Love v. Medical College of Wisconsin et al

Filing 51

DECISION AND ORDER signed by Judge Lynn Adelman on 4/22/16 that the parties motions to seal/restrict (ECF Nos. 1, 5, 8, 23, 26, 28, 37, 40) are GRANTED in part and DENIED in part. The Clerk shall make all documents filed in this case, except for the complaint 2 and MCWs answer 19 , publicly available. Further ordering that within seven (7) days of this order, plaintiff shall publicly file his proposed redacted version of the complaint, including a publicly available copy of Exhibit A, MCW de fendants shall publicly file a redacted version of their answer and the parties shall publicly file the chain of correspondence they sent to my proposed order box. Further ordering that plaintiffs unopposed motion for leave to file a surreply 42 i s GRANTED. The Clerk shall file the proposed surreply. Further ordering that MCW defendants motion for judgment on the pleadings 21 is GRANTED in part and DENIED in part and that MCW defendants motion to strike allegations 21 is DENIED. Further ordering that FMLHs motion to dismiss 30 is GRANTED in part and DENIED in part. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
_____________________________________________________________________
ROBERT B. LOVE,
Plaintiff,
v.

Case No. 15-cv-0650

MEDICAL COLLEGE OF WISCONSIN et al.,
Defendants.
_____________________________________________________________________
DECISION AND ORDER
Plaintiff Robert Love, brings this suit alleging that defendants Medical College of
Wisconsin (“MCW”), Froedtert Memorial Lutheran Hospital (“Froedtert”), and several
physicians employed by MCW violated the False Claims Act (“FCA”) and various state tort
laws. Before me are the MCW defendants’ motion for judgment on the pleadings,
Froedtert’s motion to dismiss for failure to state a claim, and some miscellaneous motions.
I. Background
Plaintiff, a transplant surgeon and professor, alleges that beginning in 2012 he was
employed by MCW and performed surgeries at Froedtert, a hospital staffed by MCW
faculty. Plaintiff further alleges that he became increasingly concerned about the quality
of care provided by MCW and Froedtert and complained many times to MCW and
Froedtert management. Plaintiff further alleges that defendants retaliated against him for
complaining by placing him on a leave of absence, revoking his hospital privileges,
removing him from the call schedule, spreading negative and false information about him,
and providing prospective employers with negative and false information.
On August 26, 2014, MCW and plaintiff signed a separation agreement in which
plaintiff released MCW and its employees from all claims arising before the agreement.

MCW agreed not to disparage plaintiff, including to prospective employers. Plaintiff
ultimately found another job. I will discuss plaintiff’s allegations in more detail as I discuss
plaintiff’s specific claims.
II. Motions to Dismiss
First, I address MCW’s motion for judgment on the pleadings and Froedtert’s motion
to dismiss. I review both motions under the same standard. BBL, Inc. v. City of Angola, 809
F.3d 317, 325 (7th Cir. 2015). To survive, plaintiff must allege facts which give rise to a
claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). I
draw all inferences in plaintiff’s favor. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946
(7th Cir. 2013).
A. FCA Retaliation Claim
Plaintiff first alleges is that defendants MCW and Froedtert retaliated against him
in violation of the FCA. The FCA provides that “any employee, contractor or agent” may
obtain relief if he “is discharged, demoted, suspended, threatened, harassed, or in any
other manner discriminated against in the terms and conditions of employment because
of lawful acts” performed in an effort to stop a violation of the FCA. 31 U.S.C. § 3730(h)(1).
He alleges that he raised concerns with MCW and Froedtert about possible FCA violations,
including the provision of care below Medicare standards, fraudulent billing practices, and
violations of federal regulations. He further alleges that MCW and Froedtert took numerous
retaliatory actions against him including placing him on a leave of absence, removing him
from clinical duties, threatening to terminate him for cause, removing him from the call
schedule, reducing his salary, and revoking his hospital privileges. MCW and Froedtert

2

present separate arguments in support of dismissing plaintiff’s claim.
1. Liability Release
MCW presents an affirmative defense that plaintiff’s claim is barred by the release
contained in the separation agreement between MCW and plaintiff. The release provided:
In exchange for the benefits and payment to him described in this agreement, Dr.
Love hereby irrevocably and unconditionally releases, waives, and fully and forever
discharges MCW and its past and current agents, servants, officers, trustees,
insurers, attorneys, and employees and their respective successors and assigns
(the “Released Parties”) from and against any and all claims, liabilities, obligations,
covenants, rights, demands, attorney fees and/or costs and damages of any nature
whatsoever, whether known or unknown, anticipated or unanticipated, relating to
or arising out of any agreement, act, omission, occurrence, transaction or matter
up to and including the date of this Agreement, including without limitation, any and
all claims relating to or arising out of his employment by MCW or the termination
hereof.
Compl. Ex. A at 2 (ECF No. 2-1).
I agree with MCW that the above-quoted language released any FCA retaliation
claims against MCW and its employees arising before August 26, 2014. The language is
unambiguous; plaintiff waived “any and all claims . . . of any nature whatsoever . . . ”
against MCW and its employees. Id. See Town Bank v. City Real Estate Dev., LLC, 330
Wis. 2d 340, 356 (2010) (”If the contract is unambiguous, our attempt to determine the
parties’ intent ends with the four corners of the contract, without consideration of extrinsic
evidence.”). It is also significant that the parties excluded certain types of claims from the
release but not retaliation claims.
Plaintiff argues that the release did not foreclose claims for intentional or reckless
misconduct. I disagree. The provision not only includes claims “of any nature whatsoever,”
but specifically includes age discrimination claims which are based on intentional conduct.

3

Plaintiff’s argument that a release of claims for intentional or reckless conduct is
unenforceable based on public policy is also unpersuasive. Contracts which release a party
from liability for future intentional or reckless conduct are unenforceable because they
encourage such conduct. See Dobratz v. Thomson, 161 Wis. 2d 502, 514 (1991). The
release in the present case, however, does not release defendants from liability for future
acts but rather for past acts, and such releases are routinely upheld. See e.g. Dietrich v.
Trek Bicycle Corp., 297 F. Supp. 2d 1122, 1127 (W.D. Wis. 2003); Morris-Shaw v. Stora
Enso N.A., No. 04-C-704, 2005 WL 1957676 (W.D. Wis. 2005); see also Smith v.
Amedisys, Inc., 298 F.3d 434, 440–41 (5th Cir. 2002) (stating that “[a] general release of
Title VII claims does not ordinarily violate public policy”). Thus, plaintiff has waived any
FCA retaliation claim against MCW and its employees based on events prior to August 26,
2014.
However, plaintiff alleges that one of the retaliatory acts occurred after the
agreement was signed, on September 14, when his privileges at Zablocki Veterans’ Affairs
Medical Center were revoked. MCW argues that this claim fails because plaintiff has not
sufficiently pled that MCW was responsible for the revocation. I disagree; plaintiff alleges
that Zablocki is an affiliate of MCW, that it is “one of MCW’s major sites for medical and
surgical training,” and that “MCW provides services and operates graduate medical
programs at the Zablocki.” Compl. ¶ 2 (ECF No. 2). Plaintiff also alleges that Zablocki
revoked his privileges “at the behest” and “with the knowledge and approval” of MCW
employees. Id. ¶ 139. These allegations support an inference that MCW played a role in
the revocation decision, and plaintiff may proceed on his retaliation claim against MCW

4

based on this conduct.
2. Retaliation by Froedtert
Froedtert argues that plaintiff fails to allege essential elements of an FCA retaliation
claim against it. To state a claim, plaintiff must plead sufficient facts to support the
inference that Froedtert “discharged, demoted, suspended, threatened, harassed, or in any
other manner discriminated against [him] in the terms and conditions of employment
because of” FCA-protected activity. § 3730(h)(1). Most of the retaliatory conduct alleged
by plaintiff involves the acts of MCW or its employees. Plaintiff contends that Froedtert is
vicariously liable for these acts because it exercised control over them. As noted, however,
plaintiff released MCW’s employees of liability for pre- Aug 26, 2014 retaliation claims thus,
even assuming vicarious liability, Froedtert cannot be liable for a released claim. Schroeder
v. Pederson, 131 Wis. 2d 446, 450 n.1 (Ct. App. 1986) (“[T]he release of a servant
operates to release a master who is liable solely under the doctrine of respondeat
superior.”).1 Plaintiff’s allegation that Froedtert is liable for MCW’s actions also fails for
other reasons which I need not presently address.
As to the post-agreement incident involving the revocation of plaintiff’s privileges at
Zablocki, plaintiff makes no allegations which support the inference that Froedtert may be
held liable. Plaintiff does not allege an affiliation between Zablocki and Froedtert or that
any Froedtert employee was involved in the decision to revoke or encouraged it. Nor does
plaintiff allege that Froedtert controlled the MCW employees who were involved, let alone
that they exercised control over the employees at the time they allegedly influence the
1

Plaintiff does not name these employees, doctors Evans and Tweddell and
attorney Cohn, as individual defendants.
5

revocation decision. Thus, plaintiff may not proceed on a retaliation claim against Froedtert
based on the revocations of his privileges at Zablocki.
Plaintiff also alleges one direct act taken by Froedtert which he characterizes as
retaliatory, namely that in May 2014, Froedtert’s president, Cathy Buck, sent an email to
MCW and Froedtert employees stating that plaintiff was “on a leave of absence” and would
“no longer perform cardiac surgery here.” Compl. ¶ 116. This allegation, however, is
insufficient to plead an FCA retaliation claim against Froedtert because it did no more than
communicate accurate information. Thus, plaintiff fails to plead an FCA retaliation claim
against Froedtert.
B. State Law Tort Claims
Plaintiff brings numerous state law tort claims against MCW, Froedtert, and the
individual physician defendants, including three defamation claims, two tortious
interference with prospective contractual relations claims, a breach of contract claim, and
an intentional infliction of emotional distress claim. Again, MCW and Froedtert offer
separate arguments for dismissal. The parties agree that Wisconsin law governs these
claims.
1. Preemption
MCW argues that plaintiff’s defamation and intentional infliction of emotional
distress claims against it and its employees are pre-empted by the Wisconsin Worker’s
Compensation Act (“WCA”) which provides that “the right to recovery of compensation
under [the WCA] shall be the exclusive remedy against the employer, any other employee
of the same employer and the worker’s compensation insurance carrier.” Wis. Stat. §

6

102.03(2). For the WCA to apply: (1) the employee must sustain an “injury,” defined as
“harm caused by accident or disease,” Jenson v. Emp’rs Mut. Cas. Co., 154 Wis. 2d 313,
316 (Ct. App. 1990), and (2) at the time of the injury, the employee must be “performing
service growing out of and incidental to his or her employment.” § 102.03(1).
Wisconsin courts have concluded that defamation and intentional infliction of
emotional distress claims involve “injuries” as defined by the WCA and are pre-empted.
Jenson, 154 Wis. 2d 313 (intentional infliction of emotional distress claim); Becker v.
Automatic Garage Door Co., 156 Wis. 2d 409 (Ct. App. 1990) (defamation claim).
Specifically, the term “accident” in the WCA includes intentional acts and covers emotional
and mental injuries that are caused by more than day-to-day stress. Jenson, 154 Wis. 2d
at 317–18. Plaintiff argues that his claims are not pre-empted because, in addition to
mental injuries, he alleges economic damage in the form of lost earnings and lost future
earnings. “Wisconsin courts have consistently ruled that the WCA exclusive remedy
provision is meant to supplant actions in tort against employers.” Marino v. Arandell Corp.,
1 F. Supp. 2d 947, 953 (E.D. Wis. 1998). “[W]orkers’ compensation acts such as the WCA
were not designed to regulate or deter employer conduct, but to financially compensate
injured employees and, specifically, to redress impaired earning capacity.” Id. at 951. Thus,
plaintiff’s injury is the type covered by the WCA.
In order to establish preemption, MCW must also show that plaintiff sustained his
injury “in the course of employment.” Weiss v. City of Milwaukee, 208 Wis. 2d 95, 104–05
(1997). In assessing this issue, I look to the “time, place, and circumstances” under which
the injury occurred. Id.; see also Bostwick v. Watertown Unified Sch. Dist., No. 13-C-1036,

7

2013 WL 6267860, at *2 (E.D. Wis. Dec. 4, 2013).
On May 8, 2014, plaintiff was placed on a leave of absence, and other employees
were so informed. Compl. ¶¶ 115, 116. On May 20, 2014, plaintiff was informed that “there
was no longer a clinical role for him at MCW and Froedtert.” Id. ¶ 124. On May 26, 2014,
he was told that he would not be allowed to attend any future faculty meetings, and on May
27, 2014, he was eliminated from the call schedule. Id. ¶¶ 126, 127. I can plausibly infer
from these allegations that after May 2014, plaintiff was not “performing service growing
out of and incidental to his or her employment” after May 2014. See Bostwick, 2013 WL
6267860, at *3 (declining to dismiss because plaintiff “was on administrative leave for an
extended period of time . . . [making it] even difficult to draw the connection that the injuries
occurred at a point in time when [plaintiff] was performing services growing out of or
incidental to his employment”).
Plaintiff’s defamation claims are based on three incidents: an email sent by
defendant Warltier to a prospective employer allegedly containing false and negative
statements about plaintiff, a letter written by defendant Nicolosi allegedly containing
disparaging statements that was circulated to MCW and Froedtert staff by defendants
Kerschner and Papp, and statements made by defendant Lindenbaum to another
prospective employer. Warltier’s email and Lindenbaum’s statements occurred after May
2014, and thus claims arising out of those communications survive MCW’s motion to
dismiss. However, the Nicolosi letter was sent before May 2014, and Kerschner’s and
Papp’s alleged dissemination of it also occurred before then. Thus, plaintiff’s defamation
claims based on these occurrences must be dismissed. However, plaintiff also alleges that
“MCW and Froedtert employees have published allegations in the Nicolosi Letter, or the
8

Nicolosi Letter itself, to third parties . . . after August 26, 2014.” Compl. ¶¶ 151–52. Plaintiff
may proceed on his defamation claim against MCW based on this allegation. With regard
to plaintiff’s intentional infliction of emotional distress claim, plaintiff may only proceed on
his claim based on events occurring after May 2014.
2. Vicarious Liability
Plaintiff’s state law tort claims against Froedtert are premised on the theory that
Froedtert is vicariously liable for the actions of the individual physician defendants.
Froedtert argues that plaintiff fails to plausibly allege this. Vicarious liability also known as
respondeat superior, requires the existence of a master-servant relationship. Kerl v. Dennis
Rasmussen, Inc., 273 Wis. 2d 106, 112 (2004). “A servant is one employed to perform
service for another in his affairs and who, with respect to his physical conduct in the
performance of the service, is subject to the other’s control or right to control.” Heim v.
Hanke, 5 Wis. 2d 465, 468 (1958). Although the right to control is the dominant factor in
determining whether a master-servant relationship exists, I also consider other factors,
such as the place of work, the time of the employment, the method of payment, the nature
of the business or occupation, which party furnishes the instrumentalities or tools, the
intent of the parties to the contract, and the right of summary discharge of employees.
Estate of Hegarty v. Beauchaine, 249 Wis. 2d 142 (Ct. App. 2001).
I conclude that plaintiff pleads sufficient facts to plausibly allege that Froedtert is
vicariously liable for the acts of defendants Nicolosi, Kerschner, Papp, Warltier, and
Lindenbaum. Plaintiff alleges that all of the physician defendants are employed by MCW,
Compl. ¶¶ 4–8, but also that they work and teach at Froedtert. Id. ¶ 3 (“Froedtert is an adult

9

acute care hospital that serves as a primary teaching site for MCW . . . [and is] staffed by
MCW physician faculty.”). Plaintiff also alleges that Froedtert had in place various policies
governing physician behavior, Id. ¶¶ 42, 59, and that Froedtert management participated
in physician review procedures, Id. ¶ 68. Plaintiff also alleges that he complained about the
incidents giving rise to the tort claims to Froedtert’s senior management, suggesting that
such management could have responded to them. Id. ¶¶ 29, 33, 35, 46, 51, 55, 62. These
allegations support the inference that Froedtert exercised control over the physician
defendants at least while they were performing services at FMLH.2
Plaintiff also alleges that the events giving rise to the state law tort claims occurred
at Froedtert. This allegation supports an inference that Froedtert is both the place of
employment and that it provided the physician defendants with the instrumentalities and
tools to perform their work. These allegations, together with those supporting the inference
that Froedtert exercised control over the physician defendants, render Froedtert’s vicarious
liability plausible. That the physician defendants were allegedly employed by MCW does
not defeat plaintiff’s vicarious liability theory. See Kerl, 273 Wis. 2d at 121 (“[T]he test looks
beyond labels to factual indicia of control or right to control.”); Hegarty, 249 Wis. 2d at
183–84 (noting that a servant-master relationship can exist “between a special employer
to whom an employee is loaned”). Thus, to the extent that plaintiff can proceed with state

2

This distinguishes Froedtert’s vicarious liability as it relates to plaintiff’s FCA
retaliation claim from Froedtert’s vicarious liability as it relates to plaintiff’s tort claims. In
his retaliation claim, plaintiff has alleged no facts to support the inference that the MCW
employees involved were acting under Froedtert’s control when taking retaliatory action,
which was administrative in nature. Here, by contrast, plaintiff has alleged sufficient
facts to plausibly plead that Froedtert had control over the physician defendants at the
time they committed the alleged torts.
10

tort claims against MCW, he can also proceed against Froedtert.
3. Intentional Infliction of Emotional Distress
Both MCW and Froedtert argue that plaintiff fails to adequately plead his intentional
infliction of emotional distress claim. To plausibly allege this claim, plaintiff’s allegations
must support the inference that (1) defendants’ conduct was intended to cause emotional
harm, (2) defendants’ conduct was extreme and outrageous, (3) defendant’s conduct was
a cause-in-fact of plaintiff’s emotional harm, and (4) plaintiff suffered an extreme disabling
emotional response to the conduct. Rabideau v. City of Racine, 243 Wis. 2d 486, 501
(2001).
Defendants argue that plaintiff fails to plausibly allege that he suffered an extreme
disabling emotional response inasmuch as he found another job and is able to work.
However, defendants cite no authority for the proposition that the extreme disabling
emotional response element requires a plaintiff to allege that he cannot work. Further,
plaintiff alleges that he suffered emotional distress and mental pain and anguish because
defendants’ humiliated him and harmed his reputation. Compl. ¶¶118, 141, 162, 195, 204,
220, 228, 237. These allegations are sufficient at this stage of the case.
Froedtert also argues that plaintiff fails to allege any extreme or outrageous conduct
that it or its employees took against plaintiff. However, as discussed, plaintiff adequately
alleges that Froedtert is vicariously liable for the conduct of the individual defendants
directly involved in the alleged “protracted campaign to ruin [plaintiff’s] career and wellearned reputation.” Id. ¶ 251. And the allegations as to individual defendants’ conduct are
sufficient to plead extreme and outrageous conduct. Thus, plaintiff may proceed on his

11

intentional infliction of emotional distress claim against all defendants.
4. Tortious Interference with Prospective Contractual Relations
Plaintiff’s tortious interference claims allege that physician defendants sent false and
disparaging statements to two prospective employers, costing him a job. Froedtert argues
that plaintiff has not sufficiently alleged a prospective contract with a prospective employer,
St. Mary’s, to survive a motion to dismiss. Under Wisconsin law, a tortious interference
claim must be based on a “sufficiently certain, concrete and definite prospective
relationship.” Shank v. William R. Hague, Inc., 192 F.3d 675, 689 (7th Cir. 1999). Plaintiff
has alleged that he communicated extensively with St. Mary’s about prospective
employment, that he interviewed with two surgeons at St. Mary’s with whom he already had
longstanding professional relationships, that St. Mary’s did not hire him because of the
Warltier email, and that one St. Mary’s surgeon told plaintiff that the email “knocked [him]
out of the job.” Compl. ¶¶ 154–61. These factual allegations make it plausible that plaintiff’s
prospective contractual relationship with St. Mary’s was sufficiently concrete and that the
only reason St. Mary’s did not hire plaintiff was because of the Warltier email. Plaintiff may
proceed with his tortious interference claims.
II. Motions to Seal
The parties all request that the complaint and all subsequent filings in the case be
maintained under seal. However, in this Circuit, there is a strong presumption that
documents relied upon by the court be publicly available. Cty. Materials Corp. V. Allan
Block Corp., 502 F.3d 730, 740 (7th Cir. 2007). Parties seeking an exception to this rule
must show good cause, which generally only exists when the documents contain trade

12

secrets or other information that should be held in confidence. Id.
Here, the parties have not shown good cause to maintain the vast majority of the
documents under seal. The parties argue that the complaint and subsequently filed
documents contain confidential and sensitive medical information. Patient medical records
are generally maintained under seal; however, here, no medical records have been filed.
The complaint includes general descriptions of medical procedures and refers to patients
by their initials rather than including personally identifiable information. Thus, the
information should be publicly available.3 See Sutterfield v. City of Milwaukee, 870 F. Supp.
2d 633, 645 (E.D. Wis. 2012) (sealing a medical record containing sensitive medical
information but refusing to seal the parties’ briefs generally discussing the record).4
The parties also argue that the complaint references and contains as an exhibit a
confidential settlement agreement and that it should thus be sealed. However, the fact that
the parties agreed to keep the settlement agreement confidential is not good cause to keep

3

Should the parties file actual medical records during summary judgment or at
trial, I will address then the appropriate way to protect sensitive medical information.
4

Defendants cite the Health Insurance Portability and Accountability Act
(“HIPPA”) to support their argument that the complaint should be sealed or, in the
alternative, that allegations regarding patient treatment should be redacted. See, e.g.,
45 C.F.R. § 45 C.F.R. 164.514(b)(2)(i) (requiring a covered entity to remove identifiers
from individually identifiable health information, such as name, address, social security
numbers, account numbers, and images). HIPPA, however, does not govern the
standard for whether documents filed in federal court should be publicly available;
rather, it governs covered entities’ responsibilities in handling sensitive medical
information. Further, it is doubtful that the general allegations in the complaint constitute
individually identifiable health information under HIPPA because (a) the allegations are
not information “created or received by a health care provider,” and (b) the complaint
does not identify individual patients or contain enough specific information to give rise
to “a reasonable basis to believe the information ca be used to identify the individual.”
45 C.F.R. § 160.103 (defining “individually identifiable health information”).
13

it sealed, especially in an action such as this where one of the claims is that a party
breached the agreement. See U.S. v. Sanford-Brown, Ltd., 788 F.3d 696, 713 (7th Cir.
2015) (“[W]e [will] not seal documents . . . simply because the parties ha[ve] agreed to do
so among themselves because that practice deprives the public of material information
about the judicial process.”).
The parties also argue that the allegations in the complaint will negatively affect the
professional reputations of several doctors, including non-party doctors who are unable to
defend themselves. This is not good cause. Almost every lawsuit involves allegations that
will negatively affect a party’s reputation. Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544,
547 (7th Cir. 2002) (“[M]any litigants would like to keep [certain negative information]
confidential, but when these things are vital to claims made in litigation they must be
revealed.”).
Finally, the parties argue that Wis. Stat. § 146.38, which prohibits a person who
participates in the review or evaluation of health care services to disclose information
acquired in connection with such review or evaluation, requires that the complaint be
sealed because it reveals details about MCW and Froedtert’s evaluation procedures.
However, § 146.38 merely creates civil liability for a person who improperly discloses such
information; it does not require that this case be maintained under seal simply because the
complaint discusses the procedures. The information regarding defendants’ evaluation
programs is vital to plaintiff’s claims and thus should be public. For these reasons, I will
deny the motions to seal.
Finally, I address the parties’ recent correspondence regarding plaintiff’s proposed
redacted complaint. On April 14, the parties unsuccessfully participated in mediation, and
14

afterwards, plaintiff submitted a letter to the court, along with a proposed redacted
complaint, which only redacts the initials of various patients. Plaintiffs proposed this
redaction in response to defendants’ arguments regarding HIPPA and the disclosure of
individually identifiable health information. The parties then proceeded to submit several
letters back and forth arguing about whether the proposed redactions were sufficient to
address defendants’ HIPPA concerns. However, the parties did not file these documents
on the docket, and they did not send paper copies to my chambers. Instead, they emailed
this chain of correspondence to my proposed orders email box based on the “confidential”
nature of the information.
Because the parties agree that, at least, the patients’ initials should be redacted
from the complaint, and because such information in no way influenced or was relevant to
my decision on the parties’ motion to dismiss and motion for judgment on the pleadings,
I will allow the unredacted complaint to remain under seal and order plaintiff to publicly file
the redacted complaint. Additionally, because MCW defendants have filed an answer
which also references patients’ initials, I will allow the unredacted answer to remain under
seal and order MCW to publicly file an answer redacting only the patients’ initials. I will also
order the parties to publicly file the chain of correspondence the parties have sent to my
proposed order box over the past week. As is noted on the Eastern District’s website, my
proposed order email address is for proposed orders only. It is not checked with any
regularity and should never be used to send me correspondence. Further, the various
letters the parties submitted contained legal argument, and any factual or legal argument
a party wishes for me to consider must be filed on the docket to preserve transparency.
Aside from the complaint and MCW’s answer, I will order that all other documents filed in
15

this case thus far be unsealed and made publicly available.
III. MCW’s Motion to Strike
MCW also asks that if I dismiss plaintiff’s FCA retaliation claim, I strike portions of
plaintiff’s complaint which only support that claim and which are prejudicial to the
reputations of numerous MCW doctors, some of whom are non-parties. Because plaintiff
may proceed on at least part of his retaliation claim and because the allegations are
arguably still relevant to plaintiff’s state law claims, I will deny this request.
IV. Conclusion
THEREFORE, IT IS ORDERED that the parties’ motions to seal/restrict (ECF Nos.
1, 5, 8, 23, 26, 28, 37, 40) are GRANTED in part and DENIED in part. The Clerk shall
make all documents filed in this case, except for the complaint (ECF No. 2) and MCW’s
answer (ECF No. 19), publicly available.
IT IS FURTHER ORDERED that within seven (7) days of this order, plaintiff shall
publicly file his proposed redacted version of the complaint, including a publicly available
copy of Exhibit A.
IT IS FURTHER ORDERED that within seven (7) days of this order, MCW
defendants shall publicly file a redacted version of their answer.
IT IS FURTHER ORDERED that within seven (7) days of this order, the parties shall
publicly file the chain of correspondence they sent to my proposed order box.
IT IS FURTHER ORDERED that plaintiff’s unopposed motion for leave to file a
surreply (ECF No. 42) is GRANTED. The Clerk shall file the proposed surreply.
IT IS FURTHER ORDERED that MCW defendants’ motion for judgment on the

16

pleadings (ECF No. 21) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that MCW defendants’ motion to strike allegations (ECF
No. 21) is DENIED.
IT IS FURTHER ORDERED that FMLH’s motion to dismiss (ECF No. 30) is
GRANTED in part and DENIED in part.
Dated at Milwaukee, Wisconsin, this 22nd day of April, 2016.
s/ Lynn Adelman
_____________________
LYNN ADELMAN
District Judge

17