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Lemper v. Delaware Board of Dentistry & Dental Hygine

Superior Court of Delaware

July 31, 2017

JIAN YING LEMPER, DMD, Appellant,
v.
DELAWARE BOARD OF DENTISTRY & DENTAL HYGINE, Appellee.

          Submitted: June 16, 2017

         In and for Kent County

          ORDER

          Jeffrey J Clark Judge.

         On this 31st day of July 2017, having considered Appellant Dr. Jian Ying Lemper's appeal, it appears that:

         1. Appellant Dr. Jian Ying Lemper (hereinafter "Dr. Lemper") appeals a decision of the Delaware Board of Dentistry and Dental Hygiene Appeal Panel (hereinafter "Appeal Panel") denying Dr. Lemper a license to practice dentistry in the State of Delaware. For the reasons that follow, the Court affirms the Appeal Panel's January 11, 2017 decision and order.

         2. Since this matter involves an appeal of an administrative agency's decision, the Court confines its review to the facts contained in the record, and it is those facts that are referenced herein. In April 2016, Dr. Lemper applied to the Delaware Board of Dentistry and Dental Hygiene (hereinafter "Dentistry Board") for a license to practice dentistry in Delaware. In June 2016, Dr. Lemper completed the Delaware Dental Practical Examination. A panel of four examiners administered the exam.

         3. The standards used to grade the exam are recorded in the "Delaware Practical Examination for Dental Candidates" packet (hereinafter the "Candidates' Packet"), which is distributed to the candidates and referenced by the examiners during the exam.[1] The examiners perform regular calibration exercises, which involve the examiners discussing and standardizing grading criteria, as well as performing and discussing a test periodontal procedure, to ensure standard observations and grading. These calibrations are, as indicated in the Candidates' Packet, to be performed "biannually, or when a new examiner is appointed to the board."

         4. The Dentistry Board grades the exam by averaging the scores of each examiner. A score of 75 is required to pass. Dr. Lemper failed three of the seven sections of the exam: the crown exercise, the impression technique, and the radiographic technique. Each examiner gave Dr. Lemper a score of only 65 and, on June 20, 2016, the Dentistry Board informed Dr. Lemper that she failed the examination.

         5. Soon thereafter, Dr. Lemper wrote to the State of Delaware Division of Professional Regulation and requested a hearing before the Appeal Panel pursuant to 24 Del. C. § 1194(d). The Appeal Panel met, and after an evidentiary hearing, determined that Dr. Lemper had not met her burden of proof to show the Dentistry Board wrongfully determined she had failed the exam.[2] Dr. Lemper then appealed that decision to this Court pursuant to Section 1194(g) of Title 24 of the Delaware Code.

         6. For administrative appeals, this Court limits its review to whether an administrative board's decision is supported by substantial evidence and is free from legal error.[3] Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion."[4] It is "more than a scintilla, but less than a preponderance of the evidence."[5] In reviewing the Dentistry Board's decision, the Court is to avoid acting as a "trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions."[6] On the other hand, the Court will find an abuse of discretion if the Dentistry Board "acts arbitrarily or capriciously . . . or exceeds the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice."[7]

         7. Dr. Lemper presents several arguments for why the Court should overturn the decision of the Appeal Panel. First, she alleges that the Dentistry Board acted arbitrarily and capriciously by failing to physically perform calibrations twice a year and when a new examiner is appointed to the Dentistry Board. She argues that this violates the Dentistry Board's own regulations and standards, as printed in the Candidates' Packet.[8]

         8. Dr. Lemper's opening brief, however, did not cite any legal authority in support of this argument. In her opening brief to this Court, Dr. Lemper had an obligation to "marshal the relevant facts and establish reversible error by demonstrating why the action [below] was contrary to either controlling precedent or persuasive decisional authority from other jurisdictions. The failure to cite any authority in support of a legal argument constitutes a waiver of the issue . . . ."[9]

         9. Additionally, Dr. Lemper's argument is insufficient on its merits. The record indicates that the Dentistry Board calibrated the exam approximately one year prior to the June 2016 exam. Namely, the Dentistry Board performed the 2015 calibration shortly after a new examiner joined the Dentistry Board. This alone appears to satisfy the requirement to perform a calibration "biannually or when a new examiner is appointed to the [B]oard."

         10. Importantly, this Court defers to the Dentistry Board's interpretation of its regulations and standards unless such an interpretation is clearly erroneous.[10] The Dentistry Board's actions indicate that it interprets the calibration requirement to be wholly disjunctive. Furthermore, such an interpretation is not clearly erroneous because the plain language of this requirement is in fact disjunctive. The presence of the "or" requires calibration when either a new board member is appointed or biannually. It does not require calibration both biannually and when a new member joins the Dentistry Board despite Dr. Lemper's argument to the contrary. As there is evidence that the Dentistry Board calibrated the exam shortly ...


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