586 F.2d 530 (5th Cir. 1978), 77-1924, Feminist Women's Health Center, Inc. v. Mohammad

Docket Nº:77-1924.
Citation:586 F.2d 530
Party Name:FEMINIST WOMEN'S HEALTH CENTER, INC., a Florida non-profit Corporation, Plaintiff-Appellant Cross-Appellee, v. Mahmood MOHAMMAD, M. D., et al., Defendants-Appellees Cross-Appellants.
Case Date:December 20, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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586 F.2d 530 (5th Cir. 1978)


Corporation, Plaintiff-Appellant Cross-Appellee,


Mahmood MOHAMMAD, M. D., et al., Defendants-Appellees


No. 77-1924.

United States Court of Appeals, Fifth Circuit

December 20, 1978

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Betty Owen Stinson, Steven L. Seliger, Kent Spriggs, Tallahassee, Fla., for plaintiff-appellant.

Nadine Taub, Women's Rights Litigation Clinic, Joan Friedland, Newark, N. J., amicus curiae for American Public Health Assoc., Nat'l Abortion Rights Action League & American Civil Liberties Union.

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Murray M. Wadsworth, M. Stephen Turner, Tallahassee, Fla., for Curry.

John C. Cooper, Tallahassee, Fla., for Griner.

J. Lewis Hall, Jr., Anne C. Booth, Tallahassee, Fla., for Messer.

E. Harper Field, Frank J. Santry, Tallahassee, Fla., for Mohammad, Curry, Crane, and Griner.

Michael I. Schwartz, Stephen Marc Slepin, Tallahassee, Fla., for Palmer.

Appeals from the United States District Court for the Northern District of Florida.

Before WISDOM, THORNBERRY and RUBIN, Circuit Judges.

WISDOM, Circuit Judge:

This appeal from an antitrust summary judgment raises questions concerning the jurisdictional reach of the Sherman Act, the scope of the Noerr-Pennington defense, the Parker Doctrine of state action immunity, and the applicability of Florida's anticombination statute to the medical profession. The Feminist Women's Health Center, Inc. ("the Center"), brought this action for injunctive and monetary relief against Drs. Mohammad, Curry, Knight, Crane, Griner, Messer, and Palmer (individually and in his capacity as Executive Director of the Florida Board of Medical Examiners ("BOME")). The Center alleged that the doctors conspired to boycott the Center's Tallahassee abortion clinic, and to fix the prices for abortions in the Tallahassee area in violation of federal and state antitrust laws. The Center further alleged that the doctors individually, and in combination, attempted to, and in fact did, monopolize the market for providing women's health and abortion services in the Tallahassee area. In addition, the Center complained that certain tactics used by the defendants amounted under Florida law to tortious interference with the Center's business relationships with its physicians. After extensive pretrial discovery, the trial court granted summary judgment in favor of all defendants on all counts, and the Center brought this appeal. The doctors cross-appeal the trial court's early ruling denying their motion for summary judgment for lack of subject matter jurisdiction. We affirm the trial court's jurisdictional ruling and its order with respect to the state law antitrust counts and reverse on all other points.



Because this appeal arises from a summary judgment, the statement of the background of the case is drawn from a record that reflects numerous disputed or potentially disputable issues of fact. Summary judgment having been entered against the plaintiff Center, the following discussion views disputed issues of fact in a manner favorable to the plaintiff.

The Feminist Women's Health Center, Inc., a Florida nonprofit corporation, operates the Women's Choice Clinic, a women's health and first trimester elective abortions clinic in Tallahassee, Florida. The Center was incorporated in 1974 and opened its office in Tallahassee on June 29, 1974. The Center employs ten to fourteen lay "health workers" and occasionally a laboratory technologist, a registered nurse, and a nurse-practitioner. The Center does not keep full time physicians on its staff, but rather uses physicians on a part-time basis to perform abortions, and, when possible, to provide "back-up" emergency services when patients develop post-operative complications. The Center charges about $150 for an abortion, $25 to $35 of which is paid by the Center to the operating physician.

Defendants Mohammad, Curry, Crane, Knight, Griner, and Messer are Tallahassee physicians specializing in obstetrics and gynecology. All are members of the gynecology and obstetrics staff ("OB-GYN Staff") of Tallahassee Memorial Hospital, the only hospital in Leon County, Florida, that has complete facilities for treating patients with obstetrical and gynecological problems. Defendant Palmer is a physician who practices in Tallahassee, and is Executive Director of the Florida Board of Medical

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Examiners, the body that licenses physicians and regulates the practice of medicine in the State of Florida.

Even before it opened its doors, the clinic was a matter of concern to the obstetrics and gynecological staff of Tallahassee Memorial. At its regular monthly staff meeting in May, 1974 the OB-GYN Staff adopted a resolution that it would not "approve" the Center if no member of the hospital staff were associated with the Center. The resolution, according to Dr. Brickler, the member of the OB-GYN Staff who first brought the Center to the staff's attention, was intended to express the staff's concern that the clinic have an "acceptable" local physician who would be available to take care of post-operative emergencies.

Despite some initial difficulties in recruiting physicians, the clinic operated without substantial controversy its first year. In the Spring of 1974, Lynn Heidelberg and Linda Curtis, two of the Center's directors, approached Drs. Brickler and Mohammad about working at the clinic. According to Ms. Curtis, Dr. Mohammad initially expressed interest in doing so, but at a second meeting changed his mind, citing pressure from his colleagues as well as the May resolution of the OB-GYN Staff. Dr. Mohammad indicated that he might consider working at the clinic, but only at a fee of $100 per procedure, a figure that is approximately triple the fee customarily received by operating physicians at the clinic. Dr. Brickler, on the other hand, decided to work at the clinic after having initially expressed fears that the OB-GYN Staff would disapprove of his doing so. Dr. Brickler informed the Center, however, that he would associate with the clinic on the condition that the clinic not advertise its services. The Center agreed and Dr. Brickler began his work for the clinic. In April 1975 Dr. McWilliams, another member of the Tallahassee Memorial OB-GYN Staff, began performing abortions at the clinic and handling post-operative aftercare. Drs. Brickler and McWilliams performed 816 abortions at the clinic that first year.

The clinic's difficulties began in June of 1975 when Linda Curtis gave an interview to the Tallahassee Democrat, The city's daily newspaper. The interview resulted in the publication in the June 20 edition of the Democrat of an article in which Ms. Curtis described the clinic and favorably compared its services with hospital abortion procedures. In particular, the interview emphasized the relative inexpensiveness of first trimester elective abortions at the clinic, and the advantages to women of choosing a place where "women set the pace for what goes on". The next day, Dr. Brickler terminated his relationship with the clinic, apparently because of the article.

The newspaper article succeeded in making the clinic, once again, a subject of great interest to the OB-GYN Staff at Tallahassee Memorial. At the July 1, 1975 meeting of the OB-GYN Staff, at which Drs. Messer, Griner, Crane, and Mohammad were present, Dr. Messer noted that Dr. Brickler was no longer working at the clinic and that an out-of-town physician was working there. The staff discussed the question of the ethics of the clinic's advertising, and concluded that physicians should not associate with organizations that advertise their medical services. The staff decided to bring the matter of the clinic's advertising to the attention of the State Board of Medical Examiners. The minutes of that meeting record that "Dr. Brickler commented he feels the local situation will collapse if it does not get support from the Obstetricians". A day or so after that meeting, Dr. McWilliams, who had attended the meeting, called the Center to inform it that he could not continue working at the clinic unless the controversy concerning the clinic's advertising was straightened out. He informed the clinic that Dr. Mohammad was upset about the newspaper article. In the days following the July 1 meeting Ms. Curtis met with Dr. Mohammad, who said that the Center should stop all advertising and that those associated with it should not make speeches about the Center. At that time Dr. Mohammad agreed to arrange an emergency meeting of the OB-GYN Department so that representatives of the

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Center could meet the other members of the staff. When Ms. Curtis and another director of the Center arrived for the emergency meeting on July 8 or 9 only Dr. Mohammad was present. Dr. McWilliams stated in his deposition that he was notified of a meeting earlier that day, but was not informed about the purpose of the meeting and therefore failed to attend. No further meeting was scheduled. Dr. McWilliams testified that he again raised the question of such a meeting with Dr. Mohammad, but Dr. Mohammad informed him that he had polled the other members of the staff and that no one wished to meet with representatives of the Center.

At the next monthly meeting of the OB-GYN Service on August 5, 1975, the staff passed a motion that the Service write a letter to the Capitol Medical Society ("CMS"), a private organization of Tallahassee area physicians, expressing the doctors' view that physicians in the CMS should not associate with organizations that advertise their medical services. Dr. McWilliams spoke up to explain that he was unaware when he began working for the Center that the clinic was controversial because of its...

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