Doe v. Mayo Clinic Health System-Eau Claire Clinic, Inc.

• Citation: 98 F.Supp.3d 989
• Decision Date: 03 April 2015
• Docket Number: No. 14–cv–387–wmc.,14–cv–387–wmc.
• Parties: John DOE 52, Plaintiff, v. MAYO CLINIC HEALTH SYSTEM–EAU CLAIRE CLINIC, INC., David A. Van De Loo, Proassurance Casualty Co. and Injured Patients and Families Compensation Fund, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

98 F.Supp.3d 989

John DOE 52, Plaintiff

v.MAYO CLINIC HEALTH SYSTEM–EAU CLAIRE CLINIC, INC., David A. Van De Loo, Proassurance Casualty Co. and Injured Patients and Families Compensation Fund, Defendants.

No. 14–cv–387–wmc.

United States District Court, W.D. Wisconsin.

Signed April 3, 2015.

David Edward Bland, Robins Kaplan LLP, Minneapolis, MN, Elin M. Lindstrom, Jeff Anderson & Associates, St. Paul, MN, for Plaintiff.

Guy Justin Dubeau, Michael J. Modl, Axley Brynelson, LLP, Madison, WI, Brent Adam Simerson, River Bank Plaza, Milwaukee, WI, Jeremy Thomas Gill, Nash, Spindler, Grimstad & McCracken, Manitowoc, WI, for Defendants.

OPINION & ORDER

WILLIAM M. CONLEY, District Judge.

In this civil action, plaintiff John Doe 52 alleges that defendant David A. Van de Loo committed malpractice by touching him unnecessarily and inappropriately in the course of medical treatment. Plaintiff also brings claims against Mayo Clinic Health System—Eau Claire, Van de Loo's former employer, for vicarious liability; negligence in retaining and supervising Van de Loo; and negligent failure to warn patients and patients' families about Van de Loo's inappropriate behavior.¹ All defendants have moved to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(6), primarily because they contend it is time-barred under the applicable statute of limitations. The court agrees and will grant the motions to dismiss.

ALLEGATIONS OF FACT

In resolving a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court accepts as true all well-pled factual allegations in the complaint, Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir.2014), and views them in the light most favorable to the non-movant, Santiago v. Walls, 599 F.3d 749, 756 (7th Cir.2010) (quoting Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir.2000) ). The court need not accept legal conclusions as true, however, meaning “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). For purposes of the present motion, the court accepts as true the following allegations of fact.

Plaintiff John Doe 52 is a resident and citizen of the State of Minnesota. Defendant Mayo Clinic Health System—Eau Claire Clinic, Inc. (“the Clinic”) is a Wisconsin corporation with its principal place of business in Eau Claire, Wisconsin. Defendant Van de Loo is a resident and citizen of Wisconsin. At all times relevant to the complaint, he was a licensed physician employed by the Clinic. Defendant ProAssurance Casualty Company (“ProAssurance”) was an Alabama corporation with its principal place of business in Birmingham, Alabama. ProAssurance issued a policy of liability insurance to Van de Loo and the Clinic during the time relevant to the complaint. Finally, defendant Insured Patients and Families Compensation Fund (“the Fund”) is a Wisconsin corporation with its principal place of business in Madison, Wisconsin. It also issued insurance policies to Van de Loo and the Clinic.²

From approximately 2004 until 2007, Van de Loo served as plaintiff's physician. During that time, plaintiff was approximately 15 to 17 years of age. Plaintiff received medical treatment from Van de Loo on the Clinic's premises on two or three occasions. On those occasions, Van de Loo touched Doe's genitals in what he contends was a normal part of the medical treatment rendered to plaintiff. Additionally, during some of those occasions, Van de Loo asked plaintiff's parent to leave the room and then touched, squeezed and manipulated plaintiff's genitals, which Van de Loo contends was also a normal part of medical treatment he rendered to plaintiff. Van de Loo did not wear gloves during his examinations. Plaintiff and his parents consented to plaintiff's medical treatment and were apparently unaware at the time that Van de Loo had engaged in any inappropriate touching.

Van de Loo's normal practice was to ask parents to leave the room while he performed physical examinations on minor male patients. He did not have others present either. When the parents of one minor patient questioned a nurse as to whether this practice was normal, the nurse responded it was how Van de Loo did things. Although the Clinic was Van de Loo's employer and, by 2008, knew or should have known that Van de Loo performed medical exams involving inappropriate touching of minors, it never told any of its patients that Van de Loo was unsafe, nor that Van de Loo had performed an inappropriate physical examination on a minor patient.

Plaintiff did not realize until October of 2012 that the medical examinations he received from Van de Loo did not comport with the standard of care. Now armed with this knowledge, he has suffered profound psychological damage, including depression, anxiety, embarrassment, emotional distress, self-esteem issues and loss of enjoyment of life.

PRELIMINARY MATTERS

I. Judicial Notice

The Clinic has filed a motion asking the court to take judicial notice of various state criminal and civil court proceedings involving Van de Loo.³ (Dkt. # 26.) Plaintiff has not opposed that motion, but his lack of opposition appears to be based on a fundamental misunderstanding of the law. Specifically, plaintiff argues that by asking the court to take judicial notice of matters outside the pleadings, the Clinic has “implicitly” requested that the court convert its Rule 12(b)(6) motion into a motion for summary judgment. (See Br. Opp'n (dkt. # 36) 1.) On the strength of that “implicit” request, plaintiff asks the court to notice additional facts and convert the parties' motions to dismiss to one for summary judgment.⁴

While a defendant's decision to attach additional evidentiary materials to a Rule 12(b)(6) motion generally converts that motion to summary judgment, see Crawford v. United States, 796 F.2d 924, 927 (7th Cir.1986), “ ‘[t]he district court may also take judicial notice of matters of public record’ without converting a 12(b)(6) motion into a motion for summary judgment.” Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir.1994) (quoting United States v. Wood, 925 F.2d 1580, 1582 (7th Cir.1991) ). The Clinic's specific request that the court take judicial notice of the state court proceedings is perfectly proper: “[t]he most frequent use of judicial notice of ascertainable facts is in noticing the contents of court records.” Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir.1997) (quoting 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5106, at 505 (1st ed. 1977 & Supp.1997) ). Thus, there is no reason for the court to convert the present motion into one for summary judgment.

Nevertheless, the court need not consider the materials in question to resolve the present motion to dismiss. As will be discussed further below, the pleadings themselves establish that plaintiff's action is untimely without the need to take notice of the records in the state court actions. Accordingly, the motion for judicial notice will be denied as moot.

II. Motion to Treat the Fund's Motion to Dismiss as Opposed

Plaintiff has filed a motion asking the court to deem his opposition to the Clinic's motion to dismiss as his opposition to the Fund's motion as well. (Dkt. # 39.) He bases this motion on his ostensible failure to file a timely brief in opposition to the Fund's motion to dismiss (dkt. # 23). Since it appears from the docket sheet that plaintiff did, in fact, file a timely brief in opposition (see dkt. # 29), his motion is unnecessary and will also denied as moot.

OPINION

All defendants have moved to dismiss the claims against them on statute of limitations grounds. “[B]ecause the period of limitations is an affirmative defense,” the Seventh Circuit has held that “it is rarely a good reason to dismiss under Rule 12(b)(6).” Reiser v. Residential Funding Corp., 380 F.3d 1027, 1030 (7th Cir.2004) ; see also Clark v. City of Braidwood, 318 F.3d 764, 767 (7th Cir.2003) (plaintiff is not required to allege facts that negate affirmative defenses in his complaint). However, dismissal under Rule 12(b)(6) on statute of limitations grounds is nevertheless “appropriate where ‘the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations.’ ” Andonissamy v. Hewlett–Packard Co., 547 F.3d 841, 847 (7th Cir.2008).

“Statutes of limitations are generally considered part of the forum state's substantive law which federal courts must apply when sitting in diversity.”

Evans ex rel. Evans v. Lederle Labs., 167 F.3d 1106, 1111–12 (7th Cir.1999) (citing Guaranty Trust Co. v. York, 326 U.S. 99, 109–10, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) ); see also Hollander v. Brown, 457 F.3d 688, 694 (7th Cir.2006). Accordingly, Wisconsin statutes of limitations apply in this suit.

Plaintiff brings six causes of action in this suit. The first, a claim for medical malpractice, is against Van de Loo, the Clinic and their insurers; the remaining five claims, for various species of negligent conduct and vicarious liability, are only against the Clinic and its insurers. (See Am. Compl. (dkt. # 11) ¶¶ 23–65.) The court will address the two variety of claims separately.

I. Medical Malpractice

The governing statute of limitations for medical malpractice claims arises from Wis. Stat. § 893.55(1m), which states in relevant part:

Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:

(a) Three years from the date of the

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