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May 28, 2004.

HOWARD J. KIRSCHNER, D.D.S, Plaintiff; -against- IRA KLEMONS, Defendant

The opinion of the court was delivered by: RICHARD CASEY, District Judge


Howard Kirschner, D.D.S., brings this action against Ira Klemons, D.D.S. ("Defendant"), for (1) violation of his constitutional rights under 42 U.S.C. § 1983; (2) malicious prosecution; (3) tortious interference with prospective economic advantage; and (4) prima facie tort. Klemons now moves for summary judgment on all claims; Kirschner cross moves for partial summary judgment.


  Kirschner originally brought this action against Klemons and several other defendants, including other dentists and state officials, seeking injunctive and declaratory relief and money damages based on proceedings against Kirschner for professional misconduct in the field of dentistry. Klemons is the only remaining defendant; all other defendants have been dismissed.*fn1

  Kirschner is a licensed dentist in the State of New York who performs Independent Medical Examinations ("IMEs") for insurance companies. An IME is a medical examination of a policy holder who has filed a claim with his or her insurance company in order to verify the policy holder's medical condition. The insurance companies that employ Kirschner use his IME reports in determining whether to satisfy or deny a claim for coverage.

  The dispute in this case involves conflicting views with respect to the treatment of a disorder called temporomandibular joint disorder ("TMJ") and IMEs performed by Kirschner on policy holders who claimed to suffer from this disorder. Kirschner believes that diagnoses of TMJ are fraudulent unless confirmed by "objective" tests and that, absent such tests, patients diagnosed as suffering from TMJ do not actually have any dental disorder. Kirschner also believes that a dental appliance called a MORA, commonly prescribed to treat this disorder, is ineffective as a treatment and may even be harmful. Kirschner has performed numerous IMEs on automobile accident victims who claimed to suffer from TMJ that have led to a denial of benefits by the insurer.

  Klemons is also a dentist licensed to practice dentistry in the state of New York. He is engaged in a private practice of dentistry that specializes in disorders and diseases of the temporomandibular joint. (Answer to First Am. Verified Compl. ("Ans.") ¶ 8.) In or about January 1993, Klemons delivered a speech to a medical professional group in Naples, Florida entitled "Dealing with Independent Medical Examiners," which focused on the routine denial of benefits for the treatment of TMJ based on IMEs. (See Jannuzzo Aff., Ex. 63.) He further suggested ways in which dentists could respond to such denials. (See Id.) At the conclusion of the speech, Klemons suggested to dentists in the audience that they file complaints against independent medical examiners who routinely perform IMEs on TMJ patients that lead to the denial of benefits. (See Id.) Among those in attendance at this conference was Dr. Jay Goldman, another TMJ dentist. (See Goldman Dep. at 40-41.)

  In February 1993, Goldman and three of his patients filed complaints against Kirschner with the New York State Office of Professional Discipline ("OPD") based on IMEs he had performed on those patients. The proceedings that followed are the basis for the underlying claims in this case.

  In New York, complaints of professional misconduct by dentists are dealt with by the State Education Department ("Department"), in conjunction with the Board of Regents of the University of the State of New York ("Regents"). Following the filing of a complaint of misconduct against a dentist, the Department investigates the complaint and then refers it to a professional conduct officer designated by the Regents. If the professional conduct officer finds that there is substantial evidence of misconduct, the Department prepares charges of the alleged misconduct. The charge is then tried before a hearing panel composed of members of the state dentistry board and a public representative who may or may not be a member of the board. The Department also designates an administrative officer who does not vote but who rules on motions, procedures, and legal objections, and drafts the panel's final written report, which contains findings of fact, a determination of guilt or non-guilt on each charge, and a penalty recommendation. The dentist and his counsel may appear before the panel, and the dentist may make a written response prior to the hearing. Kirschner, 225 F.3d at 231-32.

  After the hearing panel issues its report, the panel's findings are reviewed by a Regents review committee, which is appointed by the Board of Regents and includes at least one Regent. The dentist may also appear and be represented by counsel before the Regents review committee. The review committee submits its report, in conjunction with the hearing panel's report and a transcript of the hearing, to the Regents, who determine whether the dentist is guilty or not guilty of each charge and determine any penalty to be imposed. The dentist may seek further review of the Regents' decision by bringing an Article 78 proceeding in the Appellate Division, Third Department. Id. at 232.

  Charges "practicing the profession [of] dentistry fraudulently" were brought against Kirschner for (1) making allegedly false statements in IME reports to Allstate Insurance Company ("Allstate"); (2) "committing unprofessional conduct" for failing to use proper infection prevention techniques; (3) "practicing the profession of dentistry with gross incompetence" for making statements in IME reports to Allstate that "were unscientific and far removed from currently accepted information"; and (4) "practicing the profession of dentistry with incompetence on more than one occasion" for making unscientific statements in IME reports. Id.

  After obtaining the concurrence of two members of the New York State Board of Dentistry, Claudia Stern, an OPD prosecutor, initiated proceedings against Kirschner. (See Stern Dep. at 140.) OPD also obtained the opinion of Dr. Steven Syrop, a dental expert outside the State Board of Dentistry, who concluded that Kirschner had committed violations. (See Gottlieb Dep. at 79.) Sometime between February 1996 and November 1996, on the recommendation of Goldman, Stern contacted Klemons about serving as an expert witness along with Goldman at the OPD hearing. (Goldman Dep. at 40-41.) Dr. Steven Ashman was requested by Kirschner's attorney to appear on behalf of Kirschner. Approximately one week prior to his scheduled testimony, Ashman received a call from Dr. Anthony Schwartz, apparently at the behest of Klemons, about Ashman's plans to testify on behalf of Kirschner. (See Ashman Dep. at 12.) Ashman informed Schwartz that it was not appropriate for them to discuss his testimony and terminated the call. (See id. at 14.) Ashman testified at his deposition that he did not know what the purpose of the call was. (See id. at 29.)

  During the period of approximately February 5, 1996 through April 14, 1999, Klemons sent approximately twenty-seven letters to attorneys in New Jersey who were representing his patients in New Jersey arbitrations, claims, or actions for a denial of claims based on reports written by Kirschner denying the existence of TMJ symptoms for which they had been treated by Klemons. (See Klemons Aff. ¶ 3.) In addition to addressing issues relevant to Klemons' patients' treatment, these letters also referred to the OPD charges pending against Kirschner. (See Plousadis Aff. Ex. J.) Stern had no knowledge of the issuance of these letters. (See Stern Dep. 62-64.)

  Between October 25, 1996 and April 9, 1998, a hearing was held before a panel of the New York State Board of Dentistry. (Complaint ¶¶ 72, 87; Plousadis Aff. ¶¶ 8, 9.) The hearing panel recommended finding Kirschner guilty of a majority of the charges. Kirschner, 225 F.3d at 232. For the charge of committing unprofessional conduct by failing to use scientifically accepted infection prevention techniques, the panel recommended a fine of $500. Id. For the charges of practicing dentistry fraudulently, practicing dentistry with gross incompetence, and practicing dentistry with incompetence on more than one occasion, the panel ...

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