USCA1 Opinion
April 24, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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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]
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Before
Torruella, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Edward P. Manning, Jr. on brief for appellant.
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David W. Carroll and Roberts, Carroll, Feldstein & Peirce on
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brief for appellee.
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Per Curiam. Appellant Edward K. Wojnar sued
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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
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United States v. Akinola, 985 F.2d 1105, 1108-09 (1st Cir.
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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.
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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.
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Workers v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st
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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
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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.
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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
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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,
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124 (1st Cir. 1991) (standard of review for decision to
exclude evidence is abuse of discretion).
We therefore affirm the judgment of the district
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court. See Local Rule 27.1.
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