In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1196

CAROLYN G. KOCHERT,

Plaintiff-Appellant,

v.

GREATER LAFAYETTE HEALTH SERVICES, INC., et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Lafayette Division.

No. 01 C 27—Allen Sharp, Judge.

____________

ARGUED FEBRUARY 13, 2006—DECIDED SEPTEMBER 12, 2006

____________

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. In this appeal, Carolyn Kochert

challenges the district court’s grant of summary judgment

for the defendants on Kochert’s claims alleging violations of

Sections 1 and 2 of the Sherman Antitrust Act. Mindful of

the Supreme Court’s admonition that the purpose of federal

antitrust law “is not to protect businesses from the working

of the market; it is to protect the public from the failure of

the market,” see Spectrum Sports, Inc. v. McQuillan, 506

U.S. 447, 458 (1993), we conclude that Kochert does not

have antitrust standing, and so we affirm the judgment of

the district court.
2 No. 05-1196

I. BACKGROUND

Carolyn Kochert, M.D., began practicing anesthesiology

in Lafayette, Indiana in 1985. From 1985 to 1994, Kochert

practiced at both of the hospitals in Lafayette, Home

Hospital and St. Elizabeth’s Medical Center (“SEMC”). In

1994, Home Hospital and defendant Anesthesia Associates

entered into a contract granting Anesthesia Associates,

an anesthesiology practice group, exclusive rights to provide

anesthesia services at Home Hospital. It is undisputed that

exclusive services arrangements between anesthesiology

practice groups and hospitals are commonplace in this

industry and do not inherently raise anticompetitive

concerns. After being offered the contract for anesthesia

services at Home Hospital, Anesthesia Associates offered

anesthesiologists with privileges at Home Hospital subcontracts to provide anesthesia services at Home Hospital.

Kochert received a subcontract, which was eventually

extended to 1998. Although Kochert’s Home Hospital

subcontract was not renewed in 1998, she continued to

provide anesthesia services at SEMC.

In 1998, Home Hospital and SEMC merged to form

defendant Greater Lafayette Health Services (“GLHS”),

which administered both hospitals. Soon thereafter,

Lafayette Anesthesiologists, a practice group of which

Kochert was a member, obtained an exclusive three-year

anesthesiology contract at SEMC, in which Kochert participated. When this contract expired in 2001, GLHS did not

renew its ties with Lafayette Anesthesiologists and instead

contracted with Anesthesia Associates to provide exclusive

anesthesia services at SEMC. Anesthesia Associates’s

contract to provide exclusive anesthesia services at both

Home Hospital and SEMC has been extended several times

and the current extension terminates October 14, 2006.

Kochert claims that Lafayette Anesthesiologists was the

only group “within an hour of Lafayette” that could pro-
No. 05-1196 3

vide a competitive check on Anesthesia Associates. Due

to Anesthesia Associates’s exclusive contracts, Kochert

alleges that she has been unable to practice anesthesiology

at Home Hospital since March 1998 and at SEMC since

2001. Kochert claims that consumer welfare decreased

because of the exclusive contracts with Anesthesia Associates. For instance, she states that before Home Hospital

awarded the exclusive contract to Anesthesia Associates

in 1994, there were no reported problems with anesthesiologists leaving operating rooms or otherwise failing to

monitor patients undergoing surgery, while such problems

became commonplace after the grant of the exclusive

contract to Anesthesia Associates in 1994. She also

claims that the exclusive contracts increased anesthesia

services prices and increased delayed surgeries due to

the unavailability of Anesthesia Associates anesthesiologists. Defendants counter that short absences of anesthesiologists during surgical procedures is commonplace, and

they cite a 1997 report by the American Society of Anesthesiologists that determined the “quality of anesthesia care at

Home Hospital to be good.”

Allegedly because of the limitations on her anesthesiology

practice, Kochert began considering a practice in

pain management in 1998. She received board certification in pain management in 1999, and later that year

opened a pain management practice (Advanced Pain

Management). By August 1, 2000, Kochert was practicing

pain management full time. Kochert claims that she did not

enter that field voluntarily, but rather was forced into pain

management practice due to the operation of the exclusive

Anesthesia Associates contracts. She claims that she made

written requests to exercise her privileges in anesthesiology

at GLHS in 2002 and 2003. Kochert continues to practice

pain management at Home Hospital and SEMC today.

In September 2001, Kochert brought this antitrust suit

against GLHS, Anesthesia Associates, and John Walling
4 No. 05-1196

1 According to Kochert’s brief, the relevant product is “anesthesia

services in support of inpatient surgical and obstetrical services,

both requiring a hospital stay of greater than 23 hours.” (Pl. Brief

at 15.) References to “anesthesia services” throughout this opinion

are generally limited to this definition.

2 The three versions offered were (1) Tippecanoe County, (2)

Tippecanoe, Montgomery, Clinton and White Counties, and (3)

Tippecanoe and its seven contiguous counties. 

3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993). 

(GLHS’s CEO). She alleged that she suffered antitrust

injury as a direct consequence of the defendants’ actions

excluding competition from the market and that the

defendants exercised monopoly power in the market. To

support her claims, Kochert attempted to introduce the

testimony of several experts, including Dr. Bruce Seaman,

an economist. Seaman opined that the relevant product

market was “anesthesia services,”1

 and offered three

versions of the relevant geographic market,2

 the broadest of

which included Tippecanoe County and seven contiguous counties.

Defendants GLHS and Anesthesia Associates filed

Daubert3 motions to exclude Seaman’s testimony, arguing

that Seaman had (1) incorrectly defined the relevant

product market, (2) used incorrect methodology in defining the relevant geographic market and unreliable definitions, and (3) failed to do a dynamic analysis. After extensive hearings and oral arguments regarding the Daubert

issue, the district court admitted Seaman’s expert testimony, noting that the fact that the evidence passed muster

under a Daubert relevance and reliability analysis did “not

ensure or decide whether such evidence is ultimately

persuasive.” The question of the evidence’s persuasiveness,

the district court stated, would be decided “either during

summary judgment or at trial.”
No. 05-1196 5

4 Kochert v. Greater Lafayette Health Servs., 372 F. Supp. 2d 509,

516 (N.D. Ind. 2004).

A month later, the district court granted summary

judgment to the defendants on all counts and claims. The

district court found that Kochert had no antitrust standing and had not met her burden of proving an antitrust

violation. The court ruled that Kochert could not withstand summary judgment on the antitrust violation in

part because she could not show that the defendants’

alleged practices had produced any anti-competitive effects

in the relevant geographic market.4

 Specifically, the district

court held that Seaman’s eight-county geographic market

was too narrow for two reasons: the results of his analysis

for this area did not yield results sufficient to accept his

definition of the market, and Seaman’s analysis ignored

commercial realities of the area.

The district court also concluded that: (1) Kochert failed

to demonstrate that the exclusive contract between GLHS

and Anesthesia Associates constituted an unlawful tying

arrangement; (2) the contract between Anesthesia Associates and GLHS did not constitute an illegal “group boycott”

of Kochert; (3) no reasonable trier of fact could conclude

that the defendants caused actual harm to competition, or

that GLHS is able to restrain trade due to its market

power; (4) the defendants lacked the requisite specific

intent necessary for a conspiracy to monopolize in violation

of the Sherman Act; (5) res judicata barred Kochert’s Count

V group boycott claim; (6) Kochert could not succeed on her

“essential facility” claim because alternative facilities are

available; and (7) Kochert’s Indiana state antitrust claims

could not survive summary judgment.

Kochert now appeals the grant of summary judgment.
6 No. 05-1196

II. ANALYSIS

We review the district court’s grant of summary judgment

de novo. In re Copper Antitrust Litigation, 436 F.3d 782,

788 (7th Cir. 2006). All facts must be construed in the light

most favorable to Kochert, the non-moving party. Id. The

district court’s grant of summary judgment was proper only

if there was “no genuine issue as to any material fact

and . . . the moving party [was] entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

A. Article III Standing

The defendants argue, for the first time on appeal, that

Kochert lacks standing under Article III of the United

States Constitution. Of course, defendants are not precluded from raising this claim because such a challenge

to the court’s jurisdiction may not be waived. See FW/PBS,

Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990). Indeed,

we “are under an independent obligation to examine [our]

own jurisdiction, and standing ‘is perhaps the most important of the jurisdictional doctrines.’ ” Id. (quoting Allen v.

Wright, 468 U.S. 737, 750, (1984)) (brackets omitted).

Generally, all that is required to demonstrate Article III

standing is “injury in fact plus redressability.” See U.S.

Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 627 (7th

Cir. 2003); Sanner v. Bd. of Trade of City of Chicago, 62

F.3d 918, 922 (7th Cir. 1995) (stating with more specificity

that “(1) the party must personally have suffered an actual

or threatened injury caused by the defendant’s allegedly

illegal conduct, (2) the injury must be fairly traceable to the

defendant’s challenged conduct, and (3) the injury must be

one that is likely to be redressed through a favorable

decision”) (quoting Valley Forge Christian Coll. v. Americans United for Separation of Church and State, 454 U.S.

464, 472 (1982)).
No. 05-1196 7

The defendants argue that Kochert cannot demonstrate

that her injury is “fairly traceable” to their challenged

conduct, and cite our Sanner decision, where we concluded that “soybean farmers who refrained from selling

soybeans due to the depressed price of the cash market

lack[ed] standing under Article III” to pursue their antitrust claims. See Sanner, 62 F.3d at 923. We reasoned in

Sanner that these farmers could not establish the traceability prong of the Article III standing inquiry because

the decision not to sell could have been motivated by

many factors and it would be impossible to weigh the

impact of the alleged violation on this omission. See id. at

923. Defendants analogize this to Kochert’s situation by

arguing that she is incapable of demonstrating that her

decision to exit the anesthesia services market was the

exclusive product of their anticompetitive actions. They

point to the timing of her exit from the anesthesia services market and portions of her deposition testimony

suggesting that other considerations may have played a

role.

We do not agree that Kochert lacks Article III standing.

As discussed infra, the defendants have raised a significant

challenge to Kochert’s antitrust standing. But the Article

III standing inquiry does not require Kochert to prove as

much. See, e.g., Florida Seed Co., Inc. v. Monsanto Co., 105

F.3d 1372, 1374 (11th Cir. 1997) (“Antitrust standing

requires more than the ‘injury in fact’ and the ‘case or

controversy’ required by Article III of the Constitution.”). A

question of material fact remains as to whether Kochert

suffered an injury as a result of defendants’ actions since

Kochert can construct a reasonable causality chain linking

her injury to defendants’ actions. What remains in question

is whether any of defendants’ actions were anticompetitive

and, if so, whether the anticompetitive actions led to

Kochert’s injury. We think it more appropriate to assess
8 No. 05-1196

these questions in the context of antitrust standing and

antitrust injury.

B. Antitrust Standing and Injury

The Supreme Court has observed that “[a]ntitrust laws in

general, and the Sherman Act in particular, are the Magna

Carta of free enterprise . . . . as important to the preservation of economic freedom and our free-enterprise system as

the Bill of Rights is to the protection of our fundamental

personal freedoms.” United States v. Topco Associates, Inc.,

405 U.S. 596, 610 (1972). Section 1 of the Sherman Act

provides that “[e]very contract, combination in the form of

trust or otherwise, or conspiracy, in restraint of trade or

commerce among the several States, or with foreign

nations, is declared to be illegal.” 15 U.S.C. § 1. The

purpose of the Act is “to assure customers the benefits of

price competition.” See Associated Gen. Contractors of Cal.,

Inc. v. Cal. State Council of Carpenters, et al., 459 U.S. 519,

538 (1983) (discussing the legislative history). The Supreme

Court has stated that the “central interest” of the Act is

“protecting the economic freedom of participants in the

relevant market.” Id. We have similarly observed that

“[t]he principal purpose of the antitrust laws is to prevent

overcharges to consumers.” Premier Elec. Constr. Co. v.

Nat’l Elec. Contractors Ass’n, Inc., 814 F.2d 358, 368 (7th

Cir. 1987).

Given the intent of our antitrust laws, courts have

developed the doctrine of “antitrust standing” and the

subsidiary doctrine of “antitrust injury” in order to assure

efficient use of the resources of the courts towards achieving these goals. See generally William H. Page, The Scope

of Liability for Antitrust Violations, 37 STAN. L. REV. 1445,

1446-63 (1985); see also U.S. Gypsum Co. v. Indiana Gas

Co., Inc., 350 F.3d 623, 627 (7th Cir. 2003) (questioning the

wisdom of the “antitrust standing” nomenclature in light of
No. 05-1196 9

the potential for confusion with Article III standing). Under

Section 4 of the Clayton Act, “any person who shall be

injured in his business or property by reason of anything

forbidden in the antitrust laws may sue therefor in any

district court of the United States in the district in which

the defendant resides or is found or has an agent.” 15

U.S.C. § 15(a). The Supreme Court has cautioned that this

seemingly broad language must be interpreted more

narrowly in light of Congressional intent as revealed by the

legislative history. See Associated Gen. Contractors, 459

U.S. at 529-35. Thus, “not all persons who have suffered an

injury flowing from [an] antitrust violation have standing

to sue under § 4.” In re Industrial Gas Antitrust Litigation,

681 F.2d 514, 516 (7th Cir. 1982). Under our precedent,

“only those parties who can most efficiently vindicate the

purposes of the antitrust laws have antitrust standing to

maintain a private action under § 4.” Serfecz v. Jewel Food

Stores, 67 F.3d 591, 597-98 (7th Cir. 1995) (quoting In re

Industrial Gas, 681 F.2d at 516). Kochert must demonstrate that she meets the requirements of both antitrust

injury and antitrust standing to succeed on the merits of

her tying, boycott, and conspiracy claims under the

Sherman Act. See Greater Rockford Energy and Technology

Corp. v. Shell Oil Co., 998 F.2d 391, 404 (7th Cir. 1993) (“a

showing of both antitrust injury and antitrust standing are

necessary to proceed under § 4”).
10 No. 05-1196

5 Kochert has maintained anesthesia privileges at SEMC, but the

record is clear that she was practicing pain management full-time

by mid-2000.

1. Antitrust Injury

The threshold question for our inquiry is whether Kochert

has suffered an antitrust injury. Kochert must demonstrate

that her “claimed injuries are ‘of the type the antitrust laws

were intended to prevent’ and ‘reflect the anticompetitive

effect of either the violation or of anticompetitive acts made

possible by the violation.’ ” Tri-Gen Inc. v. Int’l Union of

Operating Eng’rs, Local 150, 433 F.3d 1024, 1031 (7th Cir.

2006) (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,

429 U.S. 477, 489 (1977)). Kochert’s cognizable injuries are

variations on the theme of lost income in her anesthesia

practice. We must determine whether these alleged injuries

are the result of defendants’ allegedly anticompetitive acts.

But first, we must assess what anticompetitive behavior

is at stake here. The parties dispute the starting point of

defendants’ anticompetitive acts. The most obvious point in

time is 2001, when GLHS formulated its exclusive contract

with Anesthesia Associates. Before this point, Lafayette

Anesthesiologists had an exclusive contract with SEMC

while Anesthesia Associates had an exclusive contract at

Home Hospital, and, therefore, the Lafayette market was

serviced by two competing anesthesia services groups. Only

after GLHS contracted exclusively with Anesthesia Associates in 2001 were the doctors of Lafayette Anesthesiologists

(and hence Kochert) completely foreclosed from practicing

anesthesia services at either of the two Lafayette Hospitals.

This time line creates an obvious problem for Kochert

because the record makes clear that she was no longer a

practicing anesthesiologist at this point.5

Recognizing this problem, Kochert argues that the real

starting point of defendants’ anticompetitive acts is 1998,
No. 05-1196 11

when Anesthesia Associates declined to renew its subcontract with her. Kochert’s theory is that this event set off an

anticompetitive chain reaction which culminated in her

complete exclusion from the Lafayette anesthesia services market in 2001. Kochert does not contend that the

pre-2001 activity, viewed independently, constituted

anticompetitive activity under the Sherman Act. Indeed,

her expert, Seaman, testified at his deposition that the

events in Kochert’s chain prior to 2001 did not independently raise “any major anticompetitive concern.” The only

independent event Seaman identified as having anticompetitive effects was GLHS’s 2001 discontinuation of

the exclusive contract between SEMC and Lafayette

Anesthesiologists. Seaman, however, also advanced Kochert’s chain reaction theory of anticompetitive effects.

We agree with the district court that Kochert’s chain

reaction theory must be rejected. Kochert has offered no

precedential support for the proposition that a court should

look backward from the point of the actual anticompetitive

activity in search of the genesis of the acts that eventually

allowed the anticompetitive behavior to occur. Such an

examination would have no logical starting point in this

case. Kochert argues for 1998, which coincides with the

point at which her injuries accrued, but one could just as

easily argue that the starting point of the chain reaction

was 1994, when Home Hospital first awarded an exclusive

contract to Anesthesia Associates. But the 1994 contracting

is not logically the first domino because it clearly was not

part of an anticompetitive scheme. The same logic applies

to the 1998 denial of renewal of Kochert’s

subcontract—either this act constituted a part of an

anticompetitive scheme or it did not. If it did not, it is not

the starting point for our examination of defendants’

allegedly anticompetitive behavior.

Kochert asserts that events in an antitrust case must

be viewed “not in a vacuum or in isolation, but as a con-
12 No. 05-1196

tinuum,” and cites several cases in support of this contention, including our decision in In re High Fructose

Corn Syrup Antitrust Litigation, 295 F.3d 651, 655-56 (7th

Cir. 2002). We do not quibble with the proposition that

courts should not be myopic in their assessment of potential

violations of the antitrust laws, but Kochert’s reliance on

this concept is misplaced in the context of the current

inquiry. If she could demonstrate that the events of 1998

actually were elements of a broader anticompetitive

scheme, we would be remiss if we failed to consider them in

the antitrust injury assessment. But she cannot. There is

no evidence that any of the events of 1998, including

Anesthesia Associates’s decision to deny Kochert a subcontract, were part of an anticompetitive scheme that culminated with GLHS’s decision to contract exclusively with

Anesthesia Associates. They were simply staffing decisions

made solely by parties without market control. We have

stated explicitly that “the staffing decision at a single

hospital [is] not a violation of section 1 of the Sherman

Act.” See BCB Anesthesia Care Ltd. v. Passavant Memorial

Area Hospital Ass’n, 36 F.3d 664, 668 (7th Cir. 1994)

(collecting cases).

Furthermore, the cases Kochert cites in support of her

argument do not address the issue of antitrust injury as we

examine it here. In re High Fructose discusses the need for

holistic examination of a defendant’s acts in the context of

a court’s assessment of price-fixing arrangements. See In re

High Fructose, 295 F.3d at 655 (“The second trap to be

avoided in evaluating evidence of an antitrust conspiracy

for purposes of ruling on the defendants’ motion for summary judgment is to suppose that if no single item of

evidence presented by the plaintiff points unequivocally to

conspiracy, the evidence as a whole cannot defeat summary

judgment”). The case does not address either antitrust

standing or antitrust injury. The other cases cited by

Kochert are similarly inapposite. See Continental Ore Co.
No. 05-1196 13

v. Union Carbide & Carbon Corp., 370 U.S. 690, 699 (1962)

(“(T)he character and effect of a conspiracy are not to be

judged by dismembering it and viewing its separate parts,

but only by looking at it as a whole.”) (quoting American

Tobacco v. United States, 147 F.2d 93, 106 (6th Cir. 1945));

Aspen Highlands v. Aspen Skiing Co., 738 F.2d 1509, 1522

n.18 (10th Cir. 1984) (concluding that the six parts of the

plaintiff’s evidence of monopolization “should be viewed as

a whole.”); City of Mishawaka, et al. v. American Elec.

Power Co., 616 F.2d 976, 986 (7th Cir. 1980) (concluding

that the various acts of a monopoly in a “price squeezing”

scheme can not be looked at in a vacuum for the purposes

of determining whether there is evidence of a Sherman Act

violation). Moreover, none of the plaintiffs in the cases

Kochert cites attempted to introduce evidence of activity

postdating their participation in the market as proof of

antitrust injury. Kochert has not introduced evidence

supporting the conclusion that anything other than GLHS’s

2001 elimination of the exclusive contract between SEMC

and Lafayette Anesthesiologists should be considered as the

starting point for our antitrust injury analysis.

This conclusion brings into focus the central question

in assessing Kochert’s alleged antitrust injury: did GLHS’s

2001 elimination of the exclusive contract between SEMC

and Lafayette Anesthesiologists cause Kochert’s injuries?

Put another way, was this act “the cause-in-fact of the

injury,” or can it be said that “ ‘but for’ the violation, the

injury would not have occurred”? See Greater Rockford

Energy and Technology Corp. v. Shell Oil Co., 998 F.2d 391,

395 (7th Cir. 1993). Since Kochert was practicing

pain management full-time as of August 2000, the answer

to all of these questions is “no.” GLHS’s anticompetitive

behavior in 2001 did not injure Kochert’s anesthesiology

practice because it was nonexistent by this point. Kochert

therefore fails to establish one necessary prong of the twopronged test that the Supreme Court described in Bruns-
14 No. 05-1196

wick Corp.; she cannot demonstrate that her injuries

“flow[ ] from that which makes defendants’ acts unlawful.”

Brunswick Corp., 429 U.S. at 489. She has not demonstrated antitrust injury.

2. Antitrust Standing

Even if Kochert could establish antitrust injury, she

would still fail to establish antitrust standing because she

is not the party “who can most efficiently vindicate the

purposes of the antitrust laws” in this case. See Serfecz, 67

F.3d at 598. The Supreme Court has identified six factors

that courts should weigh in making this assessment:

(1) [t]he causal connection between the alleged

anti-trust violation and the harm to the plaintiff; (2)

[i]mproper motive; (3) [w]hether the injury was of a

type that Congress sought to redress with the antitrust

laws; (4) [t]he directness between the injury and the

market restraint; (5) [t]he speculative nature of the

damages; (6) [t]he risk of duplicate recoveries or

complex damages apportionment.

Sanner, 62 F.3d at 927 (describing factors articulated in

Associated General Contractors, 459 U.S. at 537-46).

The fourth factor weighs particularly heavily in this case.

In discussing the directness inquiry, the Supreme Court

stated that “[t]he existence of an identifiable class of

persons whose self-interest would normally motivate them

to vindicate the public interest in antitrust enforcement

diminishes the justification for allowing a more remote

party . . . to perform the office of a private attorney general.” Associated Gen. Contractors, 459 U.S. at 542.

As was the case in Serfecz, Lafayette’s anesthesia

“consumers could maintain an action if defendants’ actions stifled competition allowing defendants to engage

in monopoly pricing in the retail [ ] market.” See Serfecz, 67
No. 05-1196 15

F.3d at 598. These consumers, or perhaps one of the

entities that is also directly affected by rises in anesthesia

services prices, such as an insurer, would be a more

efficient claimant. The Court’s concern with opening the

antitrust litigation floodgates also suggests that groups

of doctors, such as the excluded Lafayette Anesthesiologists

group, might serve as better plaintiffs than individual

doctors like Kochert. Denying Kochert “a remedy on the

basis of its allegations in this case is not likely to leave a

significant antitrust violation undetected or unremedied.”

See Associated Gen. Contractors, 459 U.S. at 542. If Anesthesia Associates and GLHS are truly manipulating the

anesthesia services market in order to raise prices and

drive down quality of care, these effects will not be missed

by patient-consumers or insurers.

Two other factors outlined in Associated General Contractors that weigh against a finding of antitrust standing are

addressed in the context of our antitrust injury analysis.

Though Kochert is arguably a direct competitor, the causal

connection between her injury and the antitrust violation

is tenuous at best. Kochert has also failed to produce

evidence of improper motive. She has not offered any

arguments with regard to the other factors sufficient to tip

the scales away from our ultimate conclusion. Kochert does

not have antitrust standing.

Finally, though it is ultimately unnecessary, we note that

the record is bereft of any credible evidence of the type of

anticompetitive effects alleged by Kochert. Kochert’s

economics expert testified at his deposition that “there is no

particular evidence on nominal rates that would suggest an

exercise in market power.” With no evidence that prices, in

the normal sense, have been affected by anticompetitive

activity, Kochert (and her expert) relied exclusively on her

evidence of diminished quality of care as proof of

anticompetitive effect, in and of itself, and as proof of

higher “quality adjusted” costs. But no reasonable jury,
16 No. 05-1196

examining Kochert’s evidence of diminished quality, could

find it credible as proof of such diminution. Kochert has not

introduced any evidence that would allow a jury to compare

the quality of care prior to defendants’ anticompetitive acts

with the quality of care after these acts. She has not

introduced any statistical analysis focusing on measurable

indices of quality, such as the number of patient complaints

or mortality rates. Instead, Kochert offers expert testimony

and physician affidavits which rely almost exclusively

on anecdotes, such as one story about an anesthesiologist

leaving an operating room momentarily to eat a sandwich,

to prove diminished quality. We have serious doubts

about the usefulness of Kochert’s evidence. But we will

not resolve this issue because it is clear that Kochert does

not have antitrust standing.

III. CONCLUSION

The judgment of the district court is AFFIRMED.
No. 05-1196 17

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-12-06