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Smith-Williams v. United States

United States District Court, W.D. Wisconsin

December 10, 2019




         This case is set for a bench trial commencing on December 16, 2019. Plaintiffs assert negligence claims under the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. § 1346(b)(1), arising out of their receipt of a letter from the VA Medical Center in Tomah, Wisconsin, after its discovery of infection control breaches by a former VA dentist, Dr. Thomas Schiller, who had treated each of them. Pending before the court are defendant's motions in limine (dkt. #152) and third-party respondent Frank Marcantonio's motion to quash (dkt. #157). In advance of the final pretrial conference (“FPTC”) scheduled for December 11, 2019, the court issues the following opinion and order regarding those motions.


         I. Motions in Limine

         The value of filing motions in limine before a bench trial is open to debate, given that the trier of fact is obviously not actually shielded from the evidence or argument that the party seeks to limit. Nevertheless, because the issues raised and the court's approach to them may provide some guidance to the parties in presenting their case at trial, the court addresses those motions individually below.

         A. Defendant's Motion in Limine No. 1

         Defendant's first motion in limine asks the court to exclude “any evidence related to the risk of exposure to Hepatitis and HIV from specific infection control breaches unless Plaintiffs establish that such breaches occurred during their dental visits and exposed them to risk of infection.” (Def.'s Br. Mots. Limine (dkt. #153) 2.) More specifically, although conceding that the actual level of risk to plaintiffs may be relevant, defendant argues that absent evidence that plaintiffs were “exposed to a particular risk, evidence as to the level of that risk is simply not relevant.” (Id.)

         As a general proposition, Dr. Schiller's infection control breaches are relevant to various elements in this case, including breaches that did not necessarily put plaintiffs directly at risk. First, the breaches are relevant to plaintiffs' negligence claim that Dr. Schiller's serious and repeated infection control breaches caused plaintiffs to receive the letter warning of a risk of infection and provoked severe emotional distress. The letter and plaintiffs' distress were, therefore, arguably caused by Dr. Schiller's breaches, whether or not those breaches actually put plaintiffs at risk of infection during their individual office visits.[1] Second, less clear is the relevance to plaintiffs' underlying negligence claims of evidence as to the actual risks of exposure, much less actually contracting an infection, by virtue of Dr. Schiller's general infection control breaches. Accordingly, the court will reserve on this question for further discussion at tomorrow's FPTC.

         Plaintiffs also argue that defendant negligently trained and/or supervised Dr. Schiller, which caused his infection control breaches, or at least the failure to detect them sooner, and in turn caused plaintiffs' distress. See Miller v. Wal-Mart Stores, Inc., 219 Wis.2d 250, 262, 580 N.W.2d 233, 238 (1998) (in a negligent hiring, training, or supervision claim, “the causal question is whether the failure of the employer to exercise due care was a cause-in-fact of the wrongful act of the employee that in turn caused the plaintiff's injury”). Plaintiffs' allegations that Dr. Schiller frequently and blatantly failed to follow infection control procedures such as washing his hands and wearing a protective gown are relevant to whether defendant exercised due care in supervising and/or training Dr. Schiller, regardless of whether those breaches actually created a risk of infection for plaintiffs.

         Finally, Dr. Schiller's infection control breaches are relevant to public policy considerations regarding the proper scope of liability in this case, and in particular to determining whether plaintiffs' injury was proportionate to defendant's culpability. See Bowen v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 655, 517 N.W.2d 432 (1994) (one public policy consideration that may preclude liability is “whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor”). Culpable conduct can include conduct that was not the cause-in-fact of the alleged injury. See Burton v. Am. Cyanamid Co., No. 07-CV-0303, 2019 WL 4540080, at *5 (E.D. Wis. Sept. 19, 2019) (concluding that defendants' culpable conduct was its general manufacturing and marketing of lead paint, even though “chances [were] slim that their product was the factual cause of plaintiff's injury”). So, in assessing defendant's culpability in this case, even infection control breaches that did not ultimately put plaintiffs at risk of infection may be relevant.

         As a result, the relevance of Dr. Schiller's infection control breaches may go to both whether they create an actual or perceived risk of infection for plaintiffs and whether liability should lie as a matter of public policy. Accordingly, the court will deny in part and reserve in part defendant's first motion in limine.

         B. Defendant's Motion in Limine No. 2

         Defendant next argues that the court should exclude evidence “regarding conduct by Dr. Schiller that did not put patients at risk of Hepatitis or HIV, ” such as evidence that he was seen sleeping in his office and that his medications noticeably affected his behavior at work. (Def.'s Br. Mots. Limine (dkt. #153) 1, 4.) As plaintiffs point out, however, such evidence is probative of whether defendant exercised due care in supervising Dr. Schiller. “[T]o the extent Plaintiffs intend to offer these other acts to demonstrate that Dr. Schiller acted in conformity with a particular character trait, ” defendant also argues that “such evidence is inadmissible under Fed.R.Evid. 404(b)(1).” (Def.'s Br. Mots. Limine (dkt. #153) 4.) Such use would indeed be impermissible; however, this argument would appear to be a straw man, since plaintiffs have not attempted to date to use these acts as evidence of Dr. Schiller's propensity to act similarly. Regardless, since the evidence is relevant to other, permissible purposes, it will not be excluded. Accordingly, defendant's motion will be denied.

         C. Defendant's ...

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