Zimbauer v. Milwaukee Orthopaedic Group, Ltd.

• Decision Date: 03 April 1996
• Docket Number: No.: 93-C-1298.,: 93-C-1298.
• Parties: Jason ZIMBAUER, Plaintiff, v. MILWAUKEE ORTHOPAEDIC GROUP, LTD., Dennis M. Sullivan, M.D., Milwaukee Brewers Baseball Club, Inc., and National Union Fire Insurance, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

920 F. Supp. 959

Jason ZIMBAUER, Plaintiff, v. MILWAUKEE ORTHOPAEDIC GROUP, LTD., Dennis M. Sullivan, M.D., Milwaukee Brewers Baseball Club, Inc., and National Union Fire Insurance, Defendants.

No.: 93-C-1298.

United States District Court, E.D. Wisconsin.

April 3, 1996.

COPYRIGHT MATERIAL OMITTED

Steven T. Mandell, Law Office of Steven T. Mandell, Northbrook, IL, for plaintiff.

Dan J. Gendreau, Peterson, Johnson & Murray, Milwaukee, WI, for Milwaukee Orthopaedic

Group, Ltd. and Dennis M. Sullivan.

John E. Cain, Kasdorf, Lewis & Swietlik, Milwaukee, WI, for Milwaukee Brewers.

DECISION AND ORDER

WARREN, Senior District Judge.

Before the Court is the Recommendation of Magistrate Judge Aaron E. Goodstein on Milwaukee Orthopaedic Group, Ltd.'s and Dr. Dennis M. Sullivan's (hereinafter collectively referred to as "defendants") Motion for Summary Judgment. On November 8, 1995, Magistrate Judge Goodstein recommended that the defendants' Motion for Summary Judgment be granted. On December 15, 1995, plaintiff filed an Objection to the Magistrate Judge's Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 13.03 requesting a de novo review of the Magistrate Judge's decision. On December 19, 1995, defendants filed a Response to Plaintiff's Objections. For the following reasons, this Court adopts Magistrate Judge Goodstein's Recommendation and the defendants' Motion for Summary Judgment is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was a pitcher for the Milwaukee Brewers. On September 11, 1990, after hearing a "pop" in his shoulder while throwing a new pitch, plaintiff first sought medical treatment from defendants. Defendants found no problems. Approximately nine months later, the plaintiff returned complaining of pain due to the new pitch. Defendants diagnosed plaintiff's condition as a recurrent subluxation of the shoulder. For a period of time from June 28, 1991 to April 12, 1993, plaintiff remained in the care of defendants, who performed arthroscopic surgery and capsular shift repair of the shoulder on January 9, 1992, and directed rehabilitation and therapy both before and after the surgery. However, plaintiff's pain continued. On April 17, 1993, plaintiff consulted another physician, Dr. James Hill, who diagnosed a possible partial rotator cuff tear in the shoulder. Subsequent arthroscopy by Dr. Hill revealed a partial tear of the rotator cuff. Plaintiff is now in constant pain and his use and movement of his arm is limited. He cannot pitch and may need a shoulder replacement by the time he is 30 years old.

On August 11, 1993, plaintiff filed a Complaint in the U.S. District Court for the Northern District of Illinois, Eastern Division, alleging that defendants negligently misdiagnosed and mistreated plaintiff's injured shoulder and that this negligence caused pain and permanent disability. Plaintiff requests compensation in excess of $50,000.00 for past and future pain, mental anguish, bodily injury, permanent disability, medical and hospital expenses, and lost wages. On November 24, 1993, the case was transferred from the Northern District of Illinois, Eastern Division, to the Eastern District of Wisconsin pursuant to a stipulation and Order for Transfer of Venue. Plaintiff amended his Complaint twice to add first the Milwaukee Brewers on August 29, 1994, then National Union Fire Insurance on November 16, 1994, as defendants because of their possible subrogation interests. Defendants' Answer to the Amended Complaint was filed October 20, 1994.

The Court set an initial scheduling order of April 15, 1994, which, in accordance with Local Rule 7.07(d)(1) required plaintiff to disclose all expert witnesses within 60 days after completion of mediation or August 1, 1994, whichever occurred later. On August 29, 1994, plaintiff identified Dr. James A. Hill as his expert witness in response to interrogatories. In a letter dated July 25, 1994, plaintiff's counsel indicated that plaintiff did not intend to name any expert other than Dr. Hill. The scheduling order was amended August 3, 1994 to allow defendants until October 3, 1994, to disclose their expert witnesses. During August, September, and October, 1994, defendants tried unsuccessfully to depose plaintiff's expert witness, Dr. Hill. On October 3, 1994, the Court again amended the scheduling order to allow defendants until November 15, 1994, to name expert witnesses and conduct an interview of plaintiff's medical expert.

On October 28, 1994, defendants filed a Motion to Compel the deposition of plaintiff and plaintiff's expert witness. The Court granted this Motion to Compel on November 18, 1994, granting defendants until January 13, 1995 to name their expert witnesses, and plaintiff until February 17, 1995 to name rebuttal expert witnesses. Defendants deposed Dr. Hill on January 10, 1995 at his office in Chicago, IL. Plaintiff's counsel was present. At four separate times during the deposition, defendants' counsel inquired whether Dr. Hill had formulated any opinion as to the care and treatment rendered to plaintiff by the defendants. Dr. Hill testified that he had not made an opinion as to the care and treatment rendered to plaintiff by defendants and that he intended neither to make one nor to testify to an opinion at trial. Plaintiff's counsel made no response to these questions or to Dr. Hill's responses, either to object or to clarify the expert witness' testimony.

On March 11, 1995, plaintiff filed a Motion to Name Expert or Clarify. On March 17, 1995, defendants filed a Motion for Summary Judgment and supporting brief. Plaintiff's Motion to Name Expert or Clarify was denied on April 13, 1995. Plaintiff, in its response to defendants' Brief in Support of Motion for Summary Judgment, raised the issue of res ipsa loquitur for the first time and included the affidavit of its expert witness, Dr. Hill. Defendants' reply, filed June 8, 1995, protested the applicability of res ipsa loquitur and the inclusion of this affidavit following the Court's denial of plaintiff's Motion to Name Expert or Clarify. On November 8, 1995, Judge Aaron Goodstein recommended that the Court grant defendants' Motion for Summary Judgment. Plaintiff filed its objections on December 15, 1995 and defendants responded on December 19, 1995.

II. STANDARD OF REVIEW

A district court must review de novo the recommendations of the Magistrate Judge to which either party timely objects. 28 U.S.C. § 636(b)(1)(C); United States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 2411-13, 65 L.Ed.2d 424 (1980). The Court may review de novo any other aspect of the Recommendation as it sees fit. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986) ("The statute should be read as permitting modifications and de novo determinations by the district judge at all times but mandating de novo determinations when objections are raised.") (emphasis in original) (citations omitted). See also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Although, in absence of such objections, the Court need not make any review, "the better practice" is to afford "some level of review" to dispositive issues, even where a de novo determination is not required. Henderson v. Carlson, 812 F.2d 874, 878 (3rd Cir.), cert. denied, 484 U.S. 837, 108 S.Ct. 120, 98 L.Ed.2d 79 (1987). The Court may adopt the Recommendation in its entirety, or in part; the Court retains final authority of judgment in the case. Delgado, 782 F.2d at 82.

III. ANALYSIS

In a diversity case, the choice of law rules in the forum state govern which substantive law will be applied. Korth v. Mueller, 310 F.Supp. 878, 880 (W.D.Wis. 1970). Wisconsin, the forum state, has substantial interests because the plaintiff, while an Illinois resident, sought treatment and was treated in Wisconsin. Thus, the underlying facts giving rise to the litigation occurred in Wisconsin. The parties have not contested the choice of law and, therefore, the Court agrees with the determination by the Magistrate Judge that Wisconsin law applies.

A. Whether Plaintiff has Established a Material Factual Dispute Precluding Summary Judgment.

Defendants seek summary judgment on the grounds that plaintiff has failed to produce an expert opinion that would tend to establish as a triable issue whether defendants were negligent in their diagnosis and treatment of plaintiff and that said negligence resulted in plaintiff's injury. Defendants argue that it has presented a prima facie case that a triable issue does not exist and that, to sustain its burden in proving that a triable issue does exist, plaintiff must present specific facts. Defendants assert that the plaintiff has failed to meet its burden. Plaintiff argues that he has presented triable issues of fact within the facts surrounding his treatment by defendants and by his expert's testimony.

Federal Rule of Civil Procedure Rule 56(c) states "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law," summary judgment shall be granted. Local 1545, United Mine Workers of America v. Inland Steel Coal Co., 876 F.2d 1288, 1292 (7th Cir.1989); Board of Regents v. Mussallem, 94 Wis.2d 657, 289 N.W.2d 801, 808 (1980) (citing Taterka v. Ford Motor Co., 86 Wis.2d 140, 271 N.W.2d 653 (1978)). Only "genuine" issues of "material and outcome determinative fact" will defeat an otherwise "proper" motion for summary judgment. Vasquez v. Hernandez, 60 F.3d 325, 328 (7th Cir.1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). "A genuine issue of material fact exists only where there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Santiago v. Lane, 894 F.2d 218, 221 (7th Cir.1990) (citing Wolf v. City of...