Opinion
8:99CV131
June 4, 2002
MEMORANDUM AND ORDER
Before me are 1) the defendants' motion, Filing No. 102, to dismiss the third cause of action of the plaintiff's second amended complaint, Filing No. 100; 2) the defendants' motion in limine, Filing No. 107, regarding the testimony of Dr. Paige Anderson; and 3) the plaintiff's motion, Filing No. 113, for leave to extend time. I have reviewed the record, the parties' briefs and indexes of evidence, and the applicable law, and I conclude that the defendants' motion to dismiss should be granted, that the defendants' motion in limine should be denied, and that the plaintiff's motion to extend time should be denied as moot.
Because previous orders summarized the facts leading to this lawsuit, a lengthy repetition of those facts is not necessary in this order.
I. Motion to Dismiss (Filing No. 102)
The defendants contend that the plaintiff's third cause of action in the second amended complaint should be dismissed under Federal Rule of Civil Procedure 12(b).
In considering a motion to dismiss a complaint under Rule 12(b)(6) for failure to state a claim, the court must assume all the facts alleged in the complaint are true and must liberally construe the complaint in the light most favorable to the plaintiff. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). A Rule 12(b)(6) motion to dismiss a complaint should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief. Id. Thus, as a practical matter, a dismissal under Rule 12(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Id.
The plaintiff's second amended complaint fails to acknowledge two prior orders of this court: 1) Judge Cambridge's order, Filing No. 31, dismissing defendants Clarke and Houston from the third cause of action, and 2) my order, Filing No. 84 at 6-7, dismissing the plaintiff's third cause of action in the amended complaint brought under 42 U.S.C. § 1983 as precluded by her Title VII causes of action. The plaintiff now attempts to revive her action against Clarke and Houston as individuals by arguing that they personally participated in the discriminatory conduct of which she complains, thus creating liability under section 1983. See Filing No. 100 at 2, ¶ 3; Plaintiff's Brief at 6. Further, the plaintiff now argues that my ruling on the section 1983 claim is wrong because her claim is predicated on the Fourteenth Amendment rather than Title VII. She states that a section 1983 claim is therefore needed in the second amended complaint to "preserve such issue for appeal." Plaintiff's Responsive Brief at 3. Whether or not the plaintiff is correct about the necessity to replead a section 1983 claim in a second amended complaint to preserve these issues for appeal, she has still failed to persuade me that the prior rulings were incorrect.
Defendant Clarke was dismissed entirely from the third cause of action. Defendant Houston was dismissed only in his official capacity from money damages. Filing No. 31 at 6.
The plaintiff's second amended complaint adds nothing to the plaintiff's legal theories. In fact, the amended complaint and the second amended complaint are largely identical, leading me to question whether the plaintiff intended the second amended complaint to function as a pleading akin to a motion to reconsider. But the parties presented in the second amended complaint, Filing No. 100 (filed December 14, 2001), are identical to those in the amended complaint, Filing No. 40 (filed July 17, 2000), and the underlying factual basis of the two pleadings is likewise nearly identical, arising from the same nucleus of events. While the plaintiff has included in the second amended complaint a few additional allegations about her suspension, termination and the defendants' "ongoing harassment" of the plaintiff, those allegations all relate to events that occurred after the plaintiff filed this lawsuit. Filing No. 100 at 1, ¶ 1; see also Filing No. 1, Complaint (filed April 7, 1999). The inclusion of those new, post-suit allegations does not change the analysis of the third cause of action, however. Because the plaintiff still makes out no claim against Clarke and Houston individually and no claim for relief different than that available under Title VII, the plaintiff's section 1983 claim must still fall.
For example, the plaintiff now alleges that during the pendency of the plaintiff's NEOC/EEOC charges, the defendants "continued to harass and retaliate against Plaintiff including, but not limited to, bringing her up on several charges and/or imposing discipline in August, 1999 to include alleged inappropriate pat searching, spending alleged excessive time in housing unit and alleged excessive absences." Id. at 4, ¶ 5. Further, the plaintiff alleges that the defendants' "retaliation and discrimination" resulted both in her suspension in June 2000 only days after receiving a EEOC right to sue letter on her May 1999 charges and, ultimately, in her termination in January 2001. The plaintiff alleges she received subsequent EEOC right to sue letters on the retaliation and discrimination charges she filed in connection with the suspension and termination. Id. at 4, ¶ 6; see also id. at 5, ¶ 7 (detailing additional disciplinary measures the defendants allegedly imposed on the plaintiff from April 2000 through January 2001).
The defendants state in their brief that the doctrine of res judicata precludes me from revisiting the issues decided in the earlier summary judgment orders. The doctrine of res judicata, however, applies only when a plaintiff seeks to relitigate issues decided in a prior suit in which a final judgment was rendered — not when a party merely asks the court to reconsider matters in the same case. See Ruple v. City of Vermillion, 714 F.2d 860, 861 (8th Cir. 1983). Nor is this a situation in which the law of the case doctrine operates, because it too "applies only to issues decided by final judgment." Lovett v. General Motors Corp., 975 F.2d 518, 522 (8th Cir. 1992). A trial court's rulings on summary judgment motions are not final judgments, thereby allowing the trial court to alter or vacate an earlier summary judgment rulings if "convinced it incorrectly decided a legal question." Id.
Here, the plaintiff has not convinced me that either my or Judge Cambridge's earlier decisions incorrectly decided a legal question. The court's prior summary judgment orders stand.
II. Motion in Limine (Filing No. 107) and Motion to Extend Time to Designate (Filing No. 113)
The defendants argue that Dr. Paige Anderson, M.D., should be precluded from testifying about the diagnosis and prognosis of the plaintiff's mental conditions and about her opinion as to the causes of those conditions because the plaintiff failed to identify Dr. Anderson as an expert witness. The defendants also resist on timeliness grounds any attempt by the plaintiff to designate Dr. Anderson as a treating physician.
The plaintiff never indicated that Dr. Anderson would be called as an expert witness under Federal Rule of Civil Procedure 26(a)(2)(A). Rule 26(a)(2), however, excludes "treating physicians" from the expert disclosure requirements. The plaintiff maintains that she consulted Dr. Anderson merely for treatment of her various ailments, not in anticipation of litigation. In that regard, I conclude that Dr. Anderson is properly identified as the plaintiff's treating physician.
As an expert who has not been retained for purposes of litigation, "a treating physician may testify to events and opinions arising directly through her treatment of the patient." Kent v. Katz, 2000 WL 33711516, *2 (D.Vt. 2000). "[A] treating physician . . . may describe what she has seen, describe and explain her diagnosis and the treatment she prescribed, and offer her opinions and expert inferences therefrom — all without running afoul of the constraints of Rules 26 and 37 of the Federal Rules of Civil Procedure." Riddick v. Washington Hospital Center, 183 F.R.D. 327, 330 (D.D.C. 1998).
The defendants were aware that the Order on Pretrial Conference, dated September 20, 2001, stated that Dr. Anderson would testify as a treating physician. The defendants assert that they objected during the pretrial conference with the magistrate. The order, however, does not reveal that the magistrate found it necessary to rule on an objection to Dr. Anderson's testimony. See Filing No. 87 at 6. Thus, the defendants' contention that they have been unfairly prejudiced because the plaintiff had the benefit of time for her "expert" to evaluate the plaintiff is without merit. Dr. Anderson was deposed in October 2001; further, the plaintiff filed a designation of Dr. Anderson as a treating physician in February 2002, Filing No. 116. The defendants have thus more than adequate time to prepare to meet the substance of Dr. Anderson's testimony about her treatment of the plaintiff.
I therefore find that the Dr. Anderson shall be allowed to testify as the plaintiff's treating physician about "the cause of any medical condition presented in [the plaintiff], the diagnosis, the prognosis and the extent of disability, if any, caused by the condition or injury. Opinions as to these matters are encompassed in the ordinary care of a patient. . . ." Shepardon v. West Beach Estates, 172 F.R.D. 415, 416-417 (D.Haw. 1997).
As a consequence, the plaintiff's motion for leave to extend to designate Dr. Anderson under Rule 26(A)(2) is denied as moot.
IT IS THEREFORE ORDERED:
1. The defendants' motion, Filing No. 102, to dismiss the third cause of action of the plaintiff's second amended complaint, Filing No. 100, is granted;
2. The defendants' motion in limine, Filing No. 107, regarding the testimony of Dr. Paige Anderson is denied; and
3. The plaintiff's motion, Filing No. 113, for leave to extend time to identify Dr. Paige Anderson as a treating physician under Rule 26(a)(2)(A) is denied as moot.