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Smith-Williams v. United States

United States District Court, W.D. Wisconsin

April 25, 2019

CONSUELA SMITH-WILLIAMS, FRED RIVERS, RICHARD MURPHY, ROBERT RISTOW, ROGER SUHR, and SALVADOR FUENTES, on behalf of themselves and others similarly situated, Plaintiffs,



         In this putative class action, plaintiffs bring suit against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), for lapses in infection control procedures at the Tomah VA Medical Center. Presently before the court is their motion to certify the class. (Dkt. #30.) Plaintiffs' motion will be denied because individual questions predominate over common questions, and a class action is not a superior method of adjudicating this dispute.


         As veterans of the United States military, plaintiffs were all treated by Dr. Thomas Schiller at Tomah VA Medical Center's Dental Clinic between October 5, 2015, and October 21, 2016. While the parties seem to contest the specifics, there is no dispute that during this time period, Schiller's hygiene practices were unorthodox, including the use of his own, personal equipment on patients and, at times, the failure to wash his hands, to change his gloves and to wear a dental gown as frequently as expected. (See Mot. to Certify Br. (dkt. #34) 1-2; Opp'n (dkt. #56) 3-4.) In particular, defendant acknowledges that Schiller: (1) “began using personally-owned, non-VA-approved diamond dental burs when performing crown and bridge procedures”; (2) “began using personally-owned cotton applicators during crown and bridge procedures, and personally-owned matrix bands during about half of his cavity and root canal procedures”; (3) “used a personally-owned post on at least one occasion”; (4) “was observed touching non-sterile objects . . . with a gloved hand and then continuing a dental procedure”; (5) performed dental procedures without a protective dental gown on occasions; and (6) “was suspected of not washing his hands in between glove changes.” (Opp'n (dkt. #56) 3-4.) On October 21, 2016, Schiller ceased treating patients.

         From October 2015 through October 2016, Schiller treated 592 patients. Following a risk assessment, the Department of Veterans Affairs sent letters to these individuals on November 29, 2016:

Our records indicate that between October 2015 and October 21, 2016 you were seen as a patient in the Tomah VA Medical Center's Dental Clinic for a dental procedure. This letter is to inform you that established infection control practices were not being followed by the dentist that treated you.
While we believe your risk of infection is low, we recommend you come in to be tested. We want to emphasize that receiving this letter does not mean that you were infected but we are taking extra steps to be certain. The laboratory tests we are recommending you be tested for include the Hepatitis B virus, Hepatitis C virus, and the Human Immunodeficiency Virus (HIV). We recommend that you come in and be tested to provide you with reassurance.
As the Acting Medical Center Director, let me sincerely apologize for the concern that this notification may bring to you and your family.

         (Patient Notification Letter (dkt. #1-4) 1-2.) In addition, patients who had seen Schiller within the last six months were further advised that “tests may not always be able to reliably detect recent exposures and infections from these viruses, ” so those patients should repeat the testing “at the end of the 6 month timeframe.” (Progress Notes (dkt. #34-11) 1.)

         Thankfully, none of the patients tested positive for new viruses. (Moore Dep. (dkt. #48) 27:16-24 (“[T]here were no active infections in those patients.”).) Nevertheless, plaintiffs allege that they and other members of the putative class suffered from severe emotional distress during the period between receiving notification of a possible infection and their negative test results.


         OPINION To certify a class under Federal Rule of Civil Procedure 23(b)(3), plaintiffs must satisfy a two-step analysis. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811

         (7th Cir. 2012). First, the proposed class must satisfy the four threshold requirements under Rule 23(a): numerosity, commonality, typicality and adequacy. Id. Second, the proposed class must satisfy the two requirements under Rule 23(b)(3): predominance and superiority. Id.

         Because the trial court must engage in a “rigorous analysis” to determine whether the proposed class satisfies these requirements, CE Design Ltd. v. King Architectural Metals,Inc., 637 F.3d 721, 722 (7th Cir. 2011), that analysis may overlap with a determination of the merits of the case. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). When overlap occurs, “the judge must make a preliminary inquiry into the merits.” Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001). If material factual disputes arise, the court may even be required to receive evidence and resolve those disputes before ruling on class ...

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