Cohen v. Adena Health System

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRIAN S. COHEN, M.D., et al.,

Plaintiffs, :

Case No. 2:23-cv-02145

v.

Judge Sarah D. Morrison

Magistrate Judge Chelsey M.

Vascura

ADENA HEALTH SYSTEM, et

al., :

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion to Dismiss pursuant to

Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (Mot., ECF No.

5). Plaintiffs responded (Resp., ECF No. 8), and Defendants filed their reply (Reply,

ECF No. 12). This matter is ripe for consideration. For the reasons set forth below,

the Motion is GRANTED.

I. FACTUAL BACKGROUND

The following summary draws from the allegations in the Complaint (Compl.,

ECF No. 1 (redacted) / ECF No. 7-1 (sealed)), as well as any documents integral to

and incorporated therein.

A. Adena’s Market Area

Adena Health System is a non-profit regional healthcare system that serves

rural populations in southern Ohio. (Compl. ¶¶ 3–4, 6.) Its physicians are employed

by Adena Medical Group, LLC (together with Adena Health System, “Adena”). (ECF

No. 1, PAGEID # 1 n.1; ECF No. 7-1, PAGEID # 172 n.1.)

According to the Complaint, “[t]hroughout the relevant time period, Adena

has held a dominant position in the market for health care services—and,

specifically, orthopedic services offered in an integrated practice—in … the Primary

Adena Market Area,” which encompasses Ross, Pike, Jackson, Highland, and

Vinton counties. (Compl. ¶¶ 1, 21, 23.) The Complaint alleges that Adena has

endeavored to expand its dominance in an “Attempted Adena Monopoly Area,”

which includes Fayette, Pickaway, Scioto, and Hocking counties. (Id. ¶¶ 6, 24, 49.)

The total population residing in these counties (excluding Scioto) was estimated in

2021 to be 309,077 individuals. (Id. ¶ 26.)

All of Adena’s facilities are located in either the Primary Adena Market Area

or the Attempted Adena Monopoly Area (together, the “Adena Market Area”).

(Compl. ¶ 28.) There are two competing non-Adena facilities within the Primary

Adena Market Area: Holzer Medical Center Jackson in Jackson County and

Highland District Hospital in Highland County. (Id. ¶ 37.) The Attempted Adena

Monopoly Area houses two additional competing facilities: Hocking Valley

Community Hospital in Hocking County and OhioHealth Berger Hospital in

Pickaway County. (Id. ¶ 38.) The following map details the relevant medical

facilities located in the Adena Market Area:

(Ud. 25.) In total, the four non-Adena facilities provide 13 operating rooms and

“have a combined total of 85 medical surgical beds and 12 ICU/CCU beds.” (d.

4 39, 41 (emphasis omitted).) By contrast, Adena’s facilities provide 16 operating

rooms and have “244 medical/surgical beds and 18 ICU/CC beds.” Ud. 4 40-41.)

None of the non-Adena facilities have an orthopedic doctor practicing full-time in

the Adena Market Area,! while Adena employs eight orthopedic doctors who

practice exclusively in the Adena Market Area. (Id. { 42.)

The Primary Adena Market Area—and Ross County in particular—is

“predominantly rural, poor, and medically underserved” with an “extreme need” for

orthopedic services for patients with limited access to transportation. Ud. 44 4—5,

44-48.) The Health Resources and Services Administration of the U.S. Department

1 Highland District Hospital and Holzer Medical Center Jackson each employ

a part-time orthopedist. (Compl. § 42.) Hocking Valley Community Hospital

employs two part-time orthopedic doctors. (/d.)

of Health and Human Services has designated much of the area in and around Ross

County as a “Medically Underserved Area.” (Id. ¶ 44.) Many patients have

insurance through Medicare or Medicaid or are uninsured entirely. (Id. ¶ 47.)

In 2018–2019, Adena controlled 64.6% of the market for orthopedic services

in Ross County, and no competing hospital system held more than 16.8% of the

market. (Resp., PAGEID # 226–27.) From 2019 through 2021, Adena performed

“almost 54% by charges of all orthopedic services” in the Primary Adena Market

Area. (Resp., PAGEID # 227.)

B. Adena’s Conduct to Protect Its Dominance

The Complaint describes Adena’s goal of “limit[ing] competitor access” to the

Adena Market Area and recounts the actions Adena took to protect its dominant

position. (Compl. ¶¶ 7, 53.) First, Adena “worked to stop or delay its potential

competitors from securing real estate” (id. ¶ 67) by, among other things:

• Purchasing Fayette Memorial Hospital, located within the Adena

Market Area, to “prevent” Dayton-based Kettering Hospital from

acquiring it, and, upon the purchase, “prohibit[ing] Fayette County

from allowing any county owned real estate to be leased or sold to a

competing health care provider” (id. ¶¶ 54–58 (emphasis omitted));

• Leasing a building in Chillicothe to “prevent[] OhioHealth and others

from doing so” (id. ¶ 64); and

• Purchasing a property (the “Prairie Run North Property”) in

Chillicothe through its subsidiary, Maximum Properties, LLC, because

Adena believed the property was “an ideal location for a competitor”

(id. ¶¶ 70–80).

Second, Adena engaged in employment practices designed to “stifle

competition” (id. ¶ 102), such as:

• Selectively enforcing restrictive covenants outlined in Physician

Employment Agreements, such as non-competition restrictions lasting

one year and restrictions on the solicitation of patients and employees

(id. ¶¶ 82–97);

• Requiring physicians to refer patients needing additional care only to

other Adena physicians unless there is no Adena physician offering the

necessary services (id. ¶¶ 103–108); and

• Providing Adena employees different coverage for out-of-network

expenses if they “go to” Adena as compared to Ohio State or other

providers “who Adena perceives as competitors” (id. ¶ 109).

Finally, Adena began construction in 2019 of the Adena Orthopedic and

Spine Institute. (Compl. ¶ 22.) In connection with this project, Adena entered into

agreements with Ross County, under which the county offered $83,270,000 in tax-

exempt special revenue bonds that Adena was to repay under a sublease and a

promissory note. (Id.) The Complaint alleges that “a monopoly position in the

market for orthopedic services will help Adena repay these bonds.” (Id.)

C. Adena’s Actions Toward Plaintiffs

The individual Plaintiffs in this case are Doctors Brian S. Cohen, Aaron M.

Roberts, and James Troy Thompson (collectively, the “Doctors”).2 (Compl. ¶ 1.) Dr.

Cohen is an orthopedic surgeon who possesses “unique” surgical skills and who was

“sought after by many patients across the region” during his 20+ years at Adena.

(Id. ¶¶ 112–14.) Dr. Roberts is a non-operative sports medicine physician who

worked at Adena for approximately 13 years. (Id. ¶¶ 116–17.) Dr. Thompson is also

a non-operative sports medicine doctor who worked at Adena for approximately 11

years and who has specialized training in various injections and other orthopedic

procedures. (Id. ¶¶ 118–21.)

Over time, the Doctors “grew frustrated … with the lack of support they

received from Adena’s administration.” (Compl. ¶ 122.) They decided to resign, but

before doing so, they began negotiating with OhioHealth for future employment

upon the expiration of the non-compete restrictions in their agreements with Adena.

(Id. ¶¶ 124–25.) The Doctors and OhioHealth also discussed a potential joint

venture to open an orthopedic services and ambulatory surgery facility in Ross

County, possibly using the Prairie Run North Property. (Id. ¶¶ 126–28, 135–36.) In

March 2021, the Doctors tendered their resignations, giving the required 120 days’

notice. (Id. ¶ 131.)

2 The other Plaintiffs are Great Seal Medical Group, LLC (an entity the

Doctors own or participate in) and CohenOrthopedic, LLC (Dr. Cohen’s individual

practice). (Compl. ¶¶ 1, 138.)

The Doctors contend that Adena had suspected they had a relationship with

OhioHealth, such that their resignations “spurred a fresh slate of anticompetitive

activity by Adena.” (Compl. ¶ 134.) Less than thirty days after the Doctors resigned,

Adena terminated them, which termination was effective immediately and resulted

in the Doctors losing the ability to communicate with their patients. (Compl.

¶¶ 143, 147–48.) The Doctors assert that Adena directed its employees to make it

appear as though the Doctors had “walked off the job, abandoning their patients in

contravention of their ethical and legal obligations.” (Id. ¶ 165.)

In addition, as referenced above, Adena outbid OhioHealth for the Prairie

Run North Property, derailing the joint venture discussions between OhioHealth

and the Doctors. (Compl. ¶¶ 135–36.) When Dr. Cohen was able to secure an

alternative parcel more than 18 months later, OhioHealth declined to contribute to

the purchase price, so CohenOrthopedic purchased the land; an orthopedic services

facility is scheduled to open at the end of this year. (Id. ¶¶ 138–41.)

The Complaint also alleges that Adena interfered with a potential consulting

relationship in connection with the orthopedic services facility venture, purchased

Google advertisements for itself to the detriment of Dr. Cohen and

CohenOrthopedic, and spread false information about Dr. Cohen and his colleagues.

(Compl. ¶¶ 177–88.)

Since the expiration of their non-compete restrictions, the Doctors have

provided services on a part-time basis in the Primary Adena Market Area, but Dr.

Cohen has performed all of his surgeries elsewhere. (Compl. ¶ 42.)

II. PROCEDURAL HISTORY

Immediately after terminating the Doctors, Adena filed suit against them in

state court. See Adena Health System, et al. v. Cohen, M.D., et al., Ross C.P. No.

21CI000091 (Apr. 12, 2021). Adena alleged that the Doctors breached certain

provisions of their employment agreements. (Compl. ¶ 152.) The Doctors answered

and asserted several counterclaims, including a federal antitrust claim. (Id. ¶ 152

n.3.) The parties conducted much discovery,3 but on November 1, 2022, the state

court dismissed the antitrust counterclaim without prejudice for lack of subject

matter jurisdiction. (Id. ¶¶ 152 n.3, 171–73.) Many of the other original claims and

counterclaims remain pending before the state court. See Order Postponing Trial,

Adena Health System, Ross C.P. No. 21CI000091 (July 31, 2023).

On July 5, 2023, Plaintiffs commenced the instant federal action against

Adena and Maximum. (Compl., generally.) They allege four claims under Section 2

of the Sherman Act: Actual and Attempted Monopolization of the Market for

Orthopedic Services (Counts I and II) and Actual and Attempted Monopolization of

the Market for Orthopedic Physicians (Counts III and IV). (Id. ¶¶ 199–243.)

Plaintiffs seek injunctive relief and treble damages. (Id., Request for Relief.)

Adena and Maximum now move to dismiss all claims against them.

3 In addition to the conduct described above, Plaintiffs argue that Adena

“perverted the discovery process in the state court action” by “intentionally

pursuing aggressive discovery against OhioHealth” and “using litigation and

abusive discovery to deter and delay competitors from entering the market.”

(Compl. ¶¶ 170–80, 194, 205, 219, 231, 240; Resp., PAGEID # 240 n.5.)

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim

with sufficient specificity to “give the defendant fair notice of what the claim is and

the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal alteration and quotations omitted). A complaint which falls short of

the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). The Supreme Court has explained:

To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. The

plausibility standard is not akin to a probability requirement, but it asks

for more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations

omitted). The complaint need not contain detailed factual allegations, but it must

include more than labels, conclusions, and formulaic recitations of the elements of a

cause of action. Id. (citing Twombly, 550 U.S. at 555.) “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. In reviewing a motion to dismiss, the Court “construe[s] the complaint

in the light most favorable to the plaintiff[.]” DirecTV, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007).4

4 Defendants move to dismiss under both Rule 12(b)(1) and Rule 12(b)(6).

Defendants initially argue for Rule 12(b)(6) dismissal in part because of Plaintiffs’

IV. ANALYSIS

A. Plaintiffs lack antitrust standing.

“[A]ntitrust standing and Article III standing are not one and the same,” and

courts “not only may—but [] must—reject claims under Rule 12(b)(6) when antitrust

standing is missing.” NicSand, Inc. v. 3M Co., 507 F.3d 442, 449 (6th Cir. 2007); see

also id. at 450 (“[W]hen a complaint by its terms fails to establish this requirement

we must dismiss it as a matter of law.”). Indeed, “federal courts have been

reasonably aggressive in weeding out meritless antitrust claims at the pleading

stage” due to lack of antitrust standing. Id. at 450 (internal quotations and citation

omitted). Thus, before determining whether Plaintiffs’ Complaint asserts the

elements of a Sherman Act claim, the Court must first examine the “threshold,

pleading-stage inquiry” of antitrust standing. Id.; Wagner v. Circle W. Mastiffs, 732

F. Supp. 2d 792, 800 (S.D. Ohio 2010) (Smith, J.).

The Supreme Court has articulated certain factors to be analyzed in

determining whether a plaintiff has established antitrust standing. See Associated

Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S.

“failure to plausibly plead antitrust standing and injury.” (Mot., PAGEID # 74.) A

few pages later, however, Defendants seek dismissal pursuant to Rule 12(b)(1)

“based upon a lack of standing.” (Id., PAGEID # 79.) Defendants were correct in the

first instance—courts generally consider questions of antitrust standing under Rule

12(b)(6), not Rule 12(b)(1). Because the only other basis Defendants identify in

support of Rule 12(b)(1) dismissal concerns the Sherman Act’s interstate commerce

requirement—which is an element properly evaluated as part of a merits analysis

that the Court need not address considering its conclusions detailed below on the

preliminary standing inquiry—the Court considers Defendants’ Motion under Rule

12(b)(6) only.

519, 537–45 (1983); Indeck Energy Servs., Inc. v. Consumers Energy Co., 250 F.3d

972, 976 (6th Cir. 2000). These factors include:

(1) the causal connection between the antitrust violation and harm to

the plaintiff and whether that harm was intended to be caused; (2) the

nature of the plaintiff’s alleged injury including the status of the

plaintiff as consumer or competitor in the relevant market; (3) the

directness or indirectness of the injury, and the related inquiry of

whether the damages are speculative; (4) the potential for duplicative

recovery or complex apportionment of damages; and (5) the existence of

more direct victims of the alleged antitrust violation.

Southaven Land Co., Inc. v. Malone & Hyde, Inc., 715 F.2d 1079, 1085 (6th Cir.

1983) (citing Associated General Contractors, 459 U.S. at 537–45).

Courts in this circuit have interpreted these five factors as creating a two-

part inquiry, such that to have antitrust standing, a plaintiff must (1) prove an

antitrust injury; and (2) demonstrate that they are the proper party to bring the

antitrust suit. See, e.g., White Mule Co. v. ATC Leasing Co. LLC, 540 F. Supp. 2d

869, 884 (N.D. Ohio 2008); Nilavar v. Mercy Health Sys. W. Ohio, 142 F. Supp. 2d

859, 869 (S.D. Ohio 2000) (Rice, J.) (citations omitted); Leak v. Grant Med. Ctr., 893

F. Supp. 757, 762 (S.D. Ohio 1995) (Smith, J.), aff’d, 103 F.3d 129 (6th Cir. 1996);

Re/Max Int’l v. Realty One, 900 F. Supp. 132, 145 (N.D. Ohio 1995) (internal

quotations and citation omitted) (“Where the parties challenge standing at the

pleading stage, the court must examine the allegations contained in the complaint

to determine first whether the plaintiff has presented a proper claim for antitrust

injury before asking whether the plaintiff is the proper party to bring suit.”). Here,

Plaintiffs have not satisfied either of these requirements.

1. Antitrust Injury

A showing of antitrust injury is “necessary” to establish antitrust standing.

Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 110 n.5 (1986); see also Blue

Shield of Virginia v. McCready, 457 U.S. 465, 477 (1982) (“Congress did not intend

to allow every person tangentially affected by an antitrust violation to maintain an

action to recover threefold damages for the injury to his business or property.”). An

antitrust plaintiff “must show more than merely an ‘injury causally linked’ to a

competitive practice”—rather, a plaintiff must “prove antitrust injury, which is to

say injury of the type the antitrust laws were intended to prevent and that flows

from that which makes defendants’ acts unlawful.” NicSand, 507 F.3d at 450

(quoting Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 489 (1977)

(emphasis in original)); see also Atl. Richfield Co. v. USA Petroleum Co., 495 U.S.

328, 334 (1990) (internal citations omitted) (noting that an injury “will not qualify

as antitrust injury unless it is attributable to an anti-competitive aspect of the

practice under scrutiny”).

Antitrust laws “were enacted for ‘the protection of competition not

competitors.’” Brunswick Corp., 429 U.S. at 488 (quoting Brown Shoe Co. v. United

States, 370 U.S. 294, 320 (1962) (emphasis in original)). A plaintiff alleging

antitrust injury “must allege injury to a relevant market, not just injury to the

plaintiff.” Wagner, 732 F. Supp. 2d at 801 (citing Bassett v. Nat’l Collegiate Athletic

Ass’n, 528 F.3d 426, 434 (6th Cir. 2008)); see also Spectrum Sports, Inc. v.

McQuillan, 506 U.S. 447, 458 (1993) (observing that purpose of Sherman Act “is not

to protect businesses from the working of the market; it is to protect the public from

the failure of the market.”). To sufficiently allege harm to the relevant market, “a

plaintiff must put forth factual allegations plausibly suggesting that there has been

an adverse effect on prices, output, or quality of goods in the relevant market as a

result of the challenged actions.” Guinn v. Mount Carmel Health, No. 2:09-cv-226,

2012 WL 628519, at *4 (S.D. Ohio Feb. 27, 2012) (Sargus, J.) (citations omitted).

Otherwise, “routine disputes between business competitors would be elevated to the

status of an antitrust action, thereby trivializing the Act[.]” Indeck, 250 F.3d at 976.

A “naked assertion” of antitrust injury is insufficient. NicSand, 507 F.3d at

451 (quoting Twombly, 550 U.S. at 557). An antitrust plaintiff must put forth

factual “allegations plausibly suggesting (not merely consistent with)” antitrust

injury. Twombly, 550 U.S. at 557; see also Gentile v. Fifth Ave. Otolaryngology, Inc.,

No. 4:05-cv-2936, 2006 WL 2505915, at *3 (N.D. Ohio Aug. 28, 2006) (internal

quotations and citation omitted) (“[T]he price of entry, even to discovery, [in an

antitrust action] is for the plaintiff to allege a factual predicate concrete enough to

warrant further proceedings, which may be costly and burdensome.”).

In this case, Plaintiffs argue that they have adequately pleaded antitrust

injury. (Resp., PAGEID # 236–37.) Upon review, the Complaint alleges that Adena’s

“anticompetitive conduct” directly harmed Plaintiffs’ reputations and relationships

with patients, future employers, and other entities; denied them the opportunity to

“service their historic markets for the year they were subject to the noncompete”;

caused them to lose potential earnings from working in the area and potential

returns from the orthopedic services facility; and “hamper[ed] their ability to

compete with Adena for many years into the future.” (Compl. ¶¶ 180, 190–97.)

These actual injuries may confer Article III standing, but for Plaintiffs to prevail on

their antitrust claims, the Court must ascertain whether Adena’s alleged conduct

caused injury “of the type the antitrust laws were intended to prevent”—i.e.,

reduced competition in the relevant market. Brunswick Corp., 429 U.S. at 489.

To this point, the Complaint more broadly asserts that Adena “delayed

Plaintiffs’ reentry into the market and reduced the supply and accessibility of high-

quality orthopedic services to patients in Southern Ohio.” (Compl. ¶ 193.) Plaintiffs

claim that “[p]atients in turn have been harmed by having fewer and less qualified

service options during the period the Doctors were prohibited from competing,” and

“[p]atients also have suffered since the noncompete period expired by the Doctors

not having access to surgical space in Ross County, resulting in them getting lower

quality medical care.” (Id. ¶ 195.) Plaintiffs also consider the 18-month delay of the

construction of the orthopedic services facility to be a “consequence[] to patient

care.” (Resp., PAGEID # 236 (citing Compl. ¶¶ 135–41).) By engaging in this

conduct, Plaintiffs conclude, Adena has stifled competition in an “extremely

underserved” area, leading to “limit[ed] choice, access, and quality of care” for

patients. (Id.; Compl. ¶¶ 192–93, 195.)

At bottom, the Complaint indicates that Adena disrupted the “choice, access,

and quality of care” in the Ross County market and surrounding areas primarily

because patients could not utilize the Doctors’ services for a certain time following

their departure from Adena. (Compl. ¶¶ 192–95.) Although these contentions are

consistent with antitrust injury, the Complaint’s factual allegations do not

adequately support them to avoid dismissal.

Looking first to the harm to the “supply and accessibility” of care, the

Complaint fails to allege sufficient facts as to the reduction of competition in the

market beyond explaining that patients no longer had the option of seeing the

Doctors in the Adena Market Area during the year-long non-compete period.

(Compl. ¶ 193); see also Guinn, 2012 WL 628519, at *6 (“It is the impact upon

competitive conditions in a definable market which distinguishes the antitrust

violation from the ordinary business tort.”). But Plaintiffs acknowledge that there

are four Adena and four non-Adena medical centers from which patients in the

Adena Market Area could choose. (Id. ¶ 25.) For this reason, Adena’s removal of the

Doctors as competitors did not eradicate competition between Adena and other

doctors in the area nor did it prevent patients from choosing from non-Adena

doctors during the one-year restriction period—Plaintiffs admit that several of the

non-Adena facilities employ orthopedic physicians (even if only part-time) and offer

operating rooms. (Id. ¶ 42); see Guinn, 2012 WL 628519, at *6. Generally, “the

elimination of a single competitor, standing alone, does not prove anticompetitive

effect.” Guinn, 2012 WL 628519, at *6 (citing cases); Gentile, 2006 WL 2505915, at

*6 (internal quotations and citation omitted) (“In absence of a showing that the

market as a whole has been affected, the mere fact that one disappointed competitor

must practice elsewhere does not constitute an antitrust injury.”).

What’s more, the Doctors resumed practicing in the Primary Adena Market

Area following the expiration of their non-compete restrictions, and the orthopedic

services facility is set to open later this year. (Compl. ¶¶ 42, 138–41, 228.) Plaintiffs

allege that the Doctors (and thus their patients) do not have access to surgical space

in Ross County since they have returned (id. ¶ 195), but they fail to explain how

this lack of surgical space is connected to the non-compete restrictions or Adena’s

other actions. The Complaint is silent as to the extent to which the Doctors were

practicing elsewhere during their non-compete period, whether and to what extent

patients will utilize the orthopedic services facility, and, most pertinently, the

extent to which patients were in fact affected before and after the Doctors’ return to

the Primary Adena Market Area.

Plaintiffs’ arguments surrounding the harm to the quality of patient care fare

no better. Initially problematic, there is a dearth of allegations that patients

suffered any ill effects in the quality of their care by no longer having the Doctors as

their physicians. The Complaint notes the Doctors’ qualifications and asserts that

they provided “high-quality” care. (Compl. ¶¶ 111–21.) But there is little

comparison between the Doctors and other physicians in terms of care quality.

Plaintiffs emphasize that the only other non-Adena orthopedic doctors only practice

part-time in the Adena Market Area. (Id. ¶ 42.) This is a contention related to

quantity, not quality, and it says nothing about the qualifications of these other

non-Adena physicians. Simply highlighting the Doctors’ “high-quality” care without

more is the type of “naked allegation” that will not suffice to show antitrust injury.

See, e.g., Guinn, 2012 WL 628519, at *6–7.

Plaintiffs provide other reasons why they have properly alleged antitrust

injury, but none are persuasive. First, Plaintiffs argue that “[a]cts to tie up real

estate and prevent a competitor from obtaining access to real estate can constitute

an antitrust injury.” (Resp., PAGEID # 240.) But even assuming so, Plaintiffs have

not sufficiently alleged that Adena’s protective real estate purchases harmed the

market as opposed to the Doctors individually.

Plaintiffs next point to this Court’s decisions in Nilavar and the Northern

District of Ohio’s decision in Defiance Hospital, Inc. v. Fauster-Cameron, Inc., 344 F.

Supp. 2d 1097 (N.D. Ohio 2004), to support their position that “a hospital’s use of

contracts to try and exclude doctors from competing in the relevant marketplace can

confer antitrust standing.” (Resp., PAGEID # 240.) These cases are distinguishable.

In Nilavar, a radiologist sued a hospital group and a radiology group after the

groups entered an exclusive contract for the provision of radiological services to

which the radiologist was not a party. Nilavar, 142 F. Supp. 2d at 865. Like

Plaintiffs here, the radiologist alleged that his ability to compete was restrained,

resulting in higher prices, lower quality services, and less choice for consumers and

physicians. Id. at 874. However, unlike the Complaint here, the radiologist’s

complaint included factual details supporting these contentions and the actual

effect on patient care. See Verified Compl., Nilavar, 1999 WL 34678618, at

¶¶ 64(a)–(h) (S.D. Ohio) (asserting that quality harmed because “quality assurance

and pooling of knowledge [was] drastically reduced” and that “[a] significant

number of consumers … now are forced to purchase physician diagnostic radiology

services … which they either do not want or would prefer to purchase from other

physicians on different terms”). Further, the exclusive agreements in Nilavar, as

well as the agreements in Defiance Hospital, differ from the employment agreement

containing non-compete restrictions at issue here.

Finally, Plaintiffs urge the Court to find that “defamatory statements

intended to harm a competitor [support] the inference that anticompetitive conduct

occurred for purposes of determining if antitrust standing exists.” (Resp., PAGEID

# 241.) But the Sherman Act “does not purport to afford remedies for all torts

committed by or against persons engaged in interstate commerce.” Hunt v.

Crumboch, 325 U.S. 821, 826 (1945). “Mere allegations of business disparagement

are not the type of injuries to competition that the antitrust laws were designed to

prevent.” Worldwide Basketball & Sports Tours, Inc. v. Nat’l Collegiate Athletic

Ass’n, No. 2:00-CV-1439, 2002 WL 32137511, at *17 (S.D. Ohio July 19, 2002)

(Sargus, J.) (quoting Re/Max International, 900 F. Supp. at 159).

2. Proper Party

If a plaintiff establishes an antitrust injury, a court must then “determine

whether any of the other factors, largely relating to the directness and

identifiability of the plaintiff’s injury, prevent the plaintiff from being an efficient

enforcer of the antitrust laws.” White Mule Co., 540 F. Supp. 2d at 884. In this case,

the conclusion that Plaintiffs have not suffered an antitrust injury is dispositive,

such that the Court need not address these factors or determine whether Plaintiffs

would be efficient enforcers of the antitrust laws. However, the Court observes that,

even assuming Adena’s conduct did harm patients, there are “at least two more

easily imagined efficient enforcers ... patients and the government.” Leak, 893 F.

Supp. at 764 (internal quotations and citations omitted); see also Nilavar, 142 F.

Supp. 2d at 880 (declining to dismiss plaintiff’s antitrust claims on efficient enforcer

grounds at the motion to dismiss stage but noting the “apparent … other possible

efficient enforcers of the alleged antitrust injuries,” including patients and the

government).

V. CONCLUSION

Plaintiffs have failed to allege antitrust standing. The Court finds that no

amendment to the Complaint could cure this failure because the insufficiency lies

not in the specific claims but in the nature of the alleged harm. Defendants’ Motion

to Dismiss is GRANTED.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE