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Jensen v. McPherson11/13/2002
. This case comes to us by a grant of a leave to appeal. David D. McPherson, M.D., OHIC Insurance Company and Wisconsin Patients Compensation Fund (collectively "McPherson") appeal a circuit court order denying a motion to dismiss the 2001 medical malpractice claim of Erik Jensen, a minor, by his guardian ad litem, Charles F. Stierman and the State of Wisconsin Department of Health and Family Services (collectively "Erik"). McPherson also appeals the circuit court order granting Erik's motion for consolidation of a 1997 action and the 2001 action. McPherson argues that under Wis. Stat. § 802.06(2)(a)10 (1999-2000) Erik's 2001 action should have been dismissed on the grounds that the 1997 action was pending in Walworth county (No. 97-CV-00704) between the same parties for the same cause. We disagree. Erik was not a party to the 1997 action because he was not properly named as a plaintiff in the complaint filed by his parents; additionally, Erik did not have a court-appointed guardian's services, as is required under Wis. Stat. § 803.01(3)(a), until after the 1997 action was declared a mistrial. We affirm the circuit court's decision to deny McPherson's motion to dismiss; we affirm the circuit court's granting of Erik's motion to consolidate the 1997 and 2001 actions and uphold the circuit court's discretionary decision to set a new scheduling order.
. In 1997, a complaint was filed against McPherson and other defendants asserting claims of medical malpractice and failure to obtain informed consent in connection with the delivery of Erik. The caption to the final amended complaint identifies the plaintiffs as follows:
KATHLEEN JENSEN and BRADLEY JENSEN individually and as mother and father and next friend of ERIK JENSEN a minor, and the State Of Wisconsin, Department of Health and Family Services
. Illinois Attorney Lee Phillip Forman, who had obtained pro hac vice status, represented the plaintiffs in the 1997 action. Immediately prior to the trial, one of the defendants settled. Trial commenced on October 4, 1999. At the outset of the trial, Forman informed the court that a settlement had been reached between his clients and defense attorney Corneille's client. At this time Corneille stated:
There is no guardian ad litem for, ah, Erik Jensen at this point in time. There will be an appointment of a guardian for Erik Jensen.
Forman confirmed that Erik did not have a guardian ad litem:
Unfortunately, again, I wish-I will have a motion on behalf of Mr. Blackbourn to be appointed as the guardian ad litem for the child. We will do that formally. We have some time-space is now created by the dismissal [of the defendant who settled].
. Three days into the proceedings, due to incidents unrelated to this appeal, the circuit court declared a mistrial citing "misconduct by plaintiffs' counsel [Attorney Forman]." Five days after declaring a mistrial, the circuit court revoked Forman's pro hac vice status. Jensen v. Wis. Patients Comp. Fund, 2001 WI 9, , 241 Wis. 2d 142, 621 N.W.2d 902. The plaintiffs then decided to seek replacement counsel.
. On February 14, 2001, Attorney Jay A. Urban was substituted as counsel for the plaintiffs. Thereafter, apparently due to concerns regarding whether Erik's interests were compromised in the above-mentioned pretrial settlement, Urban petitioned the court and was appointed temporary guardian ad litem for Erik. Urban proceeded to find and contact an experienced medical malpractice lawyer, Attorney Charles Stierman, and asked him to review the settlement and to determine whether it was in the best interests of Erik. Urban also asked Stierman to agree to become Erik's guardian ad li
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