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    Wisconsin Lawyer
    March 01, 2016

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Constitutional Law and Civil Procedure

    First Amendment – 42 U.S.C. § 1983 Retaliation Claims – Suits Against Public Officials – “Incorporation-by-Reference” Doctrine

    Soderlund v. Zibolski, 2016 WI 6 (filed 8 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDING: The circuit court did not err when it determined that the plaintiff failed to state a retaliation claim under 42 U.S.C. § 1983 for a violation of his First Amendment rights and therefore granted the defendant’s motion for judgment on the pleadings.

    SUMMARY: Plaintiff Soderlund was employed by the Wisconsin Department of Justice (DOJ) for 19 years as a forensic scientist in the State Crime Laboratory. Defendant Zibolski was the deputy director of the DOJ’s Division of Law Enforcement Services. The plaintiff’s central claim in this 42 U.S.C. § 1983 action was that Zibolski violated his First Amendment rights by initiating a disciplinary proceeding against him in retaliation for his numerous communications within the DOJ and to outside laboratory accreditation agencies regarding his performance reviews for footwear and fingerprint identifications and the standards that should be applied to such work.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The circuit court granted Zibolski’s motion for judgment on the pleadings and dismissed Soderlund’s claims. In a decision authored by Reserve Judge Cane, the court of appeals affirmed.

    The appellate court concluded that Soderlund failed to plead a claim against Zibolski in his official capacity. A claim for damages against state officials in their official capacity cannot be brought under 42 U.S.C. § 1983, because such actions are viewed as ones against the state and the officials are not considered “persons” under that statute (see ¶ 23). Accordingly, the circuit court properly dismissed the claim for damages against Zibolski in his official capacity. The court of appeals noted that a plaintiff can secure prospective, equitable relief from state officials in their official capacities, but it agreed with the circuit court that Soderlund’s failure to demand any prospective relief in his complaint, such as reinstatement, precluded him from suing Zibolski in his official capacity (see ¶ 25).

    Soderlund also argued that the circuit court, when granting Zibolski’s motion for judgment on the pleadings, improperly considered the contents of one of Soderlund’s letters to an accreditation board. Soderlund filed the letter with the circuit court when, acting pro se, he attempted (unsuccessfully) to commence an earlier lawsuit against Zibolski. He contended that, if the circuit court were going to consider this letter, the court was required under Wis. Stat. section 802.06(2)(b) and (3) to convert Zibolski’s motion for judgment on the pleadings into a summary judgment motion.

    The court of appeals disagreed. “We adopt the incorporation-by-reference doctrine and reject Soderlund’s argument. The Wis. Stat. § 802.06(2)(b) and (3) conversion-to-summary-judgment requirement is patterned on Fed. R. Civ. P. 12(d). The Seventh Circuit has recognized an exception to the Rule 12(d) requirement in the incorporation-by-reference doctrine. Under that exception, a court may consider a document attached to a motion to dismiss or for judgment on the pleadings without converting the motion into one for summary judgment, if the document was referred to in the plaintiff’s complaint, is central to his or her claim, and its authenticity has not been disputed” (¶ 37) (citation omitted). In this case, Soderlund did not dispute that these three prerequisites for applying the incorporation-by-reference doctrine were satisfied (see ¶ 39).

    Lastly, the appellate court considered whether Soderlund’s speech was protected by the First Amendment. In Connick v. Myers, 461 U.S. 138 (1983), the U.S. Supreme Court held that the First Amendment protects speech by governmental employees when they speak “as a citizen upon matters of public concern,” but not when they speak “as an employee upon matters only of personal interest” (¶ 41). In this case, the court concluded that “Soderlund’s speech was not protected by the First Amendment, because he spoke on a matter of personal concern, rather than public concern, and because he spoke in his capacity as a public employee, rather than as a citizen” (¶ 3).

    Criminal Law

    Robbery of Financial Institution – Wis. Stat. section 943.87 – Sufficiency of Evidence

    State v. Eady, 2016 WI App 12 (filed 22 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDING: Circumstantial evidence was sufficient to establish that the victimized premises in this robbery was a bank chartered under either state or federal law.

    SUMMARY: Defendant Eady was convicted of robbery under Wis. Stat. section 943.87 for robbing a financial institution, a U.S. Bank branch in Milwaukee. On appeal he argued that there was insufficient evidence to establish that the bank was chartered under either state or federal law, which is an element of the crime.

    In a decision authored by Reserve Judge LaRocque, the court of appeals held that, although the state did not offer direct evidence of the bank’s charter, there was circumstantial evidence sufficient to support the jury’s verdict (see ¶ 1).

    “We conclude the circumstantial evidence of a chartered bank here – including evidence regarding the day-to-day operation of the bank, the U.S. Bank deposit slip found in the clothing [worn by the defendant during the robbery and] discarded near the bank, and the numerous signs [on the bank premises] indicating that the bank was a ‘U.S. Bank’ insured by the FDIC – was sufficient in probative value and force such that it cannot be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt” (¶ 12).

    Criminal Law and Criminal Procedure

    Theft – Continuing Offense – Statute of Limitation – Venue

    State v. Elverman, 2015 WI App 91 (filed 10 Nov. 2015) (ordered published 16 Dec. 2015)

    HOLDINGS: 1) The defendant’s theft of the victim’s property was a continuing offense. 2) The criminal complaint, which aggregated the value of multiple thefts to charge a theft exceeding $10,000, did not deprive the defendant of notice of the charge against him even though the charging document did not cite the aggregation statute. 3) The prosecution was not time barred by the statute of limitation. 4) Venue was proper in Milwaukee County. 5) The circuit court did not err in denying a defense request for a unanimity jury instruction. 6) The evidence was sufficient to establish nonconsent.

    SUMMARY: The case involved the theft of a large sum of money from an elderly woman (D.P.) suffering from dementia. Defendant Elverman was her lawyer, and he had also been given her durable financial power of attorney. A criminal complaint was filed alleging that Elverman had committed theft exceeding $10,000, in violation of Wis. Stat. sections 943.20(1)(a) and (3)(c) and 939.50(3)(g), between March 25, 2003, and Sept. 23, 2004, by transferring D.P.’s movable property without consent and with the intent to permanently deprive D.P. of the property. The complaint identified numerous checks issued to the defendant and signed by the victim, which ranged in amount from $4,500 to $9,750 and totaled more than $374,000.

    The jury convicted the defendant of the single count of theft exceeding $10,000 with which the defendant was charged. The defendant appealed and, in a decision authored by Judge Curley, the court of appeals affirmed.

    On appeal, the defendant raised numerous issues. First, he contended that the complaint failed to give him sufficient notice of the charge. This challenge was related to the prosecutor’s reliance on Wis. Stat. section 971.36(3), which provides that in cases involving more than one theft, the thefts can be prosecuted as a single crime if the property belonged to the same owner and the thefts were committed pursuant to a single intent and design. By aggregating the thefts in this fashion, the state was able to prove value in excess of $10,000 (which elevated the crime to a Class G felony). However, the state failed to allege its reliance on the aggregation statute in the pleadings.

    The court of appeals concluded that “[w]hile citation to a specific statute may be the preferred practice, failure to specifically cite to a statute in the complaint and information is harmless error where there is no prejudice to the defendant” (¶ 22). In this case, the defendant repeatedly challenged the applicability of Wis. Stat. section 971.36 before trial, and the court concluded that he cannot reasonably argue that he was unaware of the proof requirements (“single intent and design”) associated with the statute.

    The defendant also claimed that this prosecution was barred by the statute of limitation. Again the court of appeals disagreed. “Having granted prosecutors the authority to charge multiple thefts as a single crime, we conclude that Wis. Stat. § 971.36(3)(a) evidences the legislature’s intention that theft contrary to Wis. Stat. § 943.20(1)(a) can be charged as a continuing offense” (¶ 31). Continuing offenses are not complete until the last act (in this case cashing the last check) is completed (see ¶ 30).

    The state had six years after the last act to “commence” the prosecution. Wisconsin Statutes section 939.74 provides that, for purposes of the statute of limitation, a prosecution is “commenced” when a warrant or summons is issued, an indictment is found, or an information is filed. None of these events occurred before the statute of limitation expired. However, a criminal complaint was issued and the defendant voluntarily appeared in court before the statute expired.

    On these facts, the court rejected the defendant’s argument that the filing of the complaint was not sufficient to commence prosecution of this action before running of the statute of limitation, “as so holding would lead to an absurd result in light of the undisputed fact that Elverman voluntarily appeared before the court not once, but twice, prior to [the expiration of the statute]” (¶ 36). “[T]here would have been no reason to issue a warrant for Elverman after he had already appeared before the commissioner, as the purpose of a warrant is to notify the defendant that he has been charged and must appear” (¶ 35). See State v. Jennings, 2003 WI 10, 259 Wis. 2d 523, 657 N.W.2d 393.

    The defendant also raised a venue issue in this case. However, the court concluded that, under Wis. Stat. section 971.19(2), venue is appropriate in any county in which at least one of the alleged acts occurred if the charge is based on a continuous offense. There is no dispute that at least one of the checks was cashed in Milwaukee County. “Having concluded that theft can be and was properly charged as a continuous offense, venue was therefore proper in Milwaukee County” (¶ 38).

    The appellate court also concluded that the circuit court did not deprive the defendant of his right to a unanimous verdict when it denied him a jury instruction that would have told the jury that it was required to unanimously agree as to which checks constituted the defendant’s commission of theft. “Elverman argues that a specific check could not be found to support the crime charged unless all jurors unanimously agreed that the required elements of theft had been met as to that specific check” (¶ 39).

    Said the court in reply: “While multiple checks were introduced as evidence of the ongoing theft, the jury was not required to unanimously agree that all elements necessary to prove theft had been established as to each individual check. Rather, the jury was required to unanimously agree that Elverman had, during the period beginning on March 25, 2003, and ending on September 23, 2004, committed all elements of theft as part of one continuous crime” (¶ 49).

    Lastly, the court of appeals concluded there was sufficient evidence on which the jury could conclude that D.P. did not consent to the theft and the defendant knew that she did not or could not consent.

    Criminal Procedure

    Discovery – Witness List – Sanctions – Exclusion of Witnesses

    State v. Prieto, 2016 WI App 15 (filed 30 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDING: The district attorney’s office failed to show good cause for its discovery violation of Wis. Stat. section 971.23(1)(d), and the circuit court did not err in its decision to sanction the violation by excluding the state’s witnesses.

    SUMMARY: This case concerns sanctions imposed by the circuit court for the state’s failure to comply with discovery obligations to provide its witness list to the defendant. Wisconsin Statutes section 971.23(1)(d) provides that if a defendant demands a witness list from the state, the district attorney “shall, within a reasonable time before trial,” provide a list of all witnesses the district attorney intends to call at trial. If the district attorney fails to comply with this demand, “[t]he court shall exclude any witness not listed … unless good cause is shown for failure to comply.” See Wis. Stat. § 971.23(7m). In appropriate cases, the court may grant a recess or continuance to the opposing party or advise the jury about the failure. See Wis. Stat. § 971.23(7)(a), (b).

    Defendant Prieto was charged in Kenosha County on May 24, 2012, with causing great bodily harm to a child in a type of case commonly referred to as “shaken baby.” Prieto promptly made a statutory demand to the district attorney to disclose all witnesses who the district attorney intended to call against her at trial. The district attorney ignored Prieto’s request. On Dec. 4, 2013, the circuit court ordered the district attorney to provide its witness list within 60 days and scheduled a trial for June 23, 2014. The district attorney ignored the court’s order to name its witnesses.

    The court postponed the trial and at a hearing on Aug. 15, 2014, scheduled a trial for Feb. 9, 2015, and ordered the district attorney to provide its witness list within 20 days. The district attorney again ignored the court’s order. On Jan. 23, 2015, Prieto moved to exclude any witness the state intended to call at trial whom it had not already named. The court granted Prieto’s motion, leaving the state with one witness whom the court found the state had previously disclosed that it would call.

    The district attorney’s office offered no “good cause” for its failure to list its witnesses during the previous two-plus years. On Jan. 26, 2015, 14 days before trial, the district attorney filed a witness list followed by a motion for reconsideration of the court’s exclusion order. The court denied the motion, and the state took an interlocutory appeal.

    In its appeal, the state acknowledged that the district attorney’s office did not have good cause for its failure to list its witnesses. The state nevertheless contended that the court erred because Wis. Stat. section 971.23(7m) does not mandate the exclusion of witnesses, and the district attorney’s naming of witnesses 13 days before trial was “within a reasonable time before trial.”

    In a majority decision authored by Judge Reilly, the court of appeals affirmed the circuit court’s decision. “Accepting without deciding that exclusion is discretionary rather than mandatory under § 971.23(7m), we conclude the circuit court did not erroneously exercise its discretion in excluding the State’s witnesses given the district attorney’s flagrant disregard of § 971.23 and the court’s orders” (¶ 4).

    Said the appellate court, “[w]e share the circuit court’s regret that the actions of the district attorney may prevent the merits of this case from being fully tried. We remind the State that the magnitude of the sanction imposed by Wis. Stat. § 971.23(7m) is measured by the degree of the district attorney’s violation of § 971.23(1): the greater the number of witnesses a district attorney does not disclose upon demand, the greater the number of witnesses he or she puts at risk of being excluded from trial. It is the district attorney who ultimately determines what sanction is available against his or her office. The district attorney’s office ignored § 971.23(1)(d) and the court’s orders at its peril” (¶ 15).

    Judge Hagedorn filed a concurring opinion.

    Interrogation – Attenuation

    State v. Harris, 2016 WI App 2 (filed 30 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDING: Although police officers unlawfully questioned a suspect who had not waived his Miranda rights, his later statements to police were admissible under the doctrine of attenuation.

    SUMMARY: The defendant was arrested in the darkened basement of a townhouse he had entered to steal copper pipe. He was convicted of burglary and related offenses. On appeal, the defendant claimed that several of his statements to police should be suppressed.

    The court of appeals affirmed in an opinion authored by Judge Gundrum. The first statements at issue were the defendant’s volunteered, incriminating remarks made while he was sitting in the back seat of a squad car. The state conceded that police officers unlawfully questioned the defendant in the basement: he was under arrest but had not been read his Miranda rights; thus, there was no valid waiver (see ¶ 12).

    The circuit court, however, properly admitted the defendant’s later statements made in the back of a squad car because they were sufficiently attenuated from the unlawful interrogation. The element of “temporal proximity” tipped in the defendant’s favor, because only a short time separated the two sets of statements (¶ 15). Yet the element of “intervening circumstances” supported the state, because police officers were not “interacting” with the defendant when he made the second set of statements (¶ 16). The third factor, the “flagrancy” of the police misconduct, also weighed in the state’s favor, as the police had done nothing to exploit the primary illegality (¶ 17).

    Nor was the defendant subjected to unlawful interrogation at the police station. When asked whether he would like to make a formal statement to detectives, he made an incriminating remark (“I got caught, man, there’s nothing else to say.”) (see ¶ 24). Although the record was unclear about exactly what the officer said that sparked the defendant’s response, the court held that it did not amount to “interrogation,” that is, words or conduct reasonably likely to elicit an incriminating response.

    Suppression Hearing – Evidence – Due Process

    State v. Zamzow, 2016 WI App 7 (filed 2 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDING: In a suppression hearing, the trial judge properly relied on video and audio recordings from the dash camera of a squad car even though the arresting officer did not testify.

    SUMMARY: The defendant was arrested for operating while intoxicated. He moved to suppress evidence stemming from what he asserted was an unlawful traffic stop. At the suppression hearing, the court watched and listened to the audio and video recordings from the squad car’s dashboard camera (“dash cam”). The arresting officer had died before the hearing. The defendant objected to the dash cam evidence on confrontation grounds. The circuit court received the evidence and denied the motion to suppress.

    The court of appeals affirmed in an opinion authored by Judge Gundrum. The visual and audio evidence from the dash cam supported the stop of the defendant’s car on the basis of erratic driving. Motions to suppress are not governed by the rules of evidence nor does the confrontation right extend to pretrial hearings. In short, the trial judge’s reliance on the dash cam evidence, absent the officer’s testimony, did not violate the defendant’s due-process rights.

    Judge Reilly dissented on grounds that the confrontation right, post-Crawford v. Washington, 541 U.S. 36 (2004), applies to suppression hearings. “The effect of the majority’s decision is that evidentiary hearings are no longer necessary to the determination of whether a warrantless search and/or seizure was constitutional” (¶ 22).

    Ineffective Assistance of Counsel – Trial Errors

    State v. Honig, 2016 WI App 10 (filed 22 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDING: Trial counsel was ineffective in several ways, thus warranting a new trial.

    SUMMARY: A jury convicted the defendant of multiple counts of child sexual abuse. The defendant moved for postconviction relief on grounds that trial counsel was ineffective, but the trial judge denied the motion. The court of appeals reversed in an opinion authored by Judge Kessler. The opinion is necessarily fact intensive because trial counsel’s mistakes involved numerous evidentiary lapses that resulted in prejudicial error.

    First, trial counsel failed to call a witness who supported the defense theory that a third party convinced the victim to falsely accuse the defendant. The record was “devoid” of any strategic reason for this decision (¶ 30). Second, counsel failed to object to evidence of other similar crimes that pointed only to the defendant’s bad character, not any permissible purpose. Indeed, the trial judge said that she would have likely excluded the evidence had trial counsel objected (see ¶ 37). Third, trial counsel did not impeach one young victim with a prior inconsistent statement she made in a video statement. The prior statements in question were exculpatory.

    Deceptive Practices

    Deceptive Representations – Wis. Stat. section 100.18(1) – “As Is” and Exculpatory Clauses – Representations “to the Public”

    Fricano v. Bank of Am. NA, 2016 WI App 11 (filed 23 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDINGS: 1) There was sufficient evidence to support the jury’s verdict that the defendant bank (the seller) made a deceptive statement concerning the sale of the property with the intention of inducing the sale of the property, and that the plaintiff (the buyer) suffered a loss as a result of that representation. 2) The as-is and exculpatory clauses in the parties’ contract do not, as a matter of law, relieve the bank of liability under Wis. Stat. section 100.18(1) for its deceptive contractual representation that induced agreement to such terms.

    SUMMARY: Bank of America N.A. (the Bank) appealed from a judgment in favor of Fricano on her Wis. Stat. section 100.18(1) deceptive-representation claim. A jury found the Bank’s deceptive representation in the sale contract induced Fricano to enter into the purchase of a home from the Bank, and the jury awarded her compensatory damages for extensive water and mold damage despite the as-is and exculpatory clauses in the parties’ contract. In a decision authored by Judge Neubauer, the court of appeals affirmed.

    The Bank contended that Fricano cannot recover under Wis. Stat. section 100.18(1) as a matter of law because she signed certain documents stating that she bought the property as is and that she disclaimed any representations regarding the property’s condition. The appellate court disagreed.

    These documents also represented that the Bank had “little or no direct knowledge regarding the condition of the property” (¶ 9). Fricano claimed that she relied on this statement in agreeing to disclaim and waive reliance on the Bank’s representations because she was told the Bank had little to no information – “which is indisputably false” (¶ 26). “There is nothing in the ‘as is’ provision, the disclaimers or the waivers that ‘clearly, unambiguously and unmistakably’ informed the buyer that she was not entitled to rely on the representation in the sale contract itself, a representation that induced agreement to precisely those exculpatory provisions” (id.).

    The Bank also argued that, as a matter of law, its misrepresentation was not made to “the public” (an element of a Wis. Stat. section 100.18(1) claim) because, by the time it made the misrepresentation, it had a “particularized relationship” with Fricano. The statute does not define “the public” but prior appellate cases have held that a person remains a member of the public until a “particular relationship” exists between that person and the defendant. In this case there was no contract between the parties when the Bank misrepresented its knowledge to Fricano about the condition of the property. Had there already been a contract, Fricano would no longer have been a member of the public for purposes of Wis. Stat. section 100.18(1) (see ¶ 29).

    Lastly, the appellate court concluded that the evidence supported the jury’s finding that the Bank’s misrepresentation induced Fricano to purchase the property and that its misrepresentation was made with the intent to so induce her.


    Expert Testimony – Child Abuse – Ineffective Assistance of Counsel

    State v. Smith, 2016 WI App 8 (filed 9 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDING: A social worker with experience working with child abuse victims properly testified about reactive behaviors generally seen in such children, and the defense’s cross-examination in which the lawyer asked a prosecution witness whether she believed the victim was truthful was reasonable.

    SUMMARY: A jury convicted the defendant of sexual assault of a child. At trial the court permitted expert testimony by a social worker about child victims’ commonly observed reactive behaviors. Defense counsel also cross-examined an investigator about her opinion that a victim was truthful about her allegations.

    The court of appeals affirmed in an opinion authored by Judge Reilly. First, the trial judge properly admitted the social worker’s testimony under the Daubert rule. See Wis. Stat. § 907.02. The testimony related only to generally observed behaviors, not the facts of this case. Exclusion of expert testimony is not required just because the “proposed expert testimony did not neatly fit the Daubert factors” (¶ 9).

    The social worker’s testimony was similar to that allowed in federal courts using the same rule as well as Wisconsin case law under the former standard. Her testimony “was generally accepted within her discipline and was not the product of ungrounded speculation” (id.). Finally, the record supported the circuit court’s determination that the social worker was qualified (see ¶ 10).

    The second issue concerned defense counsel’s cross-examination of a state investigator, who repeatedly stated that she believed the victim was “telling the truth” about the sexual assaults. Case law precludes witnesses from testifying to their belief that another witness is telling the truth, but counsel’s strategy was to show the investigator’s bias toward believing the victim. Although unsuccessful, the strategy was reasonable (see ¶ 13).

    Hearsay – Business Records – Third-party Records

    Deutsche Bank Nat’l Tr. Co. v. Olson, 2016 WI App 14 (filed 22 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDING: In a mortgage foreclosure trial, the court properly admitted business records that integrated the records of third parties into the entity’s own records.

    SUMMARY: Following a bench trial, the court granted a foreclosure judgment in favor of Deutsche Bank against the Olsons, the mortgage holders. The Olsons appealed, contending that the trial judge erred in admitting several crucial business records.

    The court of appeals affirmed in an opinion, authored by Judge Curley, that addresses recurring issues involving an entity’s business records that integrate facts and data from third-party records. See Wis. Stat. § 908.03(6). The loan was serviced by Select Portfolio Servicing (SPS), a mortgage-loan servicer. SPS’s “document control officer” provided more than 100 pages of trial testimony, which is carefully explained in the opinion. The prime issue concerned SPS’s reliance on data provided by a third party (another bank). SPS integrated the third-party data into SPS’s own records (see ¶¶ 22, 29).

    The court observed that this case fell somewhere between Palisades Collection LLC v. Kalal, 2010 WI App 38, 324 Wis. 2d 180, 781 N.W.2d 503 (no foundation for third-party records) and Central Prairie Financial LLC v. Yang, 2013 WI App 82, 348 Wis. 2d 583, 833 N.W.2d 866 (extensive foundation through affidavits by third-party record custodians) (see ¶ 26). SPS’s “integration” of the third-party data made this case “particularly unique” (¶ 29). Federal case law supported the admissibility of the SPS records.

    The SPS witness “testified extensively as to her personal knowledge of SPS’s policies and procedures for creating its own records and integrating the prior servicer’s records when taking over the servicing of a loan from another loan servicer, as well as to the extent that SPS relies on those records in the course of its own regular business practice” (¶ 40). This included “quality control checks.”

    In sum, this was “not a scenario in which a custodian from one entity testified to records created by another entity” (¶ 46). Considerations of “fairness,” the elimination of unjustifiable expense, and the promotion of growth and development of evidentiary rules supported this construction of Wis. Stat. section 908.03(6) (¶ 47). The court closed with the “caution” that Yang represents the “most prudent approach” when parties anticipate a fight over the admissibility of records (¶ 46 n.16).

    Health Law

    Health Records – HIPAA Releases – Fees

    Moya v. Aurora Healthcare Inc., 2016 WI App 5 (filed 1 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDING: Personal injury lawyers using HIPAA releases are not exempt from certification and retrieval fees under the health-records-fee statute, Wis. Stat. section 146.83(3f).

    SUMMARY: This case arises out of a personal injury action in which plaintiff’s counsel obtained his client’s Health Insurance Portability and Accountability Act (HIPAA) release so he could review and copy her medical records. The record keeper sent the certified copies along with invoices of its charges, including a $20 retrieval fee and an $8 certification fee. Counsel protested and filed this class action, alleging that the charges violate Wis. Stat. section 146.83(3f). The circuit court granted summary judgment against the health-care-record provider. The court of appeals granted its petition to appeal from this nonfinal order.         

    The court of appeals reversed in an opinion authored by Reserve Judge LaRocque. The issue involved the interpretation of the phrase “person authorized by the patient” when a patient signs a HIPAA release authorizing his or her lawyer to obtain the patient’s medical records (¶ 10). The court held that the definition did not include the plaintiff’s lawyer. “A HIPAA release allows an attorney to obtain a copy of a client’s medical records, but it does not give that attorney the power to consent to the release of [the client’s] confidential health care records” (¶ 13). Thus, counsel could review her records but could not “act on her behalf beyond that.” The statute’s plain language “clearly shows that the legislature’s intent was to protect the confidentiality of a patient’s health care records … and restrict the power to release health care records” (id.).

    The court also briefly addressed a recent amendment that exempted Wisconsin State Public Defender attorneys from the certification and retrieval fees (see ¶ 14).

    Judge Kessler dissented on grounds that the majority misconstrued the statute in a way that drastically limits the right of a competent adult patient to give informed consent to “any person” of the patient’s choosing to obtain copies of the patient’s health care records at a statutorily provided reduced cost to the patient (¶ 17).


    Duty to Defend – Exclusion

    State Farm Fire & Cas. Co. v. Easy PC Solutions LLC, 2016 WI App 9 (filed 9 Dec. 2015) (ordered published 27 Jan. 2016)

    HOLDING: An insurance policy excluded coverage for a violation of the Telephone Consumer Protection Act.

    SUMMARY: A chiropractic business, Wilder Chiropractic, brought a class action alleging that Easy PC Solutions violated the Telephone Consumer Protection Act (TCPA) by sending “illegal faxes” on three separate dates in 2010. Easy PC tendered its defense to State Farm, which denied coverage and refused to defend. In settling with Wilder, Easy PC assigned its right to recover from State Farm. The circuit court ruled that State Farm had no duty to defend, and Wilder appealed.

    The court of appeals affirmed in an opinion authored by Judge Reilly. The policy excluded actions arising out of an alleged TCPA violation (see ¶ 4). The exclusion covered Wilder’s claims for both TCPA violations and conversion (essentially, stealing time expended in dealing with the faxes) (see ¶ 5). The conversion claims alleged the “same actions” as the TCPA violations. “The exclusion is directed at Easy PC’s actions, not the effect of its actions” (¶ 6).

    The court also rejected an argument that even if the 2010-11 policy excluded coverage, earlier policies without the TCPA exclusion applied. This argument was not supported by the complaint (which alleged just three dates) (see ¶ 7). “Wilder’s potential representation of an expansive class of similarly situated claimants is insufficient to trigger a duty to defend for any policy period untethered to a factual allegation in the complaint” (¶ 8).

    Concurring, Judge Neubauer would affirm “without reaching the scope of the assignment or an analysis of the duty to defend based on the allegations of the complaint, as both are unnecessary” (¶ 9).

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