Bryan Hellenbrand v. Air Temperature Services, Inc.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 9, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP2216 Cir. Ct. No. 2020CV2107
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
BRYAN HELLENBRAND,
PLAINTIFF-RESPONDENT,
WESTERN NATIONAL MUTUAL INSURANCE COMPANY,
INVOLUNTARY-PLAINTIFF-RESPONDENT,
V.
AIR TEMPERATURE SERVICES, INC. AND
CINCINNATI INSURANCE COMPANY,
DEFENDANTS-APPELLANTS,
WEST BEND MUTUAL INSURANCE COMPANY,
DEFENDANT.
APPEAL from a judgment of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed.
No. 2022AP2216
Before Kloppenburg, P.J., Blanchard, and Graham, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. While working as a carpenter at an industrial
facility, Bryan Hellenbrand was struck in the head by a portion of ductwork that
fell from where it had been suspended by wire cables from the rafters of the
facility at the same time that employees of Air Temperature Services, Inc. were
working to re-route one section of the ductwork. After Hellenbrand filed this
negligence action, a jury at trial found for Hellenbrand in all of its verdicts. ATS
and its insurer Cincinnati Insurance Company (collectively, “ATS”) appeal,
arguing that the circuit court made erroneous rulings on various evidentiary and
legal issues and that the jury awarded excessive damages. We reject ATS’s
arguments and affirm.
BACKGROUND
¶2 Hellenbrand alleged the following in his complaint and at trial.
While Hellenbrand was employed by 1848 Construction as a carpenter, he was
assigned to work on a project in a large space at Electronic Theatre Controls in
Middleton. Hellenbrand was wearing a hardhat and safely going about his work
on the work space floor.
¶3 At the same time and in the same large space, two employees of
ATS—a company independent from 1848 Construction and Electronic Theatre
Controls—were 25 feet above the floor, working from a scissor lift, and tasked
with disconnecting and re-routing one section of ductwork that was suspended
from the ceiling and measured a total of 50 feet. All six, connected sections of
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ductwork were suspended from the rafters by wire cables, and the cables were held
in place by cable locks, each of which could be opened or closed with the press of
a button. The cable locks were designed to hold a load such as the 50-foot
ductwork only when the load was static (that is, stationary), but the cable-lock
system might not hold when the ductwork became dynamic (that is, moving),
because the cable locks could open under dynamic conditions, releasing the cables
and thus allowing loads to fall.
¶4 Hellenbrand further alleged that the two ATS employees, David
Scheel and Zach Reed, had inadequate individual and combined experience and
training for the task they were assigned. Scheel and Reed improperly caused a
portion of the 40 feet of ductwork that extended beyond their immediate work area
to fall. More specifically, Scheel cut one of the wire cables with wire cutters, and
this caused the entire ductwork to become a dynamic load that the rest of the
cables could no longer hold, causing a cascading failure along the ductwork. Put
differently, the fluctuating load caused the release of one cable lock after another,
freeing the wire cables and allowing part of the ductwork to fall. Falling ductwork
struck Hellenbrand in the head, fracturing his skull and causing bleeding in the
brain; this resulted in permanent, serious brain injuries such as memory loss and
vertigo.
¶5 Hellenbrand alleged that ATS was directly negligent in failing to
properly train and supervise its employees on the job and also negligent through
its employees in failing to properly and safely execute the duct section removal
and re-routing. ATS understood the risks but failed to take the steps that would
have prevented the ductwork from falling in the first place, and it also failed to
take steps that would have prevented injuries to people such as Hellenbrand in the
event that the ductwork did start to fall.
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¶6 Turning to ATS’s trial theory, it contended the following.
Hellenbrand was injured in an unavoidable, unforeseeable accident. Scheel and
Reed removed the 10-foot section of the ductwork in a proper and reasonable way
that complied with all industry standards of care, regulations, and codes, such as
standards set by the federal Occupational Safety and Health Administration.
While it is true that one of the wire cables supporting one section was cut during
their work, the cut cable was one of the two that supported the particular 10-foot
section that Scheel and Reed were working with and this was a reasonable and
safe way for them to execute their tasks. Further, Scheel and Reed did not cause
the extended portion of the ductwork to fall on Hellenbrand, who was working on
the floor 40 feet from where Scheel and Reed were working, as measured by the
distance across the floor from the base of the scissors lift to Hellenbrand.
Specifically, the movement caused by Scheel and Reed to the 40-foot portion of
ductwork that extended beyond their work area was virtually nonexistent and
Hellenbrand’s theory as to what caused the 40-foot portion to fall rested on mere
speculation. In addition, given the 40-foot distance, under the proper standard of
care ATS was not required to cordon off or place signage in the area of the floor
where Hellenbrand was working at the time of the accident.
¶7 On the topic of Hellenbrand’s injuries, ATS acknowledged that the
injuries were serious and debilitating. ATS contended, however, that by the time
of trial Hellenbrand had made a remarkable recovery and had returned to his job,
without suffering a loss of future earning capacity.
¶8 The jury returned the following verdicts. ATS, through its
employees, was negligent and its negligence was a cause of Hellenbrand’s
injuries. The following sums of money would fairly and reasonably compensate
Hellenbrand, beyond his damages for past health care expenses and past wage
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loss:1 future loss of earning capacity, $550,000; past pain, suffering, and
disability, $3 million; and future pain, suffering, and disability, $6 million.
¶9 ATS filed motions after verdict, making the same arguments that it
raises now on appeal, and the circuit court denied those motions.
¶10 We provide additional background in the Discussion section as
necessary to resolve the specific issues raised on appeal.
DISCUSSION
¶11 As a threshold matter, we note that the ATS briefing on appeal
contains numerous references to the possible remedy of a mistrial, but none of
these many references have a chance of success because it is not disputed that
ATS failed at any time during the trial to move for a mistrial. Hellenbrand quotes
the settled rule that a party cannot claim an error that warrants a mistrial unless the
party moved for a mistrial at trial. See Mulkovich v. State, 73 Wis. 2d 464, 469,
243 N.W.2d 198 (1976). ATS’s only reply on this point is to cite case law that has
nothing to do with mistrials, namely, State v. Bergeron, 162 Wis. 2d 521, 528-29,
470 N.W.2d 322 (Ct. App. 1991) (a motion in limine based on an argument is
sufficient to preserve for purposes of appeal an objection to the admissibility of
evidence based on that argument; contemporaneous objections are not necessary).
The remedy of a mistrial is off the table.
1
Based on stipulations between the parties, the circuit court instructed the jury that
Hellenbrand’s past health care expenses were $273,550.17 and that his past wage loss was
$22,456.50.
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No. 2022AP2216
¶12 Most notably, ATS purports to raise five specific issues under the
“mistrial” rubric, but after Hellenbrand argues that ATS forfeited each of these
five specific arguments by failing to lodge objections at trial, to request a mistrial,
or to raise the issues in a motion after verdict, ATS concedes the point through
silence in its reply brief, including on the topic of whether these issues could have
been preserved through motions in limine or timely objections. See United Coop.
v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578(appellant’s failure to respond in reply brief to an argument made in response brief
may be taken as a concession). For that reason, we reject each of those five
specific arguments and we do not further refer to the mistrial concept or any
argument based on it.
¶13 Turning to the legal background here, it is relevant to several issues
raised on appeal that Hellenbrand had to show the following four elements to
establish his common law negligence claim: (1) that ATS had a duty of care;
(2) that ATS breached this duty; (3) that there was a causal connection between
ATS’s conduct and Hellenbrand’s injury; and (4) that there was an actual loss or
damage as a result of the injury. See Coffey v. City of Milwaukee, 74 Wis. 2d
526, 531, 247 N.W.2d 132 (1976).
I. CAUSATION-RELATED ISSUES
¶14 Regarding the third element that Hellenbrand was required to prove,
causation, ATS makes a series of assertions that generally involve references to
testimony by engineer Lester Engel, called by Hellenbrand at trial, with passing
references to Robert Wozniak, another engineer called by Hellenbrand at trial.
These assertions include that the circuit court erred in denying ATS’s motions to
preclude testimony by Engel and Wozniak addressing causation and that the court
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No. 2022AP2216
should have granted ATS’s motions for a directed verdict, as well as motions after
verdict, based on the alleged lack of proof of causation.
¶15 We observe generally that ATS’s causation-related arguments are all
either undeveloped or underdeveloped. Counsel for ATS appears to operate under
the mistaken impression that an issue is sufficiently briefed on appeal if a party
makes some potentially relevant references that we theoretically could, on our own
initiative, analyze under the proper legal standards—as opposed to presenting us
with developed arguments that pull together all relevant facts and law. This is
incorrect. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992) (This court may decline to review issues that are inadequately briefed.);
State v. Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999) (This
court typically will not scour the record to develop viable, fact-supported legal
theories on an appellant’s behalf.). With that caveat, we now identify and address
discernable issues as best we can.
A. Additional Background
1. Engel
¶16 Engel testified to the following regarding his background. He is a
professional engineer, and he specializes in metallurgy and failure analysis. He
has a Master of Science degree in metallurgical engineering. He started
performing failure analysis in 1969 while working in the aircraft engine group at
the General Electric Company. Starting in 1983 and continuing to the time of trial
here, he had run his own firm, which had performed “thousands” of failure
analyses for industrial clients, attorneys, and insurance companies.
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No. 2022AP2216
¶17 Engel further testified that, after counsel for Hellenbrand asked him
to investigate the accident here, he reached relevant opinions by following
standard protocols in the fields of metallurgy and failure analysis. This included
reviewing: photographs of the scene; investigation reports and diagrams created
by the ATS safety manager, Ryan Dodge; and transcripts of witness depositions.
Engel also inspected component parts involved in the accident and conducted
research regarding the parts, including the wire cables that held the ductwork in
place before part of it fell.
¶18 In a pretrial motion, ATS argued that, under WIS. STAT. § 907.02(1)
(2021-22) and case law interpreting that evidentiary rule, Engel should not be
permitted to give expert testimony amounting to “mechanical engineering
testimony and opinions that fall outside his field of expertise [of metallurgy], [that
are] are not sufficiently based in fact, and [that] constitute inadmissible ipse
dixit.”2 See State v. Hogan, 2021 WI App 24, ¶26, 397 Wis. 2d 171, 959 N.W.2d
658 (interpreting § 907.02(1)).3 The circuit court ruled that Engel was “able to
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
3
WISCONSIN STAT. § 907.02(1) provides:
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.
This statute adopts the federal “reliability” standard developed in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), which is codified by Federal Rule of Evidence 702.
State v. Hogan, 2021 WI App 24, ¶18, 397 Wis. 2d 171, 959 N.W.2d 658.
8
No. 2022AP2216
render opinions on metallurgical issues; and to an extent, based upon the
experience that he has, to also provide … what I would call some limited
mechanical engineer opinions.” On this basis, the court denied the motion to
exclude Engel’s testimony, but invited ATS to consider renewing its objection
during trial, depending on the specific nature of the testimony.
¶19 At trial, Engel opined to the following to a reasonable degree of
metallurgical and failure analysis certainty. Scheel, while working on the
ductwork from the elevated scissor lift, cut a wire cable that held up one section of
the ductwork, and that when he did this, it “was just enough to upset the balance in
the whole assembly of that ductwork hanging with all of those wire” cables. The
load became dynamic, which in turn caused the remaining wire cables to slip out
of their cable locks, with the result that part of the duct fell to the floor and onto
Hellenbrand. The wire cables “did not fail or separate.” Instead, down the line the
wire cables “just literally pulled out of the little locking mechanism” of each cable
lock.4
¶20 Renewing its pretrial objection at trial, ATS argued that Engel was
not qualified to render these opinions because they did not involve “metallurgical
testimony,” but instead this was “mechanical engineering testimony about load
4
For context, we note that the jury was read the following related caution contained in
literature of the Sheet Metal and Air Conditioning Contractors’ National Association:
“The selection of a hanging system should not be taken
lightly not only because it involves a significant portion of the
erection labor, but also because an inadequate hanging system
can be disastrous. In any multiple hanger system, the failure of
one hanger transfers its load to adjacent hangers. If one of these
fails, an even greater load is transferred to the next. The result
can be a cascading failure in which an entire run of duct might
fall.”
9
No. 2022AP2216
transfers.” Hellenbrand responded that Engel had explained his relevant
background in both metallurgy and failure analysis and that therefore his
testimony involving the wire cables, locks, and his theory of dynamic failure in
this context was admissible. The circuit court overruled the objection.
¶21 Pertinent to the issues that ATS raises on appeal, the circuit court
denied ATS’s motion for a directed verdict at the close of Hellenbrand’s case,
pursuant to WIS. STAT. § 805.14(1), based on a failure to provide proof of
causation, and also denied ATS’s motion after verdict based on the same theory.
2. Wozniak
¶22 Wozniak testified to the following regarding his background. He has
undergraduate and master’s degrees in mechanical engineering and is a licensed
professional engineer specializing in mechanical and safety engineering. By the
time of trial here, he had consulted with insurance companies and law firms
regarding “all types of accidents” for both plaintiffs and defendants in civil cases,
including numerous insurance companies. His professional work over the course
of a 30-year career has been “to answer questions about how accidents happened;
how [they] might have been prevented; give opinions about what happened in an
accident.” This has included construction safety cases, including conducting
“safety hierarchy analysis.”5 In addition, he worked as a mechanic for five years
5
In addition, the circuit court was presented with an affidavit, in which Wozniak averred
the following:
(continued)
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No. 2022AP2216
at a rental center, where he had experience with a mechanical lift that could
elevate workers 20 to 30 feet in the air, and also analyzed several cases involving
Heating Ventilation and Air Conditioning (HVAC) installations, including
systems relying in part on wire cables.
¶23 Wozniak further testified that, at the request of counsel for
Hellenbrand, he reviewed transcripts of witness depositions, other expert reports,
photographs taken of the scene, and diagrams created by ATS safety manager
Dodge. Wozniak also inspected the wire cables and cable locks that had held the
ductwork in place before the accident. He also reviewed the ATS safety manual.
¶24 ATS had a standing objection to all questions posed to Wozniak
regarding safety, safety hierarchy, and safety engineering. ATS also objected that
Wozniak’s testimony lacked a sufficient “foundation.” The circuit court denied
these objections, ruling that Wozniak was sufficiently qualified to opine on the
topics at issue and explaining that ATS failed to persuade the court that ATS’s
objections did not boil down to arguments about the weight that the jury should
give to Wozniak’s testimony.
¶25 Wozniak testified at trial in pertinent part that “well in advance” of
the start of any construction project, a safety director should proceed to identify
possible fall hazards, but in this case ATS did not do that. He based this in part on
In my years as a safety engineer, I have analyzed a wide
variety of cases related to construction and construction failure.
The types of cases include but are not limited to: multiple
personnel lifts (scissors, boom and telehandlers), fall object
protection and fall hazards, scaffolding, roadway construction
accidents, construction site accidents involving ladders, falls and
injuries, including ladder requirements, multiple skidsteer/tractor
construction injuries and maintenance injuries.
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No. 2022AP2216
the basic engineering principle that, if a design hazard cannot be eliminated, then
the designer should take steps to “guard against th[e] hazard” and to “isolat[e]
people from the hazard.” Wozniak testified that he could see no evidence that any
ATS representative, including ATS safety director Dodge, tried to prevent the
falling hazard from occurring.
¶26 In a related vein, Wozniak opined that, if ATS had developed an
appropriate plan to eliminate the hazard of a fall of any part of the 50 feet of
ductwork and to guard against such a hazard, it could have prevented
Hellenbrand’s injury. Based in part on Wozniak’s interpretation of the manual of
the company that manufactured the cable locks, he testified that the wire cable-
lock system holding up the ductwork was designed to hold only “a static load,”
and there was a potential for the locks to open if dynamic forces were applied to
the ductwork. The movements of Scheel and Reed in working on the 10-foot
section, which they physically supported and attempted to remove, together with
their cutting one of the wire cables supporting the ductwork, caused dynamic
forces that travelled “like a zipper down the row,” causing one wire cable after
another to slip out of their respective locks and the ductwork to fall, because all of
the sections were connected and the ductwork as a unit became “overload[ed].”
Regarding the movements of Scheel and Reed, in attempting to complete their
tasks, given the dimensions and configurations of the duct sections and the space
they needed, they had to have caused the entire ductwork to move. In sum, the
activities of Scheel and Reed caused the cables down the line to slip out of their
respective locks, which is the same conclusion that was reached by ATS safety
director Dodge.
¶27 In testifying that, to a reasonable degree of engineering probability,
ATS failed to take reasonable safety steps to prevent the ductwork from falling or
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No. 2022AP2216
to prevent injuries if it did, Wozniak relied in part on a manual that was created by
ATS to address safety issues. For example, the manual stated that “identification
of fall hazards should begin well in advance of” the start of a project, and if a fall
hazard could not be “practically eliminated,” then “consideration shall be given to
implementing effective means of fall prevention.”
B. Daubert motion
¶28 The pertinent legal standards for a Daubert motion are concisely
summarized in Hogan:
WIS[CONSIN] STAT. § 907.02(1) requires the trial court to
determine, by a preponderance of the evidence and
according to whichever criteria it deems appropriate, that
the proffered expert testimony is based on adequate facts
and a sound methodology and is thus sufficiently reliable to
go before a jury. We review that decision for an erroneous
exercise of discretion, meaning we will uphold the trial
court’s ruling where it “consider[ed] the relevant facts,
applie[d] the correct law, and articulate[d] a reasonable
basis for its decision.” This standard is highly deferential:
we will search the record for reasons supporting the trial
court’s decision, and we will sustain a ruling even where
we disagree with it, so long as appropriate discretion was
exercised.
Hogan, 397 Wis. 2d 171, ¶26 (cited cases omitted).
¶29 Regarding Engel, ATS argues that the circuit court’s ruling
permitting him to testify is subject to our de novo review because, according to
ATS, the court did not make a pretrial ruling and thereby failed to apply the proper
standards under WIS. STAT. § 907.02(1). But this is inaccurate. As summarized
above, the court denied ATS’s pretrial motion to bar testimony by Engel, invited
ATS to consider renewing its motion at trial if the circumstances called for it, and
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No. 2022AP2216
then (when ATS renewed the objection when Engel testified) affirmed its pretrial
ruling.
¶30 In a largely conclusory and unsupported manner, ATS asserts that
the circuit court “did not consider facts of record that overwhelmingly
demonstrated the speculative nature of Engel’s and Wozniak’s causation
opinions.” We reject this assertion and affirm under the correct standard of
review. It is sufficient to note the following.
¶31 In a single sentence that does not appear in an argument section of
its briefing, ATS suggests that the circuit court erroneously exercised its discretion
in allowing Engel to testify because he lacked a sufficient background in
mechanical engineering and lacked specific information about “the weight of the
ductwork,” “the specific location of any given cable along the line of ductwork[,]
or how the cables were spaced or positioned, and performed no calculations
concerning the weight of the ductwork or the forces at play in the system.” ATS
makes a similar assertion regarding Wozniak. However, ATS generally fails to
explain what calculation or calculations were necessary or more specifically
explain why the lack of discussion of a particular calculation was fatal to the
opinions of Engel or Wozniak. That is, if a missing mathematical formula or
physics principle was needed, ATS’s briefing does not tell us what that might have
been. More generally, ATS fails to flesh out its assertions by explaining why
either Engel’s or Wozniak’s engineering education, training, and experience,
summarized above, were insufficient, and also fails to explain why the kinds of
information to which it now only generically alludes was necessary to support the
particular opinions that either gave.
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No. 2022AP2216
¶32 Regarding Wozniak, ATS selectively quotes one line of testimony in
which Wozniak said that he did not know “exactly” how the accident occurred, but
then fails to come to grips with the many times that Wozniak provided a coherent
explanation of how he believed it occurred, summarized above.
¶33 Stepping back, ATS attempts to suggest that the shared causation
theory endorsed by Engel and Wozniak, summarized above, was illogical or
required detailed calculations, but it does not provide a basis for those suggestions.
To the contrary, the shared theory appears on its face to be coherent and consistent
in explaining how a portion of 50 feet of connected ductwork could slip out of its
only supporting elements—cable wires strapped around the ductwork and held in
place by cable locks that can release under dynamic conditions—when the jury
had available evidence from which it could find that dynamic forces were applied
to the ductwork. This defeats ATS’s thinly developed assertion that the experts
relied only on “ipse dixit”-style reasoning in a dogmatic or illogical manner.
C. Motion for directed verdict & motion after verdict
¶34 ATS asserts that the circuit court should have granted its motion for
a directed verdict made at the close of Hellenbrand’s case, and granted the motion
after verdict, due to the lack of a valid causation theory. More specifically,
regarding the motion after verdict, ATS argues that the court was obligated to
change the jury’s causation verdict from “yes” to “no.”
¶35 A motion for a directed verdict challenges the sufficiency of the
evidence. Emer’s Camper Corral, LLC v. Alderman, 2019 WI App 17, ¶14, 386
Wis. 2d 592, 928 N.W.2d 641, aff’d, 391 Wis. 2d 674, 943 N.W.2d 513 (2020). A
circuit court may grant the motion only if it “is satisfied that, considering all
credible evidence and reasonable inferences therefrom in the light most favorable
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No. 2022AP2216
to the party against whom the motion is made, there is no credible evidence to
sustain a finding in favor of such party.” WIS. STAT. § 805.14(1). Given the
circuit court’s superior position to assess the weight and relevance of trial
testimony, we give substantial deference to circuit court rulings and will not
overturn a decision “unless the record reveals that decision was ‘clearly wrong.’”
Emer’s, 386 Wis. 2d 592, ¶14 (quoted source omitted).
¶36 ATS asserts that we should apply a de novo standard of review to the
directed verdict issue, but it completely fails to support that assertion and on that
basis we reject it.
¶37 “When considering a motion to change the jury’s answers to verdict
questions, we view the evidence in the light most favorable to the verdict and
affirm the verdict if it is supported by any credible evidence.” Kubichek v.
Kotecki, 2011 WI App 32, ¶14, 332 Wis. 2d 522, 796 N.W.2d 858; see also WIS.
STAT. § 805.14(1). “The standard of review is even more stringent where, as here,
the [trial] court upheld the jury’s findings on motions after verdict.” Kubichek,
332 Wis. 2d 522, ¶14. We will uphold the jury’s verdict absent “‘a complete
failure of proof [such] that the verdict must be based on speculation.’” Id.(quoting Coryell v. Conn, 88 Wis. 2d 310, 315, 276 N.W.2d 723 (1979)).
¶38 ATS argues that the circuit court was obligated to grant the motion
for a directed verdict and the motion to change the jury’s causation finding based
on Engel’s testimony because the court erred in not accepting the following
argument by ATS: Engel should not have been allowed to testify, and
Hellenbrand failed to establish causation, because there was not a “chain of
custody” sufficient to support the proposition that the particular wire cable that
Engel “tested and that he contended Scheel cut … was in fact the cable [that]
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No. 2022AP2216
Scheel cut [to begin] the chain reaction whereby the [cable locks] gave way.”
Instead, ATS argues, the court should have determined that, while the cable that
“Engel tested … was labeled Cable No. ‘2,’” Engel merely “speculatively
assumed without supporting evidence that [Cable No. 2] was the 3rd cable from
the left [that] Scheel supposedly cut.”6
¶39 However, Scheel testified that the third wire cable from the left
“snapped” at a key moment, relative to the ductwork portion that fell to the floor,
when Scheel and Reed were removing the 10-foot duct section. ATS does not
persuade us that the circuit court could not properly allow the jury to consider
crediting Engel’s testimony, and for that matter Wozniak’s similar testimony, to
the effect that the event that Scheel testified as involving a “snap” of the wire
cable was in fact the intentional cutting of that cable (the one that Engel testified
he had tested), which would have been a finding consistent with the jury’s liability
findings.
¶40 Regarding ATS’s “chain of custody” argument, the jury heard
testimony to the following effect. After the accident, all of the wire cables on the
scene (by then, some were lying on the floor but most were still suspended from
the rafters) were collected by ATS employees and delivered to the president of
Hellenbrand’s employer, 1848 Construction, who secured them and then made
them available to the parties for inspection. Given this evidence, ATS does not
persuade us that the circuit court erroneously exercised its discretion in
determining that ATS’s concerns about the wire cables as evidence could be
6
The “from the left” reference is based on a side-view orientation as one faces the
ductwork when the portion that fell and struck Hellenbrand is on the right and the section of the
ductwork that Scheel and Reed were working on is on the left.
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No. 2022AP2216
satisfactorily addressed through whatever cross examination ATS decided to pose,
and that ATS’s objection involved a dispute over the weight that the jury should
give to testimony regarding the wire cables and not to the admissibility of any
such testimony. “The law with respect to chain of custody issues requires proof
sufficient ‘to render it improbable that the original item has been exchanged,
contaminated or tampered with.’” State v. McCoy, 2007 WI App 15, ¶9, 298
Wis. 2d 523, 728 N.W.2d 54 (quoted source omitted). “A perfect chain of custody
is not required. Alleged gaps in a chain of custody ‘go to the weight of the
evidence rather than its admissibility.’” Id. (citation and quoted source omitted).
II. DUTY OF CARE-RELATED ISSUES
¶41 To repeat, the first two elements that Hellenbrand was required to
prove were that ATS had a duty of care and that it breached that duty. See Coffey,
74 Wis. 2d at 531. Regarding these elements, ATS briefly suggests that, “[g]iven
the Daubert violations and the complete lack of expert testimony establishing
standards of care, the circuit court erred in denying [ATS’s] motion to change” the
jury’s answer to the negligence question from “yes” to “no.” The closest that ATS
comes to presenting a developed argument on this topic is to argue that Wozniak’s
testimony regarding ATS’s alleged breach of a standard of care was inadmissible
and without substance; to the extent that ATS intends to make other arguments, we
deem them insufficiently developed to warrant consideration. We now address
ADS’s somewhat developed standard-of-care argument regarding Wozniak’s
testimony.
¶42 ATS’s primary challenge to Wozniak’s testimony is to assert that the
circuit court failed to recognize that his testimony was not admissible because of
the following: Wozniak lacked sufficient training or experience in cases involving
18
No. 2022AP2216
wire cable locks or HVAC systems; he did not review HVAC industry codes or
regulations, governmental standards, or federal Occupational Safety and Health
Administration standards in arriving at his negligence opinions; and instead he
relied on his review of ATS’s own safety manual, 1848 Construction’s manual,
and literature from the maker of the cable locks.
¶43 We agree with Hellenbrand that the circuit court did not err as a
matter of law in rejecting ATS’s argument that Wozniak had to show evidence of
training and experience in the specific areas of cable locks or HVAC installation
or design to give the testimony that he gave. See Karl v. Employers Ins. of
Wausau, 78 Wis. 2d 284, 297, 254 N.W.2d 255 (1977) (“the law traditionally has
permitted limited testimony of a medical nature by one not licensed as a medical
doctor, if he is, in fact, qualified as an expert” (citation and quotation marks
omitted)); Wester v. Bruggink, 190 Wis. 2d 308, 319-20, 527 N.W.2d 373 (Ct.
App. 1994) (“[W]hether a witness qualifies to testify as an expert depends on the
witness’s background, education[,] and experience rather than a particular label.”).
The background we have summarized above was sufficient to support the court’s
ruling that he could offer opinions regarding fall hazards and protections at a
construction site, whether the danger at issue arises from potentially falling
ductwork or instead some other type of object.
¶44 ATS refers to “the HVAC standard of care,” but that misses the
target. This case does not involve a failure involving the operation of the HVAC
system, which might have required HVAC-system-specific knowledge. Instead,
this was a failure involving materials that were suspended from the ceiling and a
work project that allegedly caused connected sections to fall. Further, ATS fails to
support an argument, based on relevant citations to the record and legal authority,
19
No. 2022AP2216
that Wozniak relied on any improper source in reaching the opinions he gave,
separate from ATS’s evidentiary arguments that we reject in the next section.
III. EVIDENTIARY DECISIONS
¶45 ATS refers to some evidentiary decisions made by the circuit court,
which we identify and address in turn.7
¶46 Circuit court decisions to admit or exclude evidence are reviewed for
erroneous exercises of discretion. Allsop Venture Partners III v. Murphy
Desmond SC, 2023 WI 43, ¶23, 407 Wis. 2d 387, 991 N.W.2d 320. “As long as
the circuit court ‘examined the relevant facts, applied a proper legal standard, and,
using a demonstrated rational process, reached a reasonable conclusion,’ we will
not disturb its ruling.” Id. (quoted source omitted).
Lack of barricade evidence
¶47 ATS argues that the circuit court erroneously exercised it discretion
in permitting evidence that, at the time of the project, it failed to erect a barricade
on the floor of the work space underneath the scissors lift, because the accident
occurred 40 feet away and therefore a barricade under the scissors lift would not
have prevented injury to Hellenbrand.
7
We need not and do not address the merits of one particular evidentiary argument made
by ATS, namely, that the circuit court should not have permitted some testimony by ATS safety
director Dodge. This is because of a concession by ATS through its silence in its reply brief. See
United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578(appellant’s failure to respond in reply brief to an argument made in response brief may be taken
as a concession). Through silence ATS concedes that, as Hellenbrand argues, ATS’s failure to
include this argument in its motions after verdict “constitutes a waiver” of the alleged circuit
court error, regardless of whether a proper objection was lodged at trial. See Ford Motor Co. v.
Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987); Suchomel v. University of
Wisconsin Hosp. & Clinics, 2005 WI App 234, ¶10, 288 Wis. 2d 188, 708 N.W.2d 13.
20
No. 2022AP2216
¶48 When ATS raised this as an issue in a motion in limine, Hellenbrand
raised several objections at a pretrial hearing, which included the concept that
evidence that ATS’s failure to erect a barricade under the lift could be valid
evidence to impeach ATS witnesses on such topics as whether they did or did not
follow all applicable safety rules. The circuit court held its ruling in abeyance, to
allow it to consider the specific testimony or argument that actually surfaced at
trial.
¶49 During the course of trial, ATS renewed the motion. Among the
positions that Hellenbrand took was the following: the absence of a barricade
under the lift could be used to impeach Scheel’s own testimony regarding the
potential for a barricade and what purpose it would have served. The circuit court
agreed that this was a valid topic for impeachment, but invited ATS to consider
submitting a curative instruction to make sure that the jury clearly understood that
ATS’s failure to erect a barricade under the lift could not be considered a cause of
Hellenbrand’s injuries. However, ATS did not request a curative instruction.
¶50 Regarding additional impeachment on this topic, Hellenbrand
impeached ATS safety director Dodge after he testified twice that barricades were
in place around the base of the lift at the time of the accident, before admitting that
this was not the case.
¶51 ATS essentially argues that the circuit court should have understood
that a jury would necessarily have treated evidence on this topic as evidence of
cause, but ATS fails to address the merits of the impeachment rationale for the
admissibility of the evidence or to identify particular testimony that could not be
supported by that rationale. ATS did not take up the court’s invitation to submit a
curative instruction to the jury on this specific point. Further, more generally, we
21
No. 2022AP2216
are not persuaded that the court failed to consider relevant facts, apply a proper
legal standard, and rely on a rational process to reach a reasonable conclusion to
allow this evidence for impeachment purposes. ATS fails to develop an argument
that impeachment was not a proper basis to allow the evidence that was allowed in
the context of the case as it was tried.
Subsequent remedial measures
¶52 ATS asserts that the circuit court misinterpreted WIS. STAT. § 904.07
in allowing Hellenbrand to introduce evidence of subsequent remedial measures
that ATS took.8 We reject this assertion as an argument for the following reason.
¶53 In its opening brief ATS does not even attempt to explain a way in
which the circuit court misinterpreted this statute, when the exceptions to the
general rule of exclusion are taken into account. Indeed, in that brief ATS
completely ignores the rationales that were actually given by the court for these
evidentiary rulings, which relied on the exceptions to the general rule of exclusion,
specifically for situations involving proof of the “feasibility of precautionary
measures, and for impeachment.” In addition, after Hellenbrand directs us to the
8
WISCONSIN STAT. § 904.07 (“Subsequent remedial measures”) provides a general rule
of exclusion and then identifies exceptions to that rule:
When, after an event, measures are taken which, if taken
previously, would have made the event less likely to occur,
evidence of the subsequent measures is not admissible to prove
negligence or culpable conduct in connection with the event.
This section does not require the exclusion of evidence of
subsequent measures when offered for another purpose, such as
proving ownership, control, or feasibility of precautionary
measures, if controverted, or impeachment or proving a violation
of [WIS. STAT. §] 101.11[, the safe place statute].
22
No. 2022AP2216
court’s actual rationales and to record support for the court’s rulings, what comes
back in ATS’s reply brief are merely conclusory assertions.
ATS safety manual
¶54 ATS filed a motion in limine to prevent Hellenbrand from relying on
ATS’s safety manual at trial, arguing that “Wisconsin law is clear that a
company’s safety policies, procedures, manuals, handbooks, these types of things,
do not set the standard of care.” The circuit court implicitly acknowledged the
general rule that such materials should not be relied on for the purpose of setting a
standard of care, unless the materials explicitly embody a proper source of a
standard, such as code provisions. See Johnson v. Misericordia Cmty. Hosp., 97
Wis. 2d 521, 537-38, 294 N.W.2d 501 (Ct. App. 1980) (hospital’s bylaws fell
within a narrow exception to the general rule of exclusion because they were
required by Wisconsin law as part of the licensing procedure that applied to all
hospitals, with the result that “an entire industry or substantially an entire industry
had essentially the same safety regulations.”), aff’d, 99 Wis. 2d 708, 301 N.W.2d
156 (1981). However, the court distinguished between Hellenbrand’s improperly
using the manual as a purported standard of care and his properly using it as an
admission against interest to impeach on the issue of foreseeability. As the court
concisely explained to counsel for ATS:
Because, essentially, if you are arguing this was not a
foreseeable accident but you have a safety manual that talks
about all the ways this is foreseeable, that’s different than
setting a standard of care. That’s impeaching your position
that this was not foreseeable, so I think that the manual can
be used for many different purposes.
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No. 2022AP2216
With that explanation, the court denied the motion to prohibit all references to the
manual, but it also invited ATS to object during trial if Hellenbrand was
attempting improperly to use the manual to set a standard of care.
¶55 ATS’s argument on this issue is difficult to track, but the following
suffices to reject it. ATS inaccurately refers to “[t]he circuit court’s decision to
allow company safety manuals to establish the standard of care.” As just
explained, the court did not make that ruling and it is misleading for ATS to
purport to build an argument on this inaccurate reference. ATS fails to develop an
argument that begins with the proper starting point of what the court actually
ruled. Further, ATS fails to direct us to a place in the record at which ATS took
up the court on its invitation to tell the court that the manual was being used to
establish a standard of care, as opposed to being used to impeach ATS on the
foreseeability issue. Again, we typically do not scour the record to develop viable,
fact-supported legal theories on an appellant’s behalf and we see no reason to do
so on this occasion. See Jackson, 229 Wis. 2d at 337.
Cable lock manufacturer’s literature
¶56 ATS argues that, while in its view the circuit court correctly ruled
that Hellenbrand could not offer into evidence literature created by the
manufacturer of the cable locks at issue, the court failed to properly prevent such
literature from being introduced. In response Hellenbrand presents an argument,
supported by record citations, that ATS’s argument is inaccurate and misleading,
because in fact no such literature was admitted. In reply, ATS essentially retreats
to the following position, which is a stark departure from its initial position on
appeal: despite the fact that there was no contemporaneous objection, it was
improper for the circuit court to allow Hellenbrand’s counsel to briefly ask an
24
No. 2022AP2216
expert retained by ATS to confirm that a statement contained in a publication of
the Sheet Metal and Air Conditioning Contractors’ National Association (quoted
supra, note 3) is also reflected, at least using “similar language,” in literature of
the cable manufacturer.
¶57 Given the way that ATS has briefed this issue, we could reject it on
multiple grounds. It is sufficient to observe that this passing confirmation by
ATS’s expert that the particular statement at issue was contained not only in the
Sheet Metal and Air Conditioning Contractors’ National Association material but
also, with some unknown wording in some manner, similarly reflected in literature
of the cable manufacturer could not possibly have affected a substantial right of
ATS. See Martindale v. Ripp, 2001 WI 113, ¶¶30-32, 246 Wis. 2d 67, 629
N.W.2d 698 (reversal is not appropriate based on an erroneous exercise in
discretion to admit evidence; there must be a reasonable possibility that the error
contributed to the outcome of the proceeding); WIS. STAT. §§ 805.18(2),
901.03(1).
IV. FOR CAUSE STRIKES OF PROSPECTIVE JURORS
¶58 During the voir dire process, the circuit court interpreted ATS as
forfeiting its opportunity to move to strike members of the jury venire for cause.
ATS argues that the court’s interpretation of its position regarding for-cause
strikes was wrong and that as a result ATS was improperly forced to use all of its
preemptory strikes on potential jurors who should have been stricken for cause.
We now provide additional background and then explain why we affirm on this
issue, based on the ground that ATS forfeited its right to move for strikes for
cause.
25
No. 2022AP2216
A. Additional Background
¶59 After the circuit court and counsel wrapped up their questioning of
the members of the jury venire, the court explained to the entire courtroom that the
proceedings had reached the point when “the lawyers will select the jurors.” The
court explained that this would take “a few minutes.” The court excused those
“remaining in the gallery.” The transcript then reflects the following exchanges:
[Counsel for ATS]: Can we—can we have a sidebar?
Sidebar? Can we have a sidebar?
THE COURT: Before they leave?
[Counsel for ATS]: No, I mean after they leave.
THE COURT: It’s not about me excusing them?
[Counsel for ATS]: No.
THE COURT: Okay. Then, yes, please come
forward.
(Sidebar begins)
[Counsel for ATS]: I’ve got motions to strike for cause.
THE COURT: Well, you can’t do that now. I just
excused the jury. If you strike them
for cause, then—
[Counsel for ATS]: I didn’t have a chance.
THE COURT: Well, of course you had a chance.
Of course you had the chance.
[Counsel for ATS]: No, I didn’t.
THE COURT: Yes. You’re supposed to say
“sidebar” after you have your issues
with them. I just excused every
single person to go home. If you
strike them—
[Counsel for ATS]: We still might have enough.
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No. 2022AP2216
THE COURT: No. You’re each getting five
preemptory strikes.
[Counsel for ATS]: What?
THE COURT: You’re each getting five strikes.
And we’ll have fourteen left, twelve
jurors and two alternates. That’s
why I asked you do you want to
make your motion before I send
those people home.
[Counsel for ATS]: I didn’t hear that.
THE COURT: Okay. You need to start listening. I
mean, how many times today have
you not understood what I’m plainly
telling you[?] That’s the reason I
asked you. I’m not going to
entertain motions for cause because
you had the opportunity. I asked you
before all those people left. I cannot
get them back. You have five
preemptory strikes a side. We’re
moving forward.
¶60 The circuit court then empaneled the jury and had the jurors sworn
in. In a discussion with the attorneys that followed, the court pointed out that it
had specifically asked counsel whether he was making a motion before the court
“excuse[d] the gallery jurors,” meaning before it excused those potential jurors
who could fill the spots of jurors struck for cause, and that ATS’s counsel had in
effect responded, “No, let them go.” The court said, “I can’t let all those
[potential] jurors go and then entertain motions to strike the ones here [for cause]
because then we’d have to start all over again. And that’s the reason I asked the
question.” The court said that it believed that it had previously made clear to the
parties that motions for strikes based on cause would involve a sidebar requested
by counsel during the course of jury selection, made at times when issues
suggesting a basis for a cause strike arose.
27
No. 2022AP2216
¶61 ATS’s counsel identified five potential jurors that he represented he
would have moved to strike for cause if he had understood the circuit court’s
expectations about how he needed to make his motions. The court said that if
counsel had raised timely motions to excuse these potential jurors it would have
denied the motions on the merits.
¶62 In addressing motions after verdict, the circuit court asked ATS’s
counsel how it was supposed to have responded, “after the fact,” to counsel’s own
error in forfeiting for-cause strike motions, particularly in light of the fact that the
court had specifically asked if the court could release the venire members in the
gallery of the courtroom and counsel had responded in the affirmative. The court
asked counsel: “How is that my error and not yours?”
B. Analysis
¶63 One basis for the circuit court’s rejection of ATS’s argument
regarding for-cause strikes was that ATS forfeited its right to make such motions.
The court’s logic was that it could hardly have been error for the court to fail to
entertain motions that ATS made only after it waited until it was completely
impractical for the court to grant the motions. ATS’s brief-in-chief does not refer
to any issue of forfeiture or waiver and also fails to come to grips with the court’s
finding that the untimely motions would have required the court to start voir dire
all over again. ATS asserts that the court subjected ATS’s counsel to “bizarre and
improper procedure,” but it completely fails to back up the assertion that the
court’s procedure of requiring counsel to address strikes for cause during the
course of jury selection was “bizarre” or “improper.”
¶64 After Hellenbrand argues in response that ATS forfeited its right to
move to strike any juror for cause, relying on a detailed summary of the record
28
No. 2022AP2216
that includes background given above, ATS essentially disregards the parts of the
record supporting Hellenbrand’s argument and the circuit court’s findings that
ATS could have and should have raised its motions to strike before the court
excused the remaining potential jurors. Instead, ATS tries to suggest that the
record establishes that potential jurors could have been recalled to the courtroom
after ATS first raised its motions. We disagree that the record establishes this.
One reasonable interpretation of the record is that ATS alerted the court to its
motions to strike only when it was too late. Further, the record clearly reflects that
the court was consistent in taking the position that the motions came too late. In
short, ATS fails to establish that the court clearly erred in making its findings.
Summarizing our conclusion more broadly, the court had an ample basis in the
record to rule that ATS: explicitly gave its approval to the court releasing the
jurors in the gallery; explicitly told the court that ATS had nothing to raise
regarding excusing members of the potential jury panel before the court did so;
and raised its motions only after it was in fact too late for the court to entertain
them.
V. REMITTITUR REQUEST
¶65 Recall that the jury awarded Hellenbrand the following amounts that
are at issue on appeal: future loss of earning capacity, $550,000; past pain,
suffering, and disability, $3 million; and future pain, suffering, and disability,
$6 million. ATS argues that the $550,000 for loss of future earning capacity was
“excessive, unreasonable, and unsupported by the evidence” and that the total of
$9 million for past and future pain, suffering, and disability is “grossly excessive”
when compared with $925,000 determined to be “reasonable and fair” for the
plaintiff in Herman v. Milwaukee Children’s Hospital, 121 Wis. 2d 531, 547, 361
N.W.2d 297 (Ct. App. 1984). We reject these arguments.
29
No. 2022AP2216
¶66 An award of damages is excessive under WIS. STAT. § 805.15(6)
when it “reflects injuries not proved or ‘a rate of compensation beyond reason.’”
Staskal v. Symons Corp., 2005 WI App 216, ¶38, 287 Wis. 2d 511, 706 N.W.2d
311 (quoted source omitted). When considering a motion to reduce a damages
award, the circuit court must “view the evidence in the light most favorable to the
jury’s verdict.” Id., ¶39. Under this standard, the court affirms a challenged
award “if there is any credible evidence under any reasonable view that supports
the jury’s finding on the amount of damages.” Id.; see also Roach v. Keane, 73
Wis. 2d 524, 539, 243 N.W.2d 508 (1976) (“Full compensation is impossible in
the abstract, and different individuals will vary in their estimate of the sum which
will be a just pecuniary compensation. Hence, all that the court can do is to see
that the jury approximates a sane estimate, or, as it is sometimes said, see that the
results attained do not shock the judicial conscience....” (quoted source omitted)).
On appeal, “we view the jury’s verdict ‘with particular favor’” when, as occurred
in this case, “the circuit court has analyzed the evidence in reaching its decision.”
Staskal, 287 Wis. 2d 511, ¶40 (quoted source omitted).
A. Additional Background
¶67 In addressing ATS’s challenges to damages as part of the motions
after verdict, the circuit court (the same judge who had presided at trial) expressed
the view that the jury was presented with evidence of a 46-year-old person who
before the accident
liked to work, loved his job, was a fun guy, had friends, had
a normal life, an accident happened, and [then] his life was
completely changed. [Thirty five] years remaining in his
life expectancy, and he is, as I believe a supervisor at the
1848 said, he’s not the same Bryan. And I think the jury in
looking at … the remainder of Mr. Hellenbrand’s life
where he would have difficulty with short-term memory,
cognitive fatigue, not be able to engage in the activities that
30
No. 2022AP2216
he did before the accident, having a changed personality,
having his family and friends realizing it, and probably
even most substantially for him that he realizes it and he
understands and knows his deficits even though he has tried
his best to overcome them.… I believe the jury’s verdict
regarding damages is supported by the evidence that [the
jury] saw at trial.
The future earning capacity issue … goes to the
weight the jury gave to [the testimony of the vocational
expert called by Hellenbrand, Kevin Schutz] over the
defense expert. Mr. Schutz … gave his opinion on future
earning capacity, and the jury chose to look at Mr. Schutz’s
opinion and give weight to his testimony as the numbers
that he gave for future earning capacity falls squarely
within Mr. Schutz’s vocational rehabilitation analysis[,]
which … was a proper analysis under the tenets of
vocational rehabilitation field. And the jury chose to [give]
weight and credibility to Mr. Schutz’s testimony. There’s
nothing in this record that would cause the Court to change
that number because there was ample evidence on this
record to support the jury’s conclusion.
B. Analysis
¶68 Future loss of earning capacity. Regarding this particular category
of damage, our supreme court has stated that due to the challenges inherent in
trying to predict the always uncertain earnings futures for individuals, “the
quantum of proof required to sustain a finding of loss of future earning capacity is
not as great as that required in other damage issues.” Krause v. Milwaukee Mut.
Ins. Co., 44 Wis. 2d 590, 616, 172 N.W.2d 181 (1969).
¶69 ATS does not argue that the evidence would have supported only
some particular figure below $550,000. Instead, it critiques the testimony of
Hellenbrand’s vocational expert, Kevin Schutz, in various ways. But as just noted,
the circuit court expressed the view that the jury was entitled to place weight on
Schutz’s opinions. As noted above, we are to generally defer to such assessments
by circuit courts that have first-hand exposure to all relevant evidence.
31
No. 2022AP2216
¶70 ATS suggests that, because Hellenbrand had by the time of trial
returned to his work as a carpenter with the same employer, he could not show
impairment of earning capacity into the future. But Hellenbrand correctly notes
that our supreme court in Krause rejected that premise in addressing a similar
argument made in that case, to the effect that “the fact [that] plaintiff was able to
return to the same type of work and actually haul extra loads means that any
attempt to establish future loss of earnings would be speculative, and an award for
impaired earning capacity cannot be sustained.” Id. at 615. The court in Krause
noted that, merely “because there has been no actual loss of wages,” this “does not
mean there has been no impairment of earning capacity.” Id. The court further
noted that in that case the jury “could reasonably infer that the benevolence of
plaintiff’s employer would not continue until retirement and he would suffer a loss
in wages due to the injuries received in the accident.” Id. at 617. ATS accurately
points out that there was evidence in Krause that the plaintiff was working at only
“half capacity” and that employer benevolence played an active role in his
continued employment, and this particular evidence was not expressly available
here. See id. at 615-16. Nevertheless, under the conceptual framework in Krause,
the jury here was free to make an assessment based on all relevant evidence—
including all evidence that could support what the circuit court characterized as a
“complete[] change[]” in Hellenbrand’s life due to the accident—that his earnings
future was diminished by an amount in the range of what Schutz predicted.9
9
As an afterthought at best, ATS suggests in passing a Daubert challenge as part of this
future-earnings issue, but it fails to develop an argument supported by facts and law. We address
this potential argument no further.
32
No. 2022AP2216
¶71 Past and future pain, suffering, and disability. ATS does not
make separate arguments regarding past versus future pain, suffering, and
disability, nor does ATS argue that the evidence would have supported only some
particular figure below $3 million for the past and $6 million for the future. Its
argument rests almost entirely on a comparison of the facts and result here to the
facts and result in Herman. It is true of course that there are differences between
the facts of Herman and the facts here. But we are not persuaded from anything
that ATS asserts that Herman dictates remittitur here. As Hellenbrand points out,
the ATS argument for the most part fails to engage with detailed testimony that
could have allowed the jury to make findings that include the following, consistent
with the circuit court’s complete-life-change determination: Hellenbrand
underwent brain surgery for a life-threatening injury, immediately after which he
was unable to feed himself or express coherent thoughts; even as he has recovered
to a degree, he has significant permanent damage to the portion of the brain that
controls such fundamental, routine functions as complex thinking, memory,
language, concentration, emotion, and personality; he has permanent dizziness and
damage to the system that regulates a sense of balance and spatial orientation; he
has permanent work restrictions and must be under supervision at work; he has
cognitive fatigue and a flattening of his personality.
CONCLUSION
¶72 For all of these reasons, we affirm the judgment of the circuit court.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS.
STAT. RULE 809.23(1)(b)5.
33