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June 10, 1981

Donald W. KREUZER, D.M.D., Plaintiff,
AMERICAN ACADEMY OF PERIODONTOLOGY and American Dental Association, Defendants

The opinion of the court was delivered by: GREEN


Pending before the Court are the motions of the defendants for summary judgment and the motion of one defendant to compel production of documents. Joined in this antitrust action as defendants are the American Dental Association (ADA) and the American Academy of Periodontology (AAP). The plaintiff, a dentist in the District of Columbia, graduated from the University of Pennsylvania in 1970 with the degree of Doctor of Medical Dentistry. He instituted this action against the two defendant organizations alleging that they have combined and conspired to restrain trade in violation of Section 1 of the Sherman Anti-Trust Act, 15 U.S.C. ยง 1 (1976). Plaintiff further asserts that within the AAP, individuals conspired and combined in order to restrain his practice of dentistry and cause him economic harm. Lastly, the plaintiff contends that the actions of both defendants violated common law principles and public policy. The defendants challenge all such assertions, and the AAP has sought to compel the plaintiff to produce all accounting records pertaining to his dental practice. Clarification then of the parties' polarization is appropriate.

 Formed in 1914, the AAP is a not for profit corporation whose stated object is "to advance the art and science of periodontology, and by its application, maintain and improve the health of the public." Affidavit of Marilyn C. Holmquist, Executive Secretary of the AAP at P 2. The Academy engages in no commercial activities and is recognized by the Internal Revenue Service as a tax exempt organization.

 The ADA is wholly unrelated to the AAP and is the national organization of dentists, regardless of specialty. The AAP is not a branch or subsidiary of the ADA and the ADA has no control whatsoever over the AAP's policies or practices.

 The gravamen of plaintiff's complaint concerns the denial by the AAP of his application for active membership in that organization. Active membership in the AAP is the highest degree of membership, for those who attain that status are entitled to vote in the affairs of the Academy, to hold office and be listed in its membership directory as active members. For a dentist to be elected to active membership status, he must certify to the Academy that he limits his specialized practice of dentistry exclusively to periodontology, which, generally speaking, is the practice of dentistry concerned with the gums and supporting tissue of the teeth and the diseases that afflict those areas. An associate member of the Academy need not limit his practice in this manner but has no voice in Academy affairs; this category of membership is open to any dentist who is interested in the field of periodontology. There is no question that Dr. Kreuzer is eligible for associate membership. The sole issue is the eligibility for active membership. Each year the AAP publishes a membership directory listing, among other things, the membership status of each member and his address. Each year the Academy also considers the application of individuals wishing to become active members.

 In 1975, plaintiff applied to the AAP to become an active member. His application was processed in a routine manner, as his name was circulated to all active members on a confidential list for their comments. Two dentists who recognized Dr. Kreuzer's name wrote the Membership Committee stating their knowledge that he did not limit his practice exclusively to periodontology. The Membership Committee rejected Dr. Kreuzer's application. Dr. Kreuzer asked that his application be reconsidered in 1976 and sought a hearing where he could state his case for membership. The hearing occurred in November of that year. Subsequently, a debate developed within the Academy concerning the parameters of a practice limited to periodontology, and as a result of plaintiff's application, a Task Force within the AAP was appointed to study the question. Before that group made its report, plaintiff instituted this action.

 The complaint alleges that the plaintiff has been economically injured by the rejection of his application and that the limitation of practice requirement violates the antitrust laws because it restricts the practice of periodontology unreasonably to those dentists who treat nothing but periodontitis and related diseases. Dr. Kreuzer contends that his practice, limited to periodontal prosthetics, qualifies him as a specialist in periodontology and entitled him to active membership in the AAP. Further, the plaintiff maintains that the AAP and the ADA acted in concert to formulate anti-competitive rules and to effectuate the denial of his individual application for active membership in the AAP.

 The defendant AAP contends that it has acted properly in every respect, and that the denial of Dr. Kreuzer's attempt to gain active membership was predicated on a nondiscriminatory application of its limitation of practice requirement, i. e., the rule that permits only those dentists who limit their practice to periodontology to become active members. The Academy defends this rule as non-commercial, as having no anti-competitive purpose or effect, and as reasonable. Moreover, the AAP claims that the plaintiff can muster no proof to show that he has been damaged economically or professionally by the application of the limitation of practice requirement. As to plaintiff's claims of arbitrary exclusion, the AAP maintains that no material factual issues remain that would tend to show it acted in a manner inconsistently and unfairly; and its affidavits are introduced to demonstrate that Dr. Kreuzer was afforded all the protections of due process offered in the by-laws of the Academy.

 The defendant ADA proffers that its relationship with the AAP is so tenuous as to make allegations of a conspiracy or combination frivolous. While conceding that its Principles of Ethics were adopted independently by the AAP and therefore form the basis for the AAP's ethical standards, and that it communicates from time to time with the AAP and other professional organizations of dental specialties concerning what ADA considers appropriate interpretations of ethical statements, which interpretations are not binding on AAP or the other organizations, but merely informative, the ADA vigorously refutes any knowledge of the application of Dr. Kreuzer. It also denies that it intended to restrain trade in any manner and that its actions had any anticompetitive effect. Relying on the voluminous discovery that has occurred in this case, *fn1" the ADA maintains that plaintiff has not shown, and cannot show, a single material factual question arising out of ADA's relationship with AAP that would tend to demonstrate an unlawful combination or conspiracy.


 The central question, of course, is whether material factual issues remain that would leave open the question whether the ADA participated in any conspiracy or concerted activity with the codefendant AAP in violation of the antitrust laws. Resolution of this issue turns on the standard applied to determine whether a conspiracy or illegal combination exist, and then on an examination of the pleadings, affidavits, and discovery materials to determine whether factual issues material to the determination of concerted action remain.

 In summary judgment motions in antitrust cases, the Supreme Court of the United States has cautioned that summary disposition should be used sparingly because motive and intent play such important roles in the determination of liability. See Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962). The Court has, however, refused to permit plaintiffs to reach the stage of fact-finding at trial merely on the allegations in the complaint that a conspiracy was present declaring, "(W)e are not prepared to extend (the right to a trial) to the point of requiring that anyone who sets forth a valid cause of action be entitled to a full-dress trial not-withstanding the absence of any significant probative evidence tending to support the complaint." First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S. Ct. 1575, 1593, 20 L. Ed. 2d 569 (1968).

 Although a number of formulations appear in cases defining the meaning of Section 1 of the Sherman Act, the factors listed in Harold Friedman, Inc. v. Kroger Co., 581 F.2d 1068 (3d Cir. 1978) interpreting Albrecht v. Herald Co., 390 U.S. 145, 88 S. Ct. 869, 19 L. Ed. 2d 998 (1968) are succinct and relevant to this dispute. For the ...

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