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Scholz v. United States

United States District Court, E.D. Wisconsin

January 15, 2020

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

          ORDER

          WILLIAM E. DUFFIN U.S. Magistrate Judge.

         Bobbie Jo Scholz filed this action on August 8, 2016. A year-and-a-half later, on March 6, 2018, Scholz filed a motion to compel. (ECF No. 22.) In reviewing the motion, I found, buried within the 188 pages of records Scholz attached, the following two requests to admit and responses (which, like many of the submitted documents, were of no apparent relevance to the motion to compel):

REQUEST# 14: Admit that on September 10, 2008 Plaintiff began seeing John T. Duffin, a licensed psychologist employed by the Department of Veterans Affairs, for her depression, post traumatic [sic] stress disorder, and prior suicide attempts.
RESPONSE NO. 14: Admit.
REQUEST# 15: Admit that Dr. Duffin recommended that Plaintiffs employment be delayed because of her strong mistrust of others and panic at the thought of returning to work.
RESPONSE NO. 15: Denied.

(ECF No. 22-9 at 4.)

         Dr. Duffin is my brother. Cognizant of my obligations under 28 U.S.C. § 455 and the Code of Conduct for United States Judges, see also Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731, 750 (7th Cir. 2015), I held a telephonic hearing with the parties. (ECF No. 32.) I advised the parties that Dr. Duffin was my brother and inquired whether he would be a witness in the matter. (ECF No. 32.) The parties stated that neither had identified Dr. Duffin as an “individual likely to have discoverable information” under Rule 26(a)(1)(A) and confirmed they did not expect him to testify. (ECF No. 32.) The parties having raised no concern, and I having been assured that Dr. Duffin would not be a witness, I concluded that recusal was unnecessary. (ECF No. 32.)

         Soon thereafter, I concluded that the plaintiff had waited too long to amend her complaint and had no good reason for doing so. Scholz v. United States, No. 16-CV-1052, 2018 U.S. Dist. LEXIS 228239, at *13 (E.D. Wis. June 1, 2018). The result was that Scholz's damages were limited to $2.5 million rather than the $4 million she sought. A week later, I resolved the plaintiffs' motion to compel. Concluding that the requests were, in part, “expansive, ” “hopelessly overbroad, ” and “inappropriate, ” I denied the motion in its entirety. Scholz v. United States, No. 16-CV-1052, 2018 U.S. Dist. LEXIS 95599, at *17 (E.D. Wis. June 7, 2018).

         About a month later, unbeknownst to me, plaintiff's counsel named Dr. Duffin as a possible witness. (ECF No. 134-2 at 4.) This disclosure came well over a year after the deadline for naming such witnesses. (ECF No. 18 at 1.) Despite my prior disclosure that Dr. Duffin was my brother and my need to recuse myself if he was likely to be a material witness, plaintiff's counsel did not inform me that she now thought he might be a witness, nor did she ask me to revisit my decision not to not recuse myself. As a result, I proceeded under the presumption that the matter was resolved.

         The case proceeded to summary judgment and motions regarding expert witnesses. This phase did not go well for the plaintiff, largely because of errors made by her attorney. I prohibited a witness the plaintiff proffered as an expert from testifying as an expert because she failed to provide a report as required by Rule 26(a)(2)(B). Scholz v. United States, No. 16-CV-1052, 2019 U.S. Dist. LEXIS 90245, at *5 (E.D. Wis. May 30, 2019). I struck declarations from the plaintiff's experts because they offered new untimely opinions. Scholz v. United States, No. 16-CV-1052, 2019 U.S. Dist. LEXIS 90245, at *22 (E.D. Wis. May 30, 2019). I rejected the plaintiff's attempts to strike the testimony of the United States' two experts. Scholz v. United States, No. 16-CV-1052, 2019 U.S. Dist. LEXIS 90245, at *22-*34 (E.D. Wis. May 30, 2019). I rejected the plaintiff's request for summary judgment as to a claim that “she ‘was deprived of her basic right to informed consent for her mental health treatment.'” Scholz v. United States, No. 16-CV-1052, 2019 U.S. Dist. LEXIS 90245, at *51 (E.D. Wis. May 30, 2019) (quoting (ECF No. 68 at 7).) In so ruling, I noted, “Scholz is not entitled to summary judgment on such a claim for many reasons, including, not insignificantly, the fact that no such claim is included in her complaint[.]” Because the claim was not included in her administrative claim, it was too late to add it. Id.

         Perhaps most significantly, I granted the United States' motion for summary judgment “with respect to Scholz's claims involving inappropriate treatment and outpatient medications from the Tomah VAMC.” Scholz v. United States, No. 16-CV-1052, 2019 U.S. Dist. LEXIS 90245, at *50 (E.D. Wis. May 30, 2019) (quoting ECF No. 58 at 1)). Although Scholz had retained her attorney long before the deadline for filing a lawsuit regarding this claim, Scholz failed to timely file this action. And in response to the United States' motion for summary judgment, although arguing that the action was timely under the doctrine of continuous negligent treatment, Scholz failed to present evidence to support this argument.

         I issued this decision on May 30, 2019. (ECF No. 116.) On June 5, 2019, I held a telephonic conference with the parties. The parties requested that I refer the case to another magistrate judge for mediation. (ECF No. 117.) I did so. (ECF No. 118.) At no point did plaintiff's counsel inform me that she would be calling my brother as a witness or ask that I revisit the recusal issue.

         On June 10, 2019, Scholz moved for reconsideration of my summary judgment decision. (ECF No. 119.) On June 14, 2019, I denied the motion, finding the arguments waived, undeveloped, or meritless. (ECF No. 120.) Again, never did plaintiff's ...


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