Smith-Williams, Consuela et al v. The United States of America
ORDER denying 30 Motion to Certify Class under Rule 23. Signed by District Judge William M. Conley on 4/25/2019. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
FRED RIVERS, RICHARD MURPHY,
ROBERT RISTOW, ROGER SUHR, and
SALVADOR FUENTES, on behalf of themselves
and others similarly situated,
OPINION AND ORDER
UNITED STATES OF AMERICA,
In this putative class action, plaintiffs bring suit against the United States under the
Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), for lapses in infection control procedures
at the Tomah VA Medical Center. Presently before the court is their motion to certify the
Plaintiffs’ motion will be denied because individual questions
predominate over common questions, and a class action is not a superior method of
adjudicating this dispute.
As veterans of the United States military, plaintiffs were all treated by Dr. Thomas
Schiller at Tomah VA Medical Center’s Dental Clinic between October 5, 2015, and
October 21, 2016. While the parties seem to contest the specifics, there is no dispute that
during this time period, Schiller’s hygiene practices were unorthodox, including the use of
his own, personal equipment on patients and, at times, the failure to wash his hands, to
change his gloves and to wear a dental gown as frequently as expected. (See Mot. to Certify
Br. (dkt. #34) 1-2; Opp’n (dkt. #56) 3-4.) In particular, defendant acknowledges that
Schiller: (1) “began using personally-owned, non-VA-approved diamond dental burs when
performing crown and bridge procedures”; (2) “began using personally-owned cotton
applicators during crown and bridge procedures, and personally-owned matrix bands
during about half of his cavity and root canal procedures”; (3) “used a personally-owned
post on at least one occasion”; (4) “was observed touching non-sterile objects . . . with a
gloved hand and then continuing a dental procedure”; (5) performed dental procedures
without a protective dental gown on occasions; and (6) “was suspected of not washing his
hands in between glove changes.” (Opp’n (dkt. #56) 3-4.) On October 21, 2016, Schiller
ceased treating patients.
From October 2015 through October 2016, Schiller treated 592 patients. Following
a risk assessment, the Department of Veterans Affairs sent letters to these individuals on
November 29, 2016:
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 practices 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). We recommend that you come in and be tested to
provide you with reassurance.
As the Acting Medical Center Director, let me sincerely
apologize for the concern that this notification may bring to
you and your family.
(Patient Notification Letter (dkt. #1-4) 1-2.) In addition, patients who had seen Schiller
within the last six months were further advised that “tests may not always be able to
reliably detect recent exposures and infections from these viruses,” so those patients should
repeat the testing “at the end of the 6 month timeframe.” (Progress Notes (dkt. #34-11)
Thankfully, none of the patients tested positive for new viruses. (Moore Dep. (dkt.
#48) 27:16-24 (“[T]here were no active infections in those patients.”).) Nevertheless,
plaintiffs allege that they and other members of the putative class suffered from severe
emotional distress during the period between receiving notification of a possible infection
and their negative test results.
To certify a class under Federal Rule of Civil Procedure 23(b)(3), plaintiffs must
satisfy a two-step analysis. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811
(7th Cir. 2012). First, the proposed class must satisfy the four threshold requirements
under Rule 23(a): numerosity, commonality, typicality and adequacy. Id. Second, the
proposed class must satisfy the two requirements under Rule 23(b)(3): predominance and
Because the trial court must engage in a “rigorous analysis” to determine whether
the proposed class satisfies these requirements, CE Design Ltd. v. King Architectural Metals,
Inc., 637 F.3d 721, 722 (7th Cir. 2011), that analysis may overlap with a determination of
the merits of the case. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). When
overlap occurs, “the judge must make a preliminary inquiry into the merits.” Szabo v.
Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001). If material factual disputes
arise, the court may even be required to receive evidence and resolve those disputes before
ruling on class certification, although courts are cautioned not to “turn the class
certification proceedings into a dress rehearsal for the trial on the merits.” Messner, 669
F.3d at 811.
Here, plaintiffs seek to certify a class under Rule 23(b)(3): “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.” 1 (Mot. to Certify (dkt. #30) 1.) While plaintiffs are able
to satisfy the Rule 23(a) prerequisites, they cannot meet the Rule 23(b)(3) requirements
of predominance and superiority.
I. Rule 23(a) Prerequisites
The numerosity requirement is satisfied when “the class is so numerous that joinder
of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Since plaintiffs’ proposed class
consists of up to the 592 patients exposed to the risk of infection by Schiller while he was
Initially, plaintiffs asked the court to certify a subclass of patients who “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.” (Mot. to Certify (dkt. #30) 1-2.) However, plaintiffs appear to have
abandoned that request. (Reply (dkt. #72) 21 (“As the Plaintiffs are only seeking certification
based on issues directed at the Defendant’s liability, the Plaintiffs request that this Court certify a
class containing all 592 Putative Class Members in the same class for the issue of liability and
address damages at a later stage of the case.”).) And, as defendant notes, patients who required a
second blood test did not have to wait six months from receipt of the notification letter, but rather
only six months from their possible exposure. (Opp’n (dkt. #56) 29.) Accordingly, the court will
only consider whether to certify the larger class.
employed at the Tomah VA Medical Center, this requirement is easily met. See Armes v.
Sogro, Inc., No. 08-C-0244, 2011 WL 1197537, at *2 (E.D. Wis. Mar. 29, 2011) (“The
Seventh Circuit has indicated that a group as small as forty may satisfy the numerosity
requirement.” (citing Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th
Cir. 1969))). It would be impractical to join all of these individuals in one case. Defendant
does not challenge numerosity, except as to the subclass that plaintiffs have now
abandoned. (See Opp’n (dkt. #56) 10, 29.) Accordingly, this prerequisite is met.
The commonality requirement is met when there are “questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). A single, common issue will satisfy this
requirement if the issue is “capable of classwide resolution -- which means that
determination of its truth or falsity will resolve an issue that is central to the validity of
each of the claims in one stroke.” Dukes, 564 U.S. at 350. Under the commonality
standard, plaintiff must do more than “merely” demonstrate “that they have all suffered a
violation of the same provision of law.” Id. Plaintiff must show that “the class members
have suffered the same injury.” Id. (internal quotation marks and citation omitted).
In essence, plaintiffs have identified a single, common question here: Did defendant
adequately train and supervise its employees regarding implementing infection control
standards and identifying breaches of those standards? 2 (Mot. to Certify Br. (dkt. #34)
Plaintiffs suggest a second question as well: whether Schiller was acting within the scope of his
employment when he exposed the putative class to the risk of infection. However, this is no longer
at issue because defendant “expressly admitted that Dr. Schiller treated putative class members
‘while in the scope of his employment relationship.’” (Opp’n (dkt. #56) 21; id. at 22 (“Nobody
disputes that . . . Dr. Schiller was acting within the scope of his employment at all relevant times.”).)
14.) This question addresses issues common to all of plaintiffs’ negligent infliction of
emotional distress and negligent supervision claims. Because this question can be answered
on a class-wide basis, the commonality requirement is met.
Under Rule 23(a), typicality requires that the named plaintiffs’ claims “arise from
the same event or practice or course of conduct that gives rise to the claims of other class
members and his or her claims are based on the same legal theory.” Keele v. Wexler, 149
F.3d 589, 595 (7th Cir. 1998) (quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d
225, 232 (7th Cir. 1983)). This inquiry should ensure that “a plaintiff with typical claims
will pursue his or her own self-interest in the litigation and in so doing will advance the
interests of the class members, which are aligned with . . . those of the representative.”
Insolia v. Phillip Morris, Inc., 186 F.R.D. 535, 544 (W.D. Wis. 1998) (quoting 1 Newberg
& Conte, Newberg on Class Actions § 3.13 (3d ed. 1992)).
Named plaintiffs were all treated by Dr. Schiller between October 2015 and October
2016, and all subsequently received letters informing them of their possible exposure to
Hepatitis B, Hepatitis C, and HIV. Defendant argues that their claims are not typical
because they “did not undergo any crown or bridge procedures,” such that “they were never
exposed to an unsterile dental bur,” and they mostly did not “undergo any invasive dental
work.” (Opp’n (dkt. #56) 27-28.) However, defendant’s argument misses the forest for
the trees. Everyone in the putative class, including the named plaintiffs, were potentially
exposed to serious viruses through the failure of a single individual to follow the VA’s
infection control standards. The differing forms of potential virus exposure -- reused dental
burs, unchanged gloves, unwashed hands, the use of Schiller’s other personal equipment,
or the non-use of dental gowns -- comprise a larger failure to abide by that same infection
control protocol. Accordingly, typicality is also met. 3
The final Rule 23 requirement is adequacy, which ensures that “the representative
parties will fairly and adequately protect the interest of the class.” Fed. R. Civ. P. 23(a)(4).
A class representative is not adequate if he is subject to a defense to which other class
members are not subject or he could not prove the elements of the class claim for reasons
particular to him. CE Design, 637 F.3d at 724–25.
For many of the same reasons that defendant argues plaintiffs’ claims are not typical,
they also argue plaintiffs are not adequate representatives. 4 The interests of the named
plaintiffs and the class members do not appear to conflict. Additionally, named plaintiffs
have adequately prosecuted this case since its filing. Accordingly, plaintiffs appear more
than adequate as class representatives.
Further, defendants do not even attempt to challenge the adequacy of putative class
counsel, and they appear to be experienced in both complex litigation and class actions, as
Defendant also speculates that because the government declined to settle administratively the
claims of the named plaintiffs, their “claims may be weaker than, and thus atypical of, the class as
a whole.” (Opp’n (dkt. #56) 29 n.13.) However, the court is strongly disinclined to rely on
defendant’s speculation to find a lack of typicality, especially when the decision not to settle is not
necessarily a reflection of the strength of plaintiffs’ claims, but instead may be the result of
defendant’s failure to appreciate their strength.
Although already rejected at the motion to dismiss stage, defendant also preserves its argument
that the named plaintiffs could not exhaust administrative claims for others, and argues that if the
Seventh Circuit reversed, then the class -- but not the named plaintiffs -- would be subjected to an
affirmative defense. (Id. at 28-29.) Seeing as the court already rejected that argument (Mot. to
Dismiss Op. (dkt. #28) 12-13), the court need not consider this argument further.
well as with negligent infliction of emotional distress cases. (Rieder Decl. (dkt. #41) ¶ 5;
Biegert Decl. (dkt. #42) ¶ 2.) Accordingly, plaintiffs and plaintiffs’ counsel are adequate
under Rule 23(a).
II. Rule 23(b)(3) Requirements
Despite the Rule 23(a) prerequisites being met, the court must still consider:
(a) whether “questions of law or fact common to class members predominate over any
questions affecting only individual members”; and (b) whether “a class action is superior
to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R.
Civ. P. 23(b)(3). As discussed below, plaintiffs do not meet either requirement.
The “predominance inquiry tests whether the proposed classes are sufficiently
cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 623 (1997) (citing 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice and Procedure § 1777, p. 518-519 (2d ed. 1986)). Predominance is not
satisfied if “individual questions . . . overwhelm questions common to the class.” Amgen
Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 468 (2013). A predominance analysis
begins with the elements of the underlying cause(s) of action. Messner, 669 F.3d at 815
(quoting Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011)). Plaintiffs’
proposed class falters under this test because individual inquiries into injury and causation
overwhelm the common question of negligence.
Plaintiffs bring two claims: (1) negligent infliction of emotional distress; and
(2) negligent training, supervision and retention. (Compl. (dkt. #1) 9-11.) Both of these
claims sound in Wisconsin common law of tort and require: “(1) A duty of care on the
part of the defendant; (2) a breach of that duty; (3) a causal connection between the
conduct and the injury; and (4) an actual loss or damage as a result of the injury.” Miller
v. Wal-Mart Stores, Inc., 219 Wis.2d 250, 260, 580 N.W.2d 233 (1998) (quoting Rockweit
v. Senecal, 197 Wis.2d 409, 418, 541 N.W.2d 742 (1995)). In addition, to prove negligent
infliction of emotional distress, a plaintiff must not only establish negligence, but “severe
emotional distress.” Bowen v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 632, 517 N.W.2d
432 (1994) (emphasis added).
Likewise, to prove negligent training, supervision or
retention, a plaintiff must not only establish negligence, but that “the failure of the
employer to exercise due care was a cause-in-fact of the wrongful act of the employee that
in turn caused the plaintiff’s injury.” Miller, 219 Wis.2d at 262 (emphasis added). 5
Plaintiffs are generally correct that individual inquiries about causation and
damages do not necessarily prevent class certification. See Pella Corp. v. Saltzman, 606 F.3d
391, 394-95 (7th Cir. 2010) (affirming certification of liability class where “class members
still must prove individual issues of causation and damages”).
However, this case is
different because the elements of causation and injury will predominate over the other
common elements. See Siegel v. Shell Oil Co., 612 F.3d 932, 936 (7th Cir. 2010) (affirming
denial of class certification where proximate causation required individualized proof to
establish a claim so that common issues did not predominate); Clark v. Experian Info. Sols.,
Put another way, to establish causation in a claim for negligent training, supervision or retention,
the plaintiff must prove that: (1) the employee’s wrongful act was the cause-in-fact of plaintiff’s
injury; and (2) the employer’s negligence was a cause-in-fact of the employee’s wrongful act. Miller,
219 Wis.2d at 262.
Inc., 256 F. App’x 818 (7th Cir. 2007) (same); Tomeo v. Citigroup, Inc., No. 13 C 4046,
2018 WL 4627386, at *11 (N.D. Ill. Sept. 27, 2018) (denying class certification because
individualized issue of consent was “inextricably intertwined with [the] primary issue of
liability to the point where it dominates over the other common issues”); Martin v. Ford
Motor Co., 292 F.R.D. 252, 288 n.37 (E.D. Pa. 2013) (distinguishing Pella because the
liability determination “requires individualized inquiries of fact that defeat the
predominance required to certify a class under Rule 23(b)(3)”). Indeed, since the general
failure of defendant’s employee to meet its duty of care is not even in question here -having admitted as much by sending out the prophylactic warning letter giving rise to
plaintiffs’ claims as discussed above -- these individual questions of causation and damages
not only predominate over the question common to the class, they are essentially the only
questions remaining, nullifying any efficiencies achieved through class adjudication. See
Parko v. Shell Oil, Co., 739 F.3d 1083, 1085 (7th Cir. 2014) (“Predominance of issues
common to all class members . . . goes to the efficiency of a class action as an alternative
to individual suits.”). Accordingly, this requirement cannot be met.
As for the requirement of superiority, the case must again be one “in which a class
action would achieve economies of time, effort, and expense, and promote . . . uniformity
of decision as to persons similarly situated, without sacrificing procedural fairness or
bringing about other undesirable results.” Amchem Prods., 521 U.S. at 615 (quoting Fed.
R. Civ. P. 23(b)(3) advisory committee note to the 1966 Amendment). Since causation
and damages must be determined on an individual basis here, a class action is not a superior
method for resolving this dispute.
Moreover, these individual inquiries would create
serious manageability problems if the case were to proceed as a class action.
Accordingly, plaintiffs’ motion for a class action must be denied.
IT IS ORDERED that: plaintiffs’ motion to certify a class (dkt. #30) is DENIED.
Entered this 25th day of April, 2019.
BY THE COURT:
WILLIAM M. CONLEY
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