Bobbie Jo Scholz v. United States of America

Chicago, IL - Federal Tort Claims Act lawyer represented

Plaintiff-Appellant with pointing to government negligence as the cause of the drastic decline in her mental and physical state.

Scholz was honorably discharged following her 2006 to

2008 tour of duty in Iraq for the United States Army, but the

mental and physical toll of her service unfortunately extended well beyond her time in the military. In the years that

followed, Scholz required a range of medical treatment. As

the relevant starting point for this appeal, Scholz sought two

courses of inpatient mental health treatment at the VA Medical Center in Tomah, Wisconsin (the "Tomah VAMC”) between January and March 2011. Later, while receiving outpatient mental health treatment through the Tomah VAMC, she

met with surgeons at the Zablocki VA Medical Center in Milwaukee, Wisconsin (the "Zablocki VAMC”) about an elective

breast reduction surgery in mid-December 2011. That same

month, an unrelated psychological assessment performed at

the Zablocki VAMC raised red flags about Scholz's mental

health. Surgeons at the Zablocki VAMC performed the elective breast reduction surgery in January 2012, which ignited a

cascade of complications—surgical and otherwise. Scholz

continued to receive outpatient mental health treatment, including prescription medications, from various VA providers

through the fall of 2018.

No. 20-2163 3

Scholz currently has two active lawsuits pending against

defendant. The first lawsuit, Scholz v. United States, No. 16-cv01052, 2021 WL 3465953 (E.D. Wis. Aug. 6, 2021) ("Scholz I”),

began when Scholz sued defendant on August 8, 2016, in the

Milwaukee division of the Eastern District of Wisconsin. The

second, lawsuit—and the one currently before us—Scholz v.

United States, No. 19-cv-01074 (E.D. Wis. dismissed June 8,

2020) ("Scholz II”), began when Scholz sued defendant on July

26, 2019, in the Green Bay division of the Eastern District of

Wisconsin.

Both lawsuits concern the treatment Scholz received at

various VA facilities and outpatient programs. The extent to

which the lawsuits cover the same conduct, however, is the

key question presented in this appeal. The government argues that Scholz I and Scholz II rely on the same, or essentially

the same, operative facts, which would preclude Scholz II on

claim-splitting grounds. Scholz, on the other hand, argues

that Scholz I and Scholz II turn on different sets of operative

facts such that claim splitting is inapplicable. To analyze this

dispute, we summarize the relevant details of each lawsuit below.

A. Scholz I1

In line with the FTCA's administrative exhaustion requirements, 28 U.S.C. § 2675(a), Scholz first submitted a form SF95 claim for damage, injury, or death to the Milwaukee VA on

September 9, 2013. Her 2013 administrative claim focused on

her breast reduction surgery and resultant "severe physical

1 The district court took judicial notice of the Scholz I record. See Gen. Elec.

Cap. Corp. v. Lease Resol. Corp., 128 F.3d 1074, 1080-81 (7th Cir. 1997);

Doherty v. City of Chicago, 75 F.3d 318, 324 n.4 (7th Cir. 1996).

4 No. 20-2163

disfigurement and permanent physical, mental and emotional disabilities.” In this initial step of administrative review, she alleged that her physician team at the Zablocki

VAMC "failed to obtain proper informed consent prior to [her

breast reduction] surgery and this failure was a cause of injury as [she] would not have undergone the surgery had she

been properly informed.” She alleged this initial negligent action resulted in "on-going treatment and additional ... painful

surgeries ... which have impacted her physical, mental and

emotional health.”

Scholz's September 2013 administrative claims were denied on April 2, 2014. Relevant to this appeal, the denial letter

apprised dissatisfied claimants of available paths for reconsideration, including the option to file a federal lawsuit within

six months of the denial, but qualified this guidance with the

following caveat:

Please note that FTCA claims are governed by a

combination of Federal and state laws. Some

state laws may limit or bar a claim or law suit.

VA attorneys handling FTCA claims work for

the Federal government, and cannot provide

advice regarding the impact of state laws or

state filing requirements.

On September 26, 2014, Scholz filed a request for reconsideration with the VA General Counsel. In its October 14, 2014,

acknowledgment of receipt of Scholz's request for reconsideration, the VA once again warned Scholz about the combination of state and federal law governing FTCA claims, providing the same caveat listed above that appeared in the April 2,

2014, denial.

No. 20-2163 5

Scholz filed another form SF-95 on March 7, 2015, adding

allegations of negligent mental health treatment at the Tomah

VAMC "[c]ommencing on or about January 1, 2011, and continuing thereafter for years” claiming "[s]he was placed in a

dangerous situation through improper prescriptions of medications” and "was unable to properly care for herself resulting in permanent mental, emotional and physical injury.” In

denying this request on September 8, 2015, regional counsel

included information about filing a request for reconsideration with the VA General Counsel and the option for filing

suit in federal district court, but it did not include the twicereceived disclaimer regarding the impact of state laws and

state filing requirements on filing a suit in federal court. On

October 3, 2015, Scholz filed a request for reconsideration

with the VA General Counsel. In its October 15, 2015, acknowledgment of receipt of request for reconsideration, the

VA again mirrored the previous disclaimer that "[s]ome state

laws may limit or bar a claim or law suit” relating to FTCA

claims and "VA attorneys handling FTCA claims work for the

Federal government, and cannot provide advice regarding

the impact of state laws or state filing requirements.”

On February 18, 2016, the VA issued a final decision upon

reconsideration, denying both Scholz's 2013 claim relating to

her breast reduction surgery and her 2015 claim relating to

her mental health treatment in a joint decision. This denial

stated:

This denial is the last action we will take on this

tort claim. If your client wishes to pursue this

claim further, she may file suit in Federal district court within 6 months from the date at the

top of this letter.

6 No. 20-2163

...

Please note that FTCA claims are governed by a

combination of Federal and state laws. Some

state laws may limit or bar a claim or law suit.

VA attorneys handling FTCA claims work for

the Federal government, and cannot provide

advice regarding the impact of state laws or

state filing requirements.

Thereafter, Scholz filed Scholz I—a two-count complaint

based on her 2013 and 2015 administrative claims—in federal

district court on August 8, 2016. The complaint implicated

concerns about both Scholz's mental health treatment and her

breast reduction surgery. Scholz's complaint alleged that after

her tour of service, she was treated for various mental health

issues at the Tomah VAMC in 2011 and 2012 and had been

prescribed as many as sixteen active medications during that

time. As detailed in the complaint, on January 6, 2012, around

the time of Scholz's Tomah VAMC treatment, a medical team

at Zablocki VAMC performed a bilateral breast reduction surgery on Scholz. With respect to that procedure, Scholz alleged

the operating surgeons failed to obtain informed consent, despite her "diminished mental status.” After the surgery, several distressing post-operative complications arose, which required four additional corrective surgeries over two years. Of

note, the Zablocki VAMC surgeons flagged "self mutilation”

as a contributing factor.

At a high level, the two counts asserted claims of "negligence and professional malpractice in connection with medical care provided to Plaintiff Scholz by the Department of Veteran Affairs at the Tomah Veterans Affairs Medical Center,

the Zablocki Veterans Affairs Medical Center, and outpatient

No. 20-2163 7

programs.” Framed by Scholz as part of her medical negligence claim, the complaint also briefly alleged that the VA

was negligent in failing to timely provide her records from the

Tomah VAMC, despite her formal requests for them.2

The district court began by dismissing Scholz's claim of

negligent hiring, supervision, or retention because she had

failed to exhaust administrative remedies for any such claim,

which the FTCA requires. 28 U.S.C. § 2675. Separately, the district court found Scholz was not alleging a standalone tort

based on an alleged duty to provide medical records, but instead "offer[ed] these details only in support of her medical

malpractice claim.” Next, the district court denied as untimely Scholz's motion to amend her complaint to increase

her requested damages from $2.5 million to $4 million because Scholz had not provided good cause for the delay.

After the close of discovery, both parties then filed motions for summary judgment. As relevant to this appeal, the

United States moved for partial summary judgment on

Scholz's claim of medical malpractice involving the 2011

treatment she received from providers at the Tomah VAMC,

arguing the claim was time-barred. Scholz countered that her

2 The Scholz I complaint states that the defendant "had a duty to provide

patient treatment records and notice of deficiencies in patient care at the

Tomah VAMC to all other treatment facilities and to patients” and

"breached its duty by negligently failing to ensure that patient treatment

records and deficiencies in care were timely communicated to all VAMC

health care providers and to [Scholz].” When pressed on this, Scholz clarified the "claim is that her medical records and unstable mental condition

[were] not provided to other VA healthcare providers and VA facilities

that were treating her and resulted in injury. This lack of continuity of care

is part of [Scholz's] medical negligence claim.”

8 No. 20-2163

claims encompassed her ongoing outpatient treatment, as

well. Scholz's response relied on a "continuous treatment doctrine”—essentially, Scholz argued defendant's wrongful conduct was ongoing—to support her claim the statute of limitations had not run.

To support her continuous treatment theory, Scholz offered declarations from her two proffered experts, Dr. Lawrence Amsel and Dr. Jill Johnson. Dr. Amsel explained his

opinion that "[d]uring the years 2011 through 2018 [Scholz's

psychiatrist] Dr. Dy continued prescribing medications that

had been negligently prescribed at the Tomah VAMC” and

"Dr. Dy admitted that on 25 different occasions during the

years 2011 to 2018 he received pharmacy warnings about the

unsafe medication combinations he was prescribing but continuously ignored the warnings and ordered them for”

Scholz. Summarizing the "entire record in this case,” Dr. Amsel saw "evidence of on-going continuous negligent mental

health treatment practices affecting the Plaintiff's treatment

during the years 2011 through the present at the Tomah

VAMC, Zablocki VAMC, and VA outpatient clinics.” Dr. Johnson similarly opined that "the pharmaceutical treatment rendered to the Plaintiff by the Department of Veterans Affairs

commencing during Plaintiff's treatment at the Tomah

VAMC, and continuing in the Zablocki VAMC and outpatient

clinics during the years 2011 through 2017 ... failed to meet

the required standard of care of reasonable health care providers and was a cause of injury to” Scholz. In short, Scholz's

experts made the case that the government's tortious conduct

continued well past 2011 and into 2017 or 2018.

Separate from the government's motion, Scholz filed a

motion for summary judgment of her own for, among other

No. 20-2163 9

claims, her claim that she "was deprived of her basic right to

informed consent for her mental health treatment.” Echoing

the declarations of Dr. Amsel and Dr. Johnson, she again contended in this motion that there were "years of continuing

mental health treatment at the VA” and that the government's

wrongdoing occurred both during her time at the Tomah

VAMC and Zablocki VAMC but also "in her subsequent outpatient treatment.”

Considering these motions, as well as the expert witness

proffers, the district court granted the government's motion,

denied Scholz's motion, and largely prohibited Scholz from

introducing her expert's declarations and testimony because

their opinions were not timely disclosed. The court held that

Scholz's claims of negligent mental health treatment at the

Tomah VAMC were barred by Wisconsin's statute of limitations and statute of repose, rejecting as insufficiently supported Scholz's argument about a course of continuing negligent treatment. The court also denied Scholz's motion for

summary judgment. Reflecting later, the court said "[t]his

phase did not go well for the plaintiff, largely because of errors made by her attorney.”

The district court denied Scholz's subsequent motion for

reconsideration, underscoring the impropriety of introducing

new evidence, rehashing previously rejected arguments, or

developing arguments for the first time at this stage of litigation. The district court rejected any attempt by Scholz to assert

an estoppel argument at this stage as forfeited for failure to

present in her initial response to the government's motion for

summary judgment. The district court also denied Scholz's

motions throughout litigation for sanctions against the

10 No. 20-2163

government for violating discovery rules, engaging in misconduct, and spoliation of evidence.

After much of this pre-trial litigation, the district court

judge recused himself. Scholz's remaining claims were tried

at a bench trial in March 2021. At trial, the court considered

evidence concerning Scholz's mental health treatment provided by the VA, including the testimony of Dr. Amsel, Dr.

Johnson, and the pharmacy records over those years. The

court commented that "plaintiff's counsel pa[id] some attention to all aspects of Scholz's treatment, but [did] not pay[]

meaningful attention to ... the more meritorious components

of her complaint,” which "resulted in an evidentiary shortfall

regarding meaningful aspects of Scholz's claims.” Nevertheless, the court found negligence causing injury in a narrow

aspect of Scholz's VA treatment—the failure to coordinate

mental health care at and after the time she underwent a procedure to address a traumatic post-operative complication.

Finding that Scholz only met her burden of proof to this limited extent, the court awarded $200,000 for pain, suffering,

and mental anguish. Final judgment in this matter is pending

for review of Scholz's request for all applicable costs and fees

pursuant to Federal Rule of Civil Procedure 54(d).

B. Scholz II

Shortly after the Scholz I district court denied Scholz's motion to reconsider its summary judgment ruling, Scholz

started the administrative process anew by again filing SF-95

forms with the Milwaukee VA on July 11, 2019, and July 17,

2019. The administrative filing included claims related to

Scholz's informed consent, mental health treatment, and prescribed medications, along with claims alleging negligent

production of records and misleading representations made

No. 20-2163 11

by VA legal counsel on September 8, 2015, and October 15,

2015, that impacted the timeliness of Scholz's first federal

court suit.3 Notably, the June 17, 2019, filing relies upon and

attaches the declarations of Dr. Amsel and Dr. Johnson submitted to and rejected by the Scholz I court.

Around two months after the Scholz I district court's summary judgment ruling, Scholz filed Scholz II—another case in

federal district court against the United States (and the Secretary of Health and Human Services). She subsequently filed

an amended complaint that attached the administrative

claims Scholz had filed on June 17 and July 11, 2019. This complaint contained six counts: medical negligence (Count I);

pharmacy and oversight negligence (Count II); negligent failure to obtain informed consent (Count III); negligent failure

to maintain and release accurate and complete medical records (Count IV); negligent hiring, training, supervision, and

retention (Count V); and VA misrepresentations (Count VI).

As to Counts I and II, Scholz argued that the "continuing”

and "on-going” outpatient mental health treatment she received from the VA between "2011 through August 2018” was

negligent. Specifically, she alleged "Defendant breached its

duty of care and provided negligent mental health psychiatric

treatment to the Plaintiff after her discharge from the Tomah

VAMC in 2011 and continuing until she ceased psychiatric

3 Looking to the Scholz I administrative proceedings, the September 8,

2015, correspondence did not include a disclaimer that FTCA claims were

governed by a combination of federal and state laws and VA attorneys

could not provide state-specific advice, but the October 15, 2015, and February 18, 2016, correspondences did include such a disclaimer. This disclaimer specifically noted that "[s]ome state laws may limit or bar a claim

or law suit.”

12 No. 20-2163

treatment from the Department of Veterans Affairs in 2018.”

She also alleged that "Defendant's failure to provide pharmacy and related oversight” caused her to "receive[] on-going

harmful medications and combinations of medications from

the Zablocki VAMC outpatient providers on a continuing basis during the period 2011 through August 2018.”As to Count

III, Scholz argued that she never gave informed consent for

the mental health treatment "during the years 2011 through

2018.” Count V also realleged essentially the same claim under a negligent supervision theory.

As to Count IV, Scholz alleged that the government had

violated various discovery rules related to the maintenance

and timely disclosure of records in response to Scholz's requests "during the period of 2013 through 2018.” Along these

same lines, Count V alleged that defendant had "negligently

breached its duty as to hiring, training, supervision and retention of employees necessary to provide Plaintiff with timely[,]

accurate and complete copies of her medical records in response to Plaintiff's on-going requests during the period 2013

through 2018.” For example, she explains on appeal, she was

not given outpatient pharmacy records from 2011 to 2018 until two days before Scholz I discovery closed. She claimed as

damages for these counts the deprivation of "her legal right

to bring timely administrative claims and successfully pursue

legal actions and remedies for negligent conduct of VA employees and agents,” the incursion of "substantial litigation

costs and litigation related services of attorneys and others,”

and the deprivation of "legal remedies based upon the statute

of limitations.”

As to Count VI, Scholz alleged that the VA had made various "misrepresentations” during the pre-suit administrative

No. 20-2163 13

process that caused Scholz to "los[e] her right to pursue [a]

federal court remedy for negligent treatment at the Tomah

VAMC.” Specifically, she alleged that VA representatives told

her on February 18, 2016, that she had 6 months to file a lawsuit but that after she filed Scholz I on August 8, 2016, the district court granted the government partial summary judgment on Scholz's tort claims arising from Tomah VAMC treatment because the claims were time-barred by Wisconsin's

statute of limitations.

Attacking the similarities between Scholz I and Scholz II,

the government moved to dismiss Scholz's amended complaint under Federal Rule of Civil Procedure 12(b)(6) on the

grounds that it violated the rule against claim splitting. The

district court agreed, granted the motion, and entered judgment for the government on June 8, 2020. This appeal of the

district court's dismissal followed.

II. Discussion

This case presents a host of issues, many of which overlap.

We look first at the jurisdictional question presented by the

government. We next discuss claim splitting, the focus of the

district court's appealed decision. Relevant to claim splitting,

we address the appropriate standard of review, compare the

factual underpinnings of Scholz I and Scholz II, and engage

with Scholz's many counterarguments. We ultimately affirm

the district court's dismissal of Scholz's case.

A. Jurisdiction

The government briefly argues that this Court, as well as

the district court, lacked subject matter jurisdiction. "[I]n the

unique context of the FTCA, all elements of a meritorious

claim are also jurisdictional.” Brownback v. King, 141 S. Ct. 740,

14 No. 20-2163

749 (2021). In short, the government argues that because

"Scholz's allegations do not give rise to viable claims for relief

under the Federal Tort Claims Act,” subject matter jurisdiction is deficient.

To decide jurisdiction, we would need to first examine

whether Scholz has presented a viable claim under the FTCA,

the underlying merits question. See id. ("'[M]erits and jurisdiction will sometimes come intertwined,' and a court can decide 'all ... of the merits issues' in resolving a jurisdictional

question, or vice versa.” (some alterations in original) (citation

omitted)). Although "[s]ubject matter jurisdiction is ordinarily a threshold issue,” the FTCA introduces "an often fact-intensive inquiry” that is no different than the merits inquiry.

Zigler v. United States, 954 F.2d 430, 432 (7th Cir. 1992). Therefore, "[w]e see no reason why we necessarily must determine

[subject matter jurisdiction] first, or at all, if another issue is

dispositive.” Id.

B. Claim Splitting

1. Relevant Standard of Review

Before we can reach the claim-splitting question, we must

resolve a dispute about the applicable standard of review.

Framing the main issue in this case as one of claim preclusion,

also known as res judicata, Scholz argues that we are bound

to review the district court's motion-to-dismiss decision de

novo. See Bell v. Taylor, 827 F.3d 699, 706 (7th Cir. 2016) ("We

review de novo a dismissal based on res judicata.”). Instead

framing the main issue as one of claim splitting or of dismissal

of duplicative litigation, the United States argues we must review only for abuse of discretion. As the United States points

out,

No. 20-2163 15

In dealing with simultaneous actions on related

theories, courts at times express principles of

"claim splitting” that are similar to claim preclusion, but that do not require a prior judgment. A dismissal on this ground has been

viewed as a matter of docket management, reviewed for abuse of discretion, even in decisions

that with some exaggeration describe the theory

"as an aspect of res judicata.”

See 18 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 4406 (3d ed.); see also Elgin v. Dep't of Treasury, 567 U.S. 1, 34 (2012) (Alito, J., dissenting) ("Plaintiffs generally must bring all claims arising out of a common set of

facts in a single lawsuit, and federal district courts have discretion to enforce that requirement as necessary 'to avoid duplicative litigation.'” (citation omitted)).

Our Court has also recognized that a district court has

"significant latitude” and "broad discretion to dismiss a complaint 'for reasons of wise judicial administration ... whenever

it is duplicative of a parallel action already pending in another

federal court.'” McReynolds v. Merrill Lynch & Co., 694 F.3d

873, 888–89 (7th Cir. 2012) (some internal quotation marks

omitted) (quoting Serlin v. Arthur Andersen & Co., 3 F.3d 221,

223 (7th Cir. 1993)). We review such decisions for an abuse of

discretion. See id. at 889; Serlin, 3 F.3d at 223.

To determine the appropriate standard of review, we must

examine whether the district court couched its decision in

claim splitting or claim preclusion. The motion to dismiss

filed by the government principally asserted that Scholz II

"duplicates” Scholz I, and therefore "violates the rule against

claim splitting.” Considering this motion, the district court

16 No. 20-2163

likewise framed the issue as whether Scholz II "should be dismissed because it violates the rule against claim splitting.”

The court's "determin[ation] that the entirety of [Scholz's]

complaint is barred by the rule against claim splitting” makes

it abundantly clear, then, that the district court reached a

claim-splitting, not a claim-preclusion, decision. Thus, appeal

from that order calls for us to review only for an abuse of discretion. See McReynolds, 694 F.3d at 888–89; Serlin, 3 F.3d at

223.

To be sure, both the defendant's motion to dismiss and the

district court's eventual dismissal referenced claim preclusion. These references, however, were necessary because, as

the district court noted, "claim splitting draws on the law of

claim preclusion when determining whether the second lawsuit should be dismissed.” Indeed, the district court correctly

observed that "the doctrine of claim splitting is related to, but

distinct from, the doctrine of claim preclusion.” See Roumann

Consulting Inc. v. Symbiont Constr., Inc., No. 18-C-1551, 2019

WL 3501527, at *6 (E.D. Wis. Aug. 1, 2019) (citing Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000)). Therefore, the references to and reliance on caselaw concerning claim preclusion did not transform the district court's decision to grant

defendant's motion to dismiss on claim-splitting grounds into

a decision based on claim preclusion.

2. Claim Splitting Examined

Turning to the primary question on appeal, this Court

must assess whether the district court abused its discretion in

determining that Scholz II is duplicative of Scholz I such that

the rule against claim splitting prohibits Scholz II. We have

held that "[a] suit is duplicative if the 'claims, parties, and

available relief do not significantly differ between the two

No. 20-2163 17

actions.'” McReynolds, 694 F.3d at 889 (quoting Ridge Gold

Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 572 F.

Supp. 1210, 1213 (N.D. Ill. 1983)). When a plaintiff brings such

"a suit, arising from the same transaction or events underlying a previous suit, simply by a change of legal theory,” claim

splitting has occurred, and the suit cannot be maintained. Carr

v. Tillery, 591 F.3d 909, 913 (7th Cir. 2010); see also Bell, 827 F.3d

at 707 ("[Plaintiff] cannot use a second lawsuit against [defendant] to take another bite at the apple.”).

We have further explained that "claim splitting in duplicative lawsuits” is a subset of the res judicata doctrine. Palka

v. City of Chicago, 662 F.3d 428, 437 (7th Cir. 2011); Rexing Quality Eggs v. Rembrandt Enters., Inc., 953 F.3d 998, 1002 (7th Cir.

2020) ("[T]he law on claim-splitting is part of the law of res

judicata.”); Carr, 591 F.3d at 914 (noting that claim splitting "is

barred by the doctrine of res judicata”).

Thus, to determine whether the district court correctly dismissed this case on claim-splitting grounds, we must draw on

principles of claim preclusion, although continuing to appreciate the differences between the doctrines. Claim preclusion

"blocks a second lawsuit if there is (1) an identity of the parties in the two suits; (2) a final judgment on the merits in the

first; and (3) an identity of the causes of action.” Barr v. Bd. of

Trs. of W. Ill. Univ., 796 F.3d 837, 840 (7th Cir. 2015). The requirements of claim splitting are not quite as stringent and do

not require claim preclusion's second factor, finality of the

judgment. See Katz v. Gerardi, 655 F.3d 1212, 1218 (10th Cir.

2011) ("While it is correct that a final judgment is necessary

for traditional claim preclusion analysis, it is not required for

the purposes of claim splitting.”). As such, we need only

18 No. 20-2163

examine whether there is an identity of the parties and of the

causes of action between the two lawsuits.

First, there is no dispute that an identity of parties exists

in Scholz I and Scholz II. In both cases, plaintiff Scholz sued the

same party as defendant: the United States. In Scholz II, Scholz

added the Secretary of Health and Human Services as a

named party. Nevertheless, the government argued, and

Scholz has not challenged, that the Secretary was not a proper

defendant under the FTCA and that the Secretary had not

waived sovereign immunity. Scholz's claim against the Secretary is therefore waived. See Weinstein v. Schwartz, 422 F.3d

476, 477 n.1 (7th Cir. 2005). Even if the Secretary were a

properly named party, the identity of parties between the two

lawsuits would endure because the Secretary is an official of

the United States government, the primary defendant in both

cases. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381,

402–03 (1940) ("There is privity between officers of the same

government so that a judgment in a suit between a party and

a representative of the United States is res judicata in relitigation of the same issue between that party and another officer

of the government.”).

Second, and most in contention, is whether there is an

identity between the causes of action in Scholz I and Scholz II.

This element is satisfied if the "claims arise out of the same set

of operative facts or the same transaction.” See Matrix IV, Inc.

v. Am. Nat. Bank & Tr. Co. of Chi., 649 F.3d 539, 547 (7th Cir.

2011). That is to say, for claim splitting to apply, the legal theories for the claims in each case need not be the same provided "they are based on the same, or nearly the same, factual

allegations.” See id. (quoting Herrmann v. Cencom Cable Assocs.,

Inc., 999 F.2d 223, 226 (7th Cir. 1993)); see also Nalco Co. v. Chen,

No. 20-2163 19

843 F.3d 670, 674 (7th Cir. 2016) ("[The plaintiff] was obliged

to raise all claims that stem from the same transaction or series

of related transactions (what courts sometimes call the 'core

of operative facts').” (citing Restatement (Second) of Judgments § 24 (1982) (rule against claim splitting))).

We now consider the Scholz II Counts I, II, III, and V

(claims rooted in mental health treatment) and Counts IV, V,

and VI (claims rooted in alleged misconduct arising throughout the course of the Scholz I litigation) in turn.

a. Mental Health Treatment Claims

Here, the lawsuits in Scholz I and Scholz II rest on essentially the same facts, so it was not an abuse of discretion for

the district court to dismiss Scholz II on claim-splitting

grounds. The complaints in each lawsuit begin almost identically. The Scholz I complaint brought a suit under the FTCA

for "negligence and professional malpractice in connection

with medical care provided to Plaintiff Scholz by the Department of Veterans Affairs at the Tomah [VAMC], the Zablocki

[VAMC], and outpatient programs.” The Scholz II amended

complaint similarly brought a suit under the FTCA for "negligence and professional malpractice in connection with medical care provided to Plaintiff Scholz by the Department of

Veterans Affairs.”

More precisely, Counts I (medical negligence), II (pharmacy and oversight negligence), III (negligent failure to obtain informed consent), and V (negligent hiring, training, supervision, and retention) in Scholz II all implicate defendant's

conduct post-2011. Her failure to secure relief for those alleged wrongs in Scholz I—whether for failure to comply with

procedural requirements or for lack of merit—does not entitle

20 No. 20-2163

her to "take another bite at the apple.” See Bell, 827 F.3d at 707.

Scholz "was obliged to,” but did not, "raise all claims that

stem from the same transaction or series of related transactions” in Scholz I. See Nalco, 843 F.3d at 674. Her attempt to

now bring claims resting on the same conduct in Scholz II is

"a quintessential example of claim splitting in duplicative

lawsuits, a litigation tactic that res judicata doctrine is meant

to prevent.” Palka, 662 F.3d at 437. We hold claim splitting was

thus appropriate.

Scholz tries to argue there is "not a gap but a chasm” between Scholz I and Scholz II by characterizing the lawsuits as

addressing different conduct at different times. She argues

that Scholz I claims concerned the "botched breast surgery

treatment at the Zablocki VA[MC] in 2012” which required

four corrective surgeries and which Scholz alleged "was improper given Scholz's physical and mental afflictions following her 2011 mental health treatment at the Tomah VA[MC].”

By contrast, Scholz argues, Counts I, II, III, and V in Scholz II

concern the alleged "negligent outpatient mental health treatment after Scholz's discharge from the Tomah VA[MC]”—

treatment that "was rendered by different VA employees at

the Appleton, Green Bay, and Cleveland VA clinics from 2011

through 2018,” and therefore not from the Tomah VAMC or

Zablocki VAMC.

Scholz's creative attempt to bifurcate the basis of her

claims in each lawsuit is belied by her repeated positions in

Scholz I. The Scholz I complaint was not temporally limited to

defendant's conduct in 2011 and 2012, and so did not exclude

the allegedly negligent mental health treatment between 2011

and 2018 that Scholz II highlighted. Indeed, in stating her

Scholz I claims for negligence, she broadly asserted that

No. 20-2163 21

defendant "negligently supervis[ed] and retain[ed] incompetent, inexperienced, unqualified and/or inadequately trained

or supervised operators, administrators, employees, agents

and staff and fail[ed] to take timely corrective action,” and

also "negligently fail[ed] to ensure that patient treatment records and deficiencies in care were timely communicated to all

VAMC health care providers and to the Plaintiff.” None of

these claims were temporally limited to defendant's conduct

in 2011–2012 or limited to the conduct by Tomah VAMC and

Zablocki VAMC.

That the Scholz I claims turned on defendant's conduct extending until as late as 2018 can be further gleaned from the

litigating positions that Scholz took at the summary-judgement stage in Scholz I. In responding to the government's motion for partial summary judgment in November 2018, Scholz

invoked a "continuous treatment” theory based on Wisconsin

law and maintained, based on her expert witnesses, that she

"received continuous negligent mental health treatment during this entire period [from 2008 through early 2017] from VA

healthcare providers.” Referencing her SF-95 from Scholz I,

Scholz asserted that "the negligent mental health treatment ...

occur[ed] 'on or about January 1, 2011 and continu[ed] to the

present.'” She added that her experts "independently determined that plaintiff's negligent mental health treatment continued after her discharge from the Tomah VAMC program.”

In her own motion for summary judgment, Scholz repeated these same arguments. She argued that her treatment

after 2012 was a continuation of the negligence that began

with the Tomah VAMC mental health treatment and Zablocki

VAMC breast surgery. In particular, Scholz recounted that after the surgery she was "on 28 medications” and that she

22 No. 20-2163

continued to "suffer both physically and mentally in the following years.” She noted how the four corrective surgeries

occurred in 2012, 2013, and 2014 and left lingering "pain,

breast deformities, scarring and lumps, and more mental

health issues.” Beyond the surgery complications, the problematic pharmacy practices, too, "did not stop with Plaintiff's

discharge from the Tomah telehealth program in January

2012.” Indeed, Scholz asserted that her treating psychiatrist

Dr. Dy continued to (negligently) ignore over twenty-five

pharmacy warnings when medicating Scholz until as late as

2018.

Likewise, Scholz's proffer of, and heavy reliance on, the

declarations of Dr. Amsel and Dr. Johnson in Scholz I further

undercut Scholz's argument that Scholz I was limited to 2011

conduct. Both experts outlined the case for why defendant

acted negligently not only in its performance of Scholz's

breast reduction surgery and the subsequent corrective surgeries but also in its continuing mental and physical health

treatment of Scholz until as late as 2018. Dr. Amsel found "evidence of on-going continuous negligent mental health treatment practices affecting the Plaintiff's treatment during the

years 2011 through the present at the Tomah VAMC, Zablocki

VAMC, and VA outpatient clinics.” Dr. Johnson similarly

opined that "the pharmaceutical treatment rendered to the

Plaintiff by the Department of Veteran Affairs commencing

during Plaintiff's treatment at the Tomah VAMC and outpatient clinics during the years 2011 through 2017 ... failed to

meet the required standard of care of reasonable health care

providers and was a cause of injury to” Scholz. Underscoring

the identity of claims in the two cases, these declarations were

then attached to the Scholz II administrative claims and Scholz

II complaint.

No. 20-2163 23

In a final attempt to temporally limit the scope of Scholz I

to conduct in 2011, Scholz argues the "controlling time” is the

"date of the claims,” rather than the "filing of the federal action on August 8, 2016.” The dates of the underlying alleged

harms are certainly relevant, but they are in no way dispositive. In fact, "[t]he crucial date is the date the complaint was

filed.” Curtis, 226 F.3d at 139. After that crucial date, a plaintiff

"has no continuing obligation to file amendments to the complaint to stay abreast of subsequent events,” and "may simply

bring a later suit on those later-arising claims.” Id. Here,

Scholz filed her Scholz I complaint in 2016, when the bulk of

the allegedly negligent treatment had already occurred. Thus,

Scholz's filing timeline obligated her to include those claims

at play on this "crucial date.”

The Scholz I litigation reveals that Scholz and her experts

consistently aimed the Scholz I claims at the government's alleged negligent conduct that extended into 2018. Accordingly,

it is difficult to accept Scholz's contrary argument now that

Scholz I had nothing to do with defendant's conduct between

2011 and 2018.

Beyond temporal arguments, Scholz tries to pin the course

of litigation on administrative exhaustion requirements.

Scholz argues, as she unsuccessfully argued to the district

court, that she had to bring new administrative claims prior

to Scholz II in order to seek recovery for the 2011 to 2018 conduct, and that limitation prevented her from bringing those

claims in Scholz I. See McNeil v. United States, 508 U.S. 106, 113

(1993) ("The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”); 28 U.S.C. § 2675 (same). In other words, she contends

24 No. 20-2163

that she should not be barred now from bringing claims that

she could not have brought in Scholz I.

We rejected a similar argument in the different context of

§ 1983 and Title VII claims in Palka v. City of Chicago, 662 F.3d

428 (7th Cir. 2011). In Palka, the plaintiffs sued under § 1983,

then brought a subsequent lawsuit under Title VII, which was

dismissed on claim-splitting grounds. Id. at 430, 437–38. On

appeal, the plaintiffs argued that "it was impossible for them

to preserve their Title VII claims because they were waiting

for their right-to-sue letters from the EEOC.” Id. at 438. We

rejected the plaintiffs' argument because "a litigant in this position has [several] options to preserve his claim,” including

seeking a stay of the first suit until he receives the right-to-sue

letter. Id. In Palka, res judicata barred the Title VII suit because

the plaintiffs "availed themselves of none of these options.”

Id.

So too here. As the district court in Scholz II noted, Scholz

had "a variety of options in navigating this issue, including

asking that the administrative agency expedite the process,

that the district court stay the first case pending the administrative process, or that the defendant agree to split a claim into

two or more suits.” Scholz "availed [herself] of none of these

options,” and so her argument about administrative remedies

is unconvincing. See Palka, 662 F.3d at 438; see also Barr, 796

F.3d at 840 ("[T]he requirement to exhaust administrative

remedies is no excuse for claim-splitting in [the employmentdiscrimination] context.”).

b. Claims Arising from Litigation

As a point worth discussing separately, Count IV (negligent failure to maintain and release accurate and complete

No. 20-2163 25

medical records), part of Count V (negligent failure to hire,

train, supervise, and retain employees to ensure compliance

with record disclosure obligations), and Count VI (VA misrepresentation)—those claims implicating alleged wrongdoing arising during the course of the Scholz I litigation—fare no

better in undercutting the district court's claim splitting analysis.

With respect to Counts IV and V, the Scholz I district court

already grappled with alleged discovery violations over the

course of the extensive proceedings.4 Illustrating this claim's

duplicity, Scholz's October 26, 2020, motion for sanctions—

filed during the Scholz I lawsuit—goes so far as to reference

and incorporate discovery failure arguments advanced in

Scholz II. The district court denied Scholz's motion for sanctions. Regardless, these Scholz I discovery issues cannot now

form the basis of a separate lawsuit.

Furthermore, turning to Count VI, Scholz's surprise that

Scholz I's mental health treatment claims were deemed untimely is unpersuasive. By Scholz's formulation, "[t]he gravamen of Count VI is simple—the [government] failed to warn

Scholz of changes in their administrative claims procedures

4 Attacking defendant's alleged discovery misconduct in Scholz I under

yet another theory, Scholz argues that defendant should not have been

entitled to their claim-splitting defense because they had "unclean hands”

for allegedly failing to provide Scholz with her requested outpatient pharmacy records until just two days before the discovery deadline in Scholz I,

which prevented Scholz from effectively litigating those issues in Scholz I.

As the district court in Scholz II made clear, however, Scholz "offer[ed] no

evidence that Defendants have engaged in any misconduct,” and has not

made any such showing on appeal either. Even if she had, the district

court correctly stated that the appropriate remedy would have been sanctions in Scholz I, not a new lawsuit.

26 No. 20-2163

that included adopting Wisconsin statute of limitations that

conflicted with the federal statute of limitations and VA

claims procedures.” But the administrative denials did include specific warnings that state law may impact the timeliness of FTCA claims, disclaimers present in Scholz I and subsequently incorporated by Scholz into the Scholz II administrative complaint. See Wenke v. Gehl Co., 682 N.W.2d 405, 425-

26 (Wis. 2004) ("[M]ost jurisdictions recognize the running of

a statute of limitation as being procedural ..., while some others, including Wisconsin, treat the running of a statute of limitation as substantive.”). Beyond these warnings, the district

court also indicated that Scholz was on-notice that her claim

might be time-barred more than a year before the case was

dismissed. At summary judgment, Scholz had the opportunity to raise all issues relevant to timeliness, including equitable arguments relating to the alleged misrepresentations—an opportunity she did not take.

We presently find no reason to disagree with the district

court's determination that Counts IV, V, and VI were reasonably wrapped into the same identity of the causes of action

covering the broad set of interactions between Scholz and the

VA. See Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 338-

39 (7th Cir. 1995) (finding identity of causes of action when

"claims ... clearly arise out of the same core of operative facts

and are based on the same factual allegations,” even when

"the legal elements of each claim may be different”).

As the district court put it, Scholz’s theory amounts to “arbitrarily splitting the treatment timeline” because “[p]laintiff,

in both suits, makes mention of her treatment for mental

health issues, her bilateral breast reduction surgery, the

unsafe prescribing of medications, and improper record handling.” We need not dive any deeper to hold the district court

did not abuse its discretion when it found that “[b]oth suits

arise out of Plaintiff’s treatment at various VA locations from

2011 and 2018, and both suits make mention of the same alleged incidents.”

For all these reasons, we reject Scholz’s arguments to

avoid claim splitting. Without reaching the other grounds for

affirmance presented by the government, we AFFIRM the district court’s dismissal.