Antitrust: Emergency Medicine Physicians Lack Standing to Bring Antitrust Action Against Physician-Certification Organization—Daniel v. American Board of Emergency Medicine

Abstract

Antitrust: Emergency Medicine Physicians Lack Standing to Bring Antitrust Action Against Physician-Certification Organization-Daniel v. American Board of Emergency Medicine, 2005 WL 24705430 (2d Cir. Oct. 7, 2005). Expert Testimony: Expert Witnesses Must be Prepared to Produce Positive Evidence to Establish General Causation in Drug Products Liability Actions-Ruggiero v. Warner-Lambert Co., 424 F.3d 249 (2d Cir. 2005). Antitrust: Emergency Medicine Physicians Lack Standing to Bring Antitrust Action Against Physician-Certification Organization-Daniel v. American Board of Emergency Medicine1-Emergency medicine doctors brought suit against a medical specialty certification board for emergency medicine and hospitals operating residency programs in emergency medicine, alleging that the defendants conspired to unreasonably restrict competition in the market for emergency medicine physicians.2 After establishing that the Clayton Act's3 worldwide service of process provision only applies for cases that satisfy the venue provision, which was not satisfied here, the U.S. Court of Appeals for the Second Circuit held that the plaintiffs did not have antitrust standing.4 In so ruling, the Court of Appeals affirmed the District Court's decision to dismiss the plaintiffs' claims.5 The defendants in this case were the American Board of Emergency Medicine (ABEM), the Council of Emergency Medicine Residency Directors (CORD), and various hospitals.6 ABEM is a Michigan not-for-profit corporation that certifies physicians in emergency medicine.7 All of its daily activities take place in East Lansing, Michigan, where its offices, records and staff are located.8 ABEM is a member of the American Board of Medical Specialties, and is one of twenty-four medical certification boards.9 ABEM establishes educational criteria for emergency medicine and certifies physicians who pass their examination.10 An ABEM certification is not required to practice emergency medicine in any state.11 In 1976, when ABEM first sought to become a specialty board, only thirty emergency medicine residency programs existed in the U.S.12 In order to increase recognition of the specialty, ABEM proposed two eligibility tracks for applicants seeking to take the certification exam: (1) the practice track, requiring 7,000 hours and 60 months of practicing or teaching emergency medicine; and (2) the residency track, requiring completion of an approved residency training program.13 ABEM specifically limited the practice track as an eligibility alternative for the first eight years, from 1980-1988, because it expected additional residency training programs to develop over time, thus making the residency track a practical requirement.14 CORD, another Michigan not-for-profit corporation, is a national association that facilitates communication among the directors of emergency residency training programs.15 The defendant hospitals originally included twenty-eight hospitals that hire ABEM-certified doctors and operate residency training programs, but only nine remained in this action.16 None of these defendant hospitals are incorporated in New York or maintain their principal place of business in New York.17 Dr. Gregory Daniel and 175 other named plaintiffs, along with approximately 14,000 members of the proposed plaintiff class were physicians who currently practice or who have practiced emergency medicine and who would be eligible to take the ABEM exam if the practice track still existed.18 Plaintiffs alleged that by closing the practice track and placing a premium on ABEM certification, ABEM, CORD, numerous hospitals, and various individuals associated with these organizations unlawfully restrained trade and monopolized the market for ABEM-certified and ABEM-eligible physicians.19 Specifically, plaintiffs argued that the defendants conspired to limit the pool of eligible applicants, thus creating an artificial shortage of ABEM-certified and ABEM-eligible physicians, with the end goal of demanding super-competitive pay. …