St. Francis Medical Center v. C.R. Bard, Inc. (657 F. Supp. 2d 1069, 2009)

MEMORANDUM AND ORDER

THOMAS C. MUMMERT, III, United States Magistrate Judge.

This antitrust action is before tbe Court on the motion for summary judgment filed by defendant C.R. Bard, Inc. (“Bard”), and on the motion for partial summary judgment filed by plaintiff and class representative, St. Francis Medical Center (“St. Francis”). [Docs. 266, 269] Also pending is a motion by Bard to strike the reports and exclude the testimony of Drs. Robert Litan and Hal Singer. [Doc. 264]

Background

Bard is a manufacturer of urological products, including urological catheters, and is the leading manufacturer of Foley catheters and related products. (B. S.F. ¶ 1. B. Ex.-2,1.) “Urological catheters are used to drain urine from the body.” (B. S.F. ¶ 1.) One of Bard’s various divisions, the Bard Medical Division (“BMD”), markets and sells those catheters, including Foley catheters, infection control Foley catheters, and intermittent, or urethral, catheters. (Pl. S.F. 1 ¶¶ 3-4.) An intermittent catheter is used to drain the bladder for a specific purpose, e.g., a surgical procedure, and lacks an inflatable balloon. (Id. ¶ 2; Pl. S.F. ¶ 10.) A Foley catheter remains in the urethra for longer periods of time, allows for continuous drainage of urine, and has an inflatable balloon that holds the catheter in the bladder. (Pl. S.F. ¶ 11; B. S.F. ¶ 2.) “[A]n infection control Foley catheter is a standard Foley catheter that has been coated or impregnated with antimicrobial agents to prevent the colonization of bacteria on the catheter’s surface,” thereby reducing the chances of the patient developing a urinary tract infection (“UTI”). (Pl. S.F. ¶ 11; B. S.F. ¶ 3.)

Catheters are made from silicone or latex. Silicone catheters tend to be higher priced than latex ones, although silicone catheters are going down in price. (Pl. Ex.-2, 170 at 344-45.) Silicone catheters also tended to be rougher than latex, possibly causing trauma on insertion and needing a coating to make the catheter easier to insert. (Id. at 345.) Newer silicone catheters are smoother and closer in feeling to latex. (Id.) Latex catheters drain the bladder faster than silicone ones. (Pl. Ex.-1,171 at 56.)

St. Francis is a medium-size hospital with 258 licensed beds and a large volume of surgery. (B. S.F. ¶ 26; Pl. Ex-2, 33 at 26.) Although St. Francis does not have to join any Group Purchasing Organization (“GPO”), it is a member of two — MedAssets and Novation — and has been for at least seven years. (Id. at 27-28, 35, 74.) It purchases its medical supplies through Novation and its pharmaceuticals through MedAssets. (Id. at 33.)

In its four-count second amended complaint, St. Francis, acting in its own behalf and in behalf of the members of two defined classes, alleges that certain conduct of Bard is an unreasonable restraint of trade, in violation of § 1 of the Sherman Act, 15 U.S.C. § 1 (Count I); is an impermissible monopoly, in violation of § 2 of the Sherman Act, 15 U.S.C. § 2 (Count II); is exclusive dealing, in violation of § 3 of the Clayton Act, 15 U.S.C. § 14 (Count III); and is in violation of Missouri’s Antitrust Law, Mo.Rev. Stat. § 416.031 (Count IV). St. Francis moves for partial summary judgment on whether Bard’s GPO contracts have an anticompetitive effect and, alternatively, whether it may be inferred that Bard has market power over Foley catheters sold through GPOs. Bard moves for summary judgment on all issues. Both parties have submitted voluminous material. Some the Court finds to be irrelevant; and, as noted above, some is duplicative. The material found by the Court to be relevant is set forth below.

GPOs. A GPO is a purchasing intermediary that negotiates contracts for medical supplies on behalf of its member hospitals. (B. Ex-2, 21 at 20; PL Ex.-1, 89 at 1.) Hospitals voluntarily belong to GPOs to obtain (i) better prices and services from the vendors on contract, (ii) lower expenses associated with having to negotiate and administer purchasing contracts, (in) assistance with resolving product failures, and, (iv) sometimes, results of the GPO’s investigations and assessments of various products. (B. Exs.-2, 15 at 263-64; 27 ¶¶ 14, 15; 28 ¶¶ 20-21; 31 ¶¶ 19, 22, 23; 33 at 35; 34 ¶¶ 5-7; 38 at 54; 39 at 11; 43 at 8; 49 ¶ 13-13; 58 ¶¶ 13-19; 81 ¶ 21; PL Exs.-l 149 at 124, 198 at 137.) GPOs also allow a hospital to take advantage of the GPO’s training programs on new products. (B. Ex.-2, 49 ¶ 14.) Prices on GPO contracts have generally gone down each year. (B. Ex.-2, 7 at 430.) “On average, hospitals buying under the challenged GPO contracts pay sixteen percent less than hospitals not buying under contract.” (B. Ex.-2, 21 at 9.) Mike Brown, director of materials management at University Hospital, testified that GPOs give the hospital access to greater purchasing power and better pricing and reduces their staffing needs. (Pl. Ex.-1, 158 at 57.) William Tegel, director of material management at St. Francis, testified that St. Francis purchases between 10,000 and 20,000 products each year from approximately 1000 vendors. (B. Ex.-2, 33 at 38.) Individual negotiations with vendors would be prohibitively time consuming, although the prices would probably be better. (Id. at 39.) Plus, using a GPO, one purchasing order could be issued where without it 150 to 200 purchasing orders would be required. (Id. at 78.) And, he would have to add a full-time employee if he wanted to buy everything directly from the manufacturers. (Id.)

GPOs are also helpful in establishing the market price for a particular product and in establishing a starting point for negotiations for lower-priced commodity products. (B. Exs.-2, 33 at 40; 41 at 176; 81 ¶ 21.) One GPO, Novation, has helped its members negotiate local agreements with vendors under its contract. (B. Ex.-2, 81 ¶¶ 7-9.) A GPO is particularly useful to small hospitals in getting lower prices. (B. Exs.-2, 27 ¶ 13; 28 ¶¶ 18-19; 31 ¶ 21; 152 at 15.) Robin Hanson, a vice-president of sales for Bard, testified that small hospitals tended to be compliant with GPO agreements. (B. Ex.-2, 11 at 751.) And, as exemplified by St. Francis, hospitals can often belong to more than one GPO and often switch from one GPO to another. (B. Exs.-2, 16 at 16; 31 at 7; 36 at 19; 37 ¶ 5; 39 at 71; 40 at 62; 42 at 14-15; 43 at 65; 119 at 93.) See also Bard’s Exhibits-2, 119; 157 at 34 (Ochsner Health System switched from Novation to MedAssets because it made more sense).

It is estimated that 96 to 98% of all hospitals are members of GPOs. (PI. S.F. 1 ¶23.) In 2002, 85% of all hospital purchases nationwide were through the seven largest GPOs. (B. Ex.-2, 21 at 21.) Of those seven, Novation and Premier are the largest. (B. Exs. 15 at 38, 43 at 8.) From 2003 to 2008, 65% Bard’s total sales of urological products were pursuant to Novation and Premier GPO contracts. (B. Ex.-2, 21 at 58-59.) Novation includes a provision in all its supply contracts that the agreement does not constitute a commitment to purchase any of the products. (B. Ex.-2, 43 at 67, 68.) A January 2005 document indicated that Novation purchased approximately one-third of the market in urological products. (PI. Ex.-2, 133 at 109.)

Every GPO asks for a dual source and sole source bid. (B. Ex. 7 at 310.) Whether the contract for a particular product category, e.g., urological products, is to be a sole source, dual source, or multi-source agreement is decided by the GPO. (B. Ex. 32 at 60.) Bard does not have any control over the question. (Id.) Prices under sole source contracts for urological products are 2.3% lower than those on multi-source contracts; prices under dual source are 0.8% lower. (B. Ex.-2, 21 at 69.) Regardless, in January 2007, Premier went with multi-source agreements, including with Bard’s competitors, Tyco International (US), Inc. (“Tyco”), Rochester Medical Corporation (“Rochester”), and Hollister. (PI. Ex.-2, 64.) It is anticipated that Novation will have few, if any, sole source awards in the future. (PI. Ex.-2,132 at 101.)

Several of Bard’s GPO contracts include a tiered pricing structure. (See e.g. B. Ex.-1, 6; B. Ex.-2, 54.) Tier pricing gives GPO members who are committed to a product line lower prices. (B. Ex.-2, 14 at 147.) “[C]ommitment ‘tiers’ ... give hospitals the opportunity to choose higher levels of discounts in exchange for higher levels of commitment.” (B. Ex.-2, 21 at 36.) Even at the most committed GPO contract tier, however, a hospital is not required to commit 100%. (B. Ex.-2, 21 at 24, 56.) Rather, the typical most-committed tier requires a 85% share and a commitment for five out of six product categories. (Id. at 47.) Even so, a hospital on a tier three GPO contract with Bard could elect to purchase all its urological products from another manufacturer. (B. Ex.-2, 58, ¶ 6, 7.) For example, Indian River Medical Center purchases urological products from Bard under a Premier contract. (B. Ex.-2, 31 at 8.) That contract provides that the Center must purchase 85% of its general urological requirements from Bard to obtain the best prices for those products. (Id. at 9.) John Walker, the Center’s materials management director, testified in his deposition that the Center is not forced to buy any of Bard’s products. (Id.) Indeed, it purchases intermittent catheters from Medline pursuant to a local agreement and drainage bags for Foley catheters from Tyco. (Id. at 9-10.) Additionally, access tiers permit members who do not want to purchase in bulk from a supplier to still purchase some products under the GPO contract. (PI. Ex.-2,170 at 363-64.)

Contracts with no alternative commitment or price levels, i.e., contracts with “one” tier, represent 31.8% of Bard’s GPO sales. (B. Ex.-2, 21 at 55.) In Bard’s two-tiered contracts, 34.4% of its sales are in the first, or lower-commitment, tier, although the most committed tier carries a 5.3% discount for relevant products. (Id.) In Bard’s three-tiered contracts, 70.6% of its sales are in the two tiers that require the lower commitments, although the most committed tier carries a 15.3% discount for relevant products. (Id.) This third tier can require that 85% or greater of aggregate annual requirements in eight categories be purchased. (B. Ex.-2, 69 Ex. A; Ex.-2, 116.) In Bard’s four-tiered contracts, 44.9% of its sales are in the three tiers that require the lower commitments, although the most committed tier carries a 32.9% discount for relevant products. (B. Ex.-2, 21 at 55-56, 70.) This fourth tier can require that 80% of a member’s purchases be in four out of seven product categories offered by Bard. (B. Ex.-2, 54.)

A GPO member may be required to sign a letter of commitment when agreeing to purchase a manufacturer’s products pursuant to a GPO contract. For instance, in January 2007, Southeast Missouri Hospital signed a letter of commitment pursuant to the contract between MedAssets, a GPO, and Tyco for urological products. (B. Ex-2, 134.) A letter of commitment with MedAssets Select Program requires that members select a certain number of products in various categories to get better pricing, e.g., the program requires that 85% of a member’s needs from five of six categories of Bard’s products be purchased to qualify. (PI. Ex.-l, 154 at 35-37.) Bard uses letters of commitment to track the GPO under which a hospital is making their purchases. (PI. Ex.-2, 160 at 160.)

Some GPO contracts provide for “share-based discounts” based on a manufacturer’s share of a customer’s purchases of its products under contract. (B. Ex.-2, 21 at 27.) Some provide for “bundled-share discounts” that give greater discounts for customers if they maintain a certain level of purchases in several of a manufacturer’s product categories. (B. Ex.-2, 21 at 27.) The most prevalent level in Bard’s bundled-share contracts is 85%. (Id.) GPO contracts providing for share discounts, whether bundled or not, allegedly benefit the seller by providing for incremental sales and the buyer by providing for “enhanced discounts.” (B. Ex.-2, 21 at 32.) “The seller offers a discount and the buyer commits to buying more than he otherwise would at the discounted price.” (Id.) Additional discounts may be achieved through sole-source or dual-source GPO contracts. (B. Ex.-2, 21 at 29.)

Also, some GPOs include a “most favored nation” clause requiring that the supplier not give a better price to another GPO. (B. Ex.-2, 171 at 158.) The clauses compare like GPO contracts to like GPO contracts in terms of aggregate value. (PL Ex.-1, 153 at 58.) Bard’s last renewals of GPO contracts did not include such clauses. (PL Ex.-2,132 at 119.)

Either party to a GPO contract may terminate it without cause after giving the notice required by that contract. (B. Ex-1, 6; B. Exs.-2, 69, 78, 80, 84-87, 93, 95-98, 100-01, 103-05, 108, 111; (Pl. Ex.-2, 87.) In some contracts, that requirement is 60 days’ notice, in others it is 90 days. (Id.)

Although the majority of hospitals do purchase medical supplies through GPOs, they do not have to do so. (B. Ex. 7 at 262.) Membership in a GPO does not require that all applicable purchases be made through that GPO, including those purchases that are covered under a sole source contract. (B. Exs.-2, 24 at 392; 42 at 14; 43 at 76-77; 49 ¶ 6; 58 ¶ 7; 106 at 230; PL Exs.-l, 164 at 66-67; 169 at 15, 87; 172 at 16.) Although Bard has a GPO contract with Novation, some of Novation’s members contract with Bard independent of the GPO contract. (B. Ex.-2, 47 at 390.) For example, St. Francis is a member of Novation, however, Tegel will negotiate his own contract if he does not like a vendor on a GPO contract or if he feels that the GPO’s vendor’s product is inferior, as do the procurement managers for Ochsner Health Systems and Memorial Hermann Healthcare Systems. (B. Exs.-2, 33 at 56, 59; 39 at 13; 37 ¶¶ 12-13.) When another GPO, Broadlane, switched from a dual source contract with Bard and Tyco to a sole source contract with Bard, the Manatee Health System continued to purchase from Tyco, but did so under a local agreement. (B. Ex.-2, 27, ¶ 9.) And, as noted, health care facilities with a GPO contract make purchases not covered by that contract. For instance, the University of Virginia Medical Center buys 35 to 38% of its products from suppliers who are not under any GPO contract, including purchasing male external catheters from Rochester. (B. Ex.-2 16 at 19-20.) If it does not feel that its GPO, Novation, is giving value, it can switch to, or join, another GPO. (Id. at 16.) If a clinician thinks another product would improve patient care, the product can be evaluated regardless whether it is under a GPO contract. (Id. at 17.) Its purchasing department does not veto a clinician’s decision about medical products. (Id.) The Manatee Health System purchases 20% of its products without a GPO contract, some of which purchases are due to a preference or better prices; the Crozer-Keystone Health System purchases 30-35% of its products without a GPO contract; the Indian River Medical Center purchases approximately 40-50% of its supplies without a GPO contract, including when there is a new product; and the Wadley Regional Center purchases approximately 32% of its medical supply products outside its GPO contracts. (B. Exs. 27 ¶¶ 9-10; 28 ¶ 11; 31 ¶ 18; 49 ¶ 6; 153 at 16-17.) Similarly, members of another GPO, Health Purchasing Group (“HPG”), are not barred from purchasing urological products from other than Bard although Bard has a sole source agreement with HPG. (B. Exs.-2, 59, ¶¶ 2, 4, 5; 163 at 21, 63.) If they chose to do so, the non-Bard agreement would be independently negotiated by the member. (B. Ex.-2, 163 at 21.) HPG does expect, however, that members will make their urological product purchases from Bard — that is why they join a GPO. (B. Exs.-2, 59, ¶ 7; 163 at 58, 61; B. Ex.-2, 145 at 56, 58.)

From 2002 to 2008, “most sales of urological products were to facilities that purchased from more than one supplier.” (B. Ex.-2, 21 at 42.) For intermittent catheters, the percentage varied between 68.8% to 80.5%. (Id.) For Foley catheters, the percentage varied between 56.8% to 74.7%. (Id.) Between 2003 and 2007, the percentage of sales to facilities that purchased from four or more suppliers exceeded 15% annually for intermittent products and 10% annually for Foley products. (Id.) During this same time period, “roughly 30 to 40 percent of Bard’s sales of relevant products were made outside of GPO contracts.” (Id. at 45.)

A GPO member purchasing off-contract may have to pay an increased price. (B. Ex.-2, 14 at 144-45.) Mike Brown testified that there were economic incentives for University Hospital to buy products on a GPO contract. (PL Ex.-2, 135 at 148.) Nothing in its Novation contract, however, prevented the hospital from buying off-contract but for the loss of rebates and the possibility of losing the tier pricing associated with a certain level of purchases. (Id. at 210-11.) Indeed, he sometimes buys products off-contract that are more expensive than those that are. (B. Ex.-2, 41 at 68, 175-76.) Novation has no recourse if he buys off-contract, nor is there any penalty or sanction if he does not buy a certain percentage of product from Bard. (Id. at 74.) See also Bard’s Exhibits-2,114 at 96 (no penalties or sanctions were assessed against University of Utah Hospitals when bought off Novation contract); 42 at 110 (same as to Crozer Keystone).

GPOs do not purchase or distribute the products. (B. Exs. 5 at 333; 15 at 27; 43 at 63.) Rather, the hospital purchases the products from the supplier or from a distributor. (B. Ex. 43 at 64, Ex.-2, 135 ¶ 3.) The GPO awards the distribution contracts. (B. Ex. 25 at 201.)

GPOs do get paid by the suppliers a corporate dividend, or administrative fee, a portion of which is returned to the member. (B. Ex.-2, 51 at 38.) Mark McKenna, the president and chief executive officer of Novation, testified that a GPO gets paid an administrative fee by a manufacturer based on what a member decides to purchase. (B. Ex.-2, 43 at 23.) Those fees have gone down in the past few years. (Id. at 24, 85.) A hospital may also receive a rebate. The president of Bard, Robert E. Anderson, describes rebates as delayed price decreases. (B. Ex.-2, 25 73.) They are returned to the hospitals and are not retained by the GPOs. (Id.)

When inviting manufacturers to bid, Novation includes in its supplier profile requests for information on a company’s annual domestic sales for the products in question and its market share, although a manufacturer’s market share is not part of Novation’s decision criteria award matrix. (B. Exs.-2, 43 at 79; B. Ex.-2, 66 at 492, 495.) When deciding whether to award a supplier a contract, Novation employs a decision criteria award matrix with both financial and non-financial criteria. (B. Ex.-2, 62 at 12.) Pricing is one-half the outcome result; the non-financial criteria is the second half. (Id. at 15, 51.) If a supplier meets the minimum acceptable score on the non-financial criterion, then the financial portion is analyzed. (B. Ex.-2, 50 at 31.) Included in the questions relevant to the non-financial criteria are such requests as whether there are both silicone and latex products (relevant to the breadth and depth criterion) and how many field representatives the company has (relevant to the ability to supply and service the products and to conversion assistance). (B. Ex.-2, 66 at 499-501.) And, when Novation invited suppliers to bid on a GPO contract for urological products, it asked for a profile of the company, including the number of sales representatives, the list of manufacturing facilities, the identification of products that are not self-manufactured, the amount of its sales, a list of its other GPO contracts, its method of distribution, and the percentage of the company’s acute care business compared to its non-acute care business. (B. Ex.-2, 154.) It also asked about product safety. (Id.) Rochester reported that its products and packaging were latex-free. (Id.) Its acute care business was 5%; its non-acute care was 95%. (Id.)

The Novation Nursing Clinical Practices Council (“the Council”) assesses the non-financial criteria of the various bids and scores suppliers. (B. Exs.-2, 42 at 70-72; 50 at 30; 62 at 13.) For instance, when deciding to award a contract for urological products, the Council scored the bids of four manufacturers by factors of clinical acceptability, breadth of product line, ability to supply, and conversion assistance. (B. Ex.-2, 42 at 70-72.) Lynda Bailey served on the Council and testified that of the four non-fínancial criteria, the most important was clinical acceptability and then, in order of diminishing importance, breath and depth, ability to supply and service, and conversion assistance. (B. Ex.-2, 114 at 39-40.) When the Council scored the bidders for the decision criteria award matrix, they did not consult with anyone, including anyone from Novation or Bard. (Id. at 91.) She did not consider whether a bidder was on a GPO contract. (Id. at 92.)

In the December 2004 matrix, Bard had a score of 905, Tyco of 885, Rochester of 719, and Medline of 7691. (B. Ex.-2, 42 at 70-72.) Bard’s average score for clinical acceptability was 322, Tyco’s was 301, and Rochester’s was 258. (Id. at 112-13.) For breath and depth, Bard’s score was 281, Tyco’s was 275, and Rochester’s was 215. (Id. at 114.) For ability to supply, Bard’s score was 186, Tyco’s was 181, and Rochester’s was 123. (Id.) See also Bard’s Exhibit-2, 130 (listing non-financial criteria for interventional urological products and summarizing committee members’ assessment of scores for seven manufacturers, including Bard, Tyco, Rochester, and Med-line). An asset of Bard’s in 2004 was its four manufacturing facilities. (B. Ex.-2, 66 at 551, 555.) Three of the four bidders submitted multi-tier pricing; Rochester did not. (B. Ex.-2, 50 at 95.) The Council evaluated sole source, dual source, and multi-source bids. (B. Ex.-2, 62 at 133.) Bard gave the best pricing for a sole source contract and ranked the highest on non-financial criteria. (Id. at 133-34.) Although the Council can add additional awardees to a GPO contract, the Council voted to award Bard a sole source contract for acute care urological products. (B. Exs.-2, 42 at 115; 50 at 40.)

The Novation 2005 agreement for urological products awarded a sole source agreement to Bard for urological catheters and related accessories and a multi-source agreement to Bard, Cook, and Boston Scientific for interventional urology. (PI. Ex.-2, 175 at 5.) For the first category, Bard had a score in non-financial criteria of 905, Tyco of 885, and Rochester of 719. (Id. at [10].) Bard included an access tier for all members. (Id. at 5.)

Anthony Trupiano, a vice-president of material management for SSM Health Care, was, at the time of his deposition in May 2006, on the committee for Premier that reviews products. (B. Ex.-2, 35 at 9, 19.) The committee has included in its recommendations vendors that are not recommended by Premier and has excluded ones that are, including a recommendation that Bard receive a sole source contract for its dialysis catheter. (Id. at 28, 30.)

During the class period, 58.3% to 66.9% of Bard’s total sales of intermittent and Foley catheters were through GPOs and 12.9% to 16.6% were with no contract. (B. Exs.-2, 21 at 24; 25 at 201.) From 2003 to 2008, between 33.1 and 41.7% of Bard’s sales of the relevant product were not covered by GPO contracts. (B. Ex.-2, 21 at 105.) The GPO contracts vary; some are sole source, some are dual, and some are multi-source. (See B. Exs.-2, 4 (listing type), 6 (sole source), 8 (multi-source), 32 at 70-72 (sole source with Novation; multisource with MedAssets; PL Ex.-1 203 (dual source with Consorta)). There is “fierce competition” for sole source contracts. (B. Ex.-2, 11 at 732.) Bard and other manufacturers offer more aggressive pricing for a sole source contract. (B. Exs.-2, 7 at 735; 25 at 71.) Even so, Bard does not expect that 100% of a hospital’s product needs be purchased under a GPO contract, including a sole source contract. (B. Ex.-2, 32 at 186.) Indeed, for the period from 2003 to 2008, Bard’s competitors accounted for 8.9% of Foley product sales to GPO members with sole source contracts with Bard, 13.9% to members with dual-source contracts, and 14.3% to members with multi-source contracts. (B. Ex.-2, 21 at 46.)

As noted above, hospitals may purchase urological catheters from Bard directly or from a distributor. (B. Ex.-2, 135 ¶ 3; PI. Ex.-2, 157 at 22.) The majority use a distributor of their choosing.’ (B. Ex.-2, 135 ¶ 4; PI. Ex.-2, 157 at 20.) There are two separate transactions in such cases. (B. Ex.-2, 135 ¶ 4.) A distributor buys the product from Bard at list price. (Id.) The hospital buys the product from the distributor at the contract price plus the distributor’s mark-up. (Id.) Pricing is not negotiated with distributors. (PI. Ex-2, 157 at 20.) The contract price is the price that Bard has agreed to under a contract that the hospital has use of, e.g., a GPO contract. (Id.) The amount of markup varies according to negotiations between the distributor and the hospital. (Id.) Bard has no role in these negotiations. (/¿¶ 5.) The hospital pays the distributor; the distributor negotiates shipping terms, ships the product, invoices the hospital, and collects the payment. (Id.) See also Plaintiffs’ Exhibit-2, 157 at 39, 83-84. “Most of the time, hospitals purchase Bard’s catheters from distributors at a price that is below Bard’s list price----” (B. Ex.-2, 135 ¶ 6.) “When that happens, the distributor obtains a rebate from Bard to account for the difference in price between the contract price the hospital paid the distributor and the list price the distributor paid Bard.” (Id.) Bard began phasing out distributor-agency agreements in 2004 and now uses a distributor rebate agreement. (Id. ¶¶ 9-10; B. Ex.-2 189 ¶ 3.) See also Plaintiffs’ Exs.-2, 59-60 (copies of Bard’s distributor rebate agreements, and 61, a distributor agency agreement).

The Products. Bard introduced the first infection control latex Foley catheter in 1994. (B. S.F. ¶ 3.) Rochester introduced its silicone infection control Foley catheter in 1998. (B. S.F. ¶ 4.) Tyco introduced its infection control Foley catheter in 2003.(Id.) Other infection control Foley catheters have been introduced by Cook Urological (Spectrum, a silicone, antibiotic coated catheter) and Medline (SilverTouch, a silver coated catheter). (Id.; B. Ex.-2, 8) Infection control Foley catheters are the largest selling Foley catheter. (B. Ex.-2, 21 at 15.) “[F]rom 2002 to 2008, the number of suppliers of Foley catheters to hospitals was never less than eight (in 2004) and had increased to thirteen in 2007 and 2008.” (B. Ex.-2, 21 at 42.)

Bard uses several different types of coatings on its catheters: a hydrogel compound; silicone, including a silicone hydrophilic silver coating, such as used on Lubri-Sil I.C.; and a combination of silver and hydrogel, such as used on Bardex IC. (B. Ex-2, 2 at 75-76; Ex.-2, 23 at 25-26.) Rochester’s Foley catheter, Release NF, incorporates nitrofurazone. (B. Ex.-2, 17 at 7.) Nitrofurazone is a preventive, antibacterial agent, not a treatment for infections. (Id.; B. Ex.-2, 169 at 188.) Its “kill mechanism is different than that of antibiotics.” (B. Ex.-2,174.)

Although the Release NF catheter was initially submitted without any infection-control claims so that it could be evaluated by the Food and Drug Administration (“FDA”) as a substantial equivalent to an existing product, after January 1998 Rochester can claim that the Release NF reduces UTIs. (B. Exs.~2, 10 at 35; 13 at 24-25; 23 at 98-99.) Bard can also make such claims. (B. Ex.-2, 23 at 98-99.) Tyco cannot. (Id.) Tyco was informed by the FDA in 2006 that it could not market its Dover Silver catheter as reducing UTIs. (B. Exs.-2, 7 at 4; 21 at 18-19.)

The 510(k) review process governs approval by the FDA of a device that is substantially equivalent to one that is already on the market. (B. Ex.-1, 10 at 30.) The filing fee for such review in 2008 was $3,404 (50% less if one qualifies as a small business with gross receipts or sales of no more than $100 million). For such review, performance data is usually required, but clinical data is not. (Id.)

Because of concerns about latex allergies, Bard is trying to improve its silicone catheters. (B. Ex.-2, 3 at 88.) As of February 2006, approximately 6% of the market for catheter products was for silicone. (B. Ex.-2, 4 at 384.) Bard’s Lubri-Sil I.C. is a silicone infection control catheter. (Id. at 93.)

Under the theory that the lack of a GPO contract was an obstacle to Rochester having the opportunity to commercially take advantage of product improvement and increase its revenue, Rochester applied to Novation to have Release NF added to contracts as new technology. (B. Exs. 12 at 261, 63 at 15; PI. Ex.-2, 165 at 75.) Novation makes a decision on whether to accept or reject a new technology application based on the recommendations of its members. (PI. Ex.-2, 131 at 64.) For a product to qualify as such, it “must be innovative and offer substantially improved benefits over what already exists.” (Id. at 83.) The clinicians on the Council, not Novation, made the decision not to add Release NF to the contract for urological products. (B. Ex.-2, 63 at 16; PI. Ex.-2, 165 at 75.) They decided Release NF did not meet the criteria for evaluation as new technology and that there was insufficient evidence to support Rochester’s claims of increased patient care benefits from the nitrofurazone. (B. Exs.-2, 63 at 17; 177.) They based their decision on the information supplied by Rochester and had not actually used the products. (B. Exs.-2, 63 at 18; 178 at 49.) They did not base their decision on market share. (B. Ex.-2, 63 at 34.) Had they felt it necessary, they would have consulted a urologist or other physician about the Release NF. (PL Ex-2, L65 at 79-80.) If a request had been made that the users of Release NF— Rochester had provided a list of 31 clinical users — be contacted, they would have been. (B. Exs.-2,176; 178 at 70-71.)

In a three-year period, Novation awarded over 50 contracts for innovative technology. (B. Ex.-2, 43 at 42.) Some of the winning companies have small market shares. (Id. at 80.)

Regardless of whether a new technology application is granted, because Novation is a voluntary GPO, its members can purchase any product they chose; however, they might not be able to do so at the same price as under the GPO contract. (PL Ex.-2, 131 at 78, 84.) Indeed, in 2006, a hospital with a Novation contract could purchase all its silicone catheters needs within the 15% headroom in the contract and retain the pricing tier with the lowest prices. (B. Ex.-2, 4 at 384-85.) The Crozer-Keystone Health System, under a Novation GPO contract, will purchase products they consider to be superior regardless of whether the product is under the contract. (B. Ex.-2, 28 ¶¶ 10, 12.)

The other of the two largest GPOs, Premier, had a four-stage process for the evaluation of technology breakthrough submissions. (Pl. Ex.-2, 186 at 4.) When presented with Rochester’s submission for the Release NF, Premier noted that studies had shown that nitrofurazone-impregnated catheters were significantly more effective than conventional Foley catheters in reducing catheter-associated UTIs, but no “well-designed studies” had compared the nitrofurazone — impregnated Foley catheters to silver-coated ones. (Id. at 5-6.) Premier recommended to its nursing committee that the technology breakthrough clause not be invoked because the Release NF did not offer significant advantages over other infection control catheters currently offered on GPO contracts, members could purchase Release NF off-contract, and, if Premier wanted, a GPO contract could be entered into with Rochester without invoking the clause. (Id. at 7.) The Premier Nursing Council concurred and additionally found that comparable products were available through existing agreements with Bard and Tyco. (Id.; B. Ex.-2,179.)

Rochester’s 10-K report for the period ending September 30, 2007, noted that Rochester had a GPO contract with Premier, effective March 1, 2007, and an innovative technology contract with Novation, effective September 1, 2007. (B. Exs.-2, 17 at 9; 56 at 5.) Rochester’s net sales increased in 2008; its net income decreased due to an increase in its marketing and sales budgets and to the 2007 income figure including the proceeds from the settlement of its anti-trust suit, see note 8, supra. (B. Ex.-2, 17 at 38, 48.) Additionally, it was reported during a fourth quarter earnings conference call in 2008 that hospitals were “showing very strong interest” in Rochester’s infection control catheter. (B. Ex.-1, 13 at 3.) Advanced sales of such catheters had increased by 58% that quarter and by 38% for the year to date. (Id. at 6.) The sales of Foley catheters had increased by 41 % for the quarter and by 52% for the year. (Id.) It was further reported that a number of evaluations of Rochester’s Foley catheters were underway. (Id. at 19.)

In the United States market, Rochester sells only silicone-coated Foley catheters. (B. Ex.-2, 19 at 72-73.) See also Bard’s Exhibits-2, 107, 108 (noting that Rochester’s GPO contracts with Novation and Premier were for its all-silicone Foley catheters). And, it has only one production line for Foley catheters. (B. Ex.-2, 56 at 5.)

The Competition. A 2001 report by the firm of Frost and Sullivan on the United States Urological Devices Market notes that at least seven manufacturers in the United States market intermittent catheters, the top three of which had a 91% market share. (Pl. Ex.-2, 102 at 3-36, 3-40.) The largest in terms of revenue were Mentor and MMG Healthcare. (Id. at 3-40.) These two companies and Bard comprised the first tier of competition. (Id.) Bard was third with 11% market share. (Id. at 3-41.) Rochester, Coloplast, Tyco, and Cook Urological were the second tier. (Id. at 3-40.) The report further concluded that entry into the market was limited due to the presence of “a couple of dominant players that are well established with broad product offerings.” (B. Ex.-2, 22 at 1.) Those players were Bard and Kendall, a subsidiary of Tyco. (Id.)

Bard’s market share of urological products varies by such factors as product, time period, contract source and type, and buyer. For instance, Bard attributed the decrease in its market share for urological catheters from $19.4 million in 1995 to $15.5 million in 1998 to the shift of health care to out-of-hospital venues. (Pl. Ex.-2, 33.) For the period from 2003 through the second quarter of 2008, Bard had 86.7% of Foley product sales to hospitals and Tyco had 9.7%. (B. Ex.-2, 21 at 16-17.) Bard had a 91.1% share of Foley catheters pursuant to sole source contracts, a 86.2% share of Foley catheters pursuant to dual source contracts, and a 85.8% share pursuant to multi-source. (B. Ex.-2, 21 at 78.) Bard had a 65.7% share of intermittent catheters pursuant to sole source contracts, a 44.9% share of intermittent catheters pursuant to dual source contracts, and a 42.6% share pursuant to multi-source. (Id.) For the period from 2003 to 2006, Bard’s revenue share for intermittent products was 34%, Tyco’s was 30.3%, and Mentor’s was 20.6%. (B. Ex.-2, 21 at 98.) For the period from 2004 to 2008, Bard’s share of Foley products sold to hospitals without GPO contracts exceeded its share in hospitals with such contracts. (B. Ex.-2, 21 at 7.) For intermittent products, it did not. (Id.) Bard’s 2005 business plan reflected a market share of 51% in acute care urological products. (Pl. Ex.-2, 55.) A marketing plan from that same year listed Bard’s market share in Foley and specialty catheters as 82%. (Pl. Ex.-2, 79.) It also noted that concerns about latex allergies were increasing in hospitals. (Id. at 7.) A threat to Bard’s position remained the comparison of its latex-free products with those of its competitors. (Id. at 14.) An incomplete line of silicone products remained a weakness of Bard’s in 2008. (Pl. Ex.-2, 83.) Plus, an internal Bard January 2003 memorandum reported only a 9.4% reduction in urinary tract infections with the use of Lubri Sil I.C., its silicone Foley catheter. (Pl. Ex.-2, 35.) This rate was not statistically significant. (Id.) A marketing plan issued that same year expressed concern that a negative study at Johns Hopkins Medical Center showing a non-significant 10.3% reduction in catheter-associated UTIs be restricted to Lubri Sil I.C. and not imputed to Bardex IC. (B. Ex.-2, 4 at 7; Pl. Ex.-2, 54.) Bardex IC was 30% of Bard’s catheter sales and 24% of the total Foley catheter market. (Pl. Ex.-l, 54.) The plan also noted that Lubri Sil I.C. needed to be improved. (Pl. Ex.-2, 2, 54 at 6.)

Bard has not conducted any head-to-head trials of Release NF against Bardex IC or against Lubri-Sil I.C. (B. Ex.-2, 7 at 34-35.) Anthony Conway, Rochester’s president and chief executive officer, testified that Bard would not participate in head-to-head trials against Release NF, although hospitals wanted them. (PI. Ex-1,162 at 104.) He wanted Bard to support such trials, including financially. (Id.) Although he could have purchased Bardex IC products and have doctors do the study without Bard’s formal participation, he did not want to. (Id. at 110.) Rather, he wanted a study supported by both companies. (Id. at 111.) Benson Smith, who retired as Bard’s chief operating officer and president in April 1998 and who joined Rochester’s board of directors in May 2001, testified in his deposition that he never said that Bard attempted to prevent hospital head-to-head trials of Bardex IC with Release NF. (B. Exs. 9, at 8, 19-20; 12 at 95.) Bard would, however, try to discourage a hospital that it did business with from conducting a competitive evaluation. (B. Ex. 12 at 95.) For instance, Bard would increase its contacts with the hospital or encourage the hospital to contact another hospital that was displeased with the competing product. (Id. at 95-96.) If Bard had a GPO agreement with the hospital, it had “more ammunition” in its efforts because it could “lean” on the hospital and the purchasing agent. (Id. at 97.) Smith also testified that Bard’s marketing tactics were aggressive, but customary, when trying to get a hospital to evaluate its products. (Id. at 94.)

Tyco is viewed by Bard as being its biggest competitor. (B. Ex.-2, 24 at 389, 391.) Tyco’s Dover Silver is considered to be the first credible threat to Bardex IC. (B. Ex.-2, 4 at 11; PI. Ex.-2, 56 at 18.) Bard did not, however, lower its prices when the Dover was introduced. (B. Ex.-2, 23 at 100.) Tyco does not have any sole source contracts for its urological catheters, but does sell three urological product lines through dual source contracts. (B. Exs.-2, 15 at 38, 171.) Although Tyco never had a contract with Novation, 10% of Novation members purchase from Tyco and its largest sales dollar base, or 29% of its urological product business, is off-contract in Novation. (B. Exs.-2, 15 at 38, 252; 43 at 78; 62 at 111.) The largest GPO contract Tyco has is with Premier, through which it does 27% of its urological product business. (B. Ex.-2, 24 at 29, 252.)

Another threat to Bard’s market share is dual source contracts with GPOs. (PI. Ex.-2, 34.) Bard’s market share depends on whether its GPO contracts are sole source, dual source, or multi-source. As outlined above, Bard’s market share decreases according to how many other manufacturers are on the contract, e.g., from a 91.1% share of Foley catheters pursuant to sole source contracts to a 86.2% share of Foley catheters pursuant to dual source contracts, and a 85.8% share pursuant to multi-source.

Another consideration GPOs have when awarding contracts is the manufacturer’s ability to supply and service and its conversion assistance. As the Novation supplier profile indicates, the number of field representatives is relevant to these considerations. Bard has a dedicated sales force for urological products of fifty-four people. (B. Exs.-2, 15 at 102; 23 at 9.) In 2004, Bard’s business plan included a request for an expanded sales force. (PI. Ex.-1, 63.) An experienced United States sales force was cited as a strength. (B. Ex.-2, 117 at 7.) It was noted that a competitive loss was worth twice as much as the average conversion to Bard’s urological products. (PI. Ex.-l, 63 at [2].) During the period from September 2002 to January 2005, the marketing department in Bard’s Medical Division grew from three people to approximately sixteen. (B. Ex.-2, 24 at 388.) Medline has a sales force of 500 to 600 representatives, sells a full line of urological products, and has contracts with at least six GPOs. (B. Ex.-2, 20 at 23, 25.) In 2003, Rochester had a sales force of six representatives. (B. Ex.-2, 21 at 65-66.) In its marketing plan for a three-year period beginning in 2003, Rochester listed its primary competitors as Bard and Tyco, noting that both had a large sales force. (B. Ex.-2, 146.) A Premier representative testified in 2006 that she was concerned that Rochester had a sales force of only six people and that its product line was “very clinical” and required clinical support. (PI. Ex.-2, 170 at 367.) Rochester now has a direct sales force of twelve people. (B. Ex.-2,17 at 9.)

The relevance of the size of a manufacturer’s sales force is reflected in testimony by materials managers for various health care facilities. For instance, the materials manager for Memorial Herman System has never been contacted by a Rochester sale representative, nor did a search of his records reveal any marketing material or requests for product trials by Rochester. (B. Ex.-2, 39 at 38-39.) He considers a manufacturer’s sales force disbursement when deciding what products to buy. (Id. at 40.) Mike Brown, director of materials management at University Hospital, never heard of Rochester before Rochester’s lawsuit. (B. Exs.-2, 41 at 30; 58 ¶ 22.) He was not aware of the Release NF, nor did a search of the records reveal any product information on, marketing material about, or requests for trials of the Release NF. (B. Ex.-2, 41 at 34-35.) Donald Mancuso, the director of material managements for the Manatee Health System, averred that he had never been contacted by any sales representative of Rochester and had never heard of Rochester. (B. Ex.-2, 27, ¶ 16.) The only representatives that have called on Tegel are from Bard and Tyco. (B. Ex-2, 142 at 112.) See also Bard’s Exhibits-2, 42 at 25 (vice-president of Crozer-Keystone Health System had never been contacted by Rochester representative); 59 ¶ 10 (director of materials management for Physicians Regional Medical Center had never met Rochester representative or seen Rochester brochure).

Also relevant is whether the product, e.g., Foley catheters, are clinician-preference items or commodities. Novation’s Council decided that urological products were not clinical preference products, i.e., products for which physicians, nurses, and other health care providers would have a clinical preference for one product brand over another based on evidence that the preferred product had a favorable impact on patient care. (PI. Ex.-2, 131 at 80-81.) A hospital may be converted to a different product by selling that product to clinicians with a preference. (B. Ex.-2, 15, at 56.) Paul Hatcher, M.D., considers catheters to be a commodity. (PI. Ex.-2, 148 at 112, 136.) See also Bard Exhibit 2, 165 at 27 (noting that Memorial Hospital in Springfield, Illinois, no longer purchased from Bard; although the urologists wanted to stay with Bard, the materials manager did not). On the other hand, Daniel Humphrey, Memorial Hermann Healthcare System’s chief supply chain officer, considers Foley catheters to be clinical products and purchases Bard’s because the clinicians prefer them. (B. Ex.-2, 81 ¶ 13.) Similarly, Mike Brown, director of materials management at University Hospital in Augusta, Georgia, would purchase a particular catheter if the clinical committee wanted it regardless of whether the manufacturer was on Novation’s contract. (B. Ex.-2, 41 at 26.) He describes commodity products as such items as shoe covers and linens. (PI. Ex.-2, 135 at 17.) A clinical preference item involves the nursing staff. (Id.) Catheters and other urological products he considers to be clinically-driven with physician involvement with the issue of infection-control. (Id.) The clinicians at the Mayo Foundation clinics make the buying decisions. (B. Exs.-2, 40 at 39; 144.) For instance, if a doctor or clinician wanted to order a Rochester catheter, they would, regardless of whether Rochester was on contract with their GPO, Novation. (Id. at 64, 69.) Indeed, the decision whether to use a particular catheter is clinician-physician driven. (B. Ex.-2, 198 at 21.) A University of Virginia Medical Center (“UVA”) representative testified that they consider urological catheters to be clinician-preferred products. (B. Ex.-2, 34 at 18.) Gwendolyn Smith, the vice-president of the Crozer-Keystone Health System, avers that the System purchases urological products from Bard through Bard’s sole source contract with Novation because the clinical staff prefers the Bard products. (B. Ex.-2, 28, ¶ 16.) Hanson testified that every urological product Bard sells is clinician preference. (B. Ex.-2, 23 at 36.)

As suggested above, hospitals tend to purchase clinician-preferred items regardless of whether the item is on a GPO contract. For instance, Southeast Missouri Hospital is a member of a GPO and has a letter of commitment with Tyco for urological products. (B. Ex.-2, 38 at 53, 78.) Some of their physicians prefer Bard urological catheters, so they purchase those. (Id. at 123.) John Walker, the materials management director for Indian River Medical Center, testified that Foley catheters were clinician-preference items and, although Tyco’s prices were lower, the clinicians preferred Bard. (B. Ex.-2, 31 at 10.) UVA buys male external catheters off-contract from Rochester based on physician recommendations. (B. Exs.-2, 34 at 15-16; 166 at 19-20, 43-44.) The University of Utah Hospital purchases silicone catheters from Rochester although it has a GPO contract with Bard. (B. Ex.-2, 114 at 94.) Athough two of the Mayo three clinics use Bardex IC, the third does not because the Foley catheter team believes that the infection rate is low enough that any incremental benefit does not offset the increase in costs. (B. Ex.-2,198 at 19-20.) Mayo buys a significant number of silicone catheters from Tyco off-contract. (B. Ex.-2, 40 at 34, 68.) See also Bard’s Exhibits-2, 106 at 18 (product review committee at WakeMed Hospitals never makes decision on what product to buy based only on whether product is on GPO contract); 58 ¶¶ 9-10 (product review team at University Hospital does not decide what product to buy based on whether manufacturer is on GPO contract); 42 at 110 (Crozer-Keystone’s policy was to buy best product regardless of whether it was on GPO contract).

The significance of whether an item is a clinical-preference item is particularly evident in reference to the named plaintiff, St. Francis. The decision at St. Francis on what products to buy is made by Tegel and the clinicians. (B. Ex.-2, 33 at 14.) Tegel considers urological catheters, including Bardex IC, to be commodities. (Id. at 14-15, 64; B. Ex.-2, a42 at 112.) The majority of the catheters he purchases, however, are Bard’s because the physicians prefer them although Tyco has a better price. (B. Exs.-2, 33 at 72, 106, 129; B. Ex.-2, 142 at 112; PL Ex.-2, 167 at 128.) If the decision were Tegel’s, he would purchase the urological catheters from Tyco. (B. Ex.-2, 33 at 115.) In Te-gel’s opinion, if a physician says he or she is going to use a product, then the physician will and there is not much that can be done about it. (B. Ex.-2, 185 at 30-31.) Indeed, most of the products that the physicians prefer are not on a GPO contract. It is also his opinion that no company’s prices for urological catheters are fair. (B. Ex.-2, 185 at 31.) He has yet to hear why one catheter is better than another. (B. Ex.-2, 33 at 127-28.) He thinks the physicians at St. Francis prefer to use Bard catheters “on reputation alone” and disregard whether the catheters are on a GPO contract. (B. Ex.-2,142 at 111.)

Rochester, the manufacturer consistently cited by St. Francis as proof of Bard’s anticompetitive conduct, noted in its 2003 marketing plan that a strength of Bard’s and Tyco’s — its two primary competitors— was their extensive line of urology products and a weakness of Rochester was its limited offerings. (B. Ex.-2, 146; PL Ex-2, 120 ¶¶ 2, 4.) This observation echoes one of Conway in 1999 that the lack of a full product line hindered a new company’s efforts to penetrate the acute care urological product market with a new product. (B. Exs.-2, 147, 201.) A Premier representative testified that, although Rochester’s infection control product was superior from an anti-microbial perspective, Rochester did not have some of the ancillary products, e.g., drainage bags, which would then have to be purchased from a different supplier. (PL Ex.-2, 170 at 369; Pl. Ex.-2, 171 at 134.) Part of the reason St. Francis uses Bard’s urological products is that Bard was able to standardize its products. (PL Ex.-2, 167 at 147.) The clinical resources manager for Martin Memorial Hospital testified that the great majority of their catheters were latex and they were not interested in a manufacturer that produced only silicone catheters. (B. Ex.-2, 158 at 18.) Moreover, they were pleased with Bard’s urological catheters and had no complaints or plans to change. (Id. at 12-13.) When St. Francis started to use infection control catheters, they started to purchase all their urological products from Bard. (B. Ex.-2, 33 at 73.) It is a major undertaking to switch out a line of Foley catheters. (Pl. Ex.-2, 143 at 84.) See also Bard’s Exhibif-2, 185 at 31 (It was not worth Tegel’s time to switch to another company’s catheters).

Bard’s Form 10-K for the fiscal year ending December 31, 2007, noted that its “market position depended] on its reliable product quality, dependable service and ability to develop products to meet evolving market needs.” (B. Ex.-2, 1 at 1-4.) In its 10-K report for the period ending September 30, 2007, Rochester recognized that other, stronger competitors had the resources to develop advanced versions of their products, possibly resulting in the obsolescence of Release NF. (B. Ex.-2, 56 at 13.) And, a key factor in the failure of another company, Baxter, to thrive in the urological catheter market, according to Benson Smith, was its failure to innovate its product line. (B. Ex.-1, 9 at 82-83.)

Another strength recognized by Rochester as being possessed by Bard and Tyco but not, as of yet, by them is brand recognition. (B. Exs.-2, 56 at 13; 147 at 201; PI. Ex.-2, 137 at 39-40.) The importance of brand recognition was described as a strength by Bard in its 2004 Base Urology Business Plan. (B. Ex.-2,117 at 7.)

Discussion

Summary Judgment Standard. “Rule 56(c) [of the Federal Rules of Civil Procedure] ‘mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial’ ” Erenberg v. Methodist Hosp., 357 F.3d 787, 791 (8th Cir.2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). When ruling on a motion for summary judgment, “[t]he court must simply determine whether there exists a genuine issue for trial, i.e., whether there is sufficient evidence favoring the non-moving party for a jury to return a verdict in her favor.” Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 870-71 (8th Cir.2008). “The court must not weigh evidence or make credibility determinations, as those are functions for the jury.” Id. Moreover, the facts must be viewed in the light most favorable to the nonmoving party and that party must be given the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); accord Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir.2009). “ ‘Where the record as a whole could not lead a rational trier of fact to find for the nonmoving part, there is no genuine issue for trial.’ ” Id. (quoting Matsushita Elec. Indus., 475 U.S. at 587, 106 S.Ct. 1348). There is no different or heightened summary judgment standard in complex antitrust cases. Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1490 (8th Cir.1992); accord HDC Med., Inc. v. Minntech Corp., 474 F.3d 543, 546-47 (8th Cir.2007); Flegel v. Christian Hosp., NE-NW, 4 F.3d 682, 685 (8th Cir.1993).

Count I: Violation of § 1 of the Sherman Act. St. Francis alleges that Bard’s agreements, whether sole source, dual source, or multi-source, with GPOs violate § 1 of the Sherman Act because they (a) require hospitals to make their urological product purchases from Bard; (b) include exclusive compliance and loyalty discounts which condition the receipt of rebates, prices, or discounts on a hospital’s commitment to purchase a specified percentage of urological catheters from Bard; and (c) include penalties for purchasing other, unrelated products from other vendors. (2nd Am. Compl. ¶ 88.)

“Section 1 of the Sherman Act prohibits ‘[e]very contract, combination in the form of a trust or otherwise, or conspiracy, in restraint of trade or commerce.’ ” Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1058 (8th Cir.2000) (quoting 15 U.S.C. § 1); accord Nitro Distrib., 565 F.3d at 423. “To prevail on [their] Section 1 case, [P]laintiffs must prove that: 1) there was an agreement among [Bard and GPOs] in restraint of trade; 2)[P]laintiffs were injured as direct and proximate result; and 3)[P]laintiffs’ damages are capable of ascertainment and are not speculative.” McIntosh v. Monsanto Co., 462 F.Supp.2d 1025, 1029 (E.D.Mo.2006) (emphasis added); accord Masimo Corp. v. Tyco Health Care Group, L.P., 2006 WL 1236666, *3 (C.D.Cal.2006). “The Supreme Court has long accepted that Congress did not intend a literal interpretation of [15 U.S.C. § 1] and it has read the law as prohibiting only those practices that ‘impose[] an unreasonable restraint on competition.’ ” Craftsmen Limousine, Inc. v. Ford Motor Co., 491 F.3d 380, 386 (8th Cir.) (second alteration in original), cert. denied, 552 U.S. 1040, 128 S.Ct. 654, 169 L.Ed.2d 510 (2007). Plaintiffs bear the burden of proving the unreasonableness of a restraint. Id.

Whether an agreement is an impermissible restraint of trade “is determined using either a per se standard or a standard that examines all of the circumstances, the so-called rule of reason.” Concord Boat, 207 F.3d at 1058. Examples of the per se standard include price fixing, tying arrangements, and group boycotts. Id.; Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 558 (8th Cir.1998). A sole source contract is not a group boycott. Minnesota Ass’n of Nurse Anesthetists v. Unity Hosp., 208 F.3d 655, 659-60 (8th Cir.2000). A plaintiff who has satisfied the per se standard need not prove any anticompetitive effects from the alleged restraint. Flegel, 4 F.3d at 685. “[Contracts to purchase are never per se violations of the antitrust laws, even in their most restrictive forms.” Advo, Inc. v. Philadelphia Newspapers, Inc., 51 F.3d 1191, 1204 (3rd Cir.1995). See also Flegel, 4 F.3d at 686 (noting that the Eighth Circuit has not extended the per se standard to business relationships “where the economic impact of certain practices is not immediately obvious”). The GPO agreements at issue are for the purchase of urological catheters; their economic impact is not immediately, or even after study, obvious. Plaintiffs must therefore satisfy the rule of reason standard and establish anticompetitive effects from the alleged restraint. See Minnesota Ass’n of Nurse Anesthetists, 208 F.3d at 660 (“Exclusive dealing contracts are analyzed under the rule of reason.”).

The rule of reason standard “asks whether the contract unreasonably restrains trade in a relevant product or geographic market.” Id. at 659. The application of the rule to such a contract requires consideration of “the extent to which competition has been foreclosed in a substantial share of the relevant market, the duration of any exclusive arrangement, and the height of entry barriers.” Concord Boat, 207 F.3d at 1059. Also relevant is the “ ‘specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint’s history, nature, and effect.’” Craftsmen, 491 F.3d at 387 (quoting State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997)). See also Flegel, 4 F.3d at 686 (“[T]he test of legality [under the rule of reason] is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.”) (internal quotations omitted). “Ultimately, the goal is to determine whether restrictions in an agreement among competitors potentially harm consumers.” Virgin Atlantic Airways Ltd. v. British Airways PLC, 69 F.Supp.2d 571, 582 (S.D.N.Y.1999).

A rule of reason analysis begins with the properly defining the relevant market, including the product market and the geographic market. Craftsmen, 491 F.3d at 388. The relevant product market “includes all reasonably interchangeable products ...,” id. (internal quotations omitted), and “can be determined by analyzing how consumers will shift from one product to the other in response to changes in their relative costs,” HDC Med., 474 F.3d at 547 (internal quotations omitted). “To conduct this inquiry, the [C]ourt[] must weigh several factors in-eluding, industry or public recognition of the products as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Id. (citing Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962)). It is not necessary to show that every individual product had a counterpart by the competing manufacturer. General Indus. Corp. v. Hartz Mountain Corp., 810 F.2d 795, 805-06 (8th Cir.1987). “[Sjuch an approach to definition of the relevant product market would improperly and unrealistically fragment the market in a way not practiced even by those competing in the market.” Id. Plaintiffs bear the burden of proving the relevant product market. HDC Med., 474 F.3d at 547; accord General Indus., 810 F.2d at 805.

Plaintiffs’ expert, Robert E. Litan, Ph.D., defines the relevant product markets as (1) the market for the sale of Foley catheters to purchasers through GPOs and (2) the market for the sale of intermittent catheters to purchasers through GPOs. (B. Ex.-2, 121 at 4.) This definition fails for two reasons. First, it improperly manipulates the boundaries of the product market by including in the definition the tool by which Plaintiffs allege Bard is restraining trade — the GPOs. His explanation that Foley and intermittent catheters sold through GPOs are not interchangeable with ones not sold through GPOs because of the “significant cost savings,” see Litan Report at 19, includes a consideration— price — that is not relevant to the definition of a product. A GPO is not a product, or part thereof or incidental thereto. Second, P