob/Gyn”) and Old Farm Obstetrics & Gynecology (“Old
Farm Ob/Gyn”). The plaintiffs alleged that the individual defendants engaged in
a horizontal group boycott that violated Section 1 of the Sherman Act and the
Utah Antitrust Act. They further alleged that Cottonwood Ob/Gyn and Old Farm
Ob/Gyn also violated Section 1 of the Sherman Act and the Utah Antitrust Act
when they horizontally agreed to honor the boycott engineered by the individual
defendants. The plaintiffs also sued all of the defendants for tortious interference
with economic relations, and they sued one of the individual defendants, Dr.
Abele, for defamation.
The plaintiffs maintain that the actions of the defendants were per se
unlawful under the antitrust laws, and they have conceded that they could not
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prove their claims if the rule of reason governs the conduct at issue. The district
court found that the rule of reason applies to the actions of the defendants;
therefore it granted the individual defendants’ motion for summary judgment on
the antitrust claims, and dismissed with prejudice the plaintiffs’ antitrust claims
against all of the defendants. 1 The district court then dismissed without prejudice
the pendant defamation and tortious interference with economic relations claims.
The plaintiffs now appeal, and we affirm.
I. BACKGROUND 2
A. Cottonwood Hospital and the Anesthesia Department
Cottonwood Hospital is located in Murray, Utah, just south of Salt Lake
City. The hospital is governed pursuant to bylaws recommended by the
Cottonwood Hospital medical staff and adopted by the Cottonwood Hospital
1
It was unclear whether the district court’s July 17, 1998 Memorandum
Decision disposed of all of the claims against all of the defendants, or just the
claims against the individual defendants. On June 12, 2000, the district court
filed a Supplemental Order clarifying that its Memorandum Decision was and is a
final judgment dismissing all of the plaintiffs’ claims against all of the
defendants. The district court also filed a Judgment pursuant to Federal Rule of
Civil Procedure 58.
2
The majority of the facts in this case are undisputed and are adopted from
the district court’s thorough opinion. See Diaz v. Farley, 15 F. Supp.2d 1138 (D.
Utah 1998). To the extent that any facts are disputed, we have viewed them in the
light most favorable to the plaintiffs, because this appeal stems from the grant of
a motion for summary judgment in favor of the defendants. See Kaul v. Stephan,
83 F.3d 1208, 1212 (10th Cir. 1996).
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Board of Trustees. The bylaws establish separate departments within Cottonwood
Hospital, including a Department of Anesthesiology. Anesthesiology services at
Cottonwood Hospital are provided by the members of the Department of
Anesthesiology (“Department”), all of whom are licensed anesthesiologists who
practice medicine independently of each other. The anesthesiologists are not
considered employees of the hospital. The Department schedules
anesthesiologists to cover the operating room (“OR”), the labor and delivery
room, and other areas of the hospital. Each area requires a specific number of
anesthesiologists each day. Historically, anesthesiologists working in one area
have not been regularly scheduled in another area. The OR and labor and delivery
divisions have each had a certain number of “slots,” or physicians, who rotate in
the schedule. A new physician is usually only added to the rotation in these areas
when another physician leaves.
Until November, 1993, two anesthesiologists from the Department were
responsible for scheduling anesthesiology services at Cottonwood. In November,
1993, a single anesthesiologist, Dr. Farley, became the monthly scheduler. He
was selected as scheduler by a two-thirds majority vote of the voting members of
the Department. As the scheduler, Dr. Farley was responsible for ensuring that a
sufficient number of anesthesiologists were assigned to cover each area of the
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hospital at all times. Prior to February, 1994, a single department member was
assigned to cover each 24-hour labor and delivery shift.
B. Plaintiffs-Appellants
Plaintiff-appellant Dr. Anthony Diaz practiced general anesthesiology at
Cottonwood, including obstetric (“ob/gyn”) anesthesiology between 1981 and
1982. He left Cottonwood in 1982 to practice medicine elsewhere and then
returned to Cottonwood in 1990. From 1990 to 1992, Dr. Diaz did some “fill in”
anesthesiology work on the labor and delivery schedule at the rate of
approximately two shifts per month. In 1993, he requested significant additional
labor and delivery shifts.
Plaintiff-appellant Dr. Paul Diehl practiced anesthesia in labor and delivery
at Cottonwood between 1981 and 1989. In 1989, Dr. Diehl left the labor and
delivery anesthesia practice to work in the OR anesthesia practice. 3 In 1992 and
1993, Dr. Diehl again sought significant work in labor and delivery.
Plaintiff-appellant Dr. Kaminsky practiced anesthesiology in labor and
delivery at Cottonwood between 1980 and 1983. In 1983, Dr. Kaminsky gave up
3
There is some uncertainty in the record whether Dr. Diehl left the labor
and delivery anesthesia practice in 1985 or 1989. We use the 1989 date because
that appears consistent with his deposition testimony, but if that fact is in dispute,
it is not determinative of our holding.
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his labor and delivery shifts for shifts in the OR division. In 1993, Dr. Kaminsky
asked to be included again in the labor and delivery schedule.
Thus, plaintiffs Drs. Diaz, Diehl, and Kaminsky each performed
anesthesiology services in the labor and delivery room at Cottonwood Hospital for
a period of time in the 1980s; each voluntarily ceased performing such services in
the labor and delivery room; and each sought to regain a significant number of
shifts on the labor and delivery schedule in 1993.
C. Defendants-Appellees
Defendant-appellee Dr. Michael Farley has been a member of
Cottonwood’s Department of Anesthesiology since 1986; defendant-appellee Dr.
Morris Matthews has been a member since 1983; and defendant-appellee Dr. Joan
Abele was a member from 1983 to 1996. All three individual defendants were
part of a five-physician rotation that regularly performed anesthesiology in labor
and delivery for several years prior to 1993. Defendants-appellees Cottonwood
Ob/Gyn and Old Farm Ob/Gyn are practice groups comprised of gynecologists
and obstetricians with privileges to practice at Cottonwood Hospital.
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D. Scheduling Dispute
In November, 1993, Dr. Diaz, who was the acting Anesthesia Department
Chairman, called a Department meeting to discuss the scheduling of ob/gyn
anesthesia. At that time, there was apparently only one open slot in the labor and
delivery rotation and Drs. Diaz, Diehl, and Kaminsky were all seeking increased
labor and delivery shifts. The Department members concluded that the plaintiffs
would be scheduled for “some” labor and delivery shifts.
In December, 1993, the Department members met again to discuss whether
the plaintiffs should be given new “slots” so that everyone would work equally on
the labor and delivery schedule, or whether they would be given one slot to share
among the three of them. The Department members apparently decided that the
ob/gyn anesthesiologists currently filling the “slots” would meet separately to
discuss the issue. It is unclear whether that meeting ever took place. The
plaintiffs continued to work to some extent in labor and delivery, but there was no
definite resolution of the scheduling issue.
The individual defendants’ hesitations about granting plaintiffs’ requests to
return to the labor and delivery rotation apparently stemmed from the following:
concern over the plaintiffs’ absence from ob/gyn anesthesia, possible disruption
of the smoothly running ob/gyn anesthesia schedule, and a decrease in the
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individual defendants’ own total number of shifts with ob/gyn patients. At around
this time, individual defendant Dr. Matthews wrote the following in his journal:
Three people who had all left OB in the past now are asking to come
back on. There is one slot open, and another fellow in the OR wants
to do more OB. The OR people what [sic] us to equally divide the
shifts, but those of us who never left don’t want that. In addition
some of the OB’s don’t want one of them to come back. Since he
quit doing OB when I cam [sic] 10 years ago, I wonder how good his
memory is, but I think we’ll have to let him work some shifts and let
him remember why he gladly left a decade ago. We have some
problems in the department. About half of the people are easy to get
along with and all the surgeons will work with them. The others
have personality quirks or are slow, and some surgeons request not to
have them.
Shortly thereafter, Dr. Matthews sent Dr. Farley a letter, informing him that a
proposed contract being considered with Cottonwood Ob/Gyn would impact the
monthly anesthesia schedule. At around the same time, Dr. Abele circulated an
unauthorized informal “poll” to the Obstetrics Department at Cottonwood
Hospital, asking OB practitioners to rate anesthesiologists, including Drs. Diaz,
Diehl, and Kaminsky.
Dr. Ron Larkin, the managing partner of Cottonwood Ob/Gyn, testified that
he had concerns about the addition of the plaintiffs to the labor and delivery
schedule based on prior experiences with all three plaintiffs. Dr. Larkin stated
that he “did not want them taking care of our patients” because of those concerns.
On February 4, 1994, the physicians at Cottonwood Ob/Gyn requested that
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another anesthesiologist be scheduled for their patients whenever Plaintiff Dr.
Kaminsky was on call.
E. The Agreement Between Dr. Matthews and Cottonwood Ob/Gyn
Soon after Cottonwood Ob/Gyn’s request regarding Dr. Kaminsky,
Cottonwood Ob/Gyn and individual defendant Dr. Matthews reached an
agreement. The agreement obligated Dr. Matthews personally to provide
anesthesiology services to Cottonwood Ob/Gyn’s patients in the labor and
delivery room, or to select another physician of his choosing to perform such
services. The contract, which was signed on February 7, 1994, provided that Dr.
Matthews “shall have exclusive authority and control over all anesthesia services
provided to patients of Cottonwood obstetrics for labor, cesarean section and D &
Cs performed in the labor suite at Cottonwood Hospital.” Thus, according to the
agreement, either Dr. Matthews or an anesthesiologist selected by him would
provide anesthesiology services for Cottonwood Ob/Gyn patients in labor and
delivery.
F. Double Coverage of Plaintiffs’ Shifts at Cottonwood Hospital
After the agreement was made, Dr. Matthews informed Dr. Kaminsky that
he would be “double covered,” meaning that whenever Dr. Kaminsky was on the
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labor and delivery schedule, there would also be another anesthesiologist
(selected by Dr. Matthews) scheduled. The anesthesiologist selected by Dr.
Matthews would be the one who would provide anesthesiology services to the
patients of Cottonwood Ob/Gyn in labor and delivery. 4 Dr. Matthews offered Drs.
Diehl and Diaz two non-double covered shifts per month, with the possibility for
increased work for Cottonwood Ob/Gyn patients in the future if their ob/gyn
skills were deemed acceptable. Dr. Diaz accepted this offer, but Dr. Diehl
declined and was then subject to being double covered. Subsequently,
Cottonwood Ob/Gyn requested that Dr. Diaz not perform anesthesia on its
obstetrical patients because of poor performance; therefore, Dr. Diaz was
ultimately double covered as well. The double coverage policy operated to
preclude the plaintiffs from performing anesthesia services on Cottonwood
Ob/Gyn patients in the labor and delivery suite. Whenever they were scheduled in
labor and delivery, Dr. Matthews or an anesthesiologist selected by him was
scheduled as well. The other anesthesiologist performed the anesthesiology
services for the Cottonwood Ob/Gyn patients in labor and delivery.
Plaintiffs were also ultimately double covered for Cottonwood Ob/Gyn
patients seen in the OR after physicians in the OR indicated that they would
4
This still allowed Doctor Kaminsky to provide anesthesiology services to
ob/gyn patients admitted to Cottonwood Hospital who were not from Cottonwood
Ob/Gyn.
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prefer not to be scheduled with them. In addition, the plaintiffs allege that the
effects of the agreement and the double coverage policy have been extended as
Dr. Matthews has asked other groups of obstetricians and gynecologists who
deliver babies at Cottonwood to enter into agreements similar to the one he had
with Cottonwood Ob/Gyn.
On March 7, 1994, Dr. Matthews sent a letter to Dr. Alan Rappeleye of Old
Farm Ob/Gyn in an attempt to solicit Old Farm Ob/Gyn to enter into an agreement
similar to the agreement he had with Cottonwood Ob/Gyn. On June 8, 1994, Old
Farm Ob/Gyn sent a letter to Cottonwood Ob/Gyn indicating that Old Farm
Ob/Gyn would abide by the Cottonwood Ob/Gyn agreement. Plaintiffs allege that
the June 8th letter serves as evidence of a horizontal agreement between Old Farm
Ob/Gyn and Cottonwood Ob/Gyn to boycott plaintiffs.
H. Procedural History
The plaintiffs sued under Section 1 of the Sherman Act, 15 U.S.C. § 1
(1990), 5 alleging that the defendants engaged in a conspiracy that unreasonably
restrained trade. They argued that the conduct at issue amounted to a horizontal
5
15 U.S.C. § 1 provides in relevant part: “Every 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.”
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group boycott that merited per se condemnation under the antitrust laws. They
conceded to the district court that they did not have sufficient evidence to proceed
under a theory that the alleged conduct violated the rule of reason.
The district court granted the individual defendants’ motion for summary
judgment and dismissed the plaintiffs’ antitrust claims against all of the
defendants after finding that per se treatment was inappropriate for three reasons:
(1) the boycott alleged by the plaintiffs was not the type that has been historically
shown to always or almost always negatively affect competition; (2) a preliminary
examination of market conditions did not reveal any anticompetitive impact; and
(3) the defendants offered procompetitive justifications for their actions. The
district court then declined to exercise supplemental jurisdiction over plaintiffs’
defamation and tortious interference with economic relations claims pursuant to
28 U.S.C. § 1367, and dismissed those claims without prejudice. Plaintiffs do not
appeal that dismissal.
In this appeal, plaintiffs allege that the district court relied on an inaccurate
and inconsistent characterization of the facts, and they maintain that the per se
rule applies to the conduct of the defendants.
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II. DISCUSSION
The district court had original jurisdiction over the antitrust claims
pursuant to 28 U.S.C. § 1337 6 and 15 U.S.C. § 15. 7 We have jurisdiction under
28 U.S.C. § 1291.
We review de novo a district court’s order granting summary judgment.
See Kaul, 83 F.3d at 1212.
Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law. When applying this standard, we examine the factual
record and reasonable inferences therefrom in the light most
favorable to the party opposing summary judgment. If there is no
genuine issue of material fact in dispute, then we next determine if
the substantive law was correctly applied by the district court.
Id.
6
28 U.S.C. § 1337 provides in relevant part:
(a) The district courts shall have original jurisdiction of any civil
action or proceeding arising under any Act of Congress regulating
commerce or protecting trade and commerce against restraints and
monopolies.
7
15 U.S.C. § 15 provides in relevant part:
Except as provided in subsection (b) of this section [regarding
foreign states], any person who shall be injured in his business or
property by reason of anything forbidden in the antitrust laws may
sue therefor in any district court of the United States in the district in
which the defendant resides or is found or has an agent, without
respect to the amount in controversy, and shall recover threefold the
damages by him sustained, and the cost of suit, including a
reasonable attorney’s fee.
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A. The District Court’s Characterization of the Facts
Plaintiffs first contend that the district court relied on an inaccurate and
internally inconsistent characterization of the facts in reaching its decision. They
argue that the district court placed too much emphasis on the agreement between
Dr. Matthews and Cottonwood Ob/Gyn, and ignored other evidence of
conversations and agreements involving the defendants. Although the district
court did not specifically mention the substance of every relevant conversation in
which the defendants engaged in the months leading up to the agreement between
Dr. Matthews and Cottonwood Ob/Gyn, the district court did discuss several
meetings and conversations involving the defendants that preceded the
Matthews/Cottonwood Ob/Gyn agreement. Plaintiffs have failed to show how any
of the evidence they cite that was not mentioned in the district court opinion
would alter the horizontal group boycott analysis. 8
8
Plaintiffs point specifically to the district court’s failure to mention an
agreement between Drs. Farley and Matthews that Dr. Farley would make the
labor and delivery schedule in accordance with Dr. Matthews’ decisions. In
acting in accordance with Dr. Matthews’ decisions when developing the schedule,
Dr. Farley was simply abiding by the agreement between Dr. Matthews and
Cottonwood Ob/Gyn and carrying out his duties as the scheduler. Thus, the
district court did not “ignore” the agreement between Dr. Matthews and Dr.
Farley; rather, it likely considered Dr. Farley’s actions as an element of the
overall agreement between Dr. Matthews and Cottonwood Ob/Gyn.
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Plaintiffs also claim that the district court erred in giving credence to the
alleged concerns about their obstetrical anesthesiology skills. They argue that
because Dr. Matthews offered Drs. Diaz and Diehl two non-double covered shifts
per month, any concern about their skills was merely a “red herring argument.”
Dr. Matthews, however, offered Drs. Diaz and Diehl those shifts on an
“experimental test basis” to allow them to prove that concerns about their skills
were unwarranted. Thus, the fact that Dr. Matthews offered Drs. Diaz and Diehl
non-double covered shifts is not indicative of a lack of concern about their skills.
In addition, the record contains evidence that there was some basis for concern
about the obstetric anesthesiology skills of the plaintiffs.
Plaintiffs also point to what they consider a fundamental contradiction
within the district court’s rendition of the facts. The district court opinion
contained the following two statements: (1) “[T]he ob/gyn doctor or patient had
no realistic choice but to use the anesthesiologist on call when an obstetric case
presented itself,” Diaz, 15 F. Supp.2d at 1147; and (2) “The agreement enables
the patient or ob/gyn doctor performing a procedure to choose which
anesthesiologist he or she will use rather than requiring the doctor to use
whichever anesthesiologist happens to be on call,” Id. at 1148. The statements
are not fundamentally contradictory; rather, they are easily reconciled. In the first
statement, the district court describes the situation as it existed prior to the
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Matthews/Cottonwood Ob/Gyn agreement; and in the second statement, the
district court describes the situation as it existed after the agreement. Before the
agreement, neither the ob/gyn doctor nor the patient could choose an
anesthesiologist. After the agreement, Cottonwood Ob/Gyn doctors could tell Dr.
Matthews which anesthesiologists they preferred for their patients. Then,
whenever a non-preferred anesthesiologist was on the labor and delivery schedule,
a preferred anesthesiologist could be scheduled as well to provide services for the
Cottonwood Ob/Gyn patients. The district court made these observations in
support of its conclusion that the agreement increased user choices.
Thus, plaintiffs’ first argument fails. They have not demonstrated that the
district court relied on an inaccurate or inconsistent characterization of the facts
in reaching its decision.
B. Per Se Versus Rule of Reason Analysis
Plaintiffs next argue that the district court erred in finding that per se
analysis does not govern the conduct of the defendants in this case. We agree
with the district court’s resolution of this issue and we find its analysis thorough;
therefore, we adopt much of its reasoning in this opinion.
Section 1 of the Sherman Act prohibits “every contract, combination . . . or
conspiracy in restraint of trade or commerce . . . .” 15 U.S.C. § 1. The Sherman
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Act’s prohibition generally precludes only restraints that are unreasonable. See
Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472
U.S. 284, 289, 105 S. Ct. 2613, 86 L. Ed.2d 202 (1985). The Supreme Court has
developed two main analytical approaches for determining whether a defendant’s
conduct unreasonably restrains trade: the per se rule and the rule of reason. The
rule of reason is the usual method of analyzing conduct under the Sherman Act.
See Northwest Wholesale, 472 U.S. at 289. It requires “the fact finder [to]
weigh[] all of the circumstances of a case in deciding whether a restrictive
practice should be prohibited as imposing an unreasonable restraint on
competition.” Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97
S. Ct. 2549, 2557, 53 L. Ed.2d 568 (1977). Per se analysis is reserved for
“‘agreements or practices which because of their pernicious effect on competition
and lack of any redeeming virtue are conclusively presumed to be unreasonable
and therefore illegal without elaborate inquiry as to the precise harm they have
caused or the business excuse for their use.’” Northwest Wholesale, 472 U.S. at
289 (quoting Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5, 78 S. Ct.
514, 518, 2 L. Ed.2d 545 (1958)). “The decision to apply the per se rule turns on
‘whether the practice facially appears to be one that would always or almost
always tend to restrict competition and decrease output . . . or instead one
designed to increase economic efficiency and render markets more, rather than
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less, competitive.’” Id. at 289-90 (quoting Broadcast Music, Inc. v. Columbia
Broadcasting System, Inc., 441 U.S. 1, 19-20, 99 S. Ct. 1551, 1562-63, 60 L.
Ed.2d 1 (1979) (further quotations and citations omitted)). Because plaintiffs
conceded below that they did not have sufficient evidence to proceed under a
theory that defendants’ conduct violated the rule of reason, if we find, as the
district court did, that the per se rule does not apply, the order dismissing
plaintiffs’ antitrust claims must be affirmed.
Plaintiffs allege that defendants engaged in a horizontal restraint of trade in
the form of a group boycott. In Northwest Wholesale, the Supreme Court
clarified its earlier language from Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359
U.S. 207, 79 S. Ct. 705, 3 L. Ed.2d 741 (1959), and held quite clearly that not all
group boycotts or horizontal restraints of trade are to be judged under a per se
standard. See Northwest Wholesale, 472 U.S. at 295. There, the court stated that
unless the defendants in a group boycott situation “possess[] market power or
exclusive access to an element essential to effective competition, the conclusion
that expulsion [of the plaintiff] is virtually always likely to have an
anticompetitive effect [thereby invoking a per se analysis] is not warranted.” Id.
at 296. The Court also stated that in per se cases, “the practices were generally
not justified by plausible arguments that they were intended to enhance overall
efficiency and make markets more competitive.” Id. at 294.
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With regard to each of the three factors mentioned above, we agree with the
district court that “[t]he present situation is quite different from the Supreme
Court cases meriting per se review.” Diaz, 15 F. Supp.2d at 1146. There is no
showing that the defendants hold a dominant position in a relevant market; the
defendants did not control access to an element “essential” to enable plaintiffs to
compete; and the agreements the plaintiffs challenge did, in some regards, make
the markets more competitive.
First, plaintiffs have not shown that defendants hold a dominant position in
a relevant market. As stated by the district court:
In this case, the plaintiffs have not alleged market power on
the part of the defendants. Indeed, the plaintiffs have not defined
any relevant market. Accordingly, the court has no basis on which to
determine the size of Cottonwood Ob/Gyn’s and Old Farm Ob/Gyn’s
practices at Cottonwood Hospital compared to other ob/gyn groups or
how significantly the agreement between Dr. Matthews and
Cottonwood Ob/Gyn and Old Farm Ob/Gyn affects the plaintiffs’ or
other anesthesiologists’ ability to practice ob/gyn anesthesia at
Cottonwood Hospital or any other relevant geographic market.
Diaz, 15 F. Supp.2d at 1148.
Second, the defendants did not control access to an element “essential” to
plaintiffs’ ability to compete. The plaintiffs remained free to practice
anesthesiology at Cottonwood and free to compete to increase their access to
ob/gyn patients. Although agreements between the individual defendants and the
two groups of doctor-users of anesthesiology services effectively precluded the
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plaintiffs from performing anesthesiology services on Cottonwood Ob/Gyn and
Old Farm Ob/Gyn patients during the term of the agreements, that result is a
necessary consequence of all such agreements between providers and users of
goods and services. Here, plaintiffs could compete for all the other ob/gyn work,
and there is no showing by plaintiffs of the percentage of the market that was
precluded because of the agreements with Cottonwood Ob/Gyn and Old Farm
Ob/Gyn. In addition, the agreements with Cottonwood Ob/Gyn and Old Farm
Ob/Gyn were apparently terminable-at-will, and there is no showing that plaintiffs
were precluded from trying to improve their skills and relationships with doctors
in order to compete for business with the doctors in those groups. Finally,
plaintiffs still had staff privileges and could utilize Cottonwood Hospital to
service their own patients. 9
Third, Northwest Wholesale explicitly allows courts to consider plausible
arguments concerning procompetitive effects in determining whether the per se
rule or the rule of reason should apply to a horizontal group boycott. See
9
This case is easily distinguishable from Full Draw Productions v. Easton
Sports, Inc., 182 F.3d 745 (10th Cir. 1999), where this court reversed the district
court’s dismissal of an antitrust claim for failure to allege antitrust injury
adequately. In Full Draw, the plaintiffs alleged that the defendants’ group
boycott cut off their access to suppliers and exhibitors of archery goods and
services, which was an essential element for the plaintiff to be able to compete in
the market of sponsoring trade shows for archery products. See Full Draw, 182
F.3d at 751. We found the plaintiffs’ allegations sufficient to state a violation of
§ 1 of the Sherman Act. See id.
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Northwest Wholesale, 472 U.S. 284, 294 (stating that group boycott cases
analyzed under the per se rule “were generally not justified by plausible
arguments that they were intended to enhance overall efficiency and make
markets more competitive”). If there are no such plausible arguments, “the
likelihood of anticompetitive effects is clear and the possibility of countervailing
procompetitive effects is remote.” Id. Here, the defendants advance a plausible
argument that the agreements in question actually enhanced competition by
increasing a doctor’s ability to choose which anesthesiologists he or she would
use at Cottonwood Hospital. Before the agreements, the ob/gyn doctors largely
had to accept whoever was scheduled to be on shift at the time of any particular
delivery. This argument further counsels against use of the per se approach.
Finally, the fact that the conduct at issue in this case concerns decisions
relating to health care presents a further reason why we should be cautious in
applying a per se test. Because agreements pertaining to the provision of health
care services often raise issues of professional medical judgment, it is typically
useful to apply a rule of reason approach:
Allegations of a concerted refusal to deal arise frequently in the
health care industry. Denial of hospital staff privileges is frequently
alleged to be the product of a group boycott organized by competing
health care providers. In such cases, the courts have generally
applied the rule of reason, holding that a hospital must be allowed, in
conjunction with its medical staff, to exclude individual doctors on
the basis of their lack of professional competence or unprofessional
conduct. Actions to enforce ethical rules by medical associations are
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also frequently alleged to constitute a group boycott. Again, the
courts generally apply the rule of reason, examining whether the
rules serve a legitimate purpose in establishing professional
standards of care without unduly limiting competition among
providers.
ABA Section of Antitrust Law, Antitrust Law Developments 118 (4th ed. 1997)
(citations omitted). We cannot say that the type of internal hospital scheduling
practice at issue in this case is the kind of practice that has historically posed
anticompetitive consequences. As the district court here observed:
Furthermore, this case deals with a call system that
appears to be common throughout the health care industry. The
unique nature of the call system and the relative inexperience of
the courts in understanding and regulating internal hospital
scheduling practices make it wholly inappropriate to justify
condemning one type of scheduling practice as per se violative
of the Sherman Act. The United States Supreme Court has
cautioned that “It is only after considerable experience with
certain business relationships that courts classify them as per se
violations.” Broadcast Music, Inc., 441 U.S. at 9. It may be
that this type of scheduling practice actually involved a
combination or concerted action by the defendants and that it is
anticompetitive, but such a conclusion should only be reached
after an analysis of all relevant factors under the Rule of
Reason. In sum, defendants’ alleged practice is not the type
that regularly poses anticompetitive consequences.
Consequently, per se analysis is not appropriate.
Diaz, 15 F. Supp.2d at 1147-48; see also Retina Assoc. v. Southern Baptist Hosp.,
105 F.3d 1376, 1381-82 (11th Cir. 1997) (finding per se analysis inappropriate for
an opthalmological care provider group’s allegedly exclusive referral practices, in
part because the effect of the referral practices was “not fully understood” and
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had not been historically shown to always or almost always adversely affect
competition).
Therefore, we find that plaintiffs have not shown that the conduct at issue
in this case constitutes the type of horizontal group boycott deserving of per se
analysis. They have failed to “present a threshold case that the challenged
activity falls into a category likely to have predominately anticompetitive effects.”
Northwest Wholesale, 472 U.S. 284, 298.
Plaintiffs’ citations to this court’s decisions in Brown v. Presbyterian
Healthcare Servs., 101 F.3d 1324 (10th Cir. 1996), Coffey v. Healthtrust, 955
F.2d 1388 (10th Cir. 1992), and Tarabishi v. McAlester Regional Hospital, 951
F.2d 1558 (10th Cir. 1991), are unavailing. Brown is distinguishable from the
present case because it did not even involve the issue of whether to use a per se
or rule of reason standard in evaluating the defendant’s conduct. The only
antitrust issue in that appeal was an issue of causation. See Brown, 101 F.3d at
1334-1335. Furthermore, factually we note that the plaintiff in Brown was denied
all privileges to practice at the hospital in question, see Brown, 101 F.3d at 1328,
whereas here, the plaintiffs continued to be able to practice at Cottonwood.
Although Coffey indicated that a horizontal, as opposed to a vertical, group
boycott is a necessary condition for application of the per se rule, it did not
imply, as plaintiffs suggest, that it was a sufficient condition for using the per se
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rule. See Coffey, 955 F.2d at 1392. In fact, the holding of Northwest Wholesale
is inconsistent with such a suggestion. See Northwest Wholesale, 472 U.S. at
(finding that the rule of reason governed the legality of horizontal agreements that
resulted in the expulsion of a competitor from a purchasing cooperative). Thus,
contrary to plaintiffs’ suggestion, Coffey does not dictate that because defendants
engaged in horizontal agreements that limited plaintiffs’ access to ob/gyn
anesthesiology, per se analysis must govern their conduct.
Tarabishi actually lends support to the district court’s decision that a per se
analysis is inappropriate in the present situation. In Tarabishi, this court relied in
part on the fact that the defendants had terminated the plaintiff doctor’s staff
privileges “at least ostensibly because of a lack of professional competence or
unprofessional conduct,” in order to conclude that “Weiss does not dictate the use
of per se analysis.” 10 Tarabishi, 951 F.2d at 1570 n.18. The court in Tarabishi
stated, “Denying staff privileges to a physician through peer review on the basis
that the physician’s conduct is unprofessional and inappropriate is not an activity
‘likely to have predominantly anticompetitive effects’ such that per se treatment
10
The reference is to Weiss v. York Hospital, 745 F.2d 786, 818-20 (3rd
Cir. 1984), a case in which the Third Circuit analyzed a situation it found
analogous to a traditional boycott under the per se rule. Because Weiss involved
facts different from those present here, and because the statements in Weiss
regarding analysis of group boycotts were superseded by the Supreme Court’s
ruling in Northwest Wholesale, we do not find Weiss instructive in our analysis in
this case.
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is necessary.” Id. at 1571 (citation omitted). Here, although there was not a
“peer review,” the conduct of the defendants was similarly motivated, at least in
part, by issues of the plaintiffs’ competency to provide medical services. That
suggests that this claim is a poor candidate to be evaluated under a per se
standard of review.
III. CONCLUSION
We find that the district court did not rely on an inaccurate and internally
inconsistent characterization of the facts in reaching its decision, and we agree
with the district court that per se analysis does not govern the conduct at issue in
this case. We also find no error in the district court’s recognition of the plausible
procompetitive justifications for the agreement between Dr. Matthews and
Cottonwood Ob/Gyn. Therefore, we AFFIRM the district court’s order granting
summary judgment to the individual defendants and dismissing the plaintiffs’
claims against all of the defendants.
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