08-3187 Volume Appendix15.pdf - Medical Supply Chain

lack of health insurance and the consequential loss of access to adequate healthcare. This data does not include
the under insured Americans who because of healthcare’s inflated or non efficient costs have had their health
insurance reduced to catastrophic coverage without funding for regular preventative care. The Medical Supply
counsel’s own brother in law is representative of an additional cohort of victims that may be many times
18,000. A noted Wichita sculptor, Bart Ewonus died in these circumstances in December 2002 at age 43 after
this court denied Medical Supply’s relief against GE’s coconspirators as a result of failing to go to the
emergency room when he thought he could recover on his own from the flu. When he did go to the doctor’s
office during regular hours, it was found he had severe pneumonia. Although he was immediately hospitalized,
it was two late. The public has an expectation interest that the federal antitrust laws will be enforced including
those that shift the burden of discovery onto the defendants.
3. There is no likelihood of success on the merits of their motion for dismissal, (which must be now converted
to a motion for summary judgment necessitating discovery). They have by mistake or deception, failed to
address the plaintiff’s charge that the GE Defendants have acted in combination and in conspiracy with
Neoforma, Inc., a company that is not a subsidiary of GE. The goal of that conspiracy was to deprive Medical
Supply of the capital to enter the healthcare market, an integrel part of the antitrust violation antitrust injury
recognized in the Tenth Circuit case Reazin v. Blue Cross And Blue Shield of Kansas, 663 F. Supp. 1360 at
1414 (D. Kan. 1987).
4. Medical Supply and the American healthcare market has been injured, though under a per se to deal, no
injury need be shown. The defendants’ heightened standard of pleading for contracts is incorrect for Missouri
and Kansas where, even under fact based pleading, both states apply liberal rules to what the court must infer or
examine in the entire contents of a pleading before dismissing a claim prior to discovery. The defendants’
theory, that a condition precedent is inadequately pled is itself wrong on its face under Missouri contract law.
The recognition of a condition precedent imposes an enforceable contract with duties for both parties.
08-3187 Medical Supply Chain vs. Neoforma Volume XV 5914