United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
17, 2017, Brandon Nelson Conrad brought several
constitutional challenges to the decision of the Kentucky
Board of Medical Licensure's decision to suspend his
license. This Court decided that each of Dr. Conrad's
claims should be dismissed for various reasons. [R. 48.] Now,
Dr. Conrad has filed a Motion to Set Aside Dismissal,
pursuant to Fed. R. Civ. Pro. 59(e). For the following
reasons, Dr. Conrad's Motion [R. 49] is
Motion stems from the same factual basis as the original
Memorandum Opinion & Order [R. 48], and therefore, the
facts from that opinion are incorporated here by reference.
Dr. Conrad's Motion to Set Aside is based entirely on his
“intrusion upon seclusion” claim, asserting this
Court's decision was based on factual error. [R. 49 at
3.] “To better aid the Court in understanding the
sequence of events, ” Dr. Conrad provides a timeline.
Id. at 3-5. The Court is troubled, however, that the
facts alleged in this timeline provide new and different
facts than those alleged in Dr. Conrad's complaint.
R. 49 with R. 16.]
complaint, Dr. Conrad claims he was first suspended by
Ephraim McDowell Regional Medical Center and notified of a
pending Medical Executive Committee Review on March 17, 2017.
[R. 16 at ¶ 20.] He then states, “On Wednesday,
March 29, 2017, Dr. Conrad submitted to an interview with Dr.
William Ward of the Foundation.” Id. at ¶
23. In his Motion, he claims that the Foundation's
records included a KASPER report requested and generated by
Dr. Jones. [R. 49 at 4.] This assertion is not contained
anywhere in the Complaint. The Complaint alleges that Dr.
Beth Housman, Dr. Conrad's treating psychiatrist,
routinely obtained his reports. [R. 16 at ¶¶ 25,
118.] He claims in the Complaint that the Foundation and Dr.
Ward had possession of this report sometime prior to April 6,
2017. Id. at n.6; Id. at 14, n.12;
Id. at ¶ 96; Id. at 116; Id. at
¶ 129. Now, he states that the KASPER report was
requested and generated by Dr. Gregory Jones prior to March
29, 2017. [R. 49 at 4-6.] However, Dr. Conrad also points to
testimony from Dr. Jones that he did not request a KASPER
report. Id. at 6. These assertions cannot
simultaneously be true, and neither assertion was provided in
of which individual at the Foundation requested the report,
the Foundation seems to have obtained a copy on March 29,
2017. [R. 49-1.] Dr. Conrad argued in his Complaint that this
was a violation of KRS § 218A.202. [R. 16 at ¶
Court found that the Foundation, acting as a representative
of the Kentucky Board of Medical Licensure (the Board), was
authorized to view the KASPER report at that time. [R. 48 at
28.] Dr. Conrad argues this is an incorrect statement of law,
as the Board did not begin a formal investigation until, at
the earliest, May 10, 2017. [R. 49 at 2.]
59(e) provides that a judgment can be set aside or amended
for one of four reasons: (1) to correct a clear error of law;
(2) to account for newly discovered evidence; (3) to
accommodate an intervening change in the controlling law; or
(4) to otherwise prevent manifest injustice. See also,
ACLU of Ky. v. McCreary County, Ky., 607 F.3d 439, 450
(6th Cir. 2010); Intera Corp. v. Henderson, 428 F.3d
605, 620 (6th Cir. 2005). A district court has discretion to
grant or deny a Rule 59(e) motion. GenCorp., Inc. v. Am.
Int'l Underwriters, 178 F.3d 804, 832 (6th Cir.
1999). Re-argument is not an appropriate purpose for a motion
to reconsider. Davenport v. Corrections Corp. of
America, 2005 WL 2456241 (E.D. Ky. Oct. 4, 2005).
Conrad claims that this Court's Order was based on
factual error, and thus, “he can meet the
Cosgrove burden.” [R. 49 at 3.] As an initial
matter, Cosgrove is a decision from the Seventh
Circuit Court of Appeals, not binding on this Court.
Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir.
1998); Berryhill v. United States, 199 F.2d 217, 219
(6th Cir. 1952) (holding that the ruling of the Court of
Appeals in one circuit is not binding on a district court
sitting in a different circuit). Even so, the Court
reconsiders its decision to the extent that the Foundation
obtained the KASPER report on March 29, 2017, prior to the
Board's formal investigation.
entirety of Dr. Conrad's motion argues, again, that the
Foundation obtained his KASPER report in violation of KRS
§ 218A.202. Ephraim McDowell began an investigation into
Dr. Conrad's behavior on March 17, 2017. [R. 16 at ¶
20.] Dr. Conrad voluntarily met with Dr. Ward of the
Foundation for an evaluation. Id. at ¶ 23. The
Court found previously, and Dr. Conrad does not dispute, that
the Foundation is a designated representative of the Board,
as contemplated under KRS § 218A.202(7)(a). [R. 48; R.
49.] Instead, he argues that the Foundation would only be
permitted to request the KASPER report once the Board had
begun a formal investigation.
Conrad has not provided, and the Court cannot find, law to
support this argument. The text of KRS § 218A.202(7)(a)
authorizes disclosure of KASPER data to “A designated
representative of [the Board] who is involved in a bona fide
specific investigation involving a designated person.”
When Ephraim McDowell referred Dr. Conrad to the Foundation
on or before March 29, 2017, and Dr. Conrad consented to an
evaluation with Dr. Ward, the Foundation began a “bona
fide specific investigation” involving Dr. Conrad and
his treatment of two specific patients. [R. 16 at
¶¶ 20-23.] The statute does not require, as Dr.
Conrad suggests, that such “bona fide specific