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Scholz v. United States

United States District Court, E.D. Wisconsin

June 7, 2018

BOBBIE JO SCHOLZ, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          DECISION AND ORDER

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE.

         On March 6, 2018, Bobbie Jo Scholz filed a motion to compel.[1] (ECF No. 22.) Scholz seeks an Order compelling Defendant to answer:

1. Plaintiff's First Request for Production of Documents Questions 20-29;
2. Plaintiff's First Request for Admissions, Questions 114 through 123, 125, and Questions 129 through 148;
3. Plaintiff's Second Request for Production of Documents Questions 3 & 4;
4. All documents subpoenaed on February 1, 2018;
5. All records identified by Ms. Brahm during her recent deposition;
6. Pharmacy records of medication interactions-kept in the pharmacy computer program at the Tomah VAMC;
7. VA police records of incidents-kept in Tomah VAMC police department;
8. Records of the Senate Investigation with all testimony- on a CD kept at the Tomah VAMC and in VISN office; and
9. All computer pharmacy warnings and medication alerts from Plaintiff's treatment that were not produced in Defendant's May 2017 disclosures.

         (ECF No. 22 at 16.) At Scholz's request, the court gave her an opportunity to supplement her motion to compel. (ECF No. 32.) Scholz did so. (ECF No. 34.) However, Scholz's supplement almost exclusively addresses a different issue: whether Noelle Johnson may testify as an expert witness. She even asks that the court “issue a protective order for Dr. Johnson's unfettered expert testimony at the trial of this case.” (ECF No. 34 at 6.) But that request was not included in her initial motion, and it is improper to raise it in a supplemental brief. The court finds that the supplement does not materially impact Scholz's motion to compel.

         Factual Background

         According to her complaint, Bobbie Jo Scholz served in the United States Army from 2006 to 2008. (ECF No. 1, ¶ 13.) After discharge she was treated for mental health related issues at the Tomah, Wisconsin Veterans Affairs Medical Center (Tomah VAMC) and hospitalized there from January 10 to February 9, 2011, and from March 3 to March 31, 2011. (ECF No. 1, ¶¶ 14-15.) Upon her discharge from inpatient care at the Tomah VAMC on March 31, 2011, she was prescribed 14 medications and placed on daily outpatient home health monitoring. (ECF No. 1, ¶ 16.) Her complaint further states:

Throughout the remainder of 2011 and early 2012, Tomah VAMC nurses monitored Scholz' continuing and worsening mental health symptoms that included trouble focusing, loss of motivation, loss of interest in daily activities, high level of depression, decrease in cognitive status, loss of interest in activities, on-going confusion and anxiety, inability to concentrate with even simple daily tasks, and severe symptoms interfering with her ability to function and maintain independence in the community.
On December 14, 2011 health care providers at the Zablocki VAMC verified that Scholz was now taking 16 active medications and despite her diminished mental status obtained Scholz' signature on a consent form for bilateral breast reduction surgery.
On December 22, 2011, a psychological assessment performed at the Zablocki VAMC confirmed Scholz' high level of anxiety, post traumatic stress symptoms, and significant functional and cognitive deficiencies.

         (ECF No. 1, ¶¶ 17-19.)

         Scholz underwent elective breast reduction surgery at the Zablocki VA Medical Center (Zablocki VAMC) in Milwaukee on January 6, 2012. (ECF No. 1, ¶ 20.) Scholz alleges that, contrary to hospital policy, the operating surgeons did not receive her informed consent prior to the surgery. (ECF No. 1, ¶ 20.) Scholz's medications and mental health status allegedly were not considered by the Zablocki VAMC surgeons prior to Scholz's surgery. (ECF No. 1, ¶ 21.)

         Following surgery, Scholz suffered from persistent painful open wounds that were subsequently diagnosed as staph infections. (ECF No. 1, ¶ 25.) These and other complications resulting from the surgery led to four additional surgeries over the next two years. (ECF No. 1, ¶ 26.)

         First Requests for Production

         In her reply in support of her motion to compel, Scholz withdrew her request for the court's review of Request Nos. 22, 23, and 25 in her First Request for Production of Documents. (ECF No. 25 at 2.) The remaining disputed requests for production are:

20. All documents of investigations of the Tomah VAMC and/or any of its employees conducted by or at the direction of the Department of ...

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