Magyar v. Wisconsin Health Care Liability Ins. Plan, 95-0972
| Decision Date | 30 April 1997 |
| Docket Number | No. 95-0972,95-0972 |
| Parties | Patricia S. MAGYAR, Individually, and As Special Administrator of the Estate of Anthony F. Magyar, Deceased, Plaintiffs-Respondents, City of Milwaukee, Involuntary-Plaintiff, v. WISCONSIN HEALTH CARE LIABILITY INSURANCE PLAN, and Lawrence J. Frazin, M.D., Defendants-Appellants-Petitioners, Wisconsin Patients Compensation Fund, Defendant-Co-Appellant-Petitioner, Neurological Surgery of Milwaukee, S.C., Defendant-Intervenor. . Oral Argument |
| Court | Wisconsin Supreme Court |
For the defendants-appellants-petitioners there were briefs by Michael P. Malone, Susan R. Tyndall and Hinshaw & Culbertson, Milwaukee and oral argument by Susan R. Tyndall.
For the defendant-co-appellant-petitioner there were briefs by James M. Fergal, Linda V. Meagher and Schellinger & Doyle, S.C., and oral argument by James M. Fergal.
For the plaintiffs-respondents there was a brief by William M. Cannon, Mark L. Thomsen and Cannon & Dunphy, S.C., Brookfield and oral argument by William M. Cannon.
For the defendant-intervenor there was a brief by Todd M. Weir and Otjen, Van Ert, Stangle, Lieb & Weir, S.C., Milwaukee.
On the day trial commenced in Patricia Magyar's medical malpractice action against numerous defendants, Ms. Magyar and one of the defendants, Neurological Surgery of Milwaukee (NSM), asked the circuit court to approve a settlement agreement between them dismissing NSM from the lawsuit. The settlement was contingent on a ruling by the circuit court excluding an expert witness named only by NSM, Dr. Proctor, from testifying at trial. The non-settling defendants objected, but the circuit court approved the settlement and ordered that the non-settling defendants could not call Dr. Proctor as a witness. The non-settling defendants contend that the exclusion of Dr. Proctor's testimony was an erroneous exercise of discretion by the circuit court. We agree. Accordingly, we reverse and, inasmuch as this evidence went solely to the issue of liability, we remand to the circuit court for a new trial to determine liability.
¶2 The relevant facts are as follows: On December 13, 1990, Dr. Frazin performed surgery on Anthony Magyar. Nine days later, Mr. Magyar died. His widow, Patricia Magyar, filed a medical malpractice action against Dr. Lawrence Frazin, Wisconsin Health Care Liability Insurance Plan (WHCLIP), Wisconsin Patients Compensation Fund (the Fund), and NSM alleging that Dr. Frazin's negligence caused Mr. Magyar's death. Specifically, Ms. Magyar alleged that Dr. Frazin's failure to order peri-operative antibiotics for Mr. Magyar led to the infection which caused his death.
¶3 Pursuant to Wis. Stat. §§ 802.10(3)(b) and 802.11, the Milwaukee County Circuit Court, Judge Thomas P. Doherty, presiding, issued a scheduling order establishing the deadlines by which the parties were required to serve each other with a complete list of witnesses. Ms. Magyar identified Dr. Butler, a neurosurgeon, and Dr. Buggy, an infectious disease expert and one of Mr. Magyar's treating physicians, as the expert witnesses she planned to call at trial. Dr. Frazin named himself and Dr. Sypert, neither of whom was an infectious disease expert.
¶4 During discovery depositions, Dr. Buggy testified that Mr. Magyar should have received antibiotics at the beginning of the operative procedure, i.e., on December 13, 1990. After Dr. Buggy's deposition, NSM filed a motion to adjourn the trial and amend the scheduling order so that it might have additional time to name an infectious disease specialist to respond to Dr. Buggy's testimony. NSM's motion was granted. Although the other defendants had reserved the right to supplement their witness lists upon completion of the discovery depositions of plaintiffs' expert witnesses, neither the Fund, WHCLIP, nor Dr. Frazin did so.
¶5 The amended scheduling order required NSM to advise Ms. Magyar of the general nature of the testimony of its expert witnesses. NSM named Dr. Jerva, the Fund's neurosurgical expert and Dr. Proctor, an infectious disease specialist. As to the general nature of Dr. Proctor's testimony, on May 31, 1994, NSM stated that Dr. Proctor believed that commencing antibiotics on December 15, 1990 or later probably would not have altered the outcome in this case.
¶6 On Wednesday, November 23, 1994, the day before Thanksgiving and 5 days before the trial was scheduled to begin, NSM sent Ms. Magyar and the defendants a letter by fax clarifying Dr. Proctor's opinions. This letter revealed that Dr. Proctor disagreed with "Dr. Buggy's contention that antibiotics at any time ... would have altered the outcome of this case."
¶7 On the morning trial was to commence, Ms. Magyar and NSM informed the circuit court and the other defendants that they had reached an agreement to dismiss NSM as a party. NSM's dismissal was contingent on a ruling by the circuit court that Dr. Proctor, NSM's witness, could not testify at trial. The other defendants had not named Dr. Proctor or any other infectious disease expert as a trial witness. The non-settling defendants objected to the exclusion of Dr. Proctor's testimony. The circuit court rejected their objections and approved the settlement. Dr. Proctor did not testify at the trial.
¶8 The court of appeals affirmed, concluding that WHCLIP, Dr. Frazin, and the Fund (the non-settling defendants) were required by the scheduling order to name the witnesses they intended to call at trial. Because the non-settling defendants neither named Dr. Proctor, nor included a provision in their witness lists "to call any witness named by any other party," the court of appeals resolved that it could not conclude that the circuit court's decision to exclude Dr. Proctor was an erroneous exercise of discretion. The court of appeals further concluded that it was not erroneous for the circuit court to deny the non-settling defendants' motion for a continuance to enable them to secure another infectious disease expert because the trial had already been adjourned on four separate occasions and another adjournment would result in another year's delay.
¶9 This case presents a single issue for review: whether the circuit court erroneously exercised its discretion when it excluded Dr. Proctor's testimony from the trial.
¶10 The circuit court has the discretion to exclude the testimony of a witness if a party is prejudiced by opposing counsel's failure to name that witness. Milw. Rescue Mission v. Milw. Redev. Auth., 161 Wis.2d 472, 490, 468 N.W.2d 663 (1991); Fredrickson v. Louisville Ladder Co., 52 Wis.2d 776, 782, 191 N.W.2d 193 (1971). The circuit court's exercise of discretion will be upheld absent an erroneous exercise of discretion. Milwaukee Rescue Mission, 161 Wis.2d at 490, 468 N.W.2d 663.
¶11 The court properly exercises its discretion when it examines the relevant facts, applies a proper standard of law, and reaches a reasonable conclusion using a demonstrated rational process. Id. If the circuit court bases the exercise of its discretion upon an error of law, its conduct is beyond the limits of discretion. State v. Hutnik, 39 Wis.2d 754, 763, 159 N.W.2d 733 (1968).
¶12 The non-settling defendants contend that the circuit court erroneously exercised its discretion by applying the wrong legal standard to the facts. Dr. Proctor is an infectious disease specialist, and the theory of Ms. Magyar's case was that Dr. Frazin's failure to order peri-operative antibiotics resulted in an infection which caused Mr. Magyar's death. Thus, they argue, Dr. Proctor's testimony was highly relevant to the issue of liability.
¶13 In support of their argument, the non-settling defendants point to the legal standard governing the circuit court's power to exclude relevant evidence, Wis. Stat. § 904.03:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
They argue that this highly probative evidence was not outweighed by any of the statutory considerations.
¶14 Ms. Magyar argues that the probative value of Dr. Proctor's testimony was outweighed by her surprise in learning, just five days before trial, that the general nature of Dr. Proctor's testimony had significantly changed. Ms. Magyar contends that unless Dr. Proctor was excluded from testifying, she would have been unfairly prejudiced by having to respond to a different defense than that which she had anticipated and for which she had prepared.
¶15 Although Wis. Stat. § 904.03 does not list "surprise" as a specific ground for excluding evidence, a witness whose testimony results in surprise to the opposing counsel may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues. Lease America Corp. v. Ins. Co. of N. America, 88 Wis.2d 395, 400, 276 N.W.2d 767 (1979).
¶16 Fredrickson suggests that the drastic measure of excluding a witness should be avoided by giving the surprised party more time to prepare, if possible. Fredrickson, 52 Wis.2d at 784, 191 N.W.2d 193. See also, Judicial Council Committee's and the Federal Advisory Committee's Notes pertaining to § 904.08, 59 Wis.2d at R73-R75. This suggestion is based on "the policy of discovering all of the truth." Fredrickson, 52 Wis.2d at 784, 191 N.W.2d 193 (citation omitted). Accordingly, continuance is usually the more appropriate remedy for surprise; exclusion should be considered only if a continuance would result in a long delay. State v. O'Connor, 77 Wis.2d 261, 287-88, 252 N.W.2d 671 (1977). Ms. Magyar did not raise the issue of a continuance before the circuit court.
¶17 The question then becomes whether the...
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