Unpublished Disposition, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^* 

Jerrie Simmons filed suit against the United States in its capacity as employer of John Bopp, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1982). The complaint alleges that Bopp, Simmons' mental health counselor, negligently caused psychological and emotional injuries to Simmons by becoming romantically and emotionally involved with Simmons and that Bopp's supervisors should have been aware of Bopp's unethical, unprofessional, and incompetent conduct. The district court granted summary judgment in favor of the United States because it concluded that a prior proceeding instituted by Simmons against the United States, on a similar claim, precluded the litigation of this claim (i.e., that claim preclusion or res judicata precluded further litigation of this claim). The previous claim was based upon the misconduct of Ted Kammers, a mental health counselor employed by a branch of the Public Health Service of the United States Department of Health and Human Services. We conclude that the grant of summary judgment was error and reverse and remand for further proceedings.

We review de novo the grant of summary judgment. Springs v. First Nat'l Bank of Cut Bank, 835 F.2d 1293, 1295 (9th Cir. 1988). Viewing the evidence and its inferences in the light most favorable to the nonmoving party, summary judgment is proper only if the movant is clearly entitled to prevail as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). We apply the law of the forum state in FTCA actions. Filice v. United States, 271 F.2d 782, 783 (9th Cir. 1959). Washington law on claim preclusion requires an identity of the second action with the first in order for claim preclusion to bar the second action. Rains v. State, 100 Wash. 2d 660, 664, 674 P.2d 165 ----, (1983).

It is clear to this court that appellant's claim against Bopp is not identical to the claim asserted against Kammers in the earlier action. See, e.g., Restatement (Second) of Judgments Sec. 49 (1982). The evidence below consists of numerous findings of fact and conclusions of law as determined by the district court in the case brought by Simmons based on the actions of Kammers. One such finding states that Bopp was a contributing cause for an attempted suicide by Simmons.

However, we are unable to affirm the district court's grant of summary judgment on a theory of issue preclusion (i.e. that Simmons has been fully compensated for injuries caused by Kammers and Bopp) because the record is unclear if the damages awarded to Simmons fully compensated her for the injuries of both Kammers and Bopp. See Henderson v. Bardahl Int'l Corp., 72 Wash. 2d 109, 117-18, 431 P.2d 961, 966 (1967) (where the issue is unclear preclusion will not apply). Further, Simmons submitted an affidavit from Dr. Laura S. Brown that concludes that the injuries caused by Bopp are not restricted to Simmons' suicide attempt in November of 1982. We conclude that claim preclusion does not apply to Simmons' second action and that a genuine issue of material fact exists as to whether Simmons was compensated for all the injuries caused by Bopp's conduct.

If on remand the appellant succeeds on the merits, we note that the issue of damages through the suicide attempt has been conclusively resolved in the prior case, i.e., issue preclusion bars relitigation of those pre-suicide attempt damages. Thus, damages, if any, may be found only for post-suicide attempt damages caused by Bopp.

Accordingly, we reverse the district court's grant of summary judgment and remand for further proceedings in the district court.

REVERSED and REMANDED.