Brown v. National Bd. of Medical Examiners, 85-2375
| Decision Date | 02 September 1986 |
| Docket Number | No. 85-2375,85-2375 |
| Citation | 800 F.2d 168 |
| Parties | Samuel W. BROWN, M.D., Plaintiff, Intervening Plaintiff-Appellant, v. NATIONAL BOARD OF MEDICAL EXAMINERS, Educational Commission For Foreign Medical Graduates, Inc., and Federation of State Medical Boards, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David E. Neely, Chicago, Ill., for plaintiff, intervening plaintiff-appellant.
Bruce H. Weitzman, McDermott Will & Emery, Helen E. Witt, Kirland & Ellis, Chicago, Ill., for defendants-appellees.
Before BAUER, POSNER, and FLAUM, Circuit Judges.
Attorney David Neely and the law firm of Mitchell & Black appeal from a district court order imposing sanctions on them under Rule 11 of the Federal Rules of Civil Procedure. The sanctions were based on Neely's Motion to Produce Documents and Place Under Court's Seal and Mitchell & Black's subsequent motion for reconsideration. The district court concluded that both motions were groundless and evidenced a lack of reasonable inquiry into their basis in fact. We find that the district court did not abuse its discretion in imposing the award of attorney's fees on the appellants and thus affirm that decision.
Samuel W. Brown, M.D., who received his medical training in Austria, has unsuccessfully endeavored for a number of years to obtain certification in the United States by attempting to pass various state licensing exams administered under the auspices of the appellees: the Federation of State Medical Boards of the United States ("FLEX"), the Educational Commission for Foreign Medical Graduates ("ECFMG"), and the National Board of Medical Examiners ("NBME"). NBME is a medical testing organization that develops questions and otherwise assists organizations such as FLEX and ECFMG in preparing their respective exams.
In the period between 1975 and 1982 Dr. Brown took the ECFMG exam nine times and the FLEX exam four times. In order to pass either test the applicant must achieve a scaled score of at least 75. During this period Dr. Brown's scores were remarkably consistent despite what he asserts was continuous and extensive study and preparation between exam dates. The scaled scores for his nine ECFMG exams all fell in the narrow range between 67 and 69. The FLEX "weighted average" scores were 67, 68, 70, and 70. In the last of his two FLEX exams his scaled scores, as opposed to his "weighted average" scores, were in fact identical when taken to the second decimal place--71.92.
This apparent statistical anomaly, along with his failure to improve his scores over time, convinced Dr. Brown that the medical testing organizations were engaged in some form of statistical manipulation. Dr. Brown then commenced, having invoked the assistance of then-Congressman Harold Washington, a letter writing campaign designed to achieve a satisfactory explanation for the test scores. Among the items sought was a personal review of his answer sheet, the answer key, and the test booklet he used during the exam. Dr. Brown alleges that he noted all his answers in his booklet thus allowing him to check for manipulations.
On May 12, 1982, the Senior Psychometrician for NBME sent a report to the executive director of FLEX which described how the FLEX exam was scored, the distribution of scores for the years 1980 and 1981, and information about Dr. Brown's performance on the FLEX exam in those particular years. The position taken in the report was that the identical scores were a mere, albeit unusual, coincidence. This report, which purported to address the questions posed by Dr. Brown and his representatives, was sent to the doctor and Congressman Washington. A subsequent letter of May 19 outlined the procedures for reviewing the past exams. These procedures provided that the review be conducted by anyone other than the candidate and that the question booklet would be one of the master copies rather than the individual's actual booklet. Dr. Brown found this situation unsatisfactory and, with the assistance of an attorney other than Neely, filed the present law suit.
The original complaint requested relief in the form of a review by Dr. Brown of the 1980 and 1981 FLEX exams including the test booklet, his answers, and the answer key. The original complaint was dismissed for want of prosecution in June 1983 only to be allowed reinstatement one month later. In November 1983, a pretrial conference was held in Judge Grady's chambers. At the conference it was made clear by the attorney representing the testing organizations that the individual candidates' test booklets were destroyed in the normal course of business and that only the master copies remained. The defendants explained that according to their practices anything written in the test booklets was irrelevant to the scoring of the exam; that the booklets were collected to maintain the integrity of future exams; and that storing all individual test booklets under these circumstances would be a substantial waste of space and money. The organizations did at this time offer to settle the case by awarding Dr. Brown the review requested in his complaint using the master copy of the exams the doctor had taken. Dr. Brown, apparently agitated by the destruction of his test booklet, refused the settlement offer.
One month later an amended complaint was filed pro se by Dr. Brown that alleged various constitutional deprivations and prayed for millions of dollars in damages. While the defendants made efforts to have the complaint dismissed, Dr. Brown's counsel made a motion to withdraw that was granted. Dr. Brown immediately retained new counsel who successfully withdrew from representation one month later. On March 30, 1984, David Neely appeared for the first time on behalf of Dr. Brown and subsequently filed a new complaint. During the first two months of his representation, Neely sought to correct what he viewed as certain jurisdictional defects in the case and, to this effect, consented to a stay of discovery pending resolution of these issues.
During this period Neely commenced settlement negotiations with the defendants. At one of these discussions Neely noted that the report issued May 12, 1982, which purported to explain Dr. Brown's 1980 and 1981 FLEX results, at one point used the name "Samuel N. Brown" rather than Samuel W. Brown. This error led NBME to reevaluate its report and rescore the exam. On May 31, 1984, a letter amending the May 1982 report was prepared. This letter noted that Samuel N. Brown was in fact Samuel W. Brown and that other non-substantative transposition errors had been made. Thus, the letter was meant to serve as an errata to the May 1982 report.
To Neely, this letter represented "the straw that broke the camel's back." Convinced that the letter represented a sudden change of position by the defendants and that there was a danger that necessary documentary evidence would be altered or destroyed, he filed an emergency Motion to Produce Documents and Place Under Court's Seal. On June 19, 1984, Judge Grady held a hearing on the motion where he questioned Neely on the basis for his belief that the defendants were going to violate their ethical obligations by altering evidence. Although his responses were cryptic, it appears that Neely believed the May 31, 1984 letter and the destruction of the test booklets created this danger. Neely did not identify what evidence might be destroyed (it appears at one point that he was concerned with the possible destruction of Dr. Brown's non-existent test booklets), and, at oral argument before this court, he admitted that the motion was devoid of documentary support. The district court found this motion to be groundless and thus violative of Rule 11. Neely was given an opportunity to respond within five days and eventually the district court entered an order assessing attorney's fees of $2,538 against Neely.
In July 1984, Neely retained the law firm of Mitchell & Black in order to move for reconsideration of the Rule 11 sanctions. A motion for reconsideration was filed accompanied by fifteen exhibits designed to demonstrate that the Neely's motion had merit. These exhibits consisted of correspondence between Dr. Brown and the testing organizations that, according to the motion, demonstrate the shifting stances taken by the defendants. The chief piece of evidence is a letter saying that a representative of Dr. Brown could view "the test booklet" as well as the other information. The motion claims that this establishes that Dr. Brown's booklet was destroyed with knowledge that it was relevant to Dr. Brown's claim and that the organizations had changed their position about allowing access to the actual test booklet because this early letter did not refer to the "master" booklet. Judge Grady found, notwithstanding the additional submissions, that the motion for reconsideration was also groundless and assessed Mitchell & Black $250 in attorney's fees under Rule 11. This appeal ensued.
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