OPINION
This matter is before the court on defendant’s motion to dismiss for failure to state a claim upon which relief can be granted. In his Complaint plaintiff alleges the Army Review Board’s denial of his application for correction of his military record was arbitrary and capricious because the Board failed to consider or respond to his claims of error in his court-martial. Defendant’s motion to dismiss asserts plaintiffs Complaint is barred by res judicata because the errors of which he now complains could have been raised in his previous litigation in the United States District Court for the Southern District of Georgia. The district court’s dismissal of that litigation, as an adjudication on the merits, is asserted to bar plaintiffs subsequent attempt to relitigate his grievances concerning his court-martial.
By Order filed August 22, 2001, this court sua sponte raised questions of its subject matter jurisdiction and the statute of limitations and required both parties to “... address precedent which restricts collateral review of court-martial matters to the extraordinarily narrow scope of a pure issue of constitutional law untangled with any weighing of facts and also address any issue concerning the application of 28 U.S.C. § 2501
For the reasons stated below, plaintiffs complaint must be dismissed pursuant to RCFC 12(h)(3) because this court lacks subject matter jurisdiction over plaintiffs collateral attacks on his court-martial. Alternatively, plaintiffs claims are barred by res judicata and by the expiration of the statute of limitations.
On October 22, 1993, plaintiff, a former enlisted member of the United States Army (“Army”), was convicted of the rape of his stepdaughter, indecent acts with a minor and indecent language to a minor.
When the [plaintiff] testified on his own behalf, government counsel properly questioned him concerning his exposure to chlamydia, and attempted to impeach him with relevant documentary evidence. Government counsel provided a document marked for identification to the defense counsel and implied before the members that it was a part of the appellant’s medical record. During the impeachment process, the trial counsel made it clear before the members that the purported medical record contained a request by the appellant for a chlamydia test. Upon examining the purported medical record, the [plaintiff] flatly denied that he had ever requested a test for chlamydia and stated that the document was erroneous. The document was never received into evidence.
Later, during his closing argument, government counsel briefly referred to the unadmitted medical record as if it had been admitted into evidence. Inasmuch as the medical record was never admitted and the [plaintiff] had denied that the purported medical record was authentic or accurate, we agree with [plaintiffs] assertion that it was objectionable for government counsel to mention it in argument. However, the defense counsel did not object. Later, during his own oral argument, defense counsel rebutted the government’s argument by pointing out the complete absence of any medical evidence that the [plaintiff] was ever infected with chlamydia.
ACCA Memorandum Opinion and Action on Petition for New Trial dated November 3, 1995. App. 4-5, citations omitted.
Plaintiff then petitioned the United States Court of Appeals for the Armed Forces (“CAAF”) for a grant of review, which the CAAF denied on April 4, 1997. App. 87.
In January 1997, plaintiff filed suit against Dr. Getts in the United States District Court for the Southern District of Georgia, Augusta Division. The case was dismissed without prejudice on October 2,1998 because plaintiff was unable to obtain service on Dr. Getts. App. 10-12.
Plaintiff filed another complaint against Dr. Getts on June 23, 1999 in the United States District Court of the Southern District of Georgia, Augusta Division, and an amended complaint on January 20, 2000 alleging Dr. Getts was negligent in his examination of the victim and in his testimony at plaintiffs court-martial. Plaintiff also asserted claims for negligent infliction of emotional distress.
On March 3, 2000, plaintiff applied for correction of his military record with the Army Board for the Correction of Military Records (“ABCMR” or “Board”). In his application plaintiff argued: (1) the military judge erred in allowing Dr. Getts’ testimony that a person could be “self cured” of chlamydia without medication — an opinion that violated Daubert standards and rules of evidence;
Plaintiff filed his Complaint with this court on April 18, 2001. Plaintiff alleges that the ABCMR was arbitrary and capricious because the Board failed to consider or respond to plaintiffs arguments that the military judge erred: (1) in admitting Dr. Getts’ testimony concerning chlamydia, a sexually-transmitted disease, specifically whether or not an
Subject matter jurisdiction
RCFC 12(h)(3) provides: “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” (Emphasis added). See Booth v. United States,
The court recognizes that plaintiff is appearing pro se, and will hold the form of plaintiffs submissions to a less stringent standard than if drafted by an attorney. See Reed v. United States,
While nominally alleging the ABCMR’s decision not to correct his military records was arbitrary and capricious, plaintiffs complaint is really about his court-martial. The underlying argument made to the Board (and reiterated in his Complaint before this court) is of the court-martial hearing itself. Both the gravamen and substance of his arguments in his complaint and his oppositions to the motions to dismiss, are about his court-martial, specifically claimed evidentiary errors by the military judge. In his complaint, plaintiff requests a finding that “[pjlaintiffs Court-Martial conviction was product [sic] of fundamentally unfair court-martial procedure” (Complaint, p. 35). Plaintiff also requests his court-martial conviction and sentence be voided, the record of such be expunged, his discharge be changed from dishonorable to honorable, and he be released from imprisonment.
Limited review of military court-martial
The jurisdictional scope of this court’s collateral review of court-martials is very narrow. Schlesinger v. Councilman,
The court has carefully reviewed plaintiffs allegations and concludes that none of the grounds for attack on the Army Board’s denial of his request for correction of his military record, or his complaints about the conduct of his court-martial, rise to the level of such a “deprivation of fundamental fairness as to impair due process.” Bowling, supra,
Plaintiff presents four arguments in his complaint before this court. First he argues the ABCMR’s decision to deny his application was “arbitrary and capricious” because the Board did not consider or respond to arguments that chlamydia trachomatis will not resolve without treatment. While briefly mentioning the arbitrary and capricious standard and lack of substantial evidence, the gravamen of plaintiffs argument is that the military judge who presided over his court-martial abused his discretion in admitting Dr. Getts’ opinion that chlamydia can resolve itself without medical treatment. Plaintiff also complains that Dr. Getts’ opinion was “outcome determinative” according to plaintiff, because it allowed argument/inference that plaintiff could have infected the victim and then be cured which could explain why plaintiff tested negative for the disease. Thirdly, plaintiff repeats his objection to Dr. Getts’ opinion that the victim had physical signs of sexual abuse that was not based on substantiating measurements. Finally, plaintiff again complains about the lack of a curative instruction to disregard the testimony of Sergeant Graydon who testified concerning charges of disobeying an order which were subsequently dismissed.
These issues were fully and fairly considered and rejected by the military tribunals and do not rise to the constitutional magnitude required for review under Augenblick and Bowling.
According to plaintiff, Dr. Getts’ opinion was not based on scientific evidence, other experts opine that self-cure is not possible, and the opinion was admitted without compliance with Military Rule of Evidence 702, 703 and 403
[i]f a task force of expert researchers agree that Chlamydia Trachomatis does not self-cure or just go away on its own, ... how can a court of law accept Dr. Getts tainted testimony that (1) Chlamydia has a self-resolution rate, (2) chlamydia can be cured by a person’s own immune systems, and (3) that a person can have a Chlamydia infection and it will just go away without the person even knowing that they had the infection?
Complaint, p. 15.
Plaintiffs counsel extensively cross-examined Dr. Getts, and the record before this court does not suggest, nor does plaintiff contend, that he was somehow precluded from introducing contrary medical opinion. Plaintiffs counsel stipulated Dr. Getts was an expert. Complaint, Enc. 45, p. 357. Disagreement with medical expert opinion is not a due process violation. Furthermore, plaintiffs contention about Dr. Getts’ opinion on self-cure was made to, and considered by, the ABCMR. Specifically, plaintiffs first claim to the Board was:
I WAS DENIED DUE PROCESS OF LAW TO A FAIR AND IMPARTIAL TRIAL WHEN THE MILITARY JUDGE ERRED BY ARBITRARILY ADMITTING HEARSAY EXPERT OPINION TESTIMONY THAT DID NOT RISE ABOVE SUBJECTIVE BELIEF OR UNSUPPORTED SPECULATION AS SUBSTANTIVE EVIDENCE WITHOUT MAKING ANY FINDINGS PURSUANT TO MILITARY (FEDERAL) RULES OF EVIDENCE, RULES 403, 702, 703, OR THE DAUBERT TEST AFTER PERSONALLY ELICITING THE HEARSAY TESTIMONY FROM DR. ALAN GRANT GETTS, A GOVERNMENT EXPERT WITNESS REGARDING A PERSON SELF-CURING THEMSELF OF CHLAMYDIA TRACHOMATIS WITHOUT MEDICATION.
App. 51, all capital lettering in original. Plaintiff committed five pages of his thirty-one page submittal (not including enclosures) to the Board on this claimed error. Under 10 U.S.C. § 1552, the Board concluded that plaintiff failed to show, and it did not other
Plaintiff also complains that the Army Correction Board was arbitrary and capricious for not considering his argument that Dr. Getts testified that the victim’s positive chlamydia test substantiated his expert opinion that the victim had been abused by plaintiff, and testified that the victim appeared truthful to him. Plaintiff alleges this was improper testimony on the ultimate issue for the military tribunal, and was improper testimony as to the victim’s veracity. Dr. Getts testified that the victim had probably been sexually abused in part because she was very truthful appearing, had been blunt in describing prior contacts, and her physical examination was consistent with the history she had related. At the time Dr. Getts wrote the presumed diagnosis of sexual abuse, he did not have the victim’s positive chlamydia test. That positive test result, Dr. Getts testified, substantiated his diagnosis. The military judge immediately interjected an instruction to the panel members to disregard Dr. Getts’ statement about the victim appearing to be truthful because a witness may not testify that another witness appears truthful:
and that-that last comment that I made applies to any witness. There are no — no truth experts in the courtroom. No person can come to the courtroom and tell you whether or not someone else is telling the truth. You can certainly consider his testimony concerning his area of expertise, which is, as we indicated before, Pediatric and Adolescent medicine, and also, Diagnosis of Child Abuse, those things that he observed which would be consistent with child abuse based upon his experience. Any objection to my instruction?
Complaint, Enclosure # 45, p. 375. No panel member had any questions, and questioning continued without objection by counsel. Any error was quickly remedied; any error did not rise to a constitutional violation of due process. Greer v. Miller,
Plaintiff also complains about the prosecutor’s statement that plaintiff denied being tested for chlamydia in 1987 while intimating plaintiff had taken such a test by placing an unadmitted document on the court reporter’s table. As detailed above, this argument was made to and resolved by the United States Army Court of Criminal Appeals which reviewed the record and found the document was never admitted; while government counsel improperly referred to the unadmitted document in final argument, plaintiffs counsel responded in oral argument by pointing out the complete absence of any medical evidence that plaintiff had ever requested he be tested for chlamydia in 1987. The issue was fairly and finally decided by the United States Court of Criminal Appeals. Moreover, this claim of error was included in the thirty-page Application for Correction of Military Record submitted by plaintiff to ABCMR. App. 75-78. Rather than being deprived of due process, plaintiff has been afforded full due process.
Plaintiff next complains that the Army Board’s decision was arbitrary and capricious for failure to respond or consider his argument about Dr. Getts’. opinion that the victim had anatomical evidence not typical for girls of her age which was indicative of sexual abuse over a prolonged period of time, an opinion that was based on his observations, not on any physical measurements. Dr. Getts admitted on cross-examination that he did not take any precise measurements, or if he did, he did not note the measurements in the record. As a result, plaintiff claims the military judge erred in admitting Dr. Getts’ opinion. Given Dr. Getts’ professional expertise with children and with sexual abuse, admission of his opinion was not error. Plaintiffs counsel did not object to the opinion and subjected it to cross-examination. Furthermore, this argument also was raised before the ABCMR. Plaintiffs objection
Finally, plaintiff complains that the ABCMR failed to consider his argument that the military judge should have instructed the members of the panel to disregard the testimony of Sergeant Major Willis Graydon. This testimony is not in the record before this court, and there is no record of whether plaintiffs counsel requested an instruction to the panel to disregard the testimony. Before this court plaintiff alleges Sergeant Graydon testified that plaintiff (1) failed to obey an order of a superior; (2) tried to conspire with the victim to change her story; and (3) was a bad person who not only abused the victim but was insubordinate and rebellious. Sergeant Graydon, a prosecution witness, testified as to the charge of disobeying an order, which was subsequently dismissed. He did not testify as to the abuse charges. Plaintiff has not met his burden of establishing error in the lack of an instruction to disregard this testimony, much less error of a constitutional due process magnitude.
The court has carefully reviewed each of plaintiffs challenges to his court-martial and concludes that plaintiff has not met the Augenblick standard of demonstrating convincingly that the errors of which he complains deprived him of fundamental fairness in violation of his constitutional right to due process. Bowling, supra,
These records make it plain that the military courts have heard petitioners out on every significant allegation which they now urge. Accordingly, it is not the duty of the civil courts simply to repeat that process — to re-examine and reweigh each item of evidence of the occurrence of events which tend to prove or disprove one of [petitioners’] allegations____ It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.9
Therefore, this Court has no subject matter jurisdiction over plaintiff’s plea to review claimed errors in his court-martial and this case must be dismissed.
Res judicata
Alternatively, the court finds that plaintiffs claims are barred by res judicata and defendant’s motion to dismiss on that grounds is due to be granted. Res judicata, also known as “claims preclusion,” “ ‘prevents a party from relitigating the same claims that were or could have been raised in a prior action.’” Goad v. United States,
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a subsequent suit is barred if it arises out of the same subject matter as a previous suit and which, “through the exercise of diligence, could have been litigated in a prior suit.” What constitutes the subject matter of a suit depends on the factual basis for the complaint, and any cause of action that arises out of the same facts should be litigated in the same action,
(citations omitted).
The May 8, 2000 Order of the United States District Court for the Southern District of Georgia, Augusta Division dismissed plaintiffs Federal Tort Claims Act complaint that asserted Dr. Getts made mistakes in his physical examination of plaintiffs stepdaughter, and gave false testimony at plaintiffs court-martial trial because plaintiff failed to timely file an administrative claim against the government as required by the Federal Tort Claims Act, 28 U.S.C. § 2401(b). In so concluding, the court found that “[a]t the latest, Plaintiffs claim arose on October 22, 1993, the final day of his trial.” App. 18. For failure to comply with the Federal Tort Claims Act, plaintiffs complaint was dismissed. The judgment was valid, final and on the merits. The federal district judge applied longstanding principles of the Federal Tort Claims Act. A valid administrative claim before the appropriate federal agency is a necessary prerequisite to filing a tort claim against the United States. 28 U.S.C. § 2675(a). The statute of limitations for filing an administrative claim is two years; a federal court has no subject matter jurisdiction under the FTCA unless plaintiff filed a timely administrative claim. 28 U.S.C. § 2401(b); Suarez v. United States,
The second element — identity of parties is also met. In the federal district court ease, the United States was substituted for Dr. Getts as defendant. Accordingly, plaintiff and the United States were the parties in both cases.
Thirdly, the instant claim is founded upon the same cause of action as in the prior litigation. Plaintiff contends that the issues in the two lawsuits are different, the Georgia federal district court action being one for medical malpractice, and the instant litigation being one seeking to set aside his court-martial and recover back pay. The transactional approach of the Restatement (Second) of Judgments, § 24 governs this court’s inquiry. See Foster v. Hallco Mfg. Co., Inc.,
The answer to that question is “yes.” Both the former and the current actions are founded on plaintiffs court-martial trial, dishonorable discharge and loss of pay and benefits. In both cases, plaintiff seeks the same relief. In the Southern District of Georgia, plaintiff demanded compensation for legal fees expended in his court-martial, compensation for his emotional damages, future legal fees to obtain joint custody of his children, loss of retirement income, and other recompense allegedly due because of the medical examination and testimony of Dr. Getts. Plaintiffs prayer for relief also included a request that the court find Dr. Getts’ examination of the victim and testimony at plaintiffs court-martial was negligent and unreasonable. Plaintiff requested:
2. THAT THIS COURT FINDS THAT JOSEPH SUFFERED MALICIOUS INJURY ARISING DIRECTLY AS A RESULT OF DR. GETTS’S [sic] NEGLIGENT MEDICAL EXAMINATION OF [the victim]; HIS PRECONCEIVED CONCLUSIONS THAT [the victim] ALLEGED RECTAL CHLAMYDIA TEST RESULT SUBSTANTIATED THE FACT THAT [the victim] HAD BEEN THE VICTIM OF JOSEPH SEXUAL ABUS {sic](CLINICAL DIAGNOSIS OF JOSEPH), WHOM HE HAD NEVER SEEN OR EXAMINED, AND THE FACT THAT DR. GETTS COULD NOT SAY WITH ANY MEDICAL CERTAINITY [sic] THAT [the victim] HAD A CHLAMYDIA INFECTION IN HER RECTUM ESPECIALLY WHERE JOSEPH WAS NOT CHARGED WITH SODOMY.
3. THAT THIS COURT FINDS THAT IT WAS NOT OBJECTIVELY REASONABLE FOR DR. GETTS TO MAKE THE DECISION HE MADE TO SUBSTANTIATE ANDPUBLISH [sic] THE CASE AS SEX ABU [sic] AGAINST JOSEPH, AND THAT NO RATIONAL JURY COULD FIND THAT IT WAS. THAT PLAINTIFFS11 HAVE SUBMITTED EVIDENCE THAT DR. GETTS CONDUCTED AN EXTRAORDINAR [sic] SLIPSHOD AND SHODDY MEDICAL EXAMINATION OF THE REPORT OF CHILD SEX ABUSE; THAT HE SUBSTANTIATED AND REPORTED TO OTHERS HIS OPINION KNOWING THAT THE PROBABLE RESULT WOULD INCLUDE CRIMINAL PROSECUTION OF JOSEPH AND THE LOSS (sic)12
App. 33. Plaintiff could have raised claimed evidentiary error by the military judge in his lawsuit in the Southern District of Georgia. While the Army Review Board had not yet denied his claim when his Federal Tort Claims action was dismissed on May 2, 2000, plaintiffs repackaging of his grievances about his court-martial into one purportedly about the Army Review Board’s decision, does not preclude the application of res judicata. The substance of his current grievances are against Dr. Getts, the military doctor who testified at his court-martial. Accordingly, although plaintiff could not have raised the November 7, 2000 Military Board of Correction’s denial of these claimed errors to the Southern District of Georgia, the arguments made against Dr. Getts in the instant lawsuit could have been raised in that prior litigation. Altering the theory of recovery does not create a new claim under the transactional approach. Anderson v. United States,
Moreover, the federal district court could have afforded plaintiff relief he now seeks from this court. In Powell v. United States,
Finally, it cannot be said that plaintiff has been afforded less than a full opportunity to pursue his complaints about his court-martial and Dr. Getts. He had a fair opportunity to raise these additional complaints about his court-martial hearing and resulting consequences before the Georgia federal district court. Plaintiff was not compelled to confine his pleadings to the jurisdiction provided by the Federal Tort Claims Act.
Collateral Estoppel
Moreover, the statute of limitations finding by the federal district court in Augusta Georgia that plaintiffs complaints concerning Dr. Getts’ testimony arose, at the latest October 22, 1993, the final day of his court-martial trial, is binding on plaintiff. The doctrine of collateral estoppel, also known as issue preclusion, is designed to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry,
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(1) the issue is identical to one decided in the first action; (2) the issue was actually litigated in the first action; (3) resolution of the issue was essential to a final judgment in the first action; and (4) plaintiff had a full and fair opportunity to litigate the issue in the first action.
In re Freeman,
The six year statute of 28 U.S.C. § 2501 sets the outside parameter of this court’s subject matter jurisdiction, and provides in relevant part:
Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.
Given the finding by the Southern District of Georgia that the statute of limitations for plaintiffs causes of action against Dr. Getts with respect to his court-martial accrued by October 22, 1993, the six year statute of limitations on these issues expired on October 23, 1999 and plaintiffs complaint in this court, filed on April 18, 2001 is untimely. Compliance with the statute of limitations period is a jurisdictional prerequisite to this court’s subject matter jurisdiction and is strictly construed. Frazer v. United States,
Board Review
On March 3, 2000, pursuant to 10 U.S.C. § 1552, plaintiff petitioned the Army Board for Correction of Military Records requesting that:
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his dishonorable discharge (DD) be upgraded to an honorable discharge. He also request (sic) change of the legal conclusion in regard to his creditable active service for pay and retirement purpose to reflect over 20 years of honorable service. He request (sic) that the military court-martial proceedings be expunged from his record; that his conviction was the product of unfair court-martial procedures and that the evidence presented at his military court-martial was constitutionally insufficient to sustain his conviction. He request (sic) that his court-martial sentence be voided. He further requests immediate release from imprisonment and immediate reinstatement to active military service. He request (sic) retroactive back pay to include pay increase for time in service from the date of his total forfeiture of all pay and allowances; retroactive back-pay for Basic Allowances for quarters to include pay increases for time in service and pay raises from date of his total forfeitures. He requests retroactive promotion from pay grade E-6 to E-8, compensation for loss of personal property, compensation for unjust imprisonment; compensation for pecuniary benefits for family separation and compensation of emoluments loss (sic) during his imprisonment.
Complaint, Enclosure 4, p. 3; App. 86.
Plaintiffs application was thirty-three pages long with forty-three enclosures. On September 22, 2000 plaintiff submitted an additional thirteen pages of argument and eight additional enclosures. Plaintiff argued to the ABCMR what he again argues to this court, that: (1) Dr. Getts’ testimony concerning self-cure of chlamydia was improper hearsay evidence; and (2) Dr. Getts’ opinion that the victim had been abused, appeared truthful and that her positive chlamydia test substantiated his opinion on abuse; (3) Dr. Getts’ testimony of physical evidence of sexual abuse and admission on cross-examination that he did not take any measurements; and (4) the lack of limiting instructions to disregard the testimony of Sergeant Graydon, were all denials of due process.
On November 7, 2000, the ABCMR denied plaintiffs application finding that:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
4. [Plaintiff] has submitted neither probative evidence nor convincing argument in support of the request.
Complaint, Enclosure 4, p. 4; App. 87.
Plaintiff argues first that the determination of the ABCMR has never been reviewed. Secondly, plaintiff claims error in that the Board did not consider his arguments which were not frivolous on their face. However, “[w]hen called upon to review a decision of a corrections board, or of a Secretary taken upon recommendation from a corrections board, the standard of review is whether the decision is arbitrary, capricious, unsupported by substantial evidence, or contrary to law.” Porter v. United States,
The court has found on each of several alternative theories that plaintiffs Complaint must be dismissed. Plaintiffs claims do not fall within the narrow scope available to this court for review of a court-martial. Alternatively, his claims are barred by res judicata and/or the finding by the Southern District of Georgia that plaintiffs claims accrued at the latest, on October 22, 1993, the final day of his trial, a factual finding which is collaterally binding on plaintiff. As a result, plaintiffs claims here are barred by the six-year statute of limitations of 28 U.S.C. § 2501. Finally, and again in the alternative, even in the absence of the foregoing dispositive consequences, plaintiff has failed to meet his heavy burden to establish that the decision of the ABCMR was arbitrary or capricious or not supported by substantial evidence.
Therefore, it is ORDERED that defendant’s motion to dismiss filed August 17,2001 is GRANTED, and final judgment shall be entered DISMISSING this case. NO COSTS assessed.
Notes
. 28 U.S.C. § 2501 provides in part:
Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.
. Charges of carnal knowledge were dismissed as multiplicious for sentencing. Upon motion of the defense, a charge of disobeying a lawful order was also dismissed.
. References are to the Appendix to defendant's Motion to Dismiss filed August 17, 2001.
. Admission of expert testimony is governed by Rule 702 of the Military Rules of Evidence which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The Supreme Court has held that a trial judge acts as a "gatekeeper” under Fed.R.Evid. 702 to “ensurfe] that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand." Kumho Tire Co., Ltd. v. Carmichael,
. The victim tested positive for chlamydia. Plaintiff twice tested negative for the disease. Thus whether or not plaintiff was ever infected, and whether or not an infected person could be "self-cured,”as well as the accuracy of testing for this disease, were contested at the court-marital and in subsequent military appeals.
. Plaintiff was released from imprisonment. Plaintiffs August 20, 2002, Notice of Change of Address was from the Federal Correctional Complex in Coleman, Florida to a private address in Florida.
. Portions of the transcript were attached to plaintiff’s Complaint.
. M.R.E. 702 allows expert testimony by one with specialized knowledge in order to assist the fact-finder in understanding evidence or determine a fact in issue. Under Rule 703, the facts or data underlying an expert opinion may be those perceived by the expert either before or after the hearing and, if of a type reasonably relied upon by other experts in the field, the facts or data need not be admissible. Otherwise relevant evidence may be excluded under Rule 403 if its probative value is substantially outweighed by a danger of prejudice, confusion or waste of time.
. The Supreme Court’s direction was quoted by the Federal Circuit in Bowling, supra,
. Plaintiff’s federal district court complaint asserted general claims of malpractice against Dr. Getts and alleged Dr. Getts testified falsely at plaintiff's court-marital hearing. The government was substituted as the defendant, so that plaintiff had the opportunity to raise any other issues he had arising out of the court-martial, imprisonment and the consequences thereof, including any complaints about the military judge failing to caution the panel to disregard the testimony of Sergeant Major Graydon.
. Both plaintiff and the victim were named plaintiffs in the federal district court complaint. Only plaintiff’s, and not the victim’s signature as pro se appears on the complaint and civil cover sheet. .
. The record of plaintiff's complaint filed in the Southern District of Georgia on January 20, 2000 ends on page 7.