Braylon Seifert v. Kay M. Balink, M.D.

2017 WI 2
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP195
COMPLETE TITLE: Braylon Seifert, by his Guardian ad litem, Paul
J.
Scoptur, Kimberly Seifert and David Seifert,
Plaintiffs-Respondents,
Dean Health Insurance and BadgerCare Plus,
Involuntary-Plaintiffs,
v.
Kay M. Balink, M.D. and Proassurance Wisconsin
Insurance
Company,
Defendants-Appellants-Petitioners.
REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED: January 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 6, 2016
SOURCE OF APPEAL:
COURT: Circuit Court
COUNTY: Grant
JUDGE: Craig R. Day
JUSTICES:
CONCURRED: ZIEGLER, J. and GABLEMAN, J. concurs, joined by
ROGGENSACK, C. J., J.
(Opinion filed).
DISSENTED: KELLY, J. joined by BRADLEY, R. G., J. dissent
(Opinion Filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-appellants-petitioners, there were
briefs by Samuel J. Leib, Brent A. Simerson, and Leib, Knott,
Gaynor, LLC, Milwaukee, WI, and oral argument by Samuel J. Leib.
For the plaintiffs-respondents, there was a brief by
Kenneth M. Levine, (pro hac vice), and Kenneth M. Levine &
Associates, LLC, Brookline, MA, and Paul J. Scoptur and Aiken &
Scoptur, S.C., Milwaukee. Oral argument by Kenneth M. Levine.
2017 WI 2
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP195
(L.C. No. 2011CV588)
STATE OF WISCONSIN : IN SUPREME COURT
Braylon Seifert, by his Guardian ad litem, Paul
J. Scoptur, Kimberly Seifert and David Seifert,
Plaintiffs-Respondents,
Dean Health Insurance and BadgerCare Plus, FILED
Involuntary-Plaintiffs, JAN 6, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
Kay M. Balink, M.D. and Proassurance Wisconsin
Insurance Company,
Defendants-Appellants-Petitioners.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of a
published decision of the court of appeals.1 The court of
appeals affirmed a judgment and an order of the Circuit Court
for Grant County, Craig R. Day, Judge, in favor of the
plaintiff, Braylon Seifert (by his guardian ad litem, Paul
1
Seifert ex rel. Scoptur v. Balink, 2015 WI App 59, 364
Wis. 2d 692, 869 N.W.2d 493.
No. 2014AP195
Scoptur, and his parents, Kimberly Seifert and David Seifert)
and against the defendants, Dr. Kim Balink (the defendant
doctor) and Proassurance Wisconsin Insurance Company.
¶2 This medical malpractice case is based on the claim
that the defendant doctor was negligent in the prenatal care of
Braylon Seifert's mother and in Braylon's delivery in May 2009.
¶3 Complications arose during Braylon's delivery. Almost
immediately after Braylon's head appeared, the head retracted,
indicating a shoulder dystocia, that is, indicating that the
shoulder was stuck, prohibiting the body from being delivered.
The defendant doctor undertook a series of steps to resolve the
dystocia and delivered the baby. Braylon's shoulder was
injured, however, and the growth and function of Braylon's left
arm are permanently and severely limited.
¶4 Braylon claims that the defendant doctor's care during
delivery fell below the standard of reasonable care and caused
him to have a permanent brachial plexus injury, that is, to have
a permanent injury to the nerves that animate his left arm.
¶5 Braylon's obstetrical expert witness, Dr. Jeffrey
Wener, testified that he was familiar with the standard of care
for family practitioners practicing obstetrics with regard to
prenatal care, labor, and delivery. Dr. Wener explained the
reasonable care to be used in a case like the instant one and
opined that the care provided and the procedures used by the
defendant doctor fell below the standard of reasonable care.
¶6 The defendants challenged Dr. Wener's testimony in the
circuit court, in the court of appeals, and in this court as
2
No. 2014AP195
inadmissible under the recently amended Wis. Stat. § 907.02(1)
(2013-14).2 This amended statute governing the admissibility of
expert evidence was enacted in 2011. It adopted the federal
evidentiary standard codified in Federal Rule of Evidence 702
(2000), which in turn adopted the reliability standard
explicated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993).
¶7 The new Daubert aspect of Wis. Stat. § 907.02(1)
became effective February 1, 2011, and applies in the instant
case.3 It requires that expert testimony be based on sufficient
facts or data and that the expert testimony be the product of
reliable principles and methods.4 The expert witness must apply
2
All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise indicated.
3
Wisconsin Stat. § 907.02(1) provides as follows, with
emphasis added to show the new language added in 2011:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
4
The case law uses the words "methodology" and "methods"
interchangeably. See, e.g., Fuesting v. Zimmer, Inc., 421
F.3d 528, 535 (7th Cir. 2005), opinion vacated on other grounds
on reh'g, 448 F.3d 936 (7th Cir. 2006) ("The district court must
also, in keeping with its gatekeeper's duty, assess the
reliability of the methodology the expert has employed in
arriving at his opinion.").
3
No. 2014AP195
the principles and methods reliably to the facts of the case.5
These three aspects of the Daubert standard are often referred
to as the "reliability standard."
¶8 Both the circuit court and the court of appeals
concluded in the instant case that Dr. Wener's testimony was
admissible under § 907.02(1).
¶9 The jury's special verdict found that the defendant
doctor was negligent in the delivery of Braylon and in the
prenatal care of his mother and that this negligence was a cause
of injury to Braylon. The jury further found that Braylon
should be awarded $100,000 for past pain, suffering, disability,
and disfigurement and $1,650,000 for future pain, suffering,
disability, and disfigurement.
¶10 The jury did not award any damages to Braylon's
parents. The jury did not find that the defendant doctor
violated informed consent. These two rulings are not at issue
in this review.
¶11 The circuit court entered judgment for Braylon for
$135,000 in medical expenses and $750,000 in pain and suffering,
"as reduced pursuant to Wisconsin Statute, plus interest thereon
provided by law."6
5
See Daniel D. Blinka, The Daubert Standard in Wisconsin:
A Primer, Wis. Lawyer, Mar. 2011, at 61 ("Only when the witness
identifies her principles and methods is the trial court in a
position to assess their reliability").
6
See Wis. Stat. § 893.55, which caps noneconomic damages at
$750,000 in medical malpractice cases.
4
No. 2014AP195
¶12 On three occasions, the circuit court carefully and
extensively considered the defendants' challenges to the
admissibility of Dr. Wener's testimony under Wis. Stat.
§ 907.02(1): at a "Daubert" hearing before trial, on a
challenge to Dr. Wener's testimony at trial, and on motions
after verdict. The circuit court ruled in favor of admitting
Dr. Wener's testimony at each of these junctures.
¶13 Seeking a new trial, the defendants raise three issues
in this court:
I. Did the circuit court err in admitting the testimony
of Dr. Jeffrey Wener, Braylon's medical expert? The
defendants claim that because Dr. Wener's testimony
was experience-based, his method was unreliable and
inadmissible under Wis. Stat. § 907.02(1).
II. Did several remarks of Braylon's counsel during
closing argument violate the circuit court's orders in
limine, prejudice the jury, and warrant a new trial?
III. Should this court grant a new trial in the interests
of justice pursuant to Wis. Stat. § 751.06?
¶14 The court of appeals affirmed the judgment of the
circuit court, concluding that a new trial was not warranted.
¶15 For the reasons set forth, we affirm the decision of
the court of appeals affirming the circuit court's judgment and
order that a new trial was not warranted. We conclude:
I. The circuit court did not err in applying Wis. Stat.
§ 907.02(1) and admitting as reliable Dr. Wener's
5
No. 2014AP195
expert medical testimony on the standard of reasonable
care based on his personal experiences.
II. The circuit court did not err in concluding that
Braylon's counsel's remarks during closing argument
did not constitute prejudicial error justifying a new
trial.
III. A new trial should not be granted pursuant to Wis.
Stat. § 751.06 in the interests of justice.
¶16 We shall address each issue in turn. The facts and
law relevant to each issue are stated in the discussion of that
issue.
I
¶17 The first issue entails the defendants' challenge to
the testimony of Braylon's medical expert, Dr. Jeffrey Wener, as
unreliable and inadmissible under Wis. Stat. § 907.02(1). Dr.
Wener testified about the standard of reasonable care in the
instant case and how the defendant doctor breached the standard.
¶18 We review the circuit court's admission of Dr. Wener's
testimony for compliance with the Daubert reliability standard
codified in Wis. Stat. § 907.02(1). The defendants' challenge
was that Dr. Wener's experience-based testimony is not the
product of a reliable method. We conclude that Dr. Wener's
testimony was reliable and admissible under § 907.02(1). Our
reasoning in reaching the conclusion that the circuit court did
not erroneously exercise its discretion in admitting Dr. Wener's
testimony proceeds as follows:
6
No. 2014AP195
A. We set forth the facts of the defendant doctor's
prenatal care of Braylon's mother and conduct during
Braylon's delivery. See ¶¶19-28, infra.
B. We examine undisputed facets of the case, including
aspects of Dr. Wener's testimony and the standard of
reasonable care applicable to the defendant doctor in
the instant case. See ¶¶29-37, infra.
C. We summarize Dr. Wener's testimony about the standard
of reasonable care of a family practice doctor
practicing obstetrics. Dr. Wener's testimony was
based on his personal experiences; his opinion was
that the defendant doctor breached that standard. See
¶¶38-49, infra.
D. We discuss the reliability standard set forth in Wis.
Stat. § 907.02(1) that governs admission of expert
evidence. We pay special attention to assessing the
method used by a medical expert based on the expert's
personal experiences. See ¶¶50-93, infra.
E. We set forth the standard for reviewing a circuit
court's determination that medical expert testimony is
admissible under the reliability standard incorporated
in Wis. Stat. § 907.02(1). See ¶¶94-100, infra.
F. Against this backdrop of the teachings about the
reliability of the methodology of medical expert
opinion testimony based on personal experiences and
the standards for reviewing a circuit court's
determination of reliability and admissibility, we
7
No. 2014AP195
review the circuit court's ruling and conclude, as did
the court of appeals, that the circuit court did not
erroneously exercise its discretion in admitting Dr.
Wener's expert medical testimony on the standard of
reasonable care based on his personal experiences.
Accordingly, we affirm the decision of the court of
appeals affirming the circuit court's admission of Dr.
Wener's testimony. See ¶¶101-146, infra.
A
¶19 The defendant doctor, a family practitioner, provided
prenatal care to Braylon's mother during regular prenatal visits
and also delivered Braylon.
¶20 During the regular prenatal visits, as relevant here,
the defendant doctor measured the mother's weight, tested the
mother for gestational diabetes, and performed fundal height
measurements. Obstetricians use the results of these tests to
estimate the baby's birth size. An obese or diabetic mother and
a large fundal height indicate macrosomia (a large baby). The
baby's expected weight influences decisions made leading up to
and during the delivery.
¶21 Braylon's mother weighed 269 pounds at the start of
her pregnancy, and she gained approximately 36 pounds during the
pregnancy.
¶22 The defendant doctor used a one-hour glucose screening
test to determine whether the mother had gestational diabetes.
The test result was 131 mg/dL. A three-hour glucose screening
test diagnoses gestational diabetes more accurately.
8
No. 2014AP195
¶23 The defendant doctor also performed fundal height
measurements, which, according to Dr. Wener, involves "literally
putting a tape measure on mom's pubic bone and then extending
the tape to the top of the fundus, which is the top of the mom's
uterus."
¶24 Obstetricians may also perform an ultrasound near the
date of delivery to get a more accurate estimate of the baby's
size. The defendant doctor did not perform an ultrasound.
¶25 The defendant doctor estimated that Braylon would
weigh eight pounds, eight ounces at birth. Braylon's actual
birth weight was nine pounds, twelve ounces.
¶26 Braylon's mother arrived at the hospital on May 28,
2009 for inducement of labor. Initially, things went well. The
mother was completely dilated and ready to push by 11:00 p.m.
After an hour, the baby had started descending but Braylon's
mother had grown tired.
¶27 The defendant doctor then decided to use a vacuum
device to assist in the delivery. This device is essentially a
suction cup that attaches to the baby's head and is used to aid
the mother's efforts. Thirteen minutes and four contractions
later, the baby's head delivered.
¶28 Right after the baby's head emerged, it retracted into
the mother (the "turtle sign") and the defendant doctor was
faced with a shoulder dystocia. A shoulder dystocia occurs when
one or both of the baby's shoulders become stuck inside the
mother's body and prevent delivery. The defendant doctor then
performed a series of well-known obstetrical maneuvers (physical
9
No. 2014AP195
manipulations to mother and baby) to resolve the dystocia. The
baby was delivered approximately three minutes after the
diagnosis of shoulder dystocia.
B
¶29 Before we delve into the substance of Dr. Wener's
challenged testimony, we turn to undisputed facets of the case,
including aspects of Dr. Wener's testimony and the standard of
reasonable care for a family practice doctor practicing
obstetrics.
¶30 The parties do not dispute that the applicable
standard of care under Wisconsin law is reasonable care for a
family practice doctor practicing obstetrics and that a family
practice doctor may be liable for injury caused by breach of
that standard of care.
¶31 Nor do the parties dispute that the jury in the
instant case was properly instructed on this standard of
reasonable care. The circuit court presented the standard of
reasonable care, as set forth in Wisconsin Jury Instruction
Civil 1023, to the jury as follows:
In treating and diagnosing Kimberly Seifert's
pregnancy, labor, and delivery, Dr. Kay Balink was
required to use the degree of care, skill, and
judgment which reasonable family practice doctors
practicing obstetrics would exercise in the same or
similar circumstances, having due regard for the state
of medical science at the time of the pregnancy,
labor, and delivery. A doctor who fails to conform to
this standard is negligent.
The burden is on the plaintiffs to prove that Dr. Kay
Balink was negligent. A doctor is not negligent;
[sic] however, for failing to use the highest degree
10
No. 2014AP195
of care, skill, and judgment, or solely because a bad
result may have followed her care, and treatment
and/or diagnosis.
The standard you must apply in determining if Dr. Kay
Balink is negligent is whether Dr. Kay Balink failed
to use the degree of care, skill, and judgment which
reasonable family practice doctors practicing
obstetrics would exercise given the state of medical
knowledge at the time of the treatment and diagnosis
in issue. (Emphasis added.)
¶32 The parties do not dispute that Braylon was required
to introduce expert testimony to describe the care that
satisfies the standard of reasonable care in the instant case
and to detail the defendant doctor's failure to furnish care
that met this standard.
¶33 Braylon offered Dr. Wener's testimony to establish the
standard of reasonable care for a family practice doctor
practicing obstetrics. The parties do not dispute that Dr.
Wener is a qualified expert; that Dr. Wener has "scientific,
technical, or other specialized knowledge" that could assist the
trier of fact; and that if admissible, his testimony would be
relevant and helpful to the trier of fact. Wis. Stat.
§ 907.02(1).
¶34 The parties also do not dispute:
• Braylon suffered a shoulder dystocia.
• Immediately after the delivery, Braylon's left upper
arm was not functioning, and within a few days after
birth he was diagnosed with a permanent brachial
plexus injury.
11
No. 2014AP195
• Braylon's brachial plexus injury limits the growth and
function of the arm, required surgery, and will
require continued therapy to ameliorate the injury.
• An obese mother, gestational diabetes, and a
macrosomic baby increase the risk of shoulder
dystocia.
¶35 The circuit court stated that the parties do not
seriously question that the application of excessive traction
beyond what the fetus can withstand may be a cause of severe
brachial plexus injuries during childbirth, although the circuit
court acknowledged that there were contentions that other causes
may have been present in the instant case. Relatedly, the
parties do not dispute that the use of a vacuum during delivery
may increase the risk of a brachial plexus injury.
¶36 Collectively, these shoulder dystocia risk factors——
obese mother, gestational diabetes, macrosomic baby, excessive
traction, and vacuum-assisted delivery——are undisputed; these
are the principles that guide Dr. Wener's testimony.
¶37 The defendants' challenge to Dr. Wener's testimony is
that his testimony is not the product of reliable methods, that
is, the defendants contend that Dr. Wener's methodology is
unreliable. Specifically, the defendants argue that Dr. Wener's
testimony is not the product of reliable methods under Wis.
Stat. § 907.02(1) because the testimony was based on Dr. Wener's
personal experiences. In evaluating the defendants' challenge,
we begin by reviewing the substance of Dr. Wener's testimony.
C
12
No. 2014AP195
¶38 Dr. Wener testified at length about the standard of
reasonable care in the instant case and opined that the
defendant doctor breached that standard of reasonable care. Dr.
Wener's lengthy expert medical testimony was based on his
personal experiences, and he was subjected to extensive cross-
examination.
¶39 Dr. Wener described his extensive qualifications. He
stated that he is a board certified obstetrician-gynecologist
(OB-GYN) who practices in a suburb outside of Chicago. An OB-
GYN provides medical care to women. The obstetric portion of
the practice relates to pregnancy; the gynecological portion of
the practice relates to female patients who are not pregnant.
¶40 As to his obstetrics practice, Dr. Wener estimated
that he has delivered between 7,500 and 8,000 babies and has
encountered between 37 and 40 instances of shoulder dystocia in
his 36-year career.
¶41 In addition to private practice, Dr. Wener has taught
medical students and residents and was chairman of the
obstetrics-gynecology department at a hospital for about 20
years. As chairman, he was responsible for the quality of care
provided by physicians practicing in his department, and he sat
on the medical executive committee of the hospital. He further
testified that he examines medical records for both plaintiff
and defense attorneys. Dr. Wener is a member of the American
College of Obstetricians and Gynecologists.
¶42 Dr. Wener did not preface each of his statements with
the words "a reasonable family doctor practicing obstetrics."
13
No. 2014AP195
The clear inference from Dr. Wener's testimony, taken as a
whole, is that he was setting forth and applying a standard of
reasonable care for prenatal care and delivery applicable to a
family practitioner practicing obstetrics. Furthermore, the
jury instructions declared that the burden was on Braylon to
prove that the defendant doctor was negligent and that the
defendant doctor had to conform to the standard of care "which
reasonable family practice doctors practicing obstetrics would
exercise in the same or similar circumstances." See ¶31, supra.
¶43 Dr. Wener's experience and testimony demonstrate that
he is familiar with the standard of reasonable care for family
practice doctors practicing obstetrics.
¶44 Dr. Wener concluded that the defendant doctor in the
instant case breached the standard of reasonable care in several
respects. He testified that several risk factors should have
alerted the defendant doctor to the risk of shoulder dystocia,
such as the pre-pregnancy weight of the mother and the weight
she gained during pregnancy, the risk of gestational diabetes,
and the risk of a large baby.
¶45 In Dr. Wener's opinion, these three interrelated risk
factors were important because, added together, they increased
the risk of shoulder dystocia. Dr. Wener explained, "A doctor
has to take care of every patient individually. And in doing so
there are risk factors that every patient has. And you have to
look at the patient as a whole and look at all of the risk
factors as they are applicable to the patient." Dr. Wener
opined to a reasonable degree of medical certainty that, based
14
No. 2014AP195
on his education, training, experience, and the facts of the
instant case, it was more likely than not that the mother was a
gestational diabetic because of her weight and a one-hour
glucose test result of 131 mg/dL.
¶46 Dr. Wener asserted that the defendant doctor fell
below the standard of reasonable care for a family practice
doctor practicing obstetrics by failing to order a three-hour
glucose test for Braylon's mother. Dr. Wener concluded that the
standard of reasonable care required a three-hour test when the
result from the one-hour test was over 130 mg/dL and the mother
was obese. The three-hour glucose test would have been more
likely to diagnose gestational diabetes, a condition associated
with increased risk of shoulder dystocia.
¶47 Dr. Wener also gave his opinion to a reasonable degree
of medical certainty that, in view of the mother's size and the
one-hour test result, the defendant doctor breached the standard
of reasonable care for a family practice doctor practicing
obstetrics by failing to perform an ultrasound on Braylon's
mother immediately prior to delivery. An ultrasound, in Dr.
Wener's opinion, would have given the defendant doctor a better
estimate of Braylon's fetal weight and whether Braylon was
macrosomic (that is, a large baby), a condition that Dr. Wener
associated with a greater risk of shoulder dystocia.
¶48 In addition, Dr. Wener testified that the defendant
doctor's use of vacuum assistance during the birthing process
breached the standard of reasonable care by increasing the risk
of shoulder dystocia. Explaining that it is risky to use the
15
No. 2014AP195
vacuum on a patient exhibiting the risk factors that Braylon's
mother exhibited, Dr. Wener opined——to a reasonable degree of
medical certainty——that a vacuum should not have been applied at
all in the instant case.
¶49 Dr. Wener also testified to a reasonable degree of
medical certainty that the defendant doctor breached the
standard of reasonable care for a family practice doctor
practicing obstetrics by applying excessive traction beyond what
the fetus could withstand in attempting to resolve the shoulder
dystocia and that this excessive traction (not the mother's
pushing) had a causative effect on Braylon's brachial plexus
injury.
D
¶50 With the substance of Dr. Wener's testimony in mind,
we turn to the reliability standard governing the admission of
expert evidence set forth in the 2011 amendment to Wis. Stat.
§ 907.02(1). The following emphasized language in Wis. Stat.
§ 907.02(1) adopting the reliability standard was added in 2011.
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
¶51 The 2011 amendment to Wis. Stat. § 907.02(1) changed
the law to mirror Federal Rule of Evidence 702, which codifies
16
No. 2014AP195
Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579
(1993), and its progeny.7
¶52 Before 2011, when the legislature adopted the Daubert
reliability standard in amended Wis. Stat. § 907.02(1),
Wisconsin case law applied the "relevancy test" to the admission
of expert evidence: Expert evidence was admissible if the
witness was qualified, the evidence assisted the trier of fact,
and the evidence was relevant.8
¶53 Wisconsin case law had rejected both Frye's "general
acceptance test"9 and the federal Daubert reliability standard.10
7
See 2011 WI Act 2, WI S. Amend. Memo, 2011 Jan. Spec.
Sess. S.B. 1 ("This language [in Wis. Stat. § 907.02(1)] is
identical to the language of Rule 702 of the Federal Rules of
Evidence."); State v. Giese, 2014 WI App 92, ¶17, 356
Wis. 2d 796; 854 N.W.2d 687 ("In January 2011, the legislature
amended § 907.02 to make Wisconsin law on the admissibility of
expert testimony consistent with 'the Daubert reliability
standard embodied in Federal Rule of Evidence 702.'") (quoting
State v. Kandutsch, 2011 WI 78, ¶26 n.7, 336 Wis. 2d 478, 799
N.W.2d 865).
8
For discussion of pre-Daubert Wisconsin case law, see
Daniel D. Blinka, Expert Testimony and the Relevancy Rule in the
Age of Daubert, 90 Marq. L. Rev. 173 (2006).
9
Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923),
stated the rule as follows:
The rule is that the opinions of experts or skilled
witnesses are admissible in evidence in those cases in
which the matter of inquiry is such that inexperienced
persons are unlikely to prove capable of forming a
correct judgment upon it . . . .
. . . .
[W]hile courts will go a long way in admitting expert
testimony deduced from a well-recognized scientific
(continued)
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No. 2014AP195
¶54 Professor Daniel Blinka concludes that Daubert
"created a reliability standard that is less a bright-line test,
as it is often assumed to be, and more an evidentiary
porridge."11
¶55 The instant case is this court's first occasion to
apply amended Wis. Stat. § 907.02(1). We do not write on a
blank slate. Wisconsin Stat. § 907.02(1) mirrors Federal Rule
of Evidence 702 as amended in 2000,12 and we may look for
principle or discovery, the thing from which the
deduction is made must be sufficiently established to
have gained general acceptance in the particular field
in which it belongs.
10
A law student commentator concluded that the Wisconsin
Supreme Court nudged the relevancy standard closer to Daubert to
the point that the relevancy standard became "Daubert lite,"
citing State v. Hibl, 2006 WI 52, ¶52, 290 Wis. 2d 595, 714
N.W.2d 194 (explaining that circuit courts have a limited
gatekeeping function because the relevancy test requires a
showing that the expert's opinion was "reliable enough to be
probative"). Kristen Irgens, Wisconsin Is Open for Business or
Business Just as Usual? The Practical Effects and Implications
of 2011 Wisconsin Act 2, 2012 Wis. L. Rev. 1245, 1256-57.
11
Blinka, supra note 5, at 19 ("[The Daubert reliability
standard] is purportedly more liberal than the once-dominant
general acceptance test ('too cold') yet more demanding than the
relevancy standard ('too hot').").
The post-Daubert case law indicates that rejecting expert
testimony is "the exception rather than the rule." See Federal
Rule Evidence 702 Advisory Committee Note (2000).
12
In 2000, the following underlined language was added to
Federal Rule of Evidence 702 to reflect Daubert:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
(continued)
18
No. 2014AP195
guidance and assistance in interpreting and applying § 907.02(1)
to the Daubert case and its progeny, to the Advisory Committee
experience, training, or education, may testify
thereto in the form of an opinion or otherwise., if
(1) the testimony is based on sufficient facts or
data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
Federal Rule of Evidence 702 was also amended in 2011 "as
part of the restyling of the Evidence Rules to make them more
easily understood and to make style and terminology consistent
throughout the rules," but no substantive changes were intended.
Federal Rule of Evidence 702 Committee Notes (2011).
Federal Rule of Evidence 702 now provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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No. 2014AP195
Notes to Federal Rule of Evidence 702,13 and to federal and state
cases interpreting the text of Rule 702 or an analogous state
law. The federal or state interpretations, however, are not
necessarily dispositive.14
¶56 As we have previously noted, the federal reliability
standard for the admissibility of expert evidence is explained
in Daubert. After Daubert, the United States Supreme Court
decided General Electric Co. v. Joiner, 522 U.S. 136 (1997), and
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). This
trilogy of cases delineated the contours of the reliability
standard.
¶57 In Daubert——a products liability case——the Court
rejected Frye's general acceptance test and concluded that
Federal Rule of Evidence 702 contemplates that trial courts have
a gatekeeping obligation. This gatekeeping obligation
13
Under the Rules Enabling Act, 28 U.S.C. § 2072, the
United States Supreme Court is authorized to promulgate rules of
practice and procedure for the federal courts. This authority
is exercised by the Judicial Conference of the United States.
The Conference promulgates and changes rules of practice and
procedure in the federal courts subject to oversight by the
Court. For the Federal Rules of Evidence, the Judicial
Conference is aided in its rule-making powers by the Evidence
Advisory Committee; the members of and reporter to this
Committee are appointed by the Chief Justice of the United
States Supreme Court. Paul R. Rice and Neals-Erik William
Delker, Federal Rules of Evidence Advisory Committee: A Short
History of Too Little Consequence, 191 F.R.D. 678, 679 (2000).
14
State v. Poly-America, Inc., 164 Wis. 2d 238, 246, 474
N.W.2d 770 (1991) ("When a state statute is modeled after a
federal rule, we look to the federal interpretation of that rule
for guidance and assistance.").
20
No. 2014AP195
"assign[s] to the trial court the task of ensuring that a
scientific expert is qualified" and that his or her "testimony
both rests on a reliable foundation and is relevant to the task
at hand." Daubert, 509 U.S. at 597.
¶58 In the instant case, the parties challenge the
reliability of Dr. Wener's expert medical testimony.15 We
therefore focus our discussion on the reliability prong of Wis.
Stat. § 907.02(1), specifically the reliability of the methods
used by Dr. Wener.16 The trial court must be satisfied that the
testimony is reliable by a preponderance of the evidence.
Daubert, 509 U.S. at 593; Wis. Stat. § 901.04.
15
The parties do not dispute that Dr. Wener was qualified
as an expert and that his opinion was relevant in the instant
case.
16
Wisconsin Stat. § 907.02(1) states that testimony must be
based on "reliable principles and methods." Only Dr. Wener's
"method" is challenged in the instant case. For an illustration
of the difference between principles and methods, the Federal
Rule of Evidence 702 Advisory Committee Note (2000) gives the
following illustration:
For example, when a law enforcement agent testifies
regarding the use of code words in a drug transaction,
the principle used by the agent is that participants
in such transactions regularly use code words to
conceal the nature of their activities. The method
used by the agent is the application of extensive
experience to analyze the meaning of the
conversations. So long as the principles and methods
are reliable and applied reliably to the facts of the
case, this type of testimony should be admitted.
Several cases tend to collapse principles and methods into
a singular "reliability" analysis.
21
No. 2014AP195
¶59 Daubert makes the trial court a gatekeeper, not a fact
finder. When credible, qualified experts disagree, a litigant
is entitled to have the jury, not the trial court, decide which
expert to believe. Dorn v. Burlington N. Santa Fe R.R. Co., 397
F.3d 1183, 1196 (9th Cir. 2005).17
¶60 Although the Daubert Court focused its discussion on
scientific testimony, the Supreme Court later clarified that
Daubert's inquiry applies not just to scientific evidence, but
to all expert opinions, "whether the testimony reflects
scientific, technical, or other specialized knowledge." Kumho
Tire, 526 U.S. at 149.
¶61 The reliability standard "entails a preliminary
assessment of whether the reasoning or methodology is
scientifically valid." Daubert, 509 U.S. at 592-93.
Reliability depends "solely on principles and methodology, not
17
"Experts often disagree. A trial court's determination
that the proffered testimony of one expert witness is reliable
and helpful does not necessarily mean that the contradictory
testimony of another witness, concerning the same subject matter
by using a different methodology, is not also reliable and
helpful." 4 Jack B. Weinstein, Weinstein's Federal Evidence
§ 702.05[3] (2d ed. 2011), citing Federal Rule of Evidence 702
Committee Note (2000).
"Since its inception, the courts have sought to apply Rule
702 in a manner that preserves the jury's traditional power to
weigh evidence and determine witness credibility." 29 Charles
Alan Wright & Victor Gold, Federal Practice and Procedure:
Evidence, § 6268.2 (2d ed. 2016), citing DiCarlo v. Keller
Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000).
22
No. 2014AP195
on the conclusions that they generate." Daubert, 509 U.S. at
595.
¶62 To guide the reliability analysis, the Daubert court
provided a nonexhaustive18 list of factors that make scientific
evidence sufficiently reliable for admission: "(1) whether the
methodology can and has been tested; (2) whether the technique
has been subjected to peer review and publication; (3) the known
or potential rate of error of the methodology; and (4) whether
the technique has been generally accepted in the scientific
community." Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d
Cir. 1999), citing Daubert, 509 U.S. at 592-93.
¶63 The Federal Rules Advisory Committee added five
factors to those stated in Daubert to guide decisions about
reliability:
(1) Whether experts are "proposing to testify about
matters growing naturally and directly out of research
they have conducted independent of the litigation, or
whether they have developed their opinions expressly
for purposes of testifying. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.
1995).
(2) Whether the expert has unjustifiably extrapolated
from an accepted premise to an unfounded conclusion.
See General Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997) (noting that in some cases a trial court "may
conclude that there is simply too great an analytical
gap between the data and the opinion proffered").
18
"Many factors will bear on the inquiry, and we do not
presume to set out a definitive checklist or test." Daubert,
509 U.S. at 593.
23
No. 2014AP195
(3) Whether the expert has adequately accounted for
obvious alternative explanations. See Claar v.
Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994)
(testimony excluded where the expert failed to
consider other obvious causes for the plaintiff's
condition). Compare Ambrosini v. Labarraque, 101
F.3d 129 (D.C. Cir. 1996) (the possibility of some
uneliminated causes presents a question of weight, so
long as the most obvious causes have been considered
and reasonably ruled out by the expert).
(4) Whether the expert "is being as careful as he
would be in his regular professional work outside his
paid litigation consulting." Sheehan v. Daily Racing
Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See
Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176
(1999) (Daubert requires the trial court to assure
itself that the expert "employs in the courtroom the
same level of intellectual rigor that characterizes
the practice of an expert in the relevant field").
(5) Whether the field of expertise claimed by the
expert is known to reach reliable results for the type
of opinion the expert would give. See Kumho Tire Co.
v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (Daubert's
general acceptance factor does not "help show that an
expert's testimony is reliable where the discipline
itself lacks reliability, as for example, do theories
grounded in any so-called generally accepted
principles of astrology or necromancy."); Moore v.
Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998)
(en banc) (clinical doctor was properly precluded from
testifying to the toxicological cause of the
plaintiff's respiratory problem, where the opinion was
not sufficiently grounded in scientific methodology);
Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th
Cir. 1988) (rejecting testimony based on "clinical
ecology" as unfounded and unreliable)."19
¶64 Considering the broad range of cases in which expert
evidence arises, courts have not been constrained by the listed
19
See commentary following the 2000 amendment to Federal
Rule of Evidence 702. See also Blinka, supra note 5, at 19.
24
No. 2014AP195
factors. How courts apply these factors necessarily varies case
by case, expert by expert. "Too much depends upon the
particular circumstances of the particular case at issue" to
impose hard and fast rules. Kumho Tire, 526 U.S. at 150. A
trial court conducts its reliability analysis with wide
latitude.20 Kumho Tire emphasized that the application of the
Daubert factors is a flexible inquiry: "[T]he law grants a
district court the same broad latitude when it decides how to
determine reliability as it enjoys in respect to its ultimate
reliability determination." Kumho Tire, 526 U.S. at 142.
¶65 Thus, the trial court may consider some, all, or none
of the factors listed to determine whether the expert evidence
is reliable. Federal Rule of Evidence 702 Advisory Committee's
Note (2000).
¶66 Because the instant case involves expert medical
testimony based on a witness's personal experiences, we discuss
the reliability of expert medical opinion based on the expert's
personal experiences.
20
"[W]e conclude that the trial judge must have
considerable leeway in deciding in a particular case how to go
about determining whether particular expert testimony is
reliable. That is to say, a trial court should consider the
specific factors identified in Daubert where they are reasonable
measures of the reliability of expert testimony." Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (emphasis
added). "[W]hether Daubert's specific factors are, or are not,
reasonable measures of reliability in a particular case is a
matter that the law grants the trial judge broad latitude to
determine." Kumho Tire, 526 U.S. at 153.
25
No. 2014AP195
¶67 Daubert affirms that experience-based expert evidence
may pass muster as a method under the reliability requirement.
Though the Daubert Court stated that "[p]roposed testimony must
be supported by appropriate validation——i.e., 'good grounds,'
based on what is known," the Court also stated that the very
structure of the rules of evidence suggest that experience can
be "good grounds." Daubert, 509 U.S. at 590.
¶68 Daubert's reference to the structure of the rules of
evidence was a reference to the evidentiary rule that all
witnesses except experts generally must have firsthand knowledge
of the events to which they testify.21 The Daubert court
inferred that this "relaxation of the usual requirement of
firsthand knowledge . . . is premised on an assumption that the
expert's opinion will have a reliable basis in the knowledge and
experience of this discipline." Daubert, 509 U.S. at 592.
¶69 Likewise, the Kumho Tire Court explicitly recognized
that in some cases, "the relevant reliability concerns will
focus upon personal knowledge or experience." Kumho Tire, 526
U.S. at 150.
¶70 In Kumho Tire, the United States Supreme Court
specifically addressed the application of the Daubert
reliability analysis to experience-based, non-scientific expert
testimony. The Court required a witness relying on experience
21
Compare Federal Rule of Evidence 701 (firsthand knowledge
requirement for witnesses) with Federal Rule of Evidence 703 (no
firsthand knowledge requirement for experts).
26
No. 2014AP195
to offer some articulated rationale supporting his or her
opinion. This Kumho Tire requirement is not "impossibly
demanding."22
¶71 The Kumho Tire Court recognized that "there are many
different kinds of experts, and many different kinds of
expertise," Kumho Tire, 526 U.S. at 150, so the factors set
forth in Daubert and Kumho Tire "may or may not be pertinent in
assessing reliability, depending on the nature of the issue, the
expert's particular expertise, and the subject of his
testimony." Kumho Tire, 526 U.S. at 150.
¶72 The Kumho Tire Court emphasized that in the case of a
non-scientific expert, "the relevant reliability concerns may
focus upon personal knowledge or experience." Kumho Tire, 536
U.S. at 150. The point, according to Kumho Tire, is to ensure
that an expert, "whether basing testimony upon professional
studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice
of an expert in the relevant field." Kumho Tire, 526 U.S. at
152.23
22
Blinka, supra note 5, at 61
23
See also Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th
Cir. 1996) (The purpose of the rule announced in Daubert "was to
make sure that when scientists testify in court they adhere to
the same standards of intellectual rigor that are demanded in
their professional work.").
(continued)
27
No. 2014AP195
¶73 The Federal Advisory Committee Note to the 2000
Amendment to Rule 702 also recognizes that expert evidence based
on personal experiences can meet the reliability test and offers
the following general guidance for evaluating experience-based
testimony:
If the witness is relying solely or primarily on
experience, then the witness must explain how that
experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and
how that experience is reliably applied to the facts.24
¶74 The trial court's gatekeeping function in regard to
experience-based testimony, however, "requires more than simply
'taking the expert's word for it.'"25
¶75 An expert cannot establish that a fact is generally
accepted merely by saying so.26 Trial courts do not have "to
admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert." Such an application is
"Kumho at least made it clear that, in addition to gauging
reliability in light of factors specific to the area of
expertise involved, a trial court also may consider whether the
expert's testimony holds together based on logic and common
sense." 29 Wright & Gold, supra note 17, § 6267.
24
Federal Rule of Evidence 702 Advisory Committee Note
(2000).
25
Federal Rule of Evidence 702 Advisory Committee Note
(2000).
26
"A supremely qualified expert cannot waltz into the
courtroom and render opinions unless those opinions are based
upon some recognized scientific method and are reliable and
relevant under the test set forth by the Supreme Court in
Daubert." Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th
Cir. 1999).
28
No. 2014AP195
unreliable because "there is simply too great an analytical gap
between the data and the opinion offered." Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997).
¶76 Thus, for example, a federal district court excluded
proffered expert testimony because the witness's experience was
not extensive enough to indicate reliability for testimony based
on personal experience. The expert's "sample size" (himself
alone) was too small:
Essentially, his proposed testimony boils down to the
conclusion that because he has been able to perform
police work successfully despite his monocular vision,
then the Plaintiff will likewise be successful. This
is a leap of faith that the Court is unwilling to
make, as there is nothing inherent about [the
witness's] own personal experience as a monocular
visioned person which logically or scientifically
leads to a supportable conclusion that other persons
with monocular vision necessarily, or even probably,
would have the same abilities that he has.
Trevino v. City of Rock Island Police Dep't, 91
F. Supp. 2d 1204, 1207 (C.D. Ill. 2000).27
¶77 Case law demonstrates, nonetheless, that courts
frequently admit experience-based testimony, especially when
27
Even when expert testimony relies on adequate principles,
trial courts may still exclude the testimony when the
methodology used to reach a conclusion based on those principles
is unsupported. McGovern ex rel. McGovern v. Brigham & Women's
Hosp., 584 F. Supp. 2d 418, 425-26 (D. Mass. 2008) (excluding
expert's "opinion [that was] was connected to existing data
about the risk of stroke after vacuum extraction only by his own
ipse dixit."). The reliability standard requires an explanation
of how the methodology used by the expert is derived from the
witness's experience and led to the conclusion reached.
McGovern, 384 F. Supp. 2d at 426.
29
No. 2014AP195
expert medical evidence is offered. Expert medical opinion
based on experience alone, "or experience in conjunction with
other knowledge, skill, training or education" may constitute a
reliable basis.28 "In certain fields, experience is the
predominant, if not sole, basis for a great deal of reliable
expert testimony."29
¶78 Medicine is an example of such a field because
medicine "is based on specialized as distinguished from
scientific knowledge."30 When evaluating specialized or
technical expert opinion testimony, "the relevant reliability
concerns may focus upon personal knowledge or experience."
Kumho Tire, 526 U.S. at 150.
¶79 The classic medical school texts explain that medicine
is scientific but not entirely a science.31 "Medicine is not a
science but a learned profession, deeply rooted in a number of
sciences and charged with the obligation to apply them for man's
benefit."32 Much of medical decision-making relies on judgment
28
Blinka, supra note 5, at 60 (quoting Federal Rule of
Evidence 702 Advisory Committee Note (2000)).
29
Federal Rule of Evidence 702 Advisory Committee Note
(2000).
30
Sullivan v. U.S. Dep't of the Navy, 365 F.3d 827, 834
(9th Cir. 2004).
31
Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010).
32
Primiano v. Cook, 598 F.3d at 565 (quoting the "classic
medical school text" Cecil Textbook of Medicine 1 (James B.
Wyngaarden & Lloyd H. Smith Jr. eds., 17th ed. 1985)).
30
No. 2014AP195
and is difficult to quantify or even to assess qualitatively.
In medicine, "knowledge is often uncertain," "[t]he human body
is complex," and "etiology is often uncertain."33 Furthermore,
practical and ethical concerns prevent "studies calculated to
establish statistical proof."34 Physicians must use their
knowledge and experience as a basis for weighing known factors
along with "inevitable uncertainties" to "mak[e] a sound
judgment."35
¶80 That Daubert lends its analysis more favorably to more
objective sciences does not bar the testimony of physicians
applying their experience and clinical methods.36 That the
knowledge is uncertain "does not preclude the introduction of
33
United States v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th
Cir. 2006).
34
Sandoval-Mendoza, 472 F.3d at 655.
35
Primiano, 598 F.3d at 565 (quoting the "classic medical
school text" Harrison's Principles of Internal Medicine 3
(Dennis L. Kasper et al. eds., 16th ed. 2005)).
36
See, e.g., 29 Wright & Gold, supra note 17, § 6269.8
(medical expert "opinion[s] also may be based on extensive
personal observations, professional experience, education, and
training even where the medical expert has not conducted an
epidemiological study and even where the expert's opinion is not
generally accepted and is unsupported by peer review");
Sandoval-Mendoza, 472 F.3d at 656 (a well qualified physician
with sufficient expertise could reliably testify about
defendant's brain tumor to establish an entrapment defense);
Primiano, 598 F.3d at 568 (abuse of discretion to exclude
doctor's testimony in products liability case based on his
experiences alone, but noting that medical literature had not
addressed a similar situation).
31
No. 2014AP195
medical expert opinion testimony when medical knowledge permits
the assertion of a reasonable opinion."37
¶81 "A trial court should admit medical expert testimony
if physicians would accept it as useful and reliable."38 In
other words, expert medical opinion testimony is reliable if the
knowledge underlying it "has a reliable basis in the knowledge
and experience of the [relevant] discipline."39
¶82 In Schneider ex rel. Estate of Schneider v. Fried, 320
F.3d 396, 406 (3d Cir. 2003), the federal Third Circuit Court of
Appeals explained that a physician's "experience render[ed] his
testimony reliable [and] demonstrate[d] that his testimony [was]
based on 'good grounds.'" In light of his considerable
professional experience, the physician's testimony on the
standard of care was reliable, even if the content of the
literature cited was irrelevant. The federal court of appeals
37
Sandoval-Mendoza, 472 F.3d at 655 (internal quotation
marks & quoted source omitted).
38
Sandoval-Mendoza, 472 F.3d at 655.
39
Sandoval-Mendoza, 472 F.3d at 655 (quoting Kumho Tire,
526 U.S. at 149 (quoting Daubert, 509 U.S. 579, 592)); Zuchowicz
v. United States, 140 F.3d 381 (2d Cir. 1998) (district court
had discretion to admit opinions of clinical medical experts
about cause of plaintiff's disease because they were based on
methods reasonably relied on by clinical physicians, even though
the drug had not been previously linked to that disease).
"In a non-scientific context, the reliability of an
expert's methodology often will be a function of accepted
practice in the area of expertise in question." 29 Wright &
Gold, supra note 17, § 6268.1.
32
No. 2014AP195
concluded that the magistrate judge abused his discretion by
excluding the expert testimony.40
¶83 The Schneider court stated that expert testimony does
not have to be subject to peer review to be admitted under Rule
702; the physician's experience renders his or her testimony
reliable and demonstrates that the testimony is based on good
grounds.41 The court recognized, however, that the degree to
which the medical expert is qualified implicates the reliability
of the testimony. Schneider, 320 F.3d at 406.
¶84 Similarly, the federal Sixth Circuit Court of Appeals
held that a district court abused its discretion by excluding a
physician's testimony based on extensive, relevant experience
when the physician had not cited medical literature supporting
40
Schneider ex rel. Estate of Schneider v. Fried, 320
F.3d 396 (3rd Cir. 2003), involved a claim that a decedent
received cardiac care that fell below the standard of care. The
court provided the following discussion in regard to this
expert:
The record establishes that as an invasive
cardiologist, who normally diagnoses heart conditions,
Dr. Semigran was routinely present during surgical
procedures and regularly advised interventional
cardiologists during the course of those procedures.
Dr. Semigran also testified that he would consult with
interventional cardiologists about which drugs should
or should not be given to patients undergoing
angioplasties.
Schneider, 320 F.3d at 406.
41
Daubert, 509 U.S. at 590 ("Proposed testimony must be
supported by appropriate validation——i.e., good
grounds . . . .").
33
No. 2014AP195
his view. Dickenson v. Cardiac & Thoracic Surgery of E. Tenn.,
388 F.3d, 976, 980 (6th Cir. 2004). Requiring an expert to
demonstrate a familiarity with accepted medical literature or
published standards in order for the testimony to be reliable in
the sense contemplated by Federal Rule of Evidence 702 is an
erroneous statement of the law. Dickenson, 388 F.3d at 980-81
(citing Federal Rule of Evidence 702, Advisory Committee Note
expressly contemplating that an expert may testify on the basis
of experience).42
42
Kumho Tire, 526 U.S. 137, 156 ("[N]o one denies that an
expert might draw a conclusion from a set of observations based
on extensive and specialized experience."); Feliciano-Hill v.
Principi, 439 F.3d 18, 24-25 (1st Cir. 2006) (physician's expert
testimony met Daubert/Rule 702 standards even though he failed
to support his diagnosis with citations to published
authorities; physician offered a "routine diagnosis" on patient
he had examined, related to common condition well within his
expertise); Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th
Cir. 2001) ("There is no requirement that a medical expert must
always cite published studies on general causation in order to
reliably conclude that a particular object caused a particular
illness." (internal quotation marks & quoted source omitted)).
(continued)
34
No. 2014AP195
¶85 The case law teaches that Daubert's role of ensuring
that the courtroom door remains closed to junk science is not
served by excluding medical expert testimony that is supported
by extensive relevant medical experience.43 Such exclusion is
rarely justified in cases involving medical experts. Dickenson,
388 F.3d at 981. See also Daniel W. Shuman, Expertise in Law,
Medicine, and Health Care, 27 J. Health Pol., Pol'y & L. 267
The defendants cite several cases for the proposition that
to offer reliable testimony, Dr. Wener should have based his
testimony on medical literature. The cases are distinguishable
from the instant case. For example, although the court noted in
Berk v. St. Vincent's Hospital & Medical Center, 380
F. Supp. 2d 334 (S.D.N.Y. 2005), that the excluded expert cited
"no germane medical literature," the expert's report was
excluded for other reasons: the expert's report was unsworn,
was based on incorrect factual assumptions, and offered no
methodology other than the expert's say-so. Berk, 380
F. Supp. 2d at 354-56. In contrast, Dr. Wener's testimony was
given under oath; Dr. Wener relied on Braylon's and his mother's
medical reports; Dr. Wener offered a clinical methodology that
applied accepted risk factors to the facts of the instant case;
and the defendants' experts offered testimony that actually
supported Dr. Wener's testimony.
43
The phrase "junk science" is ordinarily used as an
epithet to refer to research or information that is not
credible. See Kumho Tire, 526 U.S. at 159 (Scalia, J.,
concurring) (Kumho makes clear that the discretion it endorses
is "discretion to choose among reasonable means of excluding
expertise that is fausse and science that is junky.").
35
No. 2014AP195
(2001) (characterizing the effect of Daubert and Kumho cases on
claims of medical expertise as "much ado about little").44
¶86 Instead of exclusion, the appropriate means of
attacking "shaky but admissible" experience-based medical expert
testimony is by "[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of
proof . . . ." Daubert, 509 U.S. at 597.
44
The Wisconsin Medical Society and American Medical
Association filed an amicus brief urging that this court
"recognize that medical opinions supported by unsystematic
clinical observations have reliability limited to those
situations where physicians would not be expected to produce
extrinsic support for their contentions but presumptively fail
to cross the Daubert reliability threshold when tendered to
establish the standard of care in a medical negligence claim."
See Brief of Amicus Curiae Wisconsin Medical Society & American
Medical Association at 9-10.
This argument is not supported in the case law. Expecting
on-point medical literature to define a physician's standard of
care in the penumbra of clinical situations is unreasonable.
See Michelle M. Mello, Using Statistical Evidence to Prove the
Malpractice Standard of Care: Bridging Legal, Clinical, and
Statistical Thinking, 37 Wake Forest L. Rev. 821, 857 (2002).
The author states:
For clinical scenarios involving a high degree of
independent judgment and careful attention to the
individual characteristics of each patient, expert
opinion testimony tailored to the particular situation
at issue in the malpractice case truly does have an
advantage over reliance on practice guidelines or
other standards formulated ex ante[,] . . . derived
from a population of patients that may not resemble
the plaintiff . . . .
Id. at 846.
36
No. 2014AP195
Once evaluated and deemed sufficiently reliable for
admission, that expert opinion [based on personal
experience] is submitted to the "capabilities of the
jury and of the adversary system generally."
Lapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012) (citing
Daubert, 509 U.S. at 596).45
E
¶87 Our next task is to determine the standard for
reviewing the circuit court's gatekeeping determination under
Wis. Stat. § 907.02(1). We refer to federal law to guide our
analysis of the standard for review.
¶88 We examine the circuit court's rulings both
independently as a question of law and also under the erroneous
exercise of discretion standard.
¶89 The interpretation and application of a statute
presents a question of law that this court decides
independently of the circuit court and court of appeals but
benefiting from their analyses. State v. Steffes, 2013 WI 53,
¶15, 347 Wis. 2d 683, 832 N.W.2d 101. It follows that this
court decides whether the circuit court applied the proper legal
standard under Wis. Stat. § 907.02(1) in the first instance
independently of the circuit court and the court of appeals but
benefiting from their analyses. Lees v. Carthage College, 714
F.3d 516, 520 (7th Cir. 2013) ("[w]hether the district court
45
"Shaky but admissible evidence is to be attacked by cross
examination, contrary evidence, and attention to burden of
proof, not exclusion." Primiano, 598 F.3d at 564 (citing
Daubert, 509 U.S. at 596).
37
No. 2014AP195
applied the appropriate legal framework for evaluating expert
testimony is reviewed de novo"); Lewis v. CITGO Petroleum Corp.,
561 F.3d 698, 705 (2009) ("we review de novo whether the court
employed the correct legal standard in reaching its
admissibility decision").
¶90 Once satisfied that the circuit court applied the
appropriate legal framework, an appellate court reviews whether
the circuit court properly exercised its discretion in
determining which factors should be considered in assessing
reliability,46 and in applying the reliability standard to
determine whether to admit or exclude evidence under Wis. Stat.
§ 907.02(1). Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141
(1997).47
¶91 Once the circuit court selects the factors to be
considered in assessing reliability, the circuit court measures
the expert evidence against these factors. The circuit court
also determines whether the witness faithfully and properly
applied the reliability principles and methodology to the facts
of the case.48
46
Blinka, supra note 5, at 19 (citing Kumho Tire, 526 U.S.
at 152).
47
"[T]he law grants the district court great discretion
regarding the manner in which it conducts that evaluation" of
the admissibility of expert testimony. "[W]e have not required
that the Daubert inquiry take any specific form . . . ." Lewis
v. CITGO Petroleum Corp., 561 F.3d 698, 704 (2009).
48
Blinka, supra note 5, at 19, 60 (citing Federal Rule
Evidence 702 Advisory Committee Note (2000)).
38
No. 2014AP195
¶92 In other words, a circuit court has discretion in
determining the reliability of the expert's principles, methods,
and the application of the principles and methods to the facts
of the case.49
¶93 A trial court's decision on admissibility or exclusion
of expert evidence is an erroneous exercise of discretion when a
decision rests upon a clearly erroneous finding of fact, an
erroneous conclusion of law, or an improper application of law
to fact.50
49
In Kumho Tire, the Supreme Court held that trial courts
have great latitude in determining the methods by which they
test the reliability of expert testimony. Indeed the federal
abuse of discretion standard "applies as much to the trial
court's decisions about how to determine reliability as to its
ultimate conclusion." United States v. Charley, 189 F.3d 1251,
1261 n.11 (10th Cir. 1999) (quoting Kumho Tire, 526 U.S. at
152). "[T]he law grants a district court the same broad
latitude when it decides how to determine reliability as it
enjoys in respect to its ultimate reliability determination."
Kumho Tire, 526 U.S. at 142. See also Gen. Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997) ("abuse of discretion is the proper
standard by which to review a district court's order to admit or
exclude scientific evidence.").
"Our case law has recognized that experts in various fields
may rely properly on a wide variety of sources and may employ a
similarly wide choice of methodologies in developing an expert
opinion." Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1020
(7th Cir. 2000).
50
The federal cases state: "An abuse of discretion may
occur as a result of an errant conclusion of law, an improper
application of law to fact, or a clearly erroneous finding of
fact." McDowell v. Philadelphia Housing Auth., 423 F.3d 233,
238 (3d Cir. 2005).
(continued)
39
No. 2014AP195
F
¶94 Against this backdrop of the teachings about the
reliability of expert medical testimony based on personal
experiences and the standards for appellate review of a circuit
court's determination of reliability, we decide whether the
circuit court erred in admitting Dr. Wener's testimony. We
conclude, as did the court of appeals, that the circuit court
did not erroneously exercise its discretion in admitting Dr.
Wener's testimony as reliable under Wis. Stat. § 907.02(1).
¶95 In the first instance, we note, as a matter of law,
that the circuit court applied the proper reliability standard
under Wis. Stat. § 907.02(1).
In Wisconsin, the cases use the phrase "erroneous exercise
of discretion" in place of the phrase "abuse of discretion."
The two phrases are equivalent. We did not change the standard
of review, just the locution. We concluded that the term "abuse
of discretion" carries unjustified negative connotations. City
of Brookfield v. Milwaukee Metro. Sewerage Dist., 171
Wis. 2d 400, 423, 491 N.W.2d 484, 493 (1992). See King v. King,
224 Wis. 2d 235, 248, 590 N.W.2d 480 (1999) ("A circuit court
erroneously exercises its discretion if it makes an error of law
or neglects to base its decision upon facts in the record.");
Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981):
A discretionary determination . . . must demonstrably
be made and based upon the facts appearing in the
record[,] in reliance on the appropriate and
applicable law[,] . . . and most importantly, a
discretionary determination must be the product of a
rational mental process by which the facts of record
and law relied upon are stated and are considered
together for the purpose of achieving a reasoned and
reasonable determination.
40
No. 2014AP195
¶96 Because the circuit court applied the correct Daubert
reliability standard, our review of the circuit court's decision
to admit Dr. Wener's testimony is limited to reviewing whether
the circuit court erroneously exercised its discretion. See
Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376, 380 (1st
Cir. 2000).
¶97 The circuit court made a good, clear record. Based on
the circuit court's extensive oral rulings on the admissibility
of Dr. Wener's testimony as reliable, it is apparent that the
circuit court examined federal and state case law applying the
Daubert standard to medical expert testimony and fairly
considered the defendants' challenges to the admissibility of
Dr. Wener's testimony.
¶98 Because the circuit court was careful in exploring the
applicable law and in setting out its reasoning, we can more
easily review the circuit court's rulings to determine whether
the circuit court erroneously exercised its discretion. We
commend the circuit court's efforts and conclude that the
circuit court's rulings establishing that Dr. Wener's personal
clinical experiences satisfy the reliability requirement, are
well reasoned, and are not an erroneous exercise of discretion.
¶99 The defendants make the following three principal
arguments supporting their position that Dr. Wener's testimony
was unreliable under Wis. Stat. § 907.02(1) and was not applied
reliably:
(1) Dr. Wener's testimony was unreliable under Wis. Stat.
§ 907.02(1) because Dr. Wener did not apply a sound
41
No. 2014AP195
methodology: Dr. Wener's testimony rested on his
qualifications and "personal preferences."
(2) Dr. Wener's testimony was unreliable under Wis. Stat.
§ 907.02(1) because Dr. Wener did not rely on medical
literature or other recognized sources of reliability.
(3) Dr. Wener's application of his opinions to the facts
of the case was flawed because Dr. Wener's testimony
was internally inconsistent.
¶100 We address each of the defendants' arguments in turn.
(1)
¶101 To use defendants' counsel's words, the defendants'
challenge to Dr. Wener's testimony is based on "method, method,
method."
¶102 The circuit court ruled that Dr. Wener's testimony
satisfied the Wis. Stat. § 907.02(1) reliability standard
because his methodology was reliable: Dr. Wener's methodology
is a "classic medical methodology," looking at recognized
medical indicators.
¶103 The circuit court explained that Dr. Wener's
testimony, taken as a whole, demonstrated that Dr. Wener
formulated an opinion about the standard of reasonable care of
family practice doctors practicing obstetrics on the basis of
his experiences, as opposed to simply his own personal
preference. Thus, Dr. Wener had a reliable basis for rendering
an opinion.
¶104 In contrast, the defendants contend that Dr. Wener was
really just opining based on his "personal preferences." The
42
No. 2014AP195
defendants assert that an expert cannot establish that a fact is
generally accepted merely by saying so. They argue that Dr.
Wener's testimony had to be based on the methods and procedures
of science rather than on his subjective belief or unsupported
speculation. According to the defendants, Dr. Wener's opinion
about the standard of reasonable care was connected to existing
data only by his own ipse dixit.
¶105 The circuit court regarded Dr. Wener's methods as the
ordinary methodology of medicine: conscientious use of the
thousands of instances in which he had delivered babies and made
decisions about the care of individual patients and his teaching
and hospital experiences relating to obstetrics. Echoing case
law, the circuit court declared that medicine is "not a science,
but a learned profession deeply rooted in a number of sciences."
¶106 The circuit court viewed Dr. Wener's methodology as
essentially a comparison of the instant case to other
deliveries, reasoning that the Daubert factors were not helpful
in evaluating this methodology because a medical expert's
personal clinical experience is not subject to precise
measurements. "[B]ecause the standard of care is determined by
the care customarily provided by other physicians, it need not
be scientifically tested or proven effective . . . ."
Palandjian v. Foster, 842 N.E.2d 916, 921 (Mass. 2006).
¶107 Dr. Wener gave ample testimony about what a family
practice doctor practicing obstetrics should have known and how
a family practice doctor practicing obstetrics should have acted
in the instant case. Dr. Wener's testimony about the standard
43
No. 2014AP195
of reasonable care of family practice doctors practicing
obstetrics was based on his knowledge of family practice doctors
practicing obstetrics gained through education, his decades of
delivering thousands of babies, his repeated observations in
decades of clinical experiences, and his numerous teaching and
supervisory experiences in important positions in the field of
obstetrics and gynecology. He used his many experiences to
arrive at an opinion in the instant case that is sufficiently
similar to his vast array of clinical experiences over decades
of practice.
¶108 Dr. Wener demonstrated to the circuit court that he
had formed an opinion about the standard of reasonable care of a
family practice doctor practicing obstetrics and that the
opinion had a reliable basis.
¶109 The circuit court concluded on the basis of the record
and case law that it had adequate grounds to view Dr. Wener's
testimony as not subjective belief, unsupported conjecture, or
ipse dixit. The circuit court ruled that Dr. Wener's
methodology was reliable based on Dr. Wener's extensive personal
experiences. In other words, Dr. Wener's testimony was based on
"good grounds." Daubert, 509 U.S. at 590.
¶110 Characterizing its pretrial decision as "a close
call," and looking at the vagaries of medical treatment and
diagnosis, the circuit court concluded that Dr. Wener's
testimony was "reliably based on a reliable medical methodology
looking at recognized factors of the standard of care."
44
No. 2014AP195
¶111 The circuit court declared that Dr. Wener looked at
recognized risk factors and, using his own varied experiences,
concluded that the defendant doctor breached the standard of
reasonable care by failing to weigh these risk factors.
According to the circuit court, Dr. Wener used his knowledge and
experience as a basis for weighing known factors along with the
inevitable uncertainties to make a sound judgment. Dr. Wener's
testimony was not based on his personal preference, ruled the
circuit court; it was based on clinical experience, a reliable
methodology.
¶112 The circuit court determined that the way in which Dr.
Wener "adds [the factors up] is debatable, but that's not the
same as saying the way that Dr. Wener adds them up is not
reliable." According to the circuit court, Dr. Wener explained
the bases for his opinions in sufficient detail to permit the
jury to evaluate his conclusions.
¶113 The circuit court obviously relied on Daubert case law
in making its determination of reliability and used the language
and reasoning set forth in the case law to rule on the
reliability and admissibility of Dr. Wener's expert medical
testimony based on personal experiences.
¶114 The circuit court regarded the defendants' contention
that Dr. Wener's opinions are unreliable because they are
untestable as failing from the outset. According to Daubert,
testability is not a prerequisite to admission. Testability,
like all of the Daubert factors, is a suggested way to assess
methodology, not a required way to assess methodology.
45
No. 2014AP195
¶115 The circuit court ruled that Dr. Wener's testimony was
testable and met the Wis. Stat. § 907.02(1) standard. The
circuit court reasoned that "the testable principles[ ] are the
biological and physiological and anatomical principles that
inform the conclusions that arise."
¶116 The circuit court also explained that the defendants
could (and did) test Dr. Wener's testimony through cross
examination, further explaining that although "medicine is a
science, it is not a quantified science. It is not a
measurement, in many respects. It is not engineering."
¶117 The circuit court further compared Dr. Wener's
testimony with the testimony of defense experts, including Dr.
Michelle Grimm, a defense expert on medical engineering, and Dr.
Dwight Jonathan Rouse, an obstetrician with additional training
in maternal fetal medicine.
¶118 According to the circuit court, some defense expert
testimony actually supported Dr. Wener's testimony. For
example, both Dr. Wener and the defense expert witnesses
testified that applying excessive traction beyond what the fetus
can withstand during childbirth violates the standard of
reasonable care.
¶119 Accordingly, the circuit court declared that the
context of the entire case supported admitting Dr. Wener's
testimony as reliable:
[A]fter the trial there is a lot more context within
which to analyze the issues in respect to Dr. Wener's
testimony.
46
No. 2014AP195
. . . .
And I still believe that Dr. Wener's testimony met the
Daubert standards as that applies to medical
testimony.
. . . .
And after trial, Dr. Werner's position looked every
bit as good, and better, than it did pretrial when the
context of the other experts, Grimm and Rouse,
particularly, was taken into account. And so I stand
on my prior rulings as to Dr. Wener as supplemented
here today with what we know after trial. His
testimony was properly admitted, to the extent it was
admitted.
¶120 In sum, the circuit court ruled that Dr. Wener's
principles and methods were sufficiently reliable to be
admitted, emphasizing that Dr. Wener's testimony, although
shaky, is not junk science and that Dr. Wener is not a junk
scientist:
Dr. Wener's opinions are shaky due to their
generality, but I conclude that they are sufficiently
reliable to be admitted. The methodology employed is
what I will call, I guess, holistic. The defense
motion parses out the various factors and how they
don't match a body of opinion about that particular
factor. . . . [T]he essence of Dr. Wener's opinion [is
that] these elements converge and then the sum is
greater than the total of the parts, essentially.
It's not something that's been peer reviewed or
published because it's an individualized determination
based upon the facts of this case, and in using known
factors.
¶121 We conclude, as did the court of appeals, that the
circuit court did not erroneously exercise its discretion when
it concluded that the Daubert factors were not helpful and that
Dr. Wener's clinical methodology rendered his expert medical
47
No. 2014AP195
testimony on the standard of reasonable care based on his
personal experiences reliable under Wis. Stat. § 907.02(1).
¶122 Dr. Wener's opinion based on his personal experiences
satisfied the reliability standard. He identified established
risk factors (principles). He then used classic, ordinary
medical methods to establish the standard of care of a family
practice doctor practicing obstetrics and to opine that the
defendant doctor breached this standard.
¶123 In the instant case, the reliability standard entails
the circuit court's assessment of methodology. In expert
medical evidence, the methodology often relies on judgment based
on the witness's knowledge and experience. Accordingly,
reliability concerns may focus on the personal knowledge and
experience of the medical expert witness. Dr. Wener's testimony
was based on his knowledge of and experience with obstetrics and
family practice doctors practicing obstetrics. He gained his
knowledge through education, his decades of delivering thousands
of babies, his repeated observations during decades of clinical
experiences, and his numerous teaching and supervisory
experiences in the fields of obstetrics and gynecology. Because
Dr. Wener applied an accepted medical method relied upon by
physicians and had extensive personal experiences and knowledge
pertaining to the standard of reasonable care, the circuit court
did not erroneously exercise its discretion in admitting his
testimony.
(2)
48
No. 2014AP195
¶124 The defendants argue that Dr. Wener's testimony was
mere speculation because it was not supported by even one peer
reviewed publication or medical text. The defendants correctly
contend, as we stated previously, that an expert cannot
establish that a fact is generally accepted merely by saying so.
¶125 With respect to the defendants' arguments that Dr.
Wener's testimony was not reliable because he did not rely on
medical literature, the circuit court concluded that Dr. Wener's
approach is "not something that's been peer reviewed or
published because it's an individualized determination based
upon the facts of this case, and in using known factors" such as
estimated maternal weight, fetal weight, and glucose levels.
¶126 Indeed, on cross-examination Dr. Wener said he was
aware of the medical literature but that there was a wide range
of statistics in the literature so that the publications were
not helpful and did not directly contradict his testimony.
¶127 For example, Dr. Wener concluded that, considering all
of the risk factors in totality, the defendant doctor breached
the standard of reasonable care by failing to order a three-hour
glucose test after the one-hour test's result exceeded 130
mg/dL. The defendants, citing American College of Obstetricians
and Gynecologists, Clinical Management Guidelines for
Obstetrician-Gynecologists No. 30 (Sept. 2001) (reaffirmed 2008)
[hereinafter Guidelines], argued that Dr. Wener's opinion was
erroneous because the Guidelines suggest that the reasonable
standard of care requires a three-hour test when the mother's
one-hour test result exceeds 140 mg/dL. The publication notes,
49
No. 2014AP195
however, that either the 130 or 140 mg/dL "threshold is
acceptable." Guidelines at 762. Furthermore, the publication
expressly states that it does not prescribe a standard of care:
"These guidelines should not be construed as dictating an
exclusive course of treatment or procedure. Variations in
practice may be warranted based on the needs of the individual
patient, resources, and limitations unique to the institution or
type of practice." Guidelines at 759. Dr. Wener's testimony
did not directly contradict the guidelines.
¶128 The circuit court did not bar Dr. Wener's testimony on
the ground that Dr. Wener did not cite to any publications as
support, reasoning that peer-reviewed literature would not be
all that useful in the experience-specific methodology that Dr.
Wener applied in the instant case.
¶129 The circuit court's conclusion was not an erroneous
exercise of discretion. Dr. Wener's failure to rely on
literature is no bar to admissibility. Daubert supports the
circuit court in the instant case: "Publication (which is but
one element of peer review) is not a sine qua non of
admissibility; it does not necessarily correlate with
reliability." Daubert, 509 U.S. at 593.
(3)
¶130 Reliable application, or "fit," is the final step in
the Daubert analysis. The defendants argue that Dr. Wener
failed to reliably apply his methodology to the facts.
¶131 The defendants argue that Dr. Wener's "holistic"
methodology was unreliable. We have already discussed Dr.
50
No. 2014AP195
Wener's methodology (as part of our analysis of the defendants'
objections to Dr. Wener's testimony) and concluded that the
circuit court did not err in declaring that Dr. Wener's use of a
constellation of factors is reliable, as doctors usually apply
this method when treating patients.
¶132 The defendants also contend that Dr. Wener improperly
applied his method to the instant case because his testimony was
riddled with inconsistencies. The circuit court correctly
concluded that inconsistencies do not necessarily render expert
testimony unreliable; they go to the weight of the testimony:
"Vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence." Daubert, 509 U.S. at 596.
¶133 The defendants argue in this court that Dr. Wener's
experience-based testimony was not reliably applied,
specifically objecting to three of Dr. Wener's opinions related
to prenatal care and the delivery of Braylon. The defendants
objected to Dr. Wener's statements that the defendant doctor
breached the standard of care by failing to order a three-hour
glucose test; that the defendant doctor breached the standard of
care by failing to perform an ultrasound immediately prior to
delivery; and that the defendant doctor breached the standard of
care by doing a vacuum-assisted delivery. The defendants again
argue that these opinions are personal preferences and that
personal preference is not a permissible basis for an expert
opinion.
51
No. 2014AP195
¶134 The circuit court reviewed Dr. Wener's discussion of
the generally accepted risk factors of shoulder dystocia——
elevated birth weight, maternal obesity, and gestational
diabetes——and his application of these risk factors, in
totality, to the facts of the instant case. The circuit court
acknowledged that just as clinical medical practice entails
evaluating a specific patient and applying known risk factors or
variables, Dr. Wener's testimony analyzed Braylon's mother's
prenatal care and the delivery of Braylon with respect to the
three risk factors that he adduced at trial. The circuit court
did not view Dr. Wener's testimony as stating a personal
preference, but as based on reliable medical methods.
¶135 Furthermore, Dr. Wener's testimony regarding threshold
glucose levels for gestational diabetes and macrosomia did not
necessarily contradict the defendants' experts: Each offered a
spectrum of ranges under which the risks warranted special care,
and their spectrums overlapped. Any disagreement, ruled the
circuit court, goes to the weight of Dr. Wener's testimony, not
its admissibility.
¶136 For the reasons set forth by the circuit court, we
conclude that the circuit court did not erroneously exercise its
discretion in admitting Dr. Wener's testimony as reliable based
on personal experiences and that Dr. Wener reliably applied his
methodology to the facts. The circuit court kept the gate open
52
No. 2014AP195
to the opinion of Dr. Wener, a qualified OB-GYN. "[T]rial
judges are gatekeepers, not armed guards."51
II
¶137 The second issue we must address is whether three
remarks separately or together made by Braylon's counsel during
his closing arguments prejudiced the defendants, justifying a
new trial. We will set out each of the remarks and address each
of the defendants' arguments for a new trial. Ultimately, we
agree with the court of appeals that the circuit court properly
exercised its discretion by rejecting the defendants' motion for
a new trial.
¶138 We begin by noting that although the defendants
contemporaneously objected to Braylon's counsel's remarks, the
defendants erred by failing to move for a mistrial. Generally,
an offended party must object and then move for a mistrial to
preserve a challenge to prejudicial remarks. Hansen v. State,
64 Wis. 2d 541, 551-52, 219 N.W.2d 246 (1974). The court of
appeals nonetheless addressed this issue by exercising its
discretionary authority. Seifert ex rel. Scoptur v. Balink,
51
29 Wright & Gold, supra note 17, § 6268.2 (citing Ruiz-
Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77,
86 (1st Cir. 1998)).
See Guild v. Gen. Motors Corp., 53 F. Supp. 2d 363
(W.D.N.Y. 1999) ("[T]rial judges acting as gatekeepers under
Daubert must not assume 'the role of St. Peter at the gates of
heaven, performing a searching inquiry into the depth of an
expert witness's soul' and thereby usurp 'the ageless role of
the jury' in evaluating witness credibility and weight of the
evidence." (quoted source omitted)).
53
No. 2014AP195
2015 WI App 59, ¶36 n.10, 364 Wis. 2d 692, 869 N.W.2d 493
(citing Pophal v. Siverhus, 168 Wis. 2d 533, 545, 484 N.W.2d 555
(Ct. App. 1992)). We do the same.
¶139 We review a circuit court's decision to deny a motion
for a new trial under an erroneous exercise of discretion
standard.52 An order for a new trial based on improper
statements of counsel is appropriate if it "'affirmatively
appear[s]' that the remarks prejudiced the complaining party."
Wausau Underwriters Ins. Co. v. Dane Cty., 142 Wis. 2d 315, 329-
30, 417 N.W.2d 914 (Ct. App. 1987) (quoting Roeske v. Schmitt,
266 Wis. 557, 572, 64 N.W.2d 394 (1954)). This standard is
satisfied when the circuit court is convinced that "the verdict
reflects a result which in all probability would have been more
favorable to the complaining party but for the improper
argument."53 Related to our review of a circuit court's decision
to deny the defendants' motion for a new trial is the assumption
that "a properly given admonitory instruction is followed" and
that "the jury acted according to law." State v. Pitsch, 124
Wis. 2d 628, 645 n.8, 369 N.W.2d 711 (1985) (citations omitted).
(1)
¶140 The defendants assert that Braylon's counsel made an
impermissible and prejudicial reference to the rules of the road
52
Wagner v. Am. Family Mut. Ins. Co., 65 Wis. 2d 243, 249,
222 N.W.2d 652 (1974).
53
Wagner, 65 Wis. 2d at 249.
54
No. 2014AP195
during his closing argument.54 The following is Braylon's
counsel's reference to the rules of the road during closing
argument:
Thank you. Okay, well, on a nice, beautiful sunny
day, clear skies, 65 miles an hour is probably fine.
But there may be factors that you have to consider
that would make that not fine. That would make you
question whether that's the speed you should be going.
Let's say it's pouring rain, let's say it's snowing.
You're not going to look at that number the same. And
Dr. Wener, who I'll talk about in a moment, explained
that to you. And this is the issue in this case about
gestational diabetes.
No one is denying that they're throwing these two
numbers out; 130 and 140. But what he tried to
explain to you was when you have a big mom, who has an
increased risk of gestational diabetes because of her
weight, and an increased risk of a big baby because of
her weight, you've got to consider which of these
numbers you're going to use.
His point was what's safe at one speed might not be at
another. And that you have to consider those issues.
¶141 The defendants made timely objections to these
statements, which the circuit court overruled. The defendants
also challenged these statements in their motion after the
verdict. They argued that these statements violated the circuit
court's order in limine and that the statements prejudicially
confused the jury in regard to the applicable standard of
reasonable care. The defendants asserted that as a result of
54
The circuit court granted a motion in limine to prohibit
Braylon's counsel from analogizing medical negligence to the
failure of a driver to follow the rules of the road.
55
No. 2014AP195
Braylon's counsel's statements, "the jury was left with the
impression that Dr. Wener's opinions regarding standards of care
could be equated to speed limits and weather hazards on the
roadway."
¶142 The circuit court rejected this argument. The circuit
court decided that Braylon's counsel's analogy to driving a car
in various weather conditions did not violate the order in
limine. Instead, the circuit court interpreted Braylon's
counsel's statement as "an attempt to analogize and to put into
context Dr. Wener's theory of these additive elements as they
pile up with the total being more than the sum of its parts,"
not as an analogy to ordinary negligence.
¶143 Further, in regard to the defendants' concern that the
jury was confused as to the applicable standard of reasonable
care, the circuit court concluded that the jury was not confused
about the standard of care to apply:55 The jurors were
instructed to "find a standard of care for medical negligence."
Jurors are assumed to follow jury instructions. Accordingly,
the circuit court concluded that "there is no reason to believe"
Braylon's counsel's statements were prejudicial or could be
interpreted by the jury in a way that would violate the in
limine order.
55
The circuit court also noted, "We have to remember that
the juror's [sic] don't even know what regular negligence is,
probably. They weren't instructed on regular
negligence. . . . They were given one instruction."
56
No. 2014AP195
¶144 The court of appeals agreed with the circuit court and
concluded that Braylon's counsel did not violate the circuit
court's order in limine and that counsel's analogy to drivers
did not prejudice the defendants. The court of appeals reasoned
that instead of comparing ordinary negligence and medical
negligence, "the analogy illustrated the interplay of the
alleged risk factors present in this case through a comparison
to the interplay of various weather conditions that might affect
a driver's decision-making process."56
¶145 Further, the court of appeals concluded that there was
no indication that the absence of the analogy would have
resulted in a different verdict. The analogy pertained to
gestational diabetes testing thresholds, which was just one
aspect of the evidence presented to the jury on the issue of the
standard of reasonable care. The circuit court instructed the
jury that its decision must be based only on the evidence
presented to the jury and nothing else, including the statements
of counsel.
¶146 We agree with the reasoning and conclusion of the court
of appeals.
(2)
¶147 Turning to another remark of Braylon's counsel, the
defendants assert that they were prejudiced because Braylon's
counsel made an impermissible "Golden Rule" argument in
56
Seifert, 364 Wis. 2d 692, ¶40.
57
No. 2014AP195
violation of an order in limine. "Golden Rule" arguments arise
when counsel asks "the jurors to place themselves in the
position of someone claiming injury or damage and ask[s] the
jurors what they would want as compensation." State v. DeLain,
2004 WI App 79, ¶23, 272 Wis. 2d 356, 679 N.W.2d 562.
¶148 An order in limine prohibited Braylon's counsel from
making statements that might suggest that the jury determine
whether medical negligence occurred based on the jurors' own
knowledge, experience, common sense, or what they would want or
deserve.
¶149 The defendants assert that Braylon's counsel violated
the order in limine when he stated:
Now, you heard some testimony from the defense
experts, and I'll talk about them as I go along in
this case as well and their bias, where they're coming
from. You heard somebody actually get up on the
witness stand and say——Dr. Rouse, I think it was——if
it was 139, I wouldn't have done anything. Really?
If it was 139, I would have done nothing different.
Is that reasonable to you? Is that reasonable
medicine to you? Is that how you want your doctor to
care?
. . . .
Is that what you want? You want a doctor to treat
you, or you want a doctor to say, well, you're at 139.
You're not at 140. No test for you. Or do you want a
doctor to think about you?
¶150 The defendants' counsel objected to these remarks at
trial, and Braylon's counsel withdrew the first remark. The
circuit court sustained the defendants' objection to the second
remark. The circuit court, however, did not strike either
statement, opting instead to give a "curative" instruction.
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No. 2014AP195
¶151 The curative instruction followed counsel's remarking:
"How do you want to be with your healthcare? Do you want to be
a participant in your healthcare?" The curative instruction
stated: "There aren't a lot of rules about what can and can't
be argued, but one of them is that a lawyer may not ask a juror
to place themselves in the position of the injured person or the
doctor for that matter. Not sure that's what was going on, but
if you got that idea, disregard it."
¶152 The defendants argued in their motion after the
verdict that these "Golden Rule"-type statements were
prejudicial and warranted a new trial. They argued that
arguments involving what a juror would want from his or her
doctor are irrelevant and appeal to the jurors' emotions. They
further argued that involving jurors' personal feelings about
the standard of care caused the jury to consider a standard of
care inconsistent with the reasonable physician standard. They
also argued that these statements violated the circuit court's
order in limine.
¶153 The circuit court refused to order a new trial on
"Golden Rule" grounds. The circuit court explained that
Braylon's counsel's statements were "not [] classic "golden
rule" violations, where the jurors were explicitly asked to
place themselves in the position of the plaintiff." The circuit
court noted that its curative instruction obviated any prejudice
which may have resulted from Braylon's counsel's remarks. The
circuit court denied the defendants' request for a new trial.
59
No. 2014AP195
¶154 The circuit court is in the best position to evaluate
"Golden Rule" statements and should look at a variety of factors
such as "the nature of the case, the emphasis upon the improper
measuring stick, the reference in relation to the entire
argument, [and] the likely impact or effect upon the jury."
Rodriguez v. Slattery, 54 Wis. 2d 165, 170, 194 N.W.2d 817
(1972).
¶155 The court of appeals concluded that the circuit court
did not erroneously exercise its discretion for the following
reasons:
• These were not pure "Golden Rule" violations because
the jurors were not asked to place themselves in the
victim's shoes.
• Even if these remarks were "Golden Rule" violations,
the circuit court gave the curative instruction stated
above.
• The remarks, in light of the entire argument presented
to the jury, did not affirmatively prejudice the
defendants.57
¶156 We agree with the court of appeals' analysis that
these remarks did not violate the order in limine.
¶157 In sum, because the circuit court properly considered
objections to Braylon's counsel's statements during trial and
after the verdict and provided a curative instruction, we
57
Seifert, 364 Wis. 2d 692, ¶46.
60
No. 2014AP195
conclude that the circuit court did not erroneously exercise its
discretion by denying the defendants' motion for a new trial on
the basis of these remarks.
(3)
¶158 Turning to their final challenge, the defendants argue
that they were prejudiced by Braylon's counsel's remarks (1)
disparaging the defendants' attorney and (2) suggesting to the
jurors that the jurors were experts.
¶159 The defendants refer to the following remarks:
• I spoke to you in my closing argument and I
addressed issues. I didn't tell you what to do.
I didn't tell you you're not experts. I didn't
tell you you're not that smart. I didn't tell
you don't know the law. Apparently I have a
little more respect for you than Mr. Leib does.
• I've got a little more faith in you than he does,
because he spent the last hour and a half telling
you what to do, telling you what you can't do,
telling you what you don't know and that you're
not going to be experts——you're not going to know
the information. I disagree.
• These are the kind of arguments you make to
juries if you think they're not too smart. Fool
you, scare you, you know? You people are from
Lancaster. How smart could you be, right? I
think you're pretty smart. I think you get it.
I think you see through all this nonsense. I
think you should be respected, not told what to
do or fooled. You should be talked to like
adults, make you own decisions about this case.
Not be told what to do.
• This shell game, you know, this game that they're
trying to play with you. You know, it's that
game, you know, when you go to the fair? Where's
the ball? Whoa, whoa, whoa, where's the ball?
That's what they tried to do to you. It's a
matter of respect. I don't do it to you. I'm
61
No. 2014AP195
giving you the information, you'll figure it out.
I'm not telling you what to do. You're smart.
• So when Mr. Leib comes before you and makes his
big grandstand move. Where's this one, where's
that one? Where's this one? Well, you know,
it's just not true. It's a matter, again, of
respect. It's a matter of respecting you as a
group and trying to fool you. You're not going
to get fooled. You're pretty damn smart. You're
not going to get fooled. I don't think you'll
get fooled.
• You have common sense and you can analyze the
expert testimony and you're smart enough to do
it. I'm like, again, I'm like Mr. Leib. I have
a lot of faith in your smarts. I think you are
experts in a sense. I think you've learned quite
a bit and I think you can make good decisions. I
don't have to tell you what to do or how to do
it. I'm not going to do that. But think it
through, ladies and gentlemen.
• Unlike Mr. Leib, I think you're smart people and
I think you've learned the medicine and I think
you are experts in a sense.
¶160 The circuit court concluded that, in context, these
statements (and others of a similar vein) were not prejudicial or
improper. The circuit court explained that these were rebuttal
statements made in response to the defendants' "strenuous
argument" and were meant to empower the jury to weigh the
conflicting expert testimony and make the required credibility
determinations.
¶161 The circuit court also explained that in a complex
medical malpractice case filled with days of expert medical
testimony, jurors have to make a finding based on medical
evidence, so they do "in a sense become expert." The circuit
court concluded there was nothing wrong with telling jurors that
62
No. 2014AP195
they are smart while simultaneously characterizing defense
counsel's view of the jurors as that they are "dumb."
¶162 Considering the context in which these remarks arose,
we conclude that the circuit court did not erroneously exercise
its discretion in ruling in favor of Braylon. Braylon's
counsel's remarks were used to empower the jury to perform its
essential role of weighing conflicting testimony and making
credibility determinations.
¶163 The remarks at issue did not cause the jury to reach a
decision that it would not have reached otherwise. Accordingly,
we affirm the court of appeals' decision that the circuit court
did not erroneously exercise its discretion in concluding that
Braylon's counsel's remarks during closing argument did not
constitute prejudicial error justifying a new trial.
III
¶164 Lastly, the defendants argue that this court should
grant their motion for a new trial in the interests of justice
under Wis. Stat. § 751.06.58 They claim that justice was not
58
Wisconsin Stat. § 751.06 provides:
Discretionary reversal. In an appeal in the supreme
court, if it appears from the record that the real
controversy has not been fully tried, or that it is
probable that justice has for any reason miscarried,
the court may reverse the judgment or order appealed
from, regardless of whether the proper motion or
objection appears in the record, and may direct the
entry of the proper judgment or remit the case to the
trial court for the entry of the proper judgment or
for a new trial, and direct the making of such
amendments in the pleadings and the adoption of such
(continued)
63
No. 2014AP195
served because the circuit court admitted Dr. Wener's unreliable
testimony and did not order a new trial in response to Braylon's
counsel's prejudicial remarks.
¶165 We have already concluded that the circuit court did
not erroneously exercise its discretion by admitting Dr. Wener's
testimony or by failing to grant a new trial on the basis of
Braylon's counsel's remarks. Nevertheless, we will elaborate
further on Wis. Stat. § 751.06.
¶166 Under this court's interpretations, Wis. Stat.
§ 751.06 rarely calls for a new trial. This court has often
expressed its "reluctan[ce] to grant a new trial in the interest
of justice" and has stated that it "exercises its discretionary
power only in exceptional cases." State v. Cuyler, 110
Wis. 2d 133, 141, 327 N.W.2d 662 (1983) (ordering new trial
where trial court misread evidentiary statute and thus
prohibited material witnesses from testifying). Such
"exceptional" cases occur in two situations: (1) "when the real
controversy has not been fully tried" and (2) "when it is
probable that justice has for any reason been miscarried."
Vollmer v. Luety, 156 Wis. 2d 1, 7, 456 N.W.2d 797 (1990).
procedure in that court, not inconsistent with
statutes or rules, as are necessary to accomplish the
ends of justice.
64
No. 2014AP195
¶167 The real controversy was fully tried in the instant
case and there is no "substantial degree of probability that a
different result was likely to be produced on retrial.59
¶168 For the reasons set forth, we affirm the decision of
the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
59
Discretionary reversals based on a miscarriage of justice
are appropriate when this court "determine[s] to a substantial
degree of probability that a different result was likely to be
produced on retrial." State v. Wyss, 124 Wis. 2d 681, 741, 370
N.W.2d 745 (1985).
65
No. 2014AP195.akz
¶169 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I
concur only in the court's conclusion to affirm the decision of
the court of appeals. I do not join the lead opinion for two
reasons. First, the lead opinion does not sufficiently address
the legislature's 2011 changes to Wis. Stat. § 907.02 (2009-10),
which had significant effect on the admissibility of expert
opinion testimony in Wisconsin. The legislature has now
tightened the applicable standard. Second, the lengthy lead
opinion does not adequately guide trial courts with regard to
how they should apply Wis. Stat. § 907.02 (2013-14).1 I write to
clarify that § 907.02 has now changed the gatekeeping function
of the trial court concerning the admissibility of expert
testimony. Simply stated, the trial court now must adhere to and
apply the heightened Daubert-Wis. Stat. § 907.02 standard. In
my view, a best practice for trial courts and counsel is to
create a detailed, complete record regarding why any particular
expert's testimony meets the heightened scrutiny due under
§ 907.02. The trial court's determinations here are upheld
under the facts of this case because the trial court did not
erroneously exercise its discretion in admitting the testimony
of Dr. Wener.
¶170 While I agree that this court should uphold the
circuit court's decision to admit Dr. Wener's expert testimony
at trial, I reach this conclusion in spite of the fact that the
legislature tightened the standard of admissibility of expert
1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
1
No. 2014AP195.akz
opinion testimony when it amended Wis. Stat. § 907.02 (2009-10).
The circuit court did not "appl[y] an improper legal standard or
make[] a decision not reasonably supported by the facts of
record" in admitting Dr. Wener's testimony, 118th St. Kenosha,
LLC v. DOT, 2014 WI 125, ¶18, 359 Wis. 2d 30, 856 N.W.2d 486
(quoting 260 North 12th St., LLC v. DOT, 2011 WI 103, ¶38, 338
Wis. 2d 34, 808 N.W.2d 372), and its decision should be upheld.
See id. I view the record below, however, as a "close call"
which might not survive appellate review had this been a
different case type.
I
¶171 We have recognized that the legislature amended Wis.
Stat. § 907.02 (2009-10) in 2011 Wisconsin Act 2 in order "to
adopt the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), reliability standard as stated in Federal Rule of
Evidence 702." 260 North 12th St., 338 Wis. 2d 34, ¶55 n.10.
Allow me to provide background concerning the federal adoption
of Daubert. Unlike in Wisconsin, where the Daubert standard
heightened the level of scrutiny to apply to expert witnesses,
in the federal system, Daubert loosened the standard for
admission of expert testimony.
¶172 To begin with, while the federal rule, Rule 702, may
"embod[y] a liberal standard of admissibility for expert
opinions," Nimely v. City of New York, 414 F.3d 381, 395 (2d
Cir. 2005), it is liberal as compared to the standard it
"superseded," namely the so-called Frye "'general acceptance'
test," Daubert, 509 U.S. at 585-87 (named for Frye v. United
2
No. 2014AP195.akz
States, 293 F. 1013 (D.C. Cir. 1923)). See Nimely, 414 F.3d at
395-96. It is not liberal as compared to Wisconsin's prior test
for admitting expert testimony.
¶173 Frye's "austere standard" "made 'general acceptance'
[of the matter upon which expert scientific testimony is based]
the exclusive test for admitting expert scientific testimony."
Daubert, 509 U.S. at 585-86, 589. Daubert recognized that the
Federal Rules of Evidence, on the other hand, did not mandate
general acceptance, consistent with the Rules' "general approach
of relaxing the traditional barriers to 'opinion' testimony."
Id. at 588-89 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S.
153, 169 (1988)).
¶174 In Wisconsin, however, there is no "traditional
barrier[]" à la Frye for the legislature's adoption of Rule 702
to "relax[]." See State v. Walstad, 119 Wis. 2d 483, 516, 351
N.W.2d 469 (1984) ("The Frye concept is alien to the Wisconsin
law of evidence."). Wisconsin's prior standard of admissibility
of expert evidence was considerably more accommodating than
either the Frye test or Rule 702's standard. As stated, Frye's
yardstick is "general acceptance." Rule 702 mandates, inter
alia, that expert testimony be "based on sufficient facts or
data" and "the product of reliable principles and methods" and
that the expert testifying "reliably appl[y] the principles and
methods to the facts of the case." Fed. R. Evid. 702(b)-(d).
In contrast, under the previous Wisconsin standard "questions of
the weight and reliability of relevant evidence [were] matters
for the trier of fact." State v. Fischer, 2010 WI 6, ¶7, 322
3
No. 2014AP195.akz
Wis. 2d 265, 778 N.W.2d 629. "[E]xpert testimony [was]
generally admissible in the circuit court's discretion if the
witness [was] qualified to testify and the testimony would help
the trier of fact understand the evidence or determine a fact at
issue." State v. Kandutsch, 2011 WI 78, ¶26, 336 Wis. 2d 478,
799 N.W.2d 865. This was a "low threshold." State v. Shomberg,
2006 WI 9, ¶67, 288 Wis. 2d 1, 709 N.W.2d 310 (Butler, J.,
dissenting) (citing State v. St. George, 2002 WI 50, ¶39, 252
Wis. 2d 499, 643 N.W.2d 777).
¶175 The fact that the legislature has added three new
prerequisites to the admission of expert testimony in Wisconsin
means that it now requires more of a showing and further trial
court analysis before expert testimony may be introduced. That
the legislature now requires——in addition to its earlier
mandates of a qualified expert and sufficiently helpful
testimony, Kandutsch, 336 Wis. 2d 478, ¶26——testimony "based
upon sufficient facts or data," testimony which is "the product
of reliable principles and methods" and a witness who has
"applied the principles and methods reliably to the facts of the
case," Wis. Stat. § 907.02(1), suggests that trial courts must
now be much more piercing in their evaluation of proffered
expert testimony. The days of relatively easy admission of
expert testimony into Wisconsin courtrooms are over. The trial
courts' gatekeeping function has changed in light of § 907.02.
¶176 The Wisconsin legislature's adoption of the Daubert
standard was part of a larger seemingly legislative reaction to
Wisconsin Supreme Court decisions; one observer argues that "Act
4
No. 2014AP195.akz
2 generated the most significant changes in at least sixteen
years to Wisconsin's civil litigation system by limiting the
applicability of 'risk contribution' theory, capping punitive
damages, and mandating damages for frivolous claims," "most
drastically chang[ing] the areas of strict products liability
and expert opinion testimony." Kristen Irgens, Comment,
Wisconsin Is Open for Business or Business Just As Usual? The
Practical Effects and Implications of 2011 Wisconsin Act 2, 2012
Wis. L. Rev. 1245, 1247 (2012) (footnotes omitted); see
Honorable Diane S. Sykes, Reflections on the Wisconsin Supreme
Court, 89 Marq. L. Rev. 723, 737-38 (2006) (arguing that certain
"cases from the last term reflect a court quite willing to
aggressively assert itself to implement the statewide public
policies it deems to be most desirable," and that "[t]he court
is loosening the usual constraints on the use of its power,
freeing itself to move the law essentially as a legislature
would, except that its decisions are for the most part not
susceptible of political correction as the legislature's would
be").2
¶177 Previously this court has rejected the invitation to
follow the Daubert approach taken in the federal courts with
2
Compare, e.g., Thomas ex rel. Gramling v. Mallett, 2005 WI
129, ¶¶178-79, 285 Wis. 2d 236, 701 N.W.2d 523 (Wilcox, J.,
dissenting) (contending that the court's "expansion" of risk-
contribution theory "amounts to an unwarranted and unprecedented
relaxation of the traditional rules governing tort liability,
and raises serious concerns of fundamental fairness"), with 14
Jay E. Grenig, Wisconsin Practice Series: Elements of an Action
§ 14:5, at 765 (2015-2016 ed.) (arguing that Act 2 "limits the
holding of Thomas").
5
No. 2014AP195.akz
regard to expert testimony. See Fischer, 322 Wis. 2d 265, ¶7
("[T]here is no reason for us to revisit [in this case]
Wisconsin's well-established role for the circuit court where
expert testimony is proffered. The law in Wisconsin continues
to be that questions of the weight and reliability of relevant
evidence are matters for the trier of fact. . . . We, therefore,
decline to adopt a Daubert-like approach to expert testimony
that would make the judge the gatekeeper."). Act 2 negates this
decision, transforming Wisconsin law so that it now adheres to
Federal Rule 702's heightened standard. To minimize the
significance of this change, as the lead opinion might be read
to do, contravenes the requirement of Wisconsin's Act 2, which
clearly contemplates a more substantial burden on litigants who
seek to have expert testimony admitted in Wisconsin courts.
¶178 Importantly, even after Daubert, trial courts retain
substantial discretion in deciding whether to admit expert
testimony. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S.
137, 141–42 (1999) ("[T]he test of reliability is 'flexible,'
and Daubert's list of specific factors[3] neither necessarily nor
3
In Daubert the Supreme Court "discussed
certain . . . factors . . . some or all of which might prove
helpful in determining the reliability of a particular
scientific 'theory or technique.'" Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141 (1999) (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993)). The Daubert
Court pointed to "whether [a theory or technique] can be (and
has been) tested," "whether the theory or technique has been
subjected to peer review and publication," "the known or
potential rate of error," and whether there is "general
acceptance" of the matter within the "relevant scientific
community." Daubert, 509 U.S. at 593-94 (quoting United States
v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)).
6
No. 2014AP195.akz
exclusively applies to all experts or in every case. Rather,
the law grants a district court the same broad latitude when it
decides how to determine reliability as it enjoys in respect to
its ultimate reliability determination." (quoting Daubert, 509
U.S. at 594)). Moreover, the question before this court in
reviewing the circuit court's evidentiary decision below "is not
whether this court agrees with the ruling of the trial court,
but whether appropriate discretion was in fact exercised."
Martindale v. Ripp, 2001 WI 113, ¶29, 246 Wis. 2d 67, 629
N.W.2d 698 (quoting State v. Wollman, 86 Wis. 2d 459, 464, 273
N.W.2d 225 (1979)).
¶179 Given the foregoing, the facts of this current case
might stand as a poor example to clearly illustrate the
heightened standard of Wis. Stat. § 907.02. This court today
decides that the court below did not erroneously exercise its
discretion but does little to advise courts how to apply the new
heightened standard to other cases involving different expert
testimony. I note that, had the circuit court below decided to
exclude Dr. Wener's testimony, we would analyze that exclusion
of evidence in light of the standard espoused in Daubert and the
fact that we owe the circuit court erroneous-exercise-of-
discretion deference. In this case, under these facts,
involving this doctor's testimony, that deference due tips the
scales in favor of the circuit court's detailed determination
below.
II
7
No. 2014AP195.akz
¶180 In this medical malpractice case, the defense seeks to
exclude the testimony of a medical doctor who is board certified
in obstetrics and gynecology, who has delivered thousands of
babies over three decades and confronted dozens of instances of
shoulder dystocia, who taught medical students and residents in
a clinical capacity for four years at the University of
California, San Diego, and who served as chairman of the OB/GYN
department at a hospital for 20 years, arguing that this expert
cannot meet the Daubert standard as set forth in Wis. Stat.
§ 907.02. The above expertise is directly on point with the
claim made here.
¶181 Wisconsin Stat. § 907.02(1) requires, for the
admission of expert testimony: (1) that "scientific, technical,
or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue"; (2)
that the expert witness "testify[ing] thereto in the form of an
opinion or otherwise" is "qualified as an expert by knowledge,
skill, experience, training, or education"; (3) that the expert
testimony is "based upon sufficient facts or data"; (4) that the
expert testimony is "the product of reliable principles and
methods"; and (5) that the expert witness "has applied the
principles and methods reliably to the facts of the case."
§ 907.02(1).
¶182 Digging deeper into the facts specific to this case,
Dr. Balink argues that Dr. Wener's testimony is not the product
of reliable principles and methods, and that Dr. Wener did not
apply the principles and methods he used reliably to the facts
8
No. 2014AP195.akz
of the case. Dr. Balink contends that Dr. Wener's opinions are
simply based on his own personal preferences rather than, for
instance, on medical literature; criticizes Dr. Wener's so-
called "holistic" approach; and points out supposedly
contradictory or confusing aspects of Dr. Wener's testimony.
All of these arguments could be well-developed in cross-
examination. Argument could be made that such personal
preference does not meet the legal definition of medical
malpractice. The circuit court did not erroneously exercise its
discretion in declining to exclude Dr. Wener's testimony. The
trial court concluded that Dr. Wener's opinion was "reliably
based on a reliable medical methodology looking at recognized
factors of the standard of care."
¶183 Wisconsin Stat. § 907.02 uses, for example, two key
terms relevant to this case: "method[]" and "principle[]." See
Wis. Stat. § 907.02(1). A "method" is a "mode of organizing,
operating, or performing something, esp. to achieve a goal."
Method, Black's Law Dictionary 1141 (10th ed. 2014). A
"principle" is a "basic rule, law, or doctrine; esp., one of the
fundamental tenets of a system." Principle, id. at 1386.
Generally speaking, Dr. Wener's method in providing the disputed
expert testimony was, to quote the plaintiffs-respondents'
brief, to "review the [relevant medical] records and provide an
opinion based upon his education, training, and 36 years of
experience" as to whether the steps taken and not taken by Dr.
Balink in her care of Braylon and Kimberly Seifert met the
applicable standard of care. More specifically, Dr. Wener's
9
No. 2014AP195.akz
application of his education, training, and experience to the
facts of the Seiferts' case included consideration of a specific
set of medical "principles," namely the various "risk factors"
for shoulder dystocia present in the Seiferts' case. These
principles suggested that "maternal obesity, excessive weight
gain [in the mother], gestational diabetes [suspected through
the result of blood glucose testing,] . . . a large baby[,]" and
use of a vacuum during delivery all increase the likelihood that
shoulder dystocia will occur during delivery.
¶184 Moreover, the Wisconsin Jury Instructions state the
standard used in a case involving alleged medical negligence
like this one in part as follows:
In (treating) (diagnosing) (plaintiff)'s
(injuries) (condition), (doctor) was required to use
the degree of care, skill, and judgment which
reasonable (doctors who are in general practice)
(specialists who practice the specialty which (doctor)
practices) would exercise in the same or similar
circumstances, having due regard for the state of
medical science at the time (plaintiff) was (treated)
(diagnosed). A doctor who fails to conform to this
standard is negligent. The burden is on (plaintiff) to
prove that (doctor) was negligent.
A doctor is not negligent, however, for failing
to use the highest degree of care, skill and judgment
or solely because a bad result may have followed (his)
(her) (care and treatment) (surgical procedure)
(diagnosis). The standard you must apply in
determining if (doctor) was negligent is whether
(doctor) failed to use the degree of care, skill, and
judgment which reasonable (general practitioners)
(specialists) would exercise given the state of
medical knowledge at the time of the (treatment)
(diagnosis) in issue.
Wis JICivil 1023 at 1. Dr. Wener's conclusion was essentially
that, given the presence of the risk factors discussed as
10
No. 2014AP195.akz
evidenced by the facts of the case and the medical records he
studied, certain of Dr. Balink's actions and omissions——failure
to perform additional glucose testing, for example——constituted
unreasonable care because of the unjustified risk of shoulder
dystocia. Clearly, cross-examination and argument could dispel
the notion that Dr. Wener's conclusions are but one, and not a
conclusive, reasonable standard of care.
¶185 The circuit court below indeed assessed the
reliability of Dr. Wener's testimony as required by Wis. Stat.
§ 907.02(1). The circuit court explained, citing McGovern ex
rel. McGovern v. Brigham & Women's Hosp., 584 F. Supp. 2d 418
(D. Mass. 2008), that obstetrics "is a recognized field of
expertise" as opposed to "junk science." See McGovern, 584
F. Supp. 2d at 424. The circuit court characterized Dr. Wener's
method as "holistic" "clinical medical methodology," relying
partly on Cooper v. Carl A. Nelson & Co., 211 F.3d 1008 (7th
Cir. 2000), in which the Seventh Circuit——applying Daubert——
noted the apparent agreement of the party seeking to exclude the
expert testimony of three physicians that "in clinical medicine,
the methodology of physical examination and self-reported
medical history employed by [one of the experts] is generally
appropriate." Cooper, 211 F.3d at 1020; see also, e.g.,
Reference Manual on Sci. Evid. 703 (3d ed.) ("A patient-
physician encounter typically consists of four components: (1)
patient history, (2) physical examination, (3) medical
decisionmaking, and (4) counseling."). This approach was
analogous to the one taken by Dr. Wener (although Dr. Wener's
11
No. 2014AP195.akz
review was also retroactive). The circuit court observed that
Dr. Wener's opinion was "based upon the facts of this case," and
on "recognized factors subject to cross[-]examination" such as
Braylon's estimated size, Kimberly's weight gain, and the
results of Kimberly's glucose tests. Consequently, the court
concluded that Dr. Wener's opinion was "reliably based on a
reliable medical methodology looking at recognized factors of
the standard of care."
¶186 The court tempered its conclusions by exploring
various weaknesses in Dr. Wener's approach, stating, for
instance, "[A] lot of things in medicine can't be tested because
you can't repeat the exact same factors because every human body
is different. And maybe that makes the defense's case
ultimately." The court also acknowledged that there was some
level of extrapolation in Dr. Wener's analysis. But there was a
common thread running through the court's remarks: that although
Dr. Wener's testimony was not perfect, it was "sufficiently
reliable to be admitted."
¶187 Remaining in our required position in review of the
record makes plain that the circuit court "applie[d] [the]
[]proper legal standard [and] ma[de] a decision . . . reasonably
supported by the facts of record." 118th St. Kenosha,, 359
Wis. 2d 30, ¶18 (quoting 260 North 12th St., 338 Wis. 2d 34,
¶38). Dr. Wener's conclusions certainly could have been better
supported. In particular, he could have done a better job of
attempting to quantify the point at which a tolerable level of
risk of shoulder dystocia becomes intolerable. In addition,
12
No. 2014AP195.akz
Dr. Balink points to alleged errors and inconsistencies in
Dr. Wener's testimony. But all of these deficiencies were able
to be tested on cross-examination; they did not mandate
exclusion of the entire expert opinion. The record
substantiates a conclusion that Dr. Wener "adhere[d] to the same
standards of intellectual rigor that are demanded in [his]
professional work." Cooper, 211 F.3d at 1020 (quoting Rosen v.
Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996)).4
¶188 Ultimately, and as suggested by the circuit court,
this case does not involve "junk science," a "junk scientist,"
4
In an amicus brief, the American Medical Association and
the Wisconsin Medical Society set forth their concern that:
If left uncorrected, the decisions of the lower courts
would place an unreasonable burden on physicians,
[because] . . . [i]n making decisions about how to
treat their patients, . . . physicians . . . would
have to account for the possibility that the
preferences of a physician they have never
met . . . could serve as the basis by which their
conduct will be judged.
But this argument ignores the fact that the standard against
which a physician's conduct is judged is the conduct of a
similarly-situated reasonable physician. Wis JI——Civil 1023 at
1. And arguably "for any set of clinical facts, however unique,
there are decisions or actions that virtually no doctor would
find acceptable." Mark A. Hall, Mary Anne Bobinski & David
Orentlicher Health Care Law and Ethics 321 (8th ed. 2013)
(presenting idea without necessarily endorsing it). Physicians
need only ensure that their conduct matches the conduct of a
similarly-situated reasonable physician. Assuming that a judge
finds that expert testimony passes the requirements of Wis.
Stat. § 907.02, the party against whom the testimony is offered
may dispute it by cross-examination and by presenting contrary
expert testimony suggesting that the party's conduct was
reasonable. It is then up to the jury to decide which set of
testimony is more believable.
13
No. 2014AP195.akz
or a "junk opinion." McGovern, 584 F. Supp. 2d at 424. This
was testimony in a "recognized field of expertise" as to the
standard of care required, provided by a well-qualified
physician who had delivered thousands of babies. Dr. Wener used
his own education, training, and experience to review the
relevant medical records and to reach a conclusion as to whether
the applicable standard of care was followed. The circuit court
did not err in admitting this testimony.5
III
¶189 Thus, I concur only in the court's conclusion to
affirm the decision of the court of appeals. I do not join the
lead opinion for two reasons. First, the lead opinion does not
sufficiently address the legislature's 2011 changes to Wis.
Stat. § 907.02 (2009-10), which had significant effect on the
admissibility of expert opinion testimony in Wisconsin. The
5
I reject Dr. Balink's remaining arguments for reversal.
Without opining on whether, or the extent to which, the
Seiferts' attorney violated various pretrial orders, and without
opining on the possibility that Dr. Balink has waived this
argument, I conclude that the record does not establish that,
because of comments made by the Seiferts' attorney during
closing arguments following this week-long jury trial, "the
verdict reflects a result which in all probability would have
been more favorable to the complaining party but for the
improper argument." Wagner v. Am. Family Mut. Ins. Co., 65
Wis. 2d 243, 250, 222 N.W.2d 652 (1974) (citing Klein v. State
Farm Mut. Auto. Ins. Co., 19 Wis. 2d 507, 510 n.1, 120
N.W.2d 885 (1963)). The circuit court did not erroneously
exercise its discretion in declining to grant a new trial. See
id. at 249-50.
Further, given the conclusions set forth in this writing,
discretionary reversal is not warranted. See Wis. Stat.
§ 751.06.
14
No. 2014AP195.akz
legislature has now tightened the applicable standard. Second,
the lengthy lead opinion does not adequately guide trial courts
with regard to how they should apply Wis. Stat. § 907.02. I
write to clarify that § 907.02 has now changed the gatekeeping
function of the trial court concerning the admissibility of
expert testimony. Simply stated, the trial court now must
adhere to and apply the heightened Daubert-Wis. Stat. § 907.02
standard. In my view, a best practice for trial courts and
counsel is to create a detailed, complete record regarding why
any particular expert's testimony meets the heightened scrutiny
due under § 907.02. The trial court's determinations here are
upheld under the facts of this case because the trial court did
not erroneously exercise its discretion in admitting the
testimony of Dr. Wener.
¶190 While I agree that this court should uphold the
circuit court's decision to admit Dr. Wener's expert testimony
at trial, I reach this conclusion in spite of the fact that the
legislature tightened the standard of admissibility of expert
opinion testimony when it amended Wis. Stat. § 907.02 (2009-10).
The circuit court did not "appl[y] an improper legal standard or
make[] a decision not reasonably supported by the facts of
record" in admitting Dr. Wener's testimony, 118th St. Kenosha,
359 Wis. 2d 30, ¶18 (quoting 260 North 12th St., 338
Wis. 2d 34, ¶38), and its decision should be upheld. See id. I
view the record below, however, as a "close call" which might
not survive appellate review had this been a different case
type.
15
No. 2014AP195.akz
¶191 For the foregoing reasons, I respectfully concur.
16
No. 2014AP195.mjg
¶192 MICHAEL J. GABLEMAN, J. (concurring in the
judgment). This is a review of a published decision of the
court of appeals that affirmed the Grant County circuit court's1
order denying Dr. Kay M. Balink's ("Dr. Balink") postverdict
motion for a new trial. Seifert ex rel. Scoptur v. Balink, 2015
WI App 59, 364 Wis. 2d 692, 869 N.W.2d 493. Dr. Balink
requested a new trial because (1) the circuit court erred by
admitting the medical standard-of-care expert testimony of Dr.
Jeffrey Wener ("Dr. Wener"); (2) counsel's statements during
closing arguments unfairly prejudiced the verdict; and (3) the
interests of justice require a new trial because the issues have
not been fully tried.
¶193 This case requires us to interpret how the Daubert2
standard as adopted in Wis. Stat. § 907.02(1) (2013-14)3 applies
to a standard-of-care expert in a medical malpractice case where
the expert relies on his experience to show that his principles
and methods, and the application thereof, are reliable.
¶194 I conclude that experience is sufficient to satisfy
Daubert's reliability requirement provided the expert shows how
his experience makes his opinion reliable. No medical
literature is required provided this is done. Thus, Dr. Wener's
opinion is admissible in this case because he showed how his
1
The Honorable Craig R. Day presided.
2
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
3
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
1
No. 2014AP195.mjg
experience made his opinion reliable, and the circuit court did
not err when it admitted his testimony at trial. Consequently,
the circuit court did not err when it denied Dr. Balink's motion
for a new trial based on her argument that the circuit court
erroneously admitted Dr. Wener's testimony.
¶195 Further, I conclude the circuit court did not err when
it denied Dr. Balink's request for a new trial based on the
effect of counsel's statements during closing argument.
¶196 I do not reach Dr. Balink's request for a new trial in
the interests of justice as Dr. Balink bases the request on the
inadmissibility of Dr. Wener's testimony and the effect of
counsel's statements during closing arguments. I consider it
unnecessary to reach her request because I conclude that the
circuit court properly admitted Dr. Wener's testimony and the
verdict was not unfairly prejudiced by counsel's statements.
¶197 Accordingly, I would affirm the decision of the court
of appeals, and I concur in the court's judgment. I write
separately, however, to express how I reach this result.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Ms. Seifert's Prenatal Care
¶198 Beginning on December 5, 2008, Dr. Balink assumed Ms.
Seifert's prenatal care. As part of this prenatal care, Dr.
Balink tracked Ms. Seifert's weight. Ms. Seifert weighed 269
pounds at the beginning of the pregnancy, which meant Ms.
Seifert was obese. Over the course of her pregnancy, Ms.
Seifert gained an additional 36 pounds, and by the time of
delivery, she weighed 305 pounds.
2
No. 2014AP195.mjg
¶199 Dr. Balink took regular fundal measurements in order
to measure the baby's growth and to estimate its size. On
occasion, Dr. Balink used ultrasounds, but typically, Dr. Balink
used fundal measurements. When performing these fundal
measurements, Dr. Balink placed a tape measure on Ms. Seifert's
stomach and measured the distance from her pubic bone to the top
of the fundus, the fundus being the top of her uterus.
¶200 As another aspect of Ms. Seifert's prenatal care, Dr.
Balink monitored Ms. Seifert's glucose level. Here Dr. Balink
used a one-hour glucose tolerance test in order to determine if
Ms. Seifert's glucose level rose above a 140 mg/dL threshold.
If Ms. Seifert's glucose level rose above the 140 mg/dL
threshold, Dr. Balink would have performed a three-hour glucose
tolerance test to determine if Ms. Seifert had gestational
diabetes. Because Ms. Seifert's glucose level was 131 mg/dL,
Dr. Balink considered Ms. Seifert's glucose level safe and never
ran the diagnostic test to determine if in fact Ms. Seifert had
gestational diabetes.
B. Braylon Seifert's Delivery
¶201 On May 26, 2009, Dr. Balink ordered Ms. Seifert's
labor be induced. In the induction order, Dr. Balink noted that
Ms. Seifert's baby was "expected LGA," meaning large for
gestational age. Again using a fundal height measurement, Dr.
Balink estimated the baby's weight at eight pounds, eight
ounces. Dr. Balink did not order an ultrasound, a more accurate
method of measuring the baby's size, despite her awareness of
3
No. 2014AP195.mjg
the complicating factors of Ms. Seifert's obesity and the
possibility of the LGA child.
¶202 Ms. Seifert arrived at the hospital for induction of
labor on May 28, 2009. After she had been pushing for one hour
without making progress in delivering her baby, Ms. Seifert
tired, and Dr. Balink decided to use a vacuum device on the
baby's head for assistance. Braylon Seifert's ("Braylon") head
emerged when Dr. Balink used the vacuum, but shortly thereafter,
it retracted. This type of retraction, known as the "turtle
sign," indicates shoulder dystocia, which essentially means the
baby's shoulder is caught on the mother's pubic bone. Thus,
after seeing Braylon's head retract, Dr. Balink quickly
diagnosed Braylon with shoulder dystocia.
¶203 Shoulder dystocia can be a life-threatening emergency
if not swiftly resolved. This is so because a baby experiencing
such a condition cannot breathe properly. In an effort to
resolve the situation as quickly as possible, Dr. Balink
attempted a variety of maneuvers to safely deliver Braylon.
Eventually she succeeded by using traction to dislodge Braylon's
shoulder and pull him out. At 12:24 a.m. on May 29, 2009,
Braylon was born. He weighed nine pounds, twelve ounces. Only
a few minutes had elapsed from the time Dr. Balink diagnosed the
shoulder dystocia to the time she delivered Braylon, and it
appeared that the situation had been successfully resolved with
no permanent harm to the baby. However, Braylon was diagnosed
just days later with a permanent brachial plexus injury in his
left arm that inhibits its growth and use. Braylon has since
4
No. 2014AP195.mjg
undergone surgery to improve the use of his left arm, but even
with surgery and therapy, he will never have full use of his
arm.
C. Dr. Balink's Trial for Medical Malpractice
¶204 After discovering Braylon's permanent brachial plexus
injury, Braylon's parents (David and Kimberly) and his guardian
ad litem (Paul J. Scoptur) sued Dr. Balink and Proassurance
Wisconsin Insurance Co. on Braylon's behalf alleging that Dr.
Balink was (1) negligent in providing Ms. Seifert's prenatal
care; (2) negligent in delivering Braylon; and (3) failed to
obtain Ms. Seifert's informed consent before using the vacuum to
assist with the delivery.
1. Dr. Wener's Opinion on the Standard of Care
¶205 Braylon's parents and guardian ad litem hired Dr.
Wener, a board certified obstetrician-gynecologist, to testify
as to the standard of care required of Dr. Balink as a family
practitioner and Dr. Balink's breach of that standard of care.
According to Dr. Wener, Dr. Balink fell below the standard of
care because (1) she did not use an ultrasound to estimate
Braylon's weight prior to delivery despite Ms. Seifert's obesity
and Braylon's suspected LGA status; (2) she never ordered the
three-hour glucose tolerance test to determine if Ms. Seifert
did in fact have gestational diabetes even though Ms. Seifert
was obese and had gained more weight than would be expected over
the course of her pregnancy; and (3) she used a vacuum to assist
5
No. 2014AP195.mjg
in the delivery in spite of the presence of an increased risk
for shoulder dystocia.4
¶206 To form both his opinion of the applicable standard of
care as well as his opinion that Dr. Balink had breached that
standard of care, Dr. Wener considered the following factors:
(1) Ms. Seifert's prepregnancy weight of 269 pounds; (2) Ms.
Seifert's 36-pound weight gain over the course of her pregnancy;
(3) the 131 mg/dL result from the 1-hour glucose tolerance test;
and (4) Braylon's estimated fetal weight of 8 pounds, 8 ounces.
Dr. Wener opined that, as a result of the confluence of these
factors, Braylon was at an increased risk for shoulder dystocia.
Furthermore, Dr. Wener testified that Dr. Balink fell below the
applicable standard of care because her conduct did not account
for the increased risk created by the factors presented by Ms.
Seifert and her unborn child.
¶207 Dr. Wener testified that a family practitioner
practicing obstetrics in accordance with the applicable standard
of care in 2009 would have recognized that Ms. Seifert's obesity
and above-average weight gain would have rendered a fundal
measurement too inaccurate for the situation and would have
instead ordered an ultrasound in order to estimate the baby's
size. Obtaining a more accurate measurement would, in turn,
have indicated to Dr. Balink that the vacuum device should not
4
Dr. Wener also opined that Dr. Balink fell below the
standard of care by applying excessive traction when resolving
the shoulder dystocia, but this part of Dr. Wener's opinion is
unchallenged.
6
No. 2014AP195.mjg
be used on a baby of Braylon's size because of the risk of
shoulder dystocia. In addition, Dr. Wener opined that a family
practitioner practicing obstetrics in 2009 should have used a
lower threshold than Dr. Balink used——130 mg/dL as opposed to
140 mg/dL——when performing the 1-hour glucose tolerance test
because of Ms. Seifert's weight, which increased the risk of
gestational diabetes. Finally, Dr. Wener opined that, to meet
the applicable standard of care, a family practitioner
practicing obstetrics in 2009 would avoid use of a vacuum device
during the delivery because of the increased risk of shoulder
dystocia resulting from Ms. Seifert's weight and Braylon's
suspected status as a large baby.
2. Dr. Balink's Challenge to Dr. Wener's Opinion on the
Standard of Care
¶208 Before trial, Dr. Balink challenged the admissibility
of Dr. Wener's opinion, arguing that his opinion was unreliable
because it was based not on science and medical literature but
rather was based solely on Dr. Wener's personal preferences. At
a pretrial hearing to address, inter alia, the admissibility of
Dr. Wener's opinion, the circuit court determined Dr. Wener used
a "holistic" method whereby Dr. Wener looked at the patient as a
whole using recognized factors in order to come to a conclusion
about the standard of care required. In support of its decision
to admit Dr. Wener's opinion, the circuit court pointed to "the
vagaries of medical treatment and diagnosis" and emphasized that
Dr. Wener does not represent the junk science Daubert was
intended to exclude. Thus, the circuit court ruled that Dr.
7
No. 2014AP195.mjg
Wener's opinion testimony was admissible, and the case proceeded
to trial.
3. Closing Arguments
¶209 At trial, Kenneth M. Levine ("Atty. Levine"), the
Seiferts' counsel, made a series of statements during closing
arguments that Dr. Balink argues require a new trial because the
statements were improper and unfairly prejudiced the verdict.
First, Dr. Balink says Atty. Levine compared Dr. Wener's opinion
about the standard of care required of Dr. Balink as a family
practitioner to the standard of care required of an ordinary
person while driving. Dr. Balink's counsel objected to these
statements as a violation of the "rules of the road prohibition"
put in place by the circuit court in a ruling on a motion in
limine. The circuit court's ruling stated that Atty. Levine
could not compare medical negligence to ordinary negligence.
Second, Atty. Levine asked the jurors on three occasions how
they would like their doctors to care for them, and in so doing,
Dr. Balink argues Atty. Levine violated the "golden rule
prohibition." At the time of the first violation, Atty. Levine
withdrew his statement in response to the objection made by Dr.
Balink's counsel; at the time of the second violation, the
circuit court gave a brief curative instruction; and at the time
of the third violation, the circuit court sustained the
objection made by Dr. Balink's counsel. Third, in his rebuttal
argument, Atty. Levine made a statement that he thought more
highly of the jurors than Dr. Balink's counsel and another
8
No. 2014AP195.mjg
statement that he thought the jurors were well equipped to
decide the case and were experts in their own right.
4. Dr. Balink's Motion for a New Trial
¶210 Following the verdict, Dr. Balink moved the circuit
court for a new trial based on three arguments. First, Dr.
Balink argued the circuit court erred when it admitted Dr.
Wener's testimony. Second, the cumulative effects of Atty.
Levine's statements during closing arguments unfairly prejudiced
the verdict. Third, the interests of justice required a new
trial because the issues were not fully tried due to the
erroneous admission of Dr. Wener's testimony and the effect of
Atty. Levine's improper statements during closing arguments.
¶211 At the hearing to address Dr. Balink's motion for a
new trial, the circuit court again determined that Dr. Wener's
opinion was admissible.5 The circuit court noted Dr. Wener's
method was grounded in science and further that his method can
be tested. In regard to the nature of Dr. Wener's testimony,
the circuit court observed, "[I]t is not in the nature of
engineering or other more hard sciences. It is not a
mathematical calculation wherein one plus one plus one always
yields three. Sometimes it yields 3.2 and sometimes it yields
2.8." Further, in light of the expert testimony Dr. Balink
introduced at trial, it was more firmly assured of the
5
In total, the circuit court considered the admissibility
of Dr. Wener's testimony three times: first at the pretrial
hearing, second at trial pursuant to an objection to Dr. Wener's
testimony, and third at the hearing on Dr. Balink's motion for a
new trial.
9
No. 2014AP195.mjg
admissibility of Dr. Wener's testimony because there were points
on which Dr. Balink's experts agreed with Dr. Wener.
¶212 The circuit court also found that neither Atty.
Levine's statements, nor their cumulative effect, required an
order for a new trial. The circuit court determined that the
first set of statements did not violate the motion in limine,
even though it was close. In reaching its conclusion, the
circuit court noted that the jury was instructed on medical
negligence, not ordinary negligence; therefore, the jury was
unlikely to see the comparison between the two types of
negligence given that the jury had not been instructed on
ordinary negligence. For the second set of statements, the
circuit court found that the sustained objection of Dr. Balink's
counsel and curative instruction given by the court were
sufficient to eliminate any unfair prejudice. Finally, for the
third set of statements, the circuit court found the context——
rebuttal argument——important because Atty. Levine's statements
were made in response to statements made by Dr. Balink's counsel
during closing arguments. In addition, the circuit court
determined that Atty. Levine employed an argument technique
meant to empower the jury and give it confidence to decide the
case. Therefore, these statements were not improper. Thus, the
effect of Atty. Levine's statements did not require a new trial.
¶213 The circuit court then denied Dr. Balink's request for
a new trial.
5. Dr. Balink's Appeal
10
No. 2014AP195.mjg
¶214 Dr. Balink appealed, and the court of appeals affirmed
the circuit court determining that it did not err when it denied
Dr. Balink's request for a new trial. Seifert, 364 Wis. 2d 692,
¶3. Relying heavily on the discretion afforded to circuit
courts in the Daubert analysis, the court of appeals determined
the circuit court properly exercised its discretion in admitting
Dr. Wener's opinion. Id., ¶¶23-27, 34. Then, pointing out that
Dr. Balink failed to move for a mistrial before the verdict, the
court of appeals determined that the circuit court did not err
when it denied Dr. Balink's request for a new trial based on the
effect of Atty. Levine's statements during closing arguments.
Id., ¶¶36 n.10, 37. The court of appeals next addressed Dr.
Balink's request for a new trial in the interests of justice
stating that the issues were fully tried and no new trial was
needed. Id., ¶49 n.12.
¶215 Dr. Balink then petitioned this court for review, and
because we have yet to address the adoption of the Daubert
standard in Wisconsin, we granted review to take the opportunity
to define the reliability analysis for a standard-of-care expert
in a medical malpractice case.
II. STANDARD OF REVIEW
¶216 Before discussing the standard of review it is
important to note that while Daubert has imposed change in some
areas of the law concerning expert testimony, it has not changed
the standard of review in such cases. Gen. Elec. Co. v. Joiner,
522 U.S. 136, 141-43 (1997). Thus, review of a circuit court's
decision to admit or exclude expert testimony follows the same
11
No. 2014AP195.mjg
standards previously used before the legislature adopted the
Daubert standard in 2011.
¶217 This court reviews a circuit court's decision to admit
or exclude expert testimony for an erroneous exercise of
discretion. State v. Kandutsch, 2011 WI 78, ¶23, 336
Wis. 2d 478, 799 N.W.2d 865. "The circuit court has 'broad
discretion to admit or exclude evidence,'" and this court
upholds the circuit court's decision unless it failed to apply
the proper legal standard or the record lacks reasonable support
for its decision. Id. (quoting State v. Nelis, 2007 WI 58, ¶26,
300 Wis. 2d 415, 733 N.W.2d 619; Martindale v. Ripp, 2001 WI
113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698).
¶218 In order to determine whether the circuit court
erroneously exercised its discretion, this court must first
interpret the Daubert standard as adopted by the legislature in
Wis. Stat. § 907.02(1) and determine if the circuit court used
the proper legal standard when it analyzed Dr. Wener's
testimony. Statutory interpretation is a question of law this
court reviews de novo. State v. Hemp, 2014 WI 129, ¶12, 359
Wis. 2d 320, 856 N.W.2d 811. Should this court interpret
§ 907.02(1) and conclude that the circuit court used the proper
legal standard, "the [circuit] court's choice of relevant
factors within [the Daubert] framework and its ultimate
conclusion as to admissibility" is reviewed for an erroneous
exercise of discretion. Lees v. Carthage Coll., 714 F.3d 516,
520 (7th Cir. 2013).
12
No. 2014AP195.mjg
¶219 As with evidentiary rulings, this court reviews a
circuit court's ruling on a motion for a new trial for an
erroneous exercise of discretion. Wagner v. Am. Family Mut.
Ins., 65 Wis. 2d 243, 249-50, 222 N.W.2d 652 (1974).
III. DISCUSSION
¶220 First, I consider the admissibility of Dr. Wener's
opinion and conclude that the circuit court properly exercised
its discretion when it admitted Dr. Wener's opinion. In so
concluding, I further conclude the circuit court properly
exercised its discretion in denying Dr. Balink's request for a
new trial. Second, I consider the effect of Atty. Levine's
statements during closing arguments and conclude the circuit
court properly exercised its discretion when it found the effect
of the statements did not require a new trial. As noted above,
I do not reach Dr. Balink's argument for a new trial in the
interests of justice because the circuit court properly admitted
Dr. Wener's testimony and Atty. Levine's statements do not
require a new trial. Thus, the issues were fully tried, and
there is no reason to grant a new trial in the interests of
justice under Wis. Stat. § 751.06.
A. The Admissibility of Dr. Wener's Testimony
1. The Governing Statute
¶221 The admissibility of expert testimony is governed by
Wis. Stat. § 907.02(1):
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
13
No. 2014AP195.mjg
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
(Emphasis added). This last part of the statute, emphasized
above, was added by the legislature in 2011, see 2011 Wis. Act
2, § 34m, and it is this addition that I address today.
¶222 In addressing the addition to § 907.02(1), I first
look at the standard previously followed in Wisconsin and then
look to federal law for guidance on how Federal Rule 702 ("Rule
702") and Daubert have been interpreted and applied in the
federal courts. Next, I evaluate Dr. Wener's testimony and the
circuit court's analysis of his testimony in order to determine
whether the circuit court erred in determining that Dr. Wener's
principles and methods meet the reliability standards set forth.
After concluding that Dr. Wener's principles and methods are
reliable, I then evaluate if his principles and methods were
reliably applied.
2. The Relevancy Standard and Wisconsin's Adoption of the
Daubert Standard
¶223 Traditionally, Wisconsin followed the relevancy
standard as articulated in State v. Walstad, 119 Wis. 2d 483,
515-16, 351 N.W.2d 469 (1984), to determine the admissibility of
expert testimony. Under this standard, the expert needed only
to be qualified, helpful, and relevant in order to be permitted
to testify. Id. at 516. Reliability was considered a
credibility determination left for the jury. State v. Fischer,
2010 WI 6, ¶2, 322 Wis. 2d 265, 778 N.W.2d 629. When confronted
14
No. 2014AP195.mjg
with the opportunity to replace the relevancy standard with the
Daubert standard followed in federal courts, this court
confirmed adherence to the relevancy standard. E.g., Fischer,
322 Wis. 2d 265, ¶7. Not until the legislature amended the
statute governing expert testimony in 2011 to add the language
emphasized above did Wisconsin adopt the Daubert standard
followed in federal courts. See 2011 Wis. Act 2, § 34m. Thus,
because our statute governing the admissibility of expert
testimony now mirrors Rule 702, compare Wis. Stat. § 907.02(1),
with Fed. R. Evid. 702, we may look to federal law interpreting
the Daubert standard for guidance concerning how we should apply
the standard in Wisconsin, State v. Gudenschwager, 191
Wis. 2d 431, 439, 529 N.W.2d 225 (1995).
3. Federal Rule of Evidence 702 and the Daubert Standard
¶224 Rule 702 contains five inquiries for a district court
to make before admitting expert testimony. Fed. R. Evid. 702.
All of these inquiries must be met by a preponderance of the
evidence. Id. advisory committee notes (2000 amend.). First,
the witness must be qualified. Lees, 714 F.3d at 521.
Essentially this means that the witness must possess specialized
knowledge, which is something Wisconsin has required for expert
testimony before the legislature amended Wis. Stat. § 907.02(1).
Second, the witness's testimony must be helpful, meaning it must
assist the trier of fact. Lees, 714 F.3d at 521. This element
closely relates to the relevance requirement previously followed
in Wisconsin. Third, the witness's testimony must be based on
sufficient facts and data. Id. Fourth, the witness must have
15
No. 2014AP195.mjg
reliable principles and methods, and fifth, those principles and
methods must be reliably applied to the facts of the case. Id.
at 521-22. I address the fourth and fifth elements today
because these elements are new to Wisconsin law with the
legislature's adoption of the Daubert standard and are the
elements at issue in this case.
4. The Reliability Analysis
¶225 In order to assist with the reliability analysis
required by the fourth and fifth elements (reliable principles
and methods reliably applied to the facts of the case), the
United States Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993), articulated
four non-exhaustive factors courts could use to analyze the
reliability of expert testimony: (1) whether the method has
been or will be tested; (2) whether the method "has been
subjected to peer review and publication"; (3) "the known or
potential rate of error"; and (4) whether the method has been
generally accepted. In articulating these factors, the Court
emphasized the factors are flexible and do not represent all the
factors a court could possibly consider. Id. at 594. In fact,
a trial court may consider one or more of the more
specific factors that Daubert mentioned when doing so
will help determine that testimony's reliability.
But, as the Court stated in Daubert, the test of
reliability is "flexible," and Daubert's list of
specific factors neither necessarily nor exclusively
applies to all experts or in every case. Rather, the
law grants a district court the same broad latitude
when it decides how to determine reliability as it
enjoys in respect to its ultimate reliability
determination.
16
No. 2014AP195.mjg
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999).
"[T]here are many different kinds of experts and many different
kinds of expertise, including experts in drug terminology,
handwriting analysis, land valuation, agricultural practices,
railroad procedures, and so forth." United States v. Brumley,
217 F.3d 905, 911 (7th Cir. 2000). Therefore, the reliability
analysis must be flexible enough to allow the circuit court to
assess the type of expert being evaluated.
¶226 As a result of the different kinds of experts, courts
developed additional factors——many of which are listed in the
Advisory Committee Notes of Rule 702——for analyzing the
reliability of an expert's opinion as the situation required.
In some of these situations, particularly those involving
specialized knowledge, courts used an expert's experience to
determine reliability. See Kumho Tire, 526 U.S. at 150. Rule
702 expressly allows for the use of an expert's experience, and
the Advisory Committee Notes say:
Nothing in this amendment is intended to suggest that
experience alone——or experience in conjunction with
other knowledge, skill, training or education——may not
provide a sufficient foundation for expert testimony.
To the contrary, the text of Rule 702 expressly
contemplates that an expert may be qualified on the
basis of experience.
Fed. R. Evid. 702 advisory committee notes (2000 amend.)
(emphasis added). In fact, "[i]n certain fields, experience is
the predominant, if not sole, basis for a great deal of reliable
expert testimony." Id. Therefore, when assessing reliability,
a circuit court should have flexibility to use different
reliability factors, including the expert's experience, to
17
No. 2014AP195.mjg
analyze whether the expert's opinion is reliable. As the Court
pointed out in Kumho Tire,
[e]xperts of all kinds tie observations to conclusions
through the use of what Judge Learned Hand called
"general truths derived from . . . specialized
experience." And whether the specific expert
testimony focuses upon specialized observations, the
specialized translation of those observations into
theory, a specialized theory itself, or the
application of such a theory in a particular case, the
expert's testimony often will rest "upon an experience
confessedly foreign in kind to [the jury's] own."
526 U.S. at 148-49 (alteration in original) (emphasis added)
(citation omitted) (quoting Learned Hand, Historical and
Practical Considerations Regarding Expert Testimony, 15 Harv. L.
Rev. 40, 54 (1901)).
¶227 In general, when assessing reliability, a circuit
court is looking for "good grounds" for the expert's opinion to
show that it is "more than subjective belief or unsupported
speculation" and demonstrates "a reliable basis in the knowledge
and experience of his discipline." Daubert, 509 U.S. at 590,
592. Therefore, whatever factors a court uses to assess an
expert's reliability, the factors, and the court's analysis,
must ensure the expert has good grounds for his or her opinion.
In addition, "[t]he focus, of course, must be solely on
principles and methodology, not on the conclusions that they
generate." Id. at 595. Thus, if a circuit court finds that an
expert has good grounds for his opinion, it is for the jury to
decide between competing conclusions.
5. The Reliability Analysis in the Medical Standard-of-Care
Context
18
No. 2014AP195.mjg
¶228 When assessing a medical standard-of-care expert,
other jurisdictions have found good grounds for the expert's
opinion when the expert had experience that demonstrated
familiarity with the type of medicine at issue and the standard
of care for that type of medicine. For example, the Third
Circuit concluded a doctor's testimony was based on good grounds
and the district court abused its discretion in excluding the
doctor's standard-of-care testimony because the doctor no longer
practiced as an interventional cardiologist and now practiced as
an invasive cardiologist. Schneider ex rel. Estate of Schneider
v. Fried, 320 F.3d 396, 399-400 (3d Cir. 2003). As an invasive
cardiologist, the doctor still interacted with, and even
advised, interventional cardiologists, which, along with his
past experience as an invasive cardiologist, was sufficient to
satisfy Daubert. Id. at 406-07. Therefore, the Third Circuit
concluded the expert was sufficiently familiar with the type of
medicine involved in the case such that he could reliably
testify to the standard of care.
¶229 The Sixth Circuit reached a similar conclusion in
Dickenson v. Cardiac & Thoracic Surgery of Eastern Tennessee,
P.C., 388 F.3d 976, 978-82 (6th Cir. 2004), when it concluded
the district court abused its discretion in excluding a cardio-
thoracic surgeon's testimony regarding the standard of care
required for a pulmonologist. There, the court concluded the
district court abused its discretion by not allowing the doctor
to testify as to the standard of care based on the doctor's
19
No. 2014AP195.mjg
extensive experience and familiarity with the pulmonology issue
involved in the case. Id. at 980-82.
¶230 As Hippocrates, the father of medicine, noted in his
writing On the Art of Medicine, clinical medicine is an art that
requires good judgment developed over time and through
experience. Put another way, "medicine is scientific, but not
entirely a science." Primiano v. Cook, 598 F.3d 558, 565 (9th
Cir. 2010). As the Sixth Circuit noted,
Daubert's role of "ensur[ing] that the courtroom door
remains closed to junk science," is not served by
excluding testimony such as [the doctor's] that is
supported by extensive relevant experience. Such
exclusion is rarely justified in cases involving
medical experts as opposed to supposed experts in the
area of product liability.
Dickenson, 388 F.3d at 982 (alteration in original) (citation
omitted) (quoting Amorgianos v. Nat'l R.R. Passenger Corp., 303
F.3d 256, 267 (2d Cir. 2002)).
6. Determining the Reliability of Dr. Wener's Principles and
Methods
¶231 With the foregoing in mind, we now turn to the
question of whether Dr. Wener's principles and methods are
reliable such that he can testify about the standard of care
applicable to Dr. Balink.
i. Identifying Dr. Wener's Principles and Methods
¶232 In order to answer the question before us, namely
whether Dr. Wener's testimony is admissible under Daubert, the
first step is to identify the principles and methods Dr. Wener
employed. The circuit court found Dr. Wener used a "holistic,"
or comprehensive, method of determining the standard of care
20
No. 2014AP195.mjg
applicable to Ms. Seifert. Essentially, this comprehensive
method amounts to an expert physician examining the patient as a
whole, determining what, if any, of the risk factors recognized
by the medical community are present within the patient, and
then using that expert physician's experience to interpret the
risk factors and arrive at the standard of care required. It
is, as it must be, a case-by-case method to determine what type
of care is appropriate for a particular patient.
¶233 Here, Dr. Wener identified the following risk factors
recognized by the medical community: (1) Ms. Seifert's
prepregnancy weight of 269 pounds; (2) Ms. Seifert's 36-pound
weight gain over the course of her pregnancy; (3) the 131 mg/dL
result from the one-hour glucose tolerance test; and (4)
Braylon's estimated fetal weight. As his method, Dr. Wener used
his experience to determine that these factors indicated that
Ms. Seifert's baby was at an increased risk for shoulder
dystocia and that Dr. Balink fell below the standard of care
because she did not account for this increased risk.
ii. Assessing Reliability
¶234 Now that we have identified Dr. Wener's principles and
methods, we must determine if they are reliable and reliably
applied. In this case, I conclude that the circuit court did
not err when it found Dr. Wener's principles and methods are
sufficiently reliable and reliably applied. Dr. Wener showed
how his experience made his methodology reliable and
demonstrated, through his experience, an understanding of the
applicable standard of care in a way that he can reliably opine
21
No. 2014AP195.mjg
about the standard of care required. Dr. Wener testified that
he delivered 7,500 to 8,000 babies, encountered shoulder
dystocia, and even brachial plexus injuries, which shows that
Dr. Wener is experienced with the type of medical practice at
issue in this case. This experience in turn makes his
comprehensive methodology reliable because Dr. Wener has used
his factors and his methods in treating his own patients. Dr.
Wener also testified that he has experience as Chairman of the
Department of Obstetrics and Gynecology at Saint Alexius Medical
Center. Part of his responsibilities as Chairman required
reviewing the work of other doctors and setting the quality of
care for the hospital. In addition, Dr. Wener testified that he
taught medical students at the University of California San
Diego, and he was named "One of Chicago's Top Doctors" by his
peers. This testimony demonstrates an understanding of the
applicable standard of care by showing Dr. Wener is familiar
with the medical community and more than just his own practice.
When tailoring the reliability analysis to a medical standard-
of-care expert, good grounds may come from the expert's own
experience provided that experience has made him or her familiar
with the type of medicine at issue. Dr. Wener shows that here,
and therefore the circuit court did not err when it found his
testimony reliable.
¶235 Further, the circuit court undertook a thoughtful
analysis of the admissibility of Dr. Wener's testimony that
shows it considered the reliability factors in order to
determine good grounds for Dr. Wener's opinion. It noted that
22
No. 2014AP195.mjg
Dr. Wener is not the kind of junk scientist Daubert sought to
exclude and Dr. Wener's decision not to use medical literature
was acceptable because the individualized nature of a
determination made when caring for a particular patient is not
something that can be published or peer reviewed. Also, the
circuit court correctly found that Dr. Wener's method had an
aspect of testability to it because the factors he relied on
were, indeed, capable of being tested. Although it prudently
and accurately observed that the nature of the case was "not in
the nature of engineering or other more hard sciences," the
circuit court properly admitted Dr. Wener's opinion based on Dr.
Wener's experience.
¶236 Indeed, I emphasize that the circuit court does have
and must have discretion to apply the Daubert analysis so as to
fit the facts of each particular case, as the circuit court did
here. See Kumho Tire, 526 U.S. at 150 ("Our emphasis on the
word 'may' thus reflects Daubert's description of the Rule 702
inquiry as 'a flexible one.' Daubert makes clear that the
factors it mentions do not constitute a 'definitive checklist or
test.' And Daubert adds that the gatekeeping inquiry must be
'tied to the facts' of a particular 'case.'" (citations omitted)
(quoting Daubert, 509 U.S. at 591, 593-94)). However, this
discretion does not allow the circuit court to abdicate its role
as gatekeeper in performing the reliability analysis. Id. at
158-59 (Scalia, J., concurring) ("[T]he discretion [the Court]
endorses——trial-court discretion in choosing the manner of
testing expert reliability——is not discretion to abandon the
23
No. 2014AP195.mjg
gatekeeping function. . . . Rather, it is discretion to choose
among reasonable means of excluding expertise that is fausse and
science that is junky.").
¶237 As is evident by the circuit court's discussion of the
Daubert factors, it did not abdicate its role as gatekeeper when
admitting Dr. Wener's testimony; instead, the analysis indicates
the circuit court thoughtfully and carefully considered the
Daubert factors before turning to other considerations. The
circuit court used its discretion to tailor its analysis to the
type of expert we have here, namely a medical standard-of-care
expert, and it looked to Dr. Wener's experience in order to
determine reliability. In so doing, it noted that Dr. Wener
used factors recognized by the medical community that he then
"added up" based on his own experience with delivering babies,
dealing with shoulder dystocia, and setting the quality of care
at his hospital to reach a conclusion as to the standard of care
required here. This, the circuit court said, made Dr. Wener's
opinion reliable, and I see no error in this conclusion.
7. Dr. Balink's Arguments
¶238 Dr. Balink makes two main arguments as to the
unreliability of Dr. Wener's opinion. First, she argues that
Dr. Wener's testimony is based on nothing but his personal
preferences, and second, she argues that Dr. Wener's failure to
ground his testimony in any published medical literature makes
his testimony unreliable. I address each argument in turn.
i. Dr. Wener's Opinion Is More than Personal Preference
24
No. 2014AP195.mjg
¶239 First, Dr. Balink argues Dr. Wener has nothing but his
personal preferences to support his conclusion as to the
standard of care and Dr. Balink's breach of that standard of
care. Thus, his opinion is unreliable because it reflects only
what Dr. Wener would do and not what the reasonable family
practitioner practicing obstetrics in 2009 would do. While it
may be true that Dr. Wener practices medicine in the manner he
set forth as the applicable standard of care, that fact,
standing alone, does not transform his opinion into a statement
of personal preference. Dr. Wener assisted in setting the
quality of care required at Saint Alexius Medical Center while
he served there as Chairman of the Department of Obstetrics and
Gynecology. Furthermore, Dr. Wener taught medical students and
was named "One of Chicago's Top Doctors" by his peers. At least
one other court has reached a similar conclusion when presented
with the question of how to determine if a medical standard-of-
care expert's testimony is reliable based on his experience. In
Ellison v. United States, 753 F. Supp. 2d 468, 480-81 (E.D. Pa.
2010), the court dismissed the United States' argument that the
standard-of-care expert based his opinion on his personal
preferences because, "[t]aken as a whole, Dr. Super's testimony
is that he has formulated an opinion as to the general——as
opposed to simply his own, personal——standard of care and that,
based on his experience, he had a reliable basis for doing so."
ii. There Is No Medical Literature Requirement
¶240 Second, Dr. Balink argues that Dr. Wener's failure to
rely on published medical literature makes his opinion
25
No. 2014AP195.mjg
unreliable. However, as the Third Circuit noted when it
addressed medical literature in the context of differential
diagnosis,
[i]n the actual practice of medicine, physicians do
not wait for conclusive, or even published and peer-
reviewed, studies to make diagnoses to a reasonable
degree of medical certainty. Such studies of course
help them to make various diagnoses or to rule out
prior diagnoses that the studies call into question.
However, experience with hundreds of patients,
discussions with peers, attendance at conferences and
seminars, detailed review of a patient's family,
personal, and medical histories, and thorough physical
examinations are the tools of the trade, and should
suffice for the making of a differential diagnosis
even in those cases in which peer-reviewed studies do
not exist to confirm the diagnosis of the physician.
Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999);
see also Dickenson, 388 F.3d at 980 (calling the district
court's imposition of a medical literature requirement for a
medical expert "an erroneous statement of the law"); Schneider,
320 F.3d at 406 ("Where there are other factors that demonstrate
the reliability of the expert's methodology, an expert opinion
should not be excluded simply because there is no literature on
point."); Kudabeck v. Kroger Co., 338 F.3d 856, 862 (8th Cir.
2003) ("[P]ublication is not a prerequisite for
admissibility."). The Court itself noted in Daubert that
"[p]ublication . . . is not a sine qua non of admissibility."
Daubert, 509 U.S. at 593. Thus, there simply is no medical
literature requirement of the kind Dr. Balink suggests, and an
expert's decision not to rely on literature does not render his
opinion unreliable provided the expert has something else, like
his experience, to make his opinion reliable. Thus, because
26
No. 2014AP195.mjg
there is no requirement that an expert physician's testimony be
based in whole or in part on medical literature and Dr. Wener
showed how his experience makes his opinion reliable, the
circuit court did not err when it admitted Dr. Wener's
testimony.
¶241 It is true that Dr. Balink produced medical literature
in this case that seemingly contradicted Dr. Wener's opinion,
particularly regarding the threshold to use for the one-hour
glucose tolerance test; however, Dr. Wener was able to meet that
literature and provide an explanation for why, based on his
experience, he did not agree with it. Thus, the presence of
this literature does not render Dr. Wener's testimony unreliable
as a matter of law, as Dr. Balink argues. Such a conflict of
evidence boils down to an issue of credibility, requiring
determination by the trier of fact. "Daubert makes the
[circuit] court a gatekeeper, not a fact finder." United States
v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006).
8. Determining the Reliable Application of Dr. Wener's
Principles and Methods
¶242 Last in the Daubert analysis, I determine that Dr.
Wener reliably applied his comprehensive method to the facts of
this case.
¶243 Under the Daubert analysis, we are to look for
reliable principles and methods and a conclusion that logically
follows from those reliable principles and methods. See Joiner,
522 U.S. at 144-46. If the expert's conclusion logically
follows from reliable principles and methods, any
27
No. 2014AP195.mjg
inconsistencies,6 or flaws, go to the weight, or credibility, of
the expert's testimony as opposed to its admissibility. See
Lees, 714 F.3d at 525.
¶244 Such is the case here. As detailed above, Dr. Wener
had a reliable method of determining the standard of care
applicable to this case because of his experience. His
conclusion that Dr. Balink breached that standard of care
logically follows from that method. Thus, the inconsistencies
Dr. Balink points to in her brief as examples of an unreliable
application go to the weight to be given to Dr. Wener's
testimony and not to the question of its admissibility. When
assessing expert testimony, we are looking for good grounds, not
flawless grounds. "Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking
shaky but admissible evidence." Daubert, 509 U.S. at 596.
¶245 "[W]hen an expert purports to apply principles and
methods in accordance with professional standards, and yet
reaches a conclusion that other experts in the field would not
reach, the [circuit] court may fairly suspect that the
principles and methods have not been faithfully applied." Fed.
6
Dr. Balink complains of inconsistencies in Dr. Wener's
testimony. As one example, Dr. Balink points to Dr. Wener's
testimony that he would not use a vacuum for a baby with an
estimated fetal weight greater than 4,500 grams by ultrasound
and that babies with an estimated fetal weight of greater than
4,500 grams are associated with an increased risk of shoulder
dystocia. Dr. Balink argues that Dr. Wener's testimony is
inconsistent for the facts of this case because Braylon's actual
birth weight was only 4,370 grams.
28
No. 2014AP195.mjg
R. Evid. 702 advisory committee notes (2000 amend.). This is
not the case here, and Dr. Wener's testimony may not be excluded
because, as the circuit court noted in the postverdict motion
hearing, Dr. Balink's experts agreed with Dr. Wener in some
respects. Thus, the circuit court did not have reason to
exclude Dr. Wener's testimony because the record discloses no
reason to suspect that Dr. Wener's application of his principles
and methods to the facts of this case was unreliable.
¶246 In some cases the expert's conclusion bears on the
reliability analysis because "conclusions and methodology are
not entirely distinct from one another." Joiner, 522 U.S. at
146. For example, "[a] court may conclude that there is simply
too great an analytical gap between the data and the opinion
proffered." Id. However, provided the conclusions of the
respective expert physicians logically follow from their methods
and there is no analytical gap between the two, a court is not
to choose between the differing conclusions of two experts; such
a determination is left for the jury. See id. But this is not
the case with Dr. Wener's testimony despite the fact that Dr.
Balink presented contradictory medical literature and comes to a
different conclusion. Thus, Dr. Wener's conclusion does not
render his testimony inadmissible because it differs from Dr.
Balink's conclusion.
¶247 In sum, I conclude that Dr. Wener's opinion is
admissible. His comprehensive method is reliable and reliably
applied. This is a result of his extensive experience that
supports his opinion, and the circuit court did not err when it
29
No. 2014AP195.mjg
found Dr. Wener's testimony admissible. Thus, Dr. Balink's
request for a new trial based on the erroneous admission of Dr.
Wener's testimony was properly denied.
B. Counsel's Statements During Closing Arguments
¶248 Dr. Balink next argues that the circuit court
erroneously denied her motion for a new trial because the effect
of Atty. Levine's improper statements during closing arguments
unfairly prejudiced the verdict.
¶249 Before addressing this argument, I first note that I
conclude that Dr. Balink waived this argument by failing to move
for a mistrial. See Wagner, 65 Wis. 2d at 249. However, like
the court of appeals, I choose to address this argument under
the court's discretionary jurisdiction.
¶250 A motion for a new trial based on unfairly prejudicial
statements by counsel "is addressed to the discretion of the
trial court." Id. at 249-50; see also Rodriguez v. Slattery, 54
Wis. 2d 165, 170-71, 194 N.W.2d 817 (1972) ("The trial court is
in a particularly good 'on-the-spot' position to evaluate these
factors."). Thus, we are bound to uphold the circuit court's
decision unless the circuit court erroneously exercised its
discretion. See Klein v. State Farm Mut. Auto. Ins., 19
Wis. 2d 507, 511, 120 N.W.2d 885 (1963).
¶251 Here, the circuit court gave an account of its
reasoning. I see no reason to say the circuit court erroneously
exercised its discretion by denying Dr. Balink's motion for a
new trial.
IV. CONCLUSION
30
No. 2014AP195.mjg
¶252 In this instance, I conclude that experience is
sufficient to satisfy Daubert's reliability requirement provided
the expert shows how his experience makes his opinion reliable.
No medical literature is required provided this is done. Thus,
Dr. Wener's opinion is admissible in this case because he showed
how his experience made his opinion reliable, and the circuit
court did not err when it admitted his testimony at trial.
Consequently, the circuit court did not err when it denied Dr.
Balink's motion for a new trial based on her argument that the
circuit court erroneously admitted Dr. Wener's testimony.
¶253 Further, I conclude the circuit court did not err when
it denied Dr. Balink's request for a new trial based on the
effect of counsel's statements during closing argument.
¶254 I do not reach Dr. Balink's request for a new trial in
the interests of justice as Dr. Balink bases the request on the
inadmissibility of Dr. Wener's testimony and the effect of
counsel's statements during closing arguments. I consider it
unnecessary to reach her request because I conclude that the
circuit court properly admitted Dr. Wener's testimony and the
verdict was not unfairly prejudiced by opposing counsel's
statements.
¶255 Accordingly, I would affirm the decision of the court
of appeals, and I concur in the court's judgment. I write
separately, however, to express how I reach this result.
¶256 For the foregoing reasons I concur.
¶257 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this concurrence.
31
No. 2014AP195.dk
¶258 DANIEL KELLY, J. (dissenting). I dissent,
respectfully, because we missed an opportunity to clarify the
standards for admission of expert testimony. This lack of
clarity caused us to affirm the admission of testimony that does
not satisfy the requirements of Wis. Stat. § 907.02 (2013–14).1
¶259 I agree with the lead opinion that an expert's
personal experience can qualify him as an expert under Wis.
Stat. § 907.02, making his testimony sufficiently "reliable" for
admission to the jury. But that just begs the question: In
light of that personal experience, to what is the admitted
expert qualified to testify? Here, Dr. Wener's task was to
identify and describe the standard of medical care against which
to measure Dr. Balink's performance of her duties. His
testimony failed to satisfy Wis. Stat. § 907.02 because there
was no apparent match between this objective and his
qualification as an undeniably accomplished
obstetrician/gynecologist. As it turns out, we focused so
narrowly on Dr. Wener's sterling professional credentials that
we let him become the thing about which he was supposed to
testify. That is, instead of determining whether Dr. Wener was
qualified to discover and describe the proper standard of
medical care, we found that he is the standard of medical care.
I
¶260 The primary question this case presents is whether the
plaintiffs identified a proper standard of medical care against
1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
1
No. 2014AP195.dk
which a jury could measure Dr. Balink's performance in the
delivery of Braylon Seifert.2 Even though this case progressed
through a jury trial, an appeal, and review by this court, I
find that I still do not know what that standard might be, or
whether Dr. Wener was qualified to describe it.
¶261 Here is what we do know. We know young Seifert
suffered a grievous injury at birth. We know the injury was
caused by the manner in which he was delivered. We know he
could have been delivered differently. We know that Dr. Wener
says that if young Seifert had been delivered according to the
practices and procedures he described, the injury very likely
would not have occurred. And I believe he is right.
¶262 What I do not know is whether young Seifert's delivery
was done negligently. The reason I do not know this is because
no one described what care we should expect from the reasonably
qualified family practitioner in the circumstances revealed by
this case. That is, the jury never received a proper measuring
stick against which to compare Dr. Balink's performance of her
obligations.
2
Dr. Balink phrased the issue as whether "an expert
witness' qualifications and personal preferences [are] alone
sufficient to meet Wis. Stat. § 907.02(1)'s new reliability
standard?" Although this framing conflates the statute's
subjective and objective criteria (as I discuss below), and so
obscures the gravamen of her concern, there is no doubt her
central complaint is that the plaintiffs' expert witness did not
identify a proper standard of medical care.
2
No. 2014AP195.dk
¶263 As we sketch out the contours of Wis. Stat. § 907.02,3
I think we should use a sharper pencil. As it is, we have not
made the necessary distinction between the thing about which an
expert is to testify, on the one hand, and on the other, the
qualification to so testify. Because we did not make that
distinction, it almost necessarily followed that our
"qualification" inquiry focused on the wrong question.
¶264 The Seiferts tasked Dr. Wener with demonstrating that
Dr. Balink delivered young Seifert negligently. That task
comprises two separate responsibilities. First, Dr. Wener
needed to identify the proper standard of medical care under the
circumstances of this case. Francois v. Mokrohisky, 67
Wis. 2d 196, 200–01, 226 N.W.2d 470 (1975). And second, he had
to opine on whether Dr. Balink's performance fell short of that
standard. Christianson v. Downs, 90 Wis. 2d 332, 338, 279
N.W.2d 918 (1979) ("Unless the situation is one where the common
knowledge of laymen affords a basis for finding negligence,
expert medical testimony is required to establish the degree of
care and skill required of a physician."). Competence in one of
these subjects does not automatically conclude competence in the
other. The proper standard of medical care and the failure to
meet that standard are distinct subjects and should receive
3
The standard described in this statute was first
enunciated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993), and later formalized as Federal Rule of Evidence 702 (as
amended in 2000). Because § 907.02(1)'s wording mirrors that of
the Federal Rule, and other states have followed suit, I will
follow the lead opinion's example in consulting relevant cases
from other jurisdictions.
3
No. 2014AP195.dk
distinct treatment. This means the proffered expert must
satisfy the court he has the necessary qualifications to speak
on each one.
¶265 We did not, however, require this of Dr. Wener. That
is, we allowed the Seiferts to graft Dr. Wener's competence to
testify with respect to the second inquiry (performance in
relation to the standard) onto the first (identification of the
standard). Perhaps he can authoritatively speak on both
subjects, but we do not know because no one asked. And he was
not asked because there was insufficient appreciation of the
need to conceptually separate the two inquiries. Here is what I
mean.
A
¶266 I assume Dr. Wener is a very talented obstetrician.
Indeed, for the sake of illustration, I will assume he is the
gold standard when it comes to delivering babies under the
circumstances this case presents. To what, then, shall we have
him testify? Shall we learn from him the optimal means of
delivering babies in those circumstances? Or should he teach us
how the reasonably qualified family practitioner delivers babies
in such circumstances? There are potentially leagues of
difference between the answers to these questions. If we select
the first, we will hear about the best possible practices that
could have been followed in young Seifert's delivery. If we
select the second, however, we will hear what we may
legitimately expect from any given family practitioner. Put
another way, the first option informs us of the care we all
4
No. 2014AP195.dk
want, while the second describes the standard of medical care to
which we may hold all family practitioners accountable.
¶267 Qualifying under the first option is pretty
straightforward. Having established himself as the gold
standard, it necessarily follows that Dr. Wener may
authoritatively opine on how he would deliver a baby when
confronted with patients like the Seiferts. Thus would he
establish the standard of medical care for the case, a reference
point we might usefully call the "What Would Wener Do" standard
("WWWD"). This is a narrowly vertical inquiry——we explore the
depth, and precision, of his knowledge, experience, and practice
in relation to the circumstances at hand.
¶268 As I will explain at greater length below, qualifying
under the second option calls for something different. It is a
broadly horizontal inquiry. It requires that the testifying
doctor have more than just knowledge of the best method of
delivering a baby in such circumstances. In light of the
natural variability inherent in the practice of medicine, it
requires that he be familiar with what is generally expected of
reasonably qualified practitioners under similar circumstances.4
He must have a source of knowledge that informs him of what
other doctors do under similar circumstances, or describes what
4
Francois v. Mokrohisky, 67 Wis. 2d 196, 201–02, 226
N.W.2d 470 (1975) ("The standard to which [physicians] must
conform . . . is determined by the practices of neither the very
best nor the worst of the class. Like automobile drivers,
engineers, common laborers, and lawyers, they are obliged to
conform to reasonable care in the circumstances.").
5
No. 2014AP195.dk
they ought to do, or what they must do. His knowledge of such
things must be extensive enough that he can distill from it
certain practices and procedures of sufficiently widespread
implementation that one may conclude that they represent a
standard known to reasonably qualified doctors in the relevant
field of practice.
¶269 If he cannot do this, and yet he testifies, then we
allow him to collapse the medical field into himself, and we
appoint him the reference point against which we measure all
doctors who deliver babies. For the following reasons, I
believe this is untenable, and it is not what Wis. Stat.
§ 907.02 either requires or authorizes.
1
¶270 I will begin by describing the nature of the standard
applicable to this case. That is, I will explain why I believe
it is essential that the standard be external to the testifying
expert. Afterwards, I will address Dr. Wener's qualification to
testify regarding that standard.
¶271 The Seiferts bore the burden of establishing the
standard of medical care to which they wished to hold Dr. Balink
accountable. Carney-Hayes v. Nw. Wis. Home Care, Inc., 2005 WI
118, ¶37, 284 Wis. 2d 56, 699 N.W.2d 524. Generally speaking,
expert testimony is necessary to meet that burden: "Unless the
situation is one where the common knowledge of laymen affords a
basis for finding negligence, expert medical testimony is
required to establish the degree of care and skill required of a
physician." Christianson, 90 Wis. 2d at 338. Negligence, in
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No. 2014AP195.dk
this case, turns (at least in part) on recognizing circumstances
that call for a three-hour glucose diagnostic test (rather than
a one-hour screening test), when it is necessary to perform an
ultrasound examination of the baby immediately before delivery,
and when a vacuum assistance device may or may not be used to
assist the baby in making his exit from the birth canal. These
are not subjects on which laypeople would commonly find
themselves knowledgeable.
¶272 The expert's first task, therefore, is to identify the
relevant standard of medical care, which must "be established by
a determination of what it is reasonable to expect of a
professional given the state of medical knowledge at the time of
the treatment in issue." Nowatske v. Osterloh, 198 Wis. 2d 419,
438-39, 543 N.W.2d 265 (1996), abrogated on other grounds by
Nommensen v. Am. Cont. Ins. Co., 2001 WI 112, 246 Wis. 2d 132,
629 N.W.2d 301. This means one may not establish a standard
with reference to what one doctor, or a non-representative
sampling of doctors, would do under the circumstances. A
"standard" is not the same thing as the existence of alternative
procedures or more accomplished practitioners.
¶273 A standard is, instead, normative. It is a reference
point external to the testifying doctor, something commonly
accessible by those practicing in the relevant field:
True, there was evidence that other physicians might
have acted differently and that there were alternate
procedures available, but no physician testified that
what was done did not comport with approved medical
practice under the circumstances. As we said in Trogun
v. Fruchtman, 58 Wis. 2d 569, 584, 207 N.W.2d 297
(1973):
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'(A) plaintiff must prove the defendant failed to
give him, not the highest degree of care, but
merely the reasonable care and skill usually
possessed by physicians of the same
school . . . .'
Francois, 67 Wis. 2d at 201 (emphasis added). A physician
answers to this normalized reference point, not to the WWWD
standard of medical care: "He is obliged to conform to the
accepted standard of reasonable care, but he is not liable for
failing to exercise an extraordinary degree of care." Id.
(emphasis added).
¶274 Other courts reject self-referential standards of
medical care, too. Massachusetts says that "[b]ecause the
standard of care is based on the care that the average qualified
physician would provide in similar circumstances, the actions
that a particular physician, no matter how skilled, would have
taken are not determinative." Palandjian v. Foster, 842
N.E.2d 916, 920-21 (Mass. 2006). The Michigan Supreme Court
recently addressed this issue in Elher v. Misra, 878 N.W.2d 790
(Mich. 2016) (per curiam). It rejected the proffered expert's
testimony because "his opinion was based on his own beliefs,
there was no evidence that his opinion was generally accepted
within the relevant expert community, there was no peer-reviewed
medical literature supporting his opinion, plaintiff failed to
provide any other support for [the expert's] opinion, and
defendants submitted contradictory peer-reviewed literature."
Id. at 798 (emphasis added). California has long recognized
that "the fact that another physician or surgeon might have
elected to treat the case differently or use methods other than
8
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those employed by defendant does not of itself establish
negligence." Lawless v. Calaway, 147 P.2d 604, 607 (Cal. 1944).
The District of Columbia says that "[t]he personal opinion of
the testifying expert as to what he or she would do in a
particular case, without reference to a standard of care, is
insufficient to prove the applicable standard of care." Travers
v. District of Columbia, 672 A.2d 566, 568 (D.C. 1996). South
Carolina's court of appeals has similarly stated that if an
expert "merely testifies as to his own personal standard of
care, rather than the generally recognized and accepted standard
of care, such testimony is insufficient to survive summary
judgment." Melton v. Medtronic, Inc., 698 S.E.2d 886, 893 (S.C.
Ct. App. 2010). In Wallbank v. Rothenberg, 74 P.3d 413, 416
(Colo. Ct. App. 2003), the Colorado Court of Appeals said that
"a standard of care may not be established by the testimony of
the personal practices of expert witnesses." Georgia also
follows this rule: A party "may not establish the applicable
standard of care with evidence of an expert witness's personal
practices, or evidence about the course of conduct the expert
would have followed under similar circumstances." Dendy v.
Wells, 718 S.E.2d 140, 144 (Ga. Ct. App. 2011). Arizona's court
of appeals recognizes that testimony regarding a physician's
personal practices can be useful to the jury, but only after the
standard of care is established. See Smethers v. Campion, 108
P.3d 946 (Ariz. Ct. App. 2005).5
5
Treatises reflect the same principles. See, e.g., 29
Charles Alan Wright & Victor Gold, Federal Practice & Procedure:
(continued)
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¶275 Nor may physicians smuggle their own practices or
preferences past the Daubert gatekeeper by box-checking expected
phrases. Missouri's court of appeals provided the only logical
response to such an effort. It reasoned that "[i]n articulating
the appropriate legal standard of care, it is insufficient for
an expert merely to use the terms 'accepted medical standards'
or 'standards of care.'" Sheffler v. Arana, 950 S.W.2d 259, 267
(Mo. Ct. App. 1997). Instead, the court said "an expert should
be properly oriented with the meaning of negligence in a health
care provider context and, in fact, employ the legal standards
in offering his opinion." Id. The court recognized that "[t]he
purpose of these requirements is to prevent experts from relying
upon their own views of acceptable practice rather than applying
the objective legal standards." Id.
¶276 Our cases, and those across the country, teach us that
a proper standard of medical care is one that is "approved,"
"generally recognized," "customary," "generally accepted," or
"objective," and that describes skills "usually possessed" by a
physician in the relevant field of practice. However one
chooses to synthesize this into a single descriptor, the
manifest import is that a standard of medical care exists
Evidence § 6268.1 (2d ed. 2016) ("In a non-scientific context,
the reliability of an expert's methodology often will be a
function of accepted practice in the area of expertise in
question."); 5 D.W. Louisell & H. Williams, Medical Malpractice
§ 29.01, at 29–7 (2005) ("The standard is measured against what
a reasonably prudent practitioner in the defendant's position
would do, not what any individual physician or physicians might
do.").
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separately and apart from the testifying expert, it is
widespread within the relevant medical community, it has gained
at least some acceptance, and it is legitimate to charge a
reasonably qualified physician with its knowledge.
2
¶277 Doctor Wener did not identify such a standard. One of
the consequences of not requiring the expert to focus on an
external, generally-known standard is that the resulting
testimony resolves into a self-portrait. As the circuit court
and the lead opinion's characterization of his testimony
demonstrate, that is largely what happened here:
• "Dr. Wener formulated an opinion about the
standard of reasonable care of family practice doctors
practicing obstetrics on the basis of his
experiences. . . ." Lead op., at ¶103.
• Dr. Wener's methodology consisted of the
"conscientious use of the thousands of instances in
which he had delivered babies and made decisions about
the care of individual patients and his teaching and
hospital experiences relating to obstetrics." Lead
op., at ¶105.
• "[E]ssentially a comparison of the instant case
to other deliveries . . . ." Lead op., at ¶106.
• "He used his many experiences to arrive at an
opinion in the instant case that is sufficiently
similar to his vast array of clinical experiences over
decades of practice." Lead op., at ¶107.
• "The circuit court ruled that Dr. Wener's
methodology was reliable based on Dr. Wener's
extensive personal experiences." Lead op., at ¶109.
¶278 A review of the transcript confirms the accuracy of
these characterizations. Here, for example, is the closest Dr.
Wener came to establishing any standard of medical care with
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respect to use of a vacuum to assist in the delivery of young
Seifert:
My opinion is that the standard of care required that
a vacuum not be applied on this child at all. Because
of the risk factors already established for shoulder
dystocia, and knowing that the vacuum is the largest
of the risk factors, you're adding a major risk factor
on top of that. And in my opinion that's why the baby
had a severe brachial plexus injury.
That may or may not be a proper standard of medical care, but
because he never described how he goes about discovering such
standards, this ends up as the type of ipse dixit that Sheffler
properly rejected.
¶279 With respect to whether Dr. Balink should have
performed an ultrasound immediately before young Seifert's
birth, Dr. Wener said: "I would have known that an ultrasound——
assuming it's done within the standard of care——would have been
within 10 to 15 percent off. And [with] a baby that's 9 pounds
12 ounces, [an] ultrasound would have shown a macrosomic
infant." This is two steps removed from establishing a standard
of medical care. First, he is simply describing what he knows.
And second, he says nothing about whether this knowledge
necessarily means an ultrasound should have been done
immediately before birth to meet the applicable standard of
medical care. And if he believes this is what is required to
meet the standard, he has offered nothing to establish how he
knows this is, in fact, the standard.
¶280 Dr. Wener's testimony reveals he is impressively
qualified along the vertical axis; his experience and knowledge
are deep, deep. Surely this is the physician one would want in
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attendance when faced with the Seiferts' situation. But his
testimony along the horizontal axis was almost non-existent.
What he described was what he would have done had he been the
attending physician. That is, he testified that the relevant
standard of medical care was WWWD; he told us little about what
a reasonably qualified family practitioner ought to have done
for the Seiferts. Consequently, the jury received the case
without knowing the proper standard against which to compare Dr.
Balink's performance. And that is why we still do not know
whether Dr. Balink negligently delivered young Seifert.
B
¶281 So now I arrive at the subject that gave rise to our
consideration of this case: Dr. Wener's qualification under
Wis. Stat. § 907.02 to testify about his opinions. This statute
contains both subjective and objective criteria, both of which
he must satisfy before giving his thoughts to the jury:6
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
6
I use the terms "subjective" and "objective" in their
grammatical sense. These terms separate the one testifying (the
subject) from the thing about which the subject is testifying
(the object). So the subjective element of Wis. Stat. § 907.02
inquires into Dr. Wener's qualifications, while the objective
element concentrates on the thing about which he testifies (the
standard of medical care).
13
No. 2014AP195.dk
Wis. Stat. § 907.02(1).
¶282 On the objective criterion, Dr. Wener may testify if
his opinions are "based upon sufficient facts or data, the
testimony is the product of reliable principles and methods, and
the witness has applied the principles and methods reliably to
the facts of the case." Id. With respect to the subjective
criterion, he must be "qualified as an expert by knowledge,
skill, experience, training, or education." Id.
1
¶283 I have already addressed the objective criterion——it
is the standard of medical care. In the context of this case,
"facts or data" are situations like the Seiferts' and how
reasonably qualified family practitioners respond to them. The
"reliable principles and methods" are the means by which a
qualified expert informs himself of those facts and data. As
described above, Dr. Wener offered no such testimony. He did
not offer testimony about the skills usually possessed by family
practitioners who deliver babies. He did not tell us what the
"generally accepted" practices might be, what is "approved," or
"generally recognized," or "customary." Nor did he say anything
about the "principles and methods" he used to discover that
information. Instead, he offered himself——a supremely qualified
obstetrician——as the standard of medical care. The result was a
conflation of the objective and subjective criteria.
¶284 This was a mistake for two reasons. First, by
allowing Dr. Wener to become the standard against which to
measure Dr. Balink's performance, we eliminate the concept of a
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No. 2014AP195.dk
consistent and knowable standard against which to measure a
physician's performance. It's WWWD this time. But the
plaintiffs in the next malpractice case might employ a different
expert witness, thereby establishing a new standard. So as a
practical matter, no one will know the "standard" of medical
care until the plaintiffs reveal their expert witness.
¶285 Second, even if it is appropriate to pick a specific
doctor and make his practices the touchstone, as opposed to an
objectively-verifiable standard external to the expert, we
allowed the plaintiffs in this case to pick the wrong doctor.
Dr. Wener is an obstetrician. Dr. Balink is a family
practitioner. The standard of medical care expected of each are
not the same. We must assess a physician's conduct in the
context of the field in which she practices. Phelps v.
Physicians Ins. Co. of Wis., Inc., 2005 WI 85, ¶40, 282
Wis. 2d 69, 698 N.W.2d 643. This is such an embedded principle
in our law that it even appears in our pattern jury
instructions:
In (treating) (diagnosing) (plaintiff)'s (injuries)
(condition), (doctor) was required to use the degree
of care, skill, and judgment which reasonable (doctors
who are in the general practice) [or] (specialists who
practice the specialty which (doctor) practices) would
exercise in the same or similar circumstances, having
due regard for the state of medical science at the
time (plaintiff) was (treated) (diagnosed). A doctor
who fails to conform to this standard is negligent.
The burden is on (plaintiff) to prove that (doctor)
was negligent.
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No. 2014AP195.dk
Wis. JI——Civil 1023 (emphasis added). So if the expert himself
is to be the standard, we should at least require that he is
from the same field of practice.7
¶286 Dr. Wener's testimony neither identified a standard
external to himself, nor did it describe what we should expect
of a family practitioner, as opposed to an obstetrician. His
testimony should have been excluded because it did not satisfy
the objective criterion of Wis. Stat. § 907.02. Not because he
was unqualified to testify about what he would have done had he
been the attending physician (no one is better qualified to
offer that testimony), but because in the main he did not
describe what we may expect of reasonably qualified family
practitioners, and so failed to satisfy the objective criterion.
2
¶287 I say Dr. Wener did not describe the required standard
"in the main" because there were a few pieces of testimony that
contained the seed of such a standard. For example, with
respect to when a three-hour glucose test should be conducted
based on the results of the one-hour glucose screening, Dr.
Wener said the following:
Q: You're also aware that some, as you mentioned some
people use a 140?
7
If the expert offers proper testimony——that is, a standard
of medical care external to himself——then it is not necessary
that he come from the same field of medical practice as the
physician in question. Thus, if Dr. Wener can demonstrate he
has the requisite knowledge to identify and describe the
standard of medical care applicable to family physicians in
these circumstances, there is no reason he could not qualify as
an expert.
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No. 2014AP195.dk
A: Yes.
Q: [O]f what significance was it that the glucose
tolerance one hour testing revealed to be 131?
A: Well 131 is abnormal. By 2009, those providing
obstetrical care were using 130. For many, many years
prior to that it had been 140. And then probably
around the turn of the century . . . changed to 130.
And by 2009 most everyone was using 130. . . . And to
use 140 as a cut off is not the right number.
This, of course, is just one piece of information that goes into
describing what a reasonably qualified doctor would do for the
Seiferts (although whether it describes the "cut-off" family
practitioners, as opposed to obstetricians, were using as of
2009 cannot be determined from the testimony).
¶288 If this seed had matured into a fully-formed objective
standard applicable to family practitioners, we would ask
whether Dr. Wener satisfied the subjective criterion of Wis.
Stat. § 907.02. We do so by looking to his "knowledge, skill,
experience, training, or education." Id.
¶289 But we would not look at those qualities in a vacuum——
we would be interested in them insofar as they bear on the
objective criterion (the standard of medical care). That is, we
must allow the standard of medical care to focus our attention
on the type of background we should require of the proffered
expert witness. In this case, we would ask not whether Dr.
Wener is a well-qualified obstetrician (he is). We would
instead ask whether he has the knowledge, experience, training,
or education necessary to search out and describe the standard
of medical care we may reasonably expect a family practitioner
to meet.
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No. 2014AP195.dk
¶290 The background required by the subjective criterion
may not be as obvious as it might appear. As much as we wish
the practice of medicine to be a scientific endeavor, it
inescapably encompasses a substantial amount of art. And to the
extent it is a science, it is nonetheless constantly developing
and evolving. All physicians learn the practice of medicine in
(presumably) the same general sense——they attend medical school.
But the United States has 147 medical schools,8 and it is
reasonable to expect that each will offer instruction that
varies in technique, emphasis, expertise, and extent. The
current result of those natural variations is over 900,000
practicing physicians9 spread amongst 5,600 hospitals10 and many
additional smaller clinics and offices.
¶291 Theoretically, those initial variations could amplify
once the physician begins his practice and encounters new
methods, analyses, equipment, or experiences. Or, conversely,
they could dampen as the hospitals and other centers of practice
8
About the AAMC, Assoc. of Am. Med. Colleges (last visited
Jan. 3, 2017), https://www.aamc.org/about.
9
Total Professionally Active Physicians, The Henry J.
Kaiser Family Found. (last accessed Jan. 3, 2017),
http://kff.org/other/state-indicator/total-active-
physicians/?currentTimeframe=0&selectedRows=%7B%22nested%22:%7B%
22all%22:%7B%7D%7D,%22wrapups%22:%7B%22united-
states%22:%7B%7D%7D%7D&sortModel=%7B%22colId%22:%22Location%22,%
22sort%22:%22asc%22%7D (stating that in September 2016 there
were 926,119 practicing physicians in the United States).
10
Fast Facts on US Hospitals, Am. Hosp. Ass'n (Jan. 2016),
http://www.aha.org/research/rc/stat-studies/fast-facts.shtml
(stating that in January 2016 there were 5,627 U.S. hospitals
registered with the American Hospital Association).
18
No. 2014AP195.dk
impose some measure of uniformity on practitioners. Whichever
it is, the result is the same——there is no obvious playbook to
which we, or a practitioner, may readily resort to determine
what "ought" to be done in every given circumstance. The
"ought" is out there, but courts and juries are not equipped to
identify it on their own. That is why we need experts to sift
through all the different ways in which physicians treat their
patients, the extant literature on the subject at hand (if any),
and information from any other potentially instructive source,
to identify the common threads with which to stitch together a
standard of medical care.
¶292 The background required to do a competent job of such
sifting and identifying is not necessarily the same as the
background that leads to successful, injury-free deliveries of
babies like young Seifert. This case calls for an expert who is
familiar with the type of training and experience typical of
family practitioners (not obstetricians), the type of equipment
available to them, the tests and diagnostic procedures they
commonly employ, and their practical responses to situations
like that of the Seiferts. This is a background that reflects a
broadly horizontal outward focus——what do others know, and
experience, and do? It may be that Dr. Wener has that kind of
background and knowledge, but he did not speak of it in this
case.
¶293 This division between subjective and objective
criteria is essential to the rule of law as it relates to
negligence, especially in the context of medical malpractice.
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When the Seiferts asserted their cause of action against Dr.
Balink, the import of their claim was that there existed a
knowable standard of medical care and that she failed to conform
to that standard when she delivered young Seifert. Dr. Balink
did not know that a court, sometime in the future, would decide
that the standard governing her conduct would be WWWD. And
there is no apparent reason why she should have known that.
¶294 To the extent the lead opinion concludes that a
person's personal experience can qualify him as an expert
witness for the purpose of testifying about a standard of
medical care, I have no dispute. But because our pencil was not
sharp enough in answering that question, the holding we announce
today is that an individual doctor's personal experience can be
the standard of medical care.
¶295 And for that reason, I respectfully dissent.
¶296 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this dissent.
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1