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After the first trial, defendants JCAH, ACP, ACS and AAOS appealed the denial of their motions for directed verdict. The Court of Appeals affirmed the denial of those motions. The Court concluded that the evidence was sufficient to permit, but not require the finder of fact to conclude that each defendant knew that concerted action in a scheme was contemplated and invited and that each acquiesced and participated in that scheme. "Such a finding would hove provided sufficient footing for liability in this civil antitrust action. See Theater Enterprises, Inc. v. Paramount Film Distributing Corp , 346 U.S. 537, 540 (1954); Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226-27 (1939)." Wilk, 719 F.2d at 233. [The appeal of the American Academy of Orthopaedic Surgeons from the denial of its post-trial motion was decided in a separate order. The Court issued a similar finding against the Academy.]
The defendants argue that Monsanto v. Spray-Rite Service Corp , 465 U.S. 752 (1984), and Matsushita Electric Industrial Co. v. Zenith Radio Corp. 106 S. Ct. 1348 (1986), have clarified and limited the "conscious parallelism" doctrine of the cases relied upon in Wilk. In Monsanto the Supreme Court held that in order for the plaintiffs' case to survive a motion for summary judgment or for directed verdict, there must be evidence that tends to (1) "exclude the possibility" of independent action by the alleged conspirators, and (2) prove that the alleged conspirators had "a conscious commitment to a common scheme designed to achieve an unlawful objective." Monsanto, 465 U.S. at 764, 768. Those standards were reaffirmed in Matsushita, where the Court noted:
We do not mean to imply that, if petitioners had had a plausible reason to conspire, ambiguous conduct could suffice to create a triable issue of conspiracy. Our decision in Monsanto Co. v. Spray-Rite Service Corp ... establishes that conduct that is as consistent with permissible competition as with illegal conspiracy does not, without more, support even an inference of conspiracy. (106 S.Ct. at 1632 n.2 1):
The standards of Monsanto and Matsushita must be met in this case. Also, under general conspiracy low, a particular defendant's membership in the conspiracy must be proved by its own acts and declarations and not the acts or declarations of the alleged co-conspirators. United States vs. Jefferson 714 F.2d 689, 696 (7th Cir. 1983); United States v. Santiago 582 F.2d 1128 (7th Cir. 1978). Accordingly, the evidence relating to each remaining defendant will be analyzed to determine: first, if that defendant's own Conduct shows membership in the conspiracy, secondly, whether the defendant has established the patient core defense and then, if pertinent, whether the plaintiffs are entitled to injunctive relief against the defendant.
One factual issue relates to all of the other defendants. The plaintiffs note that two years after the Committee on Quackery was formed, the Committee sent the AMA's 1966 chiropractic policy to 56 groups, including some specialty medical societies, to seek their cooperation in reminding their members of the ethical standard. There was no evidence as to the identity of these groups. Plaintiffs argue that a reasonable assumption is that the co-defendants received this communication. There was no direct evidence that any of the co-defendants received this communication and I shall not infer receipt by any defendant.
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