800 F.2d 168 (7th Cir. 1986), 85-2375, Brown v. National Bd. of Medical Examiners

Docket Nº85-2375.
Citation800 F.2d 168
Party NameSamuel 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.
Case DateSeptember 02, 1986
CourtUnited States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 168

800 F.2d 168 (7th Cir. 1986)

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.

No. 85-2375.

United States Court of Appeals, Seventh Circuit

September 2, 1986

Argued May 5, 1986.

Page 169

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.

FLAUM, Circuit Judge.

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.

I.

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

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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...

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