Full opinion text
OPINION OF THE COURT BECKER, Circuit Judge. I. Introduction and General Background - 791 II. The Facts - 793 A. Hospital Services in the York MSA - 793 B. Discrimination Against D.O.s at York - 794 C. Staff Privileges Application Precedure - 796 D. Doctor Weiss’ Application for Staff Privileges - 797 III. Procedural History and Problems - 799 A. Before the District Court - 799 B. Appellate Jurisdiction - 801 (1) The Defendants’ December 9 Appeal - 802 (2) The Plaintiff’s December 13 “Cross-Appeal” - 803 C. Class Certification - 804 (1) The Necessity of Proof of Demand - 805 (2) The Requirements of Fed.R.Civ.P. 23 - 807 (a) Rule 23(a) - 807 (i) Numerosity - 807 (ii) Commonality - 808 (iii) Typicality - 809 (iv) Adequacy of Representation - 811 (b) Rule 23(b)(2) - 811 D. The Vicinage Requirement of 28 U.S.C. § 1393(a) - 811 IV. The Sherman Act Claims - 812 A. Section 1 of the Sherman Act - 812 (1) Proof of an Agreement; Is There a Sufficient Number of Conspirators? - 813 (2) Proof of Restraint of Trade - 817 (a) Introduction - 817 (b) Is the Defendants’ Exclusionary Conduct the Equivalent of a Concerted Refusal to Deal (Boycott)? - 818 (c) The “Learned Profession” Exception - 820 (d) The District Court’s Charge and The Sherman Act Section 1 Verdict as to Weiss - 822 (3) Substantiality of Effect on Interstate Commerce - 824 B. Section 2 of the Sherman Act - 825 (1) Relevant Market - 825 (2) Monopoly Power - 827 (3) Willful Acquisition or Maintenance of Monopoly Power - 827 C. The Propriety and Scope of the Injunction Under Section 16 of the Clayton Act - 828 V. Conclusion - 831 I. INTRODUCTION AND GENERAL BACKGROUND This antitrust case arises from the refusal to grant hospital staff privileges to a physician. The plaintiff, Malcolm Weiss, is an osteopath who was denied staff privileges at York (Pennsylvania) Hospital. Dr. Weiss brought this suit, both individually and as representative of the class of all osteopathic physicians in the York Medical Service Area (York MSA), against York Hospital (“York”), the York Medical and Dental Staff, and ten individual physicians who served on the York Medical Staff Executive Committee and the York Judicial Review Committee. York is controlled by, and, at the time Dr. Weiss applied for staff privileges, was exclusively staffed by doctors who graduated from allopathic medical schools. The gravamen of Weiss’ lawsuit is that, although allopaths (hereinafter referred to as medical doctors or M.D.s) and osteopaths (D.O.s) are equally trained and qualified to practice medicine,' his application for staff privileges at York hospital was turned down solely because of his status as an osteopath. Generally, a physician can admit and treat patients only at hospitals where he has staff privileges. If a patient desires to receive medical treatment at a hospital for which that patient’s doctor does not have staff privileges (either because the patient prefers the reputation of that hospital or because that hospital is the only available hospital with equipment that is necessary for the patient’s treatment) then the patient’s doctor will have to refer the patient to another physician who has staff privileges at the hospital in question. See Weiss v. York Hospital, 548 F.Supp. 1048, 1053 (M.D.Pa.1982) (finding of fact, No. 32-34). As the result of such a referral the first doctor loses the opportunity to treat (and therefore to charge) the patient. In addition, Weiss alleged that the treatment that he received at the hands of the M.D.s who control York sent a message to other D.O.s in the York MSA not to apply for staff privileges at York. In Weiss’ submission, this scheme to exclude D.O.s from York Hospital was motivated by a desire to restrict the ability of D.O.s to compete with M.D.s, thereby increasing the profits of the M.D.s. Weiss contends that this conduct violates sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2, and state law (tortious interference with contractual relations). The district court bifurcated the trial. The liability phase commenced on August 11, 1982, and on September 1, 1982, the jury returned unanimous answers to 42 special verdict questions. The district court molded the jury’s responses into findings of liability in favor of the class (but not Weiss) and against the medical staff on the section 1 claim; in favor of Weiss and the class and against the hospital on the section 2 claim; and in favor of Weiss and against the hospital and four of the individually named defendants on the state law claims. All other defendants were exonerated on all other claims. Adopting the jury’s findings of fact (by which it considered itself bound), the district court thereupon entered a final injunction against the hospital and the medical staff pursuant to section 16 of the Clayton Act, 15 U.S.C. § 26, essentially prohibiting them from future discrimination against osteopaths. In addition, the district court scheduled a second trial to determine damages based on plaintiffs’ claim for treble damages under section 4 of the Clayton Act, 15 U.S.C. § 15, ordered that all class members be notified of their right to apply for damages. Prior to commencement of that trial, defendants and plaintiffs brought these appeals. The case raises a number of complicated legal questions. Our opinion is divided into five parts. Part I is this introduction and general background. In part II we detail the facts. Part III discusses a number of preliminary issues, including the extent of our appellate jurisdiction over the questions presented by the appeals, the propriety of the class certification, and the proper vicinage for the jury trial in this case. We hold that we have no appellate jurisdiction to review the defendants’ challenges to the district court’s findings of liability under section 1 and 2 of the Sherman Act to the extent that those findings relate solely to plaintiffs’ claims for treble damages under section 4 because there is no final judgment as to these claims, and no exception to the final judgment rule applies. We reach the same conclusion with respect to the state law claims. We thus limit this opinion to a review of questions raised by the district court’s issuance of an injunction under section 16 and its exoneration of some of the defendants on some of plaintiff’s claims. We also hold that the class certification was proper and that the trial was held in an appropriate location. In part IV we turn to the heart of this appeal: a review of the findings of liability under sections one and two of the Sherman Act against the hospital and the medical staff, and the consequent issuance of an injunction under section 16 of the Clayton Act. We affirm the court’s issuance of an injunction against the medical staff for violating section 1, an injunction that also benefits Weiss. However, we reverse the district court’s grant of an injunction against the hospital for violating section 2 because we believe that that plaintiff has failed to adduce sufficient evidence to enable him to carry his burden of demonstrating that the hospital engaged in any willful behavior designed to acquire or maintain its monopoly power. Because of a problem with the jury charge we grant a partial new trial on the question of Weiss’ professional competence and character, a factor relevant to the defendants’ defenses to Weiss’ section 1 damage claims. In addition, we affirm, as supported by the evidence, the district court’s exoneration of various defendants on various claims. We then review the scope of the injunction issued by the district court and conclude that, given our substantive decisions on the questions of liability under sections 1 and 2, the district court should be given the opportunity to re-consider the appropriate scope of injunctive relief in the first instance. Part V contains a summary of our conclusions. II. THE FACTS A. Hospital Services in the York MSA There are two providers of in-patient hospital services in the York MSA: York, which is run by M.D.s, and Memorial Hospital (“Memorial”), which is run by D.O.s. York is by far the larger of the two, with approximately 450 beds and 2,500 employees. Memorial has 160 beds. The testimony at trial established that York had a market share of 80% of the patient-days of hospitalization in the York MSA. In addition to York’s overall market dominance, testimony at trial established that certain complex, highly technical “tertiary care” services and facilities are, for a number of reasons, only available at York. Included among the services offered only at York are therapeutic radiology, open heart surgery, cardiac catheterization, renal dialysis, neo-natal intensive care, short-term acute psychiatric care, monitored stroke treatment, audiology, burn care, cardiopulmonary laboratory, cardiopulmonary rehabilitation, electroencephalography, genetic counseling, prosthetic service, speech therapy, computerized axial tomography (CAT scan), and infusion aspirator. B. Discrimination Against D.O.s at York Prior to 1974, both York hospital’s corporate charter and the bylaws of the York medical staff barred D.O.s from obtaining staff privileges at York. “Without staff privileges, a physician cannot admit, effectively follow, or treat patients at York Hospital.” Weiss, 548 F.Supp. at 1053 (finding of fact No. 32). Consequently, whenever a patient of a D.O. wanted to go to York for treatment, either because the patient preferred the reputation and size of York over Memorial, or because the patient required tertiary care services that were available only at York, the treating D.O. had no choice but to refer the patient to an M.D. with staff privileges at York. Weiss, 548 F.Supp. at 1053 (finding of fact No. 33). The evidence adduced at trial indicated several ways in which D.O.s were economically disadvantaged as a result of this discrimination. First, D.O.s lost fees directly when one of their patients was admitted for treatment at York. Obviously, if the patient required treatment that the D.O. was qualified to provide but could perform only at York, the D.O. lost the fees that would ordinarily be charged for those services. Moreover, even if the patient required services that the D.O. was not qualified to provide, the D.O. lost the fees for those non-specialized services provided to patients both before and after the specialized care that he was qualified to perform but which had to be performed in York Hospital by an M.D. It is primarily the loss of these latter fees, derived from monitoring a patient who is receiving tertiary care from a specialist, that economically disadvantaged general practice D.O.s, who were forced to refer patients needing tertiary care to a general practice M.D. with staff privileges at York. D.O.s were also indirectly disadvantaged as the result of York’s discriminatory policy. When patients of D.O.s were referred to M.D.s in order that they could be treated at York, they sometimes did not return to the referring D.O. after the treatment at York was completed, but instead remained in the care of the referred M.D. See Weiss, 548 F.Supp. at 1053 (finding of fact No. 35). Thus the referring D.O. lost the patient not just for purposes of the immediate treatment at York, but for purposes of subsequent medical care which the D.O. was qualified to provide. Additionally, the evidence established that the absence of staff privileges is a competitive disadvantage, in that it indicates to patients that the doctor is a second-class practitioner. See Weiss, 548 F.Supp. at 1052-53 (findings of fact Nos. 29 & 35). Both of these factors placed D.O.s at a competitive disadvantage vis-a-vis M.D.s in obtaining and retaining patients. In 1974 York amended its corporate charter to allow osteopathic physicians to practice at York. Osteopaths were still barred from admission to York, however, because of the prohibition in the medical staff bylaws. Nevertheless, in early 1976, Weiss and another osteopath named Dr. Michael Zittle, both of whom were engaged in family practice in the York MSA, applied for staff privileges at York. Dr. Weiss informed representatives of the York medical staff that if York excluded him because of his osteopathic training he would institute legal action. The York medical staff considered the applications and Weiss’ threat of legal action, and in November of 1976 amended its bylaws to permit admission of osteopaths at York. Dr. Weiss’ contends that the amendment of the bylaws was purely cosmetic, and that since 1976 the York medical staff has engaged in a deliberate covert policy of discrimination against osteopaths. In support of this contention Weiss offered evidence that York had a historical presumption in favor of admitting any M.D. who applied for staff privileges, regardless of the applicant’s medical ability or social graces, but that in the case of D.O. applicants York engaged in “strict scrutiny” of the applicant’s medical qualifications, and, in addition, considered the applicant’s social acceptability. If the D.O. was found lacking, even minimally, in either area, his application was denied. Finally, Weiss adduced evidence that in the evaluation process for D.O.s (but not M.D.s), York relied on hearsay as grounds for rejecting an application for staff privileges. Because “[t]he denial of hospital staff privileges to a physician or the revocation of such privileges is a serious adverse professional event which is likely to besmirch the professional reputation of such a physician.” Weiss, 548 F.Supp. at 1052 (finding of fact No. 29), the district court found that application of the strict scrutiny standard to Weiss’ application for staff privileges, and the consequent denial of Weiss’ application, “could reasonably be anticipated to cause [other] osteopathic physicians to refrain from applying for staff privileges at York Hospital.” Weiss, 548 F.Supp. at 1053 (finding of fact No. 31). In addition to discriminating against D.O.s in the admissions process. Weiss also offered evidence that York automatically gave any D.O. who survived the strict scrutiny of that process the lowest category of staff privileges offered by York, that of “Assistant Staff,” regardless of the D.O.’s actual skill level. Under the Assistant Staff category of privileges the physician is required to consult with other members of the department in the care and treatment of his patients. By contrast, M.D.s who applied for and received staff privileges at York were given different levels of staff privileges depending on their level of skill as certified by the various M.D. specialty Boards. See Weiss 548 F.Supp. at 1051, 1060, & 1061 (finding of fact No. 8, conclusion of law No. 1, & order Nos. 1.1 & 1.3). The alleged effect of this discrimination was to brand D.O.s as second class doctors. C. Staff Privileges Application Procedure When a physician applies for staff privileges at York, the following procedure is customarily followed. After the applicant’s background and reference information has been gathered, the chairman of the hospital department in which the applicant seeks privileges evaluates the application. In the Family Practice Department, to which Weiss applied, the department chairman selects a department credentials committee to assist the chairman in formulating the evaluation. Once the department makes a recommendation, the Medical Staff’s Credentials Committee reviews the application and related file, including the (Family Practice) department’s recommendation, and formulates its own recommendation to the Medical Staff Executive Committee. The Medical Staff Executive Committee independently reviews the application and related file and formulates a recommendation on the application to the hospital’s Board of Directors. The hospital Board of Directors then refers the application to its standing Medical Affairs Committee, which recommends a disposition of the application. Finally, based on the applicant’s file and the various recommendations of the committees, the Board of Directors decides whether to accept or reject the application. If either the Medical Staff Executive Committee or the hospital’s Board of Directors makes an adverse decision, the applicant is informed in writing. The applicant may, at that point, request and obtain (1) a written statement of the reasons for the recommendation or decision, and (2) the impanell-ing of a “judicial review” committee composed of physicians who have had no part in the consideration of the application to that point. The judicial review committee is authorized to hear testimony and receive other evidence to determine whether the adverse recommendation on the application was “in error, unreasonable, arbitrary, or capricious.” The applicant is entitled to attend the hearing, to call witnesses and introduce evidence, to cross-examine and impeach witnesses, and otherwise to rebut adverse evidence. D. Doctor Weiss’ Application for Staff Privileges In 1976 Doctors Weiss and Zittle applied for staff privileges in York’s Family Practice Department. In accordance with the procedures outlined above, the Family Practice Department Credentials Committee and the chairman of the Family Practice Department considered the applications. On January 17, 1977, the department recommended that they be accepted. The Medical Staff Credentials Committee then reviewed the applications and also recommended acceptance. The Medical Staff Executive Committee, however, did not approve either application. Instead, it took the unusual step of deciding to conduct a further investigation. The Committee made extensive oral and written inquiries concerning the professional competence and moral character of both Weiss and Zittle. No such survey had ever before been conducted by the hospital before. Ultimately the investigation turned up some questions about Dr. Weiss’ personality. The investigation also raised some glimmer of a question about Dr. Weiss’ medical competence, but the sole “evidence” that was adduced was hearsay, often second or third level hearsay. Nevertheless, the Medical Staff Executive Committee, apparently based on this “new evidence,” decided not to recommend Weiss for staff privileges. On June 30, 1977, the hospital Board of Directors considered the recommendations of the various committees which had considered Weiss’ and Zittle’s applications. The Board voted to approve Zittle’s application and deny Weiss’ application. Notice of the Board’s action was sent to Weiss the same day. On August 19, 1977, following meetings with York officials, Weiss requested that his application be reactivated and hence reconsidered. This request was granted, and Weiss again received the favorable recommendation of the Family Practice Department’s Credentials Committee, and the Family Practice Department chairman. The Credentials Committee’s written report is revealing in both its assessment of the “evidence” against Weiss, and in its frank recognition of the “controversy” at York over the admission of D.O.s to staff privileges: The Committee invited Dr. Weiss to discuss the reactivation of his application and to direct certain questions to him. He was told of the developments in the past and precisely how his application has been handled and of the problems that had arisen. He was specifically told that almost everybody with whom we spoke acknowledged him to be an intelligent, competent, conscientious physician whose care of his patients in the Hospital was quite competent. He was told that the Chairman of his Department suggested that he probably was the best general practitioner. However, almost everyone to whom we spoke acknowledged that he has had personality problems in the past which have caused him to haye difficult interpersonal relations with other members of the staff. He was told that because of this personality problem, his application was rejected. It was further explained to him that because of the controversy that accompanied the application of osteopaths to the York Hospital, it was felt that acceptance of his application would jeopardize that endeavor. We explained to Dr. Weiss that his admission to the staff would be met in some instances with outright hostility and in others with indifference and it was a matter of real concern to the Committee how he would react to this sort of reception. Weiss replied that he felt his personal problems had been overstated____ He was questioned at length by every member of the Committee concerning his background, his motivation and his reputed personality problems. Dr. Weiss conducted himself throughout the interview in a professional manner and responded to a number of very difficult questions in a positive, constructive fashion. ____Although the Committee has pursued every allegation in his folder diligently with numerous conversations with numerous people it was unable to find one person who could specifically confirm any of the allegations. The Committee was left with the realization that all the allegations were hearsay, that it was left without one witness who could take the stand and make an intelligent case before a judge or jury. Furthermore, it was the opinion of the Committee after today’s interview that Dr. Weiss recognizes the position in which he has placed himself and that he will probably conduct himself in a very careful, cautious, professional manner should he be accepted to the staff at York Hospital. On February 28, 1978, the Medical Staff Credentials Committee voted to recommend again that Weiss’ renewed application be accepted. However, on March 6, 1978, the Medical Staff Executive Committee again voted to recommend that the application be denied. Weiss’ application was next referred to the Medical Affairs Committee of the hospital’s Board of Directors. This committee directed that the members of the Family Practice Department Credentials Committee, the Medical Staff Credentials Committee, and the Medical Staff Executive Committee meet informally to attempt to reach a consensus on Weiss’ application. The members of these committees then met on March 20, 1978, and voted to recommend that Weiss’ application be denied. The Medical Staff Executive Committee then met on April 19, 1978, to re-reconsider Weiss’ application and, for the third time, voted to recommend that the hospital Board of Directors deny the application. On April 21, 1978, York sent Weiss written notice of the April 19, 1978, unfavorable recommendation of the Medical Staff Executive Committee. Upon being advised of the decision of that Committee, Weiss requested and received a statement of reasons. Weiss’ status as a D.O. rather than a M.D. was not one of the reasons cited by the Committee in its official statement of reasons. Weiss also requested an appeal to a “judicial review” committee as provided for in the hospital bylaws. A “Judicial Review” Committee was im-panelled and a hearing was held. Weiss was present and represented by counsel at this proceeding. After reviewing all the evidence, the committee, on December 28, 1978, determined unanimously that the decision of the Medical Staff Executive Committee not to recommend Weiss for staff privileges was not unreasonable, arbitrary, or capricious. The committee also determined, with one member dissenting, that the Medical Staff Executive Committee was not in error in its recommendation. The hospital Board of Directors then held a special meeting at which presentations were made by counsel for Weiss and special counsel for the Hospital. On March 13, 1979, the Board voted to deny Weiss staff privileges. III. PROCEDURAL HISTORY AND PROBLEMS A. Before the District Court On February 6,1980, Weiss filed this suit in the United States District Court for the Middle District of Pennsylvania. The complaint named as defendants York Hospital, the York Hospital Medical and Dental Staff, and ten individual members of the York medical staff: the five physicians who in their capacity as members of the Medical Staff’s Executive Committee voted on Dr. Weiss’ application for privileges, and the five physicians who constituted the Judicial Review Committee that was specially impanelled to review the Executive Committee’s recommendation that Weiss not be given staff privileges at York. Weiss’ complaint alleged that his application for staff privileges at York was denied because of: (1) a concerted refusal to deal with him and all other osteopathic physicians located in and around York, Pennsylvania, in violation of section 1 of the Sherman Act, 15 U.S.C. § 1; (2) monopolization, attempted monopolization, and conspiracy to monopolize in violation of section 2 of the Sherman Act, 15 U.S.C. § 2; and (3) violation of Pennsylvania antitrust and common law. The alleged relevant geographic market coincided with the York MSA. The district court certified the class of all osteopaths in the York MSA as the plaintiff class. The liability issues were tried to a jury for three weeks in September, 1982. At the end of the trial the court submitted 42 special verdict questions to the jury. The jury answered all the questions unanimously. The district court molded the jury’s answers into findings of fact, and, based on these findings, the court reached the following conclusions of law: 1. On the § 1 claim, the staff (but not the hospital) is liable to the plaintiff class but not to Weiss; 2. On the § 2 claims, the hospital (but not the staff) is liable to both Weiss and the class for monopolization, attempted monopolization, and conspiracy to monopolize; 3. On the pendent state law claims, the hospital (but not the staff) and four physicians are liable to Weiss but not the class for interference with contractual relations; and 4. The remaining six physician defendants are not liable to anyone for anything. Weiss, 548 F.Supp. at 1060-62. The court then held an additional one-day hearing to consider plaintiff’s request for equitable relief. Based on the jury’s answers to the special verdict questions, the court’s findings of fact and conclusions of law, and the additional hearing on equitable relief, the district court entered a final order pursuant to section 16 of the Clayton Act, 15 U.S.C. § 26, enjoining the hospital and the medical staff from: 1. undertaking any act against Weiss or the class “which would in any way impede or deny the Plaintiffs full, reasonable, fair, or equal access to the facilities of York Hospital and full, reasonable, fair or equal access to staff privileges at the York Hospital;” 2. “applying standards of review to applications by osteopathic physicians for staff privileges at the York Hospital different from the standards of review applicable to similar applications of allo-pathic physicians,” and 3. “interpreting the expression ‘American Board of Medical Specialty’ as used in the York Hospital Medical Staff ByLaws to exclude osteopathic boards of medical specialty.” Weiss, 548 F.Supp. at 1061. In addition to entering the injunction, the district court also entered the following “judgment on special verdict”: JUDGMENT ON SPECIAL VERDICT— “that the York Hospital Medical and Dental Staff is liable to the Plaintiff Class for violations of Section 1 of the Sherman Act: Further, that the York Hospital is liable to Plaintiff Malcolm Weiss and the Plaintiff Class for violations of Section 2 of the Sherman Act: Further, that the York Hospital, Thomas L. Bauer, M.D., Ivan L. Butler, M.D., S.W. Deisher, M.D. and Lois Kushner, M. D., are liable to Plaintiff Malcolm Weiss for tortiously interfering with his contractual relations with third parties. It Is Further Adjudged that Gary Ardi-son, M.D., Jack A. Kline, M.D., S. Philip Laucks, M.D., Harold H. MacDougall, M.D., Iain L. MacKenzie, M.D. and John P. Whiteley, M.D., are not liable to either Plaintiff Malcolm Weiss or the Plaintiff Class: Further, that as against the Defendants named in the preceding paragraph Plaintiff Malcolm Weiss and the Plaintiff Class shall take nothing and this action shall be dismissed” as to them. Weiss, 548 F.Supp. at 1062. On October 12, 1982, the defendants moved the district court to certify this “judgment on special verdict” as final pursuant to Fed.R.Civ.P. 54(b). Plaintiff opposed this motion for certification by memorandum filed October 27, 1982. On November 18, the district court granted the defendants’ motion and entered the following order: 1. The defendants’ motion for certification is granted. 2. This Court hereby certifies that there is no just reason for the delay of an appeal in this ease. 3. The Clerk of Court is hereby directed to amend the judgment on special verdict entered September 30, 1982, as follows: It is ordered that the judgment on Special Verdict entered on September 30, 1982, is final pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. B. Appellate Jurisdiction Three appeals have been filed in this case. The first is an appeal filed on October 28, 1982, by the hospital and staff from the district court’s injunction which was entered on September 30, 1982. The second appeal is by the hospital, the staff, and the four individual defendants who were found liable to the plaintiffs under the Sherman Act and state law; this appeal was filed on December 9, 1982, from the “order and final judgment entered 11/18/82 and order entered 11/22/82 denying these defendants’ motion for judgment notwithstanding verdict or for a new trial and all other orders, rulings and judgments of the court.” The third appeal was filed on December 13, 1982, by the plaintiff. This appeal is denominated a “cross-appeal” and is from the “orders directing judgment in favor of certain defendants which became final on November 18, 1982.” The defendants’ appeal from the grant of the injunction is authorized by 28 U.S.C. § 1292(a)(1) and therefore it is clearly before us. The viability of the other two appeals presents much more difficult questions. Because the two appeals raise different problems, we consider them separately. 1. The Defendants’ December 9th Appeal The December 9th appeal by the defendants purports to be from the “judgments” (other than the injunction) that resulted from the district court’s September 30th “special verdict.” However, because the trial was bifurcated and additional proceedings, including the determination of certain defenses and of damages, are yet to take place, most of these “judgments” (i.e., those not resulting in verdicts for the defendants) are not final within the meaning of 28 U.S.C. § 1291, see Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945) (a “final decision” for purposes of 28 U.S.C. § 1291 “is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment”); Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307, 1321 (5th Cir.1976) (“a finding of ‘liability’ in Phase I of a bifurcated trial is interlocutory”); see also Sun Shipbuilding & Dry Dock Co. v. Benefits Review Board, 535 F.2d 758, 760 (3d Cir.1976). Moreover, as to those judgments in defendants’ favor, having prevailed, they cannot appeal. Therefore, it would appear that we have no jurisdiction to hear this appeal. The defendants argue, however, that we have jurisdiction because of the November 18, 1982, order of the district court certifying the September 30, 1982, “judgment on special verdict” as final pursuant to Fed.R. Civ.P. 54(b). Rule 54(b), however, does not authorize the district court to certify non-final decisions as final; rather, the Rule’s purpose is to permit the district court to separate out final decisions from non-final decisions in multiple party and/or multiple claim litigation in order to allow the losing party an immediate appeal. See Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742-44, 96 S.Ct. 1202, 1205, 1206, 47 L.Ed.2d 435 (1976) (partial summary judgment limited to the issue of liability, which reserves the issue of damages and other relief, is not “final” within the meaning of 28 U.S.C. § 1291). The defendants’ December 9th appeal must therefore be dismissed for two reasons. First, all of the final decisions that resulted from the September 30th “judgment on special verdict” were in favor of the defendants and the defendants cannot appeal decisions that they have won. Second, because additional portions of the bifurcated trial have not yet been held, all the “judgments” against the defendants arising out of the September 30th special verdict are non-final and therefore not appealable under 28 U.S.C. § 1291. Furthermore, these non-final “judgments” do not fall within any of the limited exceptions for interlocutory appeals. Thus, this Court is without appellate jurisdiction to hear the defendants’ December 9, 1982, appeal. The defendants suggest that even if the non-final decisions that resulted from the special verdict are otherwise non-appeala-ble, we can review those decisions under the doctrine of “pendent appellant jurisdiction,” citing Kershner v. Mazurkiewicz, 670 F.2d 440, 448 (3d Cir.1982) (in banc). In Kershner, Judge Adams, speaking for the full Court, narrowly construed the pendent appellate jurisdiction doctrine stating: If the ... issue appealable under section 1292(a)(1) cannot be resolved without reference to the otherwise nonappealable ... issue — either because the latter issue directly controls disposition of the former, or because the issues are, in some other way, inextricably bound — then both issues must be addressed in order to resolve properly the section 1292(a)(1) ... issue. In such a situation, the appellate court has no choice: any more limited review would deprive the appellant of his or her congressionally mandated right to a section 1292(a)(1) interlocutory appeal. If, on the other hand, the appellate court can dispose of the section 1292(a)(1) appeal without venturing into otherwise nonreviewable matters, its jurisdiction should be limited accordingly. Id. at 449 (emphasis in original; footnotes omitted). See also Allegheny County Sanitary Authority v. U.S.E.P.A., 732 F.2d 1167, 1173 (3d Cir.1984). In applying the Kershner doctrine to this situation, we understand that, to the extent that there are factual or legal issues that must be resolved in ruling on the appeala-ble orders, our holdings on those issues will be the law of the case and control in possible future appeals. However where, as here, there are significant issues involved in the non-appealable orders which are (or may be) different from issues involved in the appealable orders, we do not have pendent appellate jurisdiction to review those non-appealable orders. For example, while we conclude, infra text accompanying notes 30-32, that there is no requirement that each member of the plaintiff class must make a demand for staff privileges in order for the class to qualify for injunctive relief pursuant to section 16, we specifically reserve the question whether a demand is required in order to recover treble damages pursuant to section 4. This latter issue is not “inextricably bound” with the appeal from the injunction and therefore we may not exercise pendent appellate jurisdiction to decide it. Similarly none of the issues involved in the non-final state law claims are inextricably bound up with the appeal from the injunction or the appeal for the dismissed state law claims and therefore these issues are also not appealable. In sum, the Kershner doctrine does not save the defendants’ December 9th appeal. 2. The Plaintiffs’ December ISth “Cross-Appeal” The plaintiff appealed from a number of final judgments against the plaintiff and the plaintiff class, in the December 13th cross-appeal. As to plaintiff Weiss there are final judgments: (1) in favor of defendant York on his section 1 claim; (2) in favor of the defendant medical staff on all claims (sections 1 and 2 and state law); and (3) in favor of defendants Ardison, Kline, Laucks, MacDougall, MacKenzie, and Whiteley on all claims, and in favor of defendants Bauer, Butler, Deisher, and Kushner, on the sections 1 and 2 claims. As to the plaintiff class there are final judgments: (1) in favor of defendant York on the section 1 claim; (2) in favor of the defendant medical staff on the section 2 claim; and (3) in favor of all individual defendants on the sections 1 and 2 claims. Since the district court’s order certifying the “special verdict” pursuant to Rule 54(b) does not distinguish what decisions have been certified, we assume that the court intended to certify every final judgment that resulted from the special verdict, including those against the plaintiff and the plaintiff class. It would therefore seem that, because the plaintiff filed his notice of appeal within thirty days of the Rule 54(b) certification, the judgments listed are properly before us. There is, however, one potential problem of jurisdiction over the plaintiffs’ cross-appeal. Rule 54(b) certification was sought by the defendants, and actively opposed by the plaintiff. The district court granted the certification, but its order did not indicate which “judgments” it intended to certify. Thus it may be that the certification brings up only those claims on which a final decision was entered against the defendants. But all of the potentially appeal-able decisions in this case are against the plaintiff. Apparently the defendants (and the district court) thought that the Rule 54(b) certification would make the claims on which the plaintiff won on the liability issue, but for which the question of damages had not yet been tried, appealable, a belief we have shown to be erroneous. Had the defendants realized that their Rule 54(b) certification motion would accomplish nothing for them, but might result in bringing up for review judgments in their favor which plaintiffs had not initially sought to have have reviewed at that stage, they might not have sought a Rule 54(b) certification. The question, then, is whether the combination of the “blanket” Rule 54(b) certification issued at the defendant’s request and over the plaintiffs’ opposition, and the plaintiffs’ cross-appeal, are sufficient to bring before us the final decisions against the plaintiffs. We have been unable to find any cases or treatises that discuss the efficacy of a Rule 54(b) certification issued at the behest of a party against whom there are no final judgments, or by the district court sua sponte. We nevertheless conclude that the policy of Rule 54(b) to permit immediate appeals from final decisions in complex litigation renders the district court’s Rule 54(b) certification efficacious under the circumstances of this case, i.e., where: (1) the plaintiffs’ appeal is from several final decisions; (2) the parties have briefed and argued the legal questions already; and (3) we have to review the propriety of the injunction which is based on the same factual circumstances as the various final judgments against the plaintiffs and involves most of the same legal issues. The plaintiffs’ cross-appeal is thus properly before us. C. Class Certification The district court granted the plaintiff’s motion for class certification, determining that the action could be maintained pursuant to Fed.R.Civ.P. 23(b)(2) on behalf of a class of all osteopathic physicians practicing medicine in the York MSA. The defendants attack the class certification on several grounds. 1. The Necessity of Proof of Demand The defendants contend that the law of this Circuit is “clear” that where a claim is based upon an unlawful refusal by defendant to deal with the plaintiff, that plaintiff — and hence each class member — must allege and prove a demand which the defendant rejected. In support of this proposition the defendants cite Mazus v. Dept. of Transportation, Commonwealth of Pa., 629 F.2d 870 (3d Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981), and Lawlor v. Nat’l Screen Service Corp., 270 F.2d 146, 154 (3d Cir.1959), cert. denied, 362 U.S. 922, 80 S.Ct. 676, 4 L.Ed.2d 742 (1960). But we are not here faced, as in those cases, with the question whether each member of the class must have made a demand and have been rejected in order to obtain damages from the defendants (that question is posed by the dismissed appeals). We thus find these cases to be inapposite to the limited issue before us on these appeals — i.e., whether the law requires as a prerequisite to injunctive relief that each member of the (b)(2) class have had an application for staff privileges rejected by the hospital. We thus turn to analysis of the question. A private antitrust claim has two parts. A plaintiff must demonstrate “a violation of the antitrust laws” — in this case sections 1 and 2 of the Sherman Act— and he must also prove the right to either the treble damage remedy given by section 4 of the Clayton Act or the equitable remedy afforded by section 16 of that Act. See Mid-West Paper Products Co. v. Continental Group, Inc., 596 F.2d 573 (3d Cir. 1979). Cf. Double H Plastics, Inc. v. Sonoco Products Co., 732 F.2d 351 (3d Cir.1984) (Gibbons, J., dissenting). In a case challenging market exclusion under section 1 of the Sherman Act, the formation of a conspiracy with the requisite exclusionary purpose forms the essence of the violation. See generally Silver v. New York Stock Exchange, 373 U.S. 341, 347, 83 S.Ct. 1246, 1251, 10 L.Ed.2d 389 (1963); Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); American Medical Association v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434 (1943). Similarly, under section 2 of the Act, it is the willful acquisition or maintenance of monopoly power that is the essence of the offense. See generally Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). United States v. Terminal Railroad Ass’n of St. Louis, 224 U.S. 383, 32 S.Ct. 507, 56 L.Ed.2d 810 (1912). In both instances, the violation is based on the defendant’s conduct, rather than on the effect on the plaintiff. On the question of appropriate relief under section 4 or 16, however, effect on the plaintiff becomes critical. This is demonstrated by a comparison of the language of the two sections and the caselaw thereunder. Section 4 of the Clayton Act, 15 U.S.C. § 15, provides: Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee. As in the case of common-law torts, the right to antitrust damages is limited to those plaintiffs who can demonstrate a causal relationship between the defendants’ unlawful conduct and their economic injury. See Perkins v. Standard Oil Co. of California, 395 U.S. 642, 648-49, 89 S.Ct. 1871, 1874-1875, 23 L.Ed.2d 599 (1969). Section 16 of the Clayton Act, 15 U.S.C. § 26, provides in pertinent part: Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws ... when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity____ In contrast to section 4, section 16 contains no requirement that a plaintiff prove actual injury to his business or property caused by the antitrust violation. Instead, section 16 authorizes injunctive relief for any person who demonstrates “threatened loss or damage by a violation of the antitrust laws.” Thus it is generally said that section 16 imposes a lower threshold “standing” requirement on a plaintiff than does section 4. See, e.g., Bogus v. American Speech & Hearing Ass ’n, 582 F.2d 277, 288 (3d Cir.1978); L. Sullivan, Handbook of the Law of Antitrust § 247, at 772 (1977). The courts have applied section 16 “more expansively, both because its language is less restrictive than that of section 4, ... and because the injunctive remedy is a more flexible and adaptable tool for enforcing the antitrust laws than the damage remedy.” Bogus, 582 F.2d at 288-89; see Hawaii v. Standard Oil Co. of Calif, 405 U.S. 251, 261-62, 92 S.Ct. 885, 890-891, 31 L.Ed.2d 184 (1972); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 131, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969). In Zenith Radio Corp., 395 U.S. at 130, 89 S.Ct. at 1580, the Supreme Court reversed a court of appeals decision setting aside the district court’s grant of injunctive relief stating: The evident premise for striking [the injunctive relief] was that Zenith’s failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for § 16 of the Clayton Act, 15 U.S.C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes in-junctive relief upon the demonstration of “threatened” injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury; ... he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur____ Moreover, the purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws ____ Section 16 should be construed and applied with this purpose in mind, and with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice “adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” ... Its availability should be “conditioned by the necessities of the public interest which Congress has sought to protect.” Zenith, 395 U.S. at 130-131, 89 S.Ct. at 1580 (footnote omitted). See also Mid-West Paper Products Co. v. Continental Group, Inc., 596 F.2d 573, 589-94 (3d Cir. 1979) (court held that the Illinois Brick direct purchaser rule did not preclude an indirect purchaser from obtaining injunc-tive relief against price fixing under section 16 of the Clayton Act.) In view of the differences between sections 4 and 16, especially as explicated in Zenith, we conclude that the question whether a defendant has violated sections 1 and/or 2 of the Sherman Act is independent of the question whether each class member must have made a “demand” for staff privileges in order to obtain an injunction and/or treble damages; and that the putative demand requirement is only relevant (if at all) to a plaintiffs right to claim treble damages once a violation has been established. Even if there is no actionable injury in the absence of a D.O.s’ demand for hospital privileges (and refusal), there is threatened injury, for the jury found that York hospital and its medical staff had adopted a discriminatory policy towards D.O. applicants for staff privileges, and the court found as a fact that “[t]he denial of hospital staff privileges to a physician ... is a serious adverse professional event which is likely to besmirch the professional reputation of such a physician.” Weiss, 548 F.Supp. at 1052 (finding of fact No. 29). In this factual situation, it would be fundamentally inconsistent with section 16’s stated purpose of providing relief against “threatened loss” to require that each member of the plaintiff class have made a demand for staff privileges as a prerequisite to obtaining injunctive relief. A contrary conclusion would result in a rule requiring the class to suffer actual harm (besmirching of their professional reputations resulting from denial of their applications) caused by the defendants’ antitrust violations in order to qualify for injunctive relief against threatened harm from the same violations. That result is unacceptable. We therefore hold that where the plaintiff class is a (b)(2) class — i.e., one that seeks primarily injunctive relief — a demand by each member of the class is not a prerequisite to injunctive relief, at least where the plaintiffs have established that the denial of a physician’s application for staff privileges is injurious to the physician’s professional reputation. 2. The Requirements of Fed.R.Civ.P. 23 As we noted above, the district court, pursuant to Fed.R.Civ.P. 23, certified Weiss as the representative of the class of all osteopathic physicians in the York MSA. The defendants challenge that certification on two grounds: first that the plaintiff and plaintiff class do not satisfy the four threshold requirements for class action certification contained in Rule 23(a), and second that the district court improperly certified the plaintiff class as (b)(2) class. We address these contentions in turn. a. Rule 23(a) Fed.R.Civ.P. 23(a) contains the threshold requirements for the maintenance of any type of class action. The Rule provides: (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. For the reasons that follow, we conclude that the plaintiff class in this case satisfied the four requirements of Rule 23(a). (i) Numerosity The first requirement is that the class must be so numerous that joinder of all members is impracticable. The defendants argue that because there are approximately 92 members in the class, all class members live and work in the York MSA, and all class members can be identified with “minimal effort” and joined in this action with “minimal inconvenience,” the numerosity requirement has not been satisfied. The district court gave two reasons for reaching the contrary conclusion. First, the court noted that the primary relief sought by plaintiffs was injunctive, and stated that in such cases a “strict application (requiring the class to consist of hundreds or more persons) of the numerosity requirement is unwarranted.” Weiss v. York County Hospital, Civ. No. 80-0134, at 9-10 & 19 (M.D.Pa. filed 3/28/81) [App. at 1513a-1514a, 1523a], citing Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 276 (10th Cir.1977) (class of 46 employees of defendant satisfies numerosity requirement where primary relief sought is injunctive) and Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir.1975) (class of 48 prisoners seeking injunctive relief upheld). Second, the district court concluded that the “individual interest in controlling this litigation is minimal.” We agree with the district court that the numerosity requirement is satisfied in this case. In most cases where a plaintiff seeks injunctive relief against discriminatory practices by a defendant, the defendant will not be prejudiced if the plaintiff proceeds on a class action basis, as opposed to an individual basis, because the requested relief generally will benefit not only the claimant but all other persons subject to the practice under attack. 7 C. Wright & A. Miller, Federal Practice & Procedure § 1771, at 663-64 (1972). A judicial determination that a particular practice infringes upon protected rights and is therefore invalid will prevent its application by the defendant against many persons not before the court. Thus rigorous application of the numerosity requirement would not, as the district court noted, appear to be warranted. Also supporting this view is the fact that, as this case demonstrates, and as the district court observed, generally speaking, individual interest in pursuing litigation where the relief sought is primarily injunc-tive will be minimal. Id. Weiss demonstrated an obvious commitment vigorously to pursue the antitrust claim against the defendants. This commitment apparently did not escape the other D.O.s in the York MSA because no D.O. sought to intervene in the lawsuit or otherwise challenge Weiss’ leadership. Given our conclusion that the interests of the plaintiff class and the interests of the defendants will not be affected significantly by permitting Weiss to maintain this class action, we agree with the district court that a strict application of the numerosity requirement is not required here. Consequently, the district court did not abuse its discretion in concluding that the class of 92 D.O.s who work in the York MSA was sufficiently numerous to satisfy the requirements of Rule 23(a)(1). Of course, 92 class members might be enough in any event. (ii) Commonality Rule 23(a)(2) requires that there be questions of law or fact common to the class, although not all questions of law or fact raised need be in common. 7 C. Wright & A. Miller, Federal Practice & Procedure § 1763, at 603 (1972). The district court concluded that all class members were in a “substantially identical factual situation” and that the “questions of law raised by the plaintiff are applicable to each [class] member.” While we concede that some questions have been raised with respect to Dr. Weiss that might not be raised with respect to other members of the class, i.e. the allegations of lack of professional competence and conduct, common questions by far predominate especially with respect to the claim for injunctive relief, hence we conclude that the second requirement of Rule 23(a) has been met. This case will have to be remanded for trial of the competence and conduct defenses of such damage claims as Weiss and members of the class may assert. There is no inconsistency between class certification, particularly (b)(2) class certification, and the individual trial of damage claims which may present disparate issues. See Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir.1979). (iii) Typicality Defendants also argue that Weiss’ claims are not typical of the class. Rule 23(a)(3) requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class. The meaning of this requirement has historically been somewhat elusive. However, Weiss’ claims are plainly “typical” of the claims of the class whichever of the several approaches to the meaning of this term is used. The essential legal claim of all the plaintiffs, including Weiss, is that they are osteopathic physicians who can not obtain staff privileges at York because of a scheme by the M.D.s who control admissions at York to exclude them in violation of the antitrust laws. In addition the factual matrix that suggests this legal claim is the same for all the plaintiffs, again including Weiss. Defendants argue that General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) requires the conclusion that plaintiffs’ claims are atypical of the class’ claims: There are obviously two disparate groups subsumed in the class certified below: the osteopathic physicians who have not applied for staff privileges, allegedly dissuaded by fear, and the one applicant who applied and was rejected. ... [under Falcon ], Weiss could not be the class representative for the former group, and the two groups could not be encompassed in the same class. Defendants’ Brief at 26. This argument fails for two reasons. First, the Supreme Court in Falcon did not hold that the plaintiff could not represent the class; the Court merely held that the requirements of Rule 23(a) are not waivable in a Title VII case, and therefore that the plaintiff had to make the required presentation demonstrating that he satisfied the requirements of that rule. Weiss made the required presentation in this case and the district court found that the class was sufficiently numerous, that there was a commonality of issues, that the plaintiff’s claims were typical of the class’ claims, and that the plaintiff would adequately represent the class’ interests. Therefore, Falcon is inapposite. Second, defendant’s dichotomy between those who have applied and been rejected and those who are afraid to apply is not enough to carry the day, for, in essence, there is only one class advanced in this case — the osteopathic physicians in the York MSA who are the intended victims of York’s discriminatory admissions policy. Thus, as we have stated, the typicality requirement is met in this case. (iv) Adequacy of Representation The fourth and final part of the Rule 23(a) test requires that the plaintiff must adequately represent the interests of the class. Adequate representation depends on two factors: (a) the plaintiff’s attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class. Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 247 (3d Cir.), cert, denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). The quality and experience of plaintiff’s counsel is conceded by the defendants. In addition, Weiss testified before the district court that he was willing and able (both financially and otherwise) to pursue this litigation, and that he could perceive no conflict of interest between himself and any class member. The district court concluded that Weiss would fairly and adequately represent the class. We agree and therefore conclude that the requirements of subsection (a)(4) have also been satisfied. b. Rule 23(b)(2) The defendants also challenge the propriety of the district court’s certification of a (b)(2) plaintiff class; however, their objections are based on the failure of class members to have made a demand for staff privileges at York and on their contention that the requirements of Rule 23(a) have not been met. Since we have already decided both these contentions adversely to the defendants, we simply note that the class in this case is a classic (b)(2) class in that the defendants have “acted or refused to act on grounds generally applicable to the class” and the primary relief sought is an injunction against future discrimination. When a suit seeks to define the relationship between the defendant(s) and the world at large, as in this case, (b)(2) certification is appropriate. Thus we affirm the district court’s class certification decision. D. The Vicinage Requirement Of 28 U.S.C. § 1393(a) The final preliminary issue is the defendants’ contention that the district court erred in holding the trial in this case at the Lewisburg/Williamsport courthouse rather than the Harrisburg courthouse. The defendants contend that they had a statutory right pursuant to 28 U.S.C. § 1393(a) to be tried in Harrisburg. Section 1393(a) provides: (a) Except as otherwise provided, any civil action, not of a local nature, against a single defendant in a district containing more than one division must be brought in the division where he resides. Unlike numerous districts, the Middle District of Pennsylvania has not been subdivided by Congress into divisions. The Middle District has, however, been divided into a number of subdivisions by local court rule. All the defendants in this case reside in the Harrisburg subdivision, and they contend that section 1393(a) gives them the right to be tried there, and that the district court erred when it held the trial of this action in the Lewisburg/Williamsport division over their objection. Section 1393(a) does provide that a defendant must be tried in the division of the d