Wojnar v. Bauermeister

Opinion

USCA1 Opinion

April 24, 1995
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 94-2256 

                                  EDWARD K. WOJNAR,

                                Plaintiff, Appellant,

                                          v.

                         DR. MARTIN J. BAUERMEISTER, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Edward P. Manning, Jr. on brief for appellant.
            ______________________
            David  W.  Carroll and  Roberts,  Carroll,  Feldstein &  Peirce on
            __________________      _______________________________________
        brief for appellee.

____________________

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Per  Curiam.    Appellant  Edward  K.  Wojnar  sued
                      ___________

            appellee   Dr.  Martin   Bauermeister  for   injuries  Wojnar

            allegedly  sustained during the time he was held at the Rhode

            Island Adult  Correctional Institutions.  After  a trial, the

            jury  found for Dr. Bauermeister.  Wojnar appeals a ruling by

            the trial court (Torres, J.) which granted Dr. Bauermeister's

            motion  in limine to exclude evidence relating to a claim for

            medical negligence or medical malpractice.   Dr. Bauermeister

            had  asserted,  and  the  district court  agreed,  that  such

            evidence  was inadmissable because Wojnar's amended complaint

            did  not state  a claim  for negligence.   Rather,  the court

            found, the complaint charged Dr. Bauermeister with deliberate

            indifference to  Wojnar's medical  needs in violation  of the

            Eighth Amendment  to the United States  Constitution.  Wojnar

            makes three arguments on appeal.

                      1.    Wojnar  argues  that  Judge   Torres'  ruling

            directly contradicted an earlier order by a magistrate judge.

            This order  denied Wojnar's motion  to file a  second amended

            complaint.1  According to  Wojnar, the magistrate judge ruled

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            1.  The  second amended  complaint set  forth allegations  of
            negligence.   However, the denial  of the motion  to amend is
            not  before us, Wojnar having failed to object within the 10-
            day time period  set forth in 28 U.S.C.    636(b)(1)(A).  See
                                                                      ___
            United States v.  Akinola, 985 F.2d  1105, 1108-09 (1st  Cir.
            _____________     _______
            1993)  (where a party does not object to a magistrate judge's
            order, the  court of  appeals has no  jurisdiction to  review
            it).

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that a  second amended complaint was  unnecessary because the

            amended complaint already stated a claim for negligence.

                      Judge Torres, however, determined that although the

            magistrate judge's order  was ambiguous, the  more reasonable

            interpretation was  that the magistrate judge  had denied the

            motion  to amend  because  Dr. Bauermeister  would have  been

            prejudiced.    Such  a   finding  made  sense,  Judge  Torres

            concluded, only if the magistrate  judge had read the  second

            amended complaint as setting forth a new theory for relief.
                                                 ___

                      We agree.   Wojnar ignores  the magistrate  judge's

            emphasis on the fact that Wojnar waited to file the motion to

            amend until  the close  of discovery.   The  magistrate judge

            relied on this  "undue delay" to  find that Dr.  Bauermeister

            would have  been prejudiced  if Wojnar  were allowed  to file

            amended  pleadings   with  "more  substantial   or  different

            claims."   Given  the  equivocal language  in the  magistrate

            judge's order, we cannot say that Judge Torres' reading of it

            was  an abuse  of discretion.   See  Independent Oil  & Chem.
                                            ___  ________________________

            Workers v. Procter &  Gamble Mfg. Co., 864 F.2d 927, 929 (1st
            _______    __________________________

            Cir.  1988) (abuse  of  discretion occurs  when the  district

            court  "makes a  serious mistake"  in evaluating  the factors

            relative to a decision).

                      Wojnar further argues that Judge Torres ignored the

            magistrate judge's  recommendation, made in  the same  order,

            that Dr.  Bauermeister's Rule 12(b)(6) motion  to dismiss the

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amended  complaint   be  denied.    Wojnar   avers  that  the

            magistrate  judge  based this  suggestion  on  the view  that

            Wojnar's   supplemental   answers   to   Dr.   Bauermeister's

            interrogatories  put the  latter on  notice that  the amended

            complaint stated a claim for malpractice.

                      Wojnar misconstrues  this ruling.  It  appears that

            the magistrate  judge was addressing a  different motion, one

            based  on  the  allegation  that Wojnar  had  failed  to file

            sufficiently   detailed   answers   to   Dr.   Bauermeister's

            interrogatories.   Dr. Bauermeister filed  this motion  under

            Fed.  R.  Civ.  P.  37(b)(2)(C),  not  Rule  12(b)(6).    The

            magistrate  judge  determined   that  Wojnar's   supplemental

            answers  (filed   after  the  Rule  37   motion)  "provide[d]

            substantially more detail" than the original answers and that

            a dismissal under Rule 37 was  not warranted.  He did not, as

            Wojnar avers, make any  finding concerning the sufficiency of
                               ___

            these answers as they related to a claim for negligence.

                      Wojnar makes  a similar  argument in regard  to the

            order's denial of Dr.  Bauermeister's motion for a protective

            order.   Dr. Bauermeister had requested that the date for his

            responses  to  Wojnar's  interrogatories be  postponed  until

            after Wojnar  filed a complaint adequately  setting forth the

            nature of Wojnar's claims against  him.  The magistrate judge

            stated  that in recommending the denial  of the Rule 12(b)(6)

            motion  to dismiss, "I have in essence stated my opinion that

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the  amended complaint  adequately gives  fair notice  of the

            claim  against defendant."   Again, there is  nothing in this

            language to suggest that  the magistrate judge was addressing

            the question  whether the amended complaint  gave fair notice

            to Dr. Bauermeister of the medical malpractice claim.
                                       ___________________

                      In  any event, we agree with  Judge Torres that the

            amended  complaint   did  not   include  a  tort   claim  for

            malpractice.   As he pointed out, the first paragraph of this

            complaint states  that damages were being  sought pursuant to

            42  U.S.C.    1983  for, among  other  acts, the  "denial  of

            adequate  medical care."   That Wojnar intended  to base this

            claim on the United  States Constitution is further evidenced

            by  his  reference  to  the  Eighth  Amendment  in  the  same

            sentence.  Even  more probative, we think,  is the concluding

            sentence of this  paragraph.   In it, Wojnar  states that  he

            "also  seeks . . . damages for  the common law torts of false

            arrest, unlawful imprisonment [and] assault and battery . . .

            under  pendent jurisdiction."  Significantly absent from this

            list is a claim for the tort of malpractice.

                      2.    Wojnar next  points  to  a  statement by  the

            magistrate judge at voir dire.  In describing the case to the

            potential jurors, the  magistrate judge  (who impanelled  the

            jury)  stated  that  it  was a  "medical  malpractice  case."

            Wojnar argues  that this statement  indicates the  magistrate

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judge's unswerving belief that the amended complaint stated a

            claim for negligence.

                      However, counsel for Dr. Bauermeister objected when

            the  magistrate judge  made  this observation.   After  being

            informed  by  counsel of  his intent  to  file the  motion in

            limine, the magistrate judge clarified that the case involved

            "medical malpractice and/or complete indifference."  At most,

            this  shows  that  the  magistrate judge  believed  that  the

            amended complaint was ambiguous.

                      3.   Finally, Wojnar asserts  that Dr. Bauermeister

            was  on notice  as early  as March  4, 1994  that Wojnar  was

            claiming medical malpractice.  As evidence for this argument,

            Wojnar  points   to  an   interrogatory  propounded   by  Dr.

            Bauermeister on  this date.   In  it, Dr.  Bauermeister asked

            that  Wojnar specify  the "negligent"  acts committed  by Dr.

            Bauermeister  or  his agents.    Wojnar also  avers  that Dr.

            Bauermeister admitted, in the motion  in limine, that he  had

            become  apprised of the negligence claim on July 25 (the date

            Wojnar filed his supplemental  answers to Dr.  Bauermeister's

            interrogatories  and 10 days after Wojnar filed the motion to
                                         _____

            amend).

                      We reject these arguments.  As Judge Torres stated,

            the fact  that  one party  propounds interrogatories  "fairly

            within  the  ambit  of  the  complaint"  cannot  add  to  the

            complaint claims not otherwise asserted in it.  We agree with

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Judge Torres' observation that to so  hold would constitute a

            trap for the thorough.   Further, a party can hardly  be said

            to  acquiesce  in the  assertion of  new  claims by  filing a

            motion in opposition to them.  This view would render useless

            motions such  as the  one filed here,  as well as  motions to

            dismiss,  and would provide no recourse  to parties harmed by

            the tardy assertion of new claims or defenses.

                      For the reasons stated  above, Judge Torres did not

            abuse his discretion in granting Dr. Bauermeister's motion in

            limine.  See Knowlton v. Deseret Medical, Inc., 930 F.2d 116,
                     ___ ________    _____________________

            124 (1st  Cir.  1991) (standard  of  review for  decision  to

            exclude evidence is abuse of discretion).

                      We therefore  affirm the  judgment of  the district
                                    ______

            court.  See Local Rule 27.1.
                    ___

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