In March, we wrote about Justice Antonin Scalia’s three majority opinions in substantive antitrust cases. Notably, Scalia also authored three dissenting opinions in substantive antitrust cases, in rapid-fire succession in 1991, ’92 and ’93. In the majority opinions, Scalia seized upon alternative, innocuous explanations for alleged anticompetitive conduct, even when an anticompetitive motive was equally if not more plausible, and in two cases reversed jury verdicts for plaintiffs. In the dissents, Scalia’s skepticism regarding the antitrust laws is even more evident: Scalia does not attempt to explain away what some (including two juries) characterized as anticompetitive conduct, as in the majority opinions; rather, he recognized and accepted plaintiffs’ characterizations of defendants’ conduct (as required by the posture of the cases), but concluded that even so, plaintiffs could not find a remedy in the antitrust laws. Furthermore, in each dissent, he also would have had the court reverse the U.S. Court of Appeals for the Ninth Circuit and affirm the particular California federal district court in the case, and grant judgment for defendants on the pleadings or on summary judgment.
Summit Health v. Pinhas, 500 U.S. 322 (1991), involved allegations of a conspiracy in violation of Sherman Antitrust Act Section 1, stemming from a hospital’s peer review and termination of staff privileges of Dr. Simon Pinhas at a Los Angeles hospital. “Prior to 1986, most eye surgeries in Los Angeles were performed by a primary surgeon with the assistance of a second surgeon,” increasing the cost of the surgery, the opinion said. Medicare announced that it would no longer reimburse the services of assistant surgeons, and thereafter, many hospitals abandoned the assistant surgeon requirement.
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