456 F. Supp. at 1003. Unlike Dr. Magovern, Dr. Bahnson did not wear two conflicting hats; he did not have a private surgical practice at Children's Hospital. See Robinson v. Magovern, 521 F. Supp. at 907.
Finally, we believe that the decision of the Ad Hoc Hearing Committee not to renew Dr. Pontius's staff privileges, if supported by substantial evidence, insulates the individual defendants from antitrust liability for the resulting termination. Any other holding would chill the rights and obligations of physicians to participate in peer review. In many instances, reviewing bodies will need to rely on doctors in the same field as the physician under investigation. These doctors will in many instances be competitors. While we recognize that there is some risk that a physician might impugn the qualifications of a competitor before a credential committee or a peer review board, we have no reason to believe that the profession itself or state laws pertaining to defamation cannot adequately address this problem. Improving the process of peer review has been the objective of several state and federal laws. See e.g., Professional Standards Review, 42 U.S.C. §§ 1320c-1-1320c-21 (1976 & Supp. 1981); Peer Review Protection Act, 63 Pa. Stat. Ann. § 425.1 (Purdon 1982 Supp.). We doubt that peer review would be improved if the testifying physicians knew that their role in the proceedings would present them with antitrust liability. This seems to us to be a compelling instances where "the public service aspect, and other features of the professions, may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently." Goldfarb v. Virginia State Bar, 421 U.S. 773, 788-789 n.17, 44 L. Ed. 2d 572, 95 S. Ct. 2004 (1975).
C. Dr. Pontius's Claims Under Section 2 of the Sherman Act
Section 2 of the Sherman Act prohibits anyone from monopolizing, attempting to monopolize or conspiring to monopolize any part of interstate commerce. The plaintiff alleges that, in violation of section 2, the defendants jointly and/or severally have monopolized or have attempted to monopolize the trade of pediatric thoracic and cardiovascular surgical services in the relevant geographic market and that the defendants have conspired to monopolize the relevant product in the relevant geographic submarket.
In order to establish that a defendant has committed the offense of monopolization, the plaintiff must prove "(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." United States v. Grinnell Corp., 384 U.S. 563, 570-71, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966). A defendant possesses monopoly power if it has the ability to change the competitive variables of a product to the disadvantage of consumers without causing effective competitors to enter the relevant market. See United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391-92, 100 L. Ed. 1264, 76 S. Ct. 994 (1956); American Tobacco Co. v. United States, 328 U.S. 781, 811, 90 L. Ed. 1575, 66 S. Ct. 1125 (1946).
The plaintiff's complaint may also be read as alleging that Children's Hospital and the individual defendants have attempted to monopolize the delivery of pediatric cardiovascular surgery in violation of section 2 of the Sherman Act. The essential elements of an attempt to monopolize are (1) a specific intent to monopolize the relevant product and geographic markets and (2) such existing market power that there is a dangerous probability of success. See Swift & Co. v. United States, 196 U.S. 375, 396, 49 L. Ed. 518, 25 S. Ct. 276 (1905). See generally Handles & Steuer, Attempts to Monopolize and No-Fault Monopolization, 129 U. Pa. L. Rev. 125 (1980).
Dr. Pontius's final section 2 theory is that the defendants conspired to monopolize the delivery of pediatric thoracic and cardiovascular surgery in the relevant geographic market in violation of section 2 of the Sherman Act. The plaintiff has the burden of producing sufficient evidence to establish that the alleged conspirators "had a conscious commitment to a common scheme designed to achieve an unlawful objective." Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir. 1980).
The essential elements of a conspiracy to monopolize are (1) an agreement or understanding between two or more economic entities, (2) a specific intent to monopolize, and (3) the commission of an overt act in furtherance of the alleged conspiracy. See, e.g., Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 709-10, 8 L. Ed. 2d 777, 82 S. Ct. 1404 (1962); Cullum Electric & Mechanical, Inc. v. Mechanical Contractors Association of South Carolina, 436 F. Supp. 418, 425 (D.S.C. 1976), aff'd, 569 F.2d 821 (4th Cir.), cert. denied, 439 U.S. 910, 58 L. Ed. 2d 255, 99 S. Ct. 277 (1978). Accord, 3 J. von Kalinowski, Antitrust Laws and Trade Regulation § 9.02 (1981).
All of these section 2 claims require some showing that the defendants had an unlawful intent to monopolize. For purposes of this opinion, we will accept, at the outset, the proposition that Children's Hospital has an effective monopoly in the tri-state area on the facilities for pediatric thoracic and cardiovascular surgery. See Robinson v. Magovern, 521 F. Supp. at 878. There is, however, utterly no evidence that the monopoly is willful or the result of a conspiracy. We do not understand that Dr. Pontius argues to the contrary. There is no indication that Children's Hospital has made any effort to discourage competition from other hospitals in the area. Indeed its termination of Dr. Pontius's privileges is strong evidence of an intention not to monopolize, since the last thing the monopolist hospital should want is able practitioners looking for a new home in which to conduct their specialty. See Robinson v. Magovern, 521 F. Supp. at 891-892. Dr. Pontius does not ask us to break up the monopoly that Children's Hospital may have over the relevant market. Rather, the thrust of his prayer for relief is that he be compensated by the defendants for their refusal to let him participate in the monopoly. See Complaint at para. 68. Absent evidence of willful, illegal conduct tending to produce or perpetuate a monopoly, we do not believe that the fortuity of Children's Hospital's monopoly over pediatric thoracic and cardiovascular surgery in the tri-state area does or should mean that it cannot exercise professional judgment in passing on its staff appointments. Indeed, the fact of its monopoly might well heighten the ethical duty of the hospital to exercise particular care in selecting its staff because the patients will have no convenient alternative hospitals from which to choose. Consequently, consistent with our analysis of the plaintiff's section 1 claims, we hold that as to the hospital itself, no finding of the requisite monopolistic intent can be made when its decision not to reappoint Dr. Pontius is grounded on valid reasons supported by substantial evidence.
As to the individual defendants, none save Dr. Bahnson competed in any sense with Dr. Pontius as they are not pediatric thoracic and cardiovascular surgeons. While one can hypothesize that Dr. Bahnson might have wished to monopolize pediatric thoracic and cardiovascular surgery, despite the fact that he would not have profited directly from his monopolization, the undisputed facts preclude any finding of monopolistic behavior on his part. The record demonstrates, and the plaintiff concedes, that for many years, Dr. Pontius was the only active pediatric cardiovascular surgeon in the tri-state area. The record also shows that Dr. Pontius opposed the appointment of a competitor, Dr. Bahnson, to the staff at Children's Hospital. Finally, the record demonstrates that since Dr. Bahnson became head of the Department of Surgery at the University of Pittsburgh, he has actively recruited additional pediatric thoracic and cardiovascular surgeons to the staff of Children's Hospital. While up until 1963, Dr. Pontius was the only such surgeon active on the staff, at the time of his departure, seven other thoracic and cardiovascular surgeons were present, including two added the very year of Dr. Pontius's departure. See defendant, Children's Hospital's answer to Interrogatory #68. On these facts, a monopolization claim of any sort advanced by Dr. Pontius is simply untenable. The antitrust laws protect competition, not competitors. Brown Shoe Co., Inc. v. United States, 370 U.S. 294, 320, 8 L. Ed. 2d 510, 82 S. Ct. 1502 (1962).
For the reasons we have stated we do not believe that any of the antitrust claims asserted by Dr. Pontius can withstand the defendants' motions for summary judgment. We do not mean to imply by our judgment today that Children's Hospital's reasons for not reappointing Dr. Pontius were correct or that the hospital's ultimate decision was right. We have only concluded that the hospital's reasons for its action were supported by substantial evidence and were valid under the Sherman Act. We do not believe that the antitrust laws were intended to require a judicial redetermination of such decisions.
Finally, we express no view on the merits of the state claims for which jurisdiction in this court is no longer present.
An appropriate order will issue.
ORDER OF COURT
AND NOW, to-wit, this 20th day of December, 1982, for the reasons set forth in the accompanying opinion, it is ORDERED, ADJUDGED and DECREED that the defendants' motions for summary judgment on the plaintiff's antitrust claims be, and hereby are, GRANTED, and that JUDGMENT be, and hereby is, ENTERED in favor of all defendants and against the plaintiff on all such claims.
It is FURTHER ORDERED, ADJUDGED and DECREED that the plaintiff's pendent state claims be, and hereby are, DISMISSED for lack of jurisdiction.
With the exception of the accompanying opinion and this order, which are to be available to the public, all other portions of the case file are to remain under seal pursuant to our previous order.