In re Estate Rille ex rel. Rille

• Decision Date: 23 March 2007
• Docket Number: No. 2005AP1407.,2005AP1407.
• Citation: 728 N.W.2d 693,2007 WI 36
• Parties: The ESTATE of Frank P. RILLE, by its Personal Representative, Susan RILLE, and Susan Rille, Plaintiffs-Respondents, Tommy Thompson, Secretary, Department of Health & Human Services, Involuntary-Plaintiff-Respondent, v. Physicians Insurance Company, Medical College of Wisconsin Affiliated Hospitals, Inc., and Sheila Galbraith, M.D., Defendants-Third-Party Plaintiffs-Appellants, v. Albertson's, Inc., Osco Drug, Inc., and ABC Insurance Company, Third-Party Defendants-Respondents.
• Court: Wisconsin Supreme Court

728 N.W.2d 693

2007 WI 36

The ESTATE of Frank P. RILLE, by its Personal Representative, Susan RILLE, and Susan Rille, Plaintiffs-Respondents, Tommy Thompson, Secretary, Department of Health & Human Services, Involuntary-Plaintiff-Respondent, v. Physicians Insurance Company, Medical College of Wisconsin Affiliated Hospitals, Inc., and Sheila Galbraith, M.D., Defendants-Third-Party Plaintiffs-Appellants, v. Albertson's, Inc., Osco Drug, Inc., and ABC Insurance Company, Third-Party Defendants-Respondents.

No. 2005AP1407.

Supreme Court of Wisconsin.

Argued December 12, 2006.

Decided March 23, 2007.

For the defendants-third-party plaintiffs-appellants there were briefs by Michael B. Van Sicklen, Naikang Tsao, and Foley & Lardner LLP, Madison; Steven P. Sager, James Samuelsen, and Sager, Colwin, Samuelsen & Associates, S.C., Fond du Lac, and oral argument by Michael B. Van Sicklen.

For the third-party defendants-respondents there was a brief by William J. Katt, Mark D. Malloy, and Leib & Katt, S.C., Milwaukee, and oral argument by William J. Katt.

For the plaintiffs-respondents there was a brief by Edward E. Robinson and Cannon & Dunphy, S.C., Brookfield, and oral argument by Brett A. Eckstein.

An amicus curiae brief was filed by Linda V. Meagher and Habush Habush & Rottier, S.C., Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers.

ON CERTIFICATION FROM THE COURT OF APPEALS

¶ 1 SHIRLEY S. ABRAHAMSON, C.J

This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2003-04).¹ The circuit court for Waukesha County, Mark S. Gempeler, Judge, granted the motion of the third-party defendants, Albertson's, Inc. and Osco Drug, Inc., (collectively referred to as Osco Drug),² to dismiss the third-party complaint brought by the third-party plaintiffs, Physicians Insurance Company of Wisconsin, Inc., Medical College of Wisconsin Affiliated Hospitals, Inc., and Sheila Galbraith, M.D. (collectively referred to as Dr. Galbraith).

¶ 2 Dr. Galbraith's third party complaint sought contribution or indemnity from Osco Drug if Dr. Galbraith were found liable in the underlying medical malpractice lawsuit brought by the Estate of Frank P. Rille by Susan Rille, its Personal representative, and Susan Rille (collectively referred to as Rille) against Dr. Galbraith and Osco Drug.³

¶ 3 The circuit court granted Osco Drug's motion to dismiss Dr. Galbraith's third party complaint on the basis of a prior proceeding in the underlying medical malpractice lawsuit. Osco Drug had petitioned the circuit court in the underlying medical malpractice lawsuit for summary judgment when no party in response to the scheduling order submitted the names of expert witnesses or reports critical of the conduct of Osco Drug.

¶ 4 Rille did not oppose Osco Drug's motion for summary judgment. Dr. Galbraith did not oppose the motion for summary judgment as it related to Rille's underlying medical malpractice lawsuit, but Dr. Galbraith filed a brief and affidavits and appeared at the hearing on the motion. Dr. Galbraith attempted to preserve her contribution claim against Osco Drug, asking the circuit court to rule that the summary judgment was not on the merits and would not affect her rights to contribution or indemnity.

¶ 5 The circuit court granted Osco Drug's motion for summary judgment on the merits. The parties vigorously debated the wording of the summary judgment order relating to Dr. Galbraith's rights against Osco Drug. The circuit court adopted Dr. Galbraith's phrasing of the summary judgment order, which stated that "this order is no way intended to affect the rights of other parties to pursue claims under appropriate statutory and/or case law."

¶ 6 After summary judgment was granted (with the language quoted above) and after further discovery proceedings, Dr. Galbraith filed a third-party complaint against Osco Drug for contribution, which included allegations of Osco Drug's negligence that were substantially the same as those contained in Rille's complaint. Osco Drug moved to dismiss the third-party complaint against it on the ground of issue preclusion, arguing that Osco Drug's liability was preclusively determined in the earlier summary judgment order. The circuit court granted Osco Drug's motion to dismiss, and Dr. Galbraith appealed.

¶ 7 The issue presented is whether the circuit court erred in holding that issue preclusion barred the third-party claim of Dr. Galbraith for contribution against Osco Drug.

¶ 8 Addressing this issue requires the court to answer two questions: Was the issue of Osco Drug's negligence actually litigated and determined in the summary judgment motion so that the doctrine of issue preclusion applies? If the doctrine of issue preclusion applies, did the circuit court erroneously exercise its discretion when it applied issue preclusion in the present case?

¶ 9 For the reasons set forth, we hold that the issue of Osco Drug's liability was actually litigated and determined by summary judgment and that the circuit court did not preserve Dr. Galbraith's claim for contribution in its order on summary judgment. We further hold that the circuit court did not erroneously exercise its discretion when it ruled that application of issue preclusion was fundamentally fair. To preserve her contribution claim against Osco Drug successfully against a challenge on the ground of issue preclusion, Dr. Galbraith should have appeared and objected on the merits to Osco Drug's motion for summary judgment, thereby ensuring that there would be no possibility of inconsistent fact-finding on any issue central to Rille's claim and her own claim. Filing a brief and arguing that her claim for contribution should be preserved for a later date was not adequate, without any justification, to avoid issue preclusion under Precision Erecting, Inc. v. M & I Marshall & Ilsley Bank, 224 Wis.2d 288, 592 N.W.2d 5 (1998).

¶ 10 Accordingly, we affirm the order of the circuit court dismissing Dr. Galbraith's third-party complaint for contribution against Osco Drug.

I

¶ 11 Although the parties disagree about the proper legal inferences and legal conclusions to draw from the facts, the facts relevant to this appeal are not in dispute.

¶ 12 This appeal stems from a medical malpractice action. On March 10, 2003, Frank Rille filed a medical malpractice action against Dr. Galbraith and Osco Drug. An amended complaint was filed on August 1, 2003, following the death of Frank Rille, substituting as plaintiffs the Estate of Frank P. Rille, by its personal representative Susan Rille, and Susan Rille, in her personal capacity.

¶ 13 The medical malpractice complaint alleges that while treating Frank Rille's psoriasis condition, Dr. Sheila Galbraith issued a prescription for the drug methotrexate in a dosage higher than Galbraith's supervising physician instructed. The medication was supposed to be prescribed at the rate of 2.5 mg administered three times a week (total dosage of 7.5 mg per week). Instead the prescription, as written, directed the patient to take 7.5 mg per day (total dosage of 52.5 mg per week). An Osco Drug pharmacy filled the prescription as written, without questioning the dosage. Frank Rille took the drug as prescribed for several days. He became severely ill and required extended medical care.

¶ 14 Dr. Galbraith did not initially file a claim in Rille's action against her co-defendant, Osco Drug, and need not have done so. Contribution claims may, however, be brought in the original tort action.⁴ "To facilitate efficiency and eliminate the necessity of additional subsequent litigation, this court has approved the practice of allowing the contribution action to be considered in the same proceeding involving the underlying damage claim despite the contingent nature of this cross action."⁵

¶ 15 Contribution claims are not mandatory in the initial tort action.⁶ "While claims for contribution are commonly pled in the underlying personal injury action, there is no requirement that they be pled at that time."⁷ A party instead may wait until after he or she is adjudged liable before filing a contribution claim.⁸

¶ 16 Nevertheless, in her answer to both the initial complaint and the amended complaint, Dr. Galbraith references her contribution claim against Osco Drug. Specifically, in the "wherefore" clause of her answer, Dr. Galbraith asserted the following:

In the event this defendant is found jointly liable with any other defendant, then, and in that event, this defendant will be entitled to contribution and/or indemnity according to the law.

¶ 17 Dr. Galbraith's contribution claim was thus well known to all parties and the circuit court.

¶ 18 Under the circuit court's original scheduling order, Rille was required to disclose experts by August 1, 2003, and the defendants were required to disclose their experts by November 1, 2003.

¶ 19 On December 1, 2003, Osco Drug filed a motion for summary judgment. It alleged that no party has presented any expert witness or report establishing an inference of Osco Drug's negligence or a causal connection between any action or inaction of Osco Drug and the damages sought.⁹ Wisconsin courts have consistently maintained that medical malpractice negligence claims such as Rille's must be supported by expert testimony.

¶ 20 Rille did not oppose the motion for summary judgment. At the hearing, counsel for Rille explained:

We do not oppose Osco's motion for summary judgment based, in part, on the testimony that has come out from Dr. Galbraith at her deposition, number one. Number two, as a matter of strategy obviously the Court is aware of the competency and capabilities and trial prowess of both counsel seated here.

We have a clear claim in this case against Dr. Galbraith, the resident, who admitted that she wrote out an incorrect prescription; that the prescription was filled exactly as she wrote it out. Our client took it as written out,...