United States District Court, D. New Jersey
February 25, 2004.
GEORGE G. BOCOBO, M.D., Plaintiff,
RADIOLOGY CONSULTANTS OF SOUTH JERSEY, P.A; SOUTH JERSEY HEALTH SYSTEM, INC.; PAUL CHASE, D.O.; and ALLIANCE RADIOLOGY ASSOCIATES, L.L.C., Defendants
The opinion of the court was delivered by: JOSEPH IRENAS, District Judge
On April 12, 2002, George G. Bocobo, M.D. ("Bocobo" or "Plaintiff")
filed suit against Defendants Radiology Consultants of South Jersey, P.A.
("Radiology Consultants"); South Jersey Health System, Inc. ("South
Jersey"); Paul Chase, D.O. ("Chase"); and Alliance Radiology Associates,
L.L.C. ("Radiology Associates"). Count I of Plaintiff's thirteen-count
Complaint alleges that Defendants conspired to boycott him from
practicing radiology in the Cumberland County area in violation of
Section 1 of the Sherman Act and monopolized the delivery of radiology
services in Cumberland county in violation of Section 2 of the Sherman
Act.*fn1 In Count II, Plaintiff asserts that Defendants "engaged in a
conspiracy to restrain trade in and monopolize, the practice of radiology
in Bridgeton, New Jersey" in violation of New Jersey's Anti-Trust Act
(N.J. Stat. Ann. § 56:9-1 to -19).*fn2 Currently before the
Court is Defendants' motion for summary judgment as to both counts.
Bocobo's relationship with Defendant South Jersey began in January 1985
when he was granted staff privileges to practice radiology at Bridgeton
and Millville Hospitals, both of which were owned by South Jersey and
located in Cumberland County, New Jersey. In 1993, South Jersey advised
its staff radiologists that in order to continue practicing at Bridgeton
and Millville they would need to form a practice group. Radiologists on
staff then formed Radiology Consultants. Bocobo became a stockholder and
employee of the corporation. On August 27, 1993, South Jersey awarded an
exclusive contract to Radiology Consultants to provide radiology services
to Bridgeton and Millville hospitals.
Around this time, tensions and disputes emerged between Bocobo and
Defendants. The substance of those conflicts is not relevant to this
motion. It is sufficient to say that these difficulties allegedly
prompted Chase, in early 2001, to create a new corporation, Alliance
Radiology Associates, L.L.C. ("Radiology Associates") and to enter into
negotiations with South Jersey to replace Radiology Consultants as the
exclusive provider of radiological services at Bridgeton and Millville
hospitals. Bocobo was not invited to join the new corporation and only
learned of Chase's activities on April 13, 2001, when Chase's counsel
notified him that, effective July 13, 2001, his employment with Radiology
Consultants would be terminated. On August 1, 2001, approximately two
weeks after his termination, Bocobo joined the staff of the University of
Pennsylvania Health System. The new position was at a reduced salary and
offered fewer benefits. Radiology Associates was awarded the exclusive
contract with South Jersey on August 12, 2001.
Bocobo filed suit in this Court in April 2002. Defendants filed this
motion for summary judgment as to Counts I & II on January 30, 2004.
The Court has jurisdiction over this matter pursuant to
28 U.S.C. § 1331, 1332 and 1367.
"[S]ummary judgment is proper `if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.'"
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.
R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court
must construe the facts and inferences in a light most favorable to the
non-moving party. Pollock v. Am. Tel. & Tel. Long Lines,
794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the
evidence and determine the truth of the matter, but to determine whether
there is a genuine issue for trial." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). Despite the "factually intensive"
nature of antitrust cases, "the standard of Fed.R.Civ.P. 56 remains
the same." Town Sound & Custom Tops, Inc. v. Chrysler Motors
Corp., 959 F.2d 468, 481 (3d Cir. 1992) (en banc), cert.
denied, 506 U.S. 868 (1992); see also Eastman Kodak Co. v. Image
Technical Serv., Inc., 504 U.S. 451, 468 (1992).
The issue before the Court, which was extensively addressed at oral
argument, is whether Plaintiff has standing to bring his antitrust
claims. A private right of action for federal antitrust claims is set
forth in section 4 of the Clayton Act, "which provides for suits by `any
person who shall be injured in his business or property by reason of
anything forbidden in the antitrust laws. . . ." Brader v. Allegheny
Gen. Hosp., 64 F.3d 869, 875 (3d Cir. 1995) (citing
15 U.S.C. § 15(a)). Standing to bring an antitrust claim turns on a
plaintiff's ability to show: (1) that he has suffered an "antitrust injury;"
and (2) that he is the proper plaintiff to bring the claim.*fn3 Alberta Gas
Chem., Ltd. v. E.I. DuPont De Nemours & Co., 826 F.2d 1235, 1240
(3d Cir. 1987); see also Atlantic Richfield Co. v. USA Petroleum
Co., 495 U.S. 328, 339 (1990); Brunswick Corp. v. Pueblo
Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). Proving an antitrust
injury for the purposes of standing is a separate inquiry from whether
there has been an actual substantive antitrust violation. See
Balaklaw v. Lovell, 14 F.3d 793, 800 (2d Cir. 1994) (noting that
although a group boycott "which consist[s] of agreements by two or more
persons not to do business with other individuals, or to do business with
them only on specified terms, may in some limited circumstances
constitute a per se violation of the Sherman Act . . . [f]or standing
purposes . . . whether there was or was not a per se violation is
irrelevant"); Indiana Grocery, Inc. v. Super Valu Stores, Inc.,
864 F.2d 1409, 1419 (7th Cir. 1989).
Plaintiffs alleging an antitrust injury must show more than mere harm
from a defendant's action; they must show an "injury of the type the
antitrust laws were intended to prevent." Brunswick Corp., 429
U.S. at 489. It is well-settled that the antitrust laws were "enacted for
the protection of competition, not competitors." Id. at 488
(quoting Brown Shoe v. United States, 370 U.S. 294, 320 (1962));
see also Urdinaran v. Aarons, 115 F. Supp.2d 484, 489 (D.N.J.
2000) (finding it "well-settled that the gravamen of an antitrust action
is the alleged restraint's effect on competition, not competitors").
Therefore, a plaintiff must show that he has been "adversely affected by
an anticompetitive aspect of the defendant's conduct."
Atlantic Richfield, 495 U.S. at 339 (emphasis in original).
To determine if Plaintiff has suffered an antitrust injury, the Court
must determine if competition in the relevant market has been
impermissibly affected, which, of course, requires the Court to define
the relevant market or markets.*fn4 Here, there are two potentially
affected markets: (1) the market in which consumers purchase radiology
services; and (2) the market in which radiologists compete for jobs to
provide services. See Collins v. Associated Pathologists, Ltd.,
844 F.2d 473, 477 (7th Cir. 1988) (finding that, in a suit brought by a
pathologist against a hospital and a laboratory alleging that an
exclusive contract violated the Sherman Act, the relevant market was "the
market in which pathologists compete for jobs").
As to the first potential market, it is clear that Dr. Bocobo's
participation or exclusion has no impact on consumers. On the whole,
patients do not choose their radiologists. Radiology services are largely
inpatient or clinic based and when those services are provided in a
private out-patient setting, patients most often rely on physician
referrals. Thus, consumers generally are unaware of who reads their
x-rays or runs their tests and the presence or absence of a single doctor
has no impact on the market. Where consumers are not affected by a change
in the market, there is no anticompetitive effect. See Balaklaw,
14 F.3d at 796-99 (finding no anticompetitive effect where the
substitution of one provider for another did not change the market
"[f]rom the consumers' point of view"); see also Collins, 844
F.2d at 477 (finding that "from the perspective of consumers of medical
services [i.e., patients], there is no distinct demand for and thus no
market for pathological services").*fn5
The second market is the market in which radiologists compete for jobs.
Plaintiff argues that this market is geographically limited to "the
Cumberland County area, at most, and more likely, the Bridgeton New
Jersey area." Pl.'s Br. in Opp'n to Mot. for Partial Summ. J. at 38.
Although the Court must construe the facts and inferences at this stage
of the proceedings in the light most favorable to the Plaintiff,
Plaintiff's own submissions indicate that the market in which
radiologists compete for jobs is not limited to Cumberland County or
Bridgeton. Prior to hiring Chase, South Jersey attempted to recruit a
radiologist from Golden, Colorado to become Chairman of the Radiology
Department. Pl.'s Compl. ¶¶ 15-20. When that individual declined the
position, South Jersey interviewed two other doctors, including Chase who
lives in Camden County, New Jersey. Id. Further, when Bocobo was
terminated from his position with Radiology Consultants, he found a new
position within two weeks at the University of Pennsylvania. It appears
quite clear that the market in which radiologists compete for jobs to
provide services includes, at the very least, southern New Jersey and the
That being the case, there is no evidence that the exclusion of Bocobo
from membership in Radiology Associates has negatively impacted
competition in the relevant market. It is true, that when South Jersey
substituted one exclusive contractor (Radiology Consultants) for another
(Radiology Associates) Dr. Bocobo was forced to find a job outside
Cumberland County where he had worked for nearly 15 years. However, not
only are exclusive contracts permitted under antitrust law, see
Jefferson Parrish Hospital District No. 2 v. Hyde, 466 U.S. 2
(1984), but numerous courts have found that the type of displacement Dr.
Bocobo describes is insufficient to establish an antitrust injury for
standing purposes. See, e.g., Balaklaw, 14 F.3d at 796-99
(finding that plaintiff anesthesiologist did not have standing where the
group of which he was a member lost an exclusive contract to another
bidder because the injury "came as a result of his losing out in the
competition"); Steuer v. Nat'l Med. Enter., 672 F. Supp. 1489,
1502 (D.S.C. 1987), aff'd 846 F.2d 70 (4th Cir. 1988) (stating
that "[m]erely changing exclusive contractors . . . cannot constitute a
violation of the antitrust laws" even where the substitution has the
effect of "`boycotting or shutting out' the displaced contractor");
Oksanen v. Page Mem. Hosp., 945 F.2d 696, 709 (4th Cir. 1991)
(en banc) (finding that a doctor did not have standing to bring an
antitrust claim merely because "a hospital's decision caused a
disappointed physician to practice medicine elsewhere").
Plaintiff, nonetheless, points to several cases which he contends
recognize antitrust standing where an individual doctor is excluded from
a relevant market. Those cases, however, as Defendants note in their
Reply Brief, are not standing cases. Rather, those cases evaluate whether
the exclusion of a single doctor from a market creates a sufficient
effect on interstate commerce to satisfy the substantive requirements of
antitrust claims under sections 1 and 2 of the Sherman Act. See,
e.g., Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991)
(finding that the interstate commerce requirement of an antitrust claim
under the Sherman Act was met where defendants allegedly conspired to
exclude plaintiff, an opthamologist from the Los Angeles market for those
services); Brader v. Allegheny Gen. Hosp., 64 F.3d 869 (3d Cir.
1995) (applying Summit Health and analyzing the effect on
interstate commerce of defendants' actions);*fn7 Fuentes v. South
Hills Cardiology, 946 F.2d 196 (3d Cir. 1991) (applying Summit
Health and finding plaintiff sufficiently pled the interstate
commerce element of a claim under the Sherman Act). This is a wholly
different concern than the standing issue before the Court in this
Plaintiff also relies on Angelico. v. Lehigh Valley Hospital,
Inc., 184 F.3d 268 (3d Cir. 1999), to support his position that the
exclusion of a single doctor impairs competition sufficiently to confer
standing for an antitrust claim. Angelico, however, is factually
distinguishable. Dr. Angelico. was a cardiothoracic surgeon who claimed
he was blackballed from three hospitals in Lehigh and Northampton
Counties in Pennsylvania. Dr. Angelico. alleged that the defendants
engaged in such activities as improperly terminating his staff privileges
and "circulating defamatory remarks regarding his interpersonal and
patient care skills" in order to exclude him from the relevant market.
Id. at 272. The district court granted defendants' motion for
summary judgment, finding that Angelico. lacked antitrust standing.
Id. 273. The Third Circuit reversed, finding that Angelico. did
have standing because his injury flowed directly from defendants'
"concerted effort to exclude him from the market for cardiothoracic
surgery." Id. at 274-75.
In contrast, Dr. Bocobo has alleged nothing more than that he was
denied the opportunity to participate in an exclusive contract with South
Jersey to provide radiology services to a small portion of a larger
market. Plaintiff provides no evidence that Defendants engaged in a
campaign to defame him nor that his staff privileges had been improperly
revoked nor even that he was actually excluded from the relevant market.
Here, Bocobo was easily able to continue to compete in the market of
radiologists seeking jobs, as is evidenced by his ability to secure a new
position with the University of Pennsylvania. In addition, Angelico. and
Bocobo are different types of doctors. Angelico. was a surgeon who
directly competed with other surgeons for patients. Consumers, however,
generally do not seek out individual radiologists. Therefore, replacing
Dr. Bocobo in a practice group has no impact on the market for consumers
seeking radiology services. Plaintiff's reliance on Angelico is
The Court recognizes that South Jersey's decision to award an exclusive
contract to Radiology Associates has had the effect of forcing Dr. Bocobo
to practice outside of Cumberland County. However, there is absolutely no
showing that this change has lessened competition in the relevant markets
in a manner actionable under the Sherman Act or New Jersey state law. Dr.
Bocobo was a competitor in the market who lost in the competition for an
exclusive contract; he may have contract or tort claims against
Defendants, but he does not have standing to sustain antitrust claims
against them. The Court finds that Plaintiff has failed to show an
"antitrust injury" sufficient to confer standing for Counts I & II of
his Complaint. Defendants' motion for summary judgment as to those counts
is granted. The Court will issue an appropriate Order.