United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 95-3396SD

_____________ Ralph Read, M.D., * * Plaintiff-Appellee, * * v. * * Medical X-Ray Center, P.C., a * South Dakota professional * corporation; * * Defendant-Appellant, * * Lynn A. Hendrickson; Daryl R. * Wierda, * * Defendants. *

_____________ No. 95-3530SD

_____________ Ralph Read, M.D., * * Plaintiff-Appellant, * * Appeals from the United States v. * District Court for the * District of South Dakota. Medical X-Ray Center, P.C., a * South Dakota professional * corporation; Lynn A. * Hendrickson, M.D.; Daryl R. * Wierda, M.D., * * Defendants-Appellees. *

_____________ No. 95-3897SD

_____________ Ralph Read, M.D., * *

### -2- Plaintiff-Appellant, * * v. * Medical X-Ray Center, P.C., a * South Dakota professional * corporation, * * Defendant-Appellee. *

_____________ Submitted: October 21, 1996 Filed: April 2, 1997

_____________ Before FAGG, HEANEY, and HANSEN, Circuit Judges.

_____________ FAGG, Circuit Judge.

After twelve years as a partner in Medical X-Ray Center, P.C., a group of radiologists in Sioux Falls, South Dakota, Dr. Ralph Read quit an d set up a competing independent practice. When his own practice failed, Dr
. Read brought this antitrust lawsuit against Medical X-Ray Center and two of its doctors, Lynn A. Hendrickson and Daryl R. Wierda (collectively MXC) , asserting MXC engaged in anticompetitive conduct and MXC’s conduc t prevented Read from competing successfully in the Sioux Falls area. A jur y found in Dr. Read’s favor on his Sherman Act con spiracy and monopolization claims. See 15 U.S.C. §§ 1, 2 (1994). Finding no evidence of conspiracy, the district court ov erturned the jury’s verdict on Dr. Read’s conspiracy claim and entered jud gment as a matter of law (JAML). The district court upheld the jury’s verdict on Dr. Read’s monopolization claim, however, eve n though the court believed Read’s practice failedbecause of his practice’s competitive shortcomings rather than any anticompetitive conduct by MXC. MXC appeals, and Dr. Read cross appeals. Viewingthe evidence in the light most favo rable to Dr. Read, see Amerinet, Inc. v. Xerox Corp. , 972 F.2 d 1483, 1505 (8th Cir. 1992), we conclude a

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reasonable jury couldonly find Dr. Read’s business failed because of his
own c ompetitive flaws. Thus, Dr. Read did not establish causation, a n essential element of his case, and we reverse on MXC’s appeal and affirm on Dr. Read’s cross appeal.

In 1987, Dr. Read decided his MXC work schedule was too rigorous
. Dr. Read’s family wanted to stay in Sioux Falls, but his contract with MXC contained a covenant not to compete for two years within a twenty-five mil e radius of the city. Read proposed several option s for reduced workload and compensation. Most were rejected, but MXC agreed to employ Read as a n indepe ndent contractor and continued to include Read on its hospita l schedules. Read left the partnership in 1988, worked as an independen t contractor for a year, and renewed the contract for a second year. When the second contract expired, MXC offered to rene w it, but Read told MXC he was being exploited and he intended to launch hi s own practice. According to Dr. Read, MXC’s Dr . Soye told him MXC “would fight [him] every step of the way.” When he s tarted his own business in June 1990, Read targeted only a ho spital-based diagnostic radiology practice. For several years, MX C radiologists had been the only ones practicing at Sioux Falls’ larges t hospitals, Sioux Valley Hospital (SVH) and McKennan Hospital. MXC rather than the hospitals scheduled the individual radi ologists to ensure 24-hour coverage. Dr. Read informed SVH, McKennan, and MXC that he was willing to take his fair share of night call and weekends, but that he would not be available himself 24 hours every day of the week. SVH had an open staff and Read had privileges to practice radiology, s o Read posted schedules at SVH showing the hours he would be on the premises. On one schedule, Read indicated he would on ly be at SVH for three hours a day. Dr. Read carried
a beeper, but the schedule stated any urgent work should be performed by other radiologists, that is, MXC doctors, when Read was not there.

### -4- Dr. Aspaa s, SVH chief of staff at the time, felt SVH’s primary care doctors should be able to choose between MXC or Dr. Read for thei r patients’ radiology needs. When Dr. Aspaas suggested a choice card system , Read proposed language that would permit SVH’s physicians to choose Read to interpret their x-rays if he was available, b ut to default their choice to MXC if Read was not at the hospital. MXC wou ld not agree to become Dr. Read’s safety net, ho wever. Instead, the choice card system put in place allowed doctors to ch oose between MXC and Dr. Read’s independent practice
on a case-by-case basis. Dr. Read then sent letters to the SVH doctor s advertising quality care at prices well below MX C’s. MXC did not retaliate against the SVH doctors who chose Dr. Read, but actually provided coverage when Dr. Read was not there.
MXC was willing to incorporate Read on its SVH schedule to ensu re 24- hour coverage of his patients if Dr. Read signed a coverage contract and provided his own sche dule in advance. The proposed contract stated Read would pay MXC an unspecified sum to cover Read’s cases when Read was not
on SVH premises, and MXC would bill the patients directly for its services
. Read did not acknowle dge the offer for three months because he thought it
was a practical joke. Read believed MXC had an ethical obligation to cove r his patients, and he did not have to pay MXC anything for backing him up. In February 1991, Read informed MXC of his refus al to negotiate a coverage contract for any price. Around the same time, Dr. Read accepted a fellowship at the University of Nebraska Medical Center in Omaha that he had applied for the previous December. On appea l, MXC asserts the district court should have granted JAM L on Read’s § 2 monopol ization claim because the failure of Read’s practice
was caused by the practice’s deficiencies rather than any predatory conduc t by MXC. According to MXC, Read caused

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his own injury by fai ling to provide 24-hour service for his patients and byrefusing to work a reasonable schedule. On the other hand, Dr. Rea d conten ds his practice failed because MXC had foreclosed every viabl e practice option by refusing to cooperate at SVH, entering into exclusive contracts at the other hospitals and the Central Plains Clinic, and placin g rest rictive covenants in MXC’s employment contracts. Having carefull y reviewed the record, we agree with MXC that Dr. Read caused his ow n business’s demise.
To prevail on his antitrust claims, Dr. Read had to show a reas onable jury c ould find MXC’s allegedly anticompetitive conduct was “a materia l cause” of his injury. National Ass’n of Review Appraisers & Mortgag e Underwriters, Inc. v. Appraisal Found. , 64 F.3d 1130, 1135 (8th Cir. 1995) , cert. denied , 116 S. Ct. 1676 (1996); Amerinet , 972 F.2d at 1490; see Brown v. Presbyterian Healthcare Servs. , 101 F.3d 1324, 1335 (10th Cir. 1996 ) (cau sationrequirement applies to private plaintiffs seeking to invok e antitrust laws), pet. for cert. filed , 65 U.S.L.W. 3611 (Feb. 26, 1997 ) (No. 96-1365). A mate rial cause is a “substantially contributing factor.” National A ss’n of Review Appraisers , 64 F.3d at 1135. Dr. Read canno t recover if the decline of his business was attributable to causes othe r than MXC’s behavior. Id. As the district court observed, Dr. Read did not take reasonabl e steps to compete head -to-head with MXC in the inpatient radiology market. The hospitals and primary care doctors desired 24-hour service for their patients. MXC provided this service, and Dr. Read did not. When MX C proposed a reasonable written contract that would have solved Dr. Read’s coverage problem, Read refused to discuss the pr oposal. Thus, Read’s lack of coverage cannot be blamed on MXC. Dr. Read made the voluntary choice not to provide round- the-clock service, either by doing it himself, or by hiring someone else, and this was his downfall. Dr. Read presented n o evidence that any individual MXC doctor wanted to cover Dr. Read

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but could not because of MXC’s restrictive coven ants. Simply put, Read was trying to force MXC to cover his business without following the medica l
comm unity’s normal coverage practices--paying MXC compensation for th e service or agreeing to back up MXC doctors in exchange. Read wanted t o “free-ride,” avoid th e cost of 24-hour coverage by forcing MXC to provide it to him for free, so he could undercut MXC’s prices.
Read’s lack of coverage cost him bus iness at SVH and McKennan. Some SVH doctors who initially chose Dr. Read switched to MXC when Dr. Read tol d themhe could not provide 24-hour coverage. When McKennan expresse d concern to Dr. Read about his coverage deficienc y, Dr. Read did nothing to address it. McKennan then made a unilateral decision to deal with MX C exclus ively, despite MXC’s refusal of an exclusive contract, because o f concerns about patient care. As for other potential clients, Dr. Read made little or no effort to pursue them. The Sioux Falls Veterans’ Administration (VA) Hospital had an open bid process f or an exclusive contract. Dr. Read did not submit a bid, even though his restrictive covenant had expired before the bidding closed. MXC submitted the lowest bid and was awarded the exclusiv e contract. Similarly, Dr. Read failed to compete for a contract at Central Plains Clinic (CPC). The CPC business manager testified Dr. Read neve r asked for clinic business, and Read admitted he never made “a specia l effort to seek them out.” At Canton-Inwood Hospital, a facility twent y miles from Sioux Falls, Dr. Read refused to commit to a partnership with the M XC radiologist who had an independent contract there, so th e radiologist sought th e help of other MXC doctors. As for the SVH Outreach pro gram, SVH alone decided not to use Dr. Read because of his limite d availability. See To dorov v. DCH Healthcare Auth. , 921 F.2d 1438, 1459, 1462 (11t h Cir. 1991) (no causation under §§ 1 or 2 where radiologists , regardless of their personal wishes,

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were not causally responsible for hospital’s unilateral decision to deny competing radiologist privileges).

We conclude no reasonable jury could find MXC’s conduct was a “subst antiallycontributing factor” to the failure of Dr. Read’ s independent practice. National Ass’n of Review Appraisers , 64 F.3d a t 1135. The decline of Dr. Read’s business was ca used by factors other than MXC’s allegedly anticompetitive behavior. See id
. Dr. Read rejected MXC’s offer to negotiate a formal coverage agreement, did not respond t o McKen nan’s concern that he would not cover his practice there, did no t compete with MXC for contracts at the VA and CPC, and was excluded from th e SVH Outreach program and Canton because of unilateral decisions by their administrators. Thus, the district court properly granted JAML on the § 1 conspiracy claim, and should have granted JAMLon the § 2 monopolization claima s well. See id. at 1136 (causation is an essential element of 1 5 U.S.C. §§ 1, 2 claims).
Given the absence of causation, we need not decide whether MX C engage d in illegal anticompetitive behavior. See id. at 1134
. Nevert heless, we believe Dr. Read’s injury was caused by legitimat e compet itionrather than anticompetitive conduct. In our view, MXC’ s insistence on a coverage contract from a price-c hopping competitor was not
unrea sonable or anticompetitive. See Blue Cross & Blue Shield v
. Marshfield Clinic , 65 F.3d 1406, 1413-14 (7th Cir. 1995), cert. denied , 11 6 S. Ct. 1288 (1996); K onik v. Champlain Valley Physicians Hosp. Med. Ctr. , 73 3 F.2d 1007, 1014 (2d Cir. 1984). MXC had legitimate busines s justifications for it s actions towards Dr. Read. See Trace X Chem., Inc. v. Canadian Indus. , 7 38 F.2d 261, 266 (8th Cir. 1984); Konik , 733 F.2d at 1014. We now tu rn to the points raised in Dr. Read’s cross appeal. Given
our rejection of the monopolization claim for lack of causation, th e district court properly dismissed the attempted

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monopolization claim. Absence of causation also disposes of the tortious interference claim. See National Ass’n of Review Appraisers , 64 F.3d at 1137. Because we have reversed Dr. Read’s only prevailing claim, we need not co nsider his arguments about certain jury instructions, which ar e unrelated to our decision, future damages, and d ismissal of the individual defendants. Since Dr. Read suffered no antitrust injury, we reverse the award of attorney fees. See 15 U.S.C. § 15(a).
Without doubt, an independent practi ce is a challenging undertaking. Dr. Read sought the perks of independent practice, setting his own hours and not having to dea l with other partners, without one of the drawbacks, always be ing on call. Dr. Read chose not to provide the coverage an d availability offered by his competitor, MXC, andfor this reason potential clients chose MXC ove r Dr. Read’s competing practice. Dr. Read’s problem is, th e antitrust laws were enacted to protect competition, no t competitors. See Atlantic Richfield Co. v. USA Petroleum Co. , 495 U.S
. 328, 338 (1990).
Accordingly we reverse the district court’s judgment on MXC’s a ppeal, and we affirm the district court’s judgment on Dr. Read’s cross appeal.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.