IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JIAN YING LEMPER, DMD, : 

 :

Appellant, : K17A-02-003 JJC

 : In and for Kent County

v. :

 :

DELAWARE BOARD OF :

DENTISTRY & DENTAL HYGINE, :

 :

Appellee. :

 :

ORDER

Submitted: June 16, 2017

Decided: July 31, 2017

Corrected: August 1, 2017

On this 31st day of July 2017, having considered Appellant Dr. Jian Ying 

Lemper’s appeal, it appears that:

1. Appellant Dr. Jian Ying Lemper (hereinafter “Dr. Lemper”) appeals a 

decision of the Delaware Board of Dentistry and Dental Hygiene Appeal Panel

(hereinafter “Appeal Panel”) denying Dr. Lemper a license to practice dentistry in 

the State of Delaware. For the reasons that follow, the Court affirms the Appeal

Panel’s January 11, 2017 decision and order. 

2. Since this matter involves an appeal of an administrative agency’s 

decision, the Court confines its review to the facts contained in the record, and it is 

those facts that are referenced herein. In April 2016, Dr. Lemper applied to the 

Delaware Board of Dentistry and Dental Hygiene (hereinafter “Dentistry Board”) 

for a license to practice dentistry in Delaware. In June 2016, Dr. Lemper completed
2

the Delaware Dental Practical Examination. A panel of four examiners administered 

the exam. 

3. The standards used to grade the exam are recorded in the “Delaware 

Practical Examination for Dental Candidates” packet (hereinafter the “Candidates’ 

Packet”), which is distributed to the candidates and referenced by the examiners 

during the exam.

1 The examiners perform regular calibration exercises, which 

involve the examiners discussing and standardizing grading criteria, as well as 

performing and discussing a test periodontal procedure, to ensure standard 

observations and grading. These calibrations are, as indicated in the Candidates’ 

Packet, to be performed “biannually, or when a new examiner is appointed to the 

board.” 

4. The Dentistry Board grades the exam by averaging the scores of each 

examiner. A score of 75 is required to pass. Dr. Lemper failed three of the seven 

sections of the exam: the crown exercise, the impression technique, and the 

radiographic technique. Each examiner gave Dr. Lemper a score of only 65 and, on 

June 20, 2016, the Dentistry Board informed Dr. Lemper that she failed the 

examination.

5. Soon thereafter, Dr. Lemper wrote to the State of Delaware Division of 

Professional Regulation and requested a hearing before the Appeal Panel pursuant 

to 24 Del. C. § 1194(d). The Appeal Panel met, and after an evidentiary hearing, 

determined that Dr. Lemper had not met her burden of proof to show the Dentistry 

Board wrongfully determined she had failed the exam.

2

 Dr. Lemper then appealed 

 

1 Although the record does not reveal the circumstances surrounding the adoption of these 

standards, both parties agreed that the standards set forth in the Candidates’ Packet should be 

treated in the same manner as the Dentistry Board’s regulations.

2

See 24 Del. Admin. C. 1100-10.5.2 (providing that “[t]he Board’s scoring of the examination is 

presumed correct, and the burden of proof at an appeal hearing is on the appellant to prove 

otherwise. The appeal is limited to a determination of whether there exists substantial evidence to 

support the judgment of the examiners at the time of the examination.”).
3

that decision to this Court pursuant to Section 1194(g) of Title 24 of the Delaware 

Code. 

6. For administrative appeals, this Court limits its review to whether an 

administrative board’s decision is supported by substantial evidence and is free from

legal error.

3 Substantial evidence is that which “a reasonable mind might accept as 

adequate to support a conclusion.”4It is “more than a scintilla, but less than a 

preponderance of the evidence.”5In reviewing the Dentistry Board's decision, the 

Court is to avoid acting as a “trier of fact with authority to weigh the evidence, 

determine questions of credibility, and make its own factual findings and 

conclusions.”6 On the other hand, the Court will find an abuse of discretion if the 

Dentistry Board “acts arbitrarily or capriciously . . . or exceeds the bounds of reason 

in view of the circumstances and has ignored recognized rules of law or practice so 

as to produce injustice.”7

7. Dr. Lemper presents several arguments for why the Court should 

overturn the decision of the Appeal Panel. First, she alleges that the Dentistry Board 

acted arbitrarily and capriciously by failing to physically perform calibrations twice 

a year and when a new examiner is appointed to the Dentistry Board. She argues 

that this violates the Dentistry Board’s own regulations and standards, as printed in 

the Candidates’ Packet.

8

 

3

29 Del. C. § 10142(d); Avon Prods. v. Lamparski, 293 A.2d 559, 560 (Del. 1972).

4 Olney v. Cooch, 425 A.2d 610, 614 (Del. Super. Ct. 1981) (citing Consolo v. Fed. Mar. 

Comm'n, 383 U.S. 607, 620 (1966)).

5

Id. (quoting Cross v. Calfano, 475 F.Supp. 896, 898 (M.D. Fla. 1979)).

6

Johnson v. Chrysler Corp., 213 A.3d 64, 66 (Del. 1965).

7 Del. Transit Corp. v. Roane, 2011 WL 3793450, at *5 (Del. Super. Ct. Aug. 24, 2011).

8 Although Dr. Lemper cited no authority in support of this argument, due process requires that an 

administrative agency follow its own rules of procedure. See Dugan v. Del. Harness Racing 

Comm’n, 752 A.2d 529, 531 (Del. 2000) (holding that “if an agency rule is designed ‘to afford . . 

. due process of law by providing safeguards against essentially unfair procedures,’ the action 

which results from the violation of that rule is invalid”). 
4

8. Dr. Lemper’s opening brief, however, did not cite any legal authority 

in support of this argument. In her opening brief to this Court, Dr. Lemper had an 

obligation to “marshal the relevant facts and establish reversible error by 

demonstrating why the action [below] was contrary to either controlling precedent 

or persuasive decisional authority from other jurisdictions. The failure to cite any

authority in support of a legal argument constitutes a waiver of the issue . . . .”

9

 

9. Additionally, Dr. Lemper’s argument is insufficient on its merits. The 

record indicates that the Dentistry Board calibrated the exam approximately one year 

prior to the June 2016 exam. Namely, the Dentistry Board performed the 2015 

calibration shortly after a new examiner joined the Dentistry Board. This alone 

appears to satisfy the requirement to perform a calibration “biannually or when a 

new examiner is appointed to the [B]oard.” 

10. Importantly, this Court defers to the Dentistry Board’s interpretation of 

its regulations and standards unless such an interpretation is clearly erroneous.10 The 

Dentistry Board’s actions indicate that it interprets the calibration requirement to be 

wholly disjunctive. Furthermore, such an interpretation is not clearly erroneous 

because the plain language of this requirement is in fact disjunctive. The presence 

of the “or” requires calibration when either a new board member is appointed or

biannually. It does not require calibration both biannually and when a new member 

joins the Dentistry Board despite Dr. Lemper’s argument to the contrary. As there 

is evidence that the Dentistry Board calibrated the exam shortly after a new member 

joined the Dentistry Board, there is substantial evidence to support the Appeal 

Panel’s decision that the Dentistry Board did not violate its calibration requirement. 

11. Furthermore, Dr. Lemper provided no authority for the proposition that 

the Dentistry Board must physically calibrate all of the exam components nor was 

 

9 Flamer v. State, 953 A.2d 130, 134 (Del. 2008).

10 State Farm Mut. Auto. Ins. Co v. Mundorf, 659 A.2d 216, 220 (Del. 1995). 
5

the Court able to locate any provision defining calibration in such a manner. 

Moreover, the Appeal Panel determined that the Dentistry Board sufficiently 

calibrated the exam by discussing the grading procedures. The Court finds that there 

is substantial evidence to support the Appeal Panel’s decision that the Dentistry 

Board properly calibrated the exam in accordance with its standards as printed in the 

Candidates’ Packet. Consequently, the Dentistry Board’s policy of setting standards 

for the exam was not arbitrary and capricious. 

12. Second, Dr. Lemper also argues that because the exam scoring 

contained a subjective element, the outcome was arbitrary and capricious. Here 

again, Dr. Lemper’s opening brief did not cite any legal authority in support of this

argument. However, Dr. Lemper’s opening brief did note a Dentistry Board 

member’s admission that there is a subjective element in the scoring process. Dr. 

Lemper also emphasizes that the four examiners gave Dr. Lemper different scores 

on different portions of the exam but still all reached the same overall score. Dr. 

Lemper asserts that this is too much of a coincidence to not be improper.

13. The fact that certain elements of the grading may, to a certain extent, 

contain a subjective component does not by itself establish arbitrary and capricious 

conduct on the part of the Dentistry Board. There is no evidence that the examiners 

graded the exam in a manner that violated the Dentistry Board’s regulations or 

guidelines. Additionally, the Court does not find any evidence that the examiners 

colluded in a manner to ensure Dr. Lemper’s failure. 

14. Third, Dr. Lemper argues that the Dentistry Board violated the principle

of “fundamental fairness” when it allowed an examiner to introduce non-standard 

criteria into the administration of the exam. In particular, Dr. Lemper claims that 

Dr. Mercer unfairly deducted points when Dr. Lemper failed to follow up on a 

modification request she made. Here again, she cites no legal authority in support 

of this argument. 
6

15. Nevertheless, included in the Candidates’ Packet is a procedure for 

requesting modifications. By failing to address the variations for which Dr. Lemper

sought modification, it appears that Dr. Lemper fell short of the criteria provided. A 

plain reading of the Candidates’ Packet indicates that once a candidate’s request for 

modification is approved, the expected “ideal preparation,” on which the candidate 

is graded, is modified. Consequently, by not performing the modification as 

requested, Dr. Lemper did not meet the modified expectation. Accordingly, the 

Dentistry Board’s decision that Dr. Mercer justifiably deducted these points was 

supported by substantial evidence. 

16. Fourth, Dr. Lemper argues that the Dentistry Board wrongfully 

promulgated regulations prohibiting introduction of evidence before the Appeal 

Panel that was not part of the examination process or that was no longer in the 

possession of the Dentistry Board. Prior to Dr. Lemper’s examination, the Dentistry 

Board promulgated the following regulation: 

The appeal panel may only consider documents, radiographs, and 

materials submitted during the examination that remain in the 

possession of the Board. The panel will not consider documentation or 

evidence that was not part of the examination, including opinions of the 

candidate or any other party, academic records, or letters of reference. 

The panel will not consider radiographs, photographs, or models of a 

patient taken after the completion of the examination.11

17. Dr. Lemper makes no assertion that this regulation was improperly 

promulgated. Further, Dr. Lemper failed to cite legal authority in support of the 

above argument. Regardless, the Dentistry Board had clear authority to promulgate

such a regulation; the Dentistry Board is empowered to “prepare and administer a 

 

11 24 Del. Admin. C. 1100-10.5.2.1.
7

practical exam in dentistry.” 12 Accordingly, the Dentistry Board did not err in

applying this regulation.

18. Fifth, Dr. Lemper argues that the Dentistry Board failed to establish 

objective criteria for over reduction of a crown prep, and, additionally, the examiners 

grading Dr. Lemper neglected to utilize instruments designed for measuring the 

amount of reduction. Dr. Lemper alleges that the Dentistry Board’s subjective 

standard is arbitrary and capricious, and applying such a standard rendered its

decision an abuse of discretion. However, the record contains evidence that 

objective criteria exists for grading a crown prep. The Candidate’s Packet states that 

a crown “occlusal reduction PFM” should be two millimeters. Therefore, any 

reduction greater than two millimeters would be an over reduction. While Dr. 

Lemper argues that the examiners acted arbitrarily by measuring her occlusal 

reduction without using an instrument, there is evidence in the record to support that 

an experienced practitioner “eyeballing” this distance is a reasonable method of 

measuring such. The panel of examiners opined that “[i]t is normal and appropriate 

for experienced dentists to use only their sight.” Therefore, a reasonable mind might 

accept the standard of two millimeters, as judged by sight, to be sufficiently 

objective. Consequently, it is not an arbitrary or capricious standard by which to 

grade candidates. 

19. Sixth, Dr. Lemper argues that the Dentistry Board erred in failing to 

maintain “documents and records from the June 2016 examination.” However, Dr. 

Lemper fails to allege what documents or records were not maintained. The record 

also does not indicate that a document was unavailable to Dr. Lemper at the hearing 

 

12 24 Del. C. § 1106(a), (a)(3)b (the Board is empowered to “formulate rules and regulations”); 

Brown v. State Bd. of Dental Exam’rs, No. 93A-11-017, 1994 WL 315304, at *3 (Del. Super. Ct. 

May 23, 1994), appeal dismissed and remanded, 650 A.2d 1307 (Del. 1994) (regarding the 

Board’s review of appeals by applicants who fail the dentistry licensing exam: “the controlling 

statutes impose no requirements for the review process . . . this topic is implicitly delegated to the 

agency and this Court may not disturb the agency's interpretation unless it is unreasonable”).
8

before the Appeal Panel. At oral argument, Dr. Lemper argued that the Dentistry 

Board, after the completion of an exam, should create plastic molds or some sort of 

picture documentation of the patient in order to document the examinee’s work. 

Based on this, Dr. Lemper argues that the Dentistry Board failed to maintain 

documents that it should have created. However, Dr. Lemper cites no legal authority 

requiring such a procedure. As elsewhere, Dr. Lemper argues that such a 

requirement should be imposed because it would not be burdensome on the Dentistry 

Board. The Court refuses to substitute its judgment for that of the Dentistry Board. 

As there is no evidence that the Board failed to maintain any records that it actually 

created pursuant to the examination, Dr. Lemper’s argument must fail. 

20. Seventh, at oral argument, for the first time, Dr. Lemper also raised an 

argument that the members of the Appeal Panel were not qualified to sit on the panel. 

Dr. Lemper bases her argument on her belief that the members of the Appeal Panel 

were members of the Dentistry Board, which Delaware law prohibits.

13

 The Court 

notes the Dentistry Board’s representation that Dr. Lemper’s belief is likely based 

on the cover page of the transcript of the Appeal Panel’s hearing which lists the panel 

members as Board Members. The Dentistry Board represented, at the oral argument,

that the cover page of the transcript incorrectly identified the panel members as such. 

The Dentistry Board affirmatively represented that none of the members on the 

Appeal Panel were also Dentistry Board members during the previous five years. 

The Court accepts this representation, and therefore, finds that without evidentiary 

support below, there is no merit to Dr. Lemper’s argument.

21. Eighth, Dr. Lemper also argued for the first time at oral argument that 

the Appeal Panel did not provide her with an adequate opportunity to question her 

examiners at the hearing. Dr. Lemper argues that the hearing took place late in the 

day and the panel members and witnesses were not willing to stay late. Therefore, 

 

13 24 Del. C. § 1194(b).
9

Dr. Lemper argues that the hearing did not provide adequate time to allow her 

counsel to fully examine all of the graders. The Court recognizes substantial 

evidence to the contrary. At the Appeal Panel hearing, Dr. Lemper’s counsel was 

provided the opportunity to present more witnesses. His response was “[n]o. I’m 

not going to repeat the questions of the other two examiners.”14 It is clear from the 

transcript that the Appeal Panel provided Dr. Lemper’s counsel time to call any 

additional witnesses and fully question them. Moreover, Dr. Lemper had the 

opportunity to subpoena witnesses,15 but chose not to do so. Therefore, Dr. Lemper 

cannot now argue that the Appeal Panel prevented her from fully developing the 

evidence at her hearing. 

WHEREFORE, for the reasons cited herein, Dr. Lemper’s appeal is DENIED. 

The decision of the Appeal Panel is accordingly AFFIRMED.

IT IS SO ORDERED. 

/s/Jeffrey J Clark 

 Judge

 

14 Appeal Hearing Transcript at 64. 

15 Appeal Hearing Transcript Exhibits (which includes the “Notice of Appeal Panel Hearing 

Date,” which provides consistently with Delaware’s Administrative Procedures Act that “You 

may subpoena witnesses. Requests for subpoenas should be directed to: Jennifer Witte . . .”).