|
|
|
|
Second Circuit Court Dismisses All Claims Against ABEM and Other Defendants in Daniel v. ABEM Case
The Second Circuit Court of Appeals on October 7, 2005, upheld the previous judgment of the Western District Court of New York and dismissed all claims against ABEM and other defendants in the Daniel v. ABEM case. The Court ruled that the plaintiffs lack standing to bring antitrust claims against ABEM and other defendants, including CORD, and that the District Court lacked venue over any such claims against ABEM.
Background
On June 20, 2003, U.S. District Judge Richard Arcara issued a decision that adopted the January 3, 2003, recommendation of U.S. Magistrate Judge Leslie Foschio, and granted the defendants' motion to dismiss the case. The court entered a final judgment in favor of ABEM.
Judge Arcara found that the plaintiffs lack standing to bring antitrust claims for two reasons: (1) because "a plaintiff-doctor's inability to charge higher fees because he or she has been denied board certification does not constitute a cognizable form of injury under the antitrust laws;" and (2) because these physicians are not proper plaintiffs or efficient enforcers of the antitrust laws insofar as their "objective is to advance their own economic interests" and to "keep prices higher." In addition, the court denied plaintiffs' request to amend their complaint in a manner designed to avoid dismissal, on the grounds that an amendment would be futile. Judge Arcara wrote that "this case is already 13 years old. The amendment proposed by the plaintiffs would be inconsistent with the now developed record.
"Throughout the case, plaintiffs have claimed that they are entitled to the same super competitive prices earned by board-certified physicians. They now want to change their entire theory of the case to avoid dismissal. Even now, however, they are unable to offer an expert report that would support their theory, despite having had years to secure such a report." Accordingly, Judge Arcara ordered that the case be closed.
On July 21, 2003, plaintiffs filed a notice of appeal with the Second Circuit Court of Appeals.
On August 1, 2003, ABEM filed a notice of cross appeal, stating its intention to appeal the court's denial of several dispositive motions that would have resulted in earlier dismissals of the case on grounds other than lack of antitrust standing, including a motion to dismiss for lack of venue.
Plaintiffs' appeal brief was submitted in May 2004, and ABEM's brief was submitted in June 2004. Oral arguments for the appeal were heard on October 25, 2004, in the Second Circuit Court in Manhattan. The case was dismissed on October 7, 2005.
More information on Daniel v. ABEM is available at www.abem.org under the heading of "News, Notices, Exam Dates & Fees," "Announcements," "Litigation Update
Return to CORD Home Page
|