Imposition of Sanctions in Alt v. Cline, Nos. 96-3356

CourtUnited States State Supreme Court of Wisconsin
Citation589 N.W.2d 21,224 Wis.2d 72
Docket NumberNos. 96-3356,96-3588
PartiesIn re the IMPOSITION OF SANCTIONS IN Dawn ALT et al. v. Richard S. CLINE et al. George Burnett, Appellant-Petitioner, v. Dawn Alt, Mark Alt and Cody Alt, Respondents. Dawn Alt, Mark Alt and Cody Alt, a minor, by his guardian ad litem, James A. Johnson, Plaintiffs-Respondents, Dr. Ernesto L. Acosta, Appellant-Petitioner, v. Richard S. Cline, M.D., Charles J. Green, M.D., Women's Health Specialists, S.C., Appleton Medical Center, Physicians Insurance Company of Wisconsin, Sentry Insurance Company, Outagamie County Department of Human Services, State of Wisconsin Department of Health and Social Services, and Wisconsin Patients Compensation Fund, Defendants. State of Wisconsin ex rel. Dawn Alt, Mark Alt and Cody Alt, a minor, by his guardian ad litem, James A. Johnson, Petitioners, v. Dr. Ernesto L. Acosta, Richard S. Cline, M.D., Charles J. Green, M.D., Women's Health Specialists, S.C., Appleton Medical Center, Physicians Insurance Company of Wisconsin, Sentry Insurance Company, Outagamie County Department of Human Services, State of Wisconsin Department of Health and Social Services, and Wisconsin Patients Compensation Fund, Respondents. , & 98-0029-W.
Decision Date18 February 1999

Page 21

589 N.W.2d 21
224 Wis.2d 72
In re the IMPOSITION OF SANCTIONS IN Dawn ALT et al. v.
Richard S. CLINE et al.
George Burnett, Appellant-Petitioner,
v.
Dawn Alt, Mark Alt and Cody Alt, Respondents.
Dawn Alt, Mark Alt and Cody Alt, a minor, by his guardian ad
litem, James A. Johnson, Plaintiffs-Respondents,
Dr. Ernesto L. Acosta, Appellant-Petitioner,
v.
Richard S. Cline, M.D., Charles J. Green, M.D., Women's
Health Specialists, S.C., Appleton Medical Center,
Physicians Insurance Company of Wisconsin, Sentry Insurance
Company, Outagamie County Department of Human Services,
State of Wisconsin Department of Health and Social Services,
and Wisconsin Patients Compensation Fund, Defendants.
State of Wisconsin ex rel. Dawn Alt, Mark Alt and Cody Alt,
a minor, by his guardian ad litem, James A.
Johnson, Petitioners,
v.
Dr. Ernesto L. Acosta, Richard S. Cline, M.D., Charles J.
Green, M.D., Women's Health Specialists, S.C., Appleton
Medical Center, Physicians Insurance Company of Wisconsin,
Sentry Insurance Company, Outagamie County Department of
Human Services, State of Wisconsin Department of Health and
Social Services, and Wisconsin Patients Compensation Fund,
Respondents.
Nos. 96-3356, 96-3588, & 98-0029-W.
Supreme Court of Wisconsin.
Argued Oct. 13, 1998.
Decided Feb. 18, 1999.

Page 22

[224 Wis.2d 78] For the appellant-petitioner-respondent, Dr. Ernesto L. Acosta, there was briefs by George Burnett and Liebmann, Conway, Olejniczak Jerry, S.C., Green Bay and oral argument by George Burnett.

For the plaintiffs-respondents-petitioners there were briefs by Thomas Kent Guelzow, Michael L. Laufenberg, and Guelzow Laufenberg, LTD, Eau Claire and James A. Johnson and Johnson Houlihan, S.C., Rhinelander and oral argument by Thomas Kent Guelzow.

Page 23

For the defendants-respondents, Richards S. Cline, M.D., Womens Health Specialists, S.C., Physicians Insurance Company of Wisconsin and Wisconsin Patients Compensation Fund, there was a brief by Paul H. Grimstad, John F. Mayer and Nash, Spindler, Dean Grimstad, Manitowoc, and oral argument by Paul Grimstad.

For the defendant-respondent, Appleton Medical Center, there was a brief by Jonathan M. Menn and Menn, Nelson, Sharratt, Teetaert Beisenstein, Ltd., Appleton and oral argument by Jonathan M. Menn.

Amicus curiae brief was filed by Mark L. Thomsen and Cannon Dunphy, Brookfield for the Wisconsin Academy of Trial Lawyers.

Amicus curiae brief was filed by Mark L. Adams and State Medical Society of Wisconsin, and Jeffrey J. Kassel and LaFollette Sinykin, all of Madison for the State Medical Society of Wisconsin.

¶1 WILLIAM A. BABLITCH, J.

Ernesto L. Acosta, M.D. and his attorney, George Burnett, appeal a decision of the court of appeals requiring Dr. Acosta [224 Wis.2d 79] to answer a certain question posed to him at a deposition and affirming sanctions on Burnett for instructing Dr. Acosta not to answer it. Burnett claims that the question posed required the expert opinion of Dr. Acosta and that Dr. Acosta, although an expert, was not required to answer it. He argues that the sanctions were an erroneous exercise of the circuit court's discretion because he was substantially justified in directing his client not to answer. We agree. Accordingly, the decision of the court of appeals is reversed.

¶2 The plaintiffs, Dawn and Mark Alt and their son, Cody Alt, for the first time on appeal have requested that this court issue a supervisory writ ordering the circuit court to enter a default judgment against defendants as a sanction for alleged discovery abuses. We deny granting a supervisory writ because in addition to failing to follow the proper procedure, plaintiffs have not made a sufficient showing to justify a supervisory writ.

¶3 The issues in this case arise from a deposition taken of Dr. Acosta by the plaintiffs when, at the direction of his attorney Mr. Burnett, Dr. Acosta refused to answer the question, "No matter what the cause, a patient with a history of term pregnancy and a gush of blood[,] that's abnormal?" The refusal presents three issues: 1) Did the question require the expert opinion of Dr. Acosta? 2) If so, did Dr. Acosta have a legal privilege to refuse to answer it? 3) Were the sanctions imposed by the circuit court on attorney Burnett for directing Dr. Acosta to refuse to answer an erroneous exercise of discretion?

¶4 These issues generate from a case with a complex history. On October 2, 1989, plaintiff Dawn Alt went into labor and by a cesarean section performed by Dr. Richard S. Cline, gave birth to Cody Alt. [224 Wis.2d 80] Cody was born with catastrophic injuries including brain injury and other severe temporary and permanent injuries. Cody's parents, Dawn and Mark Alt, and Cody, by his guardian ad litem (collectively the "Alts" or "plaintiffs"), sued various parties including Dr. Cline who performed the cesarean section delivery, and the medical clinic at which Dawn Alt delivered the baby. The Alts alleged that the defendants were negligent in their duties in the delivery of Cody.

¶5 During discovery, the plaintiffs named a number of medical doctors as expert witnesses, including Dr. Acosta. Dr. Acosta had provided prenatal care to Dawn and wrote her discharge summary after Cody Alt's birth. Dr. Acosta was not present at Cody's delivery, and he was not named as a defendant in the case.

¶6 At his first deposition on September 20, 1993, Dr. Acosta appeared with attorney Paul Grimstad who represented Dr. Cline and the medical clinic. The deposition ended when plaintiffs' and defendants' attorneys disagreed regarding a line of questioning which Grimstad characterized as requesting Dr. Acosta's expert opinion rather than a recounting of his personal observations.

¶7 The plaintiffs then filed a motion to compel discovery and to remove Grimstad as counsel for Dr. Acosta. The Outagamie County Circuit Court, Judge Dee R. Dyer, presiding, granted the motion, determining that the line of questioning in dispute was

Page 24

proper and disqualifying Grimstad as Dr. Acosta's counsel. The circuit court also imposed sanctions against Grimstad. The court of appeals affirmed. 1

¶8 Dr. Acosta then hired his own counsel, attorney George Burnett. In a series of correspondence[224 Wis.2d 81] between Burnett and plaintiffs' counsel, Burnett attempted to clarify the scope of questions that would be posed to Dr. Acosta at a second deposition. Plaintiffs' counsel, attorney Thomas K. Guelzow and guardian ad litem, attorney James A. Johnson, indicated that absent a protective order, they would question Dr. Acosta to the full extent allowed by Wisconsin's liberal discovery rules. Attorney Burnett did not request a protective order.

¶9 Dr. Acosta's second deposition on July 23, 1996, again ended when attorney Burnett directed Dr. Acosta to not answer questions that he asserted asked for information based on Dr. Acosta's expert opinion rather than his personal observations. Specifically, Burnett objected to the following questions:

Q. And if you were the OB that was treating this woman at the time knowing that there had been an ultrasound done and wanting to see that report, what would you have done?

... [and] ...

Q. No matter what the cause, a patient with a history of term pregnancy and a gush of blood[,] that's abnormal?

¶10 Plaintiffs' counsel again filed a motion, requesting an order to compel discovery and for sanctions. The circuit court made its decision orally from the bench during the motion hearing. The court determined that the first question regarding what Dr. Acosta would have done need not be answered. That determination is not the subject of this appeal. It is the second question that is before us. The court determined that the second question regarding whether a gush of blood was abnormal should have been answered.

[224 Wis.2d 82]

¶11 The circuit court also granted plaintiffs' motion for an order imposing sanctions pursuant to Wis. Stat. § 804.12(2) and imposed sanctions of $2,335 against Burnett.

¶12 Dr. Acosta and Burnett appealed, and the court of appeals affirmed both circuit court orders. Burnett v. Alt, 215 Wis.2d 204, 214, 216, 572 N.W.2d 895 (Ct.App.1997).

¶13 Burnett and Dr. Acosta petitioned this court for review. Plaintiffs also petitioned this court for a supervisory writ pursuant to Wis. Stat. §§ (Rule) 809.51 and 809.71, ordering the circuit court to enter a default judgment against defendants on the grounds of discovery abuse. This court granted both petitions.

¶14 In addition to the issue regarding the supervisory writ, which we do not grant, three issues are presented: 1) Did the question posed to Dr. Acosta require his expert opinion? We hold that it did. 2) Did Dr. Acosta, a non-party physician, have a legal privilege to refuse to answer it? We hold that under the circumstances presented he did. 3) Did the circuit court erroneously exercise its discretion in imposing sanctions against Burnett for directing Dr. Acosta to not answer the allegedly objectionable question? Because Dr. Acosta was not required to answer the question, attorney Burnett was substantially justified in directing him not to answer it. Therefore, we hold that the circuit court erroneously exercised its discretion in imposing sanctions. Accordingly, we reverse the court of appeals' decision.

I.

¶15 We must first determine whether the question posed to Dr. Acosta asked for his expert opinion. At the second deposition of Dr. Acosta on July 23, 1996, he [224 Wis.2d 83] was asked the following question: "No matter what the cause, a patient with a history of term pregnancy and a gush of blood[,] that's abnormal?" Stated another way, the question in essence was: "Is a gush of blood occurring to a patient with a history of term pregnancy an abnormal condition?"

¶16 A circuit court has discretion whether to compel discovery. Borgwardt v. Redlin, 196 Wis.2d 342, 350, 538 N.W.2d 581 (Ct.App.1995). This court will uphold a discretionary decision...

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36 practice notes
  • State v. Jendusa, No. 2018AP2357-LV
    • United States
    • United States State Supreme Court of Wisconsin
    • March 10, 2021
    ...A. Garner, Reading Law: The Interpretation of Legal Texts 69 (2012)).15 The State levels a cursory argument that, under Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), the circuit court can never order a court-appointed expert to perform an analysis of data. This argument misunderstan......
  • Sands v. Whitnall School Dist., No. 2005AP1026.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 11, 2008
    ...that the discovery process allows Sands' request for information, the court relied on and quoted the language in Burnett v. Alt, 224 Wis.2d 72, 85, 589 N.W.2d 21 (1999), that "[p]rivileges are the exception, not the rule," and that unless such a privilege applies, parties "are entitled to e......
  • Lassa v. Rongstad, 2006 WI 105 (Wis. 7/13/2006), No. 2004AP377.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 13, 2006
    ...357 U.S. 449 (1958), and other cases interpreting it; (C) Rongstad made a "substantiated assertion of privilege" under Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), a case involving expert witness privilege, thus providing him with justification for failing to comply with the circui......
  • Gehin v. Wisconsin Group Ins. Bd., No. 03-0226.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 23, 2005
    ...of experts, see Glenn v. Plante, 2004 WI 24, ¶ 2, 269 Wis. 2d 575, 676 N.W.2d 413; In re Imposition of Sanctions in Alt v. Cline, 224 Wis. 2d 72, 86, 589 N.W.2d 21 89. See, e.g., Bransford v. State Taxation & Revenue Dep't, 960 P.2d 827, 832 (N.M. App. 1998) (admissible hearsay may satisfy ......
  • Request a trial to view additional results
36 cases
  • State v. Jendusa, No. 2018AP2357-LV
    • United States
    • United States State Supreme Court of Wisconsin
    • March 10, 2021
    ...A. Garner, Reading Law: The Interpretation of Legal Texts 69 (2012)).15 The State levels a cursory argument that, under Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), the circuit court can never order a court-appointed expert to perform an analysis of data. This argument misunderstan......
  • Sands v. Whitnall School Dist., No. 2005AP1026.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 11, 2008
    ...that the discovery process allows Sands' request for information, the court relied on and quoted the language in Burnett v. Alt, 224 Wis.2d 72, 85, 589 N.W.2d 21 (1999), that "[p]rivileges are the exception, not the rule," and that unless such a privilege applies, parties "are entitled to e......
  • Lassa v. Rongstad, 2006 WI 105 (Wis. 7/13/2006), No. 2004AP377.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 13, 2006
    ...357 U.S. 449 (1958), and other cases interpreting it; (C) Rongstad made a "substantiated assertion of privilege" under Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), a case involving expert witness privilege, thus providing him with justification for failing to comply with the circui......
  • Gehin v. Wisconsin Group Ins. Bd., No. 03-0226.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 23, 2005
    ...of experts, see Glenn v. Plante, 2004 WI 24, ¶ 2, 269 Wis. 2d 575, 676 N.W.2d 413; In re Imposition of Sanctions in Alt v. Cline, 224 Wis. 2d 72, 86, 589 N.W.2d 21 89. See, e.g., Bransford v. State Taxation & Revenue Dep't, 960 P.2d 827, 832 (N.M. App. 1998) (admissible hearsay may satisfy ......
  • Request a trial to view additional results

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