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April 25, 1983


The opinion of the court was delivered by: MUIR

 I. Introduction.

 Plaintiff Kenneth P. Stoller filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants the College of Medicine of the Milton S. Hershey Medical Center (the College of Medicine), a division of the Pennsylvania State University, Cheston M. Berlin, M.D., Nicholas M. Nelson, M.D., Harry Prystowsky, M.D., and John A. Waldhausen, M.D. on March 18, 1981. Jurisdiction of this Court is based on 28 U.S.C. §§ 1331(a), 1332 and 1343(a). In this lawsuit, Stoller challenges the decision of the Defendants to dismiss Stoller from the College of Medicine. Stoller alleges that the decision to dismiss constituted an arbitrary and capricious act in violation of Stoller's substantive due process rights. Stoller further contends that the manner in which he was dismissed constitutes a violation of his procedural due process rights.

 This action was originally scheduled on the Court's March 1982 trial list. On February 23, 1982, Plaintiff Stoller filed a motion for a continuance, asserting that settlement negotiations were in progress and that the parties had reason to believe that a settlement would be achieved. The Court therefore continued the matter to the July 1982 trial list. The final pre-trial conference was held in this case on July 6, 1982. At that time, the Court determined that the case would be heard non-jury and that the case would be bifurcated as between liability and damages. As a result of the unanticipated length of several trials, one of which took 68 trial days on one issue of liability, the Court was compelled on several occasions to continue this case. The Court heard the matter non-jury on Friday, March 25, 1983. Following are the Court's findings of fact, discussion and conclusions of law in the liability phase of this trial.

 II. Findings of Fact.

 1. Plaintiff is Kenneth Stoller. (Undisputed, hereinafter "U")

 2. Defendant Harry Prystowsky is dean of the College of Medicine of the Pennsylvania State University and professor of obstetrics and gynecology. (U)

 3. Defendant Nicholas M. Nelson is professor of pediatrics and chairman of the Department of Pediatrics of the College of Medicine. (U)

 4. Defendant Cheston M. Berlin, Jr. is professor of pediatrics and pharmacology and assistant dean for student affairs of the College of Medicine. (U)

 5. Defendant John A. Waldhausen is professor of surgery and chairman of the Department of Surgery of the College of Medicine. (U)

 7. Kenneth Stoller enrolled in the College of Medicine in the fall term of 1976, in the Doctor of Medicine degree program. (U)

 8. The bulletin of the College of Medicine for the 1976-77 academic year provides as follows:

1. Satisfactory completion of the required basic science curriculum.
2. Evidence that the student has mastered the approach to the patient, using clinical skills and relying on a solid background in the basic sciences, as documented by successful completion of the clerkship program.
3. Completion of a problem-solving project prior to graduation. The project, done in association with either a clinical or pre-clinical faculty member, is an exercise in the use of the scientific method, including statement of the problem, design of a protocol, and collection and evaluation of data. This exercise is intended to help each student to develop a capacity for clinical thinking and to understand the nature of the research process and the limitations and variability of data.
At any time prior to the second term of the third year, the student will select a topic for such a project and submit an outline of the proposed work to the problem-solving subcommittee of the curriculum committee. Prior to the third term of the senior year, the project will be completed in writing and approved by the committee. Occasionally, prior work as an undergraduate or graduate student may qualify the student for exemption from this project. The student may petition for such an exemption by submitting prior work to the problem-solving subcommittee.
4. Satisfactory completion of electives approximately equivalent to three academic terms. These may be selected from any of the disciplines represented on the faculty but must include 5 credits in humanities. An elective in primary or ambulant care is strongly recommended.
5. National Board Examinations, Parts I and II, taken and passed. (U)

 9. The College of Medicine curriculum requires four years of study for completion. (U)

 10. The first two years of the curriculum consist principally of academic courses in a variety of areas which form the foundation of clinical medicine. (U)

 11. The third and fourth years of the curriculum consist of clerkships served in specific areas of clinical medicine: medicine (12 weeks); surgery (12 weeks); obstetrics and gynecology (8 weeks); psychiatry (4 weeks); neurology (4 weeks); pediatrics (8 weeks); and elective clerkships selected by the student. (U)

 12. A grade of honors, pass or fail is awarded for each academic course and clerkship. A grade is to be assigned to a student solely on the basis of the instructor's judgment as to a student's scholastic attainment. (U)

 13. The bulletin of the College of Medicine for the 1976-77 academic year provides as follows:

The Promotion Committee, acting for the entire faculty, regularly evaluates the progress of each student. If a student is experiencing academic difficulty, this committee may recommend to the Dean of the College of Medicine, through the Office of the Assistant Dean for Student Affairs, one of the following courses of action:
1. Restructuring of the student's curriculum, with lightening of the academic load and the acquisition of tutorial help.
2. Repetition of the course, or, in the case of multiple failures, the entire year.
4. Dismissal, when in the opinion of the faculty the student cannot master the material necessary for promotion. A recommendation for dismissal is made directly to the Dean of the Promotion Committee. The Dean, as chief executive officer for the College of Medicine, has the ultimate responsibility for implementing this decision. (U)

 14. The promotions committee for the first two years of the Medical School curriculum (Promotions Committee I) is comprised of the department heads of each academic department. The promotions committee for the third and fourth year of the curriculum (Promotions Committee II) is comprised of the chairmen of each clinical department. (U)

 15. In the fall term of 1976, Mr. Stoller failed microbiology 556 (microbial genetics). (U)

 16. On December 1, 1976, Promotions Committee I met and reviewed Mr. Stoller's failure in microbial genetics, and placed Mr. Stoller on academic probation. (U)

 17. On or about December 2, 1976, Mr. Stoller was notified by Dr. Berlin that he had been placed on academic probation. (U)

 18. In the winter term of 1977, Mr. Stoller failed biochemistry 505 (biological chemistry II). (U)

 19. On March 15, 1977, Promotions Committee II reviewed Mr. Stoller's failure of biological chemistry II and, noting that Mr. Stoller was then on academic probation, agreed that he would be interviewed by the Committee. (U)

 20. On March 24, 1977, Promotions Committee I interviewed Mr. Stoller with respect to his failure in biological chemistry II. Dr. Howard Morgan, chairman of the Committee, indicated to Mr. Stoller that the Committee would review his spring term progress and evaluate his academic standing, and that a recommendation for dismissal could result in the event of insufficient improvement. (U)

 21. On June 8, 1977, following completion of his spring term 1977, Promotions Committee I reviewed Mr. Stoller's performance for the academic year and decided that Mr. Stoller could enroll for a full second year schedule but would be required to repeat the two courses he had failed in his first year. Mr. Stoller was to remain on academic probation. (U)

 22. On or about June 9, 1977, Mr. Stoller was advised of the decision of Promotions Committee I. (U)

 23. During the summer of 1977, Mr. Stoller participated in a praeceptorship at a Family Medicine Clinic in Arizona, through the Family Medicine Department at the Medical Center. (U)

 24. Promotions Committee I met and considered Mr. Stoller's performance on one occasion during the second year curriculum, following the conclusion of the winter 1978 academic term. (U)

 25. On March 7, 1978, Dr. Berlin, in his capacity as Associate Dean for Student Affairs, received a memorandum from Dr. David J. Hufford, Assistant Professor of Behavioral Science. (U)

 26. In the March 7, 1978 memo, Dr. Hufford enclosed a copy of Mr. Stoller's final examination in a course entitled Behavioral Science 503, and then stated as follows:

Although this student was able to pass the exam, we are concerned about his responses to several questions. Such comments are not typically made by our students, and would seem to reflect very poorly on Mr. Stoller's discretion and judgment. We feel that this matter should be brought to the attention of the promotions committee and that you should be aware of this, since the issue seems to extend beyond the Department of Behavioral Science. (U)

 27. Among the questions on the Behavioral Science 503 examinations, and the responses by Mr. Stoller, were the following:

Q: What are the possible causes and/or consequences of the following common features of pediatric death and dying:
* * *
Q: Explain what Wolfensperger means by "normalization" -- (ANSWER) I tried to figure out when I read the handout -- but I couldn't grasp the concept. It's just another pseudo-scientific sociological term which hides the real meaning of that which it was meant to indicate in a narcissist medical, anthropomorphic, cognitive and all around dumb question. -- Prof. Irwin Cory (1968).
Q: Explain what Wolfensperger means by "good" versus a "bad" ideology? -- (ANSWER) Look why are you making such a big deal about Wolfensperger? He wasn't even discussed in my ...

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