Mathews at that time. Specifically, the Board voted to suspend Dr. Mathews' privileges to perform spine surgery as either a primary or assisting surgeon, and to require him to obtain a second opinion or consultation before performing prosthetic joint surgery, arthroscopy, or hand or foot surgery for a period of 12 months. The defendant physicians on the Board, Drs. Shertzer and Argires, abstained from voting. Defendant Dr. Hoke, an ex-officio member of the Board, also did not vote.
Dr. Mathews was notified of the Board's decision by a letter from Mr. Young dated September 22, 1993. The letter also advised Mathews of the reasons for the proposed restrictions and of his right under the LGH Medical Staff Bylaws to a fair hearing regarding the proposed action. On October 26, 1993, Mathews made a timely request for such a hearing. Subsequently, the Board voted not to impose any restrictions until the fair hearing could be held. The hearing had not yet been scheduled when the first of these two consolidated actions was filed on December 15, 1993, and to date no such hearing has taken place.
F. Dr. Mathews' staff privileges at Columbia
Also during the period when the above events were taking place, plaintiff for the first time applied for surgical privileges at defendant Columbia. Effective April 22, 1992, Columbia granted Dr. Mathews "temporary privileges" there in the Division of Surgery, Orthopedics. These privileges were scheduled to expire on September 30, 1992. Approximately two weeks before the expiration date, Columbia's Board of Trustees approved the Medical Staff's recommendation that Dr. Mathews be granted "provisional courtesy privileges" in the Division of Surgery, Orthopedics. As set out in Columbia's Bylaws, all initial appointments to the medical staff are "provisional" for a period of twelve months. On September 15, 1992, Mr. Robert Katana, president and CEO of Columbia Hospital, wrote to Dr. Mathews, informing him of the Board of Trustees' decision.
Near the end of the twelve month "provisional" period, on August 25, 1993, Columbia's Credentials Committee recommended to Columbia's Medical Executive Committee and its Board of Trustees that Dr. Mathews' status change from "provisional courtesy privileges" to "courtesy privileges" in the Division of Surgery, Orthopedics. The Board of Trustees approved this change on September 13, 1993, and on September 16, 1993 Mr. Katana sent Dr. Mathews a letter informing him of the lifting of his provisional status.
Meanwhile, Dr. Mathews had submitted a reappointment application to have his privileges renewed for the next year beginning January 1, 1994, as was normal procedure under Columbia's Bylaws. Although Dr. Mathews submitted his reappointment application prior to the September 1, 1993 deadline, on September 24, 1993 Mr. Katana discovered that the application was not complete because it did not include a reappointment reference from LGH. Columbia requires all staff physicians to submit completed reappointment references from any other hospitals where they exercise privileges.
Despite repeated efforts, Columbia was unable to obtain LGH's completed reappointment reference from either Dr. Mathews' office or directly from LGH. Accordingly, on November 10, 1993, Mr. Katana wrote to Dr. Mathews informing him that his reappointment application was incomplete and that his courtesy staff privileges would therefore automatically expire on December 31, 1993. Mr. Katana also informed Dr. Mathews that he could reapply for those privileges in accordance with the procedures set out in Columbia's Bylaws.
Dr. Mathews never submitted the reappointment reference from LGH, and his courtesy staff privileges at Columbia expired on December 31, 1993. After that date, however, Columbia again granted Dr. Mathews "temporary privileges," which he continues to exercise.
G. Procedural history
On December 15, 1993, plaintiff filed an action against LGH, the LGH Foundation, Columbia, the Columbia Foundation, and the six individual doctors listed above. The Complaint was amended on September 9, 1994. Count I of the Verified Amended Complaint is an antitrust claim alleging a conspiracy in violation of section one of the Sherman Act, 15 U.S.C. § 1, and seeking treble damages and injunctive relief pursuant to sections four and sixteen of the Clayton Act, 15 U.S.C. §§ 15 & 26. Counts II through IV allege state law claims of breach of contract, intentional interference with contractual relations, and civil conspiracy. On August 1, 1994, plaintiff filed a second, two-count Complaint against OAL, alleging a violation of section one of the Sherman Act and a state law claim of intentional interference with contractual relations. This court consolidated the actions for pretrial purposes in an order dated November 18, 1994.
All defendants moved for summary judgment in late 1994. On December 1, 1994, the court denied defendants' motions for administrative purposes in order to allow plaintiff an additional discovery period of 60 days which he had requested. After the 60-day period, each defendant renewed its motion for summary judgment, and plaintiff renewed its responses to those motions and submitted a supplementary memorandum addressing materials uncovered during the additional discovery period. It is these summary judgment motions which are currently before the court.
II. STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment where the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
"The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a necessary element of his case." In Re Phillips Petroleum Sec. Litig., 881 F.2d 1236, 1243 (3d Cir. 1989). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 n.3, 106 S. Ct. 2548, 2552 n.3, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(e)); see also First Nat'l Bank v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986). "A non-movant's burden in defending against summary judgment in an antitrust case is no different than in any other case." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 122 L. Ed. 2d 659, 113 S. Ct. 1262 (1993).
A. HCQIA Immunity
Defendants, except for Columbia and Columbia Foundation, contend that they are entitled to immunity under the Health Care Quality Improvement Act ("the HCQIA" or "the Act"), 42 U.S.C. § 11101-11152 (West Supp. 1994). The HCQIA is intended to "provide incentive and protection for physicians engaging in effective professional review" by immunizing them from money damages liability in connection with such proceedings. 42 U.S.C. §§ 11101(5), 11111. It was enacted in part as a response to Congress' finding that "the threat of private money damage liability . . . unreasonably discourages physicians from participating in effective professional peer review." 42 U.S.C. § 11101(4). The Act "essentially immunizes peer review action from liability if the action was taken 'in the reasonable belief that [it] was in furtherance of quality health care.' § 11112(a)." Patrick v. Burget, 486 U.S. 94, 105 n.8, 108 S. Ct. 1658, 1665 n.8, 100 L. Ed. 2d 83 (1988).
More specifically, to qualify for immunity under the HCQIA, a "professional review action" must be taken:
(1) in the reasonable belief that the action was in the furtherance of quality health care,