Smith-Williams, Consuela et al v. The United States of America

Filing 28

ORDER denying 8 Motion to Dismiss; denying 26 Motion to Stay Class Certification Briefing. Each of the three deadlines related to plaintiffs' class certification motion is extended one week. Motion to Certify Class under Rule 23 due 10/26/2018. Response due 11/23/2018. Reply due 12/14/2018. Signed by District Judge William M. Conley on 9/25/2018. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CONSUELA SMITH-WILLIAMS, FRED
RIVERS, RICHARD MURPHY, ROBERT
RISTOW, ROGER SUHR, and SALVADOR
FUENTES, on behalf of themselves individual
and others similarly situated,

v.

Plaintiffs,

OPINION AND ORDER
17-cv-823-wmc

UNITED STATES OF AMERICA,
Defendant.

This proposed class action is brought against the United States under the Federal
Tort Claims Act, 28 U.S.C. § 1346(b)(1) (“FTCA”). The named plaintiffs seek to represent
a class of individuals that was notified of lapses in infection control procedures after
receiving dental treatment at the Tomah VA Medical Center. The United States now
moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. #8.) For the
reasons explained below, that motion to dismiss will be denied.

BACKGROUND 1
As veterans of the United States military, plaintiffs were all treated by Dr. Tomas
Schiller at Tomah VA Medical Center’s Dental Clinic between October 5, 2015, and
October 21, 2016. Dr. Schiller allegedly: (1) used unsterile dental burs; (2) re-used single
use dental burs on multiple patients; (3) sprayed an inappropriate disinfectant on unsterile

For purposes of this motion, the court accepts as true all well-pleaded facts alleged in plaintiffs’
complaint and draws all reasonable inferences from those facts in plaintiffs’ favor.

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dental burs between procedures; (4) did not follow basic infection control procedures such
as hand washing; and (5) did not wear personal protective equipment. 2 This conduct
violated infection control and prevention standards established by the American Dental
Association, Occupational Safety and Health Administration, Center for Disease Control
and Prevention, and Department of Veterans Affairs.
As early as December 2015, a number of the employees at Tomah VA were allegedly
aware of Dr. Schiller’s conduct, but no action was taken until after October 20, 2016, when
managers confronted Schiller about his practices following a report by a substitute dental
hygienist to the acting chief of dental services. At that time, Schiller admitted to re-using
unsterile dental burs, but claimed that he believed it was a common practice.
After completing a risk assessment, the Tomah VA sent a notification letter to
plaintiffs, which stated:
Our records indicate that between October 2015 and October
21, 2016 you were seen as a patient in the Tomah VA Medical
Center’s Dental Clinic for a dental procedure. This letter is to
inform you that established infection control procedures were
not being followed by the dentist that treated you. While we
believe your risk of infection is low, we recommend you come
in to be tested. We want to emphasize that receiving this letter
does not mean that you were infected but we are taking extra
steps to be certain. The laboratory tests we are recommending
you be tested for include the Hepatitis B virus, Hepatitis C
virus, and the Human Immunodeficiency Virus (HIV).
(Nov. 29, 2016 Letter, Ex. C (dkt. #1-6) 2.) After undergoing blood testing for Hepatitis
B, Hepatitis C, and HIV, the potential class members waited approximately two weeks for

A dental bur is a motorized handheld device to cut or abrade tooth structure, bone, restorative
materials, and other dental material. (Compl. (dkt. #1) ¶ 9, n.1.)
2

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their results. No one was infected. Those who received dental care in the previous six
months had to wait another six months for more blood testing, as it takes that long for
some infections to become detectable. No one from this group was infected either.
Nevertheless, the potential class members claimed to have suffered severe emotional
distress between their receipt of the notification letter and their blood test results, as “they
were forced to consider that they may have been infected with deadly viruses, may die as
a result of having been infected, and/or may have unknowingly infected their loved ones
with deadly viruses.” (Compl. (dkt. #1) ¶¶ 25-26.)

PROPOSED CLASSES
Plaintiffs propose a class under Fed. R. Civ. P. 23 to encompass:
All Tomah VA Medical Center patients who received dental
care between October 2015 and October 2016, received a
letter from the Tomah VA Medical Center informing them of
their potential exposure to Hepatitis B, Hepatitis C, and HIV
and subsequently tested negative for newly acquired active
viral infections.
(Compl. (dkt. #1) ¶ 27.) Plaintiffs also propose a sub-class of patients who received dental
care during the six-month period preceding the mailing of the notification letter, as they
were made to wait an additional six months for conclusive test results:
All Tomah VA Medical Center patients who received dental
care between October 2015 and October 2016, received a
letter from the Tomah VA Medical Center informing them of
their potential exposure to Hepatitis B, Hepatitis C, and HIV,
subsequently tested negative for newly acquired active viral
infections, and were forced to wait an additional six months
for further blood testing to confirm that they were not infected
with Hepatitis B, Hepatitis C, and HIV.
(Id. at ¶ 28.)

Plaintiffs exclude defendant’s officers, directors and members of their

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immediate families from the class. (Id. at ¶ 29.)

OPINION
Plaintiffs assert claims for (1) negligent infliction of emotional distress and (2)
negligent training, supervision and retention.

Defendant argues the pleadings are

insufficient to support a finding of proximate causation or severe emotional distress on
either claim. Alternatively, defendant argues that all unnamed plaintiffs failed to exhaust
their administrative remedies as required by the Federal Tort Claims Act. The court
addresses each of these arguments below.

I. Sufficiency of Negligence Claims
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570
(2007)); see also Firestone Fin. Corp. v. Myer, 796 F.3d 822, 825 (7th Cir. 2015) (“A motion
to dismiss pursuant to Rule 12(b)(6) challenges the viability of a complaint by arguing that
it fails to state a claim upon which relief may be granted.”) (citation and brackets omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft, 556 U.S. at 678. In doing so, the court must “accept as true all of the
well-pleaded facts in the complaint and draw all reasonable inferences in favor of the
plaintiff.” Kubiak v. City of Chi., 810 F.3d 476, 480-81 (7th Cir. 2016). The court may
also consider “documents that are attached to the complaint, documents that are central

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to the complaint and are referred to in it, and information that is properly subject to
judicial notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).

A. Proximate Causation
As to whether plaintiffs have adequately pleaded “proximate cause,” defendant
argues that the complaint fails to allege facts sufficient to find actual exposure to a
contaminated source, such as actual exposure to dental burs or other equipment infected
with a virus, to recover under Wisconsin law. In support, defendant principally relies on
Babich v. Waukesha Memorial Hospital, Inc., 205 Wis. 2d 698, 556 N.W.2d 144 (Ct. App.
1996), which considered an emotional distress claim based on a hospital patient’s alleged
fear of contracting AIDS after accidental contact with a hypodermic needle left in her
bedsheets, which punctured her skin but did not cause infection.

In that case, the

Wisconsin Court of Appeals dismissed plaintiff’s claim as insufficient for lack of proof that
the needle had contact with a “contaminated source” thus creating a risk of infection. Id.
at 706, 556 N.W.2d at 147.
However, Babich is not so readily applied to the facts alleged here. Specifically,
while defendant emphasizes language in Babich stating that the contaminated source rule
is “useful” in determining which claims are permissible “in a variety of contexts,” the
Wisconsin Court of Appeals also noted its application was explicitly limited to the
“needlestick” context. Babich, 205 Wis. 2d at 708-09, 556 N.W.2d at 147-48. Indeed,
the court expressly adopted the contaminated source rule based on a contextual application
of the public policy factors, established by the Wisconsin Supreme Court in Bowen v.
Lumbermens Mutual Casualty Company, 183 Wis. 2d 627, 517 N.W.2d 432 (1994), which

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arguably narrows the required proof of proximate causation in emotional distress cases. In
Dyer v. Blackhawk Leather LLC, 2008 WI App 128, 313 Wis. 2d 803, 758 N.W.2d 167, the
Court of Appeals of Wisconsin emphasized the limits on the application of the
“contaminated source rule” when later considering the argument that Babich similarly
barred an emotional distress claim based on polluted groundwater. Id. at ¶ 26. (“We note
that the analysis in Babich, by its own terms, is specific to needlesticks and HIV. . . . Simply
identifying an object in any given case and labeling it a ‘contaminated source’ ignores [the
Bowen] public-policy factors.”); see Alsteen v. Wauleco, Inc., 2011 WI App 105, ¶ 17, 335
Wis. 2d 473, 802 N.W.2d 212 (“The [Babich] court did not suggest that the contaminated
source rule could apply in non-needle stick cases.”). Defendant is correct to argue that the
present facts are closer to the “needlestick” scenario than to a mass exposure to pollution
scenario but, given the mass exposure element here, the court cannot apply Babich without
analysis.
Accordingly, as in Babich and Dyer, this court must determine under Wisconsin law
whether an application of the contaminated source rule precludes a finding of causation
under the public policy factors in Bowen:
(1) whether the injury is too remote from the negligence; (2)
whether the injury is wholly out of proportion to the
culpability of the negligent tortfeasor; (3) whether in retrospect
it appears too extraordinary that the negligence should have
brought about the harm; (4) whether allowance of recovery
would place an unreasonable burden on the negligent
tortfeasor; (5) whether allowance of recovery would be too
likely to open the way to fraudulent claims; or (6) whether
allowance of recovery would enter a field that has no sensible
or just stopping point.
Bowen, 183 Wis. 2d at 655, 517 N.W.2d at 444-45. Each of these factors were meant to

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ensure the authenticity of emotional distress claims and the fairness of the financial burden
placed on defendants, while abandoning the outmoded requirement that plaintiffs
demonstrate a physical manifestation of their emotional distress.

Id. at 654-55, 517

N.W.2d at 443.
In particular, the Babich court examined: (1) whether the needlestick injury was
proportionate to culpability; (2) whether imposing liability would unreasonably burden
future defendants; and (3) whether imposing liability would permit a reasonable stopping
point. Babich, 205 Wis. 2d at 707-08, 556 N.W.2d at 147-48. These three factors are
similarly well-suited to analyzing whether the contaminated source rule should apply to
the unsanitary dental practices alleged here. While this court is unable to conclude that
the contaminated source rule applies in the context of this case, at least at the pleading
stage, a comparison with the Babich court’s reasoning is instructive.
In Babich, the Wisconsin Court of Appeals found that its injury was not
proportionate to culpability because “even if [the hospital] was ‘careless’ in its handling of
[used] needles, it was not recklessly disregarding its patients’ safety because such needles
do not pose a significant health risk.” Babich, 205 Wis. 2d at 707, 556 N.W.2d at 147
(citing a California state court case that estimated the probability to be less than one
percent). In contrast, there is no evidence before this court as to the probabilistic risk of
infection caused by Dr. Schiller’s alleged practices. Certainly, an unsanitary dental bur
used on multiple patients may create a more significant risk of infection than a stray needle,
which only comes into contact with one patient after its first use. This question requires
more detail about the nature of Dr. Schiller’s practices and likely also expert testimony

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about their objective medical risk. While the government suggests the risk was low because
no one has become infected to date, such reasoning does not justify dismissal in the absence
of any evidentiary record.
The Babich court also reasoned that because the risk of needlestick infection was
low, hospitals should not be compelled to incur needless and costly measures to reduce
their risk of future legal liability. Babich, 205 Wis. 2d at 707-08, 556 N.W.2d at 147-48.
The court was similarly “concerned that health care providers would take the otherwise
unnecessary step of segregating HIV/AIDS patients or possibly refusing to treat patients in
their efforts to avoid legal liability.” Id. at 708. In contrast, here, defendant has not
established that the actual risk of infection created by Dr. Schiller’s practices was low and,
as importantly, compliance with basic professional requirements set by organizations such
as the American Dental Association is not needless or too costly. Indeed, compliance with
the Department of Veterans Affairs’ own guidelines may well have avoided this incident
altogether. Nor would there appear to be any comparable risk of patients being turned
away.
Finally, the Babich court reasoned that imposing liability “would correspondingly
expose the courts to more ‘fear of AIDS’ or ‘AIDS phobia’ claims” without a reasonable
stopping point. Babich, 205 Wis. 2d at 708, 556 N.W.3d at 148. That court “[could not]
identify any other way to segregate a needlestick injury from some other event which could
also create a reasonable, but scientifically unfounded, fear” without a contaminated source
rule. Id. At least on the face of the complaint, there would appear to be no comparable
risk of phobia on these facts and, once again, it has not been established that the level of

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risk posed by Dr. Schiller’s practices is similar to that of a needlestick injury. Additionally,
requiring adherence to basic professional standards would seem a reasonable stopping point
on these facts, unlike in Babich where there was no comparable allegation of widespread
improprieties at the defendant hospital.
Consequently, this court finds that the Bowen public policy factors do not necessitate
application of the contaminated source rule on the pleadings alone. While defendant
argues that plaintiffs lacked reasonable grounds for emotional distress because the letter
they received informed them that the risk of infection was low, there is no evidence that
the letter was correct in this assertion, and it may be that exposure to a low risk of a deadly
infection provides reasonable grounds for emotional distress, at least where the exposure is
to a large enough population. At the same time, it may ask too much of a group of patients
to expect them to set aside their fears based on the assurances of a medical facility that
admittedly did not adhere to basic professional standards during their treatment. All of
this will need to be sorted out on summary judgment or at trial.

B. Severe Emotional Distress
Defendant also argues plaintiffs have not adequately alleged severe emotional
distress, citing a fifty-five-year-old decision by the Wisconsin Supreme Court for the
proposition that such a claim requires “an extreme disabling emotional response to
defendant’s conduct” rendering plaintiffs “unable to function in [their] relationships.”
Alsteen v. Gehl, 21 Wis. 2d 349, 360, 124 N.W.2d 312, 318 (1963). Plaintiffs’ complaint
is sufficient under this standard, as allegedly plaintiffs feared being infected by several
potentially deadly viruses and infecting their loved ones. (Compl. (dkt. #1) ¶¶ 25-26.) At

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the pleading stage, this is enough to infer that such fears could prompt a disabling
emotional response. While specific proof will ultimately be needed to justify recovery,
dismissal on the pleadings is not warranted at this time.

II. Exhaustion of Administrative Remedies
Alternatively, defendant claims it is entitled to dismissal of the unnamed plaintiffs
for failing to exhaust their administrative remedies as required by the Federal Tort Claims
Act. The FTCA waives the sovereign immunity of the United States for torts involving
“injury or loss of property, or personal injury or death caused by the negligent or wrongful
act or omission of federal employees acting within the scope of their employment.” Levin
v. United States, 568 U.S. 503, 507 (2013) (quotation marks omitted). To bring a tort
claim for monetary damages in federal court, however, the FTCA requires that plaintiffs
first exhaust their administrative remedies.
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of property
or personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government while
acting within the scope of his office or employment, unless the
claimant shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally denied by
the agency in writing and sent by certified or registered mail.
28 U.S.C. § 2675(a). Moreover, a Department of Justice regulation further requires the
written claim include: “(i) notification of the incident; (ii) a demand for a sum certain; (iii)
the title or capacity of the person signing; and (iv) evidence of this person’s authority to
represent the claimant.” Kanar v. United States, 118 F.3d 527, 528 (7th Cir. 1997) (citing
28 C.F.R. § 14.2(a)). The Seventh Circuit interprets this to require that such notices

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include “facts plus a demand for money.” Khan v. United States, 808 F.3d 1169, 1173 (7th
Cir. 2015).
This requirement under § 2675(a) is not a jurisdictional bar, however, rather the
Seventh Circuit treats it as “a condition precedent to the plaintiff’s ability to prevail.”
Smoke Shop, LLC v. United States, 761 F.3d 779, 786 (7th Cir. 2014) (quotation marks
omitted). Potential plaintiffs need not “comply with every jot and tittle” of 28 C.F.R. §
14.2(a), “[s]o long as the proper agency had the opportunity to settle the claim for money
damages before the point of suit . . . technical deficiencies in the administrative claim could
well be a case of ‘no harm, no foul.’” Id. at 787 (alterations, citations and quotation marks
omitted). Thus, if “noncompliance does not hinder the settlement process that a claim is
supposed to initiate,” an FTCA claim is not barred. Kanar, 118 F.3d at 531.
Defendant argues that all unnamed plaintiffs are barred from joining the proposed
classes, having failed to individually file the proper claim. This is consistent with the
approach of jurisdictions that view exhaustion as a jurisdictional prerequisite to an FTCA
suit. See, e.g., Lunsford v. United States, 570 F.2d 221, 225 (8th Cir. 1977) (holding that
filed claims were insufficient because “[n]ot all the claimants were identifiable; none of the
named plaintiffs asserted authority to present claims on behalf of the unnamed class
members; and no sum certain was stated with respect to the class claim so that the
government could evaluate the claim for possible settlement.”); Caidin v. United States, 564
F.2d 284, 286 (9th Cir. 1977) (“Since the major reason for the administrative claim
requirement is to facilitate settlement of cases, we feel it necessary to require that the
existence of such authority be asserted contemporaneously with the filing of the claim by

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one who files on behalf of a claimant.”) (citation omitted); Artic Slope Native Ass’n, Ltd. v.
Sebelius, 583 F.3d 785, 794 (Fed. Cir. 2009) (“[T]he courts have uniformly held that a
district court does not have jurisdiction over asserted class members who have not complied
with the FTCA’s administrative claim presentment requirements, and that the court lacks
power to include those parties in the certified class.”).
The Seventh Circuit has not addressed if its non-jurisdictional approach to FTCA
exhaustion, which is more willing to forgive technical lapses that do not hinder the pre-suit
settlement process, creates different requirements in class actions.

Here, the record

establishes that the six named plaintiffs submitted administrative claim forms but each
member of the 592-person proposed class did not. But the letter from plaintiffs’ counsel
to the Department of Veterans Affairs, which enclosed the named plaintiffs’ forms, stated
that the named plaintiffs were bringing their case “on behalf of the 592 putative class
members who were identified by the Department of Veterans Affairs as having been
negligently exposed to the risk of infection from Hepatitis B, Hepatitis C, and HIV during
their dental procedures at the Tomah VA Medical Center.” (Apr. 20, 2017 Letter, Ex. A
(dkt. #1-4) 2.) The letter went on to define the time period at issue and stated that class
representatives were seeking a $50,000 payment for themselves and each unnamed
member due to their extreme emotional distress. (Id.)
Given this level of detail, it is difficult to see how the pre-suit settlement process
was hindered, especially when the alternative would have been the cumbersome and wholly
unrealistic scenario where each unnamed class member separately submitted a claim.
Regardless, the Seventh Circuit’s requirement of specifying facts and a demand for money

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appears to have been met. Khan, 808 F.3d at 1173. Specifically, the Department of
Veterans Affairs knew the identities of each potential class member, as it had sent letters
to each of them, and it was made aware that emotional distress was the basis for the class
claims. The VA also had time to contact them before responding to named plaintiffs with
a denial of their administrative claims.
While defendant argues its ability to settle was hindered because it was unaware if
the named plaintiffs possessed the authority to represent unnamed plaintiffs, this would
also be the case if a class action was brought after each potential member separately
exhausted their administrative remedies. These proposed class members may ultimately
opt-out to pursue different claims or no claim at all, which limits the authority of named
plaintiffs to negotiate on their behalf. Such matters are, however, best addressed at the
class certification phase. Accordingly, the unnamed class members will not be dismissed
at this time.

ORDER
IT IS ORDERED that:
1) Defendant’s motion to dismiss (dkt. #8) is DENIED; and

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2) Defendant’s motion to stay class certification briefing (dkt. #26) is DENIED as
the motion to dismiss has now been resolved. Each of the three deadlines related
to plaintiffs’ class certification motion is extended one week, with plaintiffs’
initial motion now due October 26, 2018, defendant’s response due November
23, 2018, and plaintiffs’ reply due December 14, 2018.
Entered this 25th day of September, 2018.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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