Kochert, Carolyn v. Greater LaFayette He ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1196
CAROLYN G. KOCHERT,
Plaintiff-Appellant,
v.
GREATER LAFAYETTE HEALTH SERVICES, INC., et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Lafayette Division.
No. 01 C 27—Allen Sharp, Judge.
____________
ARGUED FEBRUARY 13, 2006—DECIDED SEPTEMBER 12, 2006
____________
Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. In this appeal, Carolyn Kochert
challenges the district court’s grant of summary judgment
for the defendants on Kochert’s claims alleging violations of
Sections 1 and 2 of the Sherman Antitrust Act. Mindful of
the Supreme Court’s admonition that the purpose of federal
antitrust law “is not to protect businesses from the working
of the market; it is to protect the public from the failure of
the market,” see Spectrum Sports, Inc. v. McQuillan, 506
U.S. 447, 458 (1993), we conclude that Kochert does not
have antitrust standing, and so we affirm the judgment of
the district court.
2 No. 05-1196
I. BACKGROUND
Carolyn Kochert, M.D., began practicing anesthesiology
in Lafayette, Indiana in 1985. From 1985 to 1994, Kochert
practiced at both of the hospitals in Lafayette, Home
Hospital and St. Elizabeth’s Medical Center (“SEMC”). In
1994, Home Hospital and defendant Anesthesia Associates
entered into a contract granting Anesthesia Associates,
an anesthesiology practice group, exclusive rights to provide
anesthesia services at Home Hospital. It is undisputed that
exclusive services arrangements between anesthesiology
practice groups and hospitals are commonplace in this
industry and do not inherently raise anticompetitive
concerns. After being offered the contract for anesthesia
services at Home Hospital, Anesthesia Associates offered
anesthesiologists with privileges at Home Hospital subcon-
tracts to provide anesthesia services at Home Hospital.
Kochert received a subcontract, which was eventually
extended to 1998. Although Kochert’s Home Hospital
subcontract was not renewed in 1998, she continued to
provide anesthesia services at SEMC.
In 1998, Home Hospital and SEMC merged to form
defendant Greater Lafayette Health Services (“GLHS”),
which administered both hospitals. Soon thereafter,
Lafayette Anesthesiologists, a practice group of which
Kochert was a member, obtained an exclusive three-year
anesthesiology contract at SEMC, in which Kochert partici-
pated. When this contract expired in 2001, GLHS did not
renew its ties with Lafayette Anesthesiologists and instead
contracted with Anesthesia Associates to provide exclusive
anesthesia services at SEMC. Anesthesia Associates’s
contract to provide exclusive anesthesia services at both
Home Hospital and SEMC has been extended several times
and the current extension terminates October 14, 2006.
Kochert claims that Lafayette Anesthesiologists was the
only group “within an hour of Lafayette” that could pro-
No. 05-1196 3
vide a competitive check on Anesthesia Associates. Due
to Anesthesia Associates’s exclusive contracts, Kochert
alleges that she has been unable to practice anesthesiology
at Home Hospital since March 1998 and at SEMC since
2001. Kochert claims that consumer welfare decreased
because of the exclusive contracts with Anesthesia Associ-
ates. For instance, she states that before Home Hospital
awarded the exclusive contract to Anesthesia Associates
in 1994, there were no reported problems with anesthesiolo-
gists leaving operating rooms or otherwise failing to
monitor patients undergoing surgery, while such problems
became commonplace after the grant of the exclusive
contract to Anesthesia Associates in 1994. She also
claims that the exclusive contracts increased anesthesia
services prices and increased delayed surgeries due to
the unavailability of Anesthesia Associates anesthesiolo-
gists. Defendants counter that short absences of anesthesi-
ologists during surgical procedures is commonplace, and
they cite a 1997 report by the American Society of Anesthe-
siologists that determined the “quality of anesthesia care at
Home Hospital to be good.”
Allegedly because of the limitations on her anesthesiology
practice, Kochert began considering a practice in
pain management in 1998. She received board certifica-
tion in pain management in 1999, and later that year
opened a pain management practice (Advanced Pain
Management). By August 1, 2000, Kochert was practicing
pain management full time. Kochert claims that she did not
enter that field voluntarily, but rather was forced into pain
management practice due to the operation of the exclusive
Anesthesia Associates contracts. She claims that she made
written requests to exercise her privileges in anesthesiology
at GLHS in 2002 and 2003. Kochert continues to practice
pain management at Home Hospital and SEMC today.
In September 2001, Kochert brought this antitrust suit
against GLHS, Anesthesia Associates, and John Walling
4 No. 05-1196
(GLHS’s CEO). She alleged that she suffered antitrust
injury as a direct consequence of the defendants’ actions
excluding competition from the market and that the
defendants exercised monopoly power in the market. To
support her claims, Kochert attempted to introduce the
testimony of several experts, including Dr. Bruce Seaman,
an economist. Seaman opined that the relevant product
market was “anesthesia services,”1 and offered three
versions of the relevant geographic market,2 the broadest of
which included Tippecanoe County and seven contigu-
ous counties.
Defendants GLHS and Anesthesia Associates filed
Daubert3 motions to exclude Seaman’s testimony, arguing
that Seaman had (1) incorrectly defined the relevant
product market, (2) used incorrect methodology in defin-
ing the relevant geographic market and unreliable defini-
tions, and (3) failed to do a dynamic analysis. After exten-
sive hearings and oral arguments regarding the Daubert
issue, the district court admitted Seaman’s expert testi-
mony, noting that the fact that the evidence passed muster
under a Daubert relevance and reliability analysis did “not
ensure or decide whether such evidence is ultimately
persuasive.” The question of the evidence’s persuasiveness,
the district court stated, would be decided “either during
summary judgment or at trial.”
1
According to Kochert’s brief, the relevant product is “anesthesia
services in support of inpatient surgical and obstetrical services,
both requiring a hospital stay of greater than 23 hours.” (Pl. Brief
at 15.) References to “anesthesia services” throughout this opinion
are generally limited to this definition.
2
The three versions offered were (1) Tippecanoe County, (2)
Tippecanoe, Montgomery, Clinton and White Counties, and (3)
Tippecanoe and its seven contiguous counties.
3
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993).
No. 05-1196 5
A month later, the district court granted summary
judgment to the defendants on all counts and claims. The
district court found that Kochert had no antitrust stand-
ing and had not met her burden of proving an antitrust
violation. The court ruled that Kochert could not with-
stand summary judgment on the antitrust violation in
part because she could not show that the defendants’
alleged practices had produced any anti-competitive effects
in the relevant geographic market.4 Specifically, the district
court held that Seaman’s eight-county geographic market
was too narrow for two reasons: the results of his analysis
for this area did not yield results sufficient to accept his
definition of the market, and Seaman’s analysis ignored
commercial realities of the area.
The district court also concluded that: (1) Kochert failed
to demonstrate that the exclusive contract between GLHS
and Anesthesia Associates constituted an unlawful tying
arrangement; (2) the contract between Anesthesia Associ-
ates and GLHS did not constitute an illegal “group boycott”
of Kochert; (3) no reasonable trier of fact could conclude
that the defendants caused actual harm to competition, or
that GLHS is able to restrain trade due to its market
power; (4) the defendants lacked the requisite specific
intent necessary for a conspiracy to monopolize in violation
of the Sherman Act; (5) res judicata barred Kochert’s Count
V group boycott claim; (6) Kochert could not succeed on her
“essential facility” claim because alternative facilities are
available; and (7) Kochert’s Indiana state antitrust claims
could not survive summary judgment.
Kochert now appeals the grant of summary judgment.
4
Kochert v. Greater Lafayette Health Servs., 372 F. Supp. 2d 509,
516 (N.D. Ind. 2004).
6 No. 05-1196
II. ANALYSIS
We review the district court’s grant of summary judgment
de novo. In re Copper Antitrust Litigation, 436 F.3d 782,
788 (7th Cir. 2006). All facts must be construed in the light
most favorable to Kochert, the non-moving party. Id. The
district court’s grant of summary judgment was proper only
if there was “no genuine issue as to any material fact
and . . . the moving party [was] entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
A. Article III Standing
The defendants argue, for the first time on appeal, that
Kochert lacks standing under Article III of the United
States Constitution. Of course, defendants are not pre-
cluded from raising this claim because such a challenge
to the court’s jurisdiction may not be waived. See FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990). Indeed,
we “are under an independent obligation to examine [our]
own jurisdiction, and standing ‘is perhaps the most impor-
tant of the jurisdictional doctrines.’ ” Id. (quoting Allen v.
Wright, 468 U.S. 737, 750, (1984)) (brackets omitted).
Generally, all that is required to demonstrate Article III
standing is “injury in fact plus redressability.” See U.S.
Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 627 (7th
Cir. 2003); Sanner v. Bd. of Trade of City of Chicago, 62
F.3d 918, 922 (7th Cir. 1995) (stating with more specificity
that “(1) the party must personally have suffered an actual
or threatened injury caused by the defendant’s allegedly
illegal conduct, (2) the injury must be fairly traceable to the
defendant’s challenged conduct, and (3) the injury must be
one that is likely to be redressed through a favorable
decision”) (quoting Valley Forge Christian Coll. v. Ameri-
cans United for Separation of Church and State, 454 U.S.
464, 472 (1982)).
No. 05-1196 7
The defendants argue that Kochert cannot demonstrate
that her injury is “fairly traceable” to their challenged
conduct, and cite our Sanner decision, where we con-
cluded that “soybean farmers who refrained from selling
soybeans due to the depressed price of the cash market
lack[ed] standing under Article III” to pursue their anti-
trust claims. See Sanner, 62 F.3d at 923. We reasoned in
Sanner that these farmers could not establish the traceabil-
ity prong of the Article III standing inquiry because
the decision not to sell could have been motivated by
many factors and it would be impossible to weigh the
impact of the alleged violation on this omission. See id. at
923. Defendants analogize this to Kochert’s situation by
arguing that she is incapable of demonstrating that her
decision to exit the anesthesia services market was the
exclusive product of their anticompetitive actions. They
point to the timing of her exit from the anesthesia ser-
vices market and portions of her deposition testimony
suggesting that other considerations may have played a
role.
We do not agree that Kochert lacks Article III standing.
As discussed infra, the defendants have raised a significant
challenge to Kochert’s antitrust standing. But the Article
III standing inquiry does not require Kochert to prove as
much. See, e.g., Florida Seed Co., Inc. v. Monsanto Co., 105
F.3d 1372, 1374 (11th Cir. 1997) (“Antitrust standing
requires more than the ‘injury in fact’ and the ‘case or
controversy’ required by Article III of the Constitution.”). A
question of material fact remains as to whether Kochert
suffered an injury as a result of defendants’ actions since
Kochert can construct a reasonable causality chain linking
her injury to defendants’ actions. What remains in question
is whether any of defendants’ actions were anticompetitive
and, if so, whether the anticompetitive actions led to
Kochert’s injury. We think it more appropriate to assess
8 No. 05-1196
these questions in the context of antitrust standing and
antitrust injury.
B. Antitrust Standing and Injury
The Supreme Court has observed that “[a]ntitrust laws in
general, and the Sherman Act in particular, are the Magna
Carta of free enterprise . . . . as important to the preserva-
tion of economic freedom and our free-enterprise system as
the Bill of Rights is to the protection of our fundamental
personal freedoms.” United States v. Topco Associates, Inc.,
405 U.S. 596, 610 (1972). Section 1 of the Sherman Act
provides that “[e]very contract, combination in the form of
trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign
nations, is declared to be illegal.” 15 U.S.C. § 1. The
purpose of the Act is “to assure customers the benefits of
price competition.” See Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, et al., 459 U.S. 519,
538 (1983) (discussing the legislative history). The Supreme
Court has stated that the “central interest” of the Act is
“protecting the economic freedom of participants in the
relevant market.” Id. We have similarly observed that
“[t]he principal purpose of the antitrust laws is to prevent
overcharges to consumers.” Premier Elec. Constr. Co. v.
Nat’l Elec. Contractors Ass’n, Inc., 814 F.2d 358, 368 (7th
Cir. 1987).
Given the intent of our antitrust laws, courts have
developed the doctrine of “antitrust standing” and the
subsidiary doctrine of “antitrust injury” in order to assure
efficient use of the resources of the courts towards achiev-
ing these goals. See generally William H. Page, The Scope
of Liability for Antitrust Violations, 37 STAN. L. REV. 1445,
1446-63 (1985); see also U.S. Gypsum Co. v. Indiana Gas
Co., Inc., 350 F.3d 623, 627 (7th Cir. 2003) (questioning the
wisdom of the “antitrust standing” nomenclature in light of
No. 05-1196 9
the potential for confusion with Article III standing). Under
Section 4 of the Clayton Act, “any person who shall be
injured in his business or property by reason of anything
forbidden in the antitrust laws may sue therefor in any
district court of the United States in the district in which
the defendant resides or is found or has an agent.” 15
U.S.C. § 15(a). The Supreme Court has cautioned that this
seemingly broad language must be interpreted more
narrowly in light of Congressional intent as revealed by the
legislative history. See Associated Gen. Contractors, 459
U.S. at 529-35. Thus, “not all persons who have suffered an
injury flowing from [an] antitrust violation have standing
to sue under § 4.” In re Industrial Gas Antitrust Litigation,
681 F.2d 514, 516 (7th Cir. 1982). Under our precedent,
“only those parties who can most efficiently vindicate the
purposes of the antitrust laws have antitrust standing to
maintain a private action under § 4.” Serfecz v. Jewel Food
Stores, 67 F.3d 591, 597-98 (7th Cir. 1995) (quoting In re
Industrial Gas, 681 F.2d at 516). Kochert must demon-
strate that she meets the requirements of both antitrust
injury and antitrust standing to succeed on the merits of
her tying, boycott, and conspiracy claims under the
Sherman Act. See Greater Rockford Energy and Technology
Corp. v. Shell Oil Co., 998 F.2d 391, 404 (7th Cir. 1993) (“a
showing of both antitrust injury and antitrust standing are
necessary to proceed under § 4”).
10 No. 05-1196
1. Antitrust Injury
The threshold question for our inquiry is whether Kochert
has suffered an antitrust injury. Kochert must demonstrate
that her “claimed injuries are ‘of the type the antitrust laws
were intended to prevent’ and ‘reflect the anticompetitive
effect of either the violation or of anticompetitive acts made
possible by the violation.’ ” Tri-Gen Inc. v. Int’l Union of
Operating Eng’rs, Local 150, 433 F.3d 1024, 1031 (7th Cir.
2006) (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,
429 U.S. 477, 489 (1977)). Kochert’s cognizable injuries are
variations on the theme of lost income in her anesthesia
practice. We must determine whether these alleged injuries
are the result of defendants’ allegedly anticompetitive acts.
But first, we must assess what anticompetitive behavior
is at stake here. The parties dispute the starting point of
defendants’ anticompetitive acts. The most obvious point in
time is 2001, when GLHS formulated its exclusive contract
with Anesthesia Associates. Before this point, Lafayette
Anesthesiologists had an exclusive contract with SEMC
while Anesthesia Associates had an exclusive contract at
Home Hospital, and, therefore, the Lafayette market was
serviced by two competing anesthesia services groups. Only
after GLHS contracted exclusively with Anesthesia Associ-
ates in 2001 were the doctors of Lafayette Anesthesiologists
(and hence Kochert) completely foreclosed from practicing
anesthesia services at either of the two Lafayette Hospitals.
This time line creates an obvious problem for Kochert
because the record makes clear that she was no longer a
practicing anesthesiologist at this point.5
Recognizing this problem, Kochert argues that the real
starting point of defendants’ anticompetitive acts is 1998,
5
Kochert has maintained anesthesia privileges at SEMC, but the
record is clear that she was practicing pain management full-time
by mid-2000.
No. 05-1196 11
when Anesthesia Associates declined to renew its subcon-
tract with her. Kochert’s theory is that this event set off an
anticompetitive chain reaction which culminated in her
complete exclusion from the Lafayette anesthesia ser-
vices market in 2001. Kochert does not contend that the
pre-2001 activity, viewed independently, constituted
anticompetitive activity under the Sherman Act. Indeed,
her expert, Seaman, testified at his deposition that the
events in Kochert’s chain prior to 2001 did not independ-
ently raise “any major anticompetitive concern.” The only
independent event Seaman identified as having anti-
competitive effects was GLHS’s 2001 discontinuation of
the exclusive contract between SEMC and Lafayette
Anesthesiologists. Seaman, however, also advanced Koch-
ert’s chain reaction theory of anticompetitive effects.
We agree with the district court that Kochert’s chain
reaction theory must be rejected. Kochert has offered no
precedential support for the proposition that a court should
look backward from the point of the actual anticompetitive
activity in search of the genesis of the acts that eventually
allowed the anticompetitive behavior to occur. Such an
examination would have no logical starting point in this
case. Kochert argues for 1998, which coincides with the
point at which her injuries accrued, but one could just as
easily argue that the starting point of the chain reaction
was 1994, when Home Hospital first awarded an exclusive
contract to Anesthesia Associates. But the 1994 contracting
is not logically the first domino because it clearly was not
part of an anticompetitive scheme. The same logic applies
to the 1998 denial of renewal of Kochert’s
subcontract—either this act constituted a part of an
anticompetitive scheme or it did not. If it did not, it is not
the starting point for our examination of defendants’
allegedly anticompetitive behavior.
Kochert asserts that events in an antitrust case must
be viewed “not in a vacuum or in isolation, but as a con-
12 No. 05-1196
tinuum,” and cites several cases in support of this con-
tention, including our decision in In re High Fructose
Corn Syrup Antitrust Litigation, 295 F.3d 651, 655-56 (7th
Cir. 2002). We do not quibble with the proposition that
courts should not be myopic in their assessment of potential
violations of the antitrust laws, but Kochert’s reliance on
this concept is misplaced in the context of the current
inquiry. If she could demonstrate that the events of 1998
actually were elements of a broader anticompetitive
scheme, we would be remiss if we failed to consider them in
the antitrust injury assessment. But she cannot. There is
no evidence that any of the events of 1998, including
Anesthesia Associates’s decision to deny Kochert a subcon-
tract, were part of an anticompetitive scheme that culmi-
nated with GLHS’s decision to contract exclusively with
Anesthesia Associates. They were simply staffing decisions
made solely by parties without market control. We have
stated explicitly that “the staffing decision at a single
hospital [is] not a violation of section 1 of the Sherman
Act.” See BCB Anesthesia Care Ltd. v. Passavant Memorial
Area Hospital Ass’n, 36 F.3d 664, 668 (7th Cir. 1994)
(collecting cases).
Furthermore, the cases Kochert cites in support of her
argument do not address the issue of antitrust injury as we
examine it here. In re High Fructose discusses the need for
holistic examination of a defendant’s acts in the context of
a court’s assessment of price-fixing arrangements. See In re
High Fructose, 295 F.3d at 655 (“The second trap to be
avoided in evaluating evidence of an antitrust conspiracy
for purposes of ruling on the defendants’ motion for sum-
mary judgment is to suppose that if no single item of
evidence presented by the plaintiff points unequivocally to
conspiracy, the evidence as a whole cannot defeat summary
judgment”). The case does not address either antitrust
standing or antitrust injury. The other cases cited by
Kochert are similarly inapposite. See Continental Ore Co.
No. 05-1196 13
v. Union Carbide & Carbon Corp., 370 U.S. 690, 699 (1962)
(“(T)he character and effect of a conspiracy are not to be
judged by dismembering it and viewing its separate parts,
but only by looking at it as a whole.”) (quoting American
Tobacco v. United States, 147 F.2d 93, 106 (6th Cir. 1945));
Aspen Highlands v. Aspen Skiing Co., 738 F.2d 1509, 1522
n.18 (10th Cir. 1984) (concluding that the six parts of the
plaintiff’s evidence of monopolization “should be viewed as
a whole.”); City of Mishawaka, et al. v. American Elec.
Power Co., 616 F.2d 976, 986 (7th Cir. 1980) (concluding
that the various acts of a monopoly in a “price squeezing”
scheme can not be looked at in a vacuum for the purposes
of determining whether there is evidence of a Sherman Act
violation). Moreover, none of the plaintiffs in the cases
Kochert cites attempted to introduce evidence of activity
postdating their participation in the market as proof of
antitrust injury. Kochert has not introduced evidence
supporting the conclusion that anything other than GLHS’s
2001 elimination of the exclusive contract between SEMC
and Lafayette Anesthesiologists should be considered as the
starting point for our antitrust injury analysis.
This conclusion brings into focus the central question
in assessing Kochert’s alleged antitrust injury: did GLHS’s
2001 elimination of the exclusive contract between SEMC
and Lafayette Anesthesiologists cause Kochert’s injuries?
Put another way, was this act “the cause-in-fact of the
injury,” or can it be said that “ ‘but for’ the violation, the
injury would not have occurred”? See Greater Rockford
Energy and Technology Corp. v. Shell Oil Co., 998 F.2d 391,
395 (7th Cir. 1993). Since Kochert was practicing
pain management full-time as of August 2000, the answer
to all of these questions is “no.” GLHS’s anticompetitive
behavior in 2001 did not injure Kochert’s anesthesiology
practice because it was nonexistent by this point. Kochert
therefore fails to establish one necessary prong of the two-
pronged test that the Supreme Court described in Bruns-
14 No. 05-1196
wick Corp.; she cannot demonstrate that her injuries
“flow[ ] from that which makes defendants’ acts unlawful.”
Brunswick Corp., 429 U.S. at 489. She has not demon-
strated antitrust injury.
2. Antitrust Standing
Even if Kochert could establish antitrust injury, she
would still fail to establish antitrust standing because she
is not the party “who can most efficiently vindicate the
purposes of the antitrust laws” in this case. See Serfecz, 67
F.3d at 598. The Supreme Court has identified six factors
that courts should weigh in making this assessment:
(1) [t]he causal connection between the alleged
anti-trust violation and the harm to the plaintiff; (2)
[i]mproper motive; (3) [w]hether the injury was of a
type that Congress sought to redress with the antitrust
laws; (4) [t]he directness between the injury and the
market restraint; (5) [t]he speculative nature of the
damages; (6) [t]he risk of duplicate recoveries or
complex damages apportionment.
Sanner, 62 F.3d at 927 (describing factors articulated in
Associated General Contractors, 459 U.S. at 537-46).
The fourth factor weighs particularly heavily in this case.
In discussing the directness inquiry, the Supreme Court
stated that “[t]he existence of an identifiable class of
persons whose self-interest would normally motivate them
to vindicate the public interest in antitrust enforcement
diminishes the justification for allowing a more remote
party . . . to perform the office of a private attorney gen-
eral.” Associated Gen. Contractors, 459 U.S. at 542.
As was the case in Serfecz, Lafayette’s anesthesia
“consumers could maintain an action if defendants’ ac-
tions stifled competition allowing defendants to engage
in monopoly pricing in the retail [ ] market.” See Serfecz, 67
No. 05-1196 15
F.3d at 598. These consumers, or perhaps one of the
entities that is also directly affected by rises in anesthesia
services prices, such as an insurer, would be a more
efficient claimant. The Court’s concern with opening the
antitrust litigation floodgates also suggests that groups
of doctors, such as the excluded Lafayette Anesthesiologists
group, might serve as better plaintiffs than individual
doctors like Kochert. Denying Kochert “a remedy on the
basis of its allegations in this case is not likely to leave a
significant antitrust violation undetected or unremedied.”
See Associated Gen. Contractors, 459 U.S. at 542. If Anes-
thesia Associates and GLHS are truly manipulating the
anesthesia services market in order to raise prices and
drive down quality of care, these effects will not be missed
by patient-consumers or insurers.
Two other factors outlined in Associated General Contrac-
tors that weigh against a finding of antitrust standing are
addressed in the context of our antitrust injury analysis.
Though Kochert is arguably a direct competitor, the causal
connection between her injury and the antitrust violation
is tenuous at best. Kochert has also failed to produce
evidence of improper motive. She has not offered any
arguments with regard to the other factors sufficient to tip
the scales away from our ultimate conclusion. Kochert does
not have antitrust standing.
Finally, though it is ultimately unnecessary, we note that
the record is bereft of any credible evidence of the type of
anticompetitive effects alleged by Kochert. Kochert’s
economics expert testified at his deposition that “there is no
particular evidence on nominal rates that would suggest an
exercise in market power.” With no evidence that prices, in
the normal sense, have been affected by anticompetitive
activity, Kochert (and her expert) relied exclusively on her
evidence of diminished quality of care as proof of
anticompetitive effect, in and of itself, and as proof of
higher “quality adjusted” costs. But no reasonable jury,
16 No. 05-1196
examining Kochert’s evidence of diminished quality, could
find it credible as proof of such diminution. Kochert has not
introduced any evidence that would allow a jury to compare
the quality of care prior to defendants’ anticompetitive acts
with the quality of care after these acts. She has not
introduced any statistical analysis focusing on measurable
indices of quality, such as the number of patient complaints
or mortality rates. Instead, Kochert offers expert testimony
and physician affidavits which rely almost exclusively
on anecdotes, such as one story about an anesthesiologist
leaving an operating room momentarily to eat a sandwich,
to prove diminished quality. We have serious doubts
about the usefulness of Kochert’s evidence. But we will
not resolve this issue because it is clear that Kochert does
not have antitrust standing.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
No. 05-1196 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-12-06