Unpublished Disposition, 851 F.2d 360 (9th Cir. 1978)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 360 (9th Cir. 1978)

BENJAMIN WINTER, M.D., INC. Plaintiff-Appellant,v.CALIFORNIA MEDICAL ASSOCIATION, et. al., Defendants-Appellees.

No. 86-5751.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 1, 1988.Decided June 22, 1988.

Before HUG, TANG and NELSON, Circuit Judges.


MEMORANDUM* 

Benjamin Winter, M.D., Inc. appeals the district court's grant of summary judgment in favor of the California Medical Association (CMA), the California Physicians Services (CPS), dba Blue Shield of California (Blue Shield), Dr. Joseph M. Boyle, and Dr. Karlman Wasserman. Dr. Winter alleges a conspiracy, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 4 of the Clayton Act, 15 U.S.C. § 15, among the parties and among the membership of CMA and CPS to deny coverage for the bilateral carotid body resection (BCBR) surgical procedure. We affirm.

STANDARD OF REVIEW

We review the grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). We must determine, viewing the evidence in the light most favorable to Dr. Winter, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

DISCUSSION

Section 1 of the Sherman Act, 15 U.S.C.A. Sec. 1 (Supp.1987), states: "Every 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." Section 4 of the Clayton Act, 15 U.S.C.A. Sec. 15 (Supp.1987), states: "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 ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."

Conspiracy

The pivotal standard for this appeal is the "range of permissible inferences from ambiguous evidence" for the purpose of a summary judgment motion in a Section 1 case. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). The Supreme Court has stated the appropriate standard in a number of ways: "conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy", id.; the plaintiff "must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action that could not have harmed respondents", id.; and " [t]here must be evidence that tends to exclude the possibility that the [alleged conspirators] were acting independently", Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764 (1984).

The evidence points against the existence of a conspiracy. Dr. Winter offers evidence of only one exchange of letters between CMA and CPS regarding BCBR. Dr. Winter has given no evidence of any relationship between CPS and Dr. Wasserman. CPS has not communicated with any hospital or insurance company regarding the procedure. Dr. Boyle has never been an officer, director, or trustee of CPS. He had no communication with CPS regarding his testimony at administrative hearings. Dr. Wasserman has no economic interest in the success or failure of BCBR or Dr. Winter. Dr. Wasserman has no connection with CMA or CPS, regarding BCBR or otherwise. There is no evidence that Dr. Wasserman or Dr. Boyle communicated with CPS regarding their testimony at the administrative hearings or the malpractice case involving BCBR.

We agree with the district court that Dr. Winter has not presented evidence that allows "the inference of conspiracy ... in light of the competing inferences of independent action." Matsushita, 475 U.S. at 588.1  The conduct Dr. Winter brought to the district court's attention is entirely consistent with organizations and professions acting in good faith to fulfill their legal and professional responsibilities. As the Supreme Court recently stated:

[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). Since Dr. Winter had brought forward no evidence beyond mere allegations, summary judgment on his antitrust claim was appropriate. Fed. R. Civ. P. 56(c).

State-Law Claims

The district court properly held that Dr. Winter's state-law claims were time-barred. Sum.J. at 36.2  Although the statutes of limitations for the state-law claims vary, none are longer than four years. See Kenworthy v. Brown, 56 Cal. Rptr. 461, 463, 248 Cal App.2d 298 (1967) (two year statute of limitations for tortious interference with contractual relations); Cal.Bus. & Prof.Code Sec. 17208 (four years for unfair competition); Cal.Code Civ.Pro. Sec. 340(3) (one year for libel). Thus, Dr. Winter could sue only for actions occurring after July 19, 1978, four years before the filing of the initial complaint.3  The events relevant to the suit occurred between 1967 and 1975. Dr. Winter's state-law claims are time-barred.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

In Michigan State Podiatry Ass'n v. Blue Cross and Blue Shield, 1987-2 Trade Cases (CCH) p 67,687 (E.D. Mich. 1987), the Michigan State Podiatry Association claimed a conspiracy between the Michigan State Medical Society and Blue Cross and Blue Shield of Michigan to harm podiatrists by reducing the payments the insurers paid for podiatric treatments. On a factual basis which arguably offered even stronger evidence of ties between the medical association and the insurers than was shown in the present case and a stronger showing of motive (doctors against podiatrists, not doctors against other doctors), the district court granted summary judgment to the defendants

 2

As part of its conclusions of law regarding Dr. Winter's state-law claims, the district court concluded that Dr. Winter was a public figure under Gertz v. Welch, 418 U.S. 323 (1973). Sum.J. at 15-16, 50. We agree with Dr. Winter that it is far from clear that the "public figure" doctrinal analysis, taken from the field of personal libel suits, applies as well to the trade libel claims

 3

The cutoff date for complaints against CPS is July 5, 1979, since it was not added as a defendant until the Second Amended Complaint. Sum.J. at 36

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