Leiser, Jeffrey v. Hannula, Joan et al

Filing 146

ORDER that this case is REOPENED. Plaintiff Jeffrey Leiser's motion for appointment of expert (dkt. 144 ) is DENIED, without prejudice. Defendants' motion for reconsideration (dkt. 130 ) is DENIED. Plaintiff's motion in opposit ion to defendants' motion for reconsideration (dkt. 132 ) is DENIED as unnecessary. This matter is set for a telephonic scheduling conference on March 25, 2020, at 2:30 p.m. Defense counsel is responsible for initiating the call to the court at [phone]. Signed by Magistrate Judge Stephen L. Crocker on 2/28/2020. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JEFFREY D. LEISER,

v.

Plaintiff,

OPINION & ORDER
15-cv-328-slc

DR. JOAN HANNULA, et al.,
Defendants.

Pro se plaintiff Jeffrey Leiser is proceeding in this civil action against individuals that
were involved in his medical care while he was housed at the Stanley Correctional
Institution (Stanley). On September 14, 2017, I issued an opinion and order granting in
part and denying in part defendants= motion for summary judgment and staying this matter
while the court attempted to recruit counsel for Leiser.

(Dkt. 129.)

Here are the claims

remaining for trial:
$ Eighth Amendment deliberate indifference and Wisconsin medical malpractice/
negligence claims against defendant Dr. Joan Hannula, related to her: (1) June
14, 2011 failure to renew Leiser=s prescriptions for cyclobenzaprine, Vicodin and
baclofen (dkt. 129 at 32); and (2) June 24, 2014, decision to switch his
depression medication (id. at 34-35).
$ Wisconsin negligence claim against defendant Nurse Practitioner Judy Bentley,
related to her September 30, 2013, decision to cancel her previous request that
Leiser undergo an MRI because Leiser reported improvement. (Id. at 36-37.)
$ Deliberate indifference and negligence claims against Nurse Patty Hazuga,
related to a July 19, 2014, incident when she allegedly sent him away from the
HSU even though he complained of chest pains. (Id. at 38-39.)

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$ A deliberate indifference claim against defendant Nurse Tracy Brunner, related
to a July 23, 2014, incident when Leiser reported withdrawal symptoms (back
pain and sweating), and Brunner did not see him that day.
$ A deliberate indifference claim against defendant Nurse Tricia Thacker, related
to her April 29, 2013, delay in allowing Leiser to go the HSU for severe testicle
pain.
A month after issuing that opinion and order, defendants filed a motion for
reconsideration (dkt. 130), and Leiser responded with a motion asking that I deny
defendants’ motion (dkt. 132). For the next two years, the court unsuccessfully attempted
to recruit counsel for Leiser.

On July 17, 2019, Leiser requested a status update, which I

addressed in a July 26, 2019, telephonic scheduling conference in another of Leiser’s
lawsuits before the court. I discussed this court’s unsuccessful efforts to recruit counsel for
him, explaining that Leiser would need to decide whether to try this case pro se or dismiss
his remaining claims without prejudice.

On July 26, 2019, I issued a text only order

memorializing that conversation, and informing Leiser that if by the end of December 2019
he had not notified the court of his decision, the court would dismiss his remaining claims
without prejudice.

(Dkt. 143.)

In December 4, 2019, Leiser filed a motion for

appointment of an expert witness pursuant to Federal Rule of Evidence 706.

Construing

this motion as Leiser=s notification that he intends to proceed pro se, I will reopen this
matter. Having reviewed the claims remaining, and the parties’ motions, I am making the
following rulings:

(1) I will dismiss Leiser’s state-law claim against defendant Bentley

without prejudice; (2) I will deny defendants’ motion for reconsideration; and (3) I will
deny without prejudice Leiser=s motion for appointment of an expert.

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Dismissal of Defendant Bentley
Since I granted summary judgment in Bentley=s favor on Leiser=s deliberate
indifference claim against her, I will decline to exercise jurisdiction over Leiser=s Wisconsin
negligence claim against her and dismiss that claim without prejudice. The general rule is
that federal courts should relinquish jurisdiction over state law claims if all federal claims
are resolved before trial. 28 U.S.C. § 1367(c)(3); Burritt v. Ditlefson, 807 F.3d 239, 252
(7th Cir. 2015); see also Groce v. Eli Lilly & Co., 193 F.3d 496, 499-501 (7th Cir. 1999) (A[I]t
is well established law of this circuit that the usual practice is to dismiss without prejudice
state supplemental claims whenever all federal claims have been dismissed prior to trial.@).
An exception to this general rule arises in circumstances in which a state law claim might
be time barred. See Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007). That
exception does not apply here.
The statute of limitations for Leiser=s Wisconsin negligence claim against Bentley
is three years. See Wis. Stat. § 893.55 (medical malpractice), § 893.54 (injury to the
person). The earliest date that Leiser=s claim against Bentley accrued would be the day
she cancelled the MRI, September 30, 2013. Leiser filed this lawsuit over two years later,
on May 29, 2015, which would toll the running of that limitations period from that point
until the “final disposition” of his claim in this court. Wis. Stat. § 893.15; see also Artis v.
District of Columbia, 138 S. Ct. 594, 598, 199 L.E.2d 473 (2018) (bringing state law claims
in federal court stops the clock on the statute of limitations for those claims). Accordingly,
since Leiser still has time to pursue this claim in state court, I will dismiss it without

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prejudice.

Motion for Reconsideration (dkt. 130)
Defendants seek reconsideration of the summary judgment opinion denying their
request for judgment on Leiser=s Wisconsin negligence claims against defendants Bentley,
Hannula and Hazuga.

In support, defendants argue that in Wisconsin, the exclusive

remedy for medical malpractice claims is Wis. Stat. Ch. 655, and thus Leiser cannot
proceed against them on a theory of state law negligence. Defendants also argue that
Leiser cannot proceed against Hazuga, a nurse, on any medical malpractice claims because
Wisconsin law does not recognize medical malpractice claims against nurses.1
Defendants’ arguments are drawn from a decision issued in a 2017 case in this
district court, Lawrence Northern v. Koreen Frisk, No. 13-cv-367-jdp, dkt. 107 (W.D. Wis.
June 14, 2017). Judge Peterson granted a state-employed nurse=s motion to dismiss a
medical malpractice claim because she was not a “health care provider” subject to suit
under Wis. Stat. Ch. 655. Id. However, that decision was limited to the arguments the
parties raised in defendant=s motion to dismiss, and Judge Peterson has since elaborated
on the availability of common law negligence claims against state-employed nurses in
greater detail, finding that Wisconsin=s medical malpractice statute generally does not
apply to state-employees, see Wis. Stat. ' 655.003, and Wisconsin law supports a common

Defendants also raise a similar argument related to Bentley, which I need not resolve since I’m
dismissing this claim without prejudice.

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law negligence claim against state-employed nurses.

Smith v. Hentz, No. 15-cv-633-jdp,

2018 WL 1400954, at *4 (W.D. Wis. Mar. 19, 2018) (concluding that state-employed
nurses may not be subject to Wis. Stat. Ch. 655, but may be sued on a theory of common
law negligence). Judge Conley also has taken this approach, Carter v. Griggs, No. 16-cv252-wmc, 2018 WL 1902885, at *7 (W.D. Wis. Apr. 20, 2018) (accepting that common
law negligence claims against state-employed nurses appears cognizable), as have multiple
judges in the Eastern District of Wisconsin, Killiam v. Nicholson, No. 17-c-895, 2018 WL
1902587, at *3 (E.D. Wis. Apr. 20, 2018) (same); Ravenwood-Alexander v. Beahm, No. 17cv-7-pp, 2018 WL 4188472, at *9 (E.D. Wis. Aug. 31, 2018) (same).
Hazuga and Brunner were state-employed nurses during the relevant time period,
and defendants have not submitted any supplemental authority suggesting that these more
recent decisions are incorrect or distinguishable. I agree with the more recent analysis of
the cognizability of common law negligence claims against state-employed nurse
practitioners and nurses.

Additionally, while defendants seek reconsideration with

respect to the common law negligence claim against Hannula, I will not dismiss this claim.
Hannula, like nurses Hazuga and Brunner, was employed by the State of Wisconsin during
the relevant time period, so it would appear that Wis. Stat. Ch. 655 does not apply to
Leiser’s claims against her, see Wis. Stat. ' 655.003, meaning that a common law negligence
claim against Hannula is available as well. Accordingly, I am denying this motion, and I
will deny Leiser=s related motion as unnecessary.

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Motion for an Expert
Leiser asks that I appoint a neutral expert in this case pursuant to Federal Rule of
Evidence 706, which allows a court to appoint a neutral expert when doing so is necessary
to help the court or the jury “interpret complex information.” DeJesus v. Godinez, 720 F.
App’x 766, 772 (7th Cir. 2017). I am denying this motion without prejudice.
As a threshold matter, I am not convinced that Leiser appreciates what recruiting
an expert at this point entails. Leiser asks that the court charge the cost of recruiting a
neutral expert to the defendants, but that option is not available.

There are no federal

funds available for experts in civil cases, so Rule 706(c) allows the court to apportion the
costs between the parties.

See Goodvine v. Ankarlo, No. 12-cv-134-wmc, 2013 WL

1192397, at *2 (W.D. Wis. Mar. 22, 2013) (requiring pro se prisoner to pay a portion of
the costs based on the amount in his trust fund account). Instead, if the court were to
appoint a neutral expert, it would tax Leiser a certain percentage of the cost of an expert
based on the amount of money Leiser has in his prison trust fund account.

I do not know

Leiser=s current financial situation, but given that he is proceedings in forma pauperis in his
other lawsuit currently before me, I infer that he is indigent and may not want to devote
his limited resources to paying for a court-appointed expert.
Even assuming Leiser might be willing to pay his share of the cost of a neutral
expert, it is very difficult to find expert witnesses willing and able to provide assistance.
Because I cannot predict how long it will take to recruit an expert who is willing to provide
a report and make herself or himself available for testimony at trial, we will not even be

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able to set this matter for a trial schedule. Given that this case has been stayed for over
two years, and Leiser now seems interested in getting this case on track, I don’t anticipate
that he actually wants to keep waiting for this case to go to trial.
Even assuming Leiser is willing to pay his share and wait longer, I still am not
persuaded that a court-recruited expert is necessary. The court appoints expert witnesses
only in circumstances in which the court needs an expert to help resolve disputed issues.
Here, the majority of the disputed issues are factual.

In particular, Leiser claims that

Hazuga, Brunner, and Thacker either refused to provide him care, or delayed providing
him care.

Leiser’s proof of these claims will hinge on evidence about what happened

during his interactions with these individuals and how their alleged failure to act caused
him to suffer needlessly or worsened his conditions.
More specifically, to prove his deliberate indifference claims against them, Leiser
will need to submit evidence that their actions constituted “such a substantial departure
from accepted professional judgment, practice, or standards, as to demonstrate that the
person responsible actually did not base the decision on ... [accepted professional]
judgment.” McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (citation and internal
quotation mark omitted). As for his Wisconsin negligence claims against Hazuga and
Brunner, he will have to submit evidence that they breached their duty of care, which
caused him injury. Wisconsin law does not require expert testimony “where the matters
in issue fall within the area of common knowledge and lay comprehension.”

Olfe v.

Gordon, 93 Wis.2d 173, 286 N.W.2d 573, 576 (1980); Gil v. Reed, 381 F.3d 649, 659 (7th

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Cir. 2004) (“In the medical malpractice setting, Wisconsin requires expert testimony to
establish medical negligence except in situations where the errors were of such a nature
that a layperson could conclude from common experience that such mistakes do not
happen if the physician had exercised proper skill and care.”) (citing Christianson v. Downs,
90 Wis.2d 332, 279 N.W.2d 918, 921 (1979)).
Lay people not trained in medical care still would understand that a complete
failure to provide medical care to a prisoner who reported symptoms is problematic.
Therefore, I am not convinced that Leiser needs expert testimony to prove his claims.
Instead, Leiser should be able to submit his own testimony about his symptoms, any
medical records memorializing the events of those days, and he may be able to crossexamine Hazuga, Brunner, and Thacker about why they refused to treat him or delayed
his care.
As for Dr. Hannula, Leiser is proceeding to trial against with respect to just two
treatment decisions: her June 14, 2011, failure to renew Leiser=s prescriptions for
cyclobenzaprine, Vicodin and baclofen, and her June 24, 2014, decision to change his
depression medication, stopping his citalopram and starting him on duloxetine, without
weaning him from citalopram. While Leiser will be able to submit his own testimony
related to the adverse effects of these decisions, these two decisions arguably are more
complicated because evaluating Dr. Hannula=s decisions may require some understanding
about the potential for withdrawal symptoms and side-effects of certain medications.
This type of information isn’t necessarily obvious to lay jurors. Still, I’m not persuaded

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that the court needs to appoint a neutral expert to opine about Dr. Hannula=s decisions
because Leiser has other options available to him to offer expert medical testimony.
Leiser can seek to introduce such evidence through the doctors who treated him
subsequently at other DOC facilities, or he may seek to subpoena other health care
providers who were working at Stanley during the relevant time period. For instance,
Bentley is a nurse practitioner and it appears she could testify about the standard practices
related to terminating medications and opine about Dr. Hannula=s 2011 prescription
decision.

Additionally, Leiser is free to call Dr. Hannula adversely and elicit such

testimony from her, and he may even be able to confront her with statements from learned
treatises recognized in the field related the adverse impact of terminating baclofen without
titration, and abruptly changing his depression medication. See Fed. R. Evid. 803(18).
Should Leiser take this approach, the court would make reasonable efforts to help him
serve subpoenas and, possibly, provide him assistance in obtaining a relevant medical
treatise.

I expect defense counsel would make similar efforts and enter into reasonable

stipulations with respect to admitting evidence.

While Leiser may not consider these

potential alternatives ideal, neither is it ideal to appoint a neutral expert: there is no
guarantee Leiser would obtain favorable answers from any expert the court appointed.
For all of these reasons, I’m denying Leiser=s request to recruit an expert at this
point, subject to renewal should the alternative options outlined above prove unworkable.
Therefore, I will set this matter for a telephonic scheduling conference.

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ORDER
IT IS ORDERED that:
1.

This case is REOPENED.

2.

Plaintiff Jeffrey Leiser=s motion for appointment of expert (dkt. 144) is

DENIED, without prejudice.
3. Defendants= motion for reconsideration (dkt. 130) is DENIED.
4. Plaintiff=s motion in opposition to defendants= motion for reconsideration (dkt.
132) is DENIED as unnecessary.
5. This matter is set for a telephonic scheduling conference on March 25, 2020,
at 2:30 p.m.

Defense counsel is responsible for initiating the call to the court at

[phone].

Entered this 28th day of February, 2020.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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