Leeds DDS v. Board of Dental Examiners of Alabama et al

COMPLAINT against All Defendants, filed by D Blaine Leeds DDS.

Northern District of Alabama, alnd-2:2018-cv-01679

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6 FILED 2018 Oct-15 AM 10:06 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION D. BLAINE LEEDS, DDS and) SMILEDIRECTCLUB, LLC,)) Plaintiffs)) Civil Action No._________________ v.)) BOARD OF DENTAL EXAMINERS OF) ALABAMA; ADOLPHUS M. JACKSON, JURY TRIAL DEMANDED) DMD; T. GERALD WALKER, DMD;) DOUGLAS BECKHAM, DMD; STEPHEN) R. STRICKLIN, DMD; MARK R.) MCILWAIN, DMD, MD; KEVIN M.) SIMS, DMD, MS; SHERRY S.) CAMPBELL, RDH, CDHC; individually) and in their official capacities as Members) of the Board of Dental Examiners of) Alabama,)) Defendants. COMPLAINT Plaintiffs Dr. D. Blaine Leeds, DDS ("Dr. Leeds") and SmileDirectClub, LLC ("SmileDirect") allege the following claims against Defendants, the Board of Dental Examiners of Alabama (the "Board") and Adolphus M. Jackson, T. Gerald Walker, Douglas Beckham, Stephen R. Stricklin, Mark R. McIlwain, Kevin M. Sims, and Sherry S. Campbell, individually and in their official capacity as Members of the Board of Dental Examiners of Alabama. INTRODUCTION Dr. Leeds, who is an Alabama state licensed dentist, in conjunction with the non-clinical support services provided by SmileDirect, provides clear aligner therapy treatment to Alabama patients. One of the services that SmileDirect provides to Dr. Leeds is a physical location, a "SmileShop" where consumers can have photographs of their teeth and gums taken that can then 1 6 be shared with Dr. Leeds. The only services provided at the SmileShop location are the collection of photographs. The photographs are not x-rays, do not penetrate the gums, oral tissues or teeth, and do not use gamma rays. The photographs are then sent to Dr. Leeds so that he may review these photographs in addition to the other information that is supplied to him by the consumer in determining whether the consumer is a candidate for clear aligner therapy treatment. If Dr. Leeds approves the use of clear aligner therapy treatment, and the consumer elects to move forward with the treatment, Dr. Leeds writes a prescription to a lab to have the clear aligners fabricated and shipped. Dr. Leeds is solely responsible for determining, managing, and overseeing his patient's care throughout the entire time the patient is receiving clear aligner therapy treatment. 1. Dr. Leeds is an out-of-state dentist with an Alabama license who has contracted with SmileDirect to use its non-clinical dental support organization services, including SmileDirect's teledentistry platform, to provide low-cost clear aligner therapy treatment to patients in the state of Alabama. 2. Recently, the Board of Dental Examiners of Alabama (the "Board") took the position that the taking of photographic images of consumers' teeth and gums by SmileDirect's SmileShop employees constitutes the unlicensed practice of dentistry within the meaning of Alabama Code § 34-9-6(7). The Board's position also means that Dr. Leeds is not permitted to provide certain services to patients unless he is physically present in the State of Alabama. This facially discriminatory and blatantly protectionist position by the Board is inconsistent with the stated purpose and express language of the Alabama Dental Practice Act. See Ala. Code § 34-9-1 et seq. 3. The Board's position is outside the scope of its authority, unlawfully burdens and discriminates against out-of-state dentists like Dr. Leeds and out-of-state companies like 2 6 SmileDirect, restricts Alabama residents' access to affordable clear aligner therapy treatment, fails to protect the public in any manner, stifles competition, harms consumers, and makes it virtually impossible for Dr. Leeds to provide dental services to Alabama patients across state lines or for SmileDirect to lawfully conduct its interstate business as to consumers in the State of Alabama. These costly and prohibitive changes to SmileDirect's and Dr. Leeds' respective present business models serve no purpose other than protectionism. Moreover, the Board's position has no positive bearing on, or substantial relation to, the public health, safety, or morals, or the general welfare, the public convenience, or to the general prosperity. In this regard, the Board's actions violate federal antitrust statutes and constitutional guarantees, including the Commerce Clause and the Equal Protection and Due Process guarantees of the Fourteenth Amendment. THE PARTIES 4. Plaintiff Dr. Leeds is an Alabama-licensed dentist residing in Nashville, Tennessee who contracts with SmileDirect for the use of its non-clinical support services in order to offer clear aligner therapy treatment to patients, including patients located in the state of Alabama. Dr. Leeds is a citizen of Tennessee. 5. Plaintiff SmileDirect is a corporation organized under the laws of Tennessee, with its principal place of business in Tennessee. Accordingly, SmileDirect is a citizen of Tennessee. SmileDirect provides non-clinical support services to contractually-affiliated dental practices that wish to offer doctor-directed, remote, clear aligner therapy treatment to patients with mild to moderate malocclusion (i.e. improper positioning of the teeth when the jaws are closed). SmileDirect is licensed to practice business in the State of Alabama. All aligners sold in Alabama are prescribed by Alabama-licensed dentists like Dr. Leeds who have engaged SmileDirect to provide these non-clinical support services. 3 6 6. SmileDirect has over 150 SmileShops across the country and recently opened its first Alabama SmileShop location at 710 Inverness Corners, Birmingham, Alabama. 7. The Board of Dental Examiners of Alabama consists of seven members, which include "six dentists" and one "dental hygienist." Ala. Code § 34-9-40. The Board and each of its members is a citizen of Alabama. The Board's authority is limited to regulating the practice of dentistry and dental hygiene and those who practice dentistry or dental hygiene in the State of Alabama. The Board has no authority over activities that do not constitute dentistry or dental hygiene or individuals and organizations, such as SmileDirect and its employees (referred to as SmileGuides), who provide only non-clinical support services to dental providers. These SmileShop employees simply take photographs; they are not dental assistants or dental hygienists, and in 2018, the Alabama legislature withdrew from the Board the authority to regulate expanded duty dental assistants in any event. 8. Defendant Adolphus M. Jackson is the President of the Board. Upon information and belief, Dr. Jackson practices general dentistry in Birmingham, Alabama. Dr. Jackson is a citizen of Alabama. 9. Defendant T. Gerald Walker is the Vice President of the Board. Upon information and belief, Dr. Walker is a practicing dentist in Trussville, Alabama. Dr. Walker is a citizen of Alabama. 10. Defendant Douglas Beckham is the Secretary-Treasurer of the Board. Upon information and belief, Dr. Beckman practices general dentistry in Birmingham, Alabama. Dr. Beckham is a citizen of Alabama. 4 6 11. Defendant Stephen Stricklin is a current member of the Board. Upon information and belief, Dr. Stricklin is a practicing dentist in Alabaster, Alabama. Dr. Stricklin is a citizen of Alabama. 12. Defendant Kevin M. Sims is a current member of the Board. Upon information and belief, Dr. Sims practices dentistry in Birmingham, Alabama. Dr. Jackson is a citizen of Alabama. 13. Defendant Mark R. McIlwain, is a current member of the Board. Upon information and belief, Dr. McIlwain practices dentistry in Sheffield, Alabama. Mr. McIlwain is a citizen of Alabama. 14. Defendant Sherry S. Campbell, is a current member of the Board. Upon information and belief, Ms. Campbell is a practicing dental hygienist. Ms. Campbell is a citizen of Alabama. JURISDICTION AND VENUE 15. The Court has subject matter jurisdiction over Counts One, Two, Five through Eight, and Eleven pursuant to 28 U.S.C. §§ 1331, 1343, as Plaintiffs are asserting claims under the Constitution and the laws of the United States, including claims pursuant to 42 U.S.C. § 1983. 16. The Court has subject matter jurisdiction over Counts Three, Four, and Eleven pursuant to 28 U.S.C. §§ 1331, 1337, as Plaintiffs are asserting claims under the laws of the United States, and more particularly claims under the federal Sherman Act. 17. The Court has supplemental jurisdiction over Counts Nine and Ten pursuant to 28 U.S.C. § 1367(a). 18. This Court also has subject matter over all Counts pursuant to 28 U.S.C. § 1332, in that this is an action between citizens of different states, and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. 5 6 19. The Board was created by the Alabama Legislature. See Ala. Code §§ 34-9-40 et seq. The Board operates in the State of Alabama and the events giving rise to the claims asserted in this Action occurred in the State of Alabama. Defendants Jackson, Walker, Beckham, Stricklin, McIlwain, Sims, and Campbell are all citizens of the State of Alabama. Accordingly, Defendants are subject to personal jurisdiction in Alabama. 20. Venue is proper in this District pursuant to 28 U.S.C. § 1391 and 15 U.S.C. § 22 because upon information and belief Defendants Jackson, Walker, Stricklin, McIlwain, and Sims all reside in this District and the Board is deemed to reside in any judicial district in which it is subject to personal jurisdiction with respect to this Action, which includes this District. Venue is also proper in this District because a substantial part of the events or omissions giving rise to the claims asserted in this Action occurred in this District. 21. The Defendants' actions substantially and adversely affect interstate commerce in the "relevant market" as described herein. Plaintiffs and Defendants provide services in interstate commerce and certain of the Defendants perform clear aligner therapy treatment using products that are sold across state lines and from outside the State of Alabama into the State of Alabama. In addition, by restraining competition for clear aligner therapy treatment in Alabama, the flow of interstate commerce is interrupted because the aligner products offered by Plaintiffs are sent to Alabama consumers across state lines. Thus, Defendants' actions have the effect of reducing the amount of interstate commerce to the detriment of consumers. FACTUAL BACKGROUND SmileDirect Provides Non-Clinical Support Services to Licensed Dental Providers. 22. SmileDirect provides non-clinical support services, including a web-based teledentistry platform, that licensed dentists and orthodontists use to connect with their patients 6 6 with mild to moderate malocclusion who are seeking corrective teeth realignment through the use of clear aligner therapy treatment. In Alabama, SmileDirect provides non-clinical support services to contractually-affiliated dental practices of Alabama-licensed dental professionals who wish to use its platform and non-clinical support services to offer doctor-directed, remote, clear aligner therapy treatment. Clear Aligners are a series of custom-made removable plastic retainers that are placed on an individual's teeth and designed to move the teeth in small increments until the desired positioning is achieved. Teledentistry enables the provision of dental treatment and care via remote technology, rather than on-site personal contact with patients. 23. The Alabama legislature has determined that the practice of dentistry across state lines and the technology associated therewith are in the public interest and intended the Alabama Dental Practice Act to promote such evolution in dentistry. Ala. Code § 34-9-2. 24. Through SmileDirect's teledentistry platform, Dr. Leeds—as well as other dentists and orthodontists licensed in the State of Alabama who affiliate with SmileDirect—are able to provide remote clear aligner therapy treatment at a substantially lower price than