Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

CARDIO-MEDICAL ASSOCS. v. CROZER-CHESTER MED. CTR.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


November 15, 1982

CARDIO-MEDICAL ASSOCIATES, LTD. and THOMAS J. McBRIDE, M.D. and PAUL T. CASS, M.D. and C. RICHARD SCHOTT, M.D. and MICHAEL B. GOODKIN, M.D., Plaintiffs
v.
CROZER-CHESTER MEDICAL CENTER and JAMES H. LOUCKS, M.D., MICHAEL C. BOYD, WILLIAM J. BREECE, JOHN F. CRAMP, ESQUIRE, DANIEL R. CURRAN, MARY E. DALE, CONRAD A. ETZEL, M.D., JEREMIAH A. HARTLEY, JOSEPH R. LAYTON, REVEREND DAVID A. MacQUEEN, PETER L. MILLER, WILLIAM B. MITCHELL, JR., CLARENCE R. MOLL, Ph.D., J. HAROLD PERRINE, MALCOLM B. PETRIKIN, ESQUIRE, and BERTRAM M. SPEARE, individually and as members of the CROZER-CHESTER MEDICAL CENTER BOARD OF DIRECTORS and JAMES CLARK, M.D., CHIEF OF DEPARTMENT OF MEDICINE OF CROZER-CHESTER MEDICAL CENTER and DANIEL J. MARINO, M.D., R. DAVID MISHALOVE, M.D., JOEL A. KRACKOW, M.D., ADRIAN S. WEYN, M.D., PETER LAVINE, M.D., MICHAEL YOW, M.D., and ANCIL JONES, M.D. c/a CARDIOLOGY ASSOCIATES OF DELAWARE COUNTY

The opinion of the court was delivered by: LORD

Lord, S.J.

 I. Preliminary Statement

 Plaintiff Cardio-Medical Associates, Ltd., and its four physician members, brought this antitrust action against Crozer-Chester Medical Center (hereinafter referred to as "CCMC"), members of the CCMC Board of Directors, and the Chief of the Department of Medicine at CCMC (hereinafter referred to as "the CCMC defendants"), as well as several individual doctors practicing cardiology under the name of Cardiology Associates of Delaware County (hereinafter referred to as "Cardiology Associates"). Plaintiffs allege that the denial to them of certain specialized staff privileges in cardiology at CCMC violates both sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1976), and section 4 of the Clayton Act, 15 U.S.C. § 15 (1976).

 Plaintiffs originally filed this action on July 30, 1981. In their original complaint, plaintiffs alleged that the denial to them of such privileges resulted from an unlawful conspiracy by defendants that restrained trade in violation of sections 1 and 2 of the Sherman Act. Plaintiffs also alleged that defendants' conduct violated plaintiffs' fourteenth amendment rights and, therefore, constituted a deprivation of a constitutionally protected property or liberty interest within the meaning of 42 U.S.C. § 1983 (1976). Pursuant to rule 12(c), the CCMC defendants, later joined by Cardiology Associates, filed a motion for judgment on the pleadings on the grounds that plaintiffs had failed to state a claim for relief or establish that this court had subject matter jurisdiction with respect to either count of the original complaint.

 On March 15, 1982, I issued an opinion and order granting defendants' motion for judgment on the pleadings. Cardio-Medical Associates, Ltd. v. Crozer-Chester Medical Center, 536 F. Supp. 1065 (E.D. Pa. 1982). Count II of plaintiffs' original complaint, which alleged violations of the Constitution and section 1983, was dismissed with prejudice. Count I, however, which alleged that the actions of defendants violated the antitrust laws, was dismissed without prejudice and I granted plaintiffs sixty days to file an amended complaint.

 On May 13, 1982, plaintiffs, with the assistance of new counsel, filed a thirty-eight page, sixty-five paragraph amended complaint. In fifty-five paragraphs of introductory allegations, plaintiffs attempt to plead jurisdiction and venue; the identity of the parties; the identification of relevant product markets; the alleged effects that defendants' activities have on interstate trade and commerce; and the activities allegedly constituting defendants' conspiracy, unreasonable restraint of trade, and group boycott of plaintiffs. Count I of plaintiffs' amended complaint then states their Sherman Act section 1 claim while Count II states their Sherman Act section 2 claim.

 Thus, plaintiffs' amended complaint alleges, as did Count I of their original complaint, that defendants have prohibited plaintiffs from practicing certain cardiology procedures at CCMC in violation of sections 1 and 2 of the Sherman Act. On the basis of these allegations, plaintiffs seek permanent injunctive relief compelling defendants to permit plaintiffs to perform the specified procedures from which they allegedly have been wrongfully excluded. Plaintiffs also seek damages for the injuries allegedly sustained as a result of the denial of the opportunity to perform these procedures as well as attorneys' fees and costs.

 Pursuant to rule 12(b) (1) of the Federal Rules of Civil Procedure, the CCMC defendants have moved to dismiss plaintiffs' amended complaint for lack of subject matter jurisdiction. *fn1" Defendants' decision to proceed under rule 12(b) (1) as opposed to rule 12(b) (6) was dictated by my holding in the original Cardio-Medical opinion that "the Third Circuit uniformly approaches the interstate commerce issue as one of jurisdiction." Cardio-Medical, 536 F. Supp. at 1079 n. 15.

 For the reasons stated below, I grant defendants' motion to dismiss as to both counts of plaintiffs' amended complaint, and, having already afforded plaintiffs the opportunity to amend their complaint, dismiss their cause of action with prejudice. Again,

 

I write at some length because of the increasing significance -- to doctors, to hospitals, and to the federal courts -- of this genre of cases. The large financial and administrative burdens imposed on hospital defendants and the courts as a result of the growing number of denial of hospital staff privileges cases, notwithstanding the infrequency with which plaintiffs prevail, is only one reason for this topic's current importance. Further, my analysis of the case law discloses no comprehensive discussion of the theories underlying and of the standards to be applied in deciding claims of this type.

 Cardio-Medical, 536 F. Supp. at 1069.

 II. Standards Under Which Defendants' Motion Must be Decided

 A. Rule 12(b) (1)2

 Under the applicable Third Circuit precedents, rule 12(b) (1) is the appropriate procedural vehicle for the testing of antitrust jurisdictional challenges. See, e.g., Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977); Doctors, Inc. v. Blue Cross of Greater Philadelphia, 490 F.2d 48 (3d Cir. 1973); Daley v. St. Agnes Hospital, Inc., 490 F. Supp. 1309 (E.D. Pa. 1980). The Third Circuit, however, has been emphatic in its identification of a "crucial distinction" between rule 12(b) (1) motions that attack a complaint on its face and rule 12(b) (1) motions that attack a complaint factually (i.e., through the introduction of materials outside the pleadings). Mortensen, 549 F.2d at 891.

 Whenever the court treats a rule 12(b) (1) motion to dismiss as a facial challenge to the legal sufficiency of the pleading, it must afford the plaintiff the same safeguards as would be available to the plaintiff in a rule 12(b) (6) motion:

 

Because 12(b) (6) results in a determination on the merits in an early stage of plaintiff's case, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn. The decision disposing of the case is then purely on the legal sufficiency of plaintiff's case: even were plaintiff to prove all its allegations he or she would be unable to prevail. In the interest of judicial economy it is not improper to dispose of the claim at that stage.

 Id.

 If the rule 12(b) (1) attack is a factual one, however, the trial court proceeds in an entirely different manner. As the Third Circuit explained in Mortensen, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist." Id.

 It should be made clear at the outset that it is my apprehension that defendants' rule 12(b) (1) challenge in this case is a facial challenge to the legal sufficiency of plaintiffs' amended complaint. Neither party has attempted to introduce materials outside the pleadings; thus, in reaching my decision, I have not moved beyond the pleadings. My decision is, therefore, based strictly on a reading of plaintiffs' complaint, in the light most favorable to plaintiffs, together with any facts of which I am entitled to take judicial notice. See 2A J. Moore, Moore's Federal Practice P 12.15, at 2343-44 (1981).

 B. Review of Standards Developed in Previous Opinion

 1. Pleading Standards

 The initial Cardio-Medical opinion contained an extensive discussion of the general disfavor with which all motions for summary disposition of cases are treated in federal courts. See Cardio-Medical Associates, Ltd. v. Crozer-Chester Medical Center, 536 F. Supp. 1065, 1070-72, 1078-79 (E.D. Pa. 1982). To summarize, I reasoned that the line between permissible and impermissible summary disposition of cases had to be drawn as the result of an analysis of two competing policies: the "notice pleading" policy and the "efficiency" policy:

 

Generally, summary disposition of claims on the merits is disfavored. If a complaint contains even the most basic of allegations that, when read with great liberality, could justify plaintiff's claim for relief, motions for judgment on the pleadings should be denied. Nevertheless, a district court judge still must scrutinize complaints to ensure that they contain even these most basic and minimum allegations. This scrutiny is particularly appropriate in a case in which a party questions the jurisdiction of the court because of the federal judge's special responsibility to determine that there is jurisdiction in each case.

 

. . . .

 

Notwithstanding the liberal amendment provisions of the federal rules, summary dismissal of a facially deficient complaint, without leave to amend or conduct discovery, is appropriate in the following situations: (1) if "the merits of the controversy can be fairly and fully decided" without amendment or discovery, as, for example, if plaintiff's complaint is legally deficient and, after inquiry by the court, plaintiff can suggest no way in which it can be made legally sufficient, see [C. Wright & A. Miller, Federal Practice and Procedure § 1369, at 698 (1969); Cardio-Medical, 536 F. Supp. at 1071 n. 4]; . . . or (3) if the pleadings are wholly inadequate and discovery would serve no demonstrably useful purpose, [ Cardio-Medical, 536 F. Supp. at 1072 n.5].

 Id. at 1072.

 The initial Cardio-Medical opinion emphasized that these same standard federal pleading requirements "apply with full force to complaints in complex antitrust matters." Id. at 1079. In antitrust matters, I continue to subscribe fully to the remarks of the trial judge in Searer v. West Michigan Telecasters, Inc., 381 F. Supp. 634 (W.D. Mich. 1974), aff'd mem. 524 F.2d 1406 (6th Cir. 1975), who held:

 

It is true that summary procedure should be used sparingly in complex antitrust litigation. . . . However, this policy of restraint is no warrant for every plaintiff who can draft an antitrust complaint, no matter how groundless or improbable its allegations, to force his claim to trial despite its deficient factual underpinning.

 Id. at 643.

 2. Substantive Sherman Act Standards

 Section 1 of the Sherman Act declares that contracts, conspiracies, and combinations in restraint of trade or commerce among the states are illegal. *fn3" In addition, section 2 prohibits attempts to monopolize the sale of products or services in trade or commerce among the states. *fn4"

 "Coverage of the Sherman Act, legislation passed pursuant to the authority granted Congress by the Commerce Clause, extends both to activities that are actually in interstate commerce and to activities that, though purely intrastate in character, nevertheless, substantially affect interstate commerce." Cardio-Medical, 536 F. Supp. at 1073 (emphasis in original). Accord McLain v. Real Estate Board of New Orleans, 444 U.S. 232, 241, 62 L. Ed. 2d 441, 100 S. Ct. 502 (1980); Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 743, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976); United States v. Employing Plasterers Ass'n, 347 U.S. 186, 189, 98 L. Ed. 618, 74 S. Ct. 452 (1954); Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 435, 76 L. Ed. 1204, 52 S. Ct. 607 (1932). Although the distinction between activities "in" commerce and activities that only "affect" commerce is still important for limited purposes under the antitrust laws, "the jurisdictional requirement of the Sherman Act may be satisfied under either the 'in commerce' or the 'effect on commerce' theory." McLain, 444 U.S. at 242. See Cardio-Medical, 536 F. Supp. at 1073 (citing cases).

 In order to satisfy the "in commerce" theory of Sherman Act jurisdiction, a plaintiff must demonstrate that its business is "actually in interstate commerce" or that its business, though essentially local in nature, is an "integral part of or 'essential and inseparable from' an interstate transaction." Heille v. City of St. Paul, 512 F. Supp. 810, 1981-1 Trade Cas. (CCH) P62,997, at 76,183-84 (D. Minn. 1981), aff'd, 671 F. Supp. 1134, 1982-1 Trade Cas. (CCH) P63,565 (8th Cir. 1982). See also Goldfarb v. Virginia State Bar, 421 U.S. 773, 44 L. Ed. 2d 572, 95 S. Ct. 2004 (1975). *fn5"

 In order to satisfy the "affecting commerce" test, plaintiffs' amended complaint must contain factual allegations that, if proved, would sustain each of three independent underlying findings: (i) the presence of interstate commerce; (ii) the existence of a substantial and adverse effect on interstate commerce; and (iii) the requisite nexus between the challenged activities of defendants and the effect on the relevant channel of interstate commerce. See Cardio-Medical, 536 F. Supp. at 1074. "Failure to allege sufficient facts on any one of these jurisdictional prerequisites requires dismissal of plaintiffs' [amended] complaint." Id.

 Plaintiffs' jurisdictional burden under this tripartite standard could not have been made clearer in my last opinion. Plaintiffs must first specifically identify the element or elements of interstate commerce implicated in the case. See McLain, 444 U.S. at 242. Critically, the identified aspect of interstate commerce must relate to the activities of plaintiffs, and not defendants. See Cardio-Medical, 536 F. Supp. at 1076-78.

 Plaintiffs' complaint then must contain specific factual allegations that, if proved, would demonstrate that the challenged action of defendants "substantially and adversely affects interstate commerce." Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195, 42 L. Ed. 2d 378, 95 S. Ct. 392 (1974). See Cardio-Medical, 536 F. Supp. at 1074 (collecting cases). Previous cases have exhaustively defined the scope of this substantiality test. Sherman Act jurisdiction cannot be established and the substantiality requirement cannot be met through allegations of effects on commerce that are "incidental," "inconsequential," or " de minimis." See Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co., 469 F.2d 416, 418 (5th Cir. 1972); Searer v. West Michigan Telecasters, Inc., 381 F. Supp. 634, 640-41 (W.D. Mich. 1974), aff'd mem. 524 F.2d 1406 (6th Cir. 1975); Marston v. Ann Arbor Property Managers Ass'n, 302 F. Supp. 1276, 1279-80 (E.D. Mich. 1969), aff'd, 422 F.2d 836 (6th Cir. 1970), cert. denied, 399 U.S. 929, 26 L. Ed. 2d 796, 90 S. Ct. 2244 (1970). Further, the requisite allegations on substantiality cannot be satisfied through vague or conclusory statements in the complaint. See Wolf v. Jane Phillips Episcopal-Memorial Medical Center, 513 F.2d 684 (10th Cir. 1975); Cardio-Medical, 536 F. Supp. at 1078-79; Grigg v. Blue Cross and Blue Shield of Michigan, 1980-2 Trade Cas. (CCH) P 63,500 (E.D. Mich. 1980).

 Finally, plaintiffs must allege with specificity the logical nexus between the challenged activities of defendants (in this case, denying plaintiffs the right to practice specialized cardiology procedures) and the effect on the relevant channel of interstate commerce identified previously. See Cardio-Medical, 536 F. Supp. at 1074; Daley v. St. Agnes Hospital, Inc., 490 F. Supp. 1309, 1980-2 Trade Cas. (CCH) P63,443 (E.D. Pa. 1980). *fn6"

 Implicit in this tripartite jurisdictional test, particularly in the substantiality and nexus requirements, is my view that a mere shifting in the flow of interstate commerce or the simple substitution of one party for another in that flow does not establish a "substantial and adverse effect" on interstate commerce for purposes of Sherman Act jurisdiction, at least in a case such as this in which plaintiffs have not been totally foreclosed from practicing their profession in the relevant market. It is my view that the case law firmly supports my holding.

 For example, in Cartrade, Inc. v. Ford Dealers Advertising Association of Southern California, 446 F.2d 289 (9th Cir. 1971), cert. denied, 405 U.S. 997, 31 L. Ed. 2d 465, 92 S. Ct. 1249 (1972), the Ninth Circuit held that there was no effect on commerce in a case in which plaintiff, an automobile trading agency, was replaced by another agency established through the joint efforts of the defendants in that case. Although the court of appeals acknowledged that the business of the plaintiff Cartrade affected interstate commerce, it ruled that the actions of the defendants in replacing the plaintiff with a new agency had no effect on interstate commerce.

 The district court reached a similar result in Dominion Parking Corp. v. Baltimore and Ohio Railway Co., 450 F. Supp. 441 (E.D. Va. 1978). In Dominion Parking, a former lessee of parking lots brought an antitrust action against the owner of the lots and the new lessee following the termination of plaintiff's lease. The district judge rejected plaintiff's argument that the termination had had an effect on interstate commerce, noting that the case "concern[ed] the potential effect on interstate commerce of substituting one parking lot operator for another. Although plaintiffs are affected by the substitution, interstate commerce is not." Id. at 446 (emphasis supplied).

 Most significantly, a shifting of interstate commerce has been found insufficient to sustain jurisdiction in a case involving the denial of hospital staff privileges to a physician. In Moles v. Morton F. Plant Hospital, Inc., 1980-81 Trade Cas. (CCH) P 63,600 (M.D. Fla. 1978), aff'd mem. 617 F.2d 293 (5th Cir. 1980), cert. denied, 449 U.S. 919, 101 S. Ct. 317, 66 L. Ed. 2d 147 (1980), plaintiffs argued that the refusal of defendant hospital to renew or grant them staff privileges resulted in an effect on interstate commerce because their patients' bills were paid by funds that travelled in interstate commerce. In rejecting this argument, the trial judge explained that:

 

Here all the allegations regard a diminution of interstate insurance payments to plaintiffs, but the flow in interstate commerce would be the same. The effect of the defendants' actions would be on the plaintiffs but not on the flow of interstate commerce. This differs from the Rex Hospital case where it was alleged that interstate commerce would be substantially reduced by the loss of plaintiffs' purchases of supplies. Plaintiff hospital in Rex also allegedly paid over its revenue to an out-of-state parent corporation. Thus, payments were alleged to be reduced by defendants' actions.

 Id. at 77,189. *fn7"

 Plaintiffs vigorously contested the position that a mere shifting of interstate commerce from one business to another does not affect interstate commerce. None of the cases cited by plaintiffs in support of their position even addresses the specific issue underlying my conclusion: whether interstate commerce is substantially burdened, and thus whether antitrust jurisdiction is established, when commerce shifts from one party to another, but otherwise remains unchanged, as a result of an alleged violation of the antitrust laws.

 First, the effect on interstate commerce was not at issue in either Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 3 L. Ed. 2d 741, 79 S. Ct. 705 (1959), or United States v. Topco Associates, Inc., 405 U.S. 596, 31 L. Ed. 2d 515, 92 S. Ct. 1126 (1972). The issue in Klor's was simply whether harm to one business, as opposed to many, could constitute the requisite "public injury," or competitive harm, required by section 1 of the Sherman Act. Although the Supreme Court held that such harm could constitute the required injury, because the jurisdiction of the federal courts was clear on the record and unchallenged, Justice Black was not required to, and did not, address the interstate commerce jurisdictional issue, much less whether shifting triggered jurisdiction. On its facts, the Topco case is even more remote from the issue under consideration in the instant case. In Topco, the only question addressed by the Court was whether the trial court erred in applying the rule of reason rather than a per se rule to the violation. Justice Marshall's opinion contains not a single word on the interstate commerce jurisdictional issue, again because of the obviousness of federal jurisdiction independent of any shifting argument.

 A second group of cases cited by plaintiffs in support of their position discusses the interstate commerce requirement, but fails to make a specific holding with respect to the shifting issue addressed in the instant case. For example, in Hospital Building Co. v. Trustees of the Rex Hospital, supra, the Court simply said that to sustain jurisdiction the restraint must place "unreasonable burdens" on interstate commerce; a substantial and adverse reduction in such commerce would be sufficient. Although shifting was not addressed, Hospital Building Co., by requiring a "burden" on interstate commerce, supports my analysis that a mere shifting would be insufficient to establish jurisdiction. Further, in Harold Friedman, Inc. v. Thorofare Markets, Inc., 587 F.2d 127 (3d Cir. 1978), *fn8" the Third Circuit ruled that an increase in interstate commerce flowing from an alleged restraint may be sufficient to establish federal jurisdiction. *fn9" The court of appeals, however, did not address the issue whether a mere shifting in the flow of interstate commerce would be sufficient. Friedman is, therefore, wholly consistent with the result that I reach in the instant case: plaintiffs must allege facts that, if proved, would support a finding that there has been some change (either an increase or a decrease) in the flow of interstate commerce.

 Only one case cited by plaintiffs discusses shifting, but the discussion appears in a context distinct from the interstate commerce question. Following Friedman, the Tenth Circuit held in Mishler v. St. Anthony Hospital Systems, 1981-2 Trade Cas. (CCH) P 64,342 (10th Cir. 1982), that an increase in interstate commerce may constitute the requisite "unreasonable burden on commerce" necessary to vest a federal trial court with jurisdiction. Id. at 74,586. The court of appeals then addressed an entirely different issue -- whether a diversion of revenues can constitute the "requisite harm to the public," id., necessary for an antitrust violation. Its answer in the affirmative, just like the Klor's decision discussed above, is totally separate from an inquiry into whether interstate commerce has been implicated sufficiently to grant a federal court jurisdiction over the cause of action.

 In sum, I hold that, at least in a case in which the plaintiff has not been foreclosed from doing business in the relevant market, a mere shifting in commerce from one party to another as a result of a restraint allegedly violative of the antitrust laws is insufficient in and of itself to vest a federal trial court with jurisdiction over an antitrust case. *fn10"

 C. Analytic Framework

 My decision in the instant case turns on more than application of these general standards of law to the allegations contained in plaintiffs' amended complaint. Following a review of every decided denial of hospital staff privileges case, as well as a large selection of antitrust jurisdiction cases involving the health-care industry, there emerges an analytic framework that both explains the jurisdictional determinations made in the previous cases and assists me in reaching a decision on this case.

 1. Each Case Turns on Its Own Facts

 The first crucial principle in my analytic framework is that each denial of hospital staff privileges case must turn on its own peculiar and unique facts. The Third Circuit has emphasized that an evaluation of the sufficiency of interstate commerce allegations

 

requires "a practical, case-by-case economic judgment, not a conclusion derived from application of abstract or mechanistic forumlae [ sic ]." Rasmussen v. American Dairy Ass'n, 472 F.2d 517, 523 (9th Cir. 1972); see Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 232-233, 92 L. Ed. 1328, 68 S. Ct. 996 . . . (1948). That is, the issue is one of degree which defies precise tests and which necessarily yields somewhat imprecise resolutions.

 

As a result, the precedent in this area is unlikely to dictate the outcome in any given case. Instead, it is more likely to communicate a general sense as to how much of an impact local activities must have upon interstate commerce before they confer jurisdiction . . . .

  Doctors, Inc. v. Blue Cross of Greater Philadelphia, 490 F.2d 48, 51 (3d Cir. 1973). Accord Crane v. Intermountain Health Care, Inc., 637 F.2d 715, 717 (10th Cir. 1980) (citing Doctors with approval), rev'd on other grounds, 637 F.2d at 719 (10th Cir. 1981) (en banc); Harold Friedman, Inc. v. Thorofare Markets, Inc., 587 F.2d 127, 132 (3d Cir. 1978) (emphasizing that effect on interstate commerce must be viewed on a case-by-case basis).

 The Ninth Circuit has taken the same view on this issue, but still emphasized the obligation of a federal trial judge to draw some line when evaluating plaintiffs' jurisdictional allegations:

 

A determination of whether the interstate commerce requirement of the Sherman Act has been met requires an evaluation of the particular facts presented in each case. The cases do not provide easily applicable standards for determining whether the necessary relationship with interstate commerce exists. [ See Rasmussen v. American Dairy Ass'n, 472 F.2d 517, 527 n. 20 (9th Cir. 1972), cert. denied, 412 U.S. 950, 37 L. Ed. 2d 1003, 93 S. Ct. 3014 (1973).] . . .

 

We find it unnecessary to catalog the facts of each case cited by the parties, as there emerges no "bright line" dividing the cases in which the required nexus with interstate commerce has been found and those in which it has not. In Rasmussen, supra, 472 F.2d at 526, we noted this difficulty yet emphasized that some line must be drawn "or federal regulation is boundless."

 Thornhill Publishing Co., Inc. v. General Telephone & Electronics Corp., 594 F.2d 730, 739 (9th Cir. 1979).

 2. Considerations Bearing on the Tripartite Jurisdictional Test

 With full cognizance of the cautionary instructions given by both the Third and Ninth Circuits, I have identified two considerations that influence the practical economic judgments a trial court is required to make when assessing a facial challenge to its own jurisdiction: the nature of the alleged restraint in each case and the nature of the specific plaintiff in each case. My evaluation of these two considerations -- the second and third parts of my framework -- results in a nearly complete harmonization of what might appear to be harshly conflicting precedents.

 a. Nature of the alleged restraint

 The second part of my framework to aid in the analysis of denial of hospital staff privileges claims is the nature of the alleged restraint in each particular case. In all but one denial of hospital staff privileges or related health-care industry case in which there has been an ultimate finding that federal jurisdiction under the Sherman Act exists, the alleged restraint involved was either an industry or class-wide combination or boycott or a total exclusion from participation in the trade or business at issue. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976) (total boycott of a major hospital); Hahn v. Oregon Physicians' Service and Physicians' Association of Clackamas County, 1982-2 Trade Cas. (CCH) P 64,970 (9th Cir. 1982) (exclusion of four podiatrists from insurance coverage; complaint worded in class-action-like terms); Mishler v. St. Anthony's Hospital Systems, 1981-2 Trade Cas. (CCH) P 64,342 (10th Cir. 1981) (total exclusion from emergency room referral list of the major regional hospital in the area); Crane v. Intermountain Health Care, Inc., 637 F.2d 715 (10th Cir. 1981) (en banc) (total exclusion including restrictions on outside laboratory owned by plaintiff); Feminist Women's Health Center, Inc. v. Mohammad, 586 F.2d 530 (5th Cir. 1978) (attempted destruction of plaintiff's clinic), cert. denied sub nom. Palmer v. Feminist Women's Health Center, Inc., 444 U.S. 924, 62 L. Ed. 2d 180, 100 S. Ct. 262 (1979); Ballard v. Blue Shield of Southern West Virginia, Inc., 543 F.2d 1075 (4th Cir. 1976) (denial of all insurance proceeds for chiropractic services in an entire state), cert. denied, 430 U.S. 922, 51 L. Ed. 2d 601, 97 S. Ct. 1341 (1977); Doctors, Inc. v. Blue Cross of Greater Philadelphia, 490 F.2d 48 (3d Cir. 1973) (alleged inability to survive by major hospitals in the Philadelphia metropolitan area); Everhart v. Jane C. Stormont Hospital and Training School for Nurses, 1982-1 Trade Cas. (CCH) P 64,703 (D. Kan. 1982) (total denial of staff privileges to one doctor by three hospital defendants); Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, 1982-1 Trade Cas. (CCH) P 64,498 (N.D. Ill. 1981) (total denial of staff privileges by one hospital in which plaintiff physician had practiced medicine for one year); Malini v. Singleton & Associates, 516 F. Supp. 440 (S.D. Tex. 1981) (total denial of staff privileges by three hospital defendants); Feldman v. Jackson Memorial Hospital, 509 F. Supp. 815 (S.D. Fla. 1981) (although not a class action, complaint alleges general denial to all podiatrists; also alleges total destruction of business); Hyde v. Jefferson Parish Hospital District No. 2, 513 F. Supp. 532 (E.D. La. 1981) (total denial of staff privileges), rev'd on other grounds, 686 F.2d 286 (5th Cir. 1982); Robinson v. Magovern, 456 F. Supp. 1000 (W.D. Pa. 1978) (total denial of staff privileges); Zamiri v. William Beaumont Hospital, 430 F. Supp. 875 (E.D. Mich. 1977) (total denial of staff privileges). See also J. P. Mascaro & Sons, Inc. v. William J. O'Hara, Inc., 565 F.2d 264 (3d Cir. 1977) (alleged industry-wide price fix). But see Stone v. William Beaumont Hospital, No. 79-74212 (E.D. Mich. Aug. 17, 1981) (denial of heart catheterization privileges).

 On the other hand, the cases in which the ultimate decision was a holding that federal jurisdiction did not exist usually involve only partial restraints on the plaintiff's ability to conduct his profession. *fn11" Wolf v. Jane Phillips Episcopal-Memorial Medical Center, 513 F.2d 684 (10th Cir. 1975) (total exclusion of one doctor from two local hospitals); Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167 (8th Cir.) (denial of county medical society membership to chief of staff of plaintiff hospital; both hospital and chief of staff continued to practice medicine), cert. denied, 361 U.S. 884, 80 S. Ct. 155, 4 L. Ed. 2d 120 (1959); Riggall v. Washington County Medical Society, 249 F.2d 266 (8th Cir. 1957) (denial of county medical society membership to one doctor; doctor continued to practice medicine), cert. denied, 355 U.S. 954, 2 L. Ed. 2d 530, 78 S. Ct. 540 (1958); Spears Free Clinic & Hospital for Poor Children v. Cleere, 197 F.2d 125 (10th Cir. 1952) (defendants prevented licensing of plaintiff clinic; clinic still operated); Pao v. Holy Redeemer Hospital, No. 81-2918 (E.D. Pa. March 17, 1982) (ophthamological surgeon on staff at a number of other hospitals denied privileges at defendant hospital), after amended complaint, 547 F. Supp. 484 (E.D. Pa. 1982) (dismissing antitrust count for failure to state a claim); Nara v. American Dental Ass'n, 526 F. Supp. 452, 1981-2 Trade Cas. (CCH) P64,369 (W.D. Mich. 1981) (American Dental Association suspended plaintiff's membership; plaintiff still practiced medicine as a dentist); Barr v. National Right to Life Committee, Inc., 1981-2 Trade Cas. (CCH) P 64,315 (M.D. Fla. 1981) (denial of staff privileges to one doctor at two hospitals); Grigg v. Blue Cross and Blue Shield of Michigan, 1980-2 Trade Cas. (CCH) P 63,500 (E.D. Mich. 1980) (two ear-and-throat doctors excluded from one union health plan); Daley v. St. Agnes Hospital, Inc., 490 F. Supp. 1309, 1980-2 Trade Cas. (CCH) P63,443 (E.D. Pa. 1980) (nursing supervisor blacklisted by former employer); Moles v. Morton F. Plant Hospital, Inc., 1980-81 Trade Cas. (CCH) P 63,600 (M.D. Fla. 1978) (two local doctors excluded from the staff of one local hospital); Capili v. Shott, No. 78-1009-B1 (S.D. W. Va. March 15, 1978), aff'd, 620 F.2d 438 (4th Cir. 1980) (one doctor totally excluded from the staff of one hospital); Sokol v. University Hospital, Inc., 402 F. Supp. 1029 (D. Mass. 1975) (total exclusion of one doctor from the staff of one hospital); Harron v. United Hospital Center, Inc., 384 F. Supp. 194 (N.D. W. Va. 1974) (total exclusion of one doctor from the staff of one hospital), rev'd on other grounds, 522 F.2d 1133 (4th Cir. 1975), cert. denied, 424 U.S. 916, 47 L. Ed. 2d 321, 96 S. Ct. 1116 (1976); Nankin Hospital v. Michigan Hospital Service, 361 F. Supp. 1199 (E.D. Mich. 1973) (local hospital brings suit against a hospital service corporation that refused to renew, a contract with plaintiff; at most, plaintiff could show a partial diminution in business).

 The logic underlying this distinction between total and partial exclusions is apparent. Put quite simply, it is obvious that a total exclusion is more likely substantially and adversely to affect interstate commerce than a partial exclusion. Thus, analysis of the nature of the alleged restraint in each case will have a significant bearing on both the substantiality and nexus requirements of the tripartite jurisdictional test.

 b. Nature of the plaintiff

 The third and final element in this framework for analyzing federal court jurisdiction over denial of hospital staff privileges cases involves the nature of the specific plaintiff in each case. Judges sustaining their Sherman Act jurisdiction have been able to rely not only on the more exclusive restraints discussed above, but also have decided cases brought by large institutional plaintiffs or individual physician plaintiffs with hospital-based practices that would be particularly foreclosed by defendants' conduct. On the other hand, judges that have been unwilling to sustain their antitrust jurisdiction have relied not only on the pleading of less restrictive exclusions, but also have decided cases brought by individual physician plaintiffs whose practice is primarily independent of the defendant hospital or association.

 Many of the cases in which federal courts have sustained their own antitrust jurisdiction have involved large institutional plaintiffs (such as a hospital or clinic) or have involved class-based claims asserted for the benefit of large numbers of physicians. Hospital Building Co. v. Trustees of the Rex Hospital, supra (large hospital's expansion plans blocked); Hahn v. Oregon Physicians' Service and Physicians' Association of Clackamus County, supra (although not pleaded formally as a class action, complaint alleges denial to all podiatrists); Feminist Women's Health Center, Inc. v. Mohammad, supra, (clinic asserted tortious interference with contractual relations); Ballard v. Blue Shield of Southern West Virginia, Inc., supra, (class action on behalf of chiropractors); Doctors, Inc. v. Blue Cross of Greater Philadelphia, supra, (effectively, a class action on behalf of all Philadelphia hospitals); Feldman v. Jackson Memorial Hospital, supra (although not pleaded formally as a class action, complaint alleges denial to all podiatrists).

 All of the remaining cases in which federal courts have found Sherman Act jurisdiction involve individual doctors, or small groups of doctors, who have a primarily hospital-based medical practice. *fn12" Mishler v. St. Anthony's Hospital Systems, supra (neurosurgeon); Crane v. Intermountain Health Care, Inc., supra (pathologist); Everhart v. Jane C. Stormont Hospital and Training School for Nurses, supra (cardio-vascular surgeon); Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, supra (anesthesiologists); Malini v. Singleton & Associates, supra (radiologist); Hyde v. Jefferson Parish Hospital District, No. 2, supra (anesthesiologist); Robinson v. Magovern, supra (cardio-thoracic surgeon).

 On the other side of the jurisdictional coin, every court that has declined to exercise antitrust jurisdiction has been confronted with single or small-group physician plaintiffs; indeed, many physician plaintiffs in the non-jurisdiction cases have primarily non-hospital-based practices. *fn13" Wolf v. Jane Phillips Episcopal-Memorial Medical Center, supra (osteopathic physician); Elizabeth Hospital, Inc. v. Richardson, supra (physician chief-of-staff of plaintiff hospital denied privileges at separate hospital); Riggall v. Washington County Medical Society, supra (physician chief-of-staff of hospital denied medical society membership); Nara v. American Dental Association, supra (single dentist); Barr v. National Right to Life Committee, Inc., supra (obstetrician); Grigg v. Blue Cross and Blue Shield of Michigan, supra (two ear and throat doctors); Daley v. St. Agnes Hospital, Inc., supra (director of nursing); Moles v. Morton F. Plant Hospital, Inc., supra (two local physicians); Capili v. Shott, supra (one anesthesiologist); Sokol v. University Hospital, Inc., supra (one cardiac surgeon); Harron v. United Hospital Center, Inc., supra (one radiologist).

 The logical underpinnings of this final consideration are also apparent. For example, restraints applied against major business entities in the health-care industry (such as entire hospitals or classes of physicians) are obviously more likely to affect interstate commerce more substantially and adversely than restraints applied against single doctors. Further, and specific to the denial of hospital staff privileges genre of cases, a hospital's exclusion of a physician whose entire practice is based at a hospital is far more likely to affect interstate commerce because the denial is more likely to result in a total foreclosure than that same hospital's exclusion of a doctor whose primary practice is not hospital-based. Thus, as with the nature of the alleged restraint component of this framework, the nature of the specific plaintiff in each case should, as a matter of practical economics, influence a court's determination on both the substantiality and nexus requirements of the tripartite jurisdictional test.

 III. Application of Legal Standards to Plaintiffs' Sherman Act Allegations

 A. Introductory Statement

 It is against this legal background that I must determine whether defendants are entitled to a dismissal of plaintiffs' amended complaint or whether plaintiffs have now pleaded sufficient factual allegations to support jurisdiction under the Sherman Act. As has been made abundantly clear by the excellent briefs prepared by both sides throughout this litigation, by the initial opinion in this case, and by the statement of legal standards just completed, plaintiffs' allegations that defendants' conduct violates the antitrust laws raise exceedingly complex jurisdictional issues under the Sherman Act. Before proceeding to an analysis of the sufficiency of plaintiffs' interstate commerce allegations -- the only allegations at issue at this point in these proceedings -- it is essential to reiterate the fairly simple factual underpinnings of the instant case.

 The four individual plaintiffs in this case are the sole shareholders and physician-employees of the corporate plaintiff, Cardio-Medical Associates, Ltd. See Amended Complaint paras. 4-8. The offices of all four of these local physician-plaintiffs are "located within the buildings housing defendant CCMC." Id. at para. 37. All four individual physician plaintiffs currently enjoy staff privileges at CCMC and, in fact, admit patients to that hospital. Transcript of Oral Argument on Defendants' Motion to Dismiss, at 5 (July 29, 1982). Indeed, except for the individual plaintiff Cass, who practices only internal medicine, the remaining individual plaintiffs are actively engaged in the practice of cardiology within the Cardiology Department at CCMC. Id. Thus, plaintiffs allege merely that the denial to them of the opportunity to perform certain specialized cardiology procedures at CCMC is the result of an unlawful conspiracy on the part of defendants that has restrained trade in violation of sections 1 and 2 of the Sherman Act. E.g., Amended Complaint para. 49.

 The issue I must consider, therefore, is whether this limited denial of privileges to the individual physician-plaintiffs can, under any set of facts proved, substantially and adversely affect interstate commerce. My conclusion that no such effect is pleaded in plaintiffs' amended complaint is reached in three separate stages: (i) Plaintiffs' amended complaint does not satisfy the jurisdictional standards of the antitrust laws under the "in commerce" theory. (ii) Plaintiffs' amended complaint does not satisfy the tripartite jurisdictional standard of the antitrust laws under the "affecting commerce" theory. (iii) This decision is consistent with the vast majority of decided antitrust jurisdiction cases. Each of these is addressed below.

 B. "In Commerce" Theory

 Plaintiffs apparently attempt to satisfy the interstate commerce requirement of the Sherman Act by alleging in their amended complaint that their activities are actually "in" interstate commerce. *fn14" The imagery of a "continuous and integrated stream of interstate commerce" is repeated throughout the paragraphs of plaintiffs' amended complaint in an effort to create the impression that plaintiffs' activities occur within the flow of interstate commerce. *fn15"

 Plaintiffs' amended complaint alleges that both plaintiffs and defendants are engaged in the "provision of cardiology services . . . to patients with cardiac or potential cardiac conditions." Amended Complaint para. 30. But the provision of such services is an activity that occurs entirely within the Commonwealth of Pennsylvania and is, therefore, wholly local in nature. As a matter both of precedent and inescapable logic, the provision of cardiology services cannot be considered an activity that occurs in interstate commerce. As a result, the "in commerce" theory of antitrust jurisdiction is inapplicable in the instant case.

 It is well established that the provision of medical services is an intrastate transaction. The Seventh Circuit has held squarely that: "It is true that medical practice per se, and without more is a local activity. To bring it within the reach of the antitrust laws a substantial and adverse effect upon interstate commerce is required." Williams v. St. Joseph Hospital, 629 F.2d 448, 454 (7th Cir. 1980). The excellently reasoned opinion by Chief Judge Young in Moles v. Morton F. Plant Hospital, Inc., 1980-81 Trade Cas. (CCH) P 63,600 (M.D. Fla. 1978), aff'd mem. 617 F.2d 293 (5th Cir. 1980), cert. denied, 449 U.S. 919, 101 S. Ct. 317, 66 L. Ed. 2d 147 (1980), also emphasizes the intrastate nature of the practice of medicine in stating "[plaintiff'] work involves practicing medicine and furnishing medical services which is wholly intrastate." Id. at 77,189 (citing Wolf v. Jane Phillips Episcopal-Memorial Medical Center, 513 F.2d 684 (10th Cir. 1975)). Accord Riggall v. Washington County Medical Society, 249 F.2d 266 (8th Cir. 1957), cert. denied, 355 U.S. 954, 2 L. Ed. 2d 530, 78 S. Ct. 540 (1958).

 It is important to keep analytically distinct the "in commerce" and the "affecting commerce" theories of jurisdiction. Thus, plaintiffs cannot negate the essentially intrastate character of their business by identifying incidental ties with interstate commerce; such an approach is appropriate only under the "affecting commerce" theory of jurisdiction. For example, simply because plaintiffs might use equipment or drugs emanating from out-of-state in connection with the provision of cardiology services does not convert plaintiffs' activities to those that are "in commerce." See St. Anthony-Minneapolis, Inc. v. Red Owl Stores, Inc., 316 F. Supp. 1045 (D. Minn. 1970) (incidental flow of supplies in interstate commerce does not transform an essentially intrastate activity into an interstate enterprise). Further, plaintiffs' treatment of some patients who travel in interstate commerce in order to receive medical care does not transform plaintiffs' practice into an interstate enterprise. See Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167, 170 (8th Cir.) ("fact that some of plaintiff's patients might travel in interstate commerce does not alter the local character of plaintiff's hospital"), cert. denied, 361 U.S. 884, 4 L. Ed. 2d 120, 80 S. Ct. 155 (1959); Plum Tree, Inc. v. N.K. Winston Corp., 351 F. Supp. 80 (S.D.N.Y. 1972) (in a case in which transaction is intrastate in character, the mere incidental flow of customers and supplies in interstate commerce does not change that character). Finally, "in commerce" jurisdiction is not created by the allegation that plaintiffs' cardiology practice involves receipt of out-of-state payments. See Dominion Parking Corporation v. Baltimore & Ohio Railway Co., 450 F. Supp. 441, 444-45 (E.D. Va. 1978) ("passage of checks, reports and documents from one state to another cannot transform . . . a purely local business into an activity of interstate commerce.").

 The provision of cardiology services also cannot be considered "an integral, essential and inseparable part of an interstate transaction." Heille v. City of St. Paul, Minnesota, 1981-1 Trade Cas. (CCH) P62,997, AT 76,184 (D. Minn. 1981), aff'd, 1982-1 Trade Cas. (CCH) P64,565 (8th Cir. 1982). In Heille, both plaintiff and defendant were in the business of collecting rubbish. The trial court rejected plaintiff's argument that rubbish collection was "in commerce" stating that the transaction in question "starts and ends with the pick-up and deposit of the rubbish." Id. at 76,184. *fn16" As in Heille, the performance of cardiology services by plaintiffs is a transaction that both begins and ends within a single state; it is, therefore, not "in commerce."

 C. "Affecting Commerce" Theory

 As plaintiffs have failed to satisfy the "in commerce" theory of Sherman Act jurisdiction, their amended complaint must be dismissed unless it meets the tripartite "affecting commerce" jurisdictional test. See part II.B.2. supra. My holding that plaintiffs' amended complaint is fatally deficient in this regard as well is based on an analysis of each of the ten channels of interstate commerce identified in plaintiffs' complaint as being substantially and adversely affected by defendants' alleged illegal activities. *fn17" The following analysis demonstrates conclusively that, for each channel, plaintiff has failed to allege sufficient facts on at least one of the required jurisdictional elements. *fn18"

 1. Treatment of Out-of-State Patients by Plaintiffs

 Paragraphs 37 and 38 of plaintiffs' amended complaint contain allegations to the effect that plaintiffs treat patients who travel in interstate commerce. *fn19" Plaintiffs argue that these allegations identify a relevant channel of interstate commerce and that defendants' conduct has had a substantial and adverse effect on that channel because the total volume of patients serviced by plaintiffs, including those from out-of-state, would increase were it not for defendants' alleged antitrust violations.

 As I held in the initial Cardio-Medical opinion, "allegations relating to the treatment of patients who [travel] in interstate commerce do not satisfy the interstate commerce requirement of the antitrust laws." See Cardio-Medical, 536 F. Supp. at 1081. Regardless of whether this holding is analyzed under the presence of interstate commerce or nexus prong of the tripartite jurisdictional test, my position remains precisely the same: "the treatment of patients who must 'travel in interstate commerce' does not constitute the practice of medicine in 'interstate commerce as the transportation of such patients is incidental.'" Capili v. Shott, No. 78-1009-B1, slip op. at 3 (S.D. W. Va. March 15, 1978), aff'd, 620 F.2d 438 (4th Cir. 1980) (quoting Riggall v. Washington County Medical Society, 249 F.2d 266, 268 (10th Cir. 1957), cert. denied, 355 U.S. 954, 2 L. Ed. 2d 530, 78 S. Ct. 540 (1958)).

 This holding has substantial support in a number of the decided health-care industry cases. Wolf v. Jane Phillips Episcopal-Memorial Medical Center, 513 F.2d 684 (10th Cir. 1975); Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167 (8th Cir.), cert. denied, 361 U.S. 884, 80 S. Ct. 155, 4 L. Ed. 2d 120 (1959); Riggall v. Washington County Medical Society, supra; Spears Free Clinic and Hospital for Poor Children v. Cleere, 197 F.2d 125 (10th Cir. 1952); Nara v. American Dental Ass'n, 1981-2 Trade Cas. (CCH) P64,369 (W.D. Mich. 1981); Barr v. National Right to Life Committee, 1981-2 Trade Cas. (CCH) P64,315 (M.D. Fla. 1981); Daley v. St. Agnes Hospital, Inc., 490 F. Supp. 1309, 1980-2 Trade Cas. (CCH) P63,443 (E.D. Pa. 1980); Capili v. Shott, supra ; P 63,443 (E.D. Pa. 1980); Capili v. Shott, supra; Nankin Hospital v. Michigan Hospital Service, 361 F. Supp. 1199 (E.D. Mich. 1973). See Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976) (interstate travel of patients pleaded in complaint but not mentioned by Supreme Court); Doctors, Inc. v. Blue Cross of Greater Philadelphia, 490 F.2d 48 (3d Cir. 1973) (district court judge held that interstate travel of patients did not satisfy the jurisdictional requirement of the Sherman Act; court of appeals did not reach the issue).

 Concededly, an equally impressive array of courts have reached the opposite conclusion. Hahn v. Oregon Physicians' Service & Physicians' Association of Clackamus County, 1982-2 Trade Cas. (CCH) P 64,970 (9th Cir. 1982), rev'g, 1981-1 Trade Cas. (CCH) P 63,923 (D. Or. 1981); Mishler v. St. Anthony's Hospital Systems, 1981-2 Trade Cas. (CCH) P 64,342 (10th Cir. 1981); Crane v. Intermountain Health Care, Inc., 637 F.2d 715 (10th Cir. 1980) (en banc); Feminist Women's Health Center, Inc. v. Mohammad, 586 F.2d 530 (5th Cir. 1978), cert. denied sub nom. Palmer v. Feminist Women's Health Center, Inc., 444 U.S. 924, 62 L. Ed. 2d 180, 100 S. Ct. 262 (1979); Everhart v. Jane C. Stormont Hospital, 1982-1 Trade Cas. (CCH) P 64,703 (D. Kan. 1982); Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, 1982-1 Trade Cas. (CCH) P 64,498 (N.D. Ill. 1981); Robinson v. Magovern, 521 F. Supp. 842 (W.D. Pa. 1981), aff'd, 688 F.2d 824, (3d Cir. 1982); Malini v. Singleton & Associates, 516 F. Supp. 440 (S.D. Tex. 1981); Feldman v. Jackson Memorial Hospital, 509 F. Supp. 815 (S.D. Fla. 1981); Hyde v. Jefferson Parish Hospital District, No. 2, 513 F. Supp. 532 (E.D. La. 1981), rev'd on other grounds, 686 F.2d 286 (5th Cir. 1982); Stone v. William Beaumont Hospital, No. 79-74212 (E.D. Mich. Aug. 17, 1981).

 Unfortunately, very few of the above-cited cases contain any analysis in support of their holdings; rather, the conclusions of the courts tend to be expressed in conclusory terms. Indeed, the Barr case is the only opinion in which any reference is made to the particular facts involved in the decided cases. See Barr, 1981-2 Trade Cas. (CCH) at 74,409 ("plaintiff does not assert that his patients are crossing state lines with the purpose of availing themselves of his services, but rather that a number of them happen to be in Florida for vacation or business purposes"). I decline to follow the lead of the remainder of the above-cited cases by merely expressing my holding in conclusory terms.

 First, on the facts of this case, plaintiffs have not pleaded sufficient factual allegations to demonstrate a nexus between the denial to them of the right to use specialized cardiology procedures and any substantial effect on the interstate travel of patients. These plaintiffs already have staff privileges at CCMC and, indeed, already maintain offices on the premises of CCMC. It is logically inconceivable that granting the individual plaintiffs the right to perform certain additional specialized procedures will have any discernible impact on the travel of their patients in interstate commerce. This is not merely a shifting argument; it is a statement of logic based on my conviction that patients do not choose cardiologists because they either can, or cannot, perform services that the patient cannot even pronounce. *fn20" Thus, even assuming (which I do not) that travel of patients is a relevant channel of interstate commerce, on the facts of this case, as pleaded in plaintiffs' amended complaint, there is no logical nexus between the alleged restraint and the identified channel of commerce.

  Second, it is my view that the travel of patients in interstate commerce is so remote from and incidental to the provision of medical care that it will almost never be a relevant channel of interstate commerce in denial of hospital staff privileges cases. A simple analogy might help to illuminate this position. Let us assume that the plaintiff in another antitrust case is a house painter who performs all of his services in Ocean City, New Jersey. The defendant, a large painting contracting firm that is allegedly seeking to monopolize the house-painting market in Ocean County, moves to dismiss plaintiff's Sherman Act complaint for lack of federal court jurisdiction. Plaintiff replies that a substantial percentage of the houses he paints are owned by people who live in New York, Pennsylvania, and Delaware, and who, therefore, must travel in interstate commerce in order to get to their summer homes.

  Obviously, our hypothetical plaintiff's argument must be rejected. The travel of his customers in interstate commerce is simply too remote from his business or trade to vest a federal court with jurisdiction; his customers' travel in interstate commerce is wholly incidental to his painting of their houses. Plaintiffs in this case, like the plaintiff in Barr, do not assert that their patients travel in interstate commerce for the purpose of securing medical care from plaintiffs. Because the typical patient at most travels in interstate commerce to get to a particular hospital, as opposed to a particular doctor, in a standard denial of hospital staff privileges claim, the travel of patients in interstate commerce is so remote from and incidental to the provision of medical services that it is insufficient to vest a federal court with jurisdiction. *fn21"

  This analysis is inconsistent with the analysis of the Tenth Circuit in Crane v. Intermountain Health Care, Inc., 637 F.2d 715 (10th Cir. 1981) (en banc). In a footnote, the court of appeals appeared to conclude that McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 62 L. Ed. 2d 441, 100 S. Ct. 502 (1980), eliminated any doubt that "an interstate flow of people seeking a purely local service can have a substantial effect on interstate commerce." Crane, 637 F.2d at 726 n. 4. In McLain, the Supreme Court observed in passing, but did not hold, that on remand the plaintiffs might be able to "establish that, apart from the commerce in title insurance and real estate financing, an appreciable amount of interstate commerce is involved with the local residential real estate market arising out of the interstate movement of people." McLain, 444 U.S. at 245. See also Mortensen v. First Federal Savings and Loan Ass'n, 549 F.2d 884, 887-88 (3d Cir. 1977) (Third Circuit identifies out-of-state real estate purchasers as one of "several interstate contacts").

  Although I have no quibble with the Supreme Court's position in McLain or with the Third Circuit's holding in Mortensen, I must disagree with the unreasoned and unwarranted extensions of those two holdings undertaken by the Tenth Circuit in Crane. It is most certainly not the law that any antitrust plaintiff who can identify some interstate movement of people, no matter how remote the connection with the alleged antitrust violation, satisfies federal jurisdictional requirements. Unlike the health-care industry, and unlike our hypothetical local house painter, there is a logical nexus between the interstate travel of people and purchases of residential real estate -- as a direct result of people moving in interstate commerce residential real estate will be bought and sold. The logical connection between patient travel in interstate commerce and the receipt of medical services is so remote and incidental that any extension of the McLain and Mortensen residential real estate holdings to the health-care industry is wholly unwarranted.

  2. Interstate Flow of Revenues to Plaintiffs

  Paragraphs 41, 44, and 45 of plaintiffs' amended complaint allege that several hundred thousand dollars in annual revenues flow in interstate channels to plaintiffs from out-of-state private insurers and the federal government. In addition, plaintiffs allege in these same paragraphs that defendants' activities have foreclosed substantial additional revenues in this channel of interstate commerce. *fn22"

  Although the interstate flow of revenues argument appears to be plaintiffs' strongest point on the facts of this case, I hold, as I did in the initial opinion on this case, "that such allegations are insufficient to sustain the jurisdiction of a federal trial court." Cardio-Medical, 536 F. Supp. at 1081-82 n. 19. This position is consistent with the result reached in a number of other denial of hospital staff privileges cases. Barr v. National Right to Life Committee, Inc., supra; Moles v. Morton F. Plant Hospital, Inc., supra; Capili v. Shott, supra. See Feminist Women's Health Center v. Mohammad, supra (district court held that interstate flow of revenues did not vest federal court with jurisdiction; court of appeals did not reach issue); Doctors, Inc. v. Blue Cross of Greater Philadelphia, supra (district court held that interstate flow of revenues did not vest federal court with jurisdiction; court of appeals did not reach issue). Concededly, however, the majority of cases considering this issue have reached the opposite conclusion. Hospital Building Co. v. Trustees of the Rex Hospital, supra; Hahn v. Oregon Physicians' Service & Physicians' Association of Clackamas County, supra; Mishler v. St. Anthony's Hospital Systems, supra; Crane v. Intermountain Health Care, Inc., supra; Ballard v. Blue Shield of Southern West Virginia, Inc., 543 F.2d 1075 (4th Cir. 1976), cert. denied, 430 U.S. 922, 51 L. Ed. 2d 601, 97 S. Ct. 1341 (1977); Everhart v. Jane C. Stormont Hospital & Training School for Nurses, supra; Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, supra; Malini v. Singleton & Associates, supra; Feldman v. Jackson Memorial Hospital, supra; Hyde v. Jefferson Parish Hospital District No. 2, supra; Stone v. William Beaumont Hospital, supra; Robinson v. Magovern, 456 F. Supp. 1000 (W.D. Pa. 1978); Zamiri v. William Beaumont Hospital, 430 F. Supp. 875 (E.D. Mich. 1977).

  Again, it is unfortunate that, in most of the above-cited cases, no analysis is supplied to support the individual court's conclusions. *fn23" I remain both unsatisfied and frustrated with mere conclusory holdings on complex jurisdictional issues and therefore offer the following analysis in support of my position.

  First, the relationships between the third-party payors and the actual provision of medical services from doctor to patient appear to me to be too remote and incidental to sustain the limited jurisdiction of a federal trial court. *fn24" Chief Judge Young of the Middle District of Florida has expressed this position eloquently:

  

Although plaintiffs' interstate commerce allegations are set forth at length in the complaint, they all center upon one fact. Many patients' bills are paid by insurance companies or by the federal government. Funds for the payment of these bills necessarily travel in interstate commerce. Plaintiffs allege that the amount of funds received by them from the federal government and interstate insurance carriers is dependent upon plaintiffs' access to hospital facilities.

  

It is plaintiffs' patients who are responsible for the payment of plaintiffs' fees however. These fees are incurred for services performed intrastate. The patients are local residents. There has been no allegation that defendants have caused any increase (or decrease) in fees charged thereby causing a change in the flow of insurance benefits flowing in interstate commerce from the federal government and/or insurance carriers to the ultimate beneficiaries.

  

Defendants' actions have not been alleged to affect plaintiffs' relationships with the insurance carriers or the federal government. Nor have defendants' actions affected plaintiffs' patients' relationships with their insurers. It is not alleged that the patients will purchase any less insurance as a result of defendants' actions. Plaintiffs still are entitled to be paid just the same for the work they do. The amount of work plaintiffs do may be reduced as a result of defendants' actions, but this work involves practicing medicine and furnishing medical services which is wholly intrastate.

  Moles, 1980-81 Trade Cas. (CCH) at 77,189.

  The same conclusion can be illuminated by further reference to our hypothetical painter. Suppose that, in addition to the facts stated earlier, our plaintiff house painter was called on to paint a large number of houses in Ocean City as a result of a flood that destroyed or damaged a number of his clients' dwellings. Payment for these services came from one of three sources: (i) out-of-state insurance companies; (ii) the federal government's flood relief program; or (iii) personal checks drawn on either New Jersey, New York, Pennsylvania, or Delaware banks. Obviously, the local house painter is no closer to stating federal jurisdiction now than he was before these facts were added to the hypothetical. The economic reality of the situation is that his clients remain primarily liable for the cost of the house painting. The house painting, however, remains a purely local activity and cannot be transformed into one "affecting interstate commerce" simply because of the incidental and fortuitous result that the plaintiff receives some payments from out-of-state. *fn25"

  Second, and independent from the above argument, plaintiffs' allegations regarding interstate flow of revenues are legally deficient because of the shifting argument discussed extensively in part II.B.2. supra.26 See Exxon Corp. v. Maryland, 437 U.S. 117 57 L. Ed. 2d 91, 98 S. Ct 2207 (1978); Cartrade, Inc. v. Ford Dealers Advertising Ass'n of Southern California, 446 F.2d 289 (9th Cir. 1971), cert. denied, 405 U.S. 997, 31 L. Ed. 2d 465, 92 S. Ct. 1249 (1972); Dominion Parking Corp. v. Baltimore and Ohio Railway Co., 450 F. Supp. 441 (E.D. Va. 1978); Moles v. Morton F. Plant Hospital, Inc., supra.

  Plaintiffs' contention that, because they have been prevented from performing the specialized cardiology procedures at CCMC, they have been foreclosed from earning additional revenues is legally insufficient to vest this court with jurisdiction. As stated by the court in Moles : "Here all the allegations regard a diminution of interstate insurance payments to plaintiffs, but the flow in interstate commerce would be the same. The effect of the defendants' actions would be on the plaintiffs, but not on the flow of interstate commerce." Moles, 1980-81 Trade Cas. (CCH) at 77,189 (emphasis supplied). Cf. Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1977) (the antitrust laws are intended to protect competition, not individual competitors); Sausalito Pharmacy, Inc. v. Blue Shield of California, 544 F. Supp. 230, 235, 1981-1 Trade Cas. (CCH) P63,885, at 75,608 (M.D. Cal. 1981) ("the failure to make more money . . . is simply not the kind of problem which the antitrust laws address").

  3. Use of Medical Equipment and Medical Supplies by Plaintiffs

  Paragraphs 39, 40, 41 and 43 of plaintiffs' amended complaint allege that both plaintiffs and defendants *fn27" use medical equipment and supplies originating largely from out-of-state, that defendants' actions have foreclosed plaintiff's access to defendant CCMC's equipment, and that, as a result, the flow of medical equipment in interstate commerce has been reduced and affected by defendants' actions. *fn28"

  The allegations regarding use of medical equipment and supplies contained in plaintiffs' amended complaint are insufficient as a matter of law to establish either a substantial and adverse effect on interstate commerce or a logical nexus. This conclusion is supported by a number of the previously decided antitrust jurisdiction cases in the health-care field. Elizabeth Hospital, Inc. v. Richardson, supra; Spears Free Clinic and Hospital for Poor Children v. Cleere, supra; Nara v. American Dental Ass'n, supra; Barr v. National Right to Life Committee, Inc., supra; Daley v. St. Agnes Hospital, Inc., supra; Nankin Hospital v. Michigan Hospital Service, supra. Once more, an equally impressive number of the previously decided cases have reached a contrary conclusion. Hospital Building Co. v. Trustees of the Rex Hospital, supra; Hahn v. Oregon Physicians' Service and Physicians' Association of Clackamas County, supra; Mishler v. St. Anthony's Hospital Systems, supra; Crane v. Intermountain Health Care, Inc., supra; Williams v. St. Joseph Hospital, 629 F.2d 448 (7th Cir. 1980); Feminist Women's Health Center, Inc. v. Mohammad, supra; Ballard v. Blue Shield of Southern West Virginia, Inc., supra; Doctors, Inc. v. Blue Cross of Greater Philadelphia, supra; Everhart v. Jane C. Stormont Hospital and Training School for Nurses, supra; Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, supra; Malini v. Singleton & Associates, supra; Feldman v. Jackson Memorial Hospital, supra; Hyde v. Jefferson Parish Hospital District No. 2, supra; Stone v. William Beaumont Hospital, supra; Robinson v. Magovern, supra.29

  The now familiar lack of analysis by courts in the above-cited decisions is particularly frustrating in the context of the equipment and supply channel of interstate commerce. In this context, perhaps more than with any other channel, a federal court's holding on its jurisdiction must be guided exclusively by the well pleaded facts of the complaint in each case. See part II. C.1. supra. This principle is of particular significance on the facts of the instant case.

  First, the allegations in plaintiffs' amended complaint refer solely to an alleged effect on the use of equipment and supplies by plaintiffs. It is highly significant that the amended complaint is completely devoid of any allegations of an alleged effect on the purchase of medical equipment or medical supplies by plaintiffs. There is no allegation that plaintiffs directly purchased any medical equipment or supplies from any out-of-state supplier. Nor is there any indication in plaintiffs' amended complaint as to when plaintiffs might have purchased such out-of-state equipment. *fn30" Obviously, the mere local use of already purchased equipment and supplies is an intrastate activity and has no effect on interstate commerce regardless of the original shipping point of the equipment and supplies.

  Second, even assuming that defendants' equipment and supplies could be deemed a relevant area of inquiry for jurisdictional purposes, but see note 27 supra, plaintiffs' allegations that they have been foreclosed from access to defendants' equipment would not establish any effect on interstate commerce. As discussed earlier, see text following note 26 supra, any such impact would affect only plaintiffs, not interstate commerce, and, therefore, would be insufficient to establish jurisdiction under the Sherman Act. Of substantial significance in this regard is paragraph 52 of plaintiffs' amended complaint. It is alleged therein that "facilities of defendant CCMC are adequate to accommodate both plaintiffs and defendants in performing the specified and enumerated cardiac procedures upon their own patients, as well as upon referral patients who are not originally patients of either defendant Cardiology Associates or plaintiff, Cardio-Medical." Taking that allegation as true, it becomes apparent that granting plaintiffs access to the CCMC equipment that they are presently foreclosed from using will have absolutely no effect on interstate commerce.

  Third, plaintiffs' allegations relating to the use of out-of-state medical equipment and supplies in their own medical practice are also inadequate to meet the jurisdictional requirements under the Sherman Act. For example, plaintiffs allege nothing more than that "the violations alleged herein have affected the use of such equipment by . . . plaintiffs." Plaintiffs do not, however, specify the precise nature of the alleged effect on their equipment and supplies. As a matter of logic, it is difficult to understand how plaintiffs' inability to perform certain in-patient cardiology services at CCMC could have any effect on the use of plaintiffs' office equipment. The gravamen of plaintiffs' claims is that they have been denied the opportunity to use certain equipment maintained by CCMC. It defies logic to argue that, if granted the right to use that equipment, plaintiffs would then purchase that very same equipment for use in connection with their own practice. In any event, plaintiffs' amended complaint contains no factual allegations regarding any diminution or increase in their purchase of medical equipment and supplies as a result of defendants' alleged anticompetitive activities.

  4. Use of Automobiles, Gasoline, and Other Equipment by Plaintiffs

  In paragraph 46(b) of their amended complaint, plaintiffs allege that "automobiles, gasoline and other equipment and supplies routinely used in the conduct of a medical practice, which virtually all originate from out-of-state or in a continuous, unbroken integrated stream of interstate commerce, have been affected by defendants' boycott and foreclosures." *fn31" This allegation is also inadequate to satisfy the interstate commerce requirement of the Sherman Act.

  First, plaintiffs' use of equipment only indirectly related to their medical practice is so incidental and remote that it is insufficient to satisfy the stringent standards for federal court jurisdiction. Again, whether this type of analysis belongs within the identification of a relevant channel of interstate commerce or nexus prong of the "affecting commerce" jurisdictional test is not relevant as the result of the holding -- dismissal of plaintiffs' amended complaint -- is the same under either test. Further reference to our hypothetical local house painter illuminates this point. Just because our plaintiff painter drives a car every day to work, and just because that car was manufactured in Detroit, Michigan, does not transform his purely intrastate activities into a business affecting interstate commerce. Similarly, purely local doctors driving cars that were shipped across state lines and purchasing gasoline that has been shipped across state lines does not have the direct and substantial effect on interstate commerce required by the applicable precedents. Thus, any such alleged effects are too minimal, remote, and incidental to warrant invocation of federal court jurisdiction. See, e.g., Lieberthal v. North Country Lanes, Inc., 332 F.2d 269 (2d Cir. 1964); Hotel Phillips, Inc. v. Journeymen, Barbers, etc., 195 F. Supp. 664, 666 (W.D. Mo. 1961), aff'd, 301 F.2d 443 (8th Cir. 1962).

  Second, plaintiffs again allege only that they use this indirectly related equipment that was at some time purchased in interstate commerce. There is no allegation that plaintiffs directly purchased this equipment from an out-of-state supplier, nor do they allege when the equipment was purchased. Further, plaintiffs do not allege that their purchases of this indirectly related equipment and supplies have been diminished or increased as a result of defendants' activities.

  Third, on the facts of this case, plaintiffs have failed to meet the substantiality and nexus requirements of the tripartite jurisdictional test. There is simply no allegation as to how the challenged denial of the right to practice specialized cardiology procedures affects interstate commerce in gasoline or automobiles. Significantly, plaintiffs admit in their amended complaint that their offices are on CCMC property. See Amended Complaint paras. 4, 37. Thus, plaintiffs do not drive to the hospital; they walk. Further, there is no logical explanation as to why plaintiffs will use their automobiles more and therefore buy more gasoline should they be granted the right to perform these additional specialized procedures at CCMC.

  5. Prescription of Drugs and Medicines by Plaintiffs

  Plaintiffs allege in paragraphs 42 and 43 of their amended complaint that they, and defendants, *fn32" prescribe significant quantities of drugs and medications for their patients, and that defendants' allegedly anticompetitive actions have affected this channel of interstate commerce by diminishing its volume. *fn33" Plaintiffs' allegations regarding the prescription of drugs and medications fail to aver a substantial and adverse effect on interstate commerce. See Elizabeth Hospital, Inc. v. Richardson, supra. But see Hospital Building Co. v. Trustees of the Rex Hospital, supra.

  Plaintiffs' major difficulty under the tripartite jurisdictional standard is with the nexus requirement. Plaintiffs have simply failed to allege any logical connection between the challenged denial to them of the right to perform certain specialized cardiology procedures in CCMC and their prescription of additional interstate drugs and medications in their private practice or for their hospitalized patients. For example, in paragraph 42 of their amended complaint, plaintiffs allege that their hospital in-patients at CCMC require approximately $150,000 a year in cardiac patient medications largely emanating from outside Pennsylvania. Yet there is no allegation, and indeed can be no allegation, as to how that $150,000 figure will be affected in any way by plaintiffs being permitted to perform additional specialized procedures. Plaintiffs have simply not asserted any relationship between the contested denial and their prescription of drugs and medications.

  Further, the shifting argument described earlier in this opinion is particularly devastating to plaintiffs' position on this identified channel of interstate commerce. The only effect cited by plaintiffs is that they have been foreclosed from an opportunity to prescribe additional medications for their own patients as well as for other patients. Although this foreclosure may affect the individual plaintiffs, it does not constitute an effect on interstate commerce. See text following note 26 supra ; part II.C.2. supra. The same quantity of drugs and medications is obviously prescribed for patients requiring cardiology services, regardless of the identity of the treating physician. It is, therefore, immaterial whether drugs and medications are ordered by plaintiffs or by the members of Cardiology Associates. There is no effect on interstate commerce because the flow of commerce remains the same; the only change that might arguably occur is with respect to which party is prescribing the drugs and medications. *fn34"

   In this connection, it is significant to note what plaintiffs have not alleged in their amended complaint. There are no allegations, for example, that the flow of drugs and medications into the Commonwealth of Pennsylvania is any less as a result of the defendants' actions. Nor is there any allegation that the flow of drugs and medications into Pennsylvania will be reduced or terminated at any time in the future. Further, plaintiffs have not alleged that they would order a greater number of procedures for their patients than they order under the status quo if they were permitted to perform the cardiology services at CCMC. Finally, there is no allegation that plaintiffs would prescribe more medications for their patients or for other patients than are presently being prescribed by plaintiffs, defendants, or other physicians.

  Finally, and significantly, plaintiffs do not buy and resell drugs and medications regularly in their practice of medicine. At best, plaintiffs merely prescribe drugs and medications that are then purchased by their patients. Any alleged effect on the interstate commerce in drugs and medications would therefore be several steps removed from the plaintiffs' own activities. As a result, this identified channel of interstate commerce is also too remote and incidental to vest a federal court with jurisdiction.

  6. Dissuasion of Out-of-State Physicians From Associating With Plaintiffs

  Plaintiffs allege in paragraph 46(a) of their amended complaint that "medical personnel educated out-of-state or originating from out-of-state, have been dissuaded from joining plaintiff Cardio-Medical's staff because of the group boycott and other violations and foreclosures mounted by the defendants herein." Even assuming that this allegation could be substantiated, it fails to satisfy any one of the three "affecting commerce" jurisdictional standards.

  Read in its best light, plaintiffs would appear to be alleging that some restraint has been placed on the market for medical personnel services. A similar argument was considered and emphatically rejected by then District, now Circuit, Judge Becker in Daley v. St. Agnes Hospital, Inc., supra. The plaintiff in Daley, a hospital nursing director, claimed that he was discharged and blacklisted because of his advocacy of the rights, privileges, and professional status of his nursing staff and alleged a violation of the Sherman Act. The trial court dismissed the antitrust claim on the grounds that plaintiff had not established any relationship between the alleged illegal activity and interstate commerce. Judge Becker explained that:

  

Plaintiff cannot argue that his inability to find employment in surrounding states provides that nexus with interstate commerce, for "the labor of a human being is not a commodity or article of commerce." 15 U.S.C. § 17. Thus even if plaintiff had proffered facts showing that restraints were placed upon the marketing of his services, and even if those restraints curtail competition among employees, he would not have established a combination or conspiracy in restraint of trade or commerce without some further evidence of anticompetitive effect other than with regard to labor.

  Daley, 490 F. Supp. 1309,, 1980-2 Trade Cas. (CCH) at 76,305. See generally Apex Hosiery Co. v. Leader, 310 U.S. 469, 84 L. Ed. 1311, 60 S. Ct. 982 (1940); Taterka v. Wisconsin Telephone Co., 394 F. Supp. 862 (E.D. Wis. 1975), aff'd mem. 559 F.2d 1224 (7th Cir. 1977), cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281 (1977).

  Equally significant, I can apprehend no logical connection whatever between plaintiffs having only partial staff privileges at CCMC and the market for medical personnel services, even assuming that to be a relevant channel of interstate commerce. *fn35" Even assuming the existence of some remote logical connection that has escaped my attention, it is both illogical and incredible to assume that the effect on interstate commerce of denying four local physicians the right to perform several specialized cardiology procedures is anything but de minimis.

  7. Inflating of Fees for Cardiology Services

  In portions of paragraphs 46, 50, 51, 53, and 58 of their amended complaint, plaintiffs allege that, as a result of their inability to perform the specified procedures at CCMC, the fees charged for cardiology services have been inflated. More specifically, plaintiffs allege that defendants' challenged activities have lessened price competition and resulted in "double-billing" of their patients. *fn36" Assuming, as I must, that plaintiffs could in fact substantiate these somewhat puzzling allegations, I hold that they are legally insufficient to establish jurisdiction under the Sherman Act. *fn37"

  Initially, it should be noted that double-billing and inflation of fees are obviously not channels of interstate commerce in and of themselves. Plaintiffs' allegations regarding these effects on interstate commerce are, therefore, premised on the assumption that the interstate flow of revenues constitutes a relevant channel of interstate commerce for Sherman Act jurisdictional purposes. I have consistently rejected that position. See part III.C.2. supra; Cardio-Medical, 536 F. Supp. at 1081 n. 19.

  Second, with respect to plaintiffs' allegations on the alleged price competition effect of defendants' activities, it is exceedingly doubtful whether any price competition exists in the health-care market. This issue was addressed extensively by Judge Cohill in his lengthy opinion in Robinson v. Magovern, 521 F. Supp. 842 (W.D. Pa. 1981), aff'd 688 F.2d 824 (3d Cir. May 11, 1982). *fn38" Robinson was an unsuccessful antitrust action brought by a physician-plaintiff who had been denied hospital staff privileges.

  Judge Cohill noted in his opinion that: "The third-party payor system generally insulates the consumer-patient from price considerations; this sharply contrasts with the commercial world, in which price often is the determinative factor for the buyer. When purchasing medical services, most consumer-patients look for a high quality of care rather than for a low price." Id. at 877. Cf. SmithKline Corp. v. Eli Lilly & Co., 575 F.2d 1056, 1063 (3rd Cir.) (recognizing that the demand for various antibiotics with overlapping capabilities are not sensitive to price), cert. denied, 439 U.S. 838, 58 L. Ed. 2d 134, 99 S. Ct. 123 (1978). In this case, plaintiffs have alleged that "virtually all of Cardio-Medical's patients are covered by some kind of 'third-party billing' procedure." Amended Complaint para. 44. Thus, it is unlikely that plaintiffs would be able to establish the existence of any price competition in the purchasing of cardiology services, let alone that defendants' activities had an effect on such competition.

  Finally, plaintiffs have failed to allege the requisite nexus between the alleged denial by defendants of the right to perform certain specialized cardiology procedures at CCMC and the asserted effect on prices and competition. Plaintiffs have not contended that they would charge less for these services than does Cardiology Associates. Nor is there any logic supporting plaintiffs' contention that the defendants' activities have resulted in the double-billing of patients for cardiology services. The only way in which plaintiffs' patients could be double-billed for cardiology services is if plaintiffs themselves are billing their own patients for services they do not perform. *fn39" As a result, the critical nexus does not exist between the alleged effect on prices and the challenged activity of defendants.

  8. Diminished Interstate Investments in Plaintiffs' Pension Portfolio

  Paragraphs 44 and 46(h) of plaintiffs' amended complaint allege that defendants' allegedly anticompetitive activities have diminished the volume of revenues and investments of plaintiffs' pension portfolio, which is managed in Maryland. *fn40" Once more, plaintiffs' identification of this particular channel of interstate commerce is insufficient as a matter of law to meet the interstate commerce requirement of the Sherman Act. See Doctors, Inc. v. Blue Cross of Greater Philadelphia, supra (district court holds that the pension investments channel of interstate commerce is insufficient to sustain antitrust jurisdiction; issue not reached by court of appeals).

  As with a number of the other channels of interstate commerce identified by plaintiffs, the allegations regarding pension portfolio investments merely identify an effect on plaintiffs, and not an effect on interstate commerce. As discussed above, effects on competitors are inadequate to satisfy the interstate commerce requirement of the antitrust laws absent an allegation of effects on commerce. See text following note 26 supra. The amended complaint's failure to contain any allegations of adverse and substantial effects on interstate commerce stemming from plaintiffs' investments is, therefore, fatal to plaintiffs' position. *fn41"

  Even assuming that interstate commerce in investments has been affected in some way by defendants' actions, I hold that any such effect would be too incidental, remote, and indirect to be cognizable under the Sherman Act. Common sense dictates that any supposed impact on the interstate investment of plaintiffs' revenues is several steps removed from the denial to plaintiffs of the opportunity to perform certain specialized cardiology procedures at CCMC. Indeed, plaintiff's theory of the supposed connection between defendants' actions and interstate investment of their revenues is based on the assumption, not supported by any allegations in the amended complaint, that any additional revenues derived from the performance of procedures at CCMC would be invested in plaintiffs' pension portfolio. As a result, plaintiffs have also failed to allege the required critical nexus between the alleged foreclosures by defendants and the effect on plaintiffs' pension investments.

  9. Curtailment of Plaintiffs' Practice in Connection With a New Jersey Clinic

  Plaintiffs allege in paragraph 46(i) of their amended complaint that their "practice in connection with a New Jersey Clinic and patients therefrom referred to plaintiff Cardio-Medical has been and is threatened with curtailment and foreclosure as a result of the defendants' unlawful activities." Further, plaintiffs allege in paragraphs 59(d) and 64(d) of their complaint, that in this respect, they "have been prevented from fully expanding and developing their practice." These allegations are also insufficient to satisfy the interstate commerce jurisdictional requirement of the Sherman Act.

  The New Jersey practice allegations in plaintiffs' amended complaint fail to identify a relevant channel of interstate commerce. As with the medical personnel allegations discussed earlier, see part III.C.6. supra, this set of allegations refers to a supposed effect on the activities of the individual plaintiffs in their practice of medicine. As discussed above, the labor of a human being does not constitute a commodity or article of commerce for purposes of the Sherman Act. See Daley v. St. Agnes Hospital, supra. Further, at best, plaintiffs' New Jersey practice allegations refer only to effects on plaintiffs, not effects on interstate commerce. See text following note 26 supra.

  Even under the most liberal of interpretations, plaintiffs' New Jersey practice allegations are insufficient to vest a federal court with jurisdiction. If plaintiffs intend to refer to the interstate travel of New Jersey patients as the appropriate channel of commerce, I have already ruled that such travel does not constitute a relevant channel of interstate commerce for federal jurisdictional purposes. See part III.C.1. supra; Cardio-Medical, 536 F. Supp. at 1081. In any event, because those New Jersey patients, by plaintiffs' own assertions, would travel to a clinic in New Jersey, and not Pennsylvania, it is difficult to understand how interstate travel of patients is involved. If plaintiffs are referring to their own travel across state lines to conduct a practice in New Jersey, the New Jersey practice allegations would still be insufficient. This travel is completely incidental to plaintiffs' practice of medicine, which is performed only locally, whether in Pennsylvania or New Jersey.

  Finally, plaintiffs have again failed to allege the critical nexus between defendants' challenged activities and this identified channel of interstate commerce. The explanation for this failure must be the impossibility in explaining how the denial to plaintiffs of the opportunity to perform limited specialized cardiology procedures at CCMC could have any impact whatsoever on plaintiffs' practice at a New Jersey clinic. Plaintiffs have not alleged that defendants have prevented them from going to New Jersey to practice, nor do they allege that defendants have sought to prevent New Jersey patients from seeking their services. Absent such allegations, it is unclear as a matter of logic how defendants have contributed to any difficulties plaintiffs might be able to prove that they have had in developing their New Jersey practice.

  10. Lessening of Use of Out-of-State Continuing Education

  In paragraph 46(e) of plaintiffs' amended complaint it is alleged that "the use and application of plaintiffs' continuing education through out-of-state professional seminars, out-of-state publications and manuals, and other out-of-state sources, have been foreclosed and lessened as a result of defendants' allegedly anticompetitive activities." This allegation is also insufficient to establish jurisdiction under the Sherman Act.

  All of the analysis supporting my holding that this identified channel of interstate commerce is insufficient to meet plaintiffs' jurisdictional burden has been thoroughly explored in earlier sections. First, this alleged effect is, taken at its best, an effect only on plaintiffs, and not an effect on interstate commerce. See text following note 26 supra. Second, the out-of-state continuing education allegation refers to a supposed effect on the activities of the individual plaintiffs in their practice of medicine. Because the labor of a human being does not constitute a commodity or article of commerce for purposes of the Sherman Act, see part III.C.6. supra; Daley v. St. Agnes Hospital, supra, such an allegation is insufficient to satisfy the affecting commerce theory. Finally, plaintiffs' allegations with respect to this channel of commerce contain no reference to the required nexus between the actions of defendants and the effects allegedly felt on interstate commerce. It is inconceivable that plaintiffs' inability to perform a limited number of specialized cardiology procedures has any logical relationship to the interstate market in continuing education. *fn42"

  11. Summary

  This opinion has discussed, in concededly painstaking detail, each of plaintiffs' interstate commerce allegations. As a result of the foregoing analysis, I hold that the allegations contained in plaintiffs' amended complaint are legally insufficient to meet the interstate commerce requirement of the Sherman Act. Notwithstanding the extensive guidance provided to plaintiffs by the initial opinion in this case, and notwithstanding the added assistance of new counsel, the amended complaint does not provide the allegations necessary for this court to find (i) a relevant channel of interstate commerce; (ii) a substantial and adverse effect upon interstate commerce; and (iii) a logical nexus between the challenged activities of defendants and the effect on the relevant channel of commerce identified.

  Although plaintiffs' counsel have made a valiant attempt to plead properly a valid cause of action, they, like the court, are constrained by the facts in the instant case. Plaintiffs' amended complaint contains little more than a greater number of the same type of allegations characterized as "vague, broad, and conclusory" by the initial opinion in this case. See Cardio-Medical, 536 F. Supp. at 1080. Thus, although plaintiffs have attempted to make up in quantity what they lack in substance, the whole complaint cannot be greater than the sum of its parts -- and the sum of ten zeroes still equals zero.

  D. Consistency With Prior Precedent

  My holding that plaintiffs' amended complaint fails to contain sufficient allegations to satisfy the interstate commerce requirement of Sherman Act jurisdiction is supported amply by earlier precedent. No fewer than fifteen courts deciding antitrust cases involving the health-care industry have concluded that allegations quite similar to those found in plaintiffs' amended complaint are insufficient to vest a federal court with jurisdiction. In particular, the Wolf, Riggall, Barr, Grigg, Daley, Moles, and Capili cases directly support the result reached in this opinion. These cases discuss and analyze such channels of interstate commerce as the interstate flow of revenues, travel for the purpose of medical care, the use and purchase of medical equipment and supplies, the prescription of drugs and medications, and the market for medical personnel services, and find none of these channels, in any combination, sufficient to satisfy the jurisdictional requirements of the Sherman Act. *fn43"

   Further, within the terms of the framework explained in part II.C. supra, my holding is fully consistent with the previously decided Supreme Court, Third Circuit, and other denial of hospital staff privileges precedents. For example, plaintiffs' assertion that the interstate commerce allegations in Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976), "are almost on all fours with the interstate commerce allegations here,'" Plaintiffs' Memorandum in Opposition to Defendants' Joint Motion to Dismiss at 15, is simply incorrect. Although Hospital Building Co. did involve a hospital defendant, and therefore channels of commerce similar to those suggested by plaintiffs in the instant case were discussed by the Supreme Court, the similarity between the two cases ends at that point.

  In Hospital Building Co., plaintiff alleged that defendants had conspired to halt the planned expansion of plaintiff's hospital. Thus, plaintiff alleged that, if defendants' conspiracy succeeded, (i) the plaintiff's purchases of out-of-state medicine and supplies, as well as its revenues from out-of-state insurance companies, would be substantially lessened; (ii) management fees that plaintiff paid to its out-of-state parent corporation would be diminished; and (iii) the multi-million dollar financing for the expansion, a large portion of which would come from out-of-state lenders, would not take place.

  Given this explanation of the Hospital Building Co. facts, that case is totally distinguishable from plaintiffs' claims here. First, with respect to the sheer magnitude of the amount of interstate commerce involved, it is apparent that, if any interstate commerce is implicated by defendants' action in this case, it is miniscule in comparison to that involved in Hospital Building Co. The interstate commerce activities of the four local plaintiff-physicians suing in this action, do not even come close to approaching those of the plaintiff in Hospital Building Co., a large hospital building company, whose parent company, headquartered in Georgia, operated in a number of states.

  Second, the conspiracy challenged in Hospital Building Co., if successful, would have blocked totally the planned expansion of plaintiff's new hospital. Certain events, such as the purchase of out-of-state supplies and interstate financing, would not have taken place if defendants' conspiracy succeeded. In contrast, the alleged restraint in the instant case relates only to the ability of plaintiffs to perform a limited number of cardiology procedures at defendant CCMC. There is no allegation that defendants have sought to foreclose plaintiffs from attending their patients at CCMC, performing cardiology procedures in their office, or pursuing their practice of medicine anywhere else.

  The Third Circuit cases relied on by plaintiffs are also distinguishable from this action and are, therefore, not dispositive of the jurisdictional issue. In each of the two primary Third Circuit cases cited by Cardio-Medical, the plaintiffs were able to establish a readily apparent nexus between the defendants' challenged activities and the alleged effect on interstate commerce. Further, the plaintiffs in the Third Circuit cases also demonstrated that a significant amount of interstate commerce was affected by defendants' actions.

  For example, in Doctors, Inc. v. Blue Cross of Greater Philadelphia, plaintiff alleged that the necessary effect of defendants' alleged conspiracy to terminate plaintiff's Blue Cross membership would be complete closure of plaintiff's operations and total elimination of its $2 million annual purchases of supplies in interstate commerce. Similarly, in Harold Friedman, Inc. v. Thorofare Markets, Inc., plaintiff, operator of a supermarket, was eliminated from a shopping center as a result of an "exclusivity clause" obtained by one of its competitors, also operating in the shopping center. In concluding that plaintiff had satisfied the interstate commerce requirement of the Sherman Act, the Court of Appeals in Harold Friedman, Inc., relied on the facts that the case involved a nationwide supermarket chain and that the value of products travelling in interstate commerce greatly exceeded the amount involved in the Hospital Building Co. case.

  Thus, the applicable Supreme Court and Third Circuit precedents are distinguishable from the present case with respect to both (i) the nature of the alleged restraint and the obvious nexus between that restraint and the alleged effect (i.e. total elimination of plaintiff as a competitor), and (ii) the magnitude of interstate commerce involved.

  Aside from Hospital Building Co., Doctors, Inc., and Harold Friedman, Inc., twelve other courts considering denial of hospital staff privileges claims or other health-care industry issues have concluded that federal jurisdiction exists on allegations similar to those in the instant case. Putting aside the Third Circuit's warning that precedent is not going to be particularly helpful in deciding antitrust jurisdictional cases, see Doctors, Inc., 490 F.2d at 51, eleven of those cases are easily distinguishable from the facts of the instant case. First, all twelve of the adversely decided cases except Stone v. William Beaumont Hospital, supra, involve total restraints infringing on the very ability of the plaintiffs to remain in the market as a meaningful competitor. In contrast, the limited, partial restraint alleged in this case cannot logically be deemed to have anywhere near this substantial an effect. Second, three of the adversely decided cases (Feminist Women's Healthy Center, Inc., Ballard, and Feldman) were brought either on behalf of a class of physicians or on behalf of a hospital. As a matter of logic, the four local physicians suing in this case cannot hope to establish the substantiality and causal nexus that the plaintiffs in those three cases alleged. Finally, in eight of the remaining adversely decided cases, the individual physicians suing had hospital-based practices. The threat to these plaintiffs as competitors cannot even be compared, either as a matter of substantiality or nexus, to the remote threat to the four local physicians with a concededly non-hospital based practice involved in the instant case. Thus, only the Eastern District of Michigan decision in Stone cannot be harmonized with the result reached in the instant case. And to that extent, I am forced to disagree with Judge Guy's conclusion. *fn44"

   IV. Conclusion

  Plaintiffs have suggested several times throughout these proceedings that both defendants and this court have attempted to apply a "special" analysis to plaintiffs' interstate commerce allegations so as to insulate hospital defendants from the full and customary reach of the Sherman Act. As this opinion adheres strictly to traditional antitrust analysis, plaintiffs' suggestion is incorrect. Ironically, because plaintiffs refuse to accept the reality that the Sherman Act does not extend to every type of restraint, no matter how local in nature, it is plaintiffs who seek to have this court apply a "special" rule to the instant case. As stated in Rasmussen v. American Dairy Ass'n, 472 F.2d 517, 526 (9th Cir. 1972), cert. denied, 412 U.S. 950, 37 L. Ed. 2d 1003, 93 S. Ct. 3014 (1973), "there must be some limit on the intrusiveness of Sherman Act regulation." Plaintiffs' amended complaint challenging the limited denial to them of the opportunity to perform certain specialized cardiology procedures at CCMC, represents precisely the type of claim that warrants application of that rule. If antitrust jurisdiction can be invoked on the basis of these plaintiffs' allegations, virtually all activities, even if purely local, and including our hypothetical house painter, would be subject to federal antitrust scrutiny. As a matter of policy and legal precedent, such a result would be absurd.

  Plaintiffs have cited ten categories of allegations that they contend satisfy the interstate commerce requirement of the antitrust laws. As discussed in detail throughout this opinion, each of these identified channels of interstate commerce is legally deficient under the tripartite jurisdictional analysis adopted by this court. Plaintiffs have been equally unsuccessful in their invocation of the "in commerce" jurisdictional standard. Thus, plaintiffs have fulfilled the prediction made in the initial Cardio-Medical opinion that the facts of this case would not support an amended complaint vesting a federal court with jurisdiction. See Cardio-Medical Associates, Ltd. v. Crozer-Chester Medical Center, 536 F. Supp. 1065, 1085 (E.D. Pa. 1982).

  Notwithstanding its affirmance of federal court jurisdiction, the Tenth Circuit in Crane v. Intermountain Health Care, Inc., 637 F.2d 715 (10th Cir. 1981) (en banc), stated that "interstate commerce is not implicated for Sherman Act purposes every time someone is excluded from a staff, organization, association or other membership." Id. at 726. This case provides a clear illustration of that principle. Plaintiffs have now had two opportunities to plead sufficient factual allegations to vest this court with jurisdiction. In light of this repeated failure to allege a legally cognizable antitrust claim, and in light of my holding that plaintiffs can prove no set of facts that would satisfy the interstate commerce requirement of the Sherman Act, I dismiss plaintiffs' amended complaint with prejudice and direct that judgment be entered in favor of all defendants.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.