my job today as i see it and as i mentioned it as i was walking up the podium is to synthesize for the court what i think is a number of issues and arguments that have been raised that at times in conducting that market power analysis the court failed to account for the reality of the of the actual market itself that was an issue and finally doing both of those things  evidence on summary judgment could you tell us what that market is presented in the district court on a on a on a on and i trust case a section two case where a this proceeding by way of direct evidence of anti competitive a fact plaintiff has to show two things the first is the actual direct evidence in the second is the rough contours of the market and that's very important there's a very important distinction between what the board showed as part of its direct evidence or expert specifying what the market our expert identifies what the rough contours of the market generally the rough area in which to grow provide service is a five county area that includes its cruise competitors and also includes sites i have to work as you can tell me if it's a correct the like the market for elective procedures and we for emergency should be applying you know rethinking in a rule of reason case what the court has to do in every instance is look at how the actual market itself operates and what the court shouldn't do what any court shouldn't do is a labels were for make the facts fit a particular way but what all of the case so i think indicates very clearly is that these cases have to be decided on their facts so let's talk about specifically what the market here is how it works and this is where this is where the court i think ran afoul and this has to be based on the evidence before the district court yes there's nothing that i'm saying today that is not embodied in the record somewhere in the evidence on the motion have the ability to provide advanced cardiac procedures those patients stay there that's a quirk of this market if a patient has a heart attack and that patients taken to complete medical center in canada that patient emergency procedures i'm talking specifically about emergency procedures which represent the vast majority of the cases as you say that get patients to go to hospitals for emergency procedures tend to say well that's the cork of this market  a patient taken to a hospital for an emergency procedure tends to stay there if that hospital can provide that emergency procedure a corker vision like it isn't sense a what you would get regency procedure would hospital and then so those patients were stabilized and then those patients at that emergency department unlike cooper which i just described unlike example bigger honor just just just explained unlike our lady of lourdes the patients at a community that's part of the market at the virtual memorial emergency department but you know if you're basically saying that pluto was destroyed basically destroying choice consumer choice in these two markets i'm the editor there is direct evidence which is patient testimony which is so what can you tell me what percentage of cases the virtue of control  it's the market issue represents one hundred percent of the patients who in the event of an emergency would go to and be sent to the virtual memory emergency room or the troy a more specific question three percent and so what we're really talking about here is only twenty percent of the board is nine percent of the market essentially two percent of the patients in the overall market that's right but you have those figures in your head but i think the point is it's really a small percentage or how do you how do you afford with with those numbers how do you destroy cancer which was the the focus should not be on the size of the market that that's an that's an error the focus should be on the specifics of how this market operates between rushed us which we wish we refer to and i've specifically you know is an authority that says you can't just look at the size of them are you have to look at the specifics of this market that we have we have to you have to do one or the other reader going to look at the actual facts which is the theory that you seem to exclusively pursue before the district court we're looking at it is market share and the new sort of sub market theory that it seems you are presenting for the first time on your own even if we go with that sub market you re really looking in the context of the of the market as a whole when it comes to substantial foreclosure but the market as a whole doesn't mean the the percentage of the market the market is a honey and says you have to say w clearly not happy that it no longer has the arrangement that it used to have with richard so now there is a similar type of arrangement with virtue and presby but if the issue patients who underwent examination under oath and testified in detail about their experiences we have testimony from the physicians about what their practices were where  their title to refer their patients to wherever they were to refer patients they happen to think that treatment in a certain hospital has is very good well if if they're operating in the best interest of the patient and they're using their good faith professional judgment sure why isn't that the case here because it because we have direct evidence in black and white that there is a plan to shut down to bora by redirecting patients away from  plan was and this is an argument this is documents on the record this is not part of this here it is part of the case but but the point is that the plan was to redirect patients away from the burra to weaken the board to cause the board control of the marketplace for that even to be a real possibility and with the split the statistics that were put before the district court here how could we possibly conclude that the district court  vicinity of the virtual memorial emergency department where if those patients have a problem all of those patients all of them are sent to a virtual emergency department once they got there every single one of those patien them were deny choice the argument that richard was making and i think that the court is a dangerous one is that we haven't hurt enough patients we haven't exercise enough control over patients not the patients who are being hurt i mean this isn't aligned themselves with the medical groups and organizations where they work within the group so if you're a patient of one doctor they will be a referral to another another doctor wore a medical facility within that same group  describing in the way that i would distinguish this case would be through an explanation of the walk in when you when you select for example your doctor if you're if you have medical insurance we select your doctor you make sure that your doctor is is covered by your policy and you pick your doctor and there you go in this instance patients have an emergency but taken to a hospital they don't have it they're supposed to have a say in where they go next when they get to ritual because richard can't perform the surgery virtua can't perform the intervention those patients have a right to say i want to go for example to to bore a because the board is in charge copays these are emergency patients outpatient setting when when he when he patient sees a cardiologist by the time that patient has and you know an emergency or requires treatment but it time they had the reach that point and they find out that it's it's c g p s policy the virtue of physicians policy not to honor that choice we say it's too late your example of the summit medal group which i'm very familiar with is it is not indicative of a reduction in output the loss of patient choice is an anti competitive effect as is the loss of quality in the market we've established that too because as a matter of published governmental age caps data the one hundred eighty thousand dollars to two hundred thousand dollars we're not standing in the shoes of the patient saying we have a cause of action because patients with private rights were saying that the loss of patient choice plus the loss of quality p increased price for it for insurance carriers are going to pick up the cost of an ambulance if you go from mount holly to philadelphia when you have a heart hospital twelve miles away these are all in disha of an unhealthy competitive us from from from our view and we think this is consistent with the supreme court this is consistent with the law the circuit market as a whole refers to injuries to consumers and injuries to the competitive process the market with the market share analysis which is what which they think we're talking about right now this is a part of the market power analysis when you don't have direct evidence w saying is and it's consistent with all of the evidence below is that yes to burra competes generally within this larger market but it's a quirk of this market where figure you can't you can't say it's incorrect to rely upon virtue is market definition because it fails to account for a couple of things for example number one not all cardiologists have the ability to send patients out nor should they send patients emergencies because once those patients get there they're going to be treated the really well rather poor competes generally in the market the market that we're really talking about and should be talking about is the market that deserve a personal injury law firm they have not watched tons of cases in south jersey one kind of case they won't do is medical malpractise and they own medical malpractise cases go to this one particular firm and in south jersey which if if i'm if i if i if this were a few months ago when i was still stuck at source on this i would say that if i had the power because there's i'm the only law firm where we're clients can come to a particular work and i we have a monopoly over over those customers right because just like her to effectively has a mini monopoly over the patients in their region and i say i'm going to i'm going to take these patients and i'm going to these clients i want to send them to this say i really don't want to go they are all here and all what this is my referral the difference is remember that in medicine in new jersey there's a patient bill of rights that requires a patient's have the right to choose in new jersey the county and the cardiology group which is sometimes referred to as the g p s this is a much more straightforward issue than the prior discussion  because the market definition below which started with the poor his actual first amended complaint which was rouhani in two thousand and eleven when judge brown ruled on the motion to dismiss based on the allegations of a multi county rather than market which to brewer then retained an expert who refined that market and defined it as multi agree at the beginning of the argument that there was no dispute regarding the relevant market judged then determined that there was no dispute of material fact that the burra had not offered any evidence of an injury to competition in the relevant market except for injury to itself which would be extreme prejudice to defendants because this is not a motion to dismiss case this is a case where there was extensive discovery starting with the first of many complain as i said and also a denial of our y room patients would be totally incorrect and prejudicial on that point what the board is essentially saying is that any business has a monopoly in its own customers which is an absurdity for the end i trust in but i think really pointing out some some things that are unique to i to do this market i and let's just a kodak say we need to look at the actual operation of the market and and there is evidence that appears in the district court record that i ever see her patients are effectively rock tended to certain policies are not able to make choices about where they go that there is that kind of control of the market as eastman kodak well you're on the first of all there is no evidence  record and no one has ever attempted to define a market regarding emergency rooms that's nowhere here so there's no predicate on which to determine even what the emergency room market is much less whether anyone has any market power in that market or whether there's been any kind of effect of visit restraint on the market of patients going to emergency rooms and kodak there was a market definition that kodak had market power in the market for kodak parts and that kodak was using that market power to extend into the tiger market of service for kodak machines so that the market defined here is a ritual of emergency procedures a c i procedures within a geographic area the market was defined as the hospitals that compete for a i procedures but to growers export did was to look at the hospitals that were in the market of receiving those patients and competing for those patients so there was a dispute about that being the market for emergency competed for were patients who needed those emergency procedures that the ten hospitals at least who were in the market for the non emergency procedures competed for the patients commuted those procedures so any and now assess whether there was whether the brief rule arrangement between the cardiology group and the pen doctors affected competition has to be in terms of the markets that were defined in terms of whether that arrangement lessened to competition among  kraus pointed out we're talking about two percent of the relevant market here at the most and these and within that there's a there's a very small number of people who have this anecdotal evidence but it's once one entities customers or business and that there there isn't any worse and versus miramax case isn't complaining we were deprived of the of the films from miramax and the court said this court said no there's fifty nine other distributors in the in the brokerage concepts case which was presented to the district court it's not in our public brief but it was prevent presented to the district court it's a very very close case here on the subject of whether a particular entities customers can be a market and what happened in that case to quickly simplify on judge becker did an incredible job of laying out the complex facts but the essential thing there was that it was a s health care and h m o was he using its power over the members of that h m o to restrict which companies could provide prescription benefits for the patients in other words they were saying if you don't do what we say we're not going to put you on our list of preferred network providers and therefore none of our he was health care patients we'll be able to give it to you unless they pay the full amount because we won't pay and what this court said was that this health care of patients cannot be a relevant market that the market was all patients of health plans and for a fact then u s health care may have had market power that over its own patients did not give it market power over the patients in the relevant market the same thing is true here and it to get back to a question just rouse the did not over the patient choice that is in those twenty examples is not a denial of truth is that it's caused by a lessening of competition in the relevant market and that's the antitrust criteria it's not a good patient choice is lessened patient choice can be lessened by a hundred different things as judge fine taste was pointing out with his  firm example for example if if the cardiology group of doctors said to patients don't go to the border it burned down last night that would be a way to limit patients choice but it would not be in a trust violation and might be something else but it's not in a translation to women patient choice as a indicator of direct evidence of adverse impact on competition the patient choice has to be restricted by a restraint on competition and here a restraining on competition would mean as defined by the board as expert a restraint on the eight or ten cardiologists which we demonstrated the cardiology groups twelve physicians only constituted less than eight percent of the market of cardiologists all over cardiologists got together in a market and said we're not going to send patients somewhere that could potentially be an anti trust complain or indication of patient choice affected by a lessening of competition but there is no listening of competition here because we're only talking about individual effects on to bora and patients of an individual group and that's why the market avoid absence of proof or an actual market effect through with a theory that was raised at the sub market because there was insufficient evidence presented at that market we didn't reject as a matter of law that said market i think that whether that was more on the subject of whether there was an effect on competition rather than whether there was a market to fine as that but it's the same point really which is that miramax  distributor was not sufficient to be a market but as an end point about as a matter of law in the brokerage concepts case  single brand market consisting so if he were as health care members with prescription drug benefits should we accept this market definition our inquiry would be at an end for us health care must by definition our getting that arguing that no other products were reasonably interchangeable with us health care members and the court says examining these contentions we conclude that this new market definition stand as a matter of law and i think the point is this there is going to be a contention that patients who were at virtual memorial in need of a transfer constitute a separate sub market there has to be an economic analysis that those patients a somehow different from the other patients in the market and the other patients in the market were patients they are by the way one of the few hospitals that hindle this type of procedure isn't there well i know undertaking from my memory having read a new record that they are one of the very few a non emergency market those are all hospitals that are able to compete for those specific procedures so in the market that they're expert to find they're one of eight or one of ten that can can provide those procedures in terms of all of those procedures and the market as a whole the board constitutes approximately ten percent overall counting  patients of the number of those types of procedures that are done in those markets and we're talking here is judge cross pointed out before we're talking here about less than twenty percent of the border as ten percent of the market so at issue in this case is only ten percent of the relevant number they dispute that that that that's an appropriate  gets it based on their documents hits it was it was computed and presented by the expert record of our expert and there is nothing in the record that i'm who were able to transfer these patients were available to the board to compete for them is there evidence in the record that they could indeed compete for them the answer is yes on the first point regarding the emergency room and the so called walk in comp but the reason the brewer did not have an emergency room in the past was because to poor is a specialty hospital how to mount therefore it did not beginning of two thousand and ten to address this issue was they made an agreement with the words medical center burlington county for a lure to put a satellite emergency department on the deploy campus end i trust significance of that is the border was able to complete for emergency room patients by doing that and nothing changed between two thousand and seven and two thousand and ten to allow them to do that so in fact with this case is really about is not about preserving competition which is what it's meant to be out to prove this claim here is to be protected from competition because because of the competition that this competitive things that they could have done such as your on your emergency room establishing other relationships with other referring physicians the record shows that they did do those and they were able to compete for have to look at how that market operates whether you call it a sub market or whether you call it of course a quirk of how the market works those facts were before the court we proceeded to be articulating our claim saying that we have direct evidence and all we need to show is rough contours of the market the court saw the direct evidence the lower court referred the direct evidence what the court was presented with was a market power analysis and economics that we simply said look i know it looks like patients last choice i know it looks like every other hospital cannot compete for patients out of virtue was emergency department but look we have an expert report that says that evidence really can't exist because strategic choice to be seen with the actual market effects and that's what the district court and then address because it could the district court adopted a market power and now assess market powers as a market power analysis is supposed to be a surrogate for direct facts defendant's moved on summary judgment said that border loses because it can establish market power to poor countered and said no and in this circuit we don't need to show market power because we have  and direct evidence of anti competitive effects defendants argued yes but there's still no market power and so when the crew adopted and economic market power analysis what should happen at the time and  which is part of the record at the time is under kodak you have to look to see how its actual market operate and the way that this actual market actually operates is that  way that this market worked was they were the kodak of cardiology when you got there you were locked in at that point were being sent to penn presbyterian those facts were in the record those facts were part of  the expert economists report this argument was addressed and it was set up as an argument everybody did in virtue is own paper so i appreciate i really do appreciate  in every way that the way that this the facts are being packages are saying look at it now from you know the way the market power analysis the way that the court should have looked at it and the court simply