Watts, William v. United States of America et al
ORDER that Plaintiff William M. Watts's motion for the court to provide a neutral expert, Dkt. 50 , and motion for recruitment of counsel, Dkt. 64 , are DENIED. Defendant United States of America's motion for summary judgment, Dkt. 53 , is GRANTED. The clerk of court is directed to enter judgment for defendant and close this case. Signed by District Judge James D. Peterson on 7/15/2021. (kmd),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
WILLIAM M. WATTS,
UNITED STATES OF AMERICA,
OPINION and ORDER
Plaintiff William M. Watts is proceeding on claims under the Federal Tort Claims Act
(FTCA) based on allegations that four Bureau of Prison employees misdiagnosed eye injuries
that he developed after being sprayed in the face with a roof-priming chemical. He also alleges
that BOP medical staff failed to provide him with proper care for his eye problems. Before the
court are defendant’s motion for summary judgment, Dkt. 53, and two motions filed by Watts:
(1) a motion requesting that the court provide a neutral expert to explain the medical standard
of care applicable in this case, Dkt. 50; and (2) a motion requesting that the court recruit
counsel to represent him in this case, Dkt. 64.
This is Watts’s second lawsuit arising out of the chemical spray incident. In case number
18-cv-49-jdp, Watts brought Eighth Amendment and negligence claims against a privately
employed optometrist and a construction company. That case was resolved at summary
judgment in favor of the defendants because Watts failed to submit evidence that the
defendants’ actions fell below the standard of care and injured him. The only way that Watts
could have overcome the evidence presented by the defendants in that case would have been
to introduce expert testimony in support of his claims. But Watts was unable to find an expert
to support his case, and I denied Watts’s requests that the court recruit counsel or an expert
to assist him. I was not persuaded that Watts needed the assistance of counsel to present his
case, and I was not persuaded that Watts would have had a viable claim against either
defendant even if he’d had the help of an expert. Dkt. 129, in 18-cv-49-jdp.
Watts’s claims in this case fail for the same reasons that his claims against the
optometrist and construction company failed. He has failed to present evidence from which a
jury could conclude that BOP medical staff’s treatment decisions fell below the applicable
standard of care. And I am not persuaded that the court should recruit counsel or an expert to
assist Watts. Therefore, I will grant defendant’s motion for summary judgment, and I will deny
both of Watts’s motions.
The following facts are undisputed unless otherwise noted.
From 2014 to 2018, plaintiff William Watts was an inmate at the Federal Correctional
Institution in Oxford, Wisconsin. From 2014 until May 2016, Dr. Ravi Gupta, a family
practice doctor, was the clinical director of the health services unit at FCI Oxford. From May
2016 until November 2017, Dr. Paul Harvey, an internal medicine doctor, was the acting
clinical director at FCI Oxford. Neither Gupta nor Harvey have specialized training in treating
eye disease. Cari Ritter was a certified physician’s assistant at the prison during the relevant
period, and Melissa Laufenberg was a registered nurse and the health services administrator.
On September 14, 2015, Watts was walking outside his housing unit when he felt a
chemical spray hit his face. A construction company was working on a roofing project at the
prison at the time. The next day, Watts reported to Dr. Gupta that he had been sprayed in the
eyes by a roofing chemical, that his eyes were irritated, that he had a headache, and that he
was sensitive to light. He denied having any pain, redness, or changes in vision. Gupta
examined Watts’s eyes by performing a visual inspection and using a hand-held
ophthalmoscope. Gupta also examined Watts’s respiratory system. Gupta noted that Watts’s
eyes were sensitive to light, but that Watts had no burns or scarring, no changes in his vision,
no discharge, no pain, and no redness. He also did not find any problems with Watts’s
respiratory system. Gupta observed that Watts’s blood pressure was high, and he submitted an
order for Watts to participate in blood pressure monitoring through the blood pressure clinic
at FCI Oxford. Gupta also told Watts to return to health services if his condition worsened.
On October 5, 2015, Watts sent an electronic request to be seen in health services for
eye problems. Health services scheduled Watts for an appointment to be seen on October 20,
but Watts missed the appointment. Watts saw Gupta again on November 3, 2015. Watts
complained of eye irritation, “floaters,” and eye twitching. Gupta examined Watts’s eyes, but
did not find any irregularities or problems with Watts’s eyes. Watts also saw Gupta on
November 16 regarding a different health concern. Watts did not report any problems with his
eyes at that appointment.
Watts saw PA-C Ritter on December 7, 2015, for complaints of dry eyes, light
sensitivity, occasional blurry vision, involuntary eye movements, and excruciating headaches.
Watts told Ritter that he had been managing his headaches with pain relievers, but that he had
not tried any of the eye drops available in the commissary for his dry eyes. Ritter examined
Watts’s eyes, but found no evidence of injury or disease. Ritter instructed Watts to keep a
headache log to see if they could detect a pattern for his headaches. She also ordered labs to
test for conditions that might be causing his headaches, including blood sugar problems,
thyroid disfunction, and anemia. Ritter directed Watts to return for a follow-up in one month
to discuss his diet and headache log. She also encouraged Watts to seek an appointment with
psychological services to address his stress.
Watts had a follow-up appointment with Ritter on January 13, 2016, at which time his
blood pressure was slightly elevated. Watts told Ritter that his headaches were up and down
but that he had not had a headache in a week, that he was using aspirin for his headaches, and
that exercise sometimes brought on headaches. Ritter reviewed Watts’s commissary purchases
with him, explaining that high levels of salt and caffeine can raise blood pressure and trigger
headaches. Ritter put in an order for Watts to participate in the health services unit’s blood
pressure clinic for another 30 days. Ritter also told Watts to attend sick call if his condition
worsened or he needed additional care.
On February 1, 2016, Watts emailed health services, stating that he had elevated blood
pressure that day and had some light sensitivity but no headache. He did not request an
appointment. Watts emailed health services again on March 3, stating that he was still having
problems with his eyes and wanted the results of his blood work. Health services staff asked
Watts if he wanted an appointment, but Watts responded that he did not. Melissa Laufenberg,
the health services administrator, emailed Watts on April 22, stating that he would need to be
reevaluated if he was still having problems, and that providers could not diagnose or treat him
via email. She encouraged him to go to sick call.
Watts came to sick call on April 27, 2016, where Ritter examined him. Watts told Ritter
that he felt pretty good, that he did not have any pain or a headache, but that he was wondering
about his lab results because he was concerned about diabetes. Watts also requested to see an
eye doctor to make sure he did not have any damage from roofing spray. Ritter put in a request
for an optometry consult.
In May 2016, Watts saw optometrist Mark Kidman. Kidman worked at FCI Oxford
approximately once a month on a contract basis. Kidman was responsible for performing
optometry services at the prison, including performing eye examinations and treating eyerelated problems. Watts told Kidman that he had gotten chemicals in his eyes eight months
previously, and that he had experienced light sensitivity and dry eyes since then. Kidman’s
exam showed normal results, except that Watts’s intraocular pressure was near the high end of
normal, at 20 mmHg (millimeters of mercury), and that Watts had a large optic nerve cupping
both eyes. Kidman told Watts that the large optic nerve could be normal for Watts, or that it
could be an early sign of glaucoma. Kidman scheduled Watts to be seen for a follow-up exam
in three months.
Watts saw Kidman again on October 17, 2016. Watts’s optic nerves were still enlarged,
but his eye pressure was lower than it had been in May. Kidman told Watts that the enlarged
nerves could be a precursor to glaucoma. But Kidman did not think Watts had glaucoma at
the time and he declined to refer Watts to an ophthalmologist. Kidman scheduled Watts for a
follow-up in one year. Kidman asked PA-C Ritter to review his treatment notes from both the
May and October appointments, which Ritter did. Ritter noted that Watts had been diagnosed
with large optic nerves, and she knew that large optic nerves could be congenital or caused by
a variety of underlying conditions. Ritter deferred to Kidman’s assessment and judgment as to
Watts’s care because he had a higher level of specialized knowledge about eye conditions than
In June 2016, Watts emailed health administrator Laufenberg to ask for tinted lenses.
He stated that Kidman had suggested purchasing both readers and sunglasses from the
commissary. Laufenberg responded that sunglasses were not permitted inside the institution
without a medical diagnosis or order. She also stated that Watts should return to sick call if he
continued to have headaches after purchasing readers. Laufenberg forwarded Watts’s request
for sunglasses to Kidman, but Kidman did not put in an order for Watts to wear sunglasses
indoors. In October 2016, Watts emailed Laufenberg asking to be seen by an outside specialist
due to his enlarged optic nerves. Laufenberg did not have the authority to refer Watts to a
specialist, so she forwarded Watts’s email to Kidman.
Watts next went to sick call on March 12, 2017, for complaints of pain in his left eye.
A nurse recommended compresses, Visine eye drops, and acetaminophen for pain. She told
Watts to follow-up as needed and to return immediately if the condition worsened. Watts
returned to sick call on April 20, 2017. A nurse noted that Watts reported ongoing redness in
his eyes, but denied pain, itching, or vision problems. The nurse moved up Watts’s next
appointment with Kidman by several months.
Watts saw Kidman again in August 2017. Kidman noted that Watts was experiencing
some vision loss, and he referred Watts to an ophthalmologist. Dr. Harvey reviewed Kidman’s
notes and cosigned them. Watts saw an ophthalmologist in November 2017, who diagnosed
glaucoma and chronic dry eyes and prescribed medication to Watts. Watts’s symptoms have
improved with medication.
Watts contends that Dr. Gupta, PA-C Ritter, Dr. Harvey, and health services
administrator Laufenberg acted negligently in treating the eye problems that he developed after
being sprayed with a roof-priming chemical at FCI Oxford. The FTCA provides the exclusive
remedy for certain individuals, including prisoners, to recover for damages caused by the
negligent or wrongful act of a federal government employee. 28 U.S.C. §§ 2671-2680; Levin v.
United States, 568 U.S. 503, 506–7 (2013). Because Watts was incarcerated at FCI Oxford
during the relevant period, Watts’s medical negligence claims are governed by Wisconsin law.
See 28 U.S.C. § 1346(b); F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994). Wisconsin law defines
medical negligence as the failure of a medical professional to “exercise that degree of care and
skill which is exercised by the average practitioner in the class to which he belongs, acting in
the same or similar circumstances.” Sawyer v. Midelfort, 227 Wis. 2d 124, 149, 595 N.W.2d
423, 435 (1999). To prevail on his medical negligence claims, Watts must prove that
defendants breached their duty of care by failing to conform to the standard of care, and that
Watts suffered an injury as a result. Carney-Hayes v. Nw. Wisconsin Home Care, Inc., 2005 WI
118, ¶ 37, 284 Wis. 2d 56, 81–82, 699 N.W.2d 524, 537; Wis J–I Civil 1023.
A. Dr. Gupta and PA-C Ritter
Watts contends that Dr. Gupta and PA-C Ritter breached their duty of care by failing
to respond appropriately to Watts’s complaints about eye irritation, dry eyes, headaches, and
other symptoms suggesting glaucoma. But the evidence does not support Watts’s claims.
Dr. Gupta saw Watts twice for his eye complaints. On both occasions, Gupta examined
Watts’s eyes and saw no signs of any eye injury or disease. Gupta placed an order for Watts to
participate in a blood pressure clinic and instructed Watts to return to health services if he
continued to have problems. PA-C Ritter saw Watts three times for his eye complaints. At each
appointment, Ritter examined Watts’s eyes and saw no signs of eye injury or disease. She noted
that Watts’s high blood pressure could be causing his headaches, so she directed him to keep
a headache log, participate in the blood pressure clinic again, and make changes to his diet.
She also ordered labs to rule out potential causes of his symptoms. Watts requested a referred
to an optometrist at his third appointment with Ritter, and Ritter submitted the referral. In
light of this treatment history, no reasonable jury could conclude that Gupta or Ritter acted
negligently in their treatment of Watts.
Watts argues that Gupta and Ritter should have done more to assess and treat Watts’s
eye problems after Watts reported being sprayed in the face with a roofing chemical. But Watts
has submitted no evidence to suggest that Gupta’s or Ritter’s treatment decisions fell below
the medical standard of care for a family medicine doctor or physician’s assistant. For example,
he has not submitted evidence that the standard of care under the circumstances would require
a family doctor or physician’s assistant to perform a different type of eye examination, provide
a specific type of treatment, or to refer Watts to a specialist despite any visible signs of injury,
irritation, or disease.
Watts argues that Ritter should have intervened when she reviewed Dr. Kidman’s
treatment notes and saw that Kidman was ordering no treatment despite Watts’s enlarged optic
nerves. But Ritter was not an eye specialist; Kidman was. Watts has not submitted evidence
suggesting that a physician’s assistant in Ritter’s position would have thought that Kidman’s
treatment decisions were inappropriate or potentially harmful. In addition, Ritter knew that
large optic nerves were not necessarily a sign of disease—some people are born with large optic
nerves. Therefore, she was not negligent for relying on Kidman’s decision to monitor Watts’s
before making a treatment decision or referring Watts to an ophthalmologist.
Watts also has not submitted evidence that Gupta’s or Ritter’s actions harmed Watts.
After Ritter referred Watts to Dr. Kidman, Kidman monitored Watts’s eye condition for more
than a year before Watts showed signs of vision loss and was referred to an ophthalmologist
for treatment. Even if Gupta or Ritter had referred Watts to a specialist sooner, there is no
evidence that Watts’s would have received different treatment. For all of these reasons,
defendant is entitled to summary judgment as to Watts’s negligence claim based on Gupta’s
and Ritter’s actions.
B. Melissa Laufenberg and Dr. Harvey
Neither Melissa Laufenberg nor Dr. Harvey provided medical treatment to Watts for
his eye condition. Laufenberg’s only involvement in Watts’s care was in her role as the health
services administrator. In that role, Laufenberg could not prescribe medication or special lenses
to Watts, could not refer him to a specialist, and could not override any provider’s treatment
decision. Laufenberg did respond to Watts’s emails by directing him to request an appointment
or attend sick call. She also forwarded his complaints to his treating providers. Laufenberg’s
actions were reasonable, and no reasonable jury could conclude that she breached a duty of
care or caused Watts any harm.
Dr. Harvey’s only involvement in Watts’s care was to review notes prepared by Dr.
Kidman about Watts’s appointments. Watts argues that Harvey should have intervened and
referred Watts to an ophthalmologist sooner, but Watts has produced no evidence that
Harvey’s failure to do so fell below the standard of care for an internal medicine doctor
reviewing an optometrist’s treatment decision about eye care. For example, Watts has not
submitted evidence suggesting that an internal medicine doctor would question Kidman’s
treatment decisions under the circumstances.
Accordingly, defendant is entitled to summary judgment on Watts’s claims based on
the alleged negligence of Laufenberg and Harvey.
C. Watts’s requests for counsel or a neutral expert
Watts argues that he would be able to prove that defendants acted negligently if the
court would appoint a neutral expert to opine about the standard of care applicable to each
defendant. But I am not convinced. Rule 706 of the Federal Rules of Civil Procedure allows a
court to appoint a neutral expert to help the court or jury interpret complex information and
disputed issues. DeJesus v. Godinez, 720 F. App’x 766, 772 (7th Cir. 2017). Watts has not
identified any complex or disputed issues for which the court would need expert assistance.
And the court may not appoint an expert under Rule 706 solely to bolster a party’s case for
which he would not otherwise have evidence. Dobbey v. Carter, 734 F. App’x 362, 364–65 (7th
2018); Turner v. Cox, 569 Fed. App’x. 463, 468 (7th Cir. 2014).
Watts also requests that the court recruit counsel to assist him. But as I have explained
previously in this case and in Watts’s related case, Watts does not need the assistance of
counsel to present his case. He has shown that he can gather evidence and present legal
arguments better than most pro se litigants can. Counsel might have been able to find an expert
willing to support Watts’s claims, but I am not persuaded that Watts would have had a viable
claim even with the help of an expert. Watts has presented no evidence even hinting that any
BOP employee’s actions fell below the standard of care or caused him harm.
IT IS ORDERED that
1. Plaintiff William M. Watts’s motion for the court to provide a neutral expert, Dkt.
50, and motion for recruitment of counsel, Dkt. 64, are DENIED.
2. Defendant United States of America’s motion for summary judgment, Dkt. 53, is
3. The clerk of court is directed to enter judgment for defendant and close this case.
Entered July 15, 2021.
BY THE COURT:
JAMES D. PETERSON
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