substantial barrier to entry in the highly concentrated market for pediatric and it's easy all of the services and in around san antonio texas contrary to at least arguments in the district court's decision below this case is not merely about baptise uses its power in the market for pediatric surgical facilities if we're speedy outreach surgeons to accepting a mosquito services that they otherwise would not want now after initially denying apple e's motion to this court should reverse the decision will it because the district court fundamentally misconstrued dr shows claims the district court erroneous lee refused to consider critical evidence of market white partner competition in the district court improperly the result addition there are three hospital systems that provide the wine and share the pediatric surgical services in the market these are apple we baptise health system christus children's hospital same ternium and methodist children's hospital that shawn was never actually allowed to practice at baptists and because of the other exclusive dealing agreements that are pervasive in the market there was not enough work outside of baptist for dr scholl's new company to become viable in the market definition is a question of fact that summary judgment d based on a point of failure to find the relevant market is only appropriate if the point affirms to present any evidence from which a reasonable jury could find d the point its market definition is bell market is defined by the interchangeability of the product in the cross elasticity of demand and women's terms of product market must include all reasonable substitutes that a consumer could turn to if a hypothetical monopoli anesthesiologist not the patient itself so in this way the pediatric surgeons are the effective consumer of pediatric amos easy elegy services and this evidence clearly shows but those consumers do not view the definition of the market rebounds entirely around himself a single competitor excluded from a single hospital system and nd the district court held that dr shah failed to present any evidence of where people can practically go to obtain pediatric definition because it shows where the consumers and the providers of pediatric anesthesiology services operate in or will it in other words it shows the effective area of competition for pediatric evidence also supports dr shows geographic working definition in addition better shot point into another case against baptists in which the very same market definition that he's proposed in this case was upheld with respect to the market for misunderstood the aftershocks claims again to be only about harm to himself from being excluded from the baptist sciences when dr charles claims certainly encompasses exclusion from baptists but not nearly so nar virtually impossible for any pediatric pain c c l d just to enter the market much less remain in computing among and all of this evidence of grog for pleasure competition throughout the market is more than enough to survive summary judgment on the fact question and if i may offer my condolences to catch candy we thank you ma'am please the court the sherman act claims in this case center on a single doctor's complaint that after he was terminated by his group he was no longer able to provide pediatric anesthesiology services in a single hospital system where his former group had an exclusive arrangement but dr shah presented no evidence that the contract between v h s and star anesthesia a very common type of contract in the health care industry harms competition or harm to consumers and the relevant market and as a result the district court granted summary judgment for be excess ruling that dr shah failed to present legally sufficient evidence defining a relevant market and failed to prove harm to that market and we asked this court to affirm that ruling and if i may just start with with a brief statement about the district court opinion because what you what you just heard quite a bit of is the district court refused to consider evidence ignored evidence and i would of course refer you to the very detailed seventeen page opinion we have from the district court there was no refusal to consider evidence there was no ignoring evidence the court very carefully and thoroughly went through all of the evidence that was presented in the summary judgment record if i may start with the relevant market and again i want to start because i want to just make  clear point at the outset that in his reply brief dr shah seriously misstates the district court's ruling on the relevant product market in two ways st he says that the district court ruled that there are relevant market was pediatric that's at page two now he seems to have retreated from that position here at oral argument but that the definition of the market has been a bit of a moving target in this case and the district court he articulated it as pediatric anesthesiology services in his brief in his briefs on appeal it was pediatric anesthesiologists it sounds like we're back to the services oriented market and that of course is what was presented to the jester court but i would just point out that's a misstatement about the district court's ruling the nd misstatement in the in the reply brief is that he says that the district court did not find fault with the product market that's at page two dollars to three dollars that again of course is not correct the district court devoted four pages in its opinion to explaining why dr market dr scholl's market definition was insufficient as a matter of law d what the court has heard as the relevant market definition sounds reasonable pediatric anesthesiology services in san antonio and seven contiguous counties but here's the problem with that it's not really the court the market he was measuring and of course that was the basis for the district court's opinion the reality of dr scholl's market is that he carved out huge segments of the pediatric anesthesiology market in san antonio and what's left and what his harm analysis is entirely based on is our services performed at six p h s hospitals which comprise just nine percent of all people pediatric anesthesiology services provided in the area in any given year or so why does he carve out well he's very clear in his deposition testimony it's all laid out in the briefs that he carves out the two of them the biggest hospitals in san antonio the university in the military hospitals he concedes that pediatric anesthesia services are provided at the these hospitals but he excludes them as from the source of supply because he says they are not hospitals where he individually can't work and i'd refer the court to his deposition at one thousand and seventy six he says the military hospital is excluded because it's not a place that i can work and he and  university hospital excluded because you just can't get privileges and work there i would point out there are no structural barriers to dr shah working at these hospitals there is a separate credentialing process but no structural barriers and in any event where dr shah chooses to work or obtain credentials is not a relevant market a market must be defined in terms of consumers where can consumers in the san antonio area  you didn't have a vote ok no one said is it alright with you if we use dr so and so to give you your aims the shit no one even mentioned that so who are the consumers and i mean it isn't  isn't the hospitals customers that we know because they're never a us they don't sign anything they don't agree so who are the consumers well your honor makes it makes a great point i mean this isn't a sort of unusual market and that the person who ologist is the surgeon and the patient selects the surgeon are sellouts the hospital where the surgeon practices and then the surgeon really acts as an agent for the patient and in selecting that ancillary services that come with that primary service so ultimately the customer is the patient and you know i would refer the court to that obviously the leading case on the nature of this relationship which is the  n parish hospital case and they describe it there which is that yes typically a patient the patient does not choose the end is the easy elegy just but but a patient can go to any hospital or surgeon they want to and in that way they can choose their anesthesiologists should they choose to if they are sophisticated that's the phrase that u s supreme court uses if they are sophisticated and they want to choose and it's the ologists and they do that by choosing a surgeon just doesn't happen i mean maybe in a perfect world where customers always have the final say but it simply doesn't happen customers do not choose the anesthesiologist as a practical matter that is the way this market how are we supposed to be looking at this if not as a practical matter well your honor i think you know there's a there's a couple ways the court can analyze the relevant market i mean in terms of how are we supposed to be looking at in terms of who is harmed by this who is harmed by the alleged anti competitive conduct well the plaintiff has offered a couple options one is surgeons are harmed because they don't have the choice  anesthesiologists but then they go on to say that they can see that surgeons are not harmed in this case and so i think the plaintiffs has set this up as patients i mean what they are when they're showing harm to a market are at least attempting to show harm to patient care or the quality of the services offered and the quantity of the services offered so i don't think there's a dispute between the parties that the harm to the competition here has to be shown in terms of the patients so the other carve out just say you know that we're talking about relevant market the other carve out from this relevant market is pediatric services provided and not hospital settings again no dispute that pediatric anesthesiology services are provided the settings and dr shaw in fact practices in that hospital settings but he carts them out is only quote is that they cannot be compared to hospitals  without any explanation of that very quickly on the geographic market the problem here your honour's is that he just simply offers no evidence that ties to the legal issue here which is where can consumers practically turn to obtain pediatric anesthesiology services and all of his evidence it has to do with other markets impatient services he mentions the allegations in another case that has to do with the market for the employment of nurses he says that you heard him say that's not an apples to apples comparison i would say it's a little bit more the problem is a little more severe than that because the market for the employment of nurses is entirely different and the market for a specialty like pediatric anesthesiology and in fact the evidence on the record is that the geographic market for say a general medical service like nursing is quite different than the market for a specialty because patients are willing to travel further to obtain a specialty service and that would be certainly the case here he gives another a couple other kinds of evidence like the location of nick use and pick use but again none of this goes to the relevant legal issue which is the willingness and ability of customers to identify and use physicians from other areas to provide pediatric anesthesiology services i would point the cording and other areas where you talk about used in dallas what are you talking yes around or it could it could be if there had been some kind of economic analysis printer performed in this case which of course there was none it could be that you would learn that pediatric patients are willing to travel further and use a contagious county's we don't know the answer to that question because no no kind of quantitative or qualitative economic analysis of any kind was performed in this  case what we do know from the case law is that the hospital service area the trade area where the business operates where plaintiff patients live those are all some things you just heard those do not factor into defining a relevant market that you have to make it has to be a consumer based decision and justice came back to judge king i'm sorry back to your question you know these the pediatric anesthesiology services market and the  right so then when the employer hospital for a hospital and when they are when they find that surgeon what they're getting then is a compliment of services that surround that surgical procedure so it's they're getting air radiologist they're getting a pathologist they're getting an anesthesiologist and that's why these kinds of contracts are so common in the health care industry because hospitals it's want to ensure that they have reliable high quality ancillary services available to patients and to surgeons for all of this this you know package of services that are going to that are necessary to the surgical proceedings so one way that this could have been done when wet and of course not nothing was that there was no economic analysis one way it could have been done was to analyze where do patients go for pediatric surgeries because that would be the same as  point being there's a primary market and the ancillary market and those would be the same in this case let me move quickly on to apple he started statistics about only a certain percentage of people in this area leave the mean i'm not sure that i don't i'm not sure i'm aware of that those statistics your honor there is there is no there was no data driven analysis in this case of consumer purchasing p patterns for pediatric surgery there were no the types of evidence that you normally would see to prove a relevant market no surveys revealing customer consumer preferences no none of the tests that are normally performed by economists to determine where patients possibly turn to obtain new services if i can move on to the issue of harm because dr shah regard let me just be clear if you take his relevant market at face value and it's pediatric anesthesiology services in san antonio the seventy figures counties he doesn't even try to show to that market he can't all of his evidence in this case whether it goes to the quantity the quality all of those all of his evidence of harm relates to six ph as hospitals that comprise only nine percent of the argument of the market so how could he put how does he prove harm in this case what he could have done it if he he chose not to go the indirect route which would have been showing market power and then evidence of challenge that the restraint harms competition he performed no economic analysis of the market presented no proof of ph as market power and in fact has taken the position in this appeal that the market power is not a part of this case because it was not a part of phase one so he has to show harm with direct evidence and how do you do that there's three categories of evidence you have to put on actual detrimental effects to consumers in terms of increased prices reduced output or decreased quality but he produces no evidence of any of this he concedes he didn't even look at prices no this is of course the primary way that an interest plaintiff shows market white harm from any competitive conduct no analysis of price in the relevant market here when it comes to declining quantity of pediatric from the market this is critical yonder they were not excluded from the market at most they have been excluded from the six p h s hospitals which are nine percent of the market and this because the star ph us agreement and you heard about other exclusive agreements i want to this point to other exclusive agreements are not issue in this case and the star b h s agreement does not prevent dr shah nor does it prevent tay house from practicing at the four other antonio that's methodist hospital the other thing you heard about you heard in the briefing is that certain ph pediatric anesthesiologists have resigned but we don't know who they are we don't know why or why they've resigned we don't know if they're still practicing in the market or not so the point is none of these numbers are a substitute for what is the huge missing piece of plaintiff's case which is some kind of economic analysis of the quality o quantity or availability of pediatric anesthesiology services and the relevant market and there's certainly been no analysis of whether any decline was a result of an exclusive contract between b h s and star dollars after dr shah's departure then from two thousand and twelve to two thousand and sixteen as for quality there is a summary judgment record on this is really just a handful of  anecdotal evidence from a handful of surgeons who used to work with dr shah at north central baptist and they say you know they had scheduling difficulties and they were not able to do surgeries with anesthesiologist who they had worked with but here's what here's the point about this evidence st this evidence about quality of decline in quality is not just limited to one hospital system it's primarily limited to one hospital north central baptise it is certainly not evidence of market wide harm it's also limited in time dr shah left and certainly for a few months after that there was a brief storm where it was different there were scheduling difficulties and that it all of the evidence of harm relates to about a three to six month period certainly nothing about the long term harm over the twelve years that this contract had been in place and here's the critical point no evidence of adverse patient outcomes no one said i was forced to perform a surgery with an unqualified ind there was some kind of adverse patient outcome there is simply no evidence in this record of a permanent long term reduction in quality or the availability for pediatric services in some your honor there has been no attempt to show market wide harm outside of baptist health systems and even if you're looking only at baptist health systems only even within that system even looking at just one hospital in that system there is no legally sufficient evidence of harm to patients through increased prices reduced availability or reduced quality and again just as came to your question about how this market works what's the hospital's incentive here well it's entirely aligned with patients hospitals while surgeons to be happy and they want to have reliable high quality care in terms of anesthesiology and other ancillary services that's why these agreements are so common in the health care industry to ensure reliable high quality care for patients and if there are no other questions sorry i will close and ask that the court affirm the summary judgment that i want to address st mr johnson said the district court didn't refuse to consider evidence of harm to competition the district court absolutely refused to consider the exclusion of table evidence regarding the exclusion of tails doctors from the the services and as i discussed earlier there's plenty of evidence to show there are a reasonable substitute for that product or service which means it's a legitimate product market definition now all this business about what facilities are included in the market that really has nothing whatsoever to do with whether or not there are reasonable substitutes for pediatric anesthesiologist services to the extent that the facilities a essentially did was injected this issue by question not d to show about it and then got the district court to find that out your show failed to define a lab upon the market for an exclusive dealing claim by referencing evidence that has nothing to between the surgeons and the hospitals that's a sort of root issue but i don't know who and that is between the two of them picks in a c c allergists but it's either the hospital probably