Many people often associate personal injury law firms with car and auto accidents. While Smith Mohlman does litigate car and auto accidents, we also focus on many other practice areas, including slip and fall, premises liability, wrongful death, workplace injury, and nursing home neglect. Smith Mohlman has worked on numerous tort claims over the years. A current case has garnered some media attention involving the United States Government and the VA. Mike Mohlman is co-counsel with other attorneys.
Courtesy of Law360 and Cara Bayles
A Kansas federal judge on Tuesday consolidated 15 similar suits, all accusing a former physician’s assistant at two U.S. Department of Veterans Affairs hospitals of sexual assault during medical examinations, ruling that combining the cases would speed discovery and allowed the veterans to depose their alleged assailant.
Plaintiffs in three of the cases have filed motions to depose Mark E. Wisner, who is accused of conducting inappropriate genital examinations during multiple visits at medical centers in Topeka and Leavenworth, Kansas. The federal government — which is accused of doing nothing to prevent future occurrences in spite of prior complaints — has argued that Wisner can’t be deposed until U.S. District Judge Carlos Murguia rules on its motions to dismiss each case.
But on Tuesday, U.S. Magistrate Judge Teresa J. James ordered that the cases be consolidated, citing judicial economy, ease of discovery and the similar facts and issues of law in each suit.
In a separate order filed a day later, she ruled that because the cases had been consolidated and because Judge Murguia has denied most of a motion to dismiss one of the suits, plaintiffs in the other litigation could depose Wisner, who is currently incarcerated.
“Largely as a result of Judge Murguia’s ruling, but also taking into account the consolidation order and the scheduling order to be entered, during the scheduling conference the court orally granted the three pending motions for leave to depose defendant Wisner,” Judge James wrote.
Judge Murguia’s order on the motion to dismiss preserved a claim asserting negligence by the U.S. and Wisner, and one alleging negligent supervision, retention and hiring against the U.S. He dismissed a loss of consortium claim brought on behalf of the soldier’s wife.
The cases against Wisner and the U.S. allege the physician’s assistant used his position to sexually abuse patients at the VA hospitals, and that the government kept him on in spite of complaints filed by fellow staff members and other veterans in 1999, 2011 and 2012.
“Wisner conducted numerous genital examinations of plaintiff without using medical gloves, repeatedly fondled plaintiff’s genitals, failed to keep accurate medical records, conducted unnecessary rectal examinations by inserting his fingers in plaintiff’s anus and made inappropriate sexual comments to plaintiff,” one of the complaints alleges.
Daniel Curry of Brown & Curry LLC, who represents the lead case and six other plaintiffs in the consolidated litigation, told Law360 that he has 40 more suits to file against Wisner and the VA over the next six months. He said his clients were gratified by the judge’s decision on Wednesday.
“I know that among the veterans I represent, everyone’s very pleased,” he said. “I think it’s the right decision and I think the most straightforward reading of it is that the VA can’t get rid of this with a legal argument. It’s going to have to win on the merits. And I think the facts are on our side.”
The legal team is eager to depose Wisner because he is elderly and has health issues, Curry said.
“We’ve been waiting almost two years in the first case I filed just to get to this point. No one feels very confident that we’ll get to depose him if we wait much longer,” he said. “Perhaps just for the resolution of the case, we’re interested in getting his deposition done sooner rather than later.”
A representative for the VA did not immediately respond to a request for comment on Thursday.
Wisner could not immediately be reached for comment on Thursday.
The plaintiffs are represented by Ryan C. Fowler and Thomas R. Pickert of Fowler Pickert LLC, Daniel G. Curry and Sarah A. Brown of Brown & Curry LLC, Daniel A. Thomas, J’Nan C. Kimak and Nichelle L. Closson of Humphrey Farrington & McClain, Aaron C. McKee of McKee Law LLC, Matthew L. Bretz of Bretz & Young LLC, and Michael Joseph Mohlman and Rachel E. Smith of Smith Mohlman LLC.
The government is represented by Sarah Haston and Virginia Jackson Elliott of the U.S. Department of Justice.
Mark E. Wisner is representing himself.
If you feel like you may have been subjected to any unwanted touching, please don’t hesitate to reach out for a free consultation to discuss your options.