Bowary v. United States Medical Licensing Examination et al

OCR transcription for search; preserved printed pages are authoritative

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

PAUL BOWARY, M.D.,
Plaintiff,

V.

UNITED STATES MEDICAL
LICENSING EXAMINATION:
NATIONAL BOARD OF MEDICAL
EXAMINERS; and THE
FEDERATION OF STATE MEDICAL
BOARDS OF THE UNITED STATES,
INC.,

C.A. No. 21-278-JJM-LDA

Defendants.

ORDER
Plaintiff Paul Bowary, M.D. has filed two motions before the Court: Motion to
Dismiss Defendants’ Counterclaims (ECF No. 62), and Motion to Strike Paragraphs
62 and 64 of Defendants’ Counterclaims. ECF No. 64. The counterclaims allege
breach of contract and a violation of state computer crime laws.
A. MOTION TO DISMISS COUNTERCLAIMS — ECF No. 62
1) Breach of Contract Counterclaim
Defendants allege that Dr. Bowary breached his contract with them by engaging
in “irregular behavior’ prohibited by the United States Medical Licensing
Examination (“USMLE”) Bulletin of Information, which included “changing any
information on score reports, transcripts, or any other USMLE-related documents”
and “failing to cooperate fully in an investigation of a violation of the USMLE rules.”

ECF No. 60 at 4, { 15. Dr. Bowary moves to dismiss this counterclaim, arguing that

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(a) the Court’s Order granting a preliminary injunction found that Defendants

breached the contract and vacated Defendants’ Finding of “Irregular Behavior” and (b)

there are no damages.

a) The Court's Order: This Court did not find as a matter of law that

Defendants breached the contract such that it prohibits Defendants from proving
their breach of contract counterclaim against Dr. Bowary. The Court merely granted
a preliminary injunction requiring that Defendants redo the internal hearing to
ensure that they afforded Dr. Bowary the process it intended. ECF No. 41. That
ruling does not prohibit Defendants from pressing a claim that Dr. Bowary violated
the contract through “irregular behavior.”

b) Lack of Damages: Defendants have adequately and plausibly

plead that they suffered damages resulting from Dr. Bowary’s alleged breach of
contract.

Therefore, the Court DENIES Dr. Bowary’s motion to dismiss Defendants’
breach of contract counterclaim.

2) State Computer Crime Claims

Defendants allege that Dr. Bowary violated Rhode Island’s computer crime
laws, R.I. Gen. Laws §§ 11-52°3 and 11-52-4.1(3) and (5). They identify three acts
that they claim Dr. Bowary took that violate these sections: (1) “...altering computer
data (i.e., Dr. Bowary’s Step 8 score and score report and one or more emails he
received from [the National Board of Medical Examiners (“NBME”)]” for a fraudulent

purpose and without authorization to do so; (2) “using a computer to alter computer

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data” (i.e., USMLE Step 3 score and score report); and (3) “using a computer to
damage Defendants’ property” (i.e., USMLE Step 8 score report).

R.I. Gen. Laws § 11°52-3 prohibits “accessing a computer for the purpose of
obtaining property by means of false or fraudulent pretenses.” State v. Jilling, 275
A.3d 1160, 1169 (R.I. 2022). The legislature chose to prohibit “accessing” a computer
to obtain property through fraud, implying that the prohibition applies to accessing
someone else’s computer, not one’s own: if the statute intended to prohibit using one’s
own computer, it would have so stated. State v. Diamante, 83 A.3d 546, 548 (RI.
2014) (“It is a fundamental principle that, when the language of a statute is clear and
unambiguous, this Court must interpret the statute literally and must give the words
of the statute their plain and ordinary meanings.”). The counterclaim does not allege
that Dr. Bowary “accessed” another’s computer to commit a fraud. Because
Defendants have only alleged that Dr. Bowary used his own computer to commit a
fraud, the state statute does not apply.

Similarly, R.I. Gen. Laws 11-52-4.1 makes it “unlawful for any person to use a
computer or computer network without authority.” Defendants have not alleged that
Dr. Bowary used any computer without authority. Because Defendants do not state
claims under Rhode Island’s computer crime laws, R.I. Gen. Laws §§ 11-52-38 and 11-
52-4.1(3) and (5), the Court GRANTS Dr. Bowary’s motion to dismiss Defendants’

counterclaim under those statutory sections.

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B. MOTION TO STRIKE — ECF No. 64

Dr. Bowary moves to strike two paragraphs from Defendants’ counterclaim—
Paragraphs 62 and 64 (ECF No. 60 at 29-30). ECF No. 64. He claims that the
paragraphs are immaterial and irrelevant to the counterclaims, that Defendants
asserted them to annoy or embarrass Dr. Bowary, and these paragraphs do not allege
fraud with particularity.

The Court DENIES Dr. Bowary’s motion to strike. These two paragraphs are
part of the allegations Defendants use to support their breach of contract
counterclaim. There is nothing before the Court that supports Dr. Bowary’s assertion
that Defendants inserted them to harass or embarrass. In fact, Paragraph 62 merely
quotes Dr. Bowary’s testimony before the Board in the rehearing that this Court
ordered. Defendants will be put to their proof, but at the initial stages of litigating
the counterclaim, the allegations stand.

C. CONCLUSION
The Court GRANTS IN PARTS AND DENIES IN PART Dr. Bowary’s Motion

to Dismiss Defendants’ Counterclaims. ECF No. 62. The counterclaim for breach of
contract stays} the counterclaim for violating the state computer crimes law is

dismissed. The Court DENIES Dr. Bowary’s Motion to Strike. ECF No. 64.

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Chief Judge
United States District Court

January 9, 2024