Todorov v. DCH Healthcare Authority

This is an appeal from a grant of summary judgment. Two questions are presented: first, whether a hospital and the radiologists on its medical staff, for the purpose of preventing competition for the provision of radiological services at the hospital, denied a neurologist the privilege to perform a procedure in the hospital's radiology department in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. Secs. 1-2 (1988); and, second, whether, in refusing to grant the neurologist this privilege, the hospital denied him due process of law. We find no antitrust violations or denial of due process, and accordingly affirm.

DCH Regional Medical Center (DCH) is a general hospital in Tuscaloosa, Alabama; it is the largest hospital in the area. Dr. Alexandre Todorov is a member of DCH's medical staff, having been granted privileges to practice neurology.1 Soon after DCH granted him these privileges, Dr. Todorov applied for the privilege to perform a procedure in the hospital's radiology department: the administration and interpretation of CT scans of the head.

A CT scan is a diagnostic procedure used to produce a series of cross-section images of internal body parts.2 The key component of a CT scan machine is a computer that is able to manipulate data received from a rotating x-ray beam, reproduce an image onto a video display, and print the image onto film. DCH maintains the equipment for administering CT scans in its radiology department.

The decision to have a CT scan performed is made primarily by the patient's treating physician. The treating physician refers his patient to the radiology department where a radiology technician, who is an employee of the hospital, administers the procedure under the direction and supervision of a radiologist. Before a patient receives a CT scan at DCH, the radiologist overseeing the administration of the scan must make several decisions concerning the procedure. These decisions are made after consultation with the referring physician3 and the patient, and a review of the patient's medical records.

The radiologist must decide how large the x-ray sections (or "slices") will be, whether the sections will be overlapped, how many sections to scan, and whether to use contrast. Contrast is a liquid that is injected into the area to be scanned; CT scans performed with contrast are more sensitive, creating more detailed images.4 In addition, the radiologist must decide how to position the patient for the CT scan; for CT scans of the head, the patient's head is angled in different manners to capture different parts of the brain.

The radiologists at DCH have developed several standardized approaches to administering CT scans known as "protocols"; these are directions that inform the radiology technicians how to position the patient, how many sections to scan, how large the sections should be, and whether to use contrast. The radiologists generally recommend one of their established protocols for a CT scan procedure instead of writing extensive instructions to the technician.

After the scan is administered, the radiologist examines the film produced to determine whether additional scans will be needed to capture more information.5 Once the radiologist is satisfied that the film is adequate for its diagnostic purpose, he interprets the film for the patient's treating physician.

The radiologist also makes a report for the hospital; DCH is required by the Alabama State Board of Health to maintain complete and accurate medical records for every patient at the hospital. Ala.Admin.Code r. 420-5-7.07(3) (1988) (Rules of Alabama State Board of Health).6 The radiologist's report describes the CT scan that was administered and includes the radiologist's interpretation of the CT scan film--the "official" interpretation.

The radiologist charges his patient one fee for his role in administering the CT scan and making the official interpretation; if the patient is insured, the radiologist usually collects his fee from the patient's insurance company. The radiologist's charge is separate from the hospital's charge.

As a practicing neurologist, Dr. Todorov frequently relies on CT scans of the head to diagnose his patients' ailments; he refers many of his patients to DCH for the procedure. After a patient's head has been scanned and the film has been produced and officially interpreted, Todorov usually examines the film himself. He has difficulty, however, collecting a fee from his patients' insurance companies for the examination; most insurance companies will pay but one fee for a CT scan interpretation and that fee goes to the radiologist who makes the official interpretation. Thus, in practice, Todorov bills his patients only for his neurological services. If he were privileged to administer and officially interpret CT scans in DCH's radiology department, though, he might be able to collect the fees that otherwise would go to the radiologists. To solve his problem, Dr. Todorov applied for such privileges at DCH. DCH, however, denied his application. This denial is the subject of the dispute in this case.

According to the bylaws of DCH's medical staff (as promulgated by the hospital's board of directors), when a physician seeks privileges, including additional privileges, at DCH, he fills out an application and submits it to the hospital's administrator. The administrator, in turn, refers the application to the credentials committee, which is composed of members of the hospital's medical staff. The credentials committee then asks the chairman of the hospital's department in which the applicant wishes to practice medicine for a recommendation. The credentials committee also contacts the applicant's references, if any, for their views on the applicant's suitability for the privileges in question.

After considering the opinions of these references and the department chairman, the credentials committee makes a recommendation and submits it to the hospital's administrator and to the executive committee of the medical staff. If both committees recommend that the requested privileges be granted, the administrator forwards their recommendations to the hospital's board of directors. If either committee recommends that the requested privileges be denied, the administrator notifies the applicant and the applicant can appeal to the Hearing Panel, which is composed of members of the medical staff, and request a hearing. At the hearing, the applicant may present the testimony of witnesses and exhibits. The Hearing Panel, after considering all of the evidence in the case, then recommends that the requested privileges be granted or denied and forwards its decision to the credentials committee for further consideration by that committee.

The credentials committee, in turn, reconsiders the application and issues a new recommendation, which it sends, as before, to the hospital's administrator and the medical staff's executive committee. If both committees recommend that privileges be granted, the administrator forwards their recommendations to the hospital's board of directors. If, once again, either committee recommends that privileges be denied, the administrator notifies the applicant and the applicant can appeal to the Appellate Review Panel, which is composed of "reputable persons" selected by the chairman of the hospital's board of directors. To support his appeal, the applicant may submit a written statement and, at the panel's discretion, present additional evidence on his suitability for the requested privileges. The panel then decides whether to recommend that such privileges be granted and forwards its decision to the board of directors. The board may "affirm, modify or reverse the recommendation of the [Appellate] Review Panel or, in its discretion, refer the matter for further review and recommendation."7

In this case, Dr. Todorov filed the proper application and the hospital administrator referred his application to the credentials committee, pursuant to the medical staff bylaws. This committee sought recommendations from the two physicians Dr. Todorov had named as references. Both are radiologists who practice at DCH: Dr. John G. Kahler, a member of the credentials committee and one of the appellees, and Dr. Ronald Phelps. In a letter accompanying his application, Dr. Todorov stated that these physicians would attest to his competence to read CT scans of the head. They did not, however, recommend Dr. Todorov for privileges; instead, they stated that they had not worked with him in interpreting CT scans and they questioned his ability to administer CT scans. The credentials committee also sought the advice of the chairman of DCH's radiology department, Dr. William A. Bright, also an appellee. Bright recommended that Dr. Todorov's application for additional privileges be denied. Given these responses--from Dr. Todorov's references and the department chairman--the credentials committee concluded, with Dr. Kahler abstaining, that Dr. Todorov had not adequately documented his competence to perform the procedures for which he had requested privileges, and it therefore recommended that his application be denied.

Dr. Todorov appealed this decision to the Hearing Panel. This panel found, after a hearing at which Dr. Todorov argued his case, that Dr. Todorov was competent to perform the procedures at issue. The panel then submitted its finding to the credentials committee; that committee concurred in the panel's finding and, in turn, forwarded its concurrence to the executive committee of the medical staff. Although the credentials committee concurred in the Hearing Panel's finding, it did not recommend that Dr. Todorov's application be granted; rather, the committee took no position on the issue.

The executive committee, after receiving the credentials committee report, held a brief hearing, heard from Dr. Todorov, and then forwarded its recommendation that Dr. Todorov's application be denied to the hospital's board of directors. The executive committee made this recommendation because it did not want to establish a precedent of granting radiology privileges to nonradiologists. The committee feared that if Dr. Todorov were granted the privilege of administering and officially interpreting CT scans of the head, other nonradiologists would seek, and would likely be granted, the same or other privileges in the radiology department, and the department's operations--especially the scheduling of radiological procedures--could become chaotic. This, in time, might cause the staff radiologists to leave the hospital. Additionally, the committee feared that a non-hospital-based physician, like Dr. Todorov, would have difficulty complying with the hospital's requirement that a report be filed in the hospital's medical records for the patient within twenty-four hours after a CT scan procedure is completed. Since the hospital needed to fulfill this requirement to comply with the Board of Health's regulations, see supra p. 1442 & note 6, this was an important concern.

After he received notice of the executive committee's decision, Dr. Todorov requested and received a review of this decision by the Appellate Review Panel. That panel convened a hearing on the matter and heard the arguments of both Dr. Todorov and his attorney. The panel then recommended to the hospital's board of directors that Dr. Todorov's application be denied. On July 9, 1985, the board, accepting the reasons given by the executive committee for its recommendation, denied Dr. Todorov's application for privileges.

Following the board's rejection of his application, Dr. Todorov brought this suit against DCH; three members of its medical staff, Drs. William A. Bright, John G. Kahler, and William A. Askew; and their professional partnership (consisting of twelve radiologists), The Radiology Clinic. (We refer to these physicians and their partnership, collectively, as the radiologists.) As noted, Dr. Bright is chairman of DCH's radiology department. Drs. Kahler and Askew hold privileges in the department; in addition, Dr. Kahler is a member of the credentials committee and Dr. Askew is a member of the executive committee of DCH's medical staff.

Dr. Todorov framed his complaint in five counts. Three of them are pertinent here.8 Count one claimed that the defendants had violated section 1 of the Sherman Act9 in two ways and sought treble damages and injunctive relief under sections 4 and 16 of the Clayton Act.10 First, Dr. Todorov alleged that the radiologists, for the purpose of lessening the competition for radiological services at DCH and thus enhancing their earning potential, conspired with one another to keep Dr. Todorov from obtaining privileges in the radiology department. These physicians could not achieve this objective, according to Dr. Todorov, unless DCH's board of directors went along with their plan; therefore, they enlisted the board's help. The board, with full knowledge of the physicians' plan, agreed to help and joined their conspiracy. Second, Dr. Todorov claimed that the defendants had violated section 1 by conspiring, for the purposes described above, to have DCH tie the services of the radiologists to its sale of CT scans. Dr. Todorov alleged that in order to obtain a CT scan at DCH, a patient had to hire a physician in DCH's radiology department to interpret the scan.

Count two claimed that the defendants had violated section 2 of the Sherman Act11 and sought the same relief as count one. In this count, Dr. Todorov alleged that the radiologists had monopolized the market for interpreting CT scans of the head and that, in an effort to maintain this monopoly, they had DCH's board of directors deny his application for privileges. According to Dr. Todorov, the board knew of the radiologists' plan at the time it was considering his application and denied the application so that the plan could succeed; the board, therefore, became a coconspirator of these physicians and violated section 2. Dr. Todorov also alleged that DCH's board denied his application for privileges to further DCH's monopoly in the market for the provision of CT scans of the head.

Count three, brought under 42 U.S.C. Sec. 1983 (1988),12 claimed that DCH, in processing Dr. Todorov's application, had denied Dr. Todorov substantive and procedural due process of law, in violation of the fourteenth amendment, in several respects. For example, the radiologists participated in the consideration of Dr. Todorov's application although they had a financial stake in the outcome of the application process; consequently, they were partial decisionmakers. In addition, the standards used to determine whether he should be granted privileges were vague or nonexistent; this rendered the board of directors' decision arbitrary and capricious. Finally, he alleged that the medical staff committees, the Hearing Panel, the Appellate Review Panel, and the board of directors failed to give him a fair hearing. To remedy this denial of due process, Dr. Todorov sought injunctive relief--in the form of an order directing DCH to grant him the requested privileges--and damages.

DCH, in its answer to Dr. Todorov's complaint, denied that it had conspired with the radiologists as alleged. DCH also claimed that it was immune from liability to Dr. Todorov under the state action doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), and its progeny. The radiologists, in their answer, also denied the existence of the alleged conspiracy.

Following extensive discovery, DCH and the radiologists each moved for summary judgment. The district court granted their motions. The court, applying the state action doctrine, held that DCH was immune from antitrust liability because it is a local governmental entity and, in processing and denying Dr. Todorov's application for privileges, was acting pursuant to state authority. The court held that the radiologists were immune from antitrust liability because the illegal conduct they were accused of constituted the lobbying of a local government, a first amendment activity protected by the Noerr -Pennington doctrine. See United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The court held, alternatively, that if these physicians were not engaged in lobbying, then they were acting as employees of DCH and, as such, enjoyed DCH's immunity. For these reasons, the court concluded, Dr. Todorov could not recover under counts one and two of his complaint. With respect to count three, the court held that Dr. Todorov had no protected liberty or property interest in his application for additional privileges; therefore, he had no claim under the due process clause of the fourteenth amendment. Alternatively, the court held that even if Dr. Todorov did have a protected liberty or property interest, DCH, in processing his application, did not deny him due process of law.

Dr. Todorov now appeals, contending that the district court misapplied the law--on all three counts--in granting summary judgment. Had the court properly applied the law, he contends, it would have concluded that genuine issues of material fact remain to be litigated and that summary judgment could not lie.

We disagree. We find that Dr. Todorov has suffered no antitrust injury as a result of the alleged violations of sections 1 and 2 of the Sherman Act and thus hold that Dr. Todorov has no standing under sections 4 and 16 of the Clayton Act to prosecute these claims. Alternatively, assuming that Dr. Todorov has standing to prosecute these antitrust claims, we hold that the district court properly granted the defendants summary judgment on both counts. First, with respect to Dr. Todorov's count one claim under section 1 of the Sherman Act, the record demonstrates no conspiracy involving DCH and the radiologists; rather, the denial of the privileges Dr. Todorov requested constituted a unilateral act on the part of DCH. Thus, there is no case under section 1 against any of the appellees. Second, with respect to Dr. Todorov's count two claim under section 2 of the Sherman Act, we hold that DCH is immune from section 2 liability under the state action doctrine;13 as for the radiologists, there is no proof that they caused Dr. Todorov any injury.14 Finally, as for Dr. Todorov's count three claim, we agree with the district court that he has no case under the due process clause of the fourteenth amendment.

We organize our discussion of Dr. Todorov's claims as follows. First, we address his standing to bring an action under sections 4 and 16 of the Clayton Act for the alleged violations of sections 1 and 2 of the Sherman Act. Second, assuming Dr. Todorov has standing to prosecute these antitrust claims, we address their merits. Finally, we turn to Dr. Todorov's claims under the due process clause of the fourteenth amendment.

Before conducting an examination of Dr. Todorov's claims under the antitrust laws, we briefly explain the economic operation of the market at issue. As stated earlier, a patient receives two separate charges after having a CT scan performed at DCH. First, the patient is charged by DCH for the provision of the CT scan; this charge represents a return on DCH's investment in the CT scan machine and the expenses it incurs for labor and materials used in producing the CT scan film. Second, the patient is charged by the radiologist who supervises the CT scan; this charge represents a fee for his services in administering the CT scan and interpreting the film.

DCH has an interest in attracting as many patients as it can for CT scans; the radiologists, however, may not share this general interest. The radiologists make up the entire radiology staffs at both DCH and West Alabama General Hospital, DCH's only competitor for CT scan service in the Tuscaloosa area. Because of this, the radiologists, while interested in attracting more referrals to themselves, may be indifferent as to which hospital the patients use for CT scan service; no matter which hospital the patients choose, the radiologists get a fee.

Patients usually come to DCH's radiology department for CT scans because their treating physicians send them there. These referred patients fall into two categories: inpatients and outpatients. Inpatients are patients who are admitted into the hospital for treatment; outpatients are patients who are treated in the hospital's dispensary or clinic instead of a room or ward. DCH's inpatients are "captive" consumers of its radiology department in that these patients, if they require radiological procedures as part of their treatment while in the hospital, use DCH's service within the hospital; neither they nor their treating physicians shop around the market. Thus, to attract more inpatients to its radiology department, DCH must work to make itself more attractive overall to consumers--for example, it might lower the room rate, improve the facilities, or attract more physicians to DCH so that they use DCH to care for their patients. Outpatients, on the other hand, are generally not captive consumers; they are captive only if their physicians insist on sending them to DCH for treatment and they always follow their physicians' advice. Assuming that these consumers are not captive, DCH will act to attract outpatients in ways different from those used to attract inpatients. To create more demand among outpatients for its services, DCH, in addition to improving the hospital generally, might lower the total price patients pay for CT scans. This would attract business to DCH at the expense of the more costly hospital, West Alabama General. Indeed, given the similarities between the radiology staffs and equipment of DCH and West Alabama General, price may be the best way for these hospitals to compete in the market for CT scans of the head.

DCH can lower the total price patients pay for CT scans by lowering the price it charges, the price the radiologists charge, or both. DCH, of course, would prefer that the price reduction came out of the radiologists' pockets and not out of its own coffers. As stated above, the radiologists make up the radiology staffs at both DCH and West Alabama General; thus, these physicians dominate the radiology market in the Tuscaloosa area. Accordingly, they may be charging patients a monopoly price, as Dr. Todorov alleges. If DCH fostered competition among its staff radiologists by giving other physicians, like Dr. Todorov, privileges in its radiology department, the price charged by the radiologists at DCH for CT scan services would decrease; the price would move to the competitive price. This, in turn, would lower the total cost to patients for CT scans and would give DCH an advantage over its competitor if its competitor was still saddled with a monopoly in its radiology department. Thus, DCH would benefit by fostering competition among the physicians in its radiology department; in fact, DCH would be able to increase the price it charges for its services as long as it kept the total cost to the patient below its competitor's total price.

Of course, this case arises because DCH denied Dr. Todorov's application for privileges. There is a dispute as to why Dr. Todorov was denied privileges and whether this action was illegal. With the above discussion in mind, we now analyze Dr. Todorov's claims.

The first question we must address is whether Dr. Todorov has standing to prosecute the antitrust claims in this case. The question of standing is one of law. Austin v. Blue Cross & Blue Shield, 903 F.2d 1385, 1387 (11th Cir.1990). In order to determine whether a plaintiff has standing to bring an antitrust action, a court must examine the allegations contained in the complaint. Id.; Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 547 (5th Cir.1980), cert. denied, 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 236 (1981).15 First, however, it is necessary to understand the standing requirement for antitrust cases brought under sections 4 and 16 of the Clayton Act. See supra note 10.

Standing in an antitrust case involves more than the "case or controversy" requirement that drives constitutional standing. See Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-53, 20 L.Ed.2d 947 (1968). Thus, antitrust standing is not simply a search for an injury in fact; it involves an analysis of prudential considerations aimed at preserving the effective enforcement of the antitrust laws. Associated Gen. Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 535 n. 31, 103 S.Ct. 897, 907 n. 31, 74 L.Ed.2d 723 (1983); Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1493 (11th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); County of Oakland v. City of Detroit, 866 F.2d 839, 852 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3235, 3236, 111 L.Ed.2d 747 (1990). Antitrust standing is best understood in a general sense as a search for the proper plaintiff to enforce the antitrust laws, see, e.g., Cargill, Inc. v. Monfort, Inc., 479 U.S. 104, 110 n. 5, 107 S.Ct. 484, 489 n. 5, 93 L.Ed.2d 427 (1986).

Section 4 of the Clayton Act, which authorizes suits for treble damages, broadly states that "any person who shall be injured ... by reason of anything forbidden in the antitrust laws may sue." 15 U.S.C. Sec. 15(a). The federal courts, however, have not interpreted section 4 as expansively as its literal language suggests. In Associated General, the leading case on antitrust standing, the Supreme Court discussed the limitations on antitrust recovery that were recognized by Congress when it passed section 7 of the Sherman Act, the predecessor section whose language section 4 incorporated and adopted. These limitations included common-law tort concepts such as proximate cause, directness of injury, and certainty of damages. Associated General, 459 U.S. at 529-35, 103 S.Ct. at 904-07. This historical analysis led the Court to conclude that "Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation." Id. at 534, 103 S.Ct. at 906 (quoting Hawaii v. Standard Oil Co., 405 U.S. 251, 262 n. 14, 92 S.Ct. 885, 891-92 n. 14, 31 L.Ed.2d 184 (1972)); see also Blue Shield v. McCready, 457 U.S. 465, 476-77, 102 S.Ct. 2540, 2547, 73 L.Ed.2d 149 (1982). Thus, the Court fashioned an approach for analyzing antitrust standing that requires us to "evaluate the plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship between them." Associated General, 459 U.S. at 535, 103 S.Ct. at 907. The reason for the standing limitation in antitrust cases brought under section 4 is to avoid overdeterrence resulting from the use of the somewhat draconian treble-damage award; by restricting the availability of private antitrust actions to certain parties, we ensure that suits inapposite to the goals of the antitrust laws are not litigated and that persons operating in the market do not restrict procompetitive behavior because of a fear of antitrust liability.

The Supreme Court, along with the lower federal courts, has long struggled to develop a precise test to determine whether a particular plaintiff is the proper party to bring an antitrust suit under section 4 of the Clayton Act;16 in truth, "[t]he issue of antitrust standing has become somewhat confused." Local Beauty Supply, Inc. v. Lamaur Inc., 787 F.2d 1197, 1201 (7th Cir.1986). A two-pronged approach has slowly developed to examine whether a plaintiff is a proper party and thus should be afforded antitrust standing. First, a court should determine whether the plaintiff suffered "antitrust injury"; second, the court should determine whether the plaintiff is an efficient enforcer of the antitrust laws, which requires some analysis of the directness or remoteness of the plaintiff's injury. This two-pronged approach was endorsed by the Supreme Court when it stated that "[a] showing of antitrust injury is necessary, but not always sufficient, to establish standing under Sec. 4, because a party may have suffered antitrust injury but may not be a proper plaintiff under Sec. 4 for other reasons." Cargill, 479 U.S. at 110 n. 5, 107 S.Ct. at 489 n. 5. In fact, we have implicitly recognized this approach for some time. See Austin, 903 F.2d at 1389 ("antitrust injury [i]s the touchstone for antitrust standing"); Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 710 (11th Cir.1984) (per curiam); Jeffrey v. Southwestern Bell, 518 F.2d 1129, 1131 (5th Cir.1975); see also Bell v. Dow Chem. Co., 847 F.2d 1179, 1182 (5th Cir.1988) ("[p]roving antitrust injury is a necessary requirement for proving standing"); Alberta Gas Chems., Ltd. v. E.I. Du Pont de Nemours & Co., 826 F.2d 1235, 1240 (3rd Cir.1987); In re Indus. Gas Antitrust Litig., 681 F.2d 514, 516 (7th Cir.1982) ("From the class of injured persons suffering 'antitrust injury' only those parties who can most efficiently vindicate the purposes of antitrust laws have antitrust standing to maintain a private action under Sec. 4."), cert. denied, 460 U.S. 1016, 103 S.Ct. 1261, 75 L.Ed.2d 487 (1983); see also Page, The Scope of Liability for Antitrust Violations, 37 Stan.L.Rev. 1445, 1457 (1985) (arguing that antitrust standing should be a method for courts to identify, from the class of plaintiffs suffering "antitrust injury," the most efficient plaintiff). We thus explain these two limitations generally, and then turn to our analysis of the present case.

In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977), the Supreme Court held that in order to maintain an antitrust action for treble damages a plaintiff must be able to show more than an injury linked to a violation of the antitrust laws; he must prove an "antitrust injury." Antitrust injury is defined as

injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be "the type of loss that the claimed violations ... would be likely to cause."

Id. at 489, 97 S.Ct. at 697 (quoting Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 125, 89 S.Ct. 1562, 1577, 23 L.Ed.2d 129 (1969)). This limitation is essential because it "requires the private antitrust plaintiff to show that his own injury coincides with the public detriment tending to result from the alleged violation ... increas[ing] the likelihood that public and private enforcement of the antitrust laws will further the same goal of increased competition." Austin, 903 F.2d at 1389-90 (quoting P. Areeda & H. Hovenkamp, Antitrust Law p 335.1, at 261 (Supp.1987)). This policy rationale is gleaned from the facts and opinion in Brunswick itself.

In Brunswick, the plaintiffs brought an action under section 7 of the Clayton Act17 challenging the mergers of several of their competitors and seeking treble damages under section 4 of the Act.18 The plaintiffs owned several bowling alleys and the defendant, Brunswick Corporation, was a large national manufacturer of bowling equipment and owner of several bowling alleys. Over a ten-year period, Brunswick had taken over many defaulting bowling alleys across the United States; these alleys would have gone out of business were it not for Brunswick's rescue. The plaintiffs claimed that their market share would have increased if the alleys with which they competed had been permitted to go out of business and sought lost profits in their challenge to these mergers. Although it assumed a violation of the antitrust laws