By E. Darius Sturmer, J.D.
Oklahoma’s dental regulatory scheme was finalized decades ago, court noted, and more recent efforts to retain or ensure the exclusion of dental anesthesiology from approved specialties list were not new and independent acts signifying a continuing conspiracy.
The Oklahoma Board of Dentistry, its executive director, and several other members or officers face no liability under the Sherman Act for allegedly restraining trade by conspiring to prohibit two dentist anesthesiologists from obtaining specialty licenses and from advertising themselves to the public as specialists. The claims were barred by the statute of limitations because the relevant regulatory scheme was put into place decades ago and the defendants’ involvement with subsequent attempts to amend the statute did not restart the limitations period for antitrust purposes. Therefore, the defendants’ motion for summary judgment on the restraint of trade claim was granted (Seay v. Oklahoma Board of Dentistry,April 12, 2021, DeGiusti, T.).
Background. The plaintiffs are two individuals licensed as general dentists in Oklahoma. However, both hold advanced postdoctoral degrees in anesthesiology and focus their practices exclusively on providing anesthesia services. They seek to advertise as specialists, but say they are barred from doing so by a statute within the Oklahoma Dental Act concerning specialty licenses. This statute gives the state’s board of dentistry the power to issue dental specialty licenses authorizing dentists to advertise and practice as specialists, and it explicitly bans dentists from advertising or practicing as specialists without such a license. The Dental Act allows for discipline including the suspension or revocation of dentists’ general licenses for dentists violating those prohibitions, and the plaintiffs both attest that they were prosecuted by the defendants pursuant to it.
The plaintiffs claimed that the defendants knew that the statute restrained their ability to compete and violated their constitutional rights but deliberately acted to keep the statute’s discriminatory provisions in place and thereby to deprive them of their rights. The defendants maintained that their refusal to include dental anesthesiology as an approved specialty area in the state was necessitated by the American Dental Association’s own non-recognition of the specialty. The ADA’s stance changed in 2019, but rather than adopt the change in Oklahoma, the defendants amended the statute to eliminate this dependence on ADA guidelines.
Statute of limitations. The court found that the defendants were entitled to summary judgment on the antitrust claim because of the Sherman Act’s four-year statute of limitations. The 1970 and 1998 versions of the Dental Act that established and re-established the regulatory scheme in the state—including the Specialty License section—were "final," with no further action required after passage, the court decided. Thus, subsequent successful or failed attempts to amend it did not constitute new and independent acts that reset the clock, in the court’s view. Thus, the plaintiffs failed to meet their burden as to the first prong of the continuing conspiracy doctrine through their allegations surrounding the statute’s 2015, 2018, and 2019 amendments.
Similar lawsuit. Several days prior, the court denied a request by the same plaintiffs to consolidate a lawsuit they filed against the same defendants in 2020 allegedly containing "identical questions of state and federal law" as the 2017 suit. While the defendants had not formally objected to the motion, they had pointed out that given the plaintiffs’ prior seeking of leave in the 2017 suit to supplement those claims with more recent allegations—a move that was rejected by the court—the latest motion was simply an attempt to achieve the same desired end indirectly. The court found merit to this argument, noting that the plaintiffs’ motion to supplement in the 2017 suit came after the court had already ruled on a summary judgment motion regarding all but the Sherman Act claim in that case and that the plaintiffs filed the instant lawsuit "the very next day" after the court had denied them leave. Thus, the court concluded, the plaintiffs’ filings appeared "to be an attempt to avoid the Court’s previous ruling." Allowing them to join these latest claims with the earlier suit would duplicate efforts and expenses, and it would delay a final ruling, the court also noted.
The case is No. 5:17-cv-00682-D.
Attorneys: Charles W. Wright (Haupt Brooks Vandruff PLLC) for Joseph P. Seay and Lois Jacobs. Kenneth T. McConkey (Derryberry & Naifeh, LLP) for Oklahoma Board of Dentistry.
Companies: Oklahoma Board of Dentistry
MainStory: TopStory Antitrust GCNNews OklahomaNews
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