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Plaintiffs-appellants Jayant Khandhar ("Khandhar") and Jyoti Khandhar ("Mrs. Khandar") (collectively, "appellants") appeal from a summary judgment entered in the United States District Court for the Southern District of New York (Conboy, J.) in favor of defendants-appellees Dr. Joseph Charles Elfenbein and Dr. James Richard Dickson (collectively, "appellees"). Appellants commenced this medical malpractice action to recover damages for injuries sustained by Khandhar as a result of a surgical procedure believed to have been performed negligently. The surgery was required to remove two herniated discs caused by an automobile accident. Khandhar first recovered $20,000 for the injuries he sustained in the accident. This recovery came in the form of a settlement with the owner and driver of the automobile that struck the vehicle Khandhar was driving.

On appellees' motion for summary judgment, the district court held that the injuries for which recovery was sought in the action at bar were the same injuries for which Khandhar already had recovered an additional $40,000 in an arbitration conducted pursuant to the underinsured motorist provision of his insurance policy. Because the court found an identity of issues, it held that Khandhar was collaterally estopped 246*246 from maintaining a claim of medical malpractice in federal court.

Khandhar contends that the district court erred in finding an identity of issues because the damages resulting from the surgery were not known to Khandhar, let alone addressed and determined, during the arbitration. He maintains that preclusion was inappropriate in light of the discovery of new evidence subsequent to the arbitration. We agree with Khandhar's arguments and conclude that the district court erred in granting summary judgment.


943 F.2d 244 (1991)

Jayant KHANDHAR, Jyoti Khandhar, Plaintiffs-Appellants,


Joseph Charles ELFENBEIN, M.D. and James Richard Dickson, M.D., Defendants-Appellees.

No. 1690, Docket 91-7211. United States Court of Appeals, Second Circuit.

Argued June 28, 1991.

Decided September 3, 1991.

New York Law School location: File #1266, Box #128