Detroit-area nurses filed an antitrust suit against Detroit Medical Center (“DMC”), alleging that “softened competition” resulted from DMC sharing compensation information with other hospitals.  The plaintiffs also alleged a separate theory of liability for wage-fixing between DMC and several other prior-settling defendants, but the District Court entered summary judgment in favor of DMC on this claim.  The plaintiff's damages expert provided a damages estimation for the plaintiff’s claims, but did not provide separate calculations for each theory of liability.  The plaintiffs moved for class certification of their claims.

DMC argued that under the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the plaintiffs had not established the link between their damages model and their remaining theory of liability due to their expert’s failure to provide separate damages calculations for each theory of liability.  The District Court certified the class, concluding that the plaintiff’s expert’s damages methodology was equally representative of each theory of liability, such that the Supreme Court’s ruling in Comcast was not implicated.  DMC filed a petition for interlocutory appeal of the class certification order to the Sixth Circuit under Fed. R. Civ. P 23(f).

The Sixth Circuit, noting that the first factor in evaluating a petition for interlocutory appeal under Rule 23(f) was whether the petition “is likely to succeed on appeal,” denied the petition, concluding that the District Court correctly determined that Comcast was not implicated.  In re Vhs of Mich., No. 14-0107, 2015 U.S. App. LEXIS 1816 (6th Cir. Feb. 3, 2015).  The Sixth Circuit held that Comcast “applies where multiple theory of liability exist, those theory create separable anticompetitive effects, and the combined effects can result in aggregated damages.”  The Sixth Circuit affirmed the District Court’s conclusion that because the theories of liability were mutually exclusive, the damages calculation could be applied to either theory of anticompetitive conduct and the calculation did not reflect “aggregated” damages from separable anticompetitive activities. 

As such, the Sixth Circuit denied DMC’s petition, concluding that DMC did not have a likelihood of success on appeal, and also that DMC had failed to show that the remaining Rule 23(f) factors weighed in favor of permitting interlocutory appeal.  A copy of the Sixth Circuit’s decision is available here.