Mexico ex rel. New Mexico Soc'y for Acupuncture v. Kinetacore Holdings, LLC

Decision Date08 June 2018
Docket NumberNo. 1:17-cv-00250 JCH/SMV,1:17-cv-00250 JCH/SMV
CourtU.S. District Court — District of New Mexico

THIS MATTER is before the Court following its denial of Plaintiff's motion for a temporary restraining order that sought to enjoin Defendants from conducting a seminar on "dry needling" in February 2017. In response to a later show cause order by the Court requesting explanation from the parties for why the case should not be dismissed, Plaintiff indicated that it sought to permanently enjoin Defendants from engaging in the future practice of dry needling and in the unauthorized practice of medicine without a license. For their part, Defendants responded that they were evaluating whether to file counterclaims and, in an amended answer, Defendants did indeed counterclaim against Plaintiff two violations of the Sherman Antitrust Act, 15 U.S.C. §§ 1-2 (2018) for allegedly bringing "sham" litigation for anticompetitive purposes.

Now pending are the parties' cross-motions for summary judgment on Plaintiff's claim for injunctive relief and Plaintiff's motion to dismiss the antitrust counterclaims. The material facts are undisputed. According to Plaintiff, its partial motion for summary judgment1 presents a "narrow legal question": whether dry needling falls within the definition of "physical therapy" contained within N.M. Stat. Ann. § 61-12D-3(I) (2016), which is New Mexico's statute defining the practice of physical therapy. After careful consideration of the motions, briefs, evidence, and relevant law, the Court concludes that Plaintiff's Motion to Dismiss [Doc. 30] should be granted; its Motion for Partial Summary Judgment [Doc. 40] should be denied; and that Defendants' Motion for Summary Judgment [Doc. 73] should be granted.


Defendant Kinetacore is a company that teaches dry needling. Doc. 73, ¶ 1. Defendant Maywhort is a lead course instructor with Kinetacore and Defendant Zylstra is its Chief Executive Officer. Doc. 40, ¶¶ 1, 3. Defendants are not licensed physicians. Id. ¶ 4. Dry needling refers to a technique "used by physical therapists that uses a thin filiform needle to penetrate the skin and stimulate underlying my fascial trigger points, muscular, and connective tissues for the management of neuromusculoskeletal pain and movement impairments." Doc. 73, ¶ 2. Stated simply, dry needling is practiced by physical therapists and involves inserting needles into a person's muscles to release trigger points and relieve pain. Doc. 40-2. The needles used in dry needling are the same type of needle used for acupuncture. Doc. 40-3, p. 1. Acupuncturists and physical therapists are separately regulated.

New Mexico regulates the practice of physical therapy under N.M. Stat. Ann. §§ 61-12D-1 to -19 ("Physical Therapy Act" or "the Act"). The Act creates a physical therapy board ("theBoard") whose powers and duties include "regulat[ing] the practice of physical therapy by interpreting and enforcing the provisions of the" Act, see § 61-12D-5(B), and "may adopt, file, amend or repeal rules and regulations ... to carry out the" Act. Id. § 61-12D-5(C). The Board consists of five members appointed by the governor, three of whom are physical therapists. Id. § 61-12D-4.

Eighteen years ago, in 2000, the Board reflected its opinion in a letter that "the [Physical Therapy] Act does not prohibit dry needling." Doc. 40-4. The Board's 2000 opinion was in response to a complaint regarding one of its practitioner's "training in dry needling for triggerpoint therapy." Doc. 40-4. After reviewing the complaint the Board wrote in its letter that it was closing the case against the practitioner because "[t]he [Physical Therapy] Act does not prohibit dry needling." Doc. 40-4. Plaintiff argues that the Board's 2000 opinion letter is doubtful in light of an August 2014 Board meeting between the Board and its legal counsel. Counsel told the Board that physical therapy did not include dry needling, since "[n]othing [in the physical therapy scope-of-practice statute] seems to contemplate penetrating the skin in any way, shape or form." Doc. 40-4, p. 3, 39:17-18. However, there is nothing in the record or from the 2014 meeting transcript indicating that the Board changed its position since the 2000 opinion letter.

The Board's 2000 opinion letter's statement that "[t]he [Physical Therapy] Act does not prohibit dry needling" in response to a complaint about one of the Board's practitioner's training is the Board's sole pronouncement on the issue. The record does not show that the Board has adopted any formal regulations addressing whether dry needling is within a physical therapist's scope of practice.

Boards of Physical Therapy or Attorneys General of several other states have also addressed whether dry needling falls within the profession's scope of practice, but states are divided on the issue. For instance, in his opinion addressing the issue, the Attorney General of Nebraska noted that "[w]hile there is a split of authorities from other jurisdictions on this question," a majority of five state Attorneys General "have concluded that dry needling may be within the scope of practice for physical therapists and that the board of physical therapy for that state has authority to make that determination." Neb. Op. Att'y Gen. No. 16009, 2016 WL 3682982 at *4 (July 8, 2016). Cf. N.J. Op. Att'y Gen. No. 13-0024, n. 1 (2017), Doc. 40-4, p. 13 (stating that "[a]t least five states have issued opinions suggesting that dry needling may be within the scope of practice of a physical therapist and at least six states, ...[] have either Attorney General or Board determinations that indicate the [sic] physical therapists cannot engage in dry needling.")

According to Plaintiff, the Board's 2000 opinion letter flatly contravenes New Mexico's physical therapy scope-of-practice statute because dry needling it is not an expressly mentioned practice and because the New Mexico Legislature intended to restrict physical therapists' practice to non-invasive therapeutic practices. Defendants argue that the Board's letter is entitled to substantial deference and that the Act permits dry needling. Additional facts and argument will be provided as needed in the sections that follow.

i. Summary Judgment

Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A fact is considered material if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248-50. An issue is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013). In analyzing cross-motions for summary judgment, a court "must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor." United States v. Supreme Court of New Mexico, 839 F.3d 888, 906-07 (10th Cir. 2016). "Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another." Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1030 (10th Cir. 2007).

ii. Statutory Injunction

"In cases where the governing statute specifically authorizes injunctive relief—a 'statutory injunction'—the statute controls." United States v. High Plains Livestock, LLC, 148 F. Supp. 3d 1185, 1202 (D.N.M. 2015), overruled on other grounds by, No. 15-CV-680 MCA/WPL, 2016 WL 10591975 (D.N.M. Jan. 11, 2016). "A statutory injunction is available where a statute bans certain conduct or establishes certain rights, then specifies that a court may grant an injunction to enforce the statute." Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1098 (11th Cir. 2004). Thus, "[w]here an injunction is authorized by statute it is unnecessary for plaintiff to plead and prove the existence of the usual equitable grounds, irreparable injury and absence of an adequate remedy at law. It is enough if the requirements of the statute are satisfied." Atchison, T. & S. F. Ry. Co. v. Lennen, 640 F.2d 255, 260 (10th Cir. 1981). "[T]he standards for granting statutorily-authorized injunctions are necessarily controlled by the statute itself. Klay, 376 F.3d at 1098. New Mexico state courts seem to follow the same rule. See Sec'y,Taxation & Revenue Dep't v. Carter, No. 29,979, 2012 WL 868895, at *3 (N.M. Ct. App. Feb. 16, 2012).

Here, Plaintiff seeks a statutory, rather than equitable, injunction under N.M. Stat. Ann. § 61-6-22, which authorizes courts to enjoin an unlicensed medical practitioner. In order to obtain injunctive relief, the statute requires Plaintiff to prove, at a minimum that Defendants "did, on a certain day and in a certain county, engage in the practice of medicine without having a valid license." § 61-6-22. The parties agree that Defendants' held a seminar on February 25-26, 2017 in Bernalillo County at which dry needling was performed and taught, but disagree about whether that constituted the unauthorized practice of medicine without a license.

i. Whether the Board's 2000 Opinion Letter Receives Deferential Judicial Review

As a threshold matter, the parties heavily dispute whether the Board's 2000 opinion letter is binding guidance entitled to deferential judicial review, necessitating the Court's analysis of that issue. Plaintiff argues that the letter is entitled to little or no deference because it is mere informal advice the Board gave to one of its...

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