Had the Defendants filed a motion for a more definite statement of claim, and had the motion been denied, or had the Plaintiff failed to make these allegations, the point now made by the Defendants in the instant motion might have some merit.
Obviously, proof that the Defendants have engaged in restraint of trade and monopolization of health care services must consist of a showing of more than the simple fact that the Plaintiff is not a member of the York Hospital staff. In order to establish monopolization, the Plaintiff must show that the Defendants have deliberately followed a course of market conduct through which they have obtained or maintained the power to control prices or exclude competition in some activity protected by the Sherman Act. United States v. Grinnell Corporation, 384 U.S. 563, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966); United States v. E. I. DuPont De Nemours and Company, 351 U.S. 377, 76 S. Ct. 994, 100 L. Ed. 1264 (1956); United States v. American Tobacco Company, 221 U.S. 106, 31 S. Ct. 632, 55 L. Ed. 663 (1911); Standard Oil Company of New Jersey v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911).
While Defendants would complain about the way in which Plaintiff plans to prove his case, neither Defendants' affidavits nor their legal argument substantively address the legal sufficiency of those claims as they relate to the Clayton and Sherman Acts. On the other hand, the Plaintiff's evidence goes concisely to his allegations. For example, Plaintiff has submitted a report on patient origin and demographic studies prepared by York Hospital which identifies clearly the market area served by that entity and contains data from which, at trial, Plaintiff may be able to evaluate the extent of the power wielded within that market. Barriers to entry have also been deemed relevant in determinations of whether a level of concentration indicates monopoly power. United States v. United Shoe Machinery Corporation, 110 F. Supp. 295 (D.Mass.1953), aff'd per curiam, 347 U.S. 521, 74 S. Ct. 699, 98 L. Ed. 910 (1954). Plaintiff avers that other doctors of osteopathy have indicated to him that their reasons for declining to apply for staff privileges at York Hospital are their beliefs that their applications will be dealt with unfairly because they are osteopaths. The suggestion of Dr. Weiss that only Doctors of Osteopathy who are in a position to make numerous referrals to York Hospital are granted privileges by York (and, conversely, that only those Doctors of Osteopathy with the largest need for privileges are granted them) speaks to Plaintiff's antitrust allegations.
Two final arguments of Defendants need be addressed briefly. The Court refers first to the argument contained in Defendants' reply memorandum that it is a requirement of the antitrust laws that a demand be present in a "refusal to deal" case. Although the Defendants comment in that brief that the issue has been argued by the parties at length, Defendants refer to briefing submitted on the question of Plaintiff's motion for a class action designation. The question is not briefed in Defendants' memorandum in support of the motion now pending, and to the extent that the Plaintiffs have addressed the question in their memorandum, they have done so in a vacuum without benefit of the Defendants' position for the present purposes. For this reason, the Court is of the opinion that this legal issue is not now properly before it. Similarly, the matters contained in a document submitted June 18, 1981 entitled "amendment to memorandum in support of Defendants' motion for summary judgment" will not be considered. Quite apart from the fact that there is no authority in the Rules for the United States District Court for the Middle District of Pennsylvania or this Court's practice order for the submission of such a document, the Plaintiffs have had no opportunity to respond to the matters contained therein and any response by them would, likewise, be unauthorized. Having made the motion now before the Court, it was incumbent upon the Defendants to garner and submit all of the legal and documentary ammunition available to them at the times and in the sequence provided for by the rules under which this Court operates. Absent adherence to these rules, as this motion demonstrates, both this Court's and the parties' tasks in any given undertaking will be endless. Despite these observations, and rather than give rise to an inference that the Court refused to evaluate Defendants' motion on the basis of a "technicality" alone, the "demand and refusal" concept is considered below. Defendants' argument concerning Plaintiff's state law claims will also be considered.
In Lawlor v. National Screen Service Corporation, 270 F.2d 146 (3d Cir. 1959), cert. denied, 362 U.S. 922, 80 S. Ct. 676, 4 L. Ed. 2d 742 (1960), the Court of Appeals applied to the circumstances of that case the rule enunciated in such cases as Webster Rosewood Corp. v. Schine Chain Theatres, Inc., 263 F.2d 533 (2d Cir. 1959) and J. J. Theatres, Inc. v. Twentieth Century Fox Film Corporation, 212 F.2d 840 (2d Cir. 1954), that the failure of the Plaintiff to attempt to obtain from any of the defendants licenses under which the Plaintiffs could manufacture the accessories in question, (and where, in fact, Plaintiffs had expressly stated that they did not desire to obtain such licenses), there could be no recovery in an anti-trust action. In a case decided more recently, the Court of Appeals reaffirmed the position it had taken in Lawlor that where an accumulation of licenses was alleged to prevent effective competition in violation of the anti-trust laws, there was no such violation where no demand for a share in the licenses in question had been made by the Plaintiffs. Fleer Corporation v. Topps Chewing Gum, Inc., et al., 658 F.2d 139 at p. 150 (3d Cir. 1981). However, Defendants fail to point out the Court's reliance on Justice Brandeis's opinion in Chicago Board of Trade v. United States, 246 U.S. 231, 38 S. Ct. 242, 62 L. Ed. 683 (1918) (enunciating the criteria for scrutinizing the legality of a restraint under the rule of reason) and the comments by the Court of Appeals immediately following their quote of Justice Brandeis's language to the effect that the facts peculiar to the business involved in the litigation and the history of the restraint were crucial to its determination. Fleer at 148.
Assuming without deciding that the rule of reason, and not the per se test, is applicable here, the Court is unpersuaded that the facts, and subsequently the law, of the Lawlor and Fleer cases control in the instant matter. In another case cited by Defendants, Smith v. Northern Michigan Hospitals, Inc., 518 F. Supp. 644, 1981-2 trade cases (CCH), P 64, 181 (W.D.Mich.1981), it is noted cogently that:
It would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas. The public service aspect and other features of the professions may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently.... Citing Goldfarb v. Virginia State Bar (1975-1) Trade Cases P 60, (355), 421 U.S. 773 (95 S. Ct. 2004, 44 L. Ed. 2d 572) (1974).
And while in Smith the District Court found no antitrust violations, it did so subsequent to its specific finding of, among other things, the fact that the Defendants had a legitimate medical and financial purpose in consolidating the emergency rooms in question and in making referrals in the manner in which they did.
In Lorain Journal v. United States, 342 U.S. 143, 72 S. Ct. 181, 96 L. Ed. 162 (1951), the Supreme Court addressed itself to a situation in which a newspaper, in an attempt to monopolize the dissemination of news and advertising in its area, refused to accept advertisements from anyone who advertised with the competitor it sought to eliminate. Obviously, that situation presented no circumstances in which the object of the conspiracy had attempted to deal with the alleged monopolist and had been refused; at the very least, the facts of Lorain illustrate that the concept of demand and refusal must bear a rational nexus to the facts of any given case. The Court is also in agreement with the Plaintiff's comment that what is essentially a "causation" principle embodied in the demand and refusal cases such as Lawlor and Fleer, is not applicable where monopoly power exists and is abused. See, e.g., United States v. Griffith, 334 U.S. 100, 68 S. Ct. 941, 92 L. Ed. 1236 (1947); Associated Press v. United States, 326 U.S. 1, 65 S. Ct. 1416, 89 L. Ed. 2013 (1945); L. G. Balfour Company v. F.T.C., 442 F.2d 1 (7th Cir. 1971).
Defendants' request for summary judgment on Plaintiff's state law claims will also be denied. With respect to these claims, Defendants have addressed only the denial of staff privileges, and not any of the other abuses alleged by the Plaintiff. With respect to the denial of staff privileges, moreover, Defendants argue that the Plaintiff has no "contract" cause of action. In support of this argument, Defendants cite such cases as Berberian v. Lancaster Osteopathic Hospital Association, 395 Pa. 257, 149 A.2d 456 (1959) and Schneir v. Englewood Hospital Association, 91 N.J.Super. 527, 221 A.2d 559 (N.J.Law 1966) and Miller v. Indiana Hospital, 277 Pa.Super. 370, 419 A.2d 1191 (1980). However, these cases appear to stand for the general proposition that hospital staff privileges may be withheld or revoked providing a hospital has complied with its applicable by-laws. At least one fallacy of Defendants' argument is that, contrary to the cases cited by them, the facts of the instant case do not establish that the actions of the Defendants in this matter were consistent with the provisions of the by-laws governing the granting of staff privileges. Further, Plaintiffs' state law claims may be addressed under the tort of intentional interference with contractual relations. This fact, together with the fact that the Defendants' motion for summary judgment as to the state antitrust law claims is predicated upon the argument that once federal antitrust law claims are dismissed no state law claims remain, warrants denial of the Defendants' motion concerning Plaintiff's state law claims.
The outcome of this litigation will have an impact not only upon the parties, but will also be felt by the entire medical community of York, Pennsylvania. The evidence adduced and legal arguments presented have been painstakingly reviewed and analyzed. The conclusion has been reached that the Defendants have failed to establish that they are entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56. Numerous questions of fact material to the issues of law presented by this matter remain in dispute. Defendants have not conclusively demonstrated that Dr. Weiss was refused staff privileges solely for reasons unrelated to his status as an osteopathic physician. There is no evidence in the record that personality traits of allopathic physicians are considered in the context of those persons' applications for staff privileges. It is not clear that the procedures outlined in the Bacastow affidavit were followed in the case of Dr. Weiss's application for staff privileges, and it is not established why they were not. The question of the reason that the processing of Dr. Weiss's application took so long is unanswered. All of these unresolved questions appear to bear materially upon the allegations that Defendants have monopolized the health care field and restrained trade therein by excluding osteopaths from their institution. The Defendants' motion for summary judgment will be denied.