Appendix — Dunham v. Wadley

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991942 spr 102

No.

“GFFICE OF THE CLERK

In The

Supreme Court of the United States

DR. SANDRA K. DUNHAM, D.V.M.,

; Petitioner,

versus

DR. GEORGE WADLEY, D.V.M.;

WINGFIELD MARTIN; DR. EVERETT I.

ROGERS; D.V.M.; DR. G. C. BLAIR, D.V.M.;

DR. JAMES W. WAYMACK, D.V.M.;

DR. DONALD I. MAYFIELD, D.V.M.;

DR. GARY F. STRICKLAND, D.V.M.;

and SHERRY GLOVER

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

APPENDIX

Robert J. Price

PRICE LAW FIRM

5115 Cantrell Road

Little Rock, AR 72207

(501) 664-0878

- Attorney for Petitioner

agit

TABLE OF CONTENTS

DISTRICT COURT ORDER AND

~ JUDGMENT FILED 1/29/99 ....ccccccccoseosee- 1

g™ CIRCUIT COURT OF APPEALS

OPINION FILED 11/20/99 ..ececccecccscoesceeeoes 14

g™ CIRCUIT COURT OF APPEALS

ORDER FILED 1/11/00 ....cesccescoccccecoeccceooes 24

AFFIDAVIT OF SANDRA K.

RVI Te 26

AFFIDAVIT OF JUDY PORRIER............. 86

AFFIDAVIT OF JOHN PORRIER.............. 89

AF FIDAVIT OF DWIGHT WITCHER...... 92

AFFIDAVIT OF ROBERT E. DUNHAM.. 95

AFFIDAVIT OF GARY WALLIG.............. 102

AFFIDAVIT OF SHERRY GLOVER......... 106

AFFIDAVIT OF JAMES W.

WA TIMACK, 90 V Moc cesconsorsceseerccnrqnsconns 112

AFFIDAVIT OF G. C. BLAIR, D.V.M....... 114

AFFIDAVIT OF WINGFIELD MARTIN... 115

AFFIDAVIT OF EVERETT I.

ROGERS, DOV Mi swsicssissossccxtsohesinwiictiueiabeies 116

AFFIDAVIT OF DONALD I.

IEA Y FELD, BOY Bib iswriccsencssigteiniarnnsegianinns 118

AFFIDAVIT OF GARY F.

STRICKLAND, DOV Dice sescsasncsciasccsonsamnsitgs 119

AFFIDAVIT OF GEORGE R.

WALI © 502. ¥ ih isssesscsantsocesnconctiectnsibiainen 120

DEFENDANTS’ STATEMENT OF

UNCONTESTED MATERIAL FACTS..... 122

PLAINTIFF’S STATEMENT OF

CONTESTED MATERIAL FACTG.......... 129

]

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DR. SANDRA K. DUNHAM, D.V.M.,

PLAINTIFF

VS. NO. LR-C-95-432

DR. GEORGE WADLEY, D.V.M.,

ET AL, DEFENDANTS

RDER

Filed January 29, 1999

Now pending is defendants’ Motion for

Summary Judgment (doc. #67). After careful

consideration, and for good cause shown, the Court

finds that the motion should be, and hereby is,

granted.

Plaintiff, Sandra K. Dunham, D.V.M., brings

this 1983 action against defendants, all members or

former members of the Arkansas Veterinary Medical

Examining Board (“the Board”), in their individual

capacities. Plaintiff alleges that defendants, acting

under color of state law as members of the Board,

took actions with regard to plaintiff's “license to

practice veterinary medicine,” which violated

plaintiff's rights to substantive and procedural due

process of law and equal protection under the law, as

guaranteed by the Fourteenth Amendment to the

United States Constitution. See Second Amended

Complaint, Docket Entry #37, J] 50-52. Plaintiff also

brings pendent state claims of defamation and tortious

interference with business relationship against

defendants. Id. {J 53-57.

During the relevant time period, plaintiff, a

1991 graduate of the Justus Liebig University in

Giessen, West Germany - a foreign college of

veterinary medicine - , alleges she was in the process

of obtaining an Educational Commission for Foreign

Veterinary Graduates (“ECFVG”) certificate. She

alleges that, at all times relevant to this action, she

was performing veterinary duties or actions under the

direction and supervision of licensed veterinarians\

Plaintiff claims that the defendant Board members

were aware of her enrollment in the ECF VG program.

She further alleges that the defendants were aware that

she was performing duties under the direction and

supervision of licensed veterinarians.

Thus, plaintiff submits that she had satisfied all

statutory requirements for the practice of veterinary

medicine in the state of Arkansas and was, therefore

“licensed” by the state of Arkansas to engage in the

practice of veterinary medicine. Plaintiff has

submitted affidavits and-other evidence to support her

version of the facts.

In asserting her federal causes of action under

§ 1983, plaintiff does not claim to have been licensed

by the Board at any point in time relevant to this

action.' Rather, plaintiff asserts that she was

“licensed” to practice medicine by virtue of her

qualification for exemption from licensure under

Arkansas law then in effect. Specifically, plaintiff

claims entitlement to an exemption under Ark. Code

Ann. § 17-99-307(b)(8), which permitted foreign

veterinary graduates who were in the process of

obtaining an ECF VG certificate to perform veterinary

duties or actions under the direction and supervision

of a licensed veterinarian. This exemption was

repealed by the Arkansas General Assembly in 1995.

Plaintiff claims that, from on or about July 22,

1992, through on or about April 20, 1994, defendants

participated in a series of meetings of the Board, at

which defendants considered accusations concerning

plaintiff Dunham’s activities as a veterinarian.

Specifically, plaintiff alleges she was accused of

practicing veterinary medicine in violation of the

Arkansas Veterinary Medical Practices Act (“the

Act”), in that she was practicing without proper

- licensure. Plaintiff alleges that she was given no

notice of the meetings, nor was she afforded an

‘Since initiating this action, plaintiff has

obtained a license to practice veterinary medicine.

opportunity to appear before the board to address the

accusations considered at the meetings.

Plaintiff claims that, as a result of the series of

Board meetings, defendants determined that Dr.

Dunham was practicing veterinary medicine illegally

and defendants, acting through counsel for the Board,

caused “cease and desist” letters to be sent to Dunham

and her employers, resulting in plaintiff's termination

from two animal clinics. Plaintiff alleges that the

Board also wrongfully caused its legal counsel to

request that the local prosecuting attorney file

misdemeanor criminal charges against plaintiff and to

file, on behalf of the Board, a petition for injunctive

relief against plaintiff.

Plaintiff further alleges that defendant Glover

published false and defamatory information to the

effect that plaintiff was practicing illegally to an

official with the Arkansas Department of Health. She

claims this resulted in a press release being sent to the

local newspaper in Monticello, Arkansas, where

plaintiff was practicing, to the effect that plaintiff was

practicing illegally. Plaintiff alleges that defendant

Glover also published false and defamatory

information by means of a letter to the Editor of the

newspaper. Plaintiff claims that she suffered injury to

her reputation as a result of defendant Glover’s

publications.

5 \

In arguing that they were entitled to summary

judgment, defendants contend that plaintiff was not

licensed to practice veterinary medicine by the Board,

nor was she entitled to the exemption allowed under

Ark. Code Ann. § 17-99-307(b)(8). Defendants claim

that the Board construed the referenced exemption as

‘requiring that a licensed veterinarian be on site in

order to direct and supervise an unlicensed foreign

graduate. Defendants claim that Dr. Gary Wallace,

owner of the Monticello Animal Clinic where plaintiff

worked in 1992, lived in North Little Rock, Arkansas

and that Dr. Wallace was not present at the clinic to

supervise and direct plaintiff's practice of veterinary

medicine. On this basis, defendants claim they

determined that plaintiff was practicing veterinary

medicine without a license or entitlement to an

exemption from licensure and, therefore, issued the

subject cease and desist letters.

Defendants claim that, after her termination

from the Monticello Animal Clinic, plaintiff went to

work at the Crossett Animal Clinic under the

employment of her father, Dr. Robert Dunham.

However, defendants claim Robert Dunham

surrendered his veterinary license in November of

1993 as part of an agreement entered into with the

Board in response to charges which had been leveled

against Dr. Robert Dunham. Defendants claim that a

member of the Board, thus, informed plaintiff that she

could not practice at the Crossett Animal Clinic while

her father’s veterinary license was revoked unless

FE SS ee eS ee a Pe iwee

—

another licensed veterinarian was brought into the

clinic. The Board then sent cease and desist letters

concerning plaintiff's practice at the Crossett Animal

Clinic.

Defendants maintain that plaintiff never

contacted the Board or requested an opportunity to

address the Board in response to its communications,

despite having been advised how to reach the Board

and invited to contact the Board with any questions.

Defendants claim that, having had no response to its

cease and desist letters the Board filed its Petition for

Injunctive Relief against plaintiff in Ashley County

Chancery Court. -

| Defendants have submitted affidavits and other

evidence to support their version of the facts.

Although the parties dispute the facts

surrounding the occurrences which give rise to

plaintiff's causes of action herein, neither side

disputes that the parties subsequently entered into a

settlement agreement and joint stipulation of dismissal

in the Ashley County case. See Joint Stipulation of

Facts, attached as Ex. 10 to Defendants’ Brief in

Support of Motion for Summary Judgment. Therein

_ plaintiff agreed that she was “subject to ‘license’ by

the Board as defined by A.C.A. § 25-15-202(8), and

is governed by the provisions of the Arkansas

Veterinarian Medical Practices Act and the rules and

regulations promulgated by the Board.” Plaintiff

further stipulated that she was “neither a licensed

veterinarian as defined by A.C.A. § 17-99-102(4), nor

the holder of a valid temporary permit issued by the

Board, as set forth in A.C.A. § 17-99-304(a).”

Defendants, as part of the settlement agreement,

stipulated that plaintiff had, at all relevant times, been

“in the process of obtaining an ECFVG certificate as

defined by A.C.A. § 17-99-102(8).” Defendants

further stipulated that plaintiff had, at all relevant

times, been practicing “under the direction and

supervision of a licensed veterinarian,” as defined by

A.C.A. § 17-99-102(4),” such that plaintiff “was

exempt from licensure by the board pursuant to

A.C.A. § 17-99-307(8).”

The Court concludes that both parties are bound

by the stipulation entered in resolution of the prior law

suit. Thus, the Court finds that the Board has

conceded that the plaintiff qualified for the exemption

to licensure then in effect, so as to allow her to

practice veterinary medicine under the direction and

supervision of a licensed veterinarian so long as that

statute was in effect. Furthermore, the Court finds

that plaintiff has conceded that she held no valid

license to practice veterinary medicine in the state of

Arkansas, so as to have a constitutionally protected

interest. She merely met the qualifications for a

statutory exemption allowing her to practice in

absence of a license.

Having considered plaintiff's causes of action

in light of these undisputed facts, the Court concludes

that defendants are entitled to judgment as a matter of

law.

To substantiate a § 1983 claim of due process

violation, a plaintiff must establish that she was

deprived of a constitutionally protected property

interest because of defendants’ actions, and that the

deprivation occurred without due process of law.

Parratt v. Taylor, 451 U.S. 527, 536-37, 101 S.Ct.

1908, 1913 (1981); Board of Regents v. Roth, 408

U.S. 564, 92 S.Ct. 2701 (1972) (A person’s right to

due process, or notice and an opportunity to appear

and be heard, is triggered by whether or not the person

has a protected property interest).

Property interests are created and_ their

dimensions are defined by existing rules or

understandings that stem from an independent source

such as state law. Roth, 408 U.S. at 577, 92 S.Ct. At

2709; Ikpeazu v. University of Nebraska, 775 F.2d

250, 253 (8" Cir. 1985). A constitutionally protected

property interest requires a demonstration of an

entitlement to the interest. Roth, 408 U.S. at 577, 92

S.Ct. At 2709.

In this instance, the Court finds plaintiff's

assertion of a constitutionally protected license to

practice veterinary medicine at odds with her

concession in the earlier action and before this Court

that she did not hold a license to practice veterinary

medicine during the subject time period, but merely

qualified for a statutory exemption. The Court is not

persuaded by plaintiff's argument that she has only

admitted the lack of a certificate issued by the Board

while claiming licensure by virtue of the exemption.

In enacting law setting forth certain exemptions to

licensure, the Arkansas General Assembly retained

unrestricted discretion to change the law at any time.

Thus, unlike a license, plaintiff's qualification for the

exemption then in effect does not qualify as a

constitutionally protected interest. See Doran v.

Houle, 721 F.2d 1182, 1185 (9" Cir. 1983) (“Where

the government, as the source of the interest in

question, retains unrestricted discretion over future

enjoyment of the interest, the interest is not a

protected entitlement.”) (citing Bishop v. Wood, 426

U.S. 341, 344-47, 96 S.Ct. 2074, 2077-78 (1976)).

Moreover, plaintiff has failed to present

evidence to establish that defendants, through their

actions in meeting to discuss plaintiff's activities,

sending cease and desist letters, requesting

prosecution of plaintiff, and filing a lawsuit to enjoin

plaintiff's practice, deprived plaintiff of any interest

without due process of law. Defendants assert, and

plaintiff does not dispute, that, during the relevant

time period, the Board lacked authority over

unlicensed practitioners. Thus, the Board could not

engage in any “adjudication” with regard to plaintiff

so as to invoke the due process protections afforded

by the Arkansas Administrative Procedures Act, Ark.

Code Ann. § 25-15-201, et seg. (1995 repl.) (“APA”).

Nor could the Board, itself, deprive plaintiff from

practicing under her claim to exemption from

licensure. Rather, defendants could only apply to

another authority or tribunal - in this instance the

prosecuting attorney or the chancery court - for any

final binding action. See Int’l Tel. And tel. Corp.,

Communications Equip. and Sys. Div. V. Local 134,

Int’l Bhd. Of Elec. Workers, AFL-CIO, 419 U.S. 428,

95 S.Ct. 600 (1975) (agency investigatory

proceedings, no matter how formal, which do not lead

to issuance of an order containing elements of a final

disposition do not constitute an “adjudication” within

the meaning of the APA).

Plaintiffhas failed to allege any facts in support

of her claim that defendants’ actions deprived her of

her constitutional right to equal protection under the

law. Thus defendants are entitled to summary

judgment on this claim as well.

To the extent that plaintiff seeks monetary relief

from defendants in their official capacities, defendants

are entitled to Eleventh Amendment immunity from

suit. To the extent that any injunctive relief would

apply as against the Board itself, as opposed to the

individual members of the Board, plaintiff's claims

are also barred by Eleventh Amendment-immunity.

Plaintiff is further barred from obtaining

injunctive or declaratory relief as against the

defendants in their official capacities because her

claim has become moot since obtainment of her

license to practice veterinary medicine in 1997. See

Scher v. Chief Postal Inspector, 973 F.2d 682, 683 (8"

Cir. 1992); Martin v. Sargent, 780 F.2d 1334, 1337

(8" Cir. 1985). Plaintiff has not established the

application of the exemption to the mootness doctrine

recognized in Murphy v. Hunt, 455 U.S. 478, 482, 102

S.Ct. 1181, 1183 (1982).

Assuming arguendo that plaintiff could

establish that her exemption from licensure

constituted a constitutionally protected property

interest, defendants are, nonetheless, entitled to

judgment as a matter of law.

If the Court accepts plaintiff's proposition that

the Board meetings addressing plaintiff's practice of

veterinary medicine were of such a nature as to

require notice to the plaintiff, then the meetings would

have constituted quasi-judicial hearings. The

defendant Board members are absolutely immune

from suit for actions taken while acting in a quasi-

judicial capacity.. Defendant Glover, as Executive

Secretary of the Board, is further absolutely immune

from suit for actions taken while acting in a

prosecutorial capacity. See Harlow v. Fitzgerald, 457

U.S. 800, 811 (1982) (“Judicial, prosecutorial, and

legislative functions require absolute immunity.”);

Butz v. Economou, 438 U.S. 478 (1978) (agency

officials who perform quasi-judicial functions similar

to those of judges or prosecutors entitled to absolute

immunity; Kwoun v. Southeast Missouri Professional

Standards Review Organization, 811 F.2d 404 (8" Cir.

1987), cert. denied, 486 U.S. 1022 (1988) (agency

administrator afforded absolute prosecutorial

immunity in deciding whether proceeding should be

brought against specified individual); Hicks v.

Georgia Board of Pharmacy, 553 F.Supp. 314, 317

(10" Cir. 1982) (Members of Georgia State Board of

Pharmacy were absolutely immune from damages in

exercise of their quasi-judicial functions regarding

issuance, suspension or revocation of a license).

Defendants are also entitled to qualified

immunity for their actions in this instance. Even if the

Court determined that plaintiffs statutory exemption

from licensing gave rise to a constitutionally protected

property interest, the law was not clearly established

in this regard such that reasonable persons in

defendants’ positions would have realized their

actions violated the law.

Based on the foregoing, summary judgment will

be entered in favor of defendants on plaintiff's § 1983

claims.

Having granted summary judgment on

plaintiff's federal causes of action, the Court declines

to_exercise supplemental jurisdiction over plaintiff's

state law causes of action.

Any remaining pending motions are hereby

denied as moot.

IT IS SO ORDERED this 29 day of January,

1999.

“s/James M. Moody, United States District Judge”

Counsel: Robert J. Price for Plaintiff; M. Wade

Hodge for Defendants.

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION |

DR. SANDRA K. DUNHAM, D.V.M.,

PLAINTIFF _

VS. NO. LR-C-95-432

DR. GEORGE WADLEY, D.V.M.,

ET AL, DEFENDANTS

JUDGMENT

Pursuant to the Order entered in this matter this

date, summary judgment is hereby entered in favor of

defendants on plaintiff's § 1983 claims.

Having granted summary judgment on

plaintiff's federal causes of action, the Court declines

to exercise supplemental jurisdiction over plaintiff's

state law causes of action.

DATED this 29 day of January, 1999.

“s/James M. Moody, United States District Judge”

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 99-1524

Sandra K. Dunham, D.V.M.,

Appellant

Appeal From the United States

V. District Court for the Eastern

; District of Arkansas.

George Wadley, D.V.M.;

Wingfield Martin;

Everett I. Rogers, D.V.M.;

G. C. Blair, D.V.M.;

James W. Waymack, D.V.M.;

Donald I. Mayfield, D.V.M.;

Gary F. Strickland, D.V.M.; and

Sherry Glover,

Appellees

Submitted: September 16, 1999

Filed: November 10, 1999

Before BOWMAN, LAY, and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Sandra Dunham, a veterinarian, appeals the

decision by the district court’ to grant the defendants'

motion for summary judgment on her claims under 42

U.S.C. § 1983 and Arkansas law. The defendants

were members of the Arkansas Veterinary Medical

Examining Board at all times in question.

Dr. Dunham contends that a_ licensing

exemption contained at the relevant time in the

Arkansas statutes, see Ark. Code Ann. § 17-99-

'The Honorable James M. Moody, United

States District Judge for the Eastern District of

Arkansas.

307(b\(8) (1994) (repealed 1995), gave her a

constitutionally protected property interest and that

the defendants deprived her of it without due process.

The district court held that although Dr. Dunham

qualified for the exemption, such a qualification did

not establish a property interest that was protected

under state law. The district court further held that the

board members were absolutely immune from suit by

virtue of the fact that their proceedings were quasi-

judicial in nature. We affirm the district court's

judgment.

The defendants participated in meetings of the

board during which they considered accusations that

Dr. Dunham was practicing veterinary medicine

without a license in violation of Ark. Code Ann. § 17-

101-312(a). Dr. Dunham was not licensed to practice

veterinary medicine in Arkansas, but was in the

process of obtaining an Educational Commission for

Foreign Veterinary Graduates (ECF VG) certificate.

One subsection of the Arkansas statutes at the relevant

time provided that “[t]his chapter shall not be

construed to prohibit ...[a] graduate of a foreign

college of veterinary medicine who is in the process of

obtaining an [ECFVG] certificate from performing

duties or actions under the direction and supervision

of a licensed veterinarian. See Ark. Code Ann. § 17-

99-307(b)(8) (1994).

The board interpreted this licensing exemption

for ECFVG candidates as requiring the supervising

licensed veterinarian to be physically present at the

clinic where the ECF VG candidate was practicing.

The board had received information that Dr. Dunham

was practicing at two clinics without a licensed

veterinarian on site and therefore sent “cease and

desist” letters to Dr. Dunham and her two employers.

Each employer then terminated her employment. Dr.

Dunham thus claims that the letters to the clinics

caused her employment to be terminated. (The board

subsequently petitioned in Arkansas state court to

enjoin Dr. Dunham from any future unauthorized

practice of veterinary medicine.)

Dr. Dunham contests the board's conclusion

that she was outside the scope of the statutory

exemption and was therefore unlawfully practicing

veterinary medicine. The board's letters invited Dr.

Dunham to call the board's office if she had any

questions, but she testified that she did not do so

because she “became aware that for [her] to have

attempted to discuss [her] situation would have been

futile.” She argues that the board should have given

her the opportunity to demonstrate that her actions fell

within the exemption and that the defendants’ failure

to give her this opportunity deprived her of due

process. 3

To establish a claim under 42 U.S.C. § 1983,

Dr. Dunham must show a deprivation of a right,

-privilege, or immunity secured by the Constitution or

the laws of the United States. See Montano v.

Hedgepeth, 120 F.3d 844, 848 (8th Cir. 1997). Dr.

Dunham asserts that the defendants deprived her of

property without procedural due process of law and

thus in violation of the fourteenth amendment.

The analysis of a procedural due process claim

must begin with an examination of the interest

allegedly violated. See Riley v. St. Louis County, 153

F.3d 627, 630 (8th Cir. 1998), cert. denied, 119 S.Ct.

1113 ( 1999). Property interests such as the one

claimed by Dr. Dunham derive from existing rules

that stem from an independent source, such as state

law. See Board of Regents v. Roth, 408 U.S. 564, 577

(1972); see also Singleton v. Cecil, 176 F.3d 419, 421-

22 (8th Cir. 1999) (en banc), petition for cert, filed,

No. 99-376 (U.S. Aug. 31,1999). Dr. Dunham

maintains that Ark. Code Ann. § 17-99-307(b)(8)

(1994) provided her with a property interest in

practicing veterinary medicine that was protected by

the fourteenth amendment. We disagree.

The Supreme Court has said that “[t]he

hallmark of property ...is an individual entitlement

grounded in state law, which cannot be removed

except ‘for cause.’”” Logan v. Zimmerman Brush Co.,

455 U.S. 422, 430 (1982). We have held that a state

statute or policy can create a constitutionally protected

property interest, first, when it contains particularized

substantive standards that guide a decision maker and,

second, when it limits the decision maker's discretion

by using mandatory language (both requirements are

necessary). See. Jennings v. Lombardi, 70 F.3d 994,

995-96 (8th Cir. 1995). Statutes or policies that are

only procedural, or that grant to a decision maker

discretionary authority in their implementation, in

contrast, do not create protected property interests. Id.

at 996.

The statute provides that “[n]o person may

practice veterinary medicine in this state who is not a

licensed veterinarian or the holder of a valid

temporary permit issued by the board.” See Ark.

Code Ann. § 17-101-307(a). The subsection that

listed exemptions to that requirement at the relevant

time stated that “[t]his chapter shall not be construed

to prohibit ...[a] graduate of a foreign college of

veterinary medicine who is in the process of obtaining

an [ECFVG] certificate from performing duties or

actions under the direction and supervision of a

licensed veterinarian.” That subsection, § 17-99-

307(b)(8) (1994), along with eight other subsections,

therefore provided a statutory exemption from the

general prohibition on the unlicensed practice of

veterinary medicine.

We believe, however, that the statute's

exemption did not create a protectable interest,

because it did not entitle Dr. Dunham to do anything;

she was merely exempted from a licensing

requirement. The statute did not change Dr. Dunham's

legal status in any way: If the licensing requirement

had not been enacted, she would have beenentitled to

practice veterinary medicine without a license, which

is precisely the right that she is presently claiming.

Her exemption from the licensing requirement

therefore created no constitutionally protected

property interest. See Roth, 408 U.S. at 576, 578, and

Jennings, 70 F.3d at 996.

IIT.

It may well be that Dr. Dunham had a liberty

interest in practicing veterinary medicine, a right

created not by the statute on which she relies but one

that the fourteenth amendment nevertheless protects.

See generally Conn v. Gabbert, 119 S.Ct. 1292, 1295-

96 (1999); see also Roth, 408 U.S. at 571-72.

Although Dr. Dunham makes no such argument here,

we do not want to be understood as saying that such

a liberty interest does not exist or that we would have

rejected the argument that such an interest did exist if

Dr. Dunham had made it. But even if Dr. Dunham did

have a constitutionally protected liberty to be a

veterinarian, we believe that her claim would have

failed because the defendants are entitled to absolute

immunity.

Persons who perform quasi-judicial functions

are entitled to absolute immunity. See Butz v.

Economou, 438 U.S. 478, 512-16 (1978); see also

Kwoun v. Southeast Missouri Professional Standards

Review Organization, 811 F.2d 401, 407 ( 8th Cir.

1987). The Supreme Court has held that absolute

immunity is appropriate when an official's functions

are similar to those involved in the judicial process,

see Butz, 438 U.S. at 513, an official's actions are

likely to result in lawsuits for damages by

disappointed parties, see id. at 515, and sufficient

safeguards exist in the regulatory framework to

control unconstitutional conduct, see id. at 512. See

also Ostrzenski v. Seigel, 177 F.3d 245, 249 (4th Cir.

1999), and Romano v. Bible, 169 F.3d 1182, 1187

(9th Cir. 1999).

The board here consisted of five members who

were appointed by the governor for five-year terms.

See Ark. Code Ann. § 17-101-201(b). Four of the

members were licensed veterinarians, see § 17-101-

201(b)(1), and one of the members was a non-licensed

public citizen, see § 17-101-201(b)(2). The

membership terms are arranged so that one expires

every year. In cases involving complaints of

unauthorized practice, the statute empowers the board

to conduct investigations, hold hearings, administer

oaths, receive evidence, issue subpoenas, make factual

and legal determinations, and enter orders consistent

with the findings. See § 17-101-203(4), § 17-101-

203(10). The statute also empowers the board to

bring proceedings in state court to enforce the

statutory provisions. See § 17-101-203(11). ~

The board discussed Dr. Dunham's situation

during two scheduled meetings, maintained detailed

minutes of each meeting, and considered investigative

reports that were prepared in her case. Following the

meetings, the board issued orders in the form of letters

sent to Dr. Dunham and two of her employers

informing them of the board's conclusion that Dr.

Dunham was engaging in the practice of veterinary

medicine without a proper license, and warning that

the employers themselves would be subject to

criminal punishment if they did not “cease and desist”

from their employment of her. Dr. Dunham in fact

agrees that the letters were not mere requests, but,

rather, “threatened criminal prosecution and future

adverse administrative action should she fail to

comply .”

_ The letter to Dr. Dunham's first employer

concluded that “[i]t is necessary ...for you to cease

and desist from employing any person to practice

veterinary medicine in this state who is got duly

authorized [to do so ]” ( emphasis supplied). The

board also subpoenaed Dr. Dunham to attend a

hearing at which her second employer agreed to

terminate her employment.

To the extent that the board weighed evidence,

made factual determinations, determined sanctions,

and issued written decisions, we conclude that these

duties are functionally comparable to the duties

performed by courts. See Romano, 169 F.3d at 1187.

Cf. Cleavinger_v. Saxner, 474 U.S. 193, 202-06

(1985). We further conclude that the board's actions

are likely to result in lawsuits for damages by

disappointed parties such as Dr. Dunham, that

sufficient safeguards exist in the Arkansas regulatory

framework to control unconstitutional conduct, and

that defendants are therefore protected by quasi-

judicial immunity. See Butz, 438 U.S at 512-16; see

also O'Neal v. Mississippi Board of Nursing, 113 F.3d

62, 65-66 (Sth Cir. 1997).

While some of the board's functions, such as

bringing an enforcement proceeding in Arkansas state

court, might have been prosecutorial in nature, we

note that courts have also granted absolute immunity

to actors who perform such prosecutorial functions.

See, e.g., Wang v. New Hampshire Board of

Registration in Medicine, 55 F.3d 698, 701 (Ist Cir.

1995), and Horwitz v. State Board of Medical

Examiners, 822 F.2d 1508, 1515 (10th Cir. 1987); see

also Mishler v. Clift, 1999 WL 692011, at #7, #15-

#21 (9th Cir. Sept. 8, 1999).

We agree with the reasoning of these cases, and

we note, furthermore, that Dr. Dunham produced no

evidence showing that the defendants acted in non-

judicial or non-prosecutorial capacities, or that they

acted in “complete absence of all jurisdiction,” Duty

v. City of Springdale, Arkansas, 42 F.3d 460, 462 (8th

Cir. 1994) (per curiam). See generally Martin v.

Hendren, 127 F.3d 720, 721 (8th Cir. 1997). Since the

defendants’ actions were functionally comparable to

those of judges and prosecutors, they are entitled to

absolute immunity .

IV.

For the foregoing reasons, we affirm the

judgment of the district court.

A true copy.

Attest! CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

Counsel: Robert J. Price for Appellant; Tim Gauger,

Patricia Bell and AnnaMary Dougherty for Appellees.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 99-1524EALR

Sandra K. Dunham, Dr., D.V.M..,

Appellant

Order Denying Petition for

Rehearing and for Rehearing

En Banc

George Wadley, Dr., D.V.M.,

Wingfield Martin, Everett I.

Rogers, Dr., D.V.M., G.C. Blair,

Dr., D.V.M., James W. Waymack, Dr.,

D.V.M., Donald I. Mayfield, D.,

D.V.M., Gary F. Strickland, Dr.,

D.V.M., Sherry Glover,

Appellees

The petition for rehearing en banc is denied.

The petition for rehearing by the panel is also denied.

(5128-010199)

January 11, 2000

Order entered at the Direction of the Court:

“*s/Michael E. Gans”

Clerk, U.S. Court of Appeals, Eighth Circuit

Counsel: Robert J. Price for Appellant. No response

filed by counsel for Appellees..

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DR. SANDRA K. DUNHAM, D.V.M. PLAINTIFF

VS. NO. LR-C-95-432

DR. GEORGE WADLEY, D.V.M.,

WINGFIELD MARTIN, DR. EVERETT

I. ROGERS, D.V.M., DR. G. C.

BLAIR, D.V.M., DR. JAMES W.

WAYMACK, D.V.M., DR. DONALD I.

MAYFIELD, D.V.M., DR. GARY

F. STRICKLAND, D.V.M., AND

SHERRY GLOVER DEFENDANTS

AFFIDAVIT OF SANDRA K. REYNOLDS

I, Sandra K. Reynolds, first being duly sworn,

do hereby state and verify the following on personal

knowledge: :

1. - I am a veterinarian; I received my

Certificate of License from the Arkansas Veterinary

Medical Examining Board on July 9, 1997.

2. My father is Dr. Robert E. Dunham; he is

also a licensed veterinarian who has practiced in

Crossett, Arkansas for over 25 years. He was the

primary inspiration for my own decision to become a

veterinarian, just as he influenced my late brother

Michael's decision to become a veterinarian. My

father and I both love our jobs and get a great deal of

personal satisfaction from working with and helping

people and animals in need.

3. I love my father just as any daughter

would love her father. We were alweys close, and

became more so after the sudden and unexpected

death of Michael on October 26, 1993.

4. I am a 1991 graduate of Justus Liebig

University in Giessen, W. Germany, a foreign college

of veterinary medicine; I became a veterinarian upon

my graduation.

5. At all times from March 3, 1992 through

April 30, 1996, I was enrolled in the American

Veterinary Medical Association's ECF VG program.

(See Affidavit of Toni Higgins-Thrash attached hereto

as Exhibit A; see Dr. Sandra K. Dunham's ECF VG

Certificate, attached hereto as Exhibit B.) The

Defendants were aware of these things.

6. I know that the Defendants were aware

that I was so enrolled because: (1) I had specifically

discussed my ECFVG status with Sherry Glover, the

Executive Director of the Board; she required that I

contact the AVMA and have them send a letter to her

confirming my status before she would allow me to

take the tests required by state law to obtain a

= 28

Certificate of License from the Board, and Ms. Glover

sent me a letter informing me that she had received the

AVMA letter; (2) George Wadley, the Secretary-

Treasurer of the Board at the time, testified under oath

on July 29, 1994 that he was aware that I was enrolled

in the ECF VG program. (See letter dated March 12,

1992 from Sandra K. Dunham, D.V.M. to the

American Veterinary Medical Association, attached

hereto as Uxhibit C; see letter dated March 17, 1992

from Toni Higgins-Thrash to Sherry Glover, attached -

hereto as Exhibit D; See letter dated-March 13, 1992

from Sherry Glover to Sandra K. Dunham attached

hereto as Exhibit E; see Exhibit F-1 attached hereto.)

7. I was employed by Dr. Gary Wallis at the

Monticello Animal Clinic from on or about April 15,

1992 through on or about the Monday following

August 6, 1992.

8. The Defendants were aware that I was

employed by Dr. Gary Wallis at the Monticello

Animal Clinic and that he was a licensed veterinarian.

9. I know that the Defendants were aware

that Dr. Gary Wallis was a licensed veterinarian at the

time because the Certificate of License he held was

issued by the Board.

10. I know that the Defendants were aware

that I worked for him because they caused a copy of a

"Cease and Desist" letter dated August 6, 1992 which

they had sent to me as well as a separate "Cease and

Desist" letter concerning his alleged "aiding and

abetting" of my unlawful practice of veterinary

medicine to be sent to him as my employer.

11. Atall times from April 15, 1992 through

August 6, 1992, when I was employed at the

Monticello Animal Clinic, I was under the direction

and supervision of a licensed veterinarian when

performing duties or actions.

12. The licensed veterinarians under whose

supervision I was performing duties or actions at the

Monticello Animal Clinic were Gary Wallis, D.V.M.,

Robert E. Dunham, D.V.M., John Porrier, D.V.M..,

Judy Porrier, D.V.M., and Dwight Witcher, D.V.M.

13. The August 6, 1992, letter the Defendants

caused to be sent to me contained the language, "It is

necessary, therefore, for you to cease and desist from

the practice of veterinary medicine until such time as

you have fulfilled the necessary requirements and are

licensed by the Board."

14. [received a copy of the August 6, 1992

letter the Defendants caused to be sent to Gary Wallis;

the letter contained the language, "Dr. Dunham,

therefore, is not licensed to practice veterinary

medicine in the State of Arkansas," and "It is

necessary, therefore, for you to cease and desist from

employing any person to practice veterinary mediciric

in this state who is not duly authorized by the Board

_to engage in such practice."

15. The Defendants did not give me any prior

notice that I was accused of practicing without a

license at the Monticello Animal Clinic or that they

were cohsidering the August 6, 1992 action against

me.

16. I was employed by my father at the

Crossett Animal Hospital from the latter half of

August, 1992 through November 10, 1993.

17. The Defendants were aware that I was

employed by my father at the Crossett Animal

Hospital and that he was a licensed veterinarian.

18. | I know that the Defendants were aware

that my father was a licensed veterinarian at the time

because the Certificate of License he held was issued

by the Board.

19. I know that the Defendants were aware

that I worked for him because they sent a second

"Cease and Desist" letter to me at the Crossett Animal

Hospital, and they were also accusing him of aiding

and abetting my unlawful practice of veterinary

medicine.

20. I know that the Defendants were aware

-that Robert E. Dunham is my father because

Defendant Waymack and my father formerly practiced

together and my father and I were both personally

acquainted with him, and both Defendant Wadley and

Defendant Martin made reference to that fact in sworn

testimony.

21. At all times from the latter half of

August, 1992 through November 10, 1993, when I

was employed at the Crossett Animal Hospital, I was

under the direction and supervision of a licensed

veterinarian when performing duties or actions.

22. The licensed veterinarians under whose

supervision I was performing duties or actions at the

Crossett Animal Hospital were Robert E. Dunham,

D.V.M. (through November 10, 1993), John Porrier,

D.V.M., Judy Porrier, D.V.M., and Dwight Witcher,

D.V.M. :

23. On or about November 9, 1993, the

Defendants caused a second letter to be sent to me; the

letter contained the language, "It is therefore

necessary for you to cease and desist from the practice

of veterinary medicine unless or until you become

licensed by the Board." (See Exhibit G, attached.)

24. On November 10, 1993, the Defendants

conducted a hearing in which they were to decide

whether disciplinary action would be taken against the.

Certificate of License held by my father for, among

other things, aiding and abetting my unlawful

practice.

25. I was compelled by subpoena from the

Board to attend the November 10, 1993 hearing.

26. Before the conclusion of the November

10, 1993 hearing, the Board entered into an agreement

with my father to resolve the disciplinary action

against his Certificate of License.

27. As a part of the agreement reached

between the Board and my father, he was required to

agree that I would not work in the Crossett Animal

Hospital as a veterinarian.

28. The Defendants did not give me any prior

notice that I was accused of practicing without a

license at the Crossett Animal Hospital or that they

were considering the November 9, 1992 or November

10, 1993 action against me. __

29. The August 6, 1992 "Cease and Desist"

letters the Defendants caused to be sent to me and to

my employer, Dr. Gary Wallis, caused me to lose my

right to perform duties and actions under the direction

and supervision of a licensed veterinarian; it also

caused me to lose my job, caused me to lose the

opportunity to buy a thriving veterinary clinic and

practice, caused me to lose earnest money I had paid -

as a down payment on a house, and caused me to lose

the opportunity to buy the house toward which the

earnest money was to have been applied. The "Cease

and Desist" letters were the sole cause of these things.

(See letters attached hereto as Exhibits H and I.)

30. The November 9, 1993 "Cease and

Desist" letter the Defendants caused to be sent to me

and the November 10, 1993 agreement they extracted

from my father, my employer at the time, caused me

to lose my right to perform duties and actions under

the direction and supervision of a_ licensed

veterinarian. The "Cease and Desist" letter and the

agreement were the sole cause. (See November 10,

1993 Minutes, attached hereto as Exhibit J.)

31. While it is true that I did not contact the

Board office, I did, however, contact two members of

the Board.

32. I first called Dr. George Wadley, the

Board's Secretary-Treasurer at the times the

Defendants took action against me, at his home four

times in one evening and spoke to his wife each time.

I left a message each time for him to call me, but he

never did. He did later testify under oath that he was

aware that I had called him, but he never returned my

call. (See Exhibit K, attached.)

33. I also contacted another Board member,

James Waymack, at his clinic in Arkadelphia the

following morning; I was able to get him on the

telephone, and asked him if he knew why I received

the second "Cease and Desist" letter. He told me that

he didn't know, and would only say, "You better get

yourself a good lawyer."

34. I did not ask to address the Board at the

hearing-the Board conducted concerning my father's

Certificate of License. I was only there because I was

compelled to attend, having been served with a

subpoena issued by the Board; but I was never called

as a witness.

35. I was aware that a complaint concerning

my father was before the Board, and that his ability to

practice veterinary medicine in the future was at stake.

I certainly did not want to say or do anything which

might place his Certificate of License in jeopardy, and

I did not know what was or was not proper conduct.in

hearings before the Board. I also have always tried to

conduct myself in a cautious and conservative

manner, and have been taught that if ' 4o not know

which of several choices is the correct one, do nothing

until I am sure which is correct. I later became aware

that for me to have attempted to discuss my situation

would have been futile, in light of the Board members'

refusal to discuss my situation with me.

35. 1 was aware that I would have to submit

my application for a Certificate of License to these

same people after I had comp ited all of the

prerequisites. was specifically warned by the

Defendants in the August 6, 1992 "Cease and Desist"

letter that my alleged unauthorized practice of

veterinary medicine could also reflect ‘upon my

application to practice veterinary medicine in this

state in the future, and I certainly did not want to do

anything that might cause me problems with them in

the future.

36. Thesuit for an injunction the Defendants

caused to be filed against me in the Chancery Court of

Ashley County, Arkansas, caused me to incur

substantial legal expenses in order to defend myself

which I otherwise would not have incurred. (See

Petition for Preliminary Injunction, attached hereto as

Exhibit L.)

37. Each of the Board's several actions

concerning me was based upon the Board's accusation

that I was practicing without a license.

38. I have obtained through the Arkansas

Freedom of Information Act copies of the various

records which were created by the Defendants and

maintained by the Board, including the official

minutes of the Board's meetings; they contain

numerous references to my having been "practicing

illegally." (See copies of Board Minutes, attached

hereto as Exhibit M.)

39. I have never been informed by any of the

Defendants or anyone who serves on or is employed

by the Board that I have been exonerated of the

charges against me, or that the references to my

alleged "unlawful practice" have been purged, deleted

or otherwise removed from the records of the Board or

the records of any of the Defendants.

40. On March 9, 1992, I submitted my

application to take the National Board Examination

and/or the Clinical Competency Test to the Board

through Sherry Glover; at that time, I was given no

information whatsoever, either verbal or written,

concerning the Arkansas Veterinary Medical Practice

Act or the Rules and Regulations of the Board. (See

Application for National Board Exam and/or Clinical

Competency Test in Arkansas, attached hereto as

Exhibit N.)

I first learned that the Arkansas Veterinary

Practices Act existed and that the Board had Rules

and Regulations after the Board had sued me when

Dr. George Wadley, the Board's Chairman at the time,

testified in a deposition that they existed in pamphlet

form and produced a copy of the pamphlet. (See

Exhibits F-2 and F-3, attached hereto.)

41. It was only when I submitted my

application to take the Arkansas State Board

Examination, well after the Board's illegal actions had

ended, that I was given a pamphlet by Sherry Glover

which was entitled, STATE OF ARKANSAS

VETERINARY MEDICAL PRACTICE ACT AND

REGULATIONS; it bore the official seal of the State

of Arkansas, and also bore the address of the Board.

42. After receiving the pamphlet, I read it

carefully in order to familiarize myself with its

contents; neither the Practice Act nor the Rules and

Regulations contain any requirement that a person

claiming to be exempt from licensure by the Board

notify the Board, nor is there any requirement that

anyone who claims to be performing duties or actions

under the direction and supervision of a licensed

veterinarian notify the Board of the identity of the

supervising veterinarian or describe the manner in

which the supervision is being done.

43. I was never told or otherwise given any

information by any of the Defendants nor by any

member or employee of the Board to the effect that

any requirement existed that a person claiming to be

exempt from licensure by the Board notify the Board,

nor of any requirement that anyone who claims to be

performing duties or actions under the direction and

supervision ofa licensed veterinarian notify the Board

of the identity of the supervising veterinarian or

describe the manner in which the supervision is being

done.

44. I was never told or otherwise given any

information by any of the Defendants nor by any

member or employee of the Board that I had any

options other than to obey their "Cease and Desist"

letters.

45. Ihave married, and my name is now Sandra

K. Reynolds, D.V.M.

I have read the above and foregoing statements,

which are true and correct to the best of my

knowledge and belief.

In witness whereof, I hereunto set my hand this

22 day of June, 1998.

FURTHER AFFIANT SAITH NOT.

“s/Sandra K. Reynolds, D.V.M.”

VERIFI ION a

STATE OF ARKANSAS)

COUNTY OF PULASKI)

On this day appeared Sandra K. Reynolds,

D.V.M., before me, a notary public, and stated on oath -

that the foregoing information is true and correct to

the best of her knowledge and belief.

SUBSCRIBED AND S WORN to before me this

22 day of June, 1998.

“s/Shari L. Rogers”, Notary Public

My Commission Expires: 1-29-2006

\ ee RELEVANT EXHIBITS AND

PORTIONS OF EXHIBITS ATTACHED

TO AFFIDAVIT OF SANDRA K. REYNOLDS

EXHIBIT A

AFFIDAVIT OF TONI HIGGINS-THRASH

State of Illinois )

County of Cook)

Before the undersigned, Darlene Verbelia, duly

qualified and acting in and for said county and state,

appeared Toni Higgins-Thrash to me well known or

satisfactorily proven to be the affiant herein, who

stated the following under oath:

As Coordinator of the Educational Commission

for Foreign Veterinary Graduates (ECFVG)

certification program, I, Toni Higgins-Thrash, verify

the following on personal knowledge:

1. Dr. Sandra Dunham, 1400 Pecan Street,

Crossett, AR, 71635 enrolled in the Educational

Commission for Foreign Veterinary Graduates

(ECF VG) program on March 3, 1992, and

2. That Dr. Sandra Dunham (address above) is

still in the process toward completing the

requirements for an ECFVG certificate.

The Affiant above has read the above and

foregoing statements and states that they are true and

correct to the best of her knowledge and belief.

In witness whereof, I hereunto set my hand this

27" day of June, 1994.

“s/Toni Higgins-Thrash”

Subscribed and sworn to before me this 27" day

of June, 1994.

“s/Darlene M. Verbelia”, Notary Public

My Commission Expires: May 11, 1998

EXHIBIT B

(CERTIFICATE FROM THE AMERICAN

VETERINARY MEDICAL ASSOCIATION)

This is to Certify that Sandra K. Dunham has

complied on the date indicated below with the

requirements of the Educational Commission for

Foreign Veterinary Graduates. In testimony whereof

are affixed the name of the Chair of the Commission

and the seal of the American Veterinary Medical

Association at Schaumburg, Illinois this 30" day of

April, A.D. 1996.

“s/Clifford I. Johnson, D.V.M., M.P.H.”, Chair,

ECFVG

Seal of the American Veterinary Medical Association.

EXHIBIT

CROSSETT ANIMAL CLINIC

R. E. DUNHAM, D.V.M.

1005 West First

CROSSETT, ARKANSAS 71635

March 17, 1992

American Veterinary Medical Ass’n

1931 W. Meacham Road, Suite 100

Schaumburg, IL 60173-4360

ATTN: Verification of enrollment in ECF VG Program

ATTN: Toni Higgins-Thrash

ECF VG Coordinator

Dear Mrs. Higgins-Thrash:

As per our telephone conversation of March 9, 1992,

I request verification of enrollment in the ECF VG

program. Can you please telephone or FAX this

information and verification to the Arkansas

Veterinary Medical Ass’n., P.O. Box 21061, Little

Rock, Arkansas 72221, tel.: (S01) 221-1447, ATTN:

Sherri Glover, no later than March 14-15. All

applications and necessary verifications must be

submitted to the Arkansas Board of Veterinary

Medical Examiners one month prior to acceptance for

the National boards and CCT.

Thank you.

Respectfully yours.

“s/Sandra K. Dunham, D.V.M.”

cc: Sherri Glover z

Handwritten on letter: Done; TH-T; 3/10/92;

Telephone Verified (501) 224-2836.

EXHIBIT D

March 17, 1992

Sherry Glover, Executive Secretary

Arkansas Veterinary Medical

Examining Board

#1 Natural Resources Drive

P.O. Box 5497

Little Rock, AR 72215

Dear Sherry Glover:

This letter will verify that Dr. Sandra K. Dunham,

1400 Pecan Street, Crossett, AR 71635 is currently

enrolled in the Educational Commission for Foreign

Veterinary Graduates certificate program.

Dr. Dunham provided the necessary documentation to

waive the TOEFL, TSE and TWE English language

examination requirements for ECFVG program

purposes.

In-order to complete the ECFVG certification

program, Dr. Dunham will need to successfully pass

the National Board Examination and Clinical

Competency Test, as well as acquire the year of

evaluated clinical experience at an AVMA-accredited

or -approved college of veterinary medicine, or

successfully pass the Clinical Proficiency

Examination.

This letter is being sent at the request of Dr. Dunham.

Sincerely,

Toni Higgins-Thrash, MPA

ECF VG Coordinator

Division of Scientific Activities

TH-T/kms

cc: Dr. Dunham

March 13, 1992

Sandra Kay Dunham , D.V.M.

1490 Pecan Street

Crossett, AR 71635

Dr. Dunham:

Your application for the NBE and CCT was received

today along with your checks in the amount of $225.

In order to complete your file, we will need a copy of

your veterinary college diploma from Justus-Liebig

University. Also, in the letter you wrote to the

AVMA requesting verification of enrollment in the

ECFVG program, you gave the address of the AR

VMA and not the board. If you would call them and

give our Fax Number (1-501-225-9727), this should

allow us to receive the information much quicker.

Sincerely,

“s/Sherry Glover”, Executive Secretary.

/sg

Enclosure: Receipt

EXHIBIT F-1

(PARTIAL TRANSCRIPT OF TESTIMONY

PREPARED BY DEBBIE DUDLEY, CCR,

LITTLE ROCK, ARKANSAS (501) 666-8122)

A. No. I talked to her mother on the phone one

time. That’s all.

Q. Do you remember when that was?

A. No.

Q. Do you remember what the conversation

was about?

A. No, not really. It would have been —I’m not

sure. It was — as I recall, it was — she just had some

questions about some things. I don’t recall exactly

what it — what it covered and all. >

Q. Do you recall if it related to Dr. Sandra

Dunham or to someone else?

A. Well, I—no, I really don’t. I assume that it

related to both Dr. Dunham — Mr. — you know, her

father and to her both, but I’m — but I’m not —I’m not

at all sure at this point in time.

Q. Do you remember if she initiated the contact

or if you did?

A. Her mother. Her mother did.

Q. As we sit here today, do you have any

knowledge about Dr. Dunham — and from now on

when I say “Dr. Dunham,” I mean Dr. Sandra K.

Dunham —- about Dr. Dunham’s_ educational

background?

A. I know in a very vague general way that she

went to veterinary school in Germany. That’s about

it.

Q. Do you know whether she obtained a degree

_ over there?

A. Well, I’m sure she did because she’s in the

process of going through the ECF VG program.

Q. And ECFVG means_ Educational

Commission for Foreign Veterinary Graduates

certificate?

A. Right.

Q. What information, if any, do you have

concerning Dr. Dunham’s professional activities?

A. The only information I have is information

that was supplied by an investigator. That would be

the only information I have.

Q. You heard Wade Hodge —

A. And I don’t have that information now,

because I don’t have access to it anymore.

Q. You heard Wade Hodge give a deposition

just a moment ago?

A. Yes.

Q. You heard us discussing Exhibit C to the

Petition that was filed in Chancery Court in Ashley

County?

A. Yes.

Q. The two-page report titled Investigator’s

Notes, is that what you’re referring tojust now?

A. Yes. °

Q. Other than that, do you have any factual

information concerning Dr. Dunham’s activities,

whether it be in writing, verbal, or otherwise?

A. The only other information that I’m aware

of was an...

E 2

(PARTIAL TRANSCRIPT OF TESTIMONY

PREPARED BY DEBBIE DUDLEY, CCR,

LITTLE ROCK, ARKANSAS (501) 666-8122)

Q. . . .regulations of the Board, meaning the

Arkansas Veterinary Medical Examining Board, that

regulates the practice of veterinary medicine in

Arkansas? Stated differently, does that act contain it

all — I mean, that pamphlet that you’re holding?

A. It contains all of the Board’s authority. I

remember there is a Rabies Control Act that the

veterinarians have to comply with also, and that’s

administered by the State Health Department. But as

far as the Board is concerned, where they receive their

authority is from this practice act right here.

MR. PRICE: Madam Court Reporter, please

attach that to the deposition as Exhibit A. We'll

attach the Petition for Preliminary Injunction, the

affidavit attached to it identified by the witness, and

Exhibits A, B, and C all collectively as Exhibit 2.

- (Deposition Exhibits A and 2 were marked.)

Q. (By Mr. Price) Do you know if the Board

has promulgated any rules and regulations since that

pamphlet was in print?

A. No, they have not. To my knowledge they

have not. Remember that I’m not on the Board

anymore, and they’ve had a couple of meetings since

I went off. So up until the time I was on it they had

not.

Q. When did you go off the Board?

A. This spring.

Q. Do you remember the date?

* * *

A. Yes.

Q. However they came into being, they did so

while you were there?

A. Right. Any according to state law, which

I’m not all that familiar with, but I know that our rules

and regulations had to go back to the legislature and

be approved along with the — and that was after the

practice act was approved, sort of a whole ball of wax.

They do it in steps, but —

Q. But that pamphlet right now says it all and

did at the time this suit was filed?

A. Yes.

Q. Does everyone in Arkansas, every person

who purports to practice veterinary medicine, have to

be licensed by the Board?

A. There are exceptions in the practice act that

you can read for yourself and it will tell you who’s

exempted from it.

Q. Lists them specifically by category?

A. Yes, and what they can and what they can’t

do.

Q. Does the Board have any regulations in

force which define any of those exemptions or

regulate the practice of persons who are exempt under

the act?

A. It’s all right there.

Q. So if they do, it would be in that pamphlet?

A. It’s all in the act or the rules and

regulations.

MR. PRICE: Take about a five-minute break.

I think I’m out of gas.

STATE OF ARKANSAS, VETERINARY MEDICAL

PRACTICE ACT AND REGULATIONS

Veterinary Medical Examining Board, #1 Natural

Resources Drive, P.O. Box 5497, Little Rock,

Arkansas 72215.

CONTENTS

VETERINARY MEDICAL PRACTICE ACT -

CHAPTER 99

Title (§17-99-101)......cccceseeee. Hae outed. 1

ELE TES NEE Ne pny ek Suge TOR eT ESTED TR FORT l

Definitions(§ 1 7-99-102)............ccccccsseeeeseeeees l

Board Creation, Members,

Organization (§17-99-202)...........cccceeeeseee 4

Secretary-Treasurer (§19-99-202)..............4. 5

Board Powers & Duties (§19-99-203).......... 5

Appl. for Lic. (Veterinarians) (§19-99-301). 6

Examination (Veterinarians) (§19-99-302).. 7

License Without Examination or License

by Endorsement (§19-99-303)..............cc008. 8

Temporary Permit (§19-99-304)................ 9

Denial, Suspension or Revocation of a

Veterinary License (§19-99-305)................ 9

Veterinary Tech. Certification

CARA MN Bese Vek cas thskahads Sasi essueniaisbacbonbunetees 11

Veterinary Technician Veterinarian

Responsibility (§ 19-99-306)..............::eeee i]

Exemptions (§ 19-99-307)..........:scccsssseeeseeees 13

Denial, Suspension or Revocation of a

Veterinary Tech. Cert. (§19-99-308).......... 14

License Renewal (§19-99-309)............ccc0000 15

Continuing Education (§19-99-310)............. 16

Civil Penalty (§ 19-99-311)...........csceseseesseeees 17

Practicing Without a License

(BFF E Ei cssconenversevesaniiiabacstbabanidenctsasesih 17

Abandoned Animals (§19-99-313)............... 18

Code Amendment (Section 2)..............:0c00 18

Severadility (Section 3). ic.isssccccissededicsesesscees 18

Repealing Clause (Section 4)... 19

Emergency Clause (Section 5).............s0000 19

RULES & REGULATIONS

AGT avi iiiciritinn nag 29

Commpleinits, Heemrinnigtis icici ocgistcsicschuessavnestenss 30

Continuing Equcation.......sccsisescssivesseeietocianss 21

Controlled Substances. ......:.cssscsessvsssiesscoiess 26

COMDOTORIONE, siniiisincitics Kactigiiieedpanma aa 28

BUM waiicdbaiccosscscitehckdriateshodinesieietenimanmasaantaiiiiinn 20

Inspection and Min. Standards of Practice... 22

Prescriptaoes EMUGB......:0:sedtissieitieick Abaguaslanas 25

RO COSIOIIINE 5s 0siis iis ocinssavsssnvennbianicnsniapiainn 24

Unprofessional Conduct..............:cccssceseeeeeees 31

* * *

RULES AND REGULATIONS

OF THE ARKANSAS

VETERINARY MEDICAL

EXAMINING BOARD

(Adopted: 12/1/76) (Amended 6/23/93)

1. For the purpose of the Rules and

Regulations contained herein, the term “Board” means

the Veterinary Medical Examining Board.

2. The principal office of the Board is located

at the Natural Resources Complex, One Natural

Resources Drive, P.O. Box 5497, Little Rock,

Arkansas 72115.

3. Pursuant to the authority granted the

Veterinary Medical Examining Board by Act 60 of

1987, the Board creates a specialty area in poultry

practice. Persons seeking licensure under this

provision will be tested only in the area of poultry

medicine. A person who is issued a Poultry Specialty

Area license will not be allowed to practice any other

form of veterinary medicine.

4. Each person holding a certificate of

registration, license (general or specialty), permit or

any other authority to practice veterinary medicine or

engage in any activity in the State of Arkansas under

any and all laws administered by the Board shall file

his proper and current mailing address with the Board

at its principal office and shall immediately notify the

Board at its said principal office of any and all

changes of mailing address, giving both his old and

his new address.

COMPLAINTS, HEARINGS

(Adopted: 12/1/76) (Amended: 5/24/88)

16. Any and all complaints within the

jurisdiction of the Board must be in writing, dated and

signed by the complainant, notarized and filed with

the Secretary-Treasurer of the Board. The Secretary-

Treasurer, upon receiving such complaint, may

proceed to investigate said complaint and may take

statements from any person thought to have

knowledge of any fac(s) pertaining thereto.

17. Any and every complaint making out a

prima facie case shall be presented to and reasonably

disposed of by the Board, giving due consideration to

sufficient and necessary time to investigate and

consider the complaint.

18. Disciplinary hearings may be conducted

either on the Board’s own motion or based on a

written complaint if a violation of the Veterinary

Medical Practice Act has been discovered.

** *

EXHIBIT G

November 9, 1993

Sandra K. Dunham

Crossett Animal Clinic

1005 West First

Crossett, AR 71635

Dear Ms. Dunham:

I am again writing to you in my capacity as attorney

for the Arkansas Veterinary Medical Examining

Board. It has been once again brought to the attention

of the Board that you are practicing veterinary

medicine without being licensed by the Board.

Pursuant to A.C.A. §17-99-101 et seg., one must be

licensed in order to lawfully practice veterinary

medicine in this state.

It is therefore necessary for you to cease and desist

from the practice of veterinary medicine unless or

until you become licensed by the Board.

Please be advised that the unauthorized practice of

veterinary medicine is punishable by a fine of up to

$250.00 and/or up to one year imprisonment. Each

day of unlawful practice constitutes a separate

offense.

56 2

This is your second notice to cease and desist from the

unauthorized practice of veterinary medicine.

Continued noncompliance on your art could result in

a lawsuit being filed against you. If you have any

questions, please contact the Board office at 224-

2836.

Sincerely,

“s/M. Wade Hodge”, Assistant Attorney General

cc: Sherry Glover, Arkansas Veterinary

Medical Examining Board

EXHIBIT H

August 6, 1992

Dr. Sandra Dunham

Monticello Animal Clinic

109 Highway 425 South

Monticello, AR 71655

Dear Dr. Dunham:

I am writing to you in my capacity as attorney

for the Arkansas Veterinary Medical Examining

Board. The Board has information and belief that you

are engaging in the practice of veterinary medicine

without proper licensure.

It is necessary, therefore, for you to cease and

desist from the practice of veterinary medicine until

such time as you have fulfilled the necessary

requirements and are licensed by the Board.

Please be advised that the practice of veterinary

medicine without a license is punishable by a fine of

up to $250 for each and every offense and/or

imprisonment for up to one year. Unauthorized

practice could also reflect upon your application to

practice veterinary medicine in this state in the future.

If you have any questions, please call the Board

office at 224-2836.

Sincerely,

“s/M. Wade Hodge”, Assistant Attorney General

MWH:dc

cc: Sherry Glover

Gary G. Wallis, D.V.M.

Handwritten: cc: Board members, 8-10-92

EXHIB

August 6, 1992

Gary G. Wallis, D.V.M.

Park Hill Pet Clinic

2900 Main

North Little Rock, AR 72116

Dear Dr. Wallis:

I am writing to you in my capacity as attorney

for the Arkansas Veterinary Medical Examining

Board. The Board has information and belief that you

have employed an individual who is practicing

veterinary medicine unlawfully.

It has come io the Board’s attention that Dr.

Sandra Dunham is employed by you at your clinic

located at 109 Highway 425 South in Monticello,

Arkansas. Please be advised that Dr. Dunham took

the National Board Exam and CCT in April of 1992

and passed the CCT but did not pass the NBE. Dr.

Dunham, therefore, is not licensed to practice

veterinary medicine in the State of Arkansas.

Please be advised that Ark. Code Ann. §17-99-

307(a)(6) provides that having professional

association with or employing, any person practicing

veterinary medicine unlawfully is grounds for

disciplinary action including a civil penalty of up to

$5000 and or suspension or revocation of licensure.

It is necessary, therefore, for you to cease and

desist from employing any person to practice

veterinary medicine in this state who is not duly

authorized by the Board to engage in such practice.

If you have any questions, you may call the

Board office at 224-2836.

Sincerely,

“s/M. Wade Hodge”, Assistant Attorney General

MWH:dc

cc: Sherry Glover

Dr. Sandra Dunham

Handwritten: cc: Board Members, 8-10-92

EXHIBI

STATE OF ARKANSAS

VETERINARY MEDICAL EXAMINING BOARD

ONE NATURAL RESOURCES DRIVE

LITTLE ROCK, AR 72205

MINUTES

A special meeting of the Arkansas Veterinary Medical

Examining Board was called on Wednesday,

November 10, 1993, in the Conference Room of the

Liveste. k & Poultry Commission Building, One

Natural Resources Drive, Little Rock, AR. The

purpose of this meeting was to hold a formal hearing

and conduct board business.

CALL TO ORDER:

All board members having been duly notified,

Chairman James W. Waymack, D.V.M., called the

meeting to order at 9:00 AM on November 10, 1993.

PRESENT:

George R. Wadley, D.V.M. Secretary-Treasurer

James W. Waymack, D.V.M. Chairman

G. C. Blair, D.V.M. Member

Wingfield Martin Public Member

Donald I. Mayfield, D.V.M. | Member

IN ATTENDANCE:

Sherry Glover Executive Secretary

Wade Hodge Asst. Atty. General

Jack Kearney Hearing Officer

Robert E. Dunham, D.V.M. —_‘ Respondent

Billy Hubbell Respondent’s Atty.

Ms. Amy Blevins Complainant

Denny Bishop Board Investigator,

Witness

Chris Anderson D.1.U. Investigator,

Witness

Verna Williams Court Reporter

Sandra Dunham, D.V.M.

Steven Dunham

F HEARING - ROBERT E. D M

D.V.M. (CROSSETT):

A formal hearing was called based on a complaint

from Ms. Amy Blevins and investigative reports from

the board investigator, Denny Bishop, and D. I. U.

investigator, Chris Anderson, advising that Dr.

Dunham encouraged or otherwise aided and abetted

unlicensed persons to engage in the practice of

veterinary medicine in that his son, Mike, and

daughter, Sandra, were practicing in Dr. Dunham’s

clinic. Mr. Anderson’s investigative report also

advised that Dr. Dunham keeps no records of

controlled substances and uses Valium and Demoral

and/or other drugs.

Dr. Dunham’s attorney, Billy Hubbell, requested a

conference with the board’s attorney, Wade Hodge,

before the hearing began. At the conclusion of this

conference, Mr. Hubbell advised the board that Dr.

Dunham would offer to surrender his license to

practice veterinary medicine for a period of one year

subject to his being allowed to apply for reinstatement

at the end of that time.

Mr. Hubbell assured the board that Dr. Dunham

would (1) participate in a drug rehabilitation program

and submit to random drug tests, (2) pay the bill

submitted by Dr. mike Cummings in the amount of

$1,248.91 within 30 days of the date of the Order, (3)

would close his clinic unless or until a licensed

veterinarian is on site and the board has been advised

the name of this veterinarian, (4) would have all

controlled drugs removed from his clinic and placed

in the keeping of Mr. Hubbell until they are picked up

by D. I. U. or D. E. A., and (5) assure the board that

Sandra Dunham would not work in the clinic as a

veterinarian. Mr. Hodge advised that if Ms. Dunham

continued to practice as a veterinarian an injunction

would be filed. Mr. Hubbell assured the board that

Ms. Dunham would obey the cease and desist orders

from the Office of the Attorney General (one mailed

on 8/6/93 and a second on 1 1/9/93 - a cease and desist

letter was not sent to Mike Dunham as he died during

the first week of November, 1993).

The board, by a 4 to 0 vote (Dr. Waymack excused

himself from participating in the hearing and voting),

accepted the terms of the agreement.

MINUTES:

Motion was made, seconded and passed unanimously

to approve the minutes of the October 27, 1993,

meeting with an addition to include the statement that

Dr. Bradley’s husband was instructed to give his

name, Fred Hendricks, when returning emergency

calls or giving instructions to clients.

** *

EXHIBIT K

(PARTIAL TRANSCRIPT OF TESTIMONY

PREPARED BY DEBBIE DUDLEY, CCR,

LITTLE ROCK, ARKANSAS (501) 666-8122)

A. . . .afternoon late or something like that.

And, you know, it was one of those spur of the

moment things that you don’t take notes or anything

like that; and so, no, I don’t really — I don’t really

remember what all we talked about and everything.

Q. Do you know whether or not Dr. Sandra

Dunham ever tried to contact you concerning any of

these matters going on between the Board and her?

A. I have a vague recollection that she called

my house one time, and I was supposed to call back

by a certain time or something like that. And I didn’t

get home within that timetable, so I never returned the

call.

Q. And was that since this Complaint was filed,

or do you know? And I’m talking about the action in

Chancery court now when I say “Complaint.”

A. I cannot remember when that — when that

was. I remember it was this year, but I don’t

remember if it was before a certain date or after a

certain date.

Q. Did you discuss Dr. Sandra Dunham’s

professional activities with any other board members?

A. Only in a board meeting.

Q. Can you remember what the gist of those

discussions would have been?

A. The gist would have been that I couldn’t —

the Board couldn’t understand why in the light of

receiving two cease and desist letters that she would

continue to practice as the — as...

EXHIBIT L

IN THE CHANCERY COURT OF ASHLEY

COUNTY, ARKANSAS

ARKANSAS VETERINARY MEDICAL

EXAMINING BOARD PLAINTIFF

VS. NO. 94-147-2

SANDRA K. DUNHAM DEFENDANT

PETITION FOR PRELIMINARY INJUNCTION

(Filed April 20, 1994)

Comes now the Arkansas Veterinary Medical

Examining Board (Board), and in support of its

Petition for Preliminary injunction states as follows:

1. Plaintiff is an agency created by he Arkansas

Legislature and empowered with the duties and

responsibilities outlined in A.C.A. §17-99-101 et seq.

2. Defendant is a resident of Ashley County

and therefore jurisdiction and venue are proper in

Ashley County Chancery Court.

3. Plaintiff seeks a preliminary injunction

requiring the defendant to cease the unauthorized

practice of veterinary medicine in the State of

Arkansas.

4. Pursuant to A.C.A. §17-99-301, any person

not licensed by plaintiff is prohibited from the practice

of veterinary medicine in this state. Defendant is not

now, nor has she ever been, licensed by the plaintiff.

5. Defendant has been repeatedly warned and

ordered by plaintiff to stop the unauthorized practice

of veterinary medicine. Attached hereto as Exhibit

“A” and “B” are cease and desist letters written to

defendant on behalf of the plaintiff.

6. Attached hereto and incorporated by

reference herein is a statement of a state police

investigator who witnessed the defendant treating an

animal, marked as Exhibit “C”.

. 7. The irreparable harm to the general welfare

of the State of Arkansas far outweighs the harm which

would result to the defendant if the court were to grant

the requested injunctive relief.

8. Plaintiff is likely to succeed on the merits of

its claim that defendant has violated applicable laws

and regulations in this case.

9. The preliminary injunction is the only means

available to adequately protect the public interest in

this case. i

10. Pursuant to A.C.A. §17-99-302(d) the

unlawful practice of veterinary medicine is declare to

be a public nuisance, and therefore the granting of the

requested preliminary injunction would be in the

public interest.

11. Plaintiff's request that an immediate

preliminary injunction be ordered and further request

a full hearing on the merits be set at the court’s

earliest possible convenience.

WHEREFORE, plaintiff respectfully request

this court issue an immediate preliminary injunction

requiring the defendant to cease the unauthorized

practice of veterinary medicine in order to protect the

general welfare of the state, and to further order the

defendant to comply with all applicable statutes and

regulations, and for all other just and proper relief.

“s/M. Wade Hodge”

Assistant Attorney General

323 Center St., Suite 200

Little Rock, AR 72201-2610

(501) 682-2007

Attorneys for Plaintiff

Certificate of Service dated April 19, 1994 to Sandra

K. Dunham, Crossett Animal Clinic, 1005 West First,

Crossett, AR 71655 by U. S. Mail, postage prepaid.

“s/M. Wade Hodge”

AFFIDAVIT

(Attached to Complaint)

My. name is George R. Wadley. I am the

Secretary-Treasurer of the Arkansas Veterinary

Medical Examining Board. I have read the foregoing

and it is true to the best of my knowledge and belief.

ARKANSAS VETERINARY MEDICAL

EXAMINING BOARD

“s/George R. Wadley, D.V.M.”

STATE OF ARKANSAS)

)ss

COUNTY OF PULASKI )

SUBSCRIBED and sworn to me this 31* day of

March, 1994.

“s/Karen H. Gray”, Notary Public

My Commission Expires: August 1, 1996

EXHIBIT A

(Attached to Complaint)

August 6, 1992

Dr. Sandra Dunham

Monticello Animal Clinic

109 Highway 425 South

Monticello, AR 71655

Dear Dr. Dunham:

I am writing to you in my capacity as attorney

for the Arkansas Veterinary Medical Examining

Board. The Board has information and belief that you

are engaging in the practice of veterinary medicine

without proper licensure.

It is necessary, therefore, for you to cease and

desist from the practice of veterinary medicine until

such time as you have fulfilled the necessary

requirements and are licensed by the Board.

Please be advised that the practice of veterinary

medicine without a license is punishable by a fine of

up to $250 for each and every offense and/or

imprisonment for up to one year. Unauthorized

practice could also reflect upon your application to

practice veterinary medicine in this state in the future.

If you have any questions, please call the Board

office at 224-2836.

Sincerely,

“s/M. Wade Hodge”, Assistant Attorney General

MWH:de

cc: Sherry Glover

Gary G. Wallis, D.V.M.

EXHIBIT B

(Attached to Complaint)

November 9, 1993

-Sandra K. Dunham

Crossett Animal Clinic

1005 West First

Crossett, AR 71635

Dear Ms. Dunham:

I am again writing to you in my capacity as attorney

for the Arkansas Veterinary Medical - Examining

Board. It has been once again brought to the attention

of the Board that you are practicing veterinary

medicine without being licensed by the Board.

Pursuant to A.C.A. §17-99-101 et seq., one must be

licensed in order to lawfully practice veterinary

medicine in this state.

It is therefore necessary for you to cease and desist

from the practice of veterinary medicine unless or

until you become licensed by the Board.

Please be advised that the unauthorized practice of

veterinary medicine is punishable by a fine of up to

$250.00 and/or up to one year imprisonment. Each

day of unlawful practice constitutes a separate

offense.

This is your second notice to cease and desist from the

unauthorized practice of veterinary medicine.

Continued noncompliance on your art could result in

a lawsuit being filed against you. If you have any

questions, please contact the Board office at 224-

2836.

Sincerely,

“s/M. Wade Hodge”, Assistant Attorney General

cc: Sherry Glover, Arkansas Veterinary

Medical Examining Board

EXHIBIT

(Attached to Complaint)

CRIMINAL INVESTIGATION DIVISION

ASP-3-A

(Stamped Feb. 25, 1994, Arkansas Veterinary Medical

Examining Board)

DATE: FEBRUARY 9, 1994

DICTATED BY: INV. J. DIGMAN

DATE TYPED: FEBRUARY 23,1994 PC

COPIES TO: INV. J. DIGMAN

INV. CHRIS ANDERSON

INVESTIGATOR’S NOTES

On February 3, 1994, at 2:35 p.m., this investigator

observed a white female bring in three dogs to be

treated at the Dunham Veterinary Clinic in Crossett,

Arkansas. The dogs were called” Rusty, Nicki, and

Tiffany.

SANDRA DUNHAM told the lady that one of the

dogs sounded like it had kennel cough. Ms.

DUNHAM told the female that she would administer

a shot for the cough and would check for heart worms.

This investigator observed Ms. DUNHAM stick a

syringe into a small vial and withdraw medication and

administer it to the dog which was a red colored

poodle. 2

Later, Ms. DUNHAM drew blood from the dog and

placed it in a vial.

After the dogs were treated and the lady that brought

them in was leaving, this investigator excused himself

to go to the car. At that time, the lady left driving a

vehicle displaying Arkansas license WK0545. ACIC

records indicate that the license was issued to JERRY

and KATHY SMITH, P.O. BOX 308, Crossett,

Arkansas.

A veterinary supply calendar for 1994 is on the wall

inside the receptionist area. The name on the calendar

is Miller Veterinary Supply out of Fort Worth, Texas,

phone 817-335-0891. There is a possibility that the

Dunham Veterinary Clinic is getting their medical

supplies through Miller Vet Supply.

A note was observed on the front door of the

veterinary clinic indicating that a Dr. JUDY

POINRIER, DVM, is the doctor in charge of the

Dunham Veterinary Clinic.

FILE NUMBER: 90-093-93

CRIME: OBT. C/S BY DECEPTION

(Handwritten: cc: Board Members, Wade, 2-25-94)

ASP-3 :

PAGE 2 (INVESTIGATOR’S NOTES)

At the time Ms. DUNHAM was administering the

medication to the dog, the only people inside the

clinic were Ms. DUNHAM, the white female that

brought the dogs in, and myself. As Ms. DUNHAM

began to pull he blood from the dog, her brother,

STEVEN LEE DUNHAM, came into the office.

FILE NUMBER: 90-093-93

CRIME: OBT. C/S BY DECEPTION

EXHIBIT M

STATE OF ARKANSAS

VETERINARY MEDICAL EXAMINING BOARD

CHAMBER OF COMMERCE OFFICE

200 SOUTH SPRING

SEARCY, AR 72143

AGENDA

July 22, 1992

9:00 AM

I. Call to Order

II. Approve Minutes of July 13-14, 1992 Board

Meeting

III. Approve Corporate Practice #0050 (name

change from Bozeman Veterinary Clinic to

Davenport Veterinarian Clinic)

IV. Practicing-Without-License:

A. Sandra K. Dunham, D.V.M. (Foreign

Graduate - West Germany - did not pass

the NBE given in April, 1992 - is

working for Monticello Animal Clinic,

109 Highway 425 South, Monticello,

AR)

V. — Practice Act Changes

STATE OF ARKANSAS

VETERINARY MEDICAL EXAMINING BOARD

CHAMBER OF COMMERCE OFFICE

200 SOUTH SPRING

SEARCY, AR 72143

MINUTES

July 22, 1992

A special meeting of the Arkansas Veterinary Medical

Examining Board was held Wednesday, July 22, 1992,

in the Conference Room of the Searcy Chamber of

Commerce, 200 South Spring, Searcy, AR. The

purpose of this meeting was to conduct board business

and ‘discuss revisions in the Veterinary Medical

Practice Act.

CALL TO ORDER:

All board members having been duly notified of the

meeting, Chairman Everett I. Rogers, D.V.M., called

the meeting to order at 9:10 AM on Wednesday, July

22, 1992.

PRESENT:

George R. Wadley, D.V.M. Secretary-Treasurer

Everett I. Rogers, D.V.M. Chairman

James W. Waymack, D.V.M. Member

Mr. Wingfield Martin Public Member

G. C. Blair, D.V.M. Member

IN ATTENDANCE:

Sherry Glover Executive Secretary

MINUTES:

Motion was made and seconded to approve the July

13-14, 1992, minutes as written. The motion passed

unanimously.

PRACTICING-WITHOUT-LICENSE:

Dr. Waymack advised the board that Sandra Dunham

is practicing at Monticello Animal Clinic (owned by

Dr. Gary G. Wallis, D.V.M.). Dr. Dunham graduated

from veterinary school in West Germany in 1992; she

took the National board Exam and CCT in April,

1992, in Arkansas and passed the CCT but did not

pass the NBE, therefore, the board could not issue a

Temporary Permit. Motion was made, seconded and

passed unanimously to ask Wade Hodge, Assistant

Attorney General, to write a cease and desist letter to

Dr. Dunham with a copy to Dr. Wallis and an aiding

and abetting letter to Dr. Wallis with a copy to Dr.

Dunham.

As soon as these letters are written, the board will

notify Rabies Control that Dr. Dunham conducted a

vaccination clinic in Hamburg in May of this year and

advise them that she is not licensed to practice

veterinary medicine in the State of Arkansas.

The investigator for the board, Denny Bishop, will be

asked to visit Monticello Animal Clinic 3-4 weeks

after the cease and desist letter is received to ascertain

if Dr. Dunham and Dr. Wallis have complied with the

order.

ADJOURNMENT:

There being no further business to discuss, Chairman

Everett Rogers, D.V.M., adjourned the meeting at

5:00 PM on July 22, 1992.

Respectfully submitted,

“s/Sherry Glover”, Executive Secretary

“s/George R. Wadley, D.V.M.”, Secretary-Treasurer

STATE OF ARKANSAS

VETERINARY MEDICAL EXAMINING BOARD

DATE: JULY 20, 1992

FROM: SHERRY GLOVER, EXECUTIVE

SECRETARY

TO: State Capitol Press Office

State Capitol

LR, AR 72201

Associated Press

1101 West Second

Little Rock, AR 72201

UPI

2651 N. Hardwood, #130

Dallas, TX 75201-1501

KARN Radio

4021 West 8" Street

LR, AR 72204

Arkansas VMA

P.O. Box 21061

LR, AR 72212

Anthony Kimbrough

Donrey Newspapers

c/o State Capitol Press Office

LR, AR 72201

The Veterinary Medical Examining Board will hold a

special meeting on July 22, 1992, at the Chamber of

Commerce Office, 200 South Spring, Searcy, AR

72143 at 9:00 AM. The purpose of this meeting is to

make revisions in the Veterinary Medical Practices

Act.

STATE OF ARKANSAS

VETERINARY MEDICAL EXAMINING BOARD

ONE NATURAL RESOURCES DRIVE

LITTLE ROCK, AR 72205

AGENDA

October 6, 1992

9:00 AM

I, Call to Order

II. Approve Minutes of July 22, 1992, Board

Meeting

* * *

X. Practicing-Without-License:

A. Mrs. Frances Denton (El Dorado) -

Report from Denny Bishop

B. Barbara Page, D.V.M. (Caddo Gap) -

Report from DEA and Denny Bishop

C. William L. Schmidt (Hot Springs) -

Equine Chiropractic Acupuncture

D. Sandra Dunham, D.V.M. - Update

E Billy Butler, D.V.M. (Brownsville, TN)

STATE OF ARKANSAS

VETERINARY MEDICAL EXAMINING BOARD

ONE NATURAL RESOURCES DRIVE

LITTLE ROCK, AR 72205

MINUTES

October 6, 1992

A regularly scheduled meeting of the Arkansas

Veterinary Medical Examining Board was held

Tuesday, October 6, 1992, in the Conference Room of

the Arkansas Livestock &- Poultry Commission

Building, One Natural Resources Drive, Little Rock,

AR.

CALL TO ORDER:

All board members having been duly notified of the

meeting, acting chairman, Dr. George Wadley, called

the meeting to order at 9:05 AM. Dr. Wadley chaired

the meeting until the arrival of Dr. Everett Rogers at

10:15 AM.

PRESENT:

George R. Wadley, D.V.M. Secretary-Treasurer

Everett I. Rogers, D.V.M. Chairman

James W. Waymack, D.V.M. Member

Mr. Wingfield Martin Public Member

G. C. Blair, D.V.M. Member

IN ATTENDANCE:

Sherry Glover Executive Secretary

Mr. Wade Hodge Asst. Atty. General

Robert J. VanPatter,D.V.M. Little Rock Vet.

B. Sharon Holman, D.V.M. Little Rock Vet.

MINUTES:

Motion was made, seconded and passed unanimously

to approve the July 22, 1992 minutes as written.

* * *

PRACTICING-WITHOUT-LICENSE:

* * *

Sandra Dunham, D.V.M. - during our July 22, 1992,

meeting, it was the decision of the board to ask the

Office of the Attorney General to write a cease and

desist letter to Dr. Dunham (the letter was written on

August 6). Dr. Thomas McChesney, Rabies Control,

was notified that Dr. Dunham had conducted a rabies

clinic in Hamburg. Dr. McChesney talked with Dr.

Robert E. Dunham in Crossett who advised that he

assisted his daughter at this rabies clinic and signed

all the certificates; his office is investigating this

matter and will notify our board.

* * *

ADJOURNMENT:

There being no further business to discuss, Chairman

Everett Rogers, D.V.M., adjourned the meeting at

5:45 PM on October 6, 1992.

Respectfully submitted,

“‘s/Sherry Glover”, Executive Secretary

“s/George R. Wadley, D.V.M.”, Secretary-Treasurer

STATE OF ARKANSAS

VETERINARY MEDICAL EXAMINING BOARD

DATE: September 22, 1992

FROM: SHERRY GLOVER, EXECUTIVE

SECRETARY

TO: State Capitol Press Office

State Capitol

LR, AR 72201

Associated Press

1101 West Second

Little Rock, AR 72201

UPI

2651 N. Hardwood, #130

Dallas, TX 75201-1501

KARN Radio

4021 West 8" Street

LR, AR 72204

Arkansas VMA

P.O. Box 21061

LR, AR 72212

Anthony Kimbrough

Donrey Newspapers

c/o State Capitol Press Office

LR, AR 72201

The Veterinary Medical Examining Board will hold a

regularly schedu'ed meeting on October 6, 1992, in

the Conference Room of the Livestock & Poultry

Commission Building, One Natural Resources Drive,

Little Rock, AR at 9:00 AM.

EXHIBIT N

APPLICATION FOR NATIONAL BOARD

EXAM AND/OR CLINICAL COMPETENCY

TEST IN ARKANSAS

Name: Dunham, Sandra Kay

Business Address: 1005 W. 1“ Ave., Crossett, AR

71635.

Home Address: 1400 Pecan Street, Crossett, AR

71635

Telephone (business): 364-5116, (home) 364-8306

Do you plan to take the National Board Exam in

Arkansas? Yes. If “YES” make check or money

order payable to the Arkansas Veterinary Medical

Exam Board in the amount of $125.00 (there will be

no refund on this fee).

Have you taken the National Board Exam before? No.

Do you plan to take the CCT in Arkansas? Yes. If

“YES” make check or money order payable to the

Arkansas Veterinary Medical Exam Board in the

amount of $100.00 (there will be no refund on this

fee).

Have you taken the Clinical Competency Test before?

No.

Description of applicant: Height, 5-06; Weight, 130;

Color of Eyes, blue; Color of Hair, light brown;

Approximate date of photo, November, 1991 (photo

attached); Veterinary School, Justus-Liebig-

University, Giessen W. Germany; Year of Graduation,

1991; Social Security No., 429-25-3366.

I, Sandra K. Dunham, D.V.M., hereby certify that I am-

the person named on this application and that the

enclosed photo is a true one of me.

“s/Sandra K. Dunham, D.V.M.”; dated March 9, 1992

RETURN TO: AR Veterinary Medical Exam Board,

P.O. Box 5497, Little Rock, AR 72215, (501) 224-

2836

RRL nse es een

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DR. SANDRA K. DUNHAM, D.V.M. PLAINTIFF

VS. NO. LR-C-95-432

DR. GEORGE WADLEY, D.V.M.,

WINGFIELD MARTIN, DR. EVERETT

I. ROGERS, D.V.M., DR. G. C.

BLAIR, D.V.M., DR. JAMES W.

WAYMACK, D.V.M., DR. DONALD I.

MAYFIELD, D.V.M., DR. GARY

F. STRICKLAND, D.V.M., AND

SHERRY GLOVER DEFENDANTS

AFFIDAVIT OF JUDY PORRIER

I, Judy Porrier, first being duly sworn, do

hereby state and verify the following on personal

knowledge:

1. I am a licensed veterinarian; I have held a

Certificate of License from the Arkansas Veterinary

Medical Examining Board at all times since April 15,

1992.

2. Sandra K. Dunham is a veterinarian who was

employed by Dr. Gary Wallis at the Monticello

Animal Clinic from on or about April 15, 1992

through on or about the Monday following August 6,

1992. :

3. Sandra K. Dunham was employed by Dr.

Robert E. Dunham at the Crossett Animal Hospital

from the latter half of August, 1992 through

November 10, 1993 as a veterinarian.

4. At all times from April 15, 1992 through

April 30, 1996, when she was employed at either the

Monticello Animal Clinic or the Crossett Animal

Hospital, Sandra K. Dunham was under my direction

and supervision when performing duties or actions at

either the Monticello Animal Clinic or the Crossett

- Animal Hospital.

5. At all times from April 15, 1992 through

April 30, 1996, I was available, either in person or by

telephone, to provide direction, supervision, guidance,

assistance or advice to Dr. Dunham. On a number of

occasions during that time, she did contact me with

questions, all of which I answered; I was also

physically present to assist her with specific

procedures on occasion at her request.

6. At no time after April 15, 1992 did anyone

contact me on behalf of the Arkansas Veterinary

Medical Examining Board to inquire about the status

of Dr. Sandra K. Dunham's supervision.

I have read the above and foregoing statements,

which are true and correct to the best of my

knowledge and belief.

In witness whereof, I hereunto set my hand this

22 day of June, 1998.

FURTHER AFFIANT SAITH NOT.

“s/Judy Porrier, D.V.M.”

VERIFICATION

STATE OF ARKANSAS)

COUNTY OF Pulaski)

On this day appeared Judy Porrier before me, a

notary public, and stated on oath that the foregoing

information is true and correct to the best of her

knowledge and belief.

SUBSCRIBED AND SWORN to before me this

22 day of June, 1998.

“s/Shari L. Rogers”, Notary Public

My Commission Expires: 1-29-2006

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DR. SANDRA K. DUNHAM, D.V.M. PLAINTIFF

VS. NO. LR-C-95-432

DR. GEORGE WADLEY, D.V.M.,

WINGFIELD MARTIN, DR. EVERETT

I. ROGERS, D.V.M., DR. G. C.

BLAIR, D.V.M., DR. JAMES W.

WAYMACK, D.V.M., DR. DONALD I.

MAYFIELD, D.V.M., DR. GARY

F. STRICKLAND, D.V.M., AND

SHERRY GLOVER DEFENDANTS

AFFIDAVIT OF JOHN PORRIER

I, John Porrier, first being duly sworn, do

hereby state and verify the following on personal

knowledge:

1. I am a licensed veterinarian; I have held a

Certificate of License from the Arkansas Veterinary

Medical Examining Board at all times since April 15,

1992.

2. Sandra K. Dunham is a veterinarian who was

employed by Dr. Gary Wallis at the Monticello

Animal Clinic from on or about April 15, 1992

through on or about the Monday following August 6,

1992.

3. Sandra K. Dunham was employed by Dr.

Robert E. Dunham at the Crossett Animal Hospital

from the latter half of August, 1992 through

November 10, 1993 as a veterinarian.

4. At all times from April 15, 1992 through

April 30, 1996, when-she was employed at either the

Monticello Animal Clinic or the Crossett Animal

Hospital, Sandra K. Dunham was under my direction

and supervision when performing duties or actions at

either the Monticello Animal Clinic or the Crossett

Animal Hospital.

5. At all times from April 15, 1992 through

April 30, 1996, I was available, either in person or by

telephone, to provide direction, supervision, guidance,

assistance or advice to Dr. Dunham. On a number of

occasions during that time, she did contact me with

questions, all of which I answered; I was also

physically present to assist her with specific

procedures on occasion at her request.

6. At no time after April 15, 1992 did anyone

contact me on behalf of the Arkansas Veterinary

Medical Examining Board to inquire about the status

of Dr. Sandra K. Dunham's supervision.

I have read the above and foregoing statements,

which are true and correct to the best of my

knowledge and belief.

In witness whereof, I hereunto set my hand this

22 day of June, 1998.

FURTHER AFFIANT SAITH NOT.

“s/John Porrier”

VERIFICATION

STATE OF ARKANSAS)

COUNTY OF PULASKI)

On this day appeared John Porrier before me, a

notary public, and stated on oath that the foregoing

information is true and correct to the best of his

knowledge and belief.

SUBSCRIBED AND SWORN to before me this

22 day of June, 1998.

“s/Shari L. Rogers”, Notary Public

My Commission Expires: 1-29-2006

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DR. SANDRA K. DUNHAM, D.V.M. PLAINTIFF

VS. NO. LR-C-95-432

DR. GEORGE WADLEY, D.V.M.,

WINGFIELD MARTIN, DR. EVERETT

!, ROGERS, D.V.M., DR. G. C.

BLAIR, D.V.M., DR. JAMES W.

WAYMACK, D.V.M., DR. DONALD I.

MAYFIELD, D.V.M., DR. GARY

F. STRICKLAND, D.V.M., AND

SHERRY GLOVER DEFENDANTS

AFFIDAVIT OF DWIGHT WITCHER

I, Dwight Witcher, first being duly sworn, do

hereby state and verify the following on personal

knowledge:

1. I am a licensed veterinarian; I have held a

Certificate of License from the Arkansas Veterinary

Medical Examining Board at all times since April 15,

1992,

2. Sandra K. Dunham is a veterinarian who was

employed by Dr. Gary Wallis at the Monticello

Animal Clinic from on or about April 15, 1992

through on or about the Monday following August 6,

1992.

3. Sandra K. Dunham was employed by Dr.

Robert E. Dunham at the Crossett Animal Hospital

from the latter half of August, 1992 through

November 10, 1993 as a veterinarian.

4. At all times from April 15, 1992 through

April 30, 1996, when she was employed at either the

Monticello Animal Clinic or the Crossett Animal

Hospital, Sandra K. Dunham was under my direction

and supervision when performing duties or actions at

either the Monticello Animal Clinic or the Crossett

Animal Hospital.

5. At all times from April 15, 1992 through

April 30, 1996, I was available, either in person or by

telephone, to provide direction, supervision, guidance,

assistance or advice to Dr. Dunham. On a number of

occasions during that time, she did contact me with

questions, all of which I answered.

6. At no time after April 15, 1992 did anyone

contact me on behalf of the Arkansas Veterinary

Medical Examining Board to inquire about the status

of Dr. Sandra K. Dunham's supervision.

I have read the above and foregoing statements,

which are true and correct to the best of my

knowledge and belief.

In witness whereof, I hereunto set my hand this

19 day of June, 1998.

FURTHER AFFIANT SAITH NOT.

“s/Dwight Witcher, D.V.M.”

VERIFICATION

STATE OF ARKANSAS)

COUNTY OF PULASKI)

On this day appeared Dwight Witcher before

me, a notary public, and stated on oath that the

foregoing information is true and correct to the best of

his knowledge and belief.

SUBSCRIBED AND SWORN to before me this

19 day of June, 1998.

“s/Shari L. Rogers”, Notary Public

My Commission Expires: 1-29-2006

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DR. SANDRA K. DUNHAM, D.V.M. PLAINTIFF

VS. NO. LR-C-95-432

DR. GEORGE WADLEY, D.V.M.,

WINGFIELD MARTIN, DR. EVERETT

I. ROGERS, D.V.M., DR. G. C.

BLAIR, D.V.M., DR. JAMES W.

WAYMACK, D.V.M., DR. DONALD I.

MAYFIELD, D.V.M., DR. GARY

F. STRICKLAND, D.V.M., AND

SHERRY GLOVER DEFENDANTS

AFFIDAVIT OF ROBERT E. DUNHAM

\ I, Robert E. Dunham, first being duly sworn, do

hereby state and verify the following on personal

knowledge:

1. My name is Robert E. Dunham; I am a

veterinarian, I hold a Certificate of License from the

Arkansas Veterinary Medical Examining Board (the

Board), and I have practiced at the Crossett Animal

Hospital for over 25 years.

2. Dr. Sandra K. Dunham is my daughter; she

is also a veterinarian, is a graduate of a foreign college

of veterinary medicine and she received a Certificate

of License from the Board in 1997.

3. Dr. Sandra K. Dunham was employed by Dr.

Gary Wallis at the Monticello Anima! Clinic from on

or about April 15, 1992 through on or about the

Monday following August 6, 1992.

4. Dr. Sandra K. Dunham was employed at the

Crossett Animal Hospital from the latter half of

August, 1992 through the present.

5. At all times from the date Sandra K.

Dunham was employed at the Crossett Animal

Hospital until on or about November 10, 1993, I held

a Certificate of License from the Board.

6. At all times from April 15, 1992, until on or

about November 10, 1993, Sandra K. Dunham was

under my direction and supervision when performing

duties or actions which could be considered to be the

practice of veterinary medicine; she did not provide

diagnosis or establish any treatment regime without

consulting me.

7. At all times from April 15, 1992 through

November 10, 1993, I was available, either in person

or by telephone, to provide direction, supervision,

guidance, assistance or advice to Dr. Dunham. Ona

number of occasions during that time, she did contact

me with questions, all of which I answered; I was also

physically present to assist her with specific

procedures on a number of occasions, either at her

request or as I thought appropriate or required.

8. At all times after November 10, 1993, until

she received a temporary permit from the Board,

Sandra K. Dunham was under the direction and

supervision of one or more other veterinarians who

held a Certificate of License from the Board whenever

she performed any duties or actions at the Crossett

Animal Hospital which could be considered to be the

practice of veterinary medicine.

9. I first became aware that the Board

questioned the status of Sandra K. Dunham's

supervision at the Crossett Animal Hospital on or

about August 21, 1993, when I received a complaint

from the Board accusing me of violating the Arkansas

Veterinary Medical Practices Act accusing me of

aiding and abetting her unlawful practice.

10. I made the Board aware of the nature and

extent of my own supervision of Sandra K. Dunham

by means of an affidavit which I sent to the Board

office on the Board's "OFFICIAL ANS WER FORM"

in reply to the complaint, a true and correct copy of

which is attached hereto; I later learned that the Board

members were each sent copies on or about September

7, 1993.

11. Sandra Dunham's veterinary skills have

always been satisfactory; her employment as a

veterinarian with the Crossett Animal Hospital was

terminated solely because the Board obtained an

agreement from me to do so on November 10, 1993,

in order to settle the complaint against me.

12. At no time after April 15, 1992 did anyone

contact me on behalf of the Arkansas Veterinary

Medical Examining Board to inquire about the status

of Dr. Sandra K. Dunham's supervision.

I have read the above and foregoing statements,

which are true and correct to the best of my

knowledge and belief.

In witness whereof, I hereunto set my hand this

19" day of June, 1998.

FURTHER AFFIANT SAITH NOT.

“s/Robert E. Dunham”

VERIFICATION

STATE OF ARKANSAS)

COUNTY OF PULASKI)

On this day appeared Robert E. Dunham before

me, a notary public, and stated on oath that the

foregoing information is true and correct to the best of

his knowledge and belief.

SUBSCRIBED AND SWORN to before me this

19 day of June, 1998.

“s/Shari L. Rogers”, Notary Public

My Commission Expires: 1-29-2006

ATTACHMENT TO AFFIDAVIT OF

ROBERT E. DUNHAM

OFFICIAL ANSWER FORM

Act 650 of 1975 was enacted as an exercise of

the police powers of the State of Arkansas to promote

the public health, safety and welfare by safeguarding

the people of the State against incompetent, dishonest

or unprincipled practitioners of veterinary medicine.

It was declared that the right to practice veterinary

medicine was a privilege conferred by Legislative

Grant to persons possessed of the personal and

professional qualifications specified in the Arkansas

Veterinary Medical Practice Act.

It is the policy of this Board to obtain a reply to

each and every complaint filed. The Board will

review both the complaint and your answer at the next

scheduled meeting.

Name of Veterinarian or Individual: Dr. Robert E.

Dunham. Address: 1005 W. First, Crossett, AR

71635. Name of Clinic (where applicable): Crossett

Animal Hospital.

Name of Complainant: Amy Blevins. Address: 1743

(illegible) Road, Crossett, AR 71635.

State of: Arkansas County of: Ashley

100

AFFIDAVIT

(State as briefly as possible the accurate and truthful

facts giving rise to the complaint)

I, Robert Dunham, being first duly sworn

deposes and state that on May 14, 1993 Amy Blevins

presented to me her semi-conscious 8-year old female

Boxer “Holly” which had been struck by a motor

vehicle. Examination of patient disclosed deep

lacerations of medial right thigh with considerable

blood loss, cyanotic mucous membranes, profound

shock and possible spinal cord trauma. X-Rays

revealed multiple fractures of right femur shaft and

anterior dislocation of left coxofemoral joint. From

the beginning this owner was given a very carefully

guarded to poor prognosis and euthanasia of this

patient was stated as a justified option. Owner

declined euthanasia and requested whatever treatment

be attempted to save this patient. “Holly” was

stabilized with 300ml fresh whole blood, repeated i.v.

boluses of 500mg Pred. Sod. Succinate, Oxygen

administration. (Copy of medical records attached)

Lacerations sutured and hemorrhage brought under

control. On May 15 “Holly” was put under

Halothan/Oxygen anaesthesia after induction with

Bio-Tal. Right leg repaired with 3/16" intramedullary

pin and three circlage wires (.22 ga.) Several small

bone chips were removed. Post-op X-Rays taken.

Immobilization appeared quite rigid and no further

external fixation was considered necessary or feasible.

The left hip dislocation was then reduced and held in

place with a sling — metatarsus — posterior abdomen, .

5 101

lateral thigh — hock joint — metatarsus; sling removed

on May 17. On May 18 Owner requested patient be

discharged from hospital although “Holly” could not

bear weight or move either leg. Owner advised that

possibility of nerve damage still could not be

excluded. Owner advised to provide foam rubber

bedding, to turn patient frequently, assist with waste

elimination. On May 21 owner reported “Holly” was

not “doing well”. House call made, pain killers,

dexamethasone administered, owner told to continue

antibiotics. Blood sample taken: blood chemistry and

QBC completely within normal limits.

VIOLATION OF REGULATION “B”: Drs. R.M. and

S.K. Dunham are performing the duties that any

veterinary technician or nurse in a human hospital

may perform. Anything above that is done under my

close supervision. While Drs. Sandra and Michael

Dunham are allowed to admit patients, obtain history,

they are not to provide diagnosis or establish any

treatment regime without consulting with me.

“s/R. Dunham”

(Handwritten: cc: Board Members, Wade, 9-9-93; 73)

102

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DR. SANDRA K. DUNHAM, D.V.M. PLAINTIFF

VS. NO. LR-C-95-432

DR. GEORGE WADLEY, D.V.M.,

WINGFIELD MARTIN, DR. EVERETT

I. ROGERS, D.V.M., DR. G. C.

BLAIR, D.V.M., DR. JAMES W.

WAYMACK, D.V.M., DR. DONALD I.

MAYFIELD, D.V.M., DR. GARY

F. STRICKLAND, D.V.M., AND

SHERRY GLOVER DEFENDANTS

AFFIDAVIT OF GARY WALLIS

I, Gary Wallis, first being duly sworn, do

hereby state and verify the following on personal

knowledge:

1. Sandra K. Dunham is a veterinarian who is

a graduate of a foreign college of veterinary medicine;

she was employed at the Monticello Animal Clinic

from on or about April 15, 1992 through on or about

the first Monday following August 6, 1992.

2. At all times while Dr. Sandra K. Dunham

was employed at the Monticello Animal Clinic, I held

a Certificate of License from the Arkansas Veterinary

Medical Examining Board (the Board).

103

3. At all times while she was employed at the

Monticello Animal Clinic, I was available, either in

person or by telephone, to provide direction,

supervision, guidance, assistance or advice to Dr.

Sandra K. Dunham. On a number of occasions during

that time, she did contact me with questions, all of

which I answered; I was also physically present to

assist her with specific procedures on occasion.

4. At no time after April 15, 1992 did anyone

contact me on behalf of the Arkansas Veterinary

Medical Examining Board to inquire about the status

of Dr. Sandra K. Dunham's supervision; no members

or employees of the Board ever asked me or requested

any information from me concerning whether or not

Sandra Dunham was under my direction and

supervision while she was employed at the Monticello

Animal Clinic.

5. Sandra Dunham's veterinary skills were

always satisfactory; her employment with the

Monticello Animal Clinic was terminated. solely

because of "Cease and Desist" letters she and I

received from the Attorney General's Office dated

August 6, 1992; a true and correct copy of the letter I

received is attached hereto.

I have read the above and foregoing statements,

which are true and correct to the best of my

knowledge and belief.

In witness whereof, I hereunto set my hand this

22 day of June, 1998.

104

FURTHER AFFIANT SAITH NOT.

“s/Gary Wallis”

VERIFICATION

STATE OF ARKANSAS)

COUNTY OF PULASKI)

On this day appeared Gary Wallis before me, a

notary public, and stated on oath that the foregoing

information is true and correct to the best of his

knowledge and belief.

SUBSCRIBED AND SWORN to before me this

22 day of June, 1998.

“s/Clifton H. Hoofman”, Notary Public

My Commission Expires: Nov. 1, 2006

ATTACHMENT TO AFFIDAVIT OF

GARY WALLIS

STATE OF ARKANSAS

OFFICE OF THE ATTORNEY GENERAL

Winston Bryant Telephone

Attorney General (501) 682-2007

105

August 6, 1992

Gary G. Wallis, D.V.M.

Park Hill Pet Clinic

2900 Main

North Little Rock, AR 72116

Dear Dr. Wallis:

I am writing to you in my capacity as attorney

for the Arkansas Veterinary Medical Examining

Board. The Board has information and belief that you

have employed an individual who is practicing

veterinary medicine unlawfully.

It has come to the Board’s attention that Dr.

Sandra Dunham is employed by you at your clinic

located at 109 Highway 425 South in Monticello,

Arkansas. Please be advised that Dr. Dunham took

the National Board Exam and CCT in April of 1992

and passed the CCT but did not pass the NBE. Dr.

Dunham, therefore, is not licensed to practice

veterinary medicine in the State of Arkansas.

Please be advised that Ark. Code Ann. §17-99-

307(a)(6) provides that having professional

association with or employing, any person practicing

veterinary medicine unlawfully is grounds -for

disciplinary action including a civil penalty of up to

$5000 and or suspension or revocation of licensure.

It is necessary, therefore, for you to cease and

desist from employing any person to practice

106

veterinary medicine in this state who is not duly

authorized by the Board to engage in such practice.

If you have any questions, you may call the

Board office at 224-2836.

Sincerely,

“s/M. Wade Hodge”

Assistant Attorney General

MWH:de

cc: Sherry Glover

Dr. Sandra Dunham

200 Tower Building, 323 Center Street*Little Rock,

Arkansas 72201-2610

AFFIDAVIT OF SHERRY VE

My name is Sherry Glover. I am the Executive

Secretary of the Arkansas Veterinary Medical

Examining Board, (hereafter “Board”) I have been so

employed since November 14, 1983. I have been

present at all Board meetings during that time.

At Board meetings, the Board may hold formal

hearings, informal hearings, or conduct a regular

business meeting with no scheduled hearings. A

formal hearing is one in which the Board has sent

notice of official charges to a person practicing

107

veterinary medicine regarding allegations of unlawful

practice. An informal hearing is one at which a

person is requested to appear to meet informally with

the Board to see if an agreement can be reached

without the necessity of a formal hearing.

During regular business meetings, it is common

for Board members to discuss complaints received or

allegations of, persons engaging in the unlawful

practice of veterinary medicine. By the “unlawful

practice of veterinary medicine,” I mean a violation of

the Arkansas Veterinary Medical Practice Act, A.C.A.

§17-101-101 et seq. (Repl. 1995), or the regulations

promulgated by the Board. Such unlawful practice

may be either by a licensed veterinarian or by a person

not licensed by the Board. The Board may discuss the

appropriate course of action for dealing with such an

individual. Counsel from the Office of the Attorney

General is normally present during Board meetings.

At no time during my employment with the Board has

the Board ever been advised by counsel that it is

improper to discuss allegations of unlawful practice —

without first contacting the person in question.

During the time relevant to Plaintiff's

complaint, the Board did not have authority to fine or

otherwise take personal disciplinary action against

unlicensed practitioners. A veterinarian holding a

license issued by the Board could be fined or have his

or her license suspended or revoked by the Board for

unlawful practice. During the time relevant to

Plaintiff's complaint, a person allegedly engaging in

the unlawful practice of veterinary medicine without

108

a license issued by the Board could be sued in

chancery court for an injunction. Also, as could any

other citizen, I or any Board member could request

action from local prosecuting attorneys for alleged

misdemeanor violations. The Board has, on occasion,

requested its counsel to write letters to prosecuting

attorneys or directly to individuals that the Board felt

were engaging in the unlawful practice of veterinary

medicine. Such was the case with the plaintiff.

The plaintiff received a license from the Board

in 1997. To become licensed, a veterinarian, in

addition to other statutory requirements, must pass a

Clinical Competency Test (CCT) and the National

Board Exam (NBE). Plaintiff is a graduate of a

foreign school of veterinary medicine. The CCT and

NBE, however, are tests that all veterinarians, not just

foreign graduates, must take in order to receive a

license. Plaintiff passed the CCT in 1992. Plaintiff

also took the NBE at that time but did not pass.

Plaintiff passed the NBE some years later on her third

attempt. Plaintiff could not vecome licensed until

passing the NBE.

The Board, acting upon information and belief

that Plaintiff was practicing outside the law, sent a

letter to Plaintiff while she was employed at the

Monticello Animal Clinic. Plaintiff was not licensed

at that time. The owner of the clinic, Dr. Gary Wallis,

lived in North Little Rock. If Plaintiff considered

herself to be entitled to the exemption for persons in

the process of obtaining an Educational Certificate for

Foreign Veterinary Graduates (ECF VG), she would

109

have to have been practicing under the direction and

supervision of a licensed veterinarian, as the statute

required. The Board, at that time, believed that the

plaintiff was not under the direction and supervision

of a licensed veterinarian since the owner of the

Monticello Clinic lived in North Little Rock, and to

the best of the collective knowledge of the Board, no

licensed veterinarian was practicing at the Monticello

Clinic. Plaintiff was directed to cease practicing and

requested to call the Board office if she had any

questions. While the letter was written by the Board’s

counsel on Attorney General letterhead, the Board’s

telephone number was provided in the letter. I am the

only person in the Board office and therefore answer

all phone calls, and turn on an answering machine

when I am out of the office. Plaintiff never called the

Board office at any time after receiving the letter.

In November of 1993, the board issued a notice

of a formal hearing to Dr. Robert Dunham, who is the

plaintiff's: father and at that time a_ licensed

veterinarian, charging him with certain violations of

the Practice Act. Dr. Robert Dunham appeared before

the Board for a formal hearing, accompanied by his

attorney and the plaintiff. Dr. Robert Dunham entered

into a Consent Order with the Board whereby he

agreed to surrender his license for a period of not less

than one year. During the meeting that day, Plaintiff

was in the conference room where the meeting held.

Plaintiff was informed by one of the Board members

that she could not practice at her father’s clinic, The

Crossett Animal Clinic, while her father’s license was

revoked, unless another licensed veterinarian were

110

brought in to run the clinic. At no time did Plaintiff

request to address the Board, nor at any time was she

denied the opportunity to address the Board.

The Board is subject to the Arkansas Freedom

of Information Act, A.C.A. §25-19-101 et seq (FOIA),

and therefore all of its meetings are open to the public.

The decision of the Board regarding Plaintiff's father

was made in open session and Plaintiff was in the

room during the discussions and announcement of the

decision of the Board to enter into the Consent Order

regarding the surrender of her father’s license. The

Board is also subject to the Arkansas Administrative

Procedures Act, A.C.A. §25-15-201 et seq. To the

best-of my knowledge and belief, the plaintiff did not

file a petition for review of the Board’s decision

regarding her father.

Being subject to the FOIA, the Board’s records

are open to all Arkansas citizens and the media. Ifa

person from the media requested any Board

information regarding the plaintiff, it would have been

my responsibility to provide it to them. From time to

time, the Board also issues press releases. I do not

recall whether the Board issued any press releases

about any of its dealings with the plaintiff. If there

were any such press releases, I would have formulated

these at the request of the Board, and according to

Board counsel, any information in the possession of

the board, with limited exceptions, is subject to the

FOIA. \

11]

Plaintiff received another letter from the Board

while she was working at the Crossett Animal Clinic

and the board subsequently filed a petition for an

injunction against the plaintiff to enjoin her from

practicing without a license. The Board acted upon

information it received that Plaintiff was practicing

veterinary medicine at the Crossett Clinic after her

father surrendered his license. The Board acted upon

a report from an investigator who reported to the

Board that he observed Dr. Dunham administer

medication to a dog and take a blood sample from the

dog. The investigator reported that at the time this

occurred, the plaintiff, the investigator, and the owner

of the dog were the only persons in the clinic. Based

upon this reliable information that the plaintiff was

practicing veterinary medicine while not under the

direction and supervision of a licensed veterinarian,

the Board petitioned the Ashley County Chancery

Court for an injunction to enjoin Plaintiff from the

unauthorized practice of veterinary medicine.

Plaintiff is not the only graduate of a foreign

school to receive a letter from the Board directing the

recipient to cease practicing veterinary medicine while

not under the supervision of a licensed veterinarian.

There has been at least one other individual to receive

such a letter. To the best of my knowledge and belief,

that individual complied with the Board’s letter.

I have acted in good faith toward Plaintiff at all

times. None of Plaintiff's prior acts were held against

her when she became eligible for a license in 1997.

112

Plaintiff received her license in a timely fashion upon

meeting the requirements.

“s/Sherry Glover”

ACKNOWLEDGMENT

STATE OF ARKANSAS)

) ss

- COUNTY OF PULASKI)

Subscribed and sworn to before me, a Notary

Public, on this 5" day of June, 1998.

“s/Karen H. Gray”, Notary Public

_My Commission Expires: Aug. 1, 2006

AFFIDAVIT OF JAMES W.

WAYMACK, D.V.M.

My name is James W. Waymack. I am a

licensed veterinarian and member of the Arkansas

Veterinary Medical Examining Board (Board). I have

been a Board member since 1987. I participated in the

Board discussions in which the Board requested its

counsel to send cease and desist letters to the plaintiff

and petition the chancery court for an injunction. It

was the general consensus of the Board that the

former exemption in the Practice Act for ECFVG

candidates practicing under the direction and

supervision of a licensed veterinarian implicitly

113

required the supervising licensed veterinarian to be

present at the clinic where the ECF VG candidate was

practicing. Upon receiving information that the

plaintiff was practicing at the clinics with no licensed

veterinarian on site, the Board decided to take the

limited action it had the authority to take.

Any votes or other Board discussions that I

participated in regarding the plaintiff were always

taken in good faith and with the belief that not only

did the Board have the authority to take what action it

did, but that the Board also had the responsibility to

take such action.

“s/James W. Waymack, D.V.M.”

ACKNOWLEDGMENT

STATE OF ARKANSAS _ )

)ss

COUNTY OF HOT SPRING)

Subscribed and sworn to before me, a Notary

Public, on this 5" day of June, 1998.

“s/Sharon K. Phelps”, Notary Public

My Commission Expires: 6-1-2002

114

AFFIDAVIT OF G. C. BLAIR, D.V.M.

My name is G. C. Blair. I am a licensed

veterinarian and member of the Arkansas Veterinary

Medical Examining Board (Board). I have been a

Board member since 1985. I participated in the Board

discussions in which the Board requested its counsel

to send cease and desist letters to the plaintiff and

petition the chancery court for an injunction. It was

the general consensus of the Board that the former

exemption in the Practice Act for ECF VG candidates

practicing under the direction and supervision of a

licensed veterinarian implicitly required the

supervising licensed veterinarian to be present at the

clinic where the ECF VG candidate was practicing.

Upon receiving information that the plaintiff was

practicing at the clinics with no licensed veterinarian

on site, the Board decided to take the limited action it

had the authority to take.

Any votes or other Board discussions that I

participated in regarding the plaintiff were always

taken in good faith and with the belief that not only

did the Board have the authority to take what action it

did, but that the Board also had the responsibility to

take such action.

“s/G. C. Blair, D.V.M.”

115

ACKNOWLEDGMEN™®

STATE OF ARKANSAS)

)ss

COUNTY OF SEARCY )

Subscribed and sworn to before me, a Notary

Public, on this 5" day of June, 1998.

“s/LaVonne Tull”, Notary Public

My Commission Expires: 01-12-01

AFFIDAVIT OF WINGFIELD MARTIN

My name is Wingfield Martin. I am a member

of the Arkansas Veterinary Medical Examining Board

(Board). I have been a Board member since 1986. I

am the public member of the Board and I am not a

veterinarian. I participated in the Board discussions

in which the Board requested its counsel to send cease

and desist letters to the plaintiff and petition the

chancery court for an injunction. It was the general

consensus of the Board that the former exemption in

the Practice Act for ECFVG candidates practicing

under the direction and supervision of a licensed

veterinarian implicitly required the supervising

licensed veterinarian to be present at the clinic where

the ECF VG candidate was practicing. Uponreceiving -

information that the plaintiff was practicing at the

clinics with no licensed veterinarian on site, the Board

116

decided to take the limited action it had the authority

to take.

Any other Board discussions that I participated

in regarding the plaintiff were always taken in good

faith and with the belief that not only did the Board

have the authority to take what action it did, but that

the Board also had the responsibility to take such

action. 7

“s/Wingfield Martin”

ACKNOWLEDGMENT

STATE OF ARKANSAS)

)ss

COUNTY OF PULASKI)

Subscribed and sworn to before me, a Notary

Public, on this 5 day of June, 1998.

“s/John S. Witherspoon”, Notary Public

My Commission Expires: Oct. 27, 2004

AFFIDAVIT OF EV -R V.

My name is Everett I. Rogers. I am a licensed

veterinarian and former member of the Arkansas

Veterinary Medical Examining Board (Board). I was

a Board member from 1983 to 1993. I participated in

the Board discussions in which the Board requested

117 -

its counsel to send a cease and desist letter to the

plaintiff at the Monticello Animal Clinic. I was nota

member of the Board during any subsequent decisions

regarding the plaintiff. It was the general consensus

of the Board that the former exemption in the Practice

Act for ECFVG candidates practicing under the

direction and supervision of a licensed veterinarian

implicitly required the supervising licensed

veterinarian to be present at the clinic where the

ECFVG candidate was practicing. Upon receiving

information that the plaintiff was practicing at the

Monticello Animal Clinic with no licensed veteri-

narian on site, the Board decided to take the limited

action it had the authority to take.

Any other Board discussions that I participated

in regarding the plaintiff were always taken in good

faith and with the belief that not only did the Board

have the authority to take what action it did, but that

the Board also had the responsibility to take such

action.

“s/Everett I. Rogers, D.V.M.”

ACKNOWLEDGMENT

STATE OF ARKANSAS _ )

)ss

COUNTY OF CRAIGHEAD)

Subscribed and sworn to before me, a Notary

Public, on this 5" day of June, 1998.

118

“s/Becky Durham”, Notary Public

My Commission Expires: 3-23-99

AFFIDAVIT OF DONALD L.

MAYFIELD, D.V.M.

My name is Donald I. Mayfield. I am a

licensed veterinarian and former member of the

Arkansas Veterinary Medical Examining Board

(Board). I was a Board member from 1983 until

March of 1998. I participated in the Board

discussions in which the Board requested its counsel

to send a cease and desist letter to the plaintiff at the

Crossett Animal Clinic and petition the chancery court

for an injunction. It was the general consensus of the

Board that the former exemption in the Practice Act

for ECF VG candidates practicing under the direction

and supervision of a licensed veterinarian implicitly

required the supervising licensed veterinarian to be

present at the clinic where the ECF VG candidate was

practicing. Upon receiving information that the

plaintiff was practicing at the Crossett Animal Clinic

with no licensed veterinarian on site, the Board

decided to take the limited action it had the authority

to take. I was not a Board member in 1992 when the

letter was sent to Plaintiff at the Monticello Clinic,

and consequently did not vote or participate in that

decision.

Any votes or other Board discussions that I

participated in regarding the plaintiff were always

i19

taken in good faith and with the belief that not only

did the Board have the authority to take what action it

did, but that the Board also had the responsibility to

take such action.

“s/Donald I. Mayfield, D.V.M.”

ACKNOWLEDGMENT

STATE OF ARKANSAS )

)ss

COUNTY OF WASHINGTON)

Subscribed and sworn to before me, a Notary

Public, on this 8" day of June, 1998.

“s/Lydia Kaye Harrison”, Notary Public

My Commission Expires: 3/26/2004

AFFIDAVIT OF GARY F.

STRICKLAND, D.V.M.

My name is Gary Strickland. I am a licensed

veterinarian and a member of the Arkansas Veterinary

Medical Examining Board (Board). I have been a

member of the Board since 1994. To the best of my

knowledge and recollection, I have never voted to

take any action whatsoever regarding the plaintiff. I

was not a board member at any time relevant to her

complaint, amended complaint, or second amended

complaint. Any matters of discussion in which I have

120

participated as a Board member regarding the plaintiff

were in good faith. My only recollection of any

discussion at Board meetings I have attended

regarding the plaintiff were merely updates from

Board counsel on the status of the lawsuit filed by the

plaintiff.

“s/Gary F. Strickland, D.V.M.”

ACKNOWLEDGMENT

STATE OF ARKANSAS _ )

)ss

COUNTY OF CRAIGHEAD)

Subscribed and sworn to before me, a Notary

Public, on this 5" day of June, 1998.

“s/Becky Durham”, Notary Public

My Commission Expires: 3-23-99

AFFIDAVIT OF GE E R.

WADLEY, D.V.M.

My name is George R. Wadley. I am a licensed

veterinarian and former member of the Arkansas

Veterinary Medical Examining Board (Board). I was

a Board member from 1979 until 1994. I participated

in the Board discussions in which the Board requested

its counsel to send cease and desist letters to the

plaintiff and petition the chancery court for an

121

injunction. It was the general consensus of the Board

that the former exemption in the Practice Act for

ECF VG candidates practicing under the direction and

supervision of a licensed veterinarian implicitly

required the supervising licensed veterinarian to be

present at the clinic where the ECF VG candidate was

practicing. Upon receiving information that the

plaintiff was practicing at the clinics with no licensed

veterinarian on site, the Board decided to take the

limited action it had the authority to take.

Any votes or other Board discussions that I

participated in regarding the plaintiff were always

taken in good faith and with the belief that not only

did the Board have the authority to take what action it

did, but that the Board also had the responsibility to

take such action.

“s/George R. Wadley, D.V.M.”

ACKNOWLEDGMENT

STATE OF ARKANSAS)

)ss

COUNTY OF WHITE _)

Subscribed and sworn to before me, a Notary

Public, on this 22™ day of June, 1998.

“s/Vickie Thompson”, Notary Public

My Commission Expires: 8-15-99

122

IN THE UNITED STATES DISTRICT COURT |

EASTERN DISTRICT OF ARKANSAS)

WESTERN DIVISION

DR. SANDRA K. DUNHAM,

PLAINTIFF

VS. NO. LR-C-95-432

DR. GEORGE WADLEY, D.V.M.,

WINGFIELD MARTIN, DR. EVERETT

I. ROGERS, D.V.M., DR. G. C. BLAIR,

D.V.M., DR. JAMES W. WAYMACK,

D.V.M., DR. DONALD I. MAYFIELD,

D.V.M., DR. GARY F. STRICKLAND,

D.V.M. AND SHERRY GLOVER,

DEFENDANTS

DEFENDANT’S STATEMENT OF

UNCONTESTED MATERIAL FACT

(Filed June 8, 1998)

Comes now Defendants, by and through their

counsel, Attorney General Winston Bryant and

Assistant Attorney General M. Wade Hodge, and for

their Statement of Uncontested Material Facts, state:

1. The plaintiff is a graduate of a foreign

college of veterinary medicine, having graduated in

1991.

123

2. The defendants are current or former

members of the Arkansas Veterinarian Medical

Examining Board and their Executive Secretary.

3. In 1992, Plaintiff was not licensed by the

Board.

4. In 1992, Plaintiff began work at the

Monticello Animal Clinic, located in Monticello,

Arkansas. The owner of the clinic, Dr. Gary Wallace,

lived in North Little Rock.

5. The plaintiff practiced veterinary medicine

at the Monticello Animal Clinic while no other

licensed veterinarian was present at the clinic. At that

time, the Arkansas Veterinarian Medical Practice Act, -

A.C.A. §17-101-101 et_seg., provided that foreign

veterinarian graduates in the process of obtaining an

Educational Certificate for Foreign Veterinarian

Graduates could practice veterinary medicine while

under the direction and supervision of a licensed

veterinarian.

6. At a regular Board meeting, the defendants

decided that the plaintiff was not practicing veterinary

medicine under the direction and supervision of a

licensed veterinarian, and determined to send a cease

and desist letter, and in fact did send such letter, to the

- plaintiff, advising her that it was their opinion that she

was practicing in an unauthorized manner.

7. The Defendants also authorized to send, and

in fact did send, a letter to Dr. Gary Wallace, the

124

plaintiffs employer, informing him of Plaintiffs

Status.

8. The plaintiff is not the only graduate of a

foreign college of veterinary medicine to ever have

received such a letter.

9. The letter to the plaintiff, informed her that

if she had any questions, she could call the Board

office, and provided the Board office’s phone number.

Plaintiff never called the Board office in regard to

these matters.

10. Plaintiff subsequently went to work at the

Crossett Animal Clinic under the employment of her

father, Dr. Robert Dunham.

11. In November of 1993, the Board held a

hearing to consider charges against Dr. Robert E.

Dunham, and an agreement was entered into between

Robert E. Dunham and the Board by which Dr. Robert

E. Dunham would surrender his veterinary license.

12. Plaintiff was present during the hearing of

Dr. Robert E. Dunham. Plaintiff was informed by one

of the Board members that she could not practice at

her father’s clinic, the Crossett Animal Clinic, while

his license was revoked unless another licensed

veterinarian was brought in to run the clinic.

13. At no time did Plaintiff request to address

the Board, nor’ at any time was she denied the

opportunity to address the Board. |

125

14. Plaintiff received another letter from the

Board while she was working at the Crossett Animal

Clinic requesting that she cease and desist practicing

veterinary medicine while not under the direction of

a licensed veterinarian. As did the previous letter, the

letter sent to the plaintiff in Crossett indicated the

Board’s telephone number and invited the plaintiff to

contact the Board office if she had any questions.

Plaintiff never called the Board office regarding this

matter.

15. Having had no response from the plaintiff,

and upon information and belief that she was still

engaging in the unlawful practice of veterinary

medicine, Defendants filed a Petition for Injunctive

Relief against the plaintiffin Ashley County Chancery

Court.

16. Plaintiff filed a counterclaim for

declaratory relief against the Board in Ashley County

Chancery Court.

17. Plaintiff and the Board entered into a joint

stipulation of facts in the lawsuit filed in the Chancery

Court of Ashley County. In paragraph 5 of the Joint

Stipulation of Facts, Plaintiff stipulated that she was

“subject to license by the Baard as defined by A.C.A.

§25-15-202(8), and is governed by the provisions of

the Arkansas Veterinarian Medical Practices Act and

the rules and regulation promulgated by the Board. .

(See Exhibit 9, paragraph 5).

126

18. Plaintiff further stipulated that she was

“neither a licensed veterinarian as defined by A.C.A.

§17-99-102(4), nor the holder of a valid temporary

permit issued by the Board, as set forth in A.C.A. §17-

99-304(a).

19. At the time relevant to Plaintiff's Second

Amended Complaint, the Board did not have the

statutory authority to require a person not licensed by

the Board to appear before the board for any type of

disciplinary proceeding. At all times relevant to the

actions taken by the Board against the plaintiff, it was

the general consensus of the Board that in order for a

person to be acting under the direction and

supervision ofa licensed veterinarian, the supervising

licensed veterinarian must be present at the clinic.

20. Plaintiff received a license from the Board

in 1997. In order to receive a license from the Board,

all veterinarians, in addition to other statutory

requirements, must pass a clinical competency test and

the National Board Exam. This applies to all

candidates for a license, not just foreign graduates.

21. The Board is subject to the Arkansas

Freedom of Information Act, A.C.A. §25-19-101 et

seq, and therefore of its meetings are opened to the

public and with limited exceptions, all of the Board

records are opened to all Arkansas Citizens as well as

the media.

22. The Arkansas Administrative Procedure

Act, A.C.A. §25-15-201 et seq., provides that any

127

person who considers himself to be injured in their

person or property by a Board order may petition for

judicial view of that decision in any county in which

they reside or do business. Plaintiff never appealed

the decision of the Board under which her father

surrendered his license and in turn caused Plaintiff to

be informed by the Board that she could not practice

at the Crossett Animal Clinic unless she was doing so

under the direction and supervision of another

licensed veterinarian.

23. None of Plaintiff's prior acts were held

against her when she became eligible for license in

1997.

24. Plaintiff received her license in a timely

fashion upon meeting all the applicable requirements.

25. Defendants are named in their official

capacities solely for the purpose of injunctive relief.

26. At no time has Plaintiff ever alleged that

she, prior to 1997, held a license issued by the Board.

WHEREFORE, the defendants submit their

statement of uncontested material facts.

“s/M. Wade Hodge”, Bar No. 90072

Assistant Attorney General

200 Catlett-Prien Tower

323 Center Street

128

Little Rock, AR 72201-2610

(501) 682-2007 :

Attorneys for Defendants

Certificate of Service dated June 8, 1998 to Robert J.

Price by U. S. Mail. “s/M. Wade Hodge”

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DR. SANDRA K. DUNHAM, D.V.M.

~ PLAINTIFF

VS. NO. LR-C-95-432

DR. GEORGE WADLEY, D.V.M.,

WINGFIELD MARTIN, DR. EVERETT

I. ROGERS, D.V.M., DR. G. C.

BLAIR, D.V.M., DR. JAMES W.

WAYMACK, D.V.M., DR. DONALD I.

MAYFIELD, D.V.M., DR. GARY

F. STRICKLAND, D.V.M., AND

SHERRY GLOVER

DEFENDANTS

129

PL 'S STATEMENT OF

NTE D MATERIAL FACT

(Filed June 22, 1998)

Comes now the Plaintiff, Sandra K. Dunham,

D.V.M., by and through her attorneys, PRICE LAW

FIRM, and states the following facts, as to which she

contends that a genuine issue exists to be tried:

1. The Plaintiff is a veterinarian who now holds

a Certificate of License from the Arkansas Veterinary

Medical Examining Board (the Board).

2. At all times from March 3, 1992 through

April 30, 1996 the Plaintiff was enrolled in the

American Veterinary Medical Association's ECF VG

program.

3. The Defendants were aware of the Plaintiff's

enrollment in the ECF VG program at all of the times

they acted.

4. On April 15, 1992, the Plaintiff became

employed by Gary Wallis, D.V.M. at the Monticello

Animal Clinic. :

5. At all times when the Plaintiff was employed

at the Monticello Animal Clinic, she was under the

direction and supervision of a licensed veterinarian.

6. The licensed veterinarians under whose

supervision she was performing duties or actions at

130

the Monticello Animal Clinic were Gary Wallis,

D.V.M., Robert E. Dunham, D.V.M., John Porrier,

D.V.M., Judy Porrier, D.V.M., and Dwight Witcher,

D.V.M.

7. The licensed veterinarians under whose

supervision she was performing duties or actions at

the Crossett Animal Hospital were Robert E. Dunham,

D.V.M. (through November 10, 1993), John Porrier,

D.V.M., Judy Porrier, D.V.M., and Dwight Witcher,

D.V.M.

8. The Defendants were aware on August 6,

1992 that the Plaintiff was employed by Gary Wallis

at the Monticello Animal Clinic.

9. The Defendants were aware on August 6,

1992 that the Plaintiff worked for a _ licensed

veterinarian at the Monticello Animal Clinic.

10. During the latter half of August, 1992, the

Plaintiff became employed by Robert E. Dunham at

the Crossett Animal Hospital.

11. Defendants were aware that Robert E.

Dunham and Sandra K. Dunham were father and

daughter.

12. The Defendants were aware on November

9 and 10, 1992 that the Plaintiff was employed at the

Crossett Animal Hospital.

«a

131

13. The Defendants were aware on November

9 and 10, 1992 that the Plaintiff worked for a licensed

veterinarian at the Crossett Animal Hospital.

~ 14. The Defendants did not contact Gary

Wallis to determine whether the Plaintiff was under

the direction and supervision of a_ licensed

veterinarian while she was employed at the Monticello

Animal Clinic.

15. The Defendants did not contact Dr. Robert

E. Dunham to determine whether the Plaintiff was

under the direction and supervision of a licensed

veterinarian while she was employed at the Crossett

Animal Hospital.

16. On or about August 6, 1992, the _

Defendants caused a letter to be sent to the Plaintiff;

the letter contained the language, "It is necessary,

therefore, for you to cease and desist from the practice

of veterinary medicine until such time as you have

fulfilled the necessary requirements and are licensed

by the Board."

17. The Defendants did not give the Plaintiff

any prior notice that she was accused of practicing

without a license at the Monticello Animal Clinic or

that they were: considering the August 6, 1992 action

against her.

18. On or about August 6, 1992, the

Defendants also caused a letter to be sent to the

Plaintiff's employer, Gary Wallis; the letter contained

132

the language, "Dr. Dunham, therefore, is not licensed

to practice veterinary medicine in the State of

Arkansas," and "It is necessary, therefore, for you to

cease and desist from employing any person to

practice veterinary medicine in this state who is not

duly authorized by the Board to engage in such

practice."

19. On or about the first Monday following

August 6, 1992, the Plaintiff's employment with the

Monticello Animal Clinic was terminated

20. The letters sent to the Plaintiff were the

sole and proximate cause of the termination of the

Plaintiff's employment with the Monticello Animal

Clinic.

21. On or about November 9, 1993, the

Defendants caused a second letter to be sent to the

Plaintiff; the letter contained the la..guage, "It is

therefore necessary for you to cease and desist from

the practice of veterinary medicine unless or until you

become licensed by the Board."

22. The Defendants did not give the Plaintiff

any prior notice that she was accused of practicing

without a license at the Crossett Animal Hospital or

that they were considering the N vember 9 or 10,

1992 action against her.

23. On November 10, 1993, the Defendants

conducted a hearing in which they were to decide

whether disciplinary action would be taken against the

133

certificate of license held by Dr. Robert E. Dunham,

the Plaintiff's father.

24. The Plaintiff was compelled by subpoena

from the Board to attend the November 10, 1993

hearing.

25. Before the conclusion of the November 10,

1993 hearing, the Board entered into an agreement

with Robert E. Dunham to resolve the disciplinary

action against his certificate of license.

26. Asa part of the agreement reached between

Robert E. Dunham and the Board, Robert E. Dunham

was required to agree that Sandra Dunham would not

work in the Crossett Animal Hospital as a

veterinarian.

27. The Defendants did not give the Plaintiff

any prior notice that she was accused of practicing

without a license at the Crossett Animal Hospital or

that they were considering the November 10, 1992

action against her.

28. The Plaintiff contacted two of the

Defendants concerning the actions the Defendants had

taken against her. ,

29. The Plaintiff first contacted Dr. George

Wadley, and left four messages for him at his home

30. Dr. Wadley was aware that the Plaintiff had

called, but did not return her calls.

134

31. The Plaintiff next called Dr. James

Waymack at his clinic in Arkadelphia, Arkansas.

32. Dr. Waymack refused to discuss the matter

with her, saying only that she had "better get a

lawyer."

The Plaintiff also contests the following matters

contained within the DEFENDANTS' STATEMENT

OF UNCONTESTED MATERIAL FACTS:

33. In No. 5: In the first sentence, the term

"practiced veterinary medicine," is not defined so as

to allow the Plaintiff to understand what the

Defendants mean by it; the second sentence is a

conclusion of law and not a statement of fact.

34. In Nos. 6, 7, 9, 14, 17 and 18: The

documents those paragraphs reference are all attached

as exhibits to pleadings which are before the Court on

Summary Judgment; all speak for themselves. The

matters contained in those paragraphs other than the

existence and content of the referenced documents are

contested.

35. The second sentence of paragraph 12 is

contested. :

36. The first sentence of paragraph 15 is

contested.

37. The-first sentence of paragraph 19 is a

conclusion of law and not a statement of fact. The

135

second sentence also contains a conclusion of law,

and the factual averment that the Board reached a

consensus is not material to any issue before the

Court.

38. The second sentence of paragraph 20 is a

conclusion of law.

39. Paragraph 21 is a conclusion of law.

40. The first sentence of paragraph 22 is a

conclusion of law. The second sentence is contested.

41. Paragraph 23 is contested.

“s/Robert J. Price”, AR Bar #82128

PRICE LAW FIRM

212 Center Street, Ste. 600

Little Rock, AR 72201

(501) 375-8222

Certificate of Service dated June 22, 1998 to M. Wade

Hodge by U. S. Mail. “s/Robert J. Price”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.