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Robb v. Connecticut Board of Veterinary Medicine

United States District Court, D. Connecticut

January 20, 2016

JOHN M. ROBB, DVM, Plaintiff,
v.
CONNECTICUT BOARD OF VETERINARY MEDICINE, B. KENNETH BERNHARD, THERESA CIANCILO, DVM, MARY ANNE O'NEILL, TIMOTHY PLUNKETT, DVM, and ALFREDO SANCHEZ-ZONDONO, DVM, Defendants.

RULING ON DEFENDANTS' MOTION TO DISMISS, PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION, AND PROPOSED INTERVENER'S MOTIONS

CHARLES S. HAIGHT, Jr., Senior District Judge.

Plaintiff Dr. John M. Robb, D.V.M., a doctor of veterinary medicine licensed in the state of Connecticut, brings this action for injunctive relief and damages under the Sherman Antitrust Act, 15 U.S.C. § 1, against Defendants, the Connecticut Board of Veterinary Medicine (the "Board")[1] and its five constituent members: B. Kenneth Bernhard, Dr. Theresa Cianciolo, D.V.M., Mary Anne O'Neill, Dr. Timothy Plunkett, D.V.M., and Dr. Alfredo Sanchez-Zondono, D.V.M (together, the "Individual Defendants, " and with the Board, the "Defendants"). The gravamen of Plaintiff's complaint is that Defendants have conspired to restrain trade through an agreement to remove from the Connecticut market for veterinary services any veterinarian who offers certain reduced dosages of the rabies vaccine to animal-patients, and that the Board is currently effectuating this anticompetitive scheme through an administrative proceeding against Plaintiff.

On June 12, 2015, Plaintiff filed his initial complaint, a motion for a temporary restraining order ("TRO") and a motion for a preliminary injunction ("PI"), all aimed at forestalling Defendants' administrative proceedings against him. Docs. 1-5. The Court denied Plaintiff's TRO motion on the same day, [Doc. 11], but reserved decision on the PI motion, which is pending. Following a June 18, 2015 hearing with this Court on his PI motion, Plaintiff filed an Amended Complaint. Doc. 30. Defendants thereafter filed a motion to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, which is also pending. Docs. 39, 44, 46. Non-parties Charter Practices International, LLC and Medical Management International, Inc. ("Proposed Interveners") have filed joint motions to intervene in the action, [Doc. 21], and for joinder in Defendants' motion to dismiss, [Doc. 43]. This Ruling resolves all pending motions.

I. Background

The following recitation is taken principally from Plaintiff's Amended Complaint ("AC"), whose well-pleaded factual allegations the Court takes as true for purposes of this motion to dismiss.

In 2008, Dr. Robb acquired ownership of a Banfield Pet Hospital franchise ("Banfield") in Stamford, Connecticut pursuant to an agreement with Charter Practices International ("CPI"), a corporate franchisor. AC ¶ 8. As part of his practice at the hospital, Dr. Robb administered various animal vaccinations, including that for rabies. In his first several months at the Banfield franchise, he administered "the manufacturer's standard recommended dose" of 1 milliliter of the rabies vaccine to canines, regardless of the dog's size. Id. ¶¶ 19, 22. However, soon thereafter, a significant number of Dr. Robb's animal-patients experienced "vaccine-associated adverse events" or "VAAEs, " particularly smaller breeds of dog. Id. ¶ 22. In light of this experience, and after review of a 2005 peer-reviewed study documenting a correlation between animal size and VAAEs, [2] Dr. Robb amended his hospital's vaccination policy such that it would administer only 0.5 milliliters to dogs under ten pounds. Id. ¶ 24. Dr. Robb offered lower dosages because he "was scientifically and morally unsatisfied with the unnecessary adverse reactions in companion animals from one-size-fits-all manufacturer's recommended dosages." Id. ¶ 3. Following the change in protocol, Dr. Robb's hospital saw an immediate reduction in VAAEs and thereafter incrementally expanded its reduced dosage policy to all breeds under fifty pounds. Id. ¶ 25.

According to the Amended Complaint, the resulting success in reducing VAAEs was stark. In the period between 2010 and July 2015, other Banfield franchise hospitals experienced 300 cases of anaphylaxis, "one of the most severe and fatal VAAEs that can occur, " leading to six deaths, while Dr. Robb's hospital had no such cases, all while not a single animal contracted any of the diseases for which they were vaccinated. Id. ¶¶ 26-28. Given these circumstances, Dr. Robb vehemently and with manifest conviction and sincerity alleges that he has an "ethical obligation" to provide lower-dose vaccinations to smaller animals and that to do so has "been decisively found to be within the standard of care." Id. ¶¶ 3-4. Further, he experienced a significant consumer demand for his lower-dose vaccinations. Id. ¶ 3; see also Doc. 31, at 2 ("Patients flocked to his practice").

Not surprisingly, Dr. Robb's decision to offer lower than manufacturer-recommended doses led to direct conflict with certain institutional interests. The Amended Complaint lists a number of adverse reactions with which Dr. Robb has been contending.

First, the Mars Candy Company, CPI's corporate parent, allegedly in retaliation for Dr. Robb's refusal to accept a "well-below-market" buy-out offer, used Dr. Robb's failure to provide the manufacturer's recommended vaccine dosage as a pretextual justification to terminate without justification his Banfield franchise agreement.[3] AC ¶¶ 30-31.

Second, "the Connecticut Department of Public Health brought charges... against Dr. Robb stemming directly from his rabies vaccination procedures." Id. ¶ 33. In an August 28, 2014 letter sent to Dr. Robb by the Board, the Board ordered Dr. Robb to appear "for a hearing on the attached Charges against [him]." Doc. 5-4, at 2-3. The "attached Charges" referenced by the Board's letter consists of an August 1, 2014 "Statement of Charges" issued by the Connecticut Department of Public Health ("DPH"). Id. at 4. The Statement of Charges states that "Pursuant to the General Statutes of Connecticut, §§19a-10 and 19a-14[4], the Department of Public Health... brings the following charges against John M. Robb." Id. The principal and relevant charge at-issue against Dr. Robb is that he "instructed employees to administer half doses of rabies vaccines to animals under the weight of fifty pounds." AC ¶ 39. The Statement of Charges recites that, despite Dr. Robb's vehement protestations, the provision of lower than the manufacturer-recommended dosages of the rabies vaccine "constitute[s] grounds for disciplinary action pursuant to the General Statutes of Connecticut, §20-202(2)."[5] Doc. 5-4, at 4. DPH then "prays that: The Connecticut Board of Veterinary Medicine, as authorized in §§19a-17 and 20-202, revoke or order other disciplinary action against the veterinary license of John M. Robb as it deems appropriate and consistent with law." Id. The Board ordered Dr. Robb to appear for a December 2, 2014 hearing on those charges. Id. at 1. It is this administrative proceeding that is at the core of the instant litigation before this Court.

Dr. Robb argues that there is no basis for the administrative action against him because Connecticut "state policy is ambiguous as to vaccination protocols generally and entirely silent on dosage amount."[6] AC ¶ 63. Rather, as discussed further below, Dr. Robb argues that the action is brought solely as part of a conspiracy by Defendants to eliminate competitors from the Connecticut veterinarian market that aim to compete with the Veterinarian Defendants by offering lower-dose vaccines.

To support his claims that the rationale for the disciplinary action against him for violation of state regulations is pretext, Dr. Robb alleges that at a hearing in front of the Defendant Board, the "Board's own veterinarian expert witness, Dr. Jeffrey Loeven, " testified clearly that Dr. Robb caused no harm to his animal-patients, that he "fully agree[s] with [Dr. Robb's] assertion that you can modify the practice of medicine according to the Aesculapian authority, [7] including the Hippocratic oath, '" and that Dr. Robb's "approach resulted in fewer reactions based on limited titers done and lack of documented disease breaks.'" Id. ¶¶ 41, 43 (quoting March 27, 2015 testimony).[8]

In consequence, Dr. Robb alleges that the Defendant Board has no basis "to pursue its baseless action against [him]" because it "and its veterinarian members have no medical, health or safety reason to pursue veterinarians like Dr. Robb that offer vaccination services with lower doses for smaller animals." Id. ¶ 44. Rather, at the core of his antitrust complaint, Dr. Robb alleges that the Board "pursues its" action "for the anticompetitive reason that offering such services threatens the profits that veterinarians, including three board members, make from vaccinations." Id. To effectuate their anticompetitive goals,

the Board, along with the Individual Defendants, entered into an agreement to prevent competition on quality and price by excluding from the relevant service market any doctor of veterinary medicine who does not provide the manufacturer's recommended dose for rabies vaccinations. The agreement and conspiracy includes the Defendants' decision to pursue sanctions against Dr. Robb.

Id. ¶¶ 67-68. Dr. Robb also alleges that "[a]s part of Defendants' agreement and conspiracy, Defendants have communicated to the relevant purchasing public that Dr. Robb is currently under investigation for professional misconduct." Id. ¶ 72. Dr. Robb then alleges that "Defendants' conduct has no procompetitive or business justification." Id. ¶ 73.

Dr. Robb does not allege any specific conduct actually engaged in by the Board's members that would constitute an "agreement" or a "conspiracy." Rather, Dr. Robb relies on circumstantial factors, specifically the Veterinarian Defendants' "direct pecuniary motivation" to preclude the availability of size-appropriate vaccinations. Id. at 18. He alleges that "the three veterinarian members of the Defendant Board use vaccination protocols that rely solely upon the manufacturer's recommended dosage, " and that therefore a market for vaccinations that deviate from that protocol "represent[s] a direct financial threat to the veterinarian Individual Defendants." Id. ¶¶ 56-57.

It is through the above conduct that Dr. Robb alleges that he, and the Connecticut markets for vaccination and veterinary services more generally, were harmed. Dr. Robb alleges repeatedly that the Defendants' actions harm the Connecticut market for vaccination and veterinarian services, of which Dr. Robb alleges vaccination services account for seventy percent. Id. ¶¶ 47, 55; see also Doc. 31, at 1 (vaccinations are "the golden goose of veterinarian practices"). Specifically, he alleges that his

competitors on the Connecticut Board of Veterinary Medicine-a quasi-private, quasi-public entity dominated by doctors of veterinary medicine in active, private practice-have restrained competition by declaring these safe, effective, and heretofore legal vaccination practices as a violation of their own vaguely drafted administrative rules.

Id. ¶ 4. Dr. Robb alleges that the practical effect of this restraint on competition has been to improperly obstruct a demonstrated demand for "size-appropriate vaccination dosages, " id. ¶ 46, both from veterinarians, [9] and from consumers.[10] Apart from harm caused by market disturbance, Dr. Robb also alleges that he is harmed directly through the administrative proceeding because his license, "professional reputation, goodwill, and livelihood [are] at stake, " id. ¶ 75, and because "if successful, [it] will also jeopardize [his] $6.5 million in counterclaims against Banfield in a related federal case, " id. ¶ 74.

Moreover, the Board, pursuant to its adjudicative function, has sufficient market power to effectuate such an anticompetitive effect "because they have the power to exclude any competitor from the practice of veterinary medicine in Connecticut." Id. ¶ 49; see also id. ¶ 64 (the Veterinarian Defendants "have the power to take collective action against Dr. Robb and any other veterinarian that seeks to offer better, different, or lower cost services relating to vaccinations").

In short, "[t]he anticompetitive actions of the Board, acting as a trade association, directly restrain trade by protecting the veterinarian establishment from the competition that would come from veterinarians, like Dr. Robb, who would adopt the reduced volume vaccine protocol." Id. ¶ 54.

In light of the above alleged conduct, Dr. Robb's Amended Complaint asserts a single claim for violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, against all Defendants in their individual and official capacities, for "Conspiracy to Restrain Trade - Group Boycott." Dr. Robb seeks injunctive relief, treble compensatory damages under 15 U.S.C. § 15(a), and his costs and expenses in bringing the instant action. AC, at 23.

II. Defendants' Motion to Dismiss

Defendants argue that Plaintiff's claim should be dismissed in full for a significant number of independent reasons, which they group together as follows. Doc. 39. First, this Court lacks subject matter jurisdiction because: (i) Dr. Robb lacks Article III standing; (ii) Dr. Robb lacks the more particularized "antitrust standing"; and (iii) Dr. Robb's claims are not ripe for review. Second, the 11th Amendment bars claims (i) against the Board and (ii) for monetary damages against the Board members in their official capacities. Third, the Individual Defendants are immune from suit either pursuant to absolute or qualified immunity. Fourth, Dr. Robb failed to allege in substance an antitrust claim. Fifth, this Court should not interfere with an ongoing state administrative proceeding in light of the abstention doctrine ...


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