Weekly Case Digests – January 31, 2022 – February 4, 2022

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Roen Salvage Company v. Julie Sarter

Case No.: 20-3433

Officials: EASTERBROOK, ROVNER, and KIRSCH, Circuit Judges.

Focus: Statutory Interpretation – Limitation Act

Donald Sarter drowned after the vessel Monark #2 capsized in Lake Superior. His employer Roen Salvage, which owned Monark #2, filed this federal action under 46 U.S.C. §30505(a), asking the court to limit its liability to $25,000, which it says is the amount of its interest in the vessel. It also asked for exoneration from all liability, a possibility missing from §30505(a) (commonly called the Limitation Act) but mentioned in Rule F(2) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, an appendix to the Federal Rules of Civil Procedure.

The first question for us is whether any federal statute entitles a vessel owner to have a federal judge determine exoneration. The answer is no. Certainly §30505(a) does not do so. It reads: “Except as provided in section 30506 of this title, the liability of the owner of a vessel for any claim, debt, or liability described in subsection (b) shall not exceed the value of the vessel and pending freight. If the vessel has more than one owner, the proportionate share of the liability of any one owner shall not exceed that owner’s proportionate interest in the vessel and pending freight.” And §30506, to which the Limitation Act refers, likewise does not mention exoneration. Thus any entitlement to exoneration lies in the common law of admiralty. That’s how the Justices understood Rule F in Lewis—as a restatement of old admiralty decisions. It would be hard to see Rule F as a free-standing limit of liability or a reservation of exclusive federal jurisdiction, given the language in the Rules Enabling Act that the federal rules are not supposed to abridge substantive rights. 28 U.S.C. §2072(b). And Fed. R. Civ. P. 82 proclaims that the Rules of Civil Procedure do not affect subject-maker jurisdiction either.

Because Julie Sarter has promised that she will not plead res judicata should Roen Salvage return to federal court under §30505(a), and because Roen does not possess a right to have a federal court determine its claim to exoneration from liability, we need not remand for the district court to make these makers explicit in its order allowing state litigation. In the future, district judges should choose appropriate language that will obviate the sort of dispute the parties to this case have had about exactly what words a would-be state-court plaintiff must use in order to protect the vessel owner’s rights.

Affirmed
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7^th Circuit Court of Appeals

Case Name: William Dean v. Wexford Health Sources, Inc., et al.,

Case No.: 20-3058; 20-3139

Officials: WOOD, ST. EVE, and KIRSCH, Circuit Judges.

Focus: Prisoner – 8^th Amendment Violation

William Dean developed kidney cancer while incarcerated at Taylorville Correctional Center in central Illinois. Seven months after he first presented symptoms, Dean had kidney-removal surgery. Unfortunately, the cancer had already spread to his liver, so Dean remains terminally ill. In this lawsuit Dean sues two of the doctors involved in his care: Dr. Abdur Nawoor and Dr. Rebecca Einwohner. He also sues their employer—Wexford Health Sources, Inc.— a private corporation that contracts with Illinois to provide healthcare to Illinois inmates.

Dean’s lawsuit focuses on delays in the diagnosis and treatment of his kidney cancer. He blames the delays on his doctors’ failure to arrange timely offsite care and on Wexford’s “collegial review” policy, which requires Wexford’s corporate office to preapprove offsite care. Dean submits that the defendants’ actions were not merely negligent but deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The case went to trial, and the jury sided with Dean, awarding him $1 million in compensatory damages and $10 million in punitive damages against Wexford. After trial, the district court reduced the punitive damages award to $7 million. The defendants now appeal, challenging the jury’s verdicts on the Eighth Amendment claims.

We reverse. Dean has endured great suffering, but he did not produce enough evidence at trial to hold any of the defendants liable for violating his Eighth Amendment rights. Dean’s claim against Wexford hinged on the Lippert reports— two expert reports from another case that critique the medical care, and process for medical care, that Illinois provides, through Wexford, to its prisoners. The Lippert reports are hearsay, but the district court allowed Dean to use them for a non-hearsay purpose: to prove that Wexford had prior notice of the experts’ negative assessments of collegial review. The problem with the district court’s ruling is that the second Lippert report postdated all events relevant to this case and thus could not have given Wexford prior notice of anything. And even if the court did not abuse its discretion in admitting the first report—an issue we need not resolve—the first report alone was insufficient to hold Wexford liable under the exacting requirements of Monell v. Department of Social Services, 436 U.S. 658 (1978), in this single-incident case. Dean fares no better at proving that the doctor-defendants were deliberately indifferent, so we reverse and direct judgment as a matter of law across the board on the Eighth Amendment claims. We do not upset the jury’s findings that the defendants were negligent, but a new jury must reassess the issue of damages.

Reversed and remanded
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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Steven Tyrone Bratchett

Case No.: 2020AP1347-CR

Officials: Donald, P.J., Dugan and White, JJ.

Focus: Sufficiency of Evidence

Steven Tyrone Bratchett appeals his judgment of conviction for burglary, armed robbery, and attempted third-degree sexual assault, with various penalty enhancers and as a party to a crime. He also appeals the order denying his motion for postconviction relief. Bratchett argues that the trial court erred when it concluded that the photo array by which the alleged victim identified him was sufficiently reliable and when it admitted a photo of Bratchett wearing prison orange, which he argued was unfairly prejudicial. He further argues that trial counsel was ineffective for failing to impeach the alleged victim with a prior statement, for failing to cross-examine the alleged victim about the photo identification procedures, for failing to object to the prosecutor’s hypothetical statements in closing arguments, and for cumulative deficiencies. Finally, he asserts that the evidence was insufficient to convict him on the attempted third-degree sexual assault charge. We reject all of his arguments, and accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Steven Tyrone Bratchett

Case No.: 2020AP1347-CR

Officials: Sheila T. Reiff Clerk of Court of Appeals

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that corrections were made to page twentynine in the above-captioned opinion which was released on November 9, 2021. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Court of Appeals – District III

Case Name: Khiley M. Johnson v. Marshfield Clinic Health System, Inc., et al.,

Case No.: 2020AP1777; 2020AP1892

Officials: Stark, P.J., Hruz and Nashold, JJ.

Focus: Issue of Material Fact – Child Trespasser Exception

Khiley Johnson appeals a summary judgment granted in favor of Marshfield Clinic Health System, Inc. (Marshfield Clinic) and its insurer, Proassurance Casualty Company. Johnson was injured after a concrete bollard fell on her big toe in a vacant parking lot of Marshfield Clinic; she was twelve years old at the time. The circuit court concluded that Marshfield Clinic did not owe a duty of care to Johnson because she was a trespasser and no exceptions to that rule applied. On appeal, Johnson argues that genuine issues of material fact exist as to whether she had implied consent to enter the parking lot. She also argues that genuine issues of material fact exist on each condition of the child trespasser exception under WIS. STAT. § 895.529(3)(b) (2019-20).

We agree with both of Johnson’s arguments. We first conclude that genuine issues of material fact exist as to whether Johnson had implied consent to enter the parking lot because there is evidence that: (1) children used the lot; (2) Marshfield Clinic acquiesced to such use; and (3) Johnson entered the lot to catch her younger brother. We also conclude that genuine issues of material fact exist on each condition of the child trespasser exception. We therefore reverse the judgment in favor of Marshfield Clinic and remand for further proceedings consistent with this opinion.

Johnson also appeals a grant of summary judgment in favor of Nate’s Lawn Service, LLC (Nate’s) and its insurer, Society Insurance, a mutual company. At the direction of Marshfield Clinic, Nate’s placed the concrete bollards at the entrance of the parking lot several months before Johnson’s injury. The circuit court concluded that Nate’s was not negligent, and even if it was, public policy considerations precluded liability. Assuming without deciding that Nate’s was negligent, we conclude that public policy factors preclude holding Nate’s liable, and we therefore affirm the grant of summary judgment in favor of Nate’s.

Finally, Marshfield Clinic appeals a grant of summary judgment on its third-party claim of negligent supervision against Johnson’s grandmother, Judy Balog. The circuit court concluded that Johnson’s injury was not foreseeable, therefore barring Balog’s potential liability. Marshfield Clinic argues on appeal that Balog had a duty of care because leaving children unsupervised near public streets creates a foreseeable risk of harm. It also argues that public policy considerations do not preclude Balog’s potential liability. We conclude that genuine issues of material fact exist as to whether Johnson’s injury was foreseeable and that public policy considerations do not preclude her liability. Accordingly, we reverse the judgment in favor of Balog as part of our remand for further proceedings.

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WI Court of Appeals – District I

Case Name: Steggeman Investments, LLC v. Karin Nielsen

Case No.: 2020AP1905

Officials: DUGAN, J.

Focus: Sanctions – Summary Reversal of Appeal

Karin Nielsen appeals from an order of the circuit court in favor of Steggeman Investments, LLC, in this eviction action that Steggeman commenced against Nielsen on November 26, 2019. Steggeman has failed to file a brief in response to Nielsen’s appeal. Therefore, this court concludes that Steggeman abandoned this appeal, and this court exercises its discretionary power pursuant to WIS. STAT. RULE 809.83(2) to impose the sanction of summary reversal of the circuit court’s order in Steggeman’s favor. Accordingly, the circuit court’s order is reversed and this matter is remanded with directions to the circuit court to dismiss this case.

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WI Court of Appeals – District III

Case Name: VHC, Inc., v. Tissue Technology, LLC, et al.,

Case No.: 2020AP2013

Officials: Stark, P.J., Hruz and Nashold, JJ.

Focus: Claim Preclusion

Tissue Technology, LLC, appeals an order granting summary judgment and dismissing its third-party complaint against Nicolet Bankshares, Inc. (Nicolet). The circuit court concluded that claim preclusion bars Tissue Technology’s breach of contract claim because Tissue Technology could have pled the claim in an earlier lawsuit between the parties, but it failed to do so. The court also concluded that Tissue Technology did not establish its need for discovery in order to respond to Nicolet’s summary judgment motion. We agree with those conclusions, and we therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. T.E.-P.,

Case No.: 2021AP1473

Officials: DONALD, P.J.

Focus: Termination of Parental Rights

T.E.-P. appeals the order of the circuit court terminating her parental rights to her daughter, A.G. T.E.-P. contends that the circuit court erroneously exercised its discretion at the dispositional hearing when it found that it was in A.G.’s best interests to terminate T.E.-P.’s parental rights. We affirm.

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WI Court of Appeals – District II

Case Name: Lincoln Manor Redevelopment, LLC, v. Carson D. Combs

Case No.: 2019AP638; 2019AP2009

Officials: Gundrum, P.J., Neubauer and Reilly, JJ.

Focus: Eviction – Writ of Restitution

In these consolidated matters, Carson D. Combs, pro se, appeals an order granting summary judgment in favor of his landlord, Lincoln Manor, in a civil lawsuit that Combs filed. He also appeals an order denying his motion to dismiss and issuing a writ of restitution in an eviction action filed against him by Lincoln Manor. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Alexis Joel Reyes

Case No.: 2018AP1523-CR

Officials: Kloppenburg, Fitzpatrick, and Nashold, JJ.

Focus: Abuse of Discretion – Plain Error

Alexis Reyes appeals a judgment convicting him, after a jury trial, of one count of attempted first-degree intentional homicide as an act of domestic abuse and one count of first-degree reckless injury by use of a dangerous weapon. See WIS. STAT. §§ 940.01(1)(a), 939.32, 968.075(1)(a), 940.23(1)(a), and 939.63(1)(b) (2019-20). Reyes argues two issues on appeal. First, he argues that the circuit court erroneously exercised its discretion in denying his motion for a mistrial. Second, he argues that the admission of a police officer’s testimony that commented on another witness’s credibility constituted plain error entitling him to a new trial. For the reasons discussed below, we reject these arguments and affirm the judgment of the circuit court.

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WI Court of Appeals – District IV

Case Name: Town of Mentor v. State of Wisconsin, et al.,

Case No.: 2020AP1681

Officials: Blanchard, P.J., Kloppenburg, and Graham, JJ.

Focus: Sex Offender Placement – Intervention

This chapter 980 commitment case began in 2001 with the filing of a petition in the circuit court requesting that Charles Montgomery be committed as a sexually violent person. See WIS. STAT. ch. 980 (2019-20). The court ordered Montgomery civilly committed to a secure mental health facility. In June 2020, after Montgomery and the State reached a stipulation that he met the criteria for supervised release, the circuit court issued an order under which Montgomery’s residential placement would be in the Town of Mentor, in Clark County. The court based this decision on a placement report compiled by a temporary county-created committee that identified the residence as suitable for Montgomery’s placement and a supervised release plan written by the Wisconsin Department of Health Services. The Town filed a motion requesting that the circuit court allow it to intervene in this case as a matter of right. The circuit court denied the motion and the Town appeals.

The Town argues that it is entitled to intervene to advance the position that, under pertinent provisions of chapter 980, Montgomery’s proposed placement in the Town is improper. We conclude that, when the Town’s intervention interest is properly understood, the Town fails to meet at least one of the four required elements to establish entitlement to intervention as a matter of right under WIS. STAT. § 803.09(1). Specifically, the Town fails to show that Montgomery’s placement in the Town may as a practical matter impair its ability to protect its only asserted interest in this case.

The Town also argues that Montgomery does not meet the qualifications for supervised release and that this supports the Town’s motion for intervention. We conclude that the Town forfeited this argument for intervention because it failed to raise it in the circuit court and we decline to disregard forfeiture under the circumstances of this case. Accordingly, we affirm.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name:  Lisa A. Riegleman Revocable Trust v. Michael Eder, et al.,

Case No.: 2020AP975

Officials: Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

Focus: De Novo Review – Property Survey

Lisa A. Riegleman Revocable Trust (“the Trust”) appeals a final judgment, entered following a bench trial, determining the northern boundary of property that it owns in Lisbon, Wisconsin (“the property”). We conclude that the Trust fails to show that the circuit court acted improperly in rejecting the accuracy of the Trust’s survey of the property and in accepting the accuracy of existing recorded surveys. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Lisa A. Riegleman Revocable Trust v. Michael Eder, et al.,

Case No.: 2020AP975

Officials: Sheila T. Reiff Clerk of Court of Appeals

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that a correction was made to the heading in section II.C. on page 10 in the above-captioned opinion which was released on November 11, 2021. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Court of Appeals – District III

Case Name: Trempealeau County Department of Social Services v. T.M.M.,

Case No.: 2021AP100; 2021AP139

Officials: HRUZ, J.

Focus: Involuntary Commitment and Medication

Tiffany appeals from an order extending her involuntary commitment and an order for involuntary medication and treatment, both entered pursuant to WIS. STAT. ch. 51. Tiffany argues that the Trempealeau County Department of Social Services (“the County”) failed to establish that she was dangerous under any of the standards set forth in WIS. STAT. § 51.20(1)(a)2. She also challenges the circuit court’s determination that she was not competent to refuse medication or treatment. Finally, Tiffany argues that the court’s ruling at her recommitment hearing did not satisfy the requirements set forth in Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, because the court failed to identify the particular subdivision paragraph under § 51.20(1)(a)2. on which it based its dangerousness determination. We conclude that the County failed to present sufficient evidence to establish that Tiffany was dangerous under any of the legal standards set forth in § 51.20(1)(a)2. Accordingly, we reverse both orders.

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