United States v. 2020-03-20 | 19-35181 | JEREMY CONKLIN V. UNIV. OF WASH. MEDICINE | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEREMY CONKLIN, D.O., an individual,

Plaintiff-Appellant,

v.

UNIVERSITY OF WASHINGTON
MEDICINE, a Washington public health
system; UW MEDICINE NW, a Washington
public benefit corporation; UNIVERSITY
OF WASHINGTON MEDICAL CENTER,
a Washington public hospital;
UNIVERSITY OF WASHINGTON
SCHOOL OF MEDICINE, a Washington
public educational institution; SEATTLE
CHILDREN'S HOSPITAL, a Washington
non-profit corporation; CHILDREN'S
UNIVERSITY MEDICAL GROUP, a
Washington pediatric group,

Defendants-Appellees,

and

PAUL RAMSEY, M.D.; LESTER
PERMUT, M.D.; MARY BRIDGE
CHILDREN'S FOUNDATION, a
Washington public benefit corporation;
AMERICAN BOARD OF THORACIC
SURGERY, INC.; THORACIC SURGERY

No. 19-35181

D.C. No. 2:18-cv-00090-RSL

MEMORANDUM
*

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED

MAR 20 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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DIRECTORS ASSOCIATION, INC.;
ACCREDITATION COUNCIL FOR
GRADUATE MEDICAL EDUCATION,

Defendants.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding

Argued and Submitted March 4, 2020
Seattle, Washington

Before: IKUTA, R. NELSON, and HUNSAKER, Circuit Judges.

Appellant Dr. Jeremy Conklin alleges that Appellee-Defendants conspired to
exclude him from a pediatric cardiothoracic surgery fellowship because he is an
osteopathic, rather than allopathic, physician. Conklin brought federal and state
antitrust law claims, along with a claim under Revised Code of Washington
(“RCW”) § 70.41.235, which bars hospitals from discriminating against
osteopathic physicians. The district court dismissed Conklin’s complaint, holding
that he failed to allege antitrust injury and did not have a cause of action under
RCW § 70.41.235. We review dismissal of Conklin’s complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) de novo. Kendall v. Visa U.S.A., Inc.,
518 F.3d 1042, 1046 (9th Cir. 2008). We affirm.
We begin with Conklin’s federal and state antitrust claims. We express no
opinion whether the district court correctly dismissed for failure to adequately

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plead antitrust injury. But we affirm the dismissal on the alternative ground that
Conklin has not plausibly alleged an overlapping element of his antitrust claims:
harm to competition. See Syed v. M-I, LLC, 853 F.3d 492, 506 (9th Cir. 2017)
(allowing a court to affirm a motion to dismiss “on any basis fairly supported by
the record”). Conklin concedes in his complaint that at least one osteopathic
physician has obtained certification and may perform pediatric cardiothoracic
surgery. Additionally, Conklin acknowledges in his complaint that someone else
was chosen to fill the pediatric cardiothoracic surgery fellowship that he lost out
on. Thus, there has been no increase in price or decrease in the quality of care for
patients seeking pediatric cardiothoracic surgery. Moreover, even if the agreement
to grant these fellowships only to persons who satisfy the ACGME certification
requirement discriminates against doctors of osteopathy and thus lessens consumer
choice between such osteopathic doctors and medical doctors in the market for
pediatric thoracic surgery, the complaint does not allege any resulting difference in
thoracic surgery services, quality, or availability, so this reduced choice does not
give rise to an injury to competition. See Brantley v. NBC Universal, Inc., 675
F.3d 1192, 1202 (9th Cir. 2012) (“[A]llegations that an agreement has the effect of
reducing consumers’ choices or increasing prices to consumers does not
sufficiently allege an injury to competition.”). Accordingly, Conklin has failed to
plausibly allege harm to competition. See Rutman Wine Co. v. E. & J. Gallo

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Winery, 829 F.2d 729, 736 (9th Cir. 1987) (affirming dismissal of Sherman Act
Section 1 claim for failure to plead harm to competition); cf. Bhan v. NME Hosps.,
Inc., 929 F.2d 1404, 1414 (9th Cir. 1991) (affirming grant of summary judgment
where a hospital’s policy, which favored physician over non-physician anesthetists,
did not harm competition).
We also affirm the dismissal of Conklin’s RCW § 70.41.235 claim.
Notwithstanding Conklin’s correspondence with the Washington Department of
Health, enforcement of the statute is expressly vested in the Washington
Department of Health. RCW § 70.41.010. We will not read a cause of action into
the statute where the Washington legislature did not provide one. State ex rel.
Evergreen Freedom Found. v. Wash. Educ. Ass’n, 999 P.2d 602, 611 (Wash. 2000)
(en banc) (“When words in a statute are plain and unambiguous, this Court is
required to assume the Legislature meant what it said and apply the statute as
written.”).
AFFIRMED.