The telephone conversation from Ms. Holmquist to the ADA is similarly persuasive. The ADA interpreted its definition of periodontics without any demonstrated conception that the AAP would apply it concerning its limitation of practice requirement. ADA Principle 18, bounding the scope of dental practice to the dentist's announced specialty, and the AAP limitation of practice requirement present different policy concerns to each organization. The record is barren of evidence supporting an agreement of any sort between the ADA and the AAP in order to restrict Dr. Kreuzer's membership.
Moreover, none of the communications at the time of Dr. Kreuzer's application mention his application or his name, nor do they even impute to the ADA some conspiratorial activity in answering the questions of the AAP. The exchanges of information noted by the plaintiff amount to no more than permissible communications between the ADA and the AAP.
The plaintiff has therefore not established the requisite proof of an agreement in order to join ADA as a codefendant in this action. At most, the plaintiff has demonstrated that the AAP relies on ADA interpretations of its Principles of Ethics because the AAP has incorporated the ADA's Principles. After unusually extensive and protracted discovery, there is documentation of examples of communication between the ADA and the AAP, over a long period of time and also at the time of the Kreuzer application. The plaintiff has shown further that the AAP deferred to the ADA's definition of periodontology as not including restorative dentistry. Nonetheless, the plaintiff has not presented proof of an agreement between the ADA and the AAP, sufficient to survive summary judgment for defendant ADA. The two organizations exist independent of one another, not in the context of a larger organization and its subsidiary. That the AAP has chosen for convenience to incorporate the ADA's ethical principles does not suggest an improper combination, that the two groups communicate over common interests implies no illegal conspiracy. There is, simply put, no evidence that the ADA knew of any purpose to restrain trade, that it shared any purpose to restrain trade, or that it intended to restrain trade. It therefore appears that the motion of the ADA for summary judgment must be granted and this claim against it dismissed.
II. THE AMERICAN ACADEMY OF PERIODONTOLOGY'S MOTION TO COMPEL
Earlier in this litigation, the plaintiff indicated in response to a discovery request that he would produce for defendant's copying and inspection his accounting and patient records between January 1974 and the present. After the plaintiff subpoenaed the patient treatment records of two non-party dentists, who refused to provide the materials claiming that they were privileged, he reconsidered his earlier decision and chose to withhold the documents asserting that his patients' rights would be breached. The Magistrate, in adjudicating the positions of the plaintiff and the non-party dentists, held that the subpoena would be quashed because it was "unreasonable, oppressive and irrelevant and would invade the privacy of innocent non-parties ... and their patients." After AAP filed a formal request for production, the plaintiff objected on the grounds that his records were privileged, that they were only tangentially relevant to the issues underlying this action, that his patients' privacy would be invaded, that his own privacy would be infringed, and that production would be unduly burdensome. Now pending is the defendant AAP's motion to compel production of these materials.
The plaintiff instituted this action claiming that the AAP's limitation of practice requirement damaged him economically. Without some suggestion of injury, it is clear plaintiff would have no standing to maintain this action. Although the Supreme Court recognizes that "(t)he vagaries of the marketplace usually deny ... sure knowledge of what plaintiff's situation would have been in the absence of defendant's antitrust violation," J. Truett Payne Co., Inc. v. Chrysler Motors Corp., 451 U.S. 557, 101 S. Ct. 1923, 1930, 68 L. Ed. 2d 442 (1981), a long line of precedent establishes that the plaintiff must demonstrate at least the fact of injury and a basis for a reasonable estimate of damages. See, e.g., Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 263-266, 66 S. Ct. 574, 579-80, 90 L. Ed. 652 (1946); Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 562, 51 S. Ct. 248, 250, 75 L. Ed.544 (1931); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 47 S. Ct. 400, 71 L. Ed. 684 (1927). See also J. Truett Payne Co., Inc., supra, -- - U.S. at -- n.5, 101 S. Ct. at 1930 n.5.
Unquestionably, the plaintiff has placed in issue the nature of his dental practice. He claims that the AAP's membership policy causes him to lose patients who would have been referred to him were he an active member in the AAP and so indicated in the directory. He seeks compensation for $ 500,000 of lost income, which he argues is his "best estimate" of losses, but other than his own estimate, there is nothing in the record to indicate the fact of injury or economic damage. Some production is manifestly warranted.
Plaintiff also contends that the records are protected from disclosure by a "dentist-patient" privilege, embodied in D.C. Code § 14-307(a), which provides in relevant part:
In the Federal courts in the District of Columbia ... a physician or surgeon may not be permitted, without the consent of the person afflicted ... to disclose any information, confidential in its nature, that he has acquired in attending a patient in a professional capacity....