Barber v. Arnesen, 02-3339.

CourtCourt of Appeals of Wisconsin
Writing for the CourtBefore Deininger, P.J., Dykman and Lundsten, JJ.
Citation275 Wis.2d 275,683 NW 2d 93,2004 WI App 125
PartiesKathrine I. Barber, Plaintiff-Appellant-Cross-Respondent, v. Anne Schmitz Arnesen, Personal Representative of the estate of Richard B. Arnesen, M.D., Defendant-Respondent-Cross-Appellant, WISCONSIN PATIENTS COMPENSATION FUND, Defendant-Respondent.
Docket NumberNo. 02-3339.,02-3339.
Decision Date27 May 2004

683 NW 2d 93
275 Wis.2d 275
2004 WI App 125

Kathrine I. Barber, Plaintiff-Appellant-Cross-Respondent,
Anne Schmitz Arnesen, Personal Representative of the estate of Richard B. Arnesen, M.D., Defendant-Respondent-Cross-Appellant,

No. 02-3339.

Court of Appeals of Wisconsin.

Opinion Filed: May 27, 2004.

Before Deininger, P.J., Dykman and Lundsten, JJ.


¶1 This is a medical malpractice action. Kathrine Barber appeals from a judgment dismissing all of her claims against Dr. Richard Arnesen.1 After the close of Barber's evidence at trial, the court dismissed her complaint for failure to present sufficient evidence as to the cause of her injuries.

¶2 Barber raises three issues: First, she contends that her evidence was sufficient because she did not need expert testimony to show that Dr. Arnesen's treatment caused her injuries. She asserts in the alternative that her expert, Dr. Bernard Katz, did testify that Dr. Arnesen's alleged negligence caused her injuries. Second, she contends that if Dr. Katz did not testify to causation, that failure was the result of the trial court's erroneous rulings on objections during Dr. Katz's direct examination. Third, she contends that Dr. Arnesen's alleged negligence exceeded any negligence attributable to her. We conclude that Barber's claims are without merit. We need not decide Dr. Arnesen's cross-appeal because it only asserts other reasons for affirming the judgment.


¶3 Barber has a long history of mental illness which includes several suicide attempts. On November 30, 1995, she felt suicidal and sped down East Washington Avenue in Madison in her car while drunk, hoping to be stopped by police and jailed. The police responded and a chase ensued. Eventually, Barber pulled into a gas station and exited her car pointing a gun at her head. Despite pleas from the police, she refused to drop her gun. At trial, she testified about what occurred before the police shot her six times:

And so I started to put [the gun] down to my right. And the next thing I saw, were somebody's boot heels. And there was an officer that came toward me, pretty fast, and he was yelling at me.
And I saw him fall backwards. I saw him — his boot heels go up in the air, and then his gun went off. And that is when [the officers] started shooting me.

She testified that she suffered permanent physical injuries and emotional distress from the incident.

¶4 Dr. Arnesen, a psychiatrist, was treating Barber for her mental illness when she was shot. Barber sued Dr. Arnesen for medical malpractice, alleging that his treatment caused her injuries. The details of Barber's mental illness and Dr. Arnesen's treatment are not relevant to the issues on appeal. The dispute, which we have described, focuses on the cause of her injuries.


Sufficiency of the evidence

¶5 We first address whether Barber produced sufficient evidence at trial to survive a motion to dismiss at the close of her case. Because this is a medical malpractice case, Barber bore the burden of proving that Dr. Arnesen failed to exercise the degree of care and skill usually employed by the average practioner under similar circumstances. Ande v. Rock, 2002 WI App 136, ¶10, 256 Wis. 2d 365, 647 N.W.2d 265, review denied, 2002 WI 111, 256 Wis. 2d 64, 650 N.W.2d 840 (Wis. Jul. 30, 2002) (No. 01-1009), cert. denied, 527 U.S. 1107 (2003) (No. 02-640). Dr. Arnesen does not dispute that Barber met this test, but asserts that proof of causation is lacking. Barber contends that she does not need expert testimony to show causation. She argues that the jury could determine whether Dr. Arnesen's alleged negligence caused her conduct which resulted in her injuries. Both respondents assert that causation in a medical malpractice action is beyond a juror's common knowledge or experience. Thus, they claim that a lack of expert testimony regarding causation is fatal to Barber's claim.

¶6 We review motions challenging evidence sufficiency de novo. Seraphine v. Hardiman, 44 Wis. 2d 60, 65, 170 N.W.2d 739 (1969). We agree with respondents that "[a] plaintiff must supply an expert witness to testify as to causation and standard of care in medical malpractice actions involving matters beyond [] jurors' knowledge as laypersons." Glenn v. Plante, 2003 WI App 96, ¶10, 264 Wis. 2d 361, 663 N.W.2d 375, overruled on other grounds, 2004 WI 24, ___ Wis. 2d ___, 676 N.W.2d 413 (Wis. Mar. 24, 2004) (No. 02-1426). Here, however, the dispute lies in whether a juror can rely on his or her common knowledge or experience to determine whether Dr. Arnesen's psychiatric treatment caused Barber's injuries. "A defendant's negligence is `a cause' of a plaintiff's injury or damage if it was a substantial factor in producing the injury or damage." Alvarado v. Sersch, 2003 WI 55, ¶34 n.2, 262 Wis. 2d 74, 662 N.W.2d 350 (citation omitted).

¶7 The supreme court has clarified the necessity of providing expert causation testimony:

There may be cases where the issue of causation, like the issue of negligence, involves technical, scientific or medical matters which are beyond the common knowledge or experience of jurors and without the aid of expert testimony the jury could only speculate as to what inferences to draw if it were left to determine the issue. The lack of expert testimony in such cases results in an insufficiency of proof. See Kreyer v. Farmers' Cooperative Lumber Co. (1962), 18 Wis. (2d) 67, 117 N.W. (2d) 646 (cause of a barn fire); Peterson v. Greenway (1964), 25 Wis. (2d) 493, 131 N.W. (2d) 343 (cause of death of heifers).
... [I]t may be essential to have expert testimony in some cases on the issue of causation and, consequently, the lack of it may prevent a jury from considering the issue.

City of Cedarburg Light & Water Comm'n v. Allis-Chalmers Mfg. Co., 33 Wis. 2d 560, 568a-68b, 148 N.W.2d 661(1967).

¶8 Barber asserts that City of Cedarburg does not apply here. She argues that Ehlinger v. Sipes, 155 Wis. 2d 1, 454 N.W.2d 754 (1990) and Fischer v. Ganju, 168 Wis. 2d 834, 485 N.W.2d 10 (1992) "explicitly pull this case out of the realm of the City of Cedarburg exception." But she provides no citations to support her argument. We examine Ehlinger and Fischer to determine whether this is correct.

¶9 Ehlinger was a medical malpractice case. As in Barber's case,...

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