(dissenting). I agree with the majority that issue preclusion does not prevent Dr. Fredrik Broekhuizen and Dr. Carole Hagarty from asserting Dr. Guy Riccitelli's failure to serve the notice of claim required by § 893.82, STATS., as a bar to his action against them. I disagree, however, with the majority's conclusion that Riccitelli's action against Broekhuizen and Hagarty may, nevertheless, proceed.
Section 893.82(2m) & (3), STATS., provides that no one may bring an action against a "state ... employe[e] . . . for or on account of any act growing out of or committed in the course of the discharge of the . . . employee's duties" unless the person seeking to sue the state employee serves upon the attorney general a timely "written notice of a claim." There is no dispute but that Broekhuizen and Hagarty were and are state employees within the meaning of § 893.82, STATS. The only question is whether Riccitelli is suing them "for or on account of any act growing out of or committed in the course of the discharge" of their duties as state employees. The undisputed summary-judgment record persuades me that he is, and that the so-called "dual persona" doctrine does not apply.
Broekhuizen and Hagarty were in a position to participate in the release of Riccitelli from the residency program only because they were state employees — employed by the University of Wisconsin Medical School and assigned by the school to the residency program. Thus, whatever their role in Riccitelli's termination from the residency program, it grew out of, and was committed in the course of, their duties as state employees.
The majority uses the dual persona doctrine, which it imports from workers' compensation law, to allow Riccitelli to bypass the bar erected by § 893.82, *561Stats. In each workers' compensation case upon which the majority relies, the employee was allowed to sue for injuries for which an entity other than his employer was responsible. See Schweiner v. Hartford Accident & Indemnity Co., 120 Wis. 2d 344, 354 N.W.2d 767 (Ct. App. 1984) (defective machine manufactured by company before it merged with plaintiffs employer; statute made employer responsible for liabilities of merged company); Melzer v. Cooper Industries, Inc., 177 Wis. 2d 609, 503 N.W.2d 291 (Ct. App. 1993) (applying Schweiner to temporary-employment); Rauch v. Officine Curioni, S.p.A., 179 Wis. 2d 539, 508 N.W.2d 12 (Ct. App. 1993) (applying Schweiner to officer and majority shareholder of plaintiffs employer, where officer owned and leased to employer the machine that injured plaintiff). In each of these cases the applicable statute, § 102.29(1), STATS., preserved to an employee injured on the job the right to bring a tort action against a responsible third party, and this right survived the responsible third party's merger with the plaintiffs employer (Schweiner and Melzer) and applied even though the responsible third party also owned or managed the plaintiffs employer (Rauch). The critical consideration was that the acts for which the responsible parties were liable, were independent of their status as employers. Thus, as we explained in Schweiner.
"An employer may become a third person, vulnerable to tort suit by an employee, if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person."
*562120 Wis. 2d at 352, 354 N.W.2d at 772 (emphasis added) (quoting 2A A. LARSON, WORKMEN'S COMPENSATION LAW § 72.8 (1983)).
Here, although Broekhuizen and Hagarty worked for both the Medical College and, on assignment from the Medical College, the residency program, this is not enough to invoke the dual persona doctrine. Their participation in the decision to release Riccitelli from the residency program, to paraphrase § 893.82(3), STATS., grew out of and was made during the course of their state-related employment, and was not, in the Words of Schweiner, "so completely independent from and unrelated to [their] status" as state employees to permit the dual persona doctrine to circumvent § 893.82's clear bar to Riccitelli's suit against them.1
I would affirm.
In my view, the majority's reliance on a passing comment on the dual persona doctrine in Kashishian v. Port, 167 Wis. 2d 24, 481 N.W.2d 277 (1992), is misplaced. All Kashishian indicated is that there might be some situations where the dual persona doctrine would apply in § 893.82 cases — presumably where the state employee's alleged negligence was completely independent of and wholly unrelated to his or her employment by the state. Id., 167 Wis. 2d at 49-50, 481 N.W.2d at 287.