00-3056 Ocasio v. Froedtert Memorial Lutheran Hospital, et al.

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“If the legislature intended the result the defendants urge, it could have expressly stated that a claimant’s failure to participate in a mediation session within the statutory mediation period results in dismissal. It did not do so. In the absence of express language, we are unwilling to read the harsh penalty of dismissal of the lawsuit into the mediation statute. The tenor of modern law is to avoid dismissal of cases on technical grounds and to allow adjudication on the merits.

“In addition, if failure to comply with sec. 655.44(5) mandated dismissal, the statute would promote game playing rather than an informal, flexible procedure for dispute resolution. An interpretation of the statute to mandate dismissal would allow defendants to lie in the weeds until the statute of limitations ran, then move to dismiss based on the plaintiff’s failure to comply with sec. 655.44(5). The statute would serve as a trap for the unwary, not the informal and flexible system intended.

“In short, we follow precedent and the purpose of the statute to conclude that a plaintiff’s failure to comply with the timing provision in sec. 655.44(5) does not mandate that the circuit court dismiss an action. As in Schulz, in the absence of language expressly mandating the remedy of dismissal, we are unwilling to read into the statute the requirement of such a harsh remedy for noncompliance with this mediation provision.”

The decision of the court of appeals is reversed and the cause is remanded for further proceedings.

DISSENTING OPINION: Crooks, J., with whom Sykes, J., joins. “I cannot join the majority’s opinion because I disagree that failure to comply with Wis. Stat. sec. 655.44(5) does not necessitate dismissal. The majority acknowledges that Ocasio failed to comply with sec. 655.44(5), but then concludes that the statute is silent as to the appropriate remedy, requiring the court to look to the purpose of the statute and previous interpretations given other timing provisions in ch. 655. I respectfully dissent because this analysis is wholly unnecessary. The language in sec. 655.44(5) unambiguously states, ‘no court action may be commenced’ unless two conditions are satisfied. I find this language unambiguous and instructive regarding the appropriate remedy for failure to comply with the statute. Failure to comply with sec. 655.44(5) necessitates dismissal since a statutory condition precedent was not met.”

Court of Appeals, Bradley, J.

Attorneys:

For Appellant: Thomas A. Ogorchock, Timothy J. Aiken, Milwaukee

For Respondent: Todd M. Weir, Jennifer A. Slater Carlson, Milwaukee