Robinson v. Lull

• Decision Date: 18 October 1956
• Docket Number: No. 55 C 1053.,55 C 1053.
• Parties: Miles H. ROBINSON, Plaintiff, v. George F. LULL et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

145 F. Supp. 134

Miles H. ROBINSON, Plaintiff, v. George F. LULL et al., Defendants.

No. 55 C 1053.

United States District Court N. D. Illinois, E. D.

October 18, 1956.

COPYRIGHT MATERIAL OMITTED

John F. Sembower, Chicago, Ill., for plaintiff.

Kirkland, Fleming, Green, Martin & Ellis, Chicago, Ill., Howard Ellis, A. Leslie Hodson, Max Wildman, Karl Nygren, C. Joseph Stetler, Chicago, Ill., of counsel, for defendant.

SULLIVAN, District Judge.

This is a controversy in the world of medicine. Plaintiff is a doctor; defendants are the American Medical Association ("A.M.A.") and certain individuals who were its officers during the relevant time: George F. Lull, its secretary and general manager; his assistant, Ernest B. Howard; Edward R. Cummiffee, chairman of its Judicial Council; John W. Cline, its president; and J. W. Holloway, Jr., head of its legal department and legal advisor to the Judicial Council. Defendants have moved to dismiss the amended complaint for failure to state a cause of action.

The amended complaint is in two counts, the first of which purports to state a cause of action under the antitrust laws, specifically sections 1 and 2 of the Sherman Act, 15 U.S.C.A. § 1, 2, and section 4 of the Clayton Act, 15 U.S.C.A. § 15. The crux of this Count is the charge that the defendants conspired to monopolize the function of supplying prepaid (or "contract") medical and hospital services, that is, the giving of those services in return for a regular monthly payment. In truncated form, the allegations of Count I are that: Membership in the A.M.A. is a prerequisite to a successful medical practice, since it is required before a doctor may use hospitals for the treatment of his patients. In the years 1949 through 1952, plaintiff was a member of that organization, and was practicing his profession in Walla Walla, Washington. In 1949 or 1950 there was organized in that city "at the instigation of" the A.M.A., the Walla Walla Valley Medical Service Corporation ("Medical Bureau"), which proceeded to enter into contracts to supply pre-paid medical and hospital care. This Bureau is under the domination of the A.M.A. through duplication of membership and joint meetings; and it was organized by defendants as a means of monopolizing the field of contract medicine. Plaintiff disapproved of its formation and its method of operation, and wrote to the Walla Walla Valley Medical Society, a subsidiary of the A.M.A., protesting and giving his reasons for objecting. On May 22, 1951, in accordance with the terms of a conspiracy among the named defendants and others, plaintiff was expelled from the County Medical Society, State Medical Association, and the A.M.A., on a false charge, according to an illegal procedure, and without an opportunity to present his side of the story. Although he was re-instated as a member of the Judicial Council in 1952, both consideration of his appeal and publication of the favorable decision were delayed for several months. As a consequence of all this, plaintiff was unable to use hospital facilities, his practice in Walla Walla was ruined, and he was forced to attempt to re-instate himself in practice in Baltimore, Maryland, where he is now. Further, the defendants communicated the fact of plaintiff's expulsion to his father, who thereupon changed his will to plaintiff's disadvantage. Plaintiff asks actual damages of $272,000, plus treble damages under the Sherman Act.

That a cause of action under the anti-trust laws is not stated is apparent. Those laws forbid "restraint" or "monopolizing" of "trade or commerce among the several States," Title 15 U.S. C.A. §§ 1 and 2. The gist of Count I is that the A.M.A. monopolized, or attempted to monopolize, the field of supplying medical and hospital services on a pre-paid basis. Assuming the truth of the very general allegations to this effect, there is nothing which could show a resulting damage to the plaintiff. A member of the public who observes a monopolistic practice of which he disapproves has no standing to rectify the matter by bringing suit. This is the function of the Attorney General. Cf. United States v. Oregon State Medical Society, 1951, 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978. The remedy available to a private person is given to "any person * * * injured in his business or property by reason of anything forbidden in the antitrust laws", Title 15 U.S.C.A. § 15.

Under this section it is evident that there must first exist a business or property of a kind capable of being injured by the violation alleged. Peller v. International Boxing Club, 7 Cir., 1955, 227 F.2d 593, 596; Sargent v. National Broadcasting Co., D.C.S.D.Cal. 1955, 136 F.Supp. 560; Conference of Studio Unions v. Loew's, Inc., 9 Cir., 1951, 193 F.2d 51, certiorari denied 1952, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687. In the allegations of the present complaint there is nothing from which it is possible to deduce how monopolization of the "contract medicine" business could have injured the plaintiff. He alleges that at Walla Walla he "developed a successful practice which emphasized certain basic measures against disease, particularly the use of diet, vitamins, and antibiotics". This has no relation to supplying pre-paid medicine; and there is no allegation that plaintiff was prepared to, attempted to, or even thought about entering this field. His "business" was therefor not of a type capable of injury by its monopolization by any one.

The same result is reached in another way by pointing out that the plaintiff was not injured "by reason of" an anti-trust violation. His practice was injured by his expulsion from the Walla Walla Valley Society and by the delayed consideration of his appeal and the announcement of his reinstatement. It is not clear how these activities assisted or could have assisted defendants in their pursuit of a monopoly. The alleged violations were accordingly not the direct and proximate cause of the injury. Tepler v. Frick, 2 Cir., 1953, 204 F.2d 506; Virtue v. Creamery Package Mfg. Co., 1913, 227 U.S. 8, 38, 33 S.Ct. 202, 57 L. Ed. 393. Count I thus fails to state a cause of action under the anti-trust laws for the reason that there is no showing that plaintiff was injured in his business or property by acts of defendants forbidden by those laws.

An additional, and equally fatal defect is that there is no allegation showing any effect of the alleged monopoly on interstate commerce; and this is of course essential. Title 15 U.S.C.A. §§ 1 and 2; Polhemus v. American Medical Association, 10 Cir., 1949, 145 F.2d 357, 359. Particularly apt here is Spears Free Clinic & Hospital for Poor Children v. Cleere, 10 Cir., 1952, 197 F.2d 125, 126. Plaintiff was a chiropractic institution in Denver, Colorado, and defendants were the local Medical Society and various doctors who were its members. The complaint, attempting to state a cause of action under the anti-trust laws, alleged that defendants had conspired to prevent the operation of ...