IN THE COURT OF APPEALS OF IOWA

No. 14-1259

Filed June 24, 2015

WENDY R. SMOKER, M.D.,

Petitioner-Appellant,

vs.

IOWA BOARD OF MEDICINE,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, 

Judge.

Wendy Smoker appeals from the district court’s grant of the Iowa Board of 

Medicine’s motion to dismiss. AFFIRMED.

David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Julie J. Bussanmas, Assistant 

Attorney General, for appellee.

Considered by Vogel P.J., and Potterfield and Mullins, JJ.
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VOGEL, P.J.

Wendy R. Smoker, M.D., appeals the district court’s grant of the motion to 

dismiss filed by the Iowa Board of Medicine (the Board). Smoker asserts the 

court erred in finding her claim—that the Board should reimburse her for 

expenses incurred when complying with the drug-screening tests—was barred by 

claim preclusion. We conclude the district court correctly held that claim 

preclusion bars Smoker’s petition, given this issue could have been fully and 

fairly litigated in the previous action. Therefore, we affirm the district court’s grant 

of the Board’s motion to dismiss.

Smoker is by all accounts a well-respected physician, practicing diagnostic 

radiology at the University of Iowa. She came under review by the Board after 

she self-reported alcohol dependence and underwent compliance programs but 

relapsed twice in 2009. The Board, on January 24, 2011, cited her for “excessive 

use of alcohol.” It issued sanctions against her, including the imposition of a civil 

penalty, the Board’s quarterly monitoring fee, a disciplinary hearing fee, and any 

costs certified by the executive director. It also required she be alcohol and drug 

screened periodically, “all costs of which shall be paid by [Smoker].”

Smoker sought judicial review on February 21, 2011. In the petition, 

Smoker listed the Board’s disciplinary sanctions, including the fact she must 

comply with alcohol and drug testing. Specifically, her prayer for relief stated:

Dr. Smoker is seeking an order:

Reversing the Board’s decision and a dismissal of the case 

based on multiple grounds under Iowa Code § 17A, the Iowa 

Constitution and United States Constitution as detailed above;

Requiring the Board to retract any and all Board press 

releases or other publications contrary to the evidence in this 

matter from its website, its new Facebook page, any other 
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electronic medium, and to contact any third-party internet 

companies, agencies or entities that has, or may have, cached a 

copy of said press releases making them available online or 

otherwise, ensuring said cached copies are removed from 

circulation;

Contact any and all newspapers who have run articles on 

this matter and request they publish a redaction indicating the 

Board’s decision was an error and not based on substantial 

evidence;

Requiring the Board to retract all Board reports regarding 

this matter from the National Practitioner Database, the Federation 

of State Medical Boards, and any other notification made pursuant 

to IAC 653-25 and any of its subsections to include IAC 653-25.32;

AND

Requiring the Board to provide proof to the Court and Dr. 

Smoker of compliance with its Order in this matter.

She did not seek any monetary damages—that is, payment for the 

expenses she was incurring, and would continue to incur, to comply with the 

Board’s required alcohol and drug testing. The district court affirmed the agency 

decision but made no findings with regard to the monies spent by Smoker to 

comply with the Board’s requirements. On appeal to this court, Smoker again 

sought a list of remedies, as well as to: “Provide a complete refund of Dr. 

Smoker’s $5000.00 fine, with interest along with all other fees paid.” Finding the 

Board’s decision on citing her for “excessive use of alcohol” lacked substantial 

evidence, this court “reverse[d] the decision of the district court and remand[ed]

to the Board for entry of an order dismissing the disciplinary action.” See Smoker 

v. Iowa Bd. of Med., No. 12-1216, 2013 WL 1760185, at *8 (Iowa Ct. App. Apr.

24, 2013).

On July 17, 2013, Smoker petitioned the Board for implementation of 

several remedies, including refunding “all monies paid to the Board’s drug 
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monitoring program.”

1

The Board denied the refund request. On January 8, 

2014, Smoker expanded her argument against the Board’s denial of payment 

and submitted her third-party, drug-screening receipts as well as transportation 

costs. On March 14, the Board again issued an order refusing to pay. Smoker 

appealed the decision to the district court, and the Board filed a motion to 

dismiss. The court concluded claim preclusion barred Smoker’s request for 

reimbursement of the drug-test costs payable to a third party—costs that were 

consumed and therefore not readily refundable—thereby granting the Board’s 

motion. Smoker appeals.2

We review rulings on a motion to dismiss for correction of errors at law. 

Geisler v. City Council of City of Cedar Falls, 769 N.W.2d 162, 165 (Iowa 2009).

The issue here is whether Smoker’s current claim for the “reimbursement”

of drug-testing costs is barred by claim preclusion. With regard to this doctrine, 

our supreme court has stated:

Claim preclusion, as opposed to issue preclusion, may foreclose 

litigation of matters that have never been litigated. It does not, 

however, apply unless the party against whom preclusion is 

asserted had a full and fair opportunity to litigate the claim or issue 

in the first action. A second claim is likely to be barred by claim 

preclusion where the acts complained of, and the recovery 

 

1 The drug monitoring program encompasses the drug testing, review of the results, and 

reporting.

2 On February 24, 2015, the Iowa Supreme Court filed an order requesting briefing on 

whether, pursuant to Alvarez v. IBP, Inc., 691 N.W.2d 1 (Iowa 2005), the district court’s 

opinion should be summarily affirmed due to the fact the underlying agency record was 

not transmitted to the district court. Both parties filed briefs. The supreme court then 

ordered the issue to be submitted with the current appeal. With regard to this issue we 

conclude that, as set forth in more detail below, claim preclusion applies and bars 

Smoker from bringing this suit. Moreover, a more detailed record—in the form of the 

entirety of the underlying documents from the agency proceeding—would not shed more 

light on this issue. Consequently, it is rendered moot, and there is no need for a remand 

so the record may be expanded. We also decline to address the issue of whether the 

Board or Smoker was required to provide the underlying agency record.
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demanded are the same or where the same evidence will support 

both actions. A plaintiff is not entitled to a second day in court by 

alleging a new ground of recovery for the same wrong . . . . When 

we consider a defense of claim preclusion, we look for the 

presence of three factors: the parties in the first and second action 

were the same; the claim in the second suit could have been fully 

and fairly adjudicated in the prior case; and there was a final 

judgment on the merits in the first action.

Arnevik v. Univ. of Minn. Bd. of Regents, 642 N.W.2d 315, 319 (Iowa 2002) 

(internal citations omitted).

Based on this standard, claim preclusion bars Smoker’s current suit. The 

first and third elements articulated in Amevik are met—the parties are the same 

and there has been a final adjudication on the merits. See id. Moreover, as the 

district court noted:

[Smoker] knew when she filed her petition for judicial review in the 

first action that the board had ordered her to comply with drug 

screens. She knew that there would be costs incurred as part of 

her compliance with that order. She knew the drug testing costs 

were made to FirstLab. Whether or not she asked the court to 

order the board to reimburse her for the costs of complying with the 

disciplinary order, the court made no such order. She cannot file a 

second action to order the board to reimburse her for those costs 

now.

We agree. We first note that, because Smoker’s petition for judicial review 

was filed shortly after the Board’s decision, she was only beginning to incur the 

expenses for the required alcohol and drug testing. Nonetheless, in seeking to 

have the Board’s decision reversed, she could have sought payment of all 

ongoing expenses; however, she limited her prayer for relief to those requests

set out above. The district court, therefore, only considered those issues raised 

in her first petition for judicial review. 
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Moreover, in addition to failing to pray for damages in her first judicialreview petition, on appeal to this court, Smoker made no mention of the ongoing 

expenses associated with complying with the Board’s screening requirements. 

Thus, while the Board imposed very specific penalty fines and fees, Smoker 

failed to contest the third-party drug-screening costs until the July 17, 2013 

motion. Consequently, this issue “could have been fully and fairly adjudicated in 

the prior case,” and thus, claim preclusion bars Smoker’s claim. See id. 

Therefore, we affirm the order of the district court granting the Board’s motion to 

dismiss.

AFFIRMED.