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Love v. Medical College of Wisconsin

United States District Court, E.D. Wisconsin

April 22, 2016

ROBERT B. LOVE, Plaintiff,


LYNN ADELMAN District Judge

Plaintiff Robert Love, brings this suit alleging that defendants Medical College of Wisconsin (“MCW”), Froedtert Memorial Lutheran Hospital (“Froedtert”), and several physicians employed by MCW violated the False Claims Act (“FCA”) and various state tort laws. Before me are the MCW defendants’ motion for judgment on the pleadings, Froedtert’s motion to dismiss for failure to state a claim, and some miscellaneous motions.

I. Background

Plaintiff, a transplant surgeon and professor, alleges that beginning in 2012 he was employed by MCW and performed surgeries at Froedtert, a hospital staffed by MCW faculty. Plaintiff further alleges that he became increasingly concerned about the quality of care provided by MCW and Froedtert and complained many times to MCW and Froedtert management. Plaintiff further alleges that defendants retaliated against him for complaining by placing him on a leave of absence, revoking his hospital privileges, removing him from the call schedule, spreading negative and false information about him, and providing prospective employers with negative and false information.

On August 26, 2014, MCW and plaintiff signed a separation agreement in which plaintiff released MCW and its employees from all claims arising before the agreement. MCW agreed not to disparage plaintiff, including to prospective employers. Plaintiff ultimately found another job. I will discuss plaintiff’s allegations in more detail as I discuss plaintiff’s specific claims.

II. Motions to Dismiss

First, I address MCW’s motion for judgment on the pleadings and Froedtert’s motion to dismiss. I review both motions under the same standard. BBL, Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir. 2015). To survive, plaintiff must allege facts which give rise to a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). I draw all inferences in plaintiff’s favor. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013).

A. FCA Retaliation Claim

Plaintiff first alleges is that defendants MCW and Froedtert retaliated against him in violation of the FCA. The FCA provides that “any employee, contractor or agent” may obtain relief if he “is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts” performed in an effort to stop a violation of the FCA. 31 U.S.C. § 3730(h)(1). He alleges that he raised concerns with MCW and Froedtert about possible FCA violations, including the provision of care below Medicare standards, fraudulent billing practices, and violations of federal regulations. He further alleges that MCW and Froedtert took numerous retaliatory actions against him including placing him on a leave of absence, removing him from clinical duties, threatening to terminate him for cause, removing him from the call schedule, reducing his salary, and revoking his hospital privileges. MCW and Froedtert present separate arguments in support of dismissing plaintiff’s claim.

1. Liability Release

MCW presents an affirmative defense that plaintiff’s claim is barred by the release contained in the separation agreement between MCW and plaintiff. The release provided:

In exchange for the benefits and payment to him described in this agreement, Dr. Love hereby irrevocably and unconditionally releases, waives, and fully and forever discharges MCW and its past and current agents, servants, officers, trustees, insurers, attorneys, and employees and their respective successors and assigns (the “Released Parties”) from and against any and all claims, liabilities, obligations, covenants, rights, demands, attorney fees and/or costs and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated, relating to or arising out of any agreement, act, omission, occurrence, transaction or matter up to and including the date of this Agreement, including without limitation, any and all claims relating to or arising out of his employment by MCW or the termination hereof.

Compl. Ex. A at 2 (ECF No. 2-1).

I agree with MCW that the above-quoted language released any FCA retaliation claims against MCW and its employees arising before August 26, 2014. The language is unambiguous; plaintiff waived “any and all claims . . . of any nature whatsoever . . . ” against MCW and its employees. Id. See Town Bank v. City Real Estate Dev., LLC, 330 Wis.2d 340, 356 (2010) (”If the contract is unambiguous, our attempt to determine the parties’ intent ends with the four corners of the contract, without consideration of extrinsic evidence.”). It is also significant that the parties excluded certain types of claims from the release but not retaliation claims.

Plaintiff argues that the release did not foreclose claims for intentional or reckless misconduct. I disagree. The provision not only includes claims “of any nature whatsoever, ” but specifically includes age discrimination claims which are based on intentional conduct. Plaintiff’s argument that a release of claims for intentional or reckless conduct is unenforceable based on public policy is also unpersuasive. Contracts which release a party from liability for future intentional or reckless conduct are unenforceable because they encourage such conduct. See Dobratz v. Thomson, 161 Wis.2d 502, 514 (1991). The release in the present case, however, does not release defendants from liability for future acts but rather for past acts, and such releases are routinely upheld. See e.g. Dietrich v. Trek Bicycle Corp., 297 F.Supp.2d 1122, 1127 (W.D. Wis. 2003); Morris-Shaw v. Stora Enso N.A., No. 04-C-704, 2005 WL 1957676 (W.D. Wis. 2005); see also Smith v. Amedisys, Inc., 298 F.3d 434, 440-41 (5th Cir. 2002) (stating that “[a] general release of Title VII claims does not ordinarily violate public policy”). Thus, plaintiff has waived any FCA retaliation claim against MCW and its employees based on events prior to August 26, 2014.

However, plaintiff alleges that one of the retaliatory acts occurred after the agreement was signed, on September 14, when his privileges at Zablocki Veterans’ Affairs Medical Center were revoked. MCW argues that this claim fails because plaintiff has not sufficiently pled that MCW was responsible for the revocation. I disagree; plaintiff alleges that Zablocki is an affiliate of MCW, that it is “one of MCW’s major sites for medical and surgical training, ” and that “MCW provides services and operates graduate medical programs at the Zablocki.” Compl. ¶ 2 (ECF No. 2). Plaintiff also alleges that Zablocki revoked his privileges “at the behest” and “with the knowledge and approval” of MCW ...

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