Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1989)

Keith A. LASKO, M.D. Plaintiff-Appellantv.VALLEY PRESBYTERIAN HOSPITAL; Sherman Oaks CommunityHospital; Van Nuys Community Hospital, et al.,Defendants-Appellees.

No. 87-5594.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1989.Decided June 21, 1989.

Before SCHROEDER, FLETCHER and TROTT, Circuit Judges.


MEMORANDUM* 

This case arises from the denial or revocation by various San Fernando Valley-area hospitals of staff privileges to plaintiff Keith Alan Lasko, M.D. Dr. Lasko appeals the district court's grant of summary judgment to defendants dismissing Lasko's federal antitrust claims.

ANALYSIS

To prevail on his antitrust conspiracy claims, Lasko must prove, among other things, an agreement among two or more persons or entities. See Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 844 (9th Cir. 1980); Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 544 (9th Cir. 1983). Because the defendants offered evidence supporting an alternative lawful interpretation of their conduct, the burden in opposing summary judgment shifted to Lasko to come forward with specific factual support for his allegations. Continental Maritime v. Pacific Coast Metal Trades, 817 F.2d 1391, 1394 (9th Cir. 1987).

The question before us is whether Lasko has presented sufficient evidence to withstand defendant's motion for summary judgment. Viewing the available evidence in the light most favorable to Lasko, we conclude that his claim must fail. There is simply no evidence that the defendants were operating pursuant to any agreement. There is no evidence that any of the reports filed by the various defendants with the California Board of Medical Quality Assurance were read by any of the other hospitals. There is no evidence that Valley Presbyterian Hospital's or Sherman Oaks Hospital's investigations and suspensions of Lasko were ever brought to the attention of any other hospital, or that Valley Presbyterian or Sherman Oaks acted on the basis of information received from any other hospital. Although there is evidence that doctors at Valley Medical Center conveyed false information about Lasko's status at that hospital, this information was conveyed only to Van Nuys Hospital, and there is no evidence that Van Nuys Hospital acted improperly in believing this information. But even if each defendant was aware of the others' reports, there is absolutely no evidence from which a rational fact-finder could infer an agreement among the defendants to circulate such reports, much less an agreement to exclude Lasko from practice. There are at least two plausible nonconspiratorial explanations for the defendants' behaviour. The evidence, viewed in a light highly favorable to Lasko, is perhaps consistent with the inference that some or all of the hospitals individually were retaliating against Lasko for his muckraking activities or individually trying to bar him from staff privileges for other reasons. Even more plausibly, the evidence suggests only that the hospitals were simply engaged in quality review of Lasko. Under Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764 (1984), and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986), this evidence is insufficient to allow Lasko's claim of conspiracy to go to the jury. The district court correctly granted summary judgment to defendants on Lasko's antitrust conspiracy claims.

Lasko alleges that the defendants tied various hospital products. The district court granted summary judgment on the grounds that Lasko failed to prove that the defendants had power in the relevant market. DeModena v. Kaiser Foundation Health Plan, Inc., 743 F.2d 1388, 1389 (9th Cir. 1984). We could affirm solely on this basis. However, an even plainer defect in Lasko's tying claim is that he fails to allege any personal antitrust injury from the alleged tie. Personal antitrust injury is an element of any antitrust claim. See Matsushita, 475 U.S. at 586.

CONCLUSION

Lasko failed to produce any evidence supporting the existence of a conspiracy among the hospitals to restrain him from competing. Lasko's tying claim fails because he does not allege personal injury resulting from the tie and because Lasko failed to prove that the defendants had power in the relevant market. The district court properly granted summary judgment in favor of the defendants on all of Lasko's claims.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3