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United States District Court, S.D. New York

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 unanimously recommended a $10,000 fine, a two year suspension of Kirschner's license, with the last eighteen months stayed, and a two-year period of probation. Id.

  After the hearing panel had made its recommendations, but before the Regents were scheduled to make their decision, Kirschner filed suit in this Court against Ira Klemons, D.D.S.; Jay Goldman, D.D.S.; Louis Catrone, Director of the Office of Professional Discipline; Richard P. Mills, Commissioner of the New York State Education Department; and Carl T. Hayden, Chancellor of the Board of Regents of the University of the State of New York. Kirschner sought money damages and declaratory and injunctive relief prohibiting the Regents from publishing their decision for a brief period of time, until Kirschner could bring his Article 78 proceeding and obtain a stay of enforcement. This Court denied Kirschner's motion for a preliminary injunction, on the grounds that the Younger doctrine required abstention, and dismissed the action.

  The review committee subsequently recommended to the Regents that the hearing panel's findings be upheld on all charges except the fraud charge and that the fines be upheld, but that the suspension be stayed for a two-year probationary period. The Regents adopted the more severe penalty recommendation of the hearing committee, but accepted the review committee's recommendation to reject the fraud charge.

  Kirschner then filed his Article 78 proceeding, seeking review of the Regents' decision. The Appellate Division found that substantial evidence did not support the Regents' findings that Kirschner had practiced dentistry with gross incompetence, or had practiced dentistry with incompetence on more than one occasion, and vacated those findings and the corresponding penalties. The Appellate Division affirmed the Regents' finding that Kirschner had failed to follow proper infection control procedures in that he did not wear gloves while performing an IME on one patient and upheld the $500 fine for that charge.

  Kirschner also appealed the dismissal of his case by this Court to the Second Circuit. That court upheld the decision based on the Younger doctrine, but remanded the case for a decision on the claims asserted against Klemons. In his First Amended Verified Complaint, Kirschner asserts four claims against Klemons: (1) violation of his constitutional rights under of 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.


  A. Section 1983 Claim

  Kirschner claims that Klemons acted under color of state law with OPD prosecuting attorney Stern in violation of 42 U.S.C. § 1983 to deprive him of his First Amendment rights to express his opinions about temporomandibular joint injuries and TMJ. (See Compl. ¶ 99-100.) Klemons argues that this claim should be dismissed on the grounds that, inter alia, Kirschner has failed to present a prima facie case of a conspiracy under Section 1983.

  In order to establish a claim under Section 1983, Kirschner must demonstrate that he has been deprived of a constitutional or statutory right as a result of the actions, conduct, or omissions of government officials or of a private individual acting "under color of law." 42 U.S.C. § 1983. The requisite elements of a Section 1983 claim are that the defendant, acting under color of state law, has deprived the plaintiff of a right secured by the Constitution or the laws of the United States.

  In order to have acted under color of state law or authority for the purposes of Section 1983, the defendant must "have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. 42, 49 (1988). Where, as here, the defendant is a private citizen, the plaintiff must show that he either jointly participated or conspired with a state actor to violate plaintiff's federal rights. Adickes v. Kress & Co., 398 U.S. 144, 150 (1970); Doe v. Smith, 704 F. Supp. 1177, 1188 (S.D.N.Y. 1988).

  Here, Kirschner argues that Klemons and Stern conspired to deprive him of his First Amendment rights to free expression in violation of Section 1983. After a careful review of the evidence, the Court concludes that Kirschner cannot survive summary judgment on this claim.

  Merely serving as a complaining witness does not constitute joint participation with a state official; however, where there is some "concerted effort or plan" between the witness and the prosecutor to violate an individual's constitutional rights, the witness may be held liable under Section 1983. See D'Agostino v. New York State Liquor Auth., 913 F. Supp. 757, 770 (W.D.N.Y. 1996). In support of his argument that such a concerted plan existed between Klemons and Stern, Kirschner relies on the fact that Stern failed to sanction Klemons for breaching the confidentiality of the proceedings by communicating with Dr. Schwartz and sending letters to New Jersey attorneys. Kirschner also points to evidence showing that Stern may have had an ulterior motive for Kirschner's prosecution, in light of the fact that he had filed a complaint with the New York State Commission of Investigation for professional misconduct against Stern in February 1995 for her actions in relation to the prosecution of a TMJ dentist. (Plf' s Counter-Statement Pursuant to Local Rule 56.1 at 1.) Kirschner had been asked to serve as an expert witness in the case, but was later informed by Stern that the charges against the dentist were dropped, under what he alleges were suspicious circumstances. (Id. at 1-2.)

  The evidence presented by Kirschner does not support a theory that Klemons and Stern had a concerted plan to deprive Kirschner of his First Amendment rights. Klemons may have had economic motives to silence Kirschner's opinions on TMJ; however, there is no evidence whatsoever that Stern had any interest in Kirschner's ability to voice his opinions on this issue. While the fact that Stern had been the subject of a complaint made by Kirschner may provide evidence of a wrongful prosecution, it in no way suggests that Stern was prosecuting Kirschner in order to deprive him of his right to speak out on the issue of TMJ. Indeed, the fact that Stern may have had ulterior motives for prosecuting Kirschner weighs against a finding that Stern and Klemons were acting with a unified purpose.

  Because Kirschner has produced insufficient evidence of concerted action between Stern and Klemons, he cannot satisfy the state action element of his Section 1983 claim. Accordingly, Klemons' motion for summary judgment on this claim is granted.

  B. Tortious Interference With Prospective Economic Advantage

  Kirschner also claims that Klemons's letters disclosing the proceedings against him constituted tortious interference with prospective economic advantage. Klemons moves for summary judgment dismissing the claim; Kirschner cross-moves for summary judgment.

  In order to establish a prima facie claim for tortious interference with prospective economic advantage under New York law, a plaintiff must show: (1) the existence of profitable business relations with a third party; (2) the defendant's interference with those business relations; (3) that the defendant acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means; and (4) damage or injury to the relationship. See G.K.A. Beverage Corp. v. Honickman, 55 F.3d 762, 767 (2d Cir. 1995); Solar Travel Corp. v. Nachtomi, 2001 WL 641151 at *10 (S.D.N.Y. June 8, 2001).

  Klemons asserts that the communications at issue are privileged under New Jersey law and that this privilege shields him from liability for tortious interference with prospective economic advantage. Klemons further argues that Kirschner cannot show: (1) Klemons interfered with Kirschner's business relationships; (2) Klemons acted with the sole purpose of harming Kirschner; or (3) Kirschner suffered damage or injury to a business relationship.

  1. Privilege Under New Jersey Law

  New Jersey law provides an absolute litigation privilege against claims for tortious interference with prospective economic advantage based on statements "made in the course of judicial, administrative, or legislative proceedings." In re: Quality Botanical Ingredients, Inc. v. Triarco Indus., 249 B.R. 619, 627-29 (D.N.J. 2000). The privilege applies to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation." Id at 627.*fn2 As the party asserting the privilege, Klemons has the burden of demonstrating its applicability.

  Although Klemons's communications may have related to pending arbitrations, it is unclear whether he qualifies as a "litigant or other participant[] authorized by law." Id In some instances, Klemons's communications represented a response to requests by a patient's attorney. See Klemons Aff. ¶ 3; Kalas Aff. ¶ 2. In other cases, however, it appears that Klemons's communications to attorneys were unsolicited. See Klemons Aff. ¶ 3. While the litigation privilege has been extended to investigators and witnesses, Klemons has produced no caselaw indicating that the privilege applies to a non-party who happens to be interested in the proceedings, but whose assistance has not been requested by an attorney involved in the litigation. The Court declines to extend the applicability of the privilege to such circumstances. Accordingly, Klemons's unsolicited communications are not shielded by the litigation privilege. With respect to Klemons's communications that were solicited by patients' attorneys, the Court finds that Klemons has met his burden of demonstrating the applicability of the privilege.

  Based on these findings, the Court will proceed to determine whether Kirschner has made out a prime facie case with respect to those communications not subject to the privilege.

  2. Elements of a Tortious Interference Claim

  Klemons argues that Kirschner has failed to produce evidence in support of each element of a tortious interference claim. Kirschner maintains that the evidence in support of this claim is sufficient to find Klemons liable as a matter of law.

  The Court agrees with Klemons that Kirschner's tortious interference claim must be dismissed because Kirschner has not alleged that he was "actually and wrongfully prevented from entering into or continuing in a specific business relationship." Solar Travel Corp. v. Nachtomi, 2001 WL 641151 (S.D.N.Y. June 8, 2001) (emphasis in original) (internal citations and quotation marks omitted). Here, Kirschner has merely alleged that his income from many of his clients dropped at about the time that Klemons sent out communications disclosing the proceedings against him. However, Kirschner has produced no evidence that the decrease was the result of Klemons's communications or even that those particular clients were made aware of the proceedings. Therefore, the Court finds that the tortious interference claim must be dismissed.

  C. Prima Facie Tort

  Under New York law, the elements of a cause of action for a prima facie tort are (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful. Strapex Corp. v. Metaverpa, N.V., 607 F. Supp. 1047 (S.D.N.Y. 1985). Kirschner's prima facie tort claim must fail because he has neither pled nor produced evidence of special damages.

  Kirschner has not named in his complaint or in his memorandum of law the specific clients who ceased doing business with him on account of Klemons's disclosures. Failure to plead special damages is detrimental to a claim of prima facie tort. See DiSanto v. Forsyth, 258 A.D.2d 497, 498, 684 N.Y.S.2d 628, 669 (App. Div. 1999) (upholding dismissal of claim for prima facie tort on summary judgment because plaintiff failed to plead special damages); Verizon Directories Corp. v. Yellow Book USA. Inc., 2004 WL 547935 (E.D.N.Y. Mar. 22, 2004) ("If the special damage was a loss of customers . . . the persons who ceased to be customers, or who refused to purchase, must be named . . . ") (alteration in original) (internal citations and quotation marks omitted). Thus, Kirschner's claim based on prima facie tort is dismissed.

  D. Malicious Prosecution

  In order to establish a claim for malicious prosecution, a plaintiff must demonstrate: (1) the commencement or continuation of a civil or criminal proceeding by the defendant against the plaintiff; (2) the termination of the proceeding in favor of the claimant or the accused, (3) the absence of probable cause for the proceeding; and (4) actual malice. Smith-Hunter v. Harvey, 95 N.Y.2d 191, 195, 712 N.Y.S.2d 438 (2000). Klemons argues that the malicious prosecution claim should be dismissed because Kirschner cannot show that Klemons initiated the proceeding, that the proceeding terminated in favor of Kirschner, or that there was a lack of probable cause for the proceeding. Klemons opposes these arguments, and further maintains that summary judgment should be granted in his favor on the issue of probable cause.

  The Court finds that Kirschner has presented evidence on each element of his malicious prosecution claim sufficient to survive summary judgment. Although Klemons did not serve as the prosecutor in the proceedings against Kirschner, he testified as an expert witness and there is evidence that he took an active role in the prosecution and that he may have been involved in the instigation of the proceedings. See Dudick v. Gulyas, 277 A.D.2d 686, 687 (App. Div. 2000) (summary judgment inappropriate where defendant authored letter that led to complaint against plaintiff, served as expert witness, and took an active role in the investigation). Kirschner had urged TMJ dentists to file complaints against dentists who rendered opinions adverse to TMJ claimants and had taken an active interest in Goldman's complaint against Kirschner prior to the OPD proceedings. (See Goldman Dep. at 675.) Additionally, there is evidence that Klemons may have attempted to intimidate Kirschner's witness, which would indicate that his role in the proceedings went beyond simply serving as an impartial witness. Although Klemons denied making a phone call to Schwartz regarding Ashman's testimony on behalf of Kirschner at the OPD proceedings, Magistrate Judge Eaton found that Klemons's denial was "clearly false" and may have been "willfully false". 2002 WL 88317 (S.D.N.Y. 2002)

  The Court also rejects Klemons's arguments that Kirschner cannot demonstrate that the proceeding terminated in favor of Kirschner or that there was a lack of probable cause for the proceedings. Klemons asserts that Kirschner cannot satisfy the requirement that the proceedings terminated in his favor because Kirschner was ultimately found guilty of the charge of violating standard dental practice by failing to use gloves when examining a patient. The fact that a related charge against Kirschner was upheld does not preclude a malicious prosecution claim based on the charges for which he was acquitted. See Janetka v. Dabe, 892 F.2d 187, 190 (2d Cir. 1989) ("[A]n acquittal satisfies the favorable termination requirement even when there has been a conviction on a related charge, or one arising from the same incident or event."). Accordingly, the Court rejects Klemons's argument that Kirschner's malicious prosecution claim fails on this basis.

  The Court denies both Klemons's and Kirschner's motions for summary judgment on the issue of probable cause. Under New York law, probable cause requires "the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of." Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994) (internal citations and quotation marks omitted). The Appellate Division of the Third Department held that "the principle components of the charges against [Kirschner] were impermissibly culled from his IME reports." In the Matter of Kirschner, 711 N.Y.S.2d 65, 71 (App. Div. 2000). Considering the evidence in the light most favorable to Kirschner, the Court concludes that the Appellate Division's finding, together with Klemons's economic motives for Kirschner's prosecution, is sufficient for the issue of probable cause to be determined by a jury. In light of conflicting versions of the prosecution against Kirschner, the Court likewise denies Kirschner's motion for judgment on this issue.


  For foregoing reasons, Klemons's motion for summary judgment is GRANTED IN PART and DENIED IN PART and Kirschner's motion for partial summary judgment is DENIED. Kirschner's claims for tortious interference with prospective economic advantage and prima facie tort, along with his claim based on Section 1983, are dismissed. The parties are directed to contact the Court to schedule a conference setting a trial date on the plaintiff's claim of malicious prosecution.

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