Wendy R. Smoker, M.D. v. Iowa Board of Medicine

IN THE COURT OF APPEALS OF IOWA

No. 14-1259
Filed June 24, 2015

WENDY R. SMOKER, M.D.,
Petitioner-Appellant,

vs.

IOWA BOARD OF MEDICINE,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.

Wendy Smoker appeals from the district court’s grant of the Iowa Board of

Medicine’s motion to dismiss. AFFIRMED.

David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Julie J. Bussanmas, Assistant

Attorney General, for appellee.

Considered by Vogel P.J., and Potterfield and Mullins, JJ.
2

VOGEL, P.J.

Wendy R. Smoker, M.D., appeals the district court’s grant of the motion to

dismiss filed by the Iowa Board of Medicine (the Board). Smoker asserts the

court erred in finding her claim—that the Board should reimburse her for

expenses incurred when complying with the drug-screening tests—was barred by

claim preclusion. We conclude the district court correctly held that claim

preclusion bars Smoker’s petition, given this issue could have been fully and

fairly litigated in the previous action. Therefore, we affirm the district court’s grant

of the Board’s motion to dismiss.

Smoker is by all accounts a well-respected physician, practicing diagnostic

radiology at the University of Iowa. She came under review by the Board after

she self-reported alcohol dependence and underwent compliance programs but

relapsed twice in 2009. The Board, on January 24, 2011, cited her for “excessive

use of alcohol.” It issued sanctions against her, including the imposition of a civil

penalty, the Board’s quarterly monitoring fee, a disciplinary hearing fee, and any

costs certified by the executive director. It also required she be alcohol and drug

screened periodically, “all costs of which shall be paid by [Smoker].”

Smoker sought judicial review on February 21, 2011. In the petition,

Smoker listed the Board’s disciplinary sanctions, including the fact she must

comply with alcohol and drug testing. Specifically, her prayer for relief stated:

Dr. Smoker is seeking an order:
Reversing the Board’s decision and a dismissal of the case
based on multiple grounds under Iowa Code § 17A, the Iowa
Constitution and United States Constitution as detailed above;
Requiring the Board to retract any and all Board press
releases or other publications contrary to the evidence in this
matter from its website, its new Facebook page, any other
3

electronic medium, and to contact any third-party internet
companies, agencies or entities that has, or may have, cached a
copy of said press releases making them available online or
otherwise, ensuring said cached copies are removed from
circulation;
Contact any and all newspapers who have run articles on
this matter and request they publish a redaction indicating the
Board’s decision was an error and not based on substantial
evidence;
Requiring the Board to retract all Board reports regarding
this matter from the National Practitioner Database, the Federation
of State Medical Boards, and any other notification made pursuant
to IAC 653-25 and any of its subsections to include IAC 653-25.32;
AND
Requiring the Board to provide proof to the Court and Dr.
Smoker of compliance with its Order in this matter.

She did not seek any monetary damages—that is, payment for the

expenses she was incurring, and would continue to incur, to comply with the

Board’s required alcohol and drug testing. The district court affirmed the agency

decision but made no findings with regard to the monies spent by Smoker to

comply with the Board’s requirements. On appeal to this court, Smoker again

sought a list of remedies, as well as to: “Provide a complete refund of Dr.

Smoker’s $5000.00 fine, with interest along with all other fees paid.” Finding the

Board’s decision on citing her for “excessive use of alcohol” lacked substantial

evidence, this court “reverse[d] the decision of the district court and remand[ed]

to the Board for entry of an order dismissing the disciplinary action.” See Smoker

v. Iowa Bd. of Med., No. 12-1216, 2013 WL 1760185, at *8 (Iowa Ct. App. Apr.

24, 2013).

On July 17, 2013, Smoker petitioned the Board for implementation of

several remedies, including refunding “all monies paid to the Board’s drug
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monitoring program.”1 The Board denied the refund request. On January 8,

2014, Smoker expanded her argument against the Board’s denial of payment

and submitted her third-party, drug-screening receipts as well as transportation

costs. On March 14, the Board again issued an order refusing to pay. Smoker

appealed the decision to the district court, and the Board filed a motion to

dismiss. The court concluded claim preclusion barred Smoker’s request for

reimbursement of the drug-test costs payable to a third party—costs that were

consumed and therefore not readily refundable—thereby granting the Board’s

motion. Smoker appeals.2

We review rulings on a motion to dismiss for correction of errors at law.

Geisler v. City Council of City of Cedar Falls, 769 N.W.2d 162, 165 (Iowa 2009).

The issue here is whether Smoker’s current claim for the “reimbursement”

of drug-testing costs is barred by claim preclusion. With regard to this doctrine,

our supreme court has stated:

Claim preclusion, as opposed to issue preclusion, may foreclose
litigation of matters that have never been litigated. It does not,
however, apply unless the party against whom preclusion is
asserted had a full and fair opportunity to litigate the claim or issue
in the first action. A second claim is likely to be barred by claim
preclusion where the acts complained of, and the recovery

1
The drug monitoring program encompasses the drug testing, review of the results, and
reporting.
2
On February 24, 2015, the Iowa Supreme Court filed an order requesting briefing on
whether, pursuant to Alvarez v. IBP, Inc., 691 N.W.2d 1 (Iowa 2005), the district court’s
opinion should be summarily affirmed due to the fact the underlying agency record was
not transmitted to the district court. Both parties filed briefs. The supreme court then
ordered the issue to be submitted with the current appeal. With regard to this issue we
conclude that, as set forth in more detail below, claim preclusion applies and bars
Smoker from bringing this suit. Moreover, a more detailed record—in the form of the
entirety of the underlying documents from the agency proceeding—would not shed more
light on this issue. Consequently, it is rendered moot, and there is no need for a remand
so the record may be expanded. We also decline to address the issue of whether the
Board or Smoker was required to provide the underlying agency record.
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demanded are the same or where the same evidence will support
both actions. A plaintiff is not entitled to a second day in court by
alleging a new ground of recovery for the same wrong . . . . When
we consider a defense of claim preclusion, we look for the
presence of three factors: the parties in the first and second action
were the same; the claim in the second suit could have been fully
and fairly adjudicated in the prior case; and there was a final
judgment on the merits in the first action.

Arnevik v. Univ. of Minn. Bd. of Regents, 642 N.W.2d 315, 319 (Iowa 2002)

(internal citations omitted).

Based on this standard, claim preclusion bars Smoker’s current suit. The

first and third elements articulated in Amevik are met—the parties are the same

and there has been a final adjudication on the merits. See id. Moreover, as the

district court noted:

[Smoker] knew when she filed her petition for judicial review in the
first action that the board had ordered her to comply with drug
screens. She knew that there would be costs incurred as part of
her compliance with that order. She knew the drug testing costs
were made to FirstLab. Whether or not she asked the court to
order the board to reimburse her for the costs of complying with the
disciplinary order, the court made no such order. She cannot file a
second action to order the board to reimburse her for those costs
now.

We agree. We first note that, because Smoker’s petition for judicial review

was filed shortly after the Board’s decision, she was only beginning to incur the

expenses for the required alcohol and drug testing. Nonetheless, in seeking to

have the Board’s decision reversed, she could have sought payment of all

ongoing expenses; however, she limited her prayer for relief to those requests

set out above. The district court, therefore, only considered those issues raised

in her first petition for judicial review.
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Moreover, in addition to failing to pray for damages in her first judicial-

review petition, on appeal to this court, Smoker made no mention of the ongoing

expenses associated with complying with the Board’s screening requirements.

Thus, while the Board imposed very specific penalty fines and fees, Smoker

failed to contest the third-party drug-screening costs until the July 17, 2013

motion. Consequently, this issue “could have been fully and fairly adjudicated in

the prior case,” and thus, claim preclusion bars Smoker’s claim. See id.

Therefore, we affirm the order of the district court granting the Board’s motion to

dismiss.

AFFIRMED.