United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. Magistrate Judge.
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.)
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.)
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).
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.
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.
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.
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.
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