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Potts v. Stiger

September 13, 2010

MICHAEL L. POTTS, D.D.S., AND THE AMERICAN ACADEMY OF IMPLANT DENTISTRY, PLAINTIFFS,
v.
BRIAN STIGER, IN HIS OFFICIAL CAPACITY AS DIRECTOR, CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS, ET AL., DEFENDANTS.



PRETRIAL CONFERENCE ORDER

Pursuant to court order, a Pretrial Conference was held on September 9, 2010 before Judge John Mendez. Frank R. Recker, Kenneth C. Mennemeier and Sarah Fischer appeared as counsel for plaintiffs; Jeffrey M. Phillips appeared as counsel for defendants. After hearing, the court makes the following findings and orders:

I. JURISDICTION/VENUE

Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343, and has previously been found to be proper by order of this court, as has venue. Those orders are confirmed.

II. JURY/NON-JURY

Both parties have requested a court trial. The Court grants 3 this request.

III. UNDISPUTED FACTS

1. Plaintiff Michael L. Potts, D.D.S. ("Potts") has been a California-licensed dentist in good standing since 1975 practicing general dentistry.

2. Potts performs the following dental work on patients: endodontics, cosmetic dentistry, crowns, bridges, implants, oral surgery, periodontal surgery, and full mouth restorations.

3. Potts is a credentialed member of Plaintiff American Academy of Implant Dentistry ("AAID").

4. Potts holds the credentials of "Fellow" awarded by the AAID, and is a board certified "Diplomate" awarded by the American Board of Oral Implantology/Implant Dentistry ("ABOI/ID").

5. Potts became an "Associate Fellow" of AAID in approximately 1979-80.

6. In 1985, Potts earned his "Fellow" credential from AAID.

7. Potts is a past President of the Western District of the AAID.

8. Potts is a member of the American Dental Association, the California Dental Association and the Ventura County Dental Society.

9. Potts was awarded a Certificate of Recognition and the Medical Professional Award for 2003 by the California State Assembly.

10. Potts holds a "Fellow" credential from the International Congress of Oral Implantology (I.C.O.I.).

11. Under California Business and Professions Code Section 651(h)(5)(A), Potts is not permitted to advertise his AAID and/or ABOI/ID credentials to the public.

12. Potts has advertised his AAID and ABOI/ID credentials consistent with the Court's decision in Bingham v. Hamilton, 100 F.Supp. 2d 1233 (E.D. Cal. 2000) ("Bingham II"), and seeks to continue to do so.

13. AAID is a national dental organization established in 1951 and is the oldest dental implant organization in the United States.

14. AAID Headquarters Office is located in the American Dental Association ("ADA") Building located at 211 E. Chicago Avenue in Chicago, Illinois.

15. J. Vincent Shuck ("Shuck") is the former Executive Director of AAID; the current Executive Director is Sharon Bennett ("Bennett").

16. Shuck served as Executive Director of AAID from 1992 to 2008, prior to which time he was employed by the ADA for 19 years.

17. In their capacity as Executive Director, Shuck and now Bennett are responsible for overseeing the implementation of all policies adopted by the Board of Trustees of AAID and are further responsible for maintaining accurate records of all AAID business, including the granting of credentials in implant dentistry.

18. AAID also sponsors and supports the ABOI/ID, its national certifying Board.

19. ABOI/ID was created in 1989 by AAID and provides sponsorship, staff space, and file space to ABOI/ID.

20. In 1993, the Council on Dental Education recognized AAID as the sponsoring organization for the non-specialty area of implant dentistry. The ADA has not granted this recognition to any other dental implant organization.

21. Implant dentistry consists of the placing of devices for attaching artificial replacement teeth to the same bones to which natural teeth are anchored.

22. Implants may be inserted into the bone, functioning like 9 an artificial tooth root, or may be placed directly against the bone to support a dental prosthesis.

23. In implant dentistry there are basically two components: the first is the surgical component-the anchoring of the implant or artificial root to the bone; and once the implant site has healed, the second step is the placement of the prosthodontic component, which is the artificial tooth structure.

24. Implant dentistry is a dental procedure that may be performed in California by a general dentist or specialist.

25. A primary purpose of AAID is enhancement of dental professionals' knowledge, skill and expertise in implant dentistry. Accordingly, AAID encourages its members' attainment of "credentialed" status from AAID (the credential of Associate Fellow and/or Fellow) and "Diplomate" status from ABOI/ID.

26. AAID grants the credentials of "Fellow" and "Associate Fellow" to member dentists who have fulfilled certain educational, experiential and examination requirements.

27. AAID awards "Fellow" credentials based on the educational requirement of completing at least 100 hours of continuing education in implant dentistry in addition to the 300 hours required for Associate Fellow membership. Each credential has its own predicate requirements for qualification.

28. ABOI/ID issues a Diplomate certificate (also referred to as "Board Certification") in the area of implant dentistry, which is not an ADA recognized specialty area of dental practice.

29. AAID and ABOI/ID maintain the following websites: www.aaid.com and www.aboi.org. These websites list the credentialing requirements.

30. No dentist can obtain a credential from AAID or ABOI/ID by simply paying a fee.

31. The continuing education courses which apply toward AAID and ABOI/ID credentials can be taken over an unlimited period of time.

32. Neither AAID nor ABOI/ID retain any information regarding the continuing education courses listed on the credential applications after one year.

33. Currently, there are nine areas of dental practice recognized by the ADA as specialty areas of practice: Oral and Maxillofacial Surgery, Orthodontics, Oral Pathology, Public Health Dentistry, Oral and Maxillofacial Radiology, Pediatric Dentistry, Periodontology, Prosthodontics, and Endodontics.

34. These accredited specialty educational programs are formal post-doctoral programs that are of at least two years in length. All of these specialty educational programs are full-time programs. These full-time programs may allow some students to enroll on a part-time basis if certain requirements are met.

35. There are multiple areas of dentistry that are not recognized as specialty areas of dental practice by the ADA, and there are multiple national dental organizations that issue credentials in non-specialty areas of dentistry. Examples include: implant dentistry, cosmetic dentistry, forensic dentistry, general dentistry, orofacial pain, oral medicine, and laser dentistry.

36. The determination of whether an area of dental practice is deemed a specialty area of dentistry is made by the ADA House of Delegates, a governing political body largely comprised of 8 practicing U.S. dentists.

37. CoDA, under the auspices of the ADA, is the entity that sets the accreditation standards for dental schools, and advanced specialty education programs for dentistry in the United States.

38. CoDA's accreditation review process is based on national standards that assess the quality of dental education programs that include: outcome assessment, administration, curriculum, faculty, financial support and physical facilities.

39. CoDA meets in January and July of each year to review accreditation reports and award accreditation statuses to programs.

40. CoDA assigns review committees composed of experts in their respective fields, chaired by a Commissioner, who perform site visit reports, progress reports, and other reports to the various discipline review committees, prior to action on accreditation matters.

41. "When all other avenues of due process have been explored, any program has the right to appeal an adverse accreditation decision (i.e., denial or withdrawal of accreditation) to [CoDA's] Appeal Board."

42. The ADA's Dental Specialty Recognition Process allows applicant organizations the right to respond to the denial of specialty recognition, the right to specially appear before CDEL after denial of specialty recognition, and the right for the ADA House of Delegates to review CDEL's denial recommendation.

43. Several post-graduate programs in ADA-recognized specialties allow some students to enroll on a part-time basis.

44. Potts is not a Diplomate of any ADA-recognized specialty 7 board, and has not completed any CoDA-accredited or California Dental Board-recognized advanced educational dental program.

45. Potts is not a "specialist" in implant dentistry.

46. Plaintiffs do not seek to advertise that they are "specialists" in implant dentistry or that their board certification is an ADA-recognized "specialty" area.

47. The California Dental Board issues only one dental license, and therefore all licensed California dentists possess the same "general" dental license.

48. Dentists may earn credentials from bona fide (as defined under Section 651(h)(5)(A)) National Dental Organizations in areas of dental practice that are not one of the nine ADA recognized "specialty" areas of dental practice.

49. A California dentist must complete 50 hours of continuing education in any area of dental practice every two years in order to ...


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