Phelps v. Physicians Ins. Co.

Decision Date27 April 2004
Docket NumberNo. 03-0580.,03-0580.
Citation681 N.W.2d 571,2004 WI App 91,273 Wis.2d 667
PartiesGregory G. PHELPS, Marlene L. Phelps, Estate of Adam Phelps, Deceased, by his Special Administrator, Gregory G. Phelps, and Caroline Phelps and Kyle Phelps, minors, by their Guardian ad Litem, William M. Cannon, Plaintiffs-Respondents, v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC., a Wisconsin insurance corporation, and Matthew Lindemann, M.D., Defendants-Appellants.
CourtWisconsin Court of Appeals

On behalf of the defendants-appellants, the cause was submitted on the briefs of John S. Skilton, Christopher G. Hanewicz and Gabrielle E. Bina of Heller Ehrman White & McAuliffe, LLP, Madison; and Michael B. Van Sicklen and Michael S. Heffernan of Foley & Lardner, Madison. There was oral argument by John S. Skilton and Michael B. Van Sicklen.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of William M. Cannon and Sarah F. Kaas of Cannon & Dunphy, S.C., Brookfield. There was oral argument by William M. Cannon.

Before Wedemeyer, P.J., Fine and Curley, JJ.

¶ 1. FINE, J.

Physicians Insurance Company of Wisconsin, Inc., and Matthew Lindemann, M.D., appeal from an "order for judgment" awarding judgment against them, jointly and severally, in this medical-malpractice case, as follows: (1) $901,015 to Gregory G. Phelps and Marlene L. Phelps; (2) $45,000 to Caroline Phelps; and (3) $45,000 to Kyle Phelps. Marlene Phelps was pregnant with Adam and Kyle when she was treated by Dr. Lindemann, who was then an unlicensed first-year resident working at St. Joseph's Hospital in Milwaukee. The Phelpses alleged, and the trial court found in a bench trial, that Dr. Lindemann negligently caused Adam's death. The trial court apportioned eighty percent of the causal negligence to Dr. Lindemann and twenty percent to St. Joseph's Hospital.

¶ 2. Physicians Insurance and Dr. Lindemann contend that the trial court erred in: (1) not giving them the jury trial they had demanded; (2) applying what they contend was the wrong standard of care in assessing whether Dr. Lindemann was negligent; (3) determining that Dr. Lindemann was not a "health care provider," as that term is used in WIS. STAT. § 146.38 (health-care-services-review confidentiality); (4) not applying the statutory cap on damages mandated by WIS. STAT. ch. 655; (5) awarding emotional-distress damages to Mr. and Mrs. Phelps; and (6) awarding damages to Mr. and Mrs. Phelps's children for their loss of their mother's society and companionship. We agree that the trial court should have, under the facts of this case, granted the defendants' motion to extend the time within which to pay the jury fee. Accordingly, we reverse and remand for a new trial. We also address the issues that are reasonably likely to recur on remand.


¶ 3. The Phelpses filed their amended summons and complaint naming Physicians Insurance and Dr. Lindemann on April 14, 2000.2 On May 30, 2000, Physicians Insurance and Dr. Lindemann filed their answer, and demanded a trial by jury. On July 10, 2001, the trial court entered a standard Milwaukee County "civil division scheduling order," which provided as material to the jury-trial issue: "Jury fees must be paid in accordance with Local Rule #371 on or before 9-1-01 or the jury shall be deemed waived." (Uppercasing omitted; bolding in original; underlined date handwritten.) The name of Donald R. Peterson, Esq., appears on the scheduling order on behalf of Physicians Insurance and Dr. Lindemann. According to the judgment roll, Peterson "appeared by phone from Philadelphia." Mary K. Wolverton, Esq., a member of Peterson's firm, Peterson, Johnson & Murray, S.C., attended the scheduling conference. The $72 jury fee was paid by letter dated September 12, 2001, which was signed by Wolverton and filed by the Clerk of Circuit Court on September 13, 2001. The letter does not indicate that a copy was sent to the Phelpses' counsel, and the parties agree that none was sent.

¶ 4. By order dated June 10, 2002, and on stipulation, Corneille Law Group, LLC, was substituted as counsel in place of Peterson, Johnson & Murray for Physicians Insurance and Dr. Lindemann. On September 11, 2002, counsel for the Phelpses, and counsel for Physicians Insurance and Dr. Lindemann filed with the trial court a "stipulation to amend scheduling order," which, among other things, set a "12 person Jury Trial" for December 4, 2002. (Bolding and uppercasing omitted.)

¶ 5. On October 29, 2002, the Phelpses' lawyer and the lawyer for Physicians Insurance and Dr. Lindemann filed with the trial court their respective proposed special jury verdicts and proposed jury instructions.

¶ 6. By letter dated December 2, 2002 (two days before the scheduled jury trial), and hand-delivered to the trial court (but mailed to the lawyer for Physicians Insurance and Dr. Lindemann), the Phelpses' lawyer wrote:

Plaintiffs have not requested a jury trial in the above-captioned case. At no time did plaintiffs pay the jury fee. Defendants requested a jury trial in their amended [sic] answer.3 This Court's [July] 10, 2001, Scheduling Order provides that "Jury fees must be paid in accordance with Local Rule # 371 on or before 9-1-01 or the jury shall be deemed waived."
When notice was received from the Court that this case was set for a jury trial, plaintiffs' counsel believed defense counsel had paid the jury fee in accordance with this Court's Scheduling Order and Rule 371.
Plaintiffs' counsel inadvertently discovered last week that defense counsel not only failed to timely pay the jury fee, but did not notify plaintiffs' counsel of the payment. Defendants are in violation of the Court's scheduling order and Local Rule 371 on both counts. Local Rule 371 provides:
Any party who has made a demand for jury trial pursuant to Sec. 805.01(2), Wis. Stats., shall have no more than thirty (30) days following the first scheduling/pretrial conference to pay the jury fee. Such party shall notify in writing all counsel of record and/or parties not represented by counsel of record of payment of the jury fee or waiver of the demand for jury. Any other party shall have an additional thirty (30) days from receipt of notification of waiver to demand a jury trial and pay the jury fee. If no other party demands a jury trial and pays the jury fee within this subsequent thirty (30)-day period, it shall constitute a waiver of the right of jury trial and consent by all parties to a trial to the court sitting without a jury.
(Emphasis added.)
Defendants' failure to pay the jury fee until September 13, 2001, and not notify plaintiffs' counsel of such payment results in a waiver of their right to a jury trial. This conclusion results not only from the express language of the Scheduling Order and Local Rule 371, which reflect the provisions of 814.61(4), Wis. Stat., but the decision of several Milwaukee County judges addressing this precise issue. Several of those decisions have been affirmed by the appellate courts under the principle that the right to a jury trial, both statutory and constitutional, can be waived.4 See § 805.01(3), Wis. Stat., WIS. CONST. art. I, § 5.
Given defendants' violation of the scheduling order and local rule, defendants have waived their right to a jury trial. Moreover, plaintiffs submit that a bench trial is particularly appropriate in this case given the evidence of [Physicians Insurance]'s ex parte communications and breach of privileges as well as the applicable standard of care for Matthew Lindemann. Therefore, plaintiffs request an order setting the case for a bench trial.

(Footnotes added; underlining and bolding by Phelpses' counsel.)

¶ 7. On December 3, 2002, the trial court held a telephone conference with the lawyers on the jury-trial issue. No testimony was taken, nor were any affidavits submitted. The trial court ruled that Physicians Insurance and Dr. Lindemann had waived their right to a jury trial, and gave the following reasons:

This is a highly-complicated matter. I haven't been able to concentrate on anything else because of this issue now this afternoon, but that is neither here nor there. That is an aside, but the point of the matter is it's very clear in the scheduling order that if you don't pay the jury fee timely[,] which I did not know until now, the jury is waived. Gentlemen, the jury is waived. I'll see you tomorrow morning. We are trying this case to the court.

The following day, December 4, the day set for the jury trial by the scheduling order as amended by the September 11, 2002, stipulation, counsel for Physicians Insurance and Dr. Lindemann asked the trial court to extend, nunc pro tunc, the time for them to pay the jury fee. Peterson, their initial counsel, testified that Wolverton attended the July 10, 2001, scheduling conference because he was out of town. He explained why, in his view, the fees were not paid by the September 1 deadline:

Since I was handling the file, Mary Wolverton returned it to me. Unfortunately, I became ill in late August, knew that I had a serious problem, turned out to be kidney cancer. I stopped — continued to do some work but I really stopped going into the office. When they realized I wasn't coming into the office, Mary Wolverton took the file back, was going to handle it in my absence, discovered that the jury fees had not been paid on September 3, and so arranged to have the fees paid on September 12, seven business days later.

September 1, 2001, was a Saturday; September 3 was a Monday.

¶ 8. Peterson's testimony was not challenged by the Phelpses' lawyer, who asked him no questions. The trial court adhered to its view that the case should be tried to the court and not to a jury:

Well, you know, I suppose the argument goes that I could extend the time for the jury and I guess that is the argument that is made, but there is [sic] a huge number of issues in

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4 cases
  • Phelps v. Physicians Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • July 10, 2009
    ...than eight years. The underlying facts have been the source of three separate published appellate opinions. See Phelps v. Physicians Ins. Co. of Wis., Inc., 2004 WI App 91, ¶ 1, 273 Wis.2d 667, 681 N.W.2d 571 (Phelps I); Phelps v. Physicians Ins. Co. of Wis., Inc., 2005 WI 85, ¶¶ 5-13, 282 ......
  • Phelps v. Physicians Ins. Co. of Wisconsin, Inc.
    • United States
    • Wisconsin Supreme Court
    • June 22, 2005
    ...regard to the late payment of the jury fee, and that the defense counsel's late payment was caused by excusable neglect. Phelps v. Physicians Ins. Co., 2004 WI App 91, ¶¶ 12-13, 273 Wis. 2d 667, 681 N.W.2d 571. The court of appeals also held that as a first-year resident, Dr. Lindemann was ......
  • Estate of Hegarty
    • United States
    • Wisconsin Court of Appeals
    • October 10, 2006
    .... On May 4, 2004, the trial court denied the motion based on this court's holding in Phelps v. Physicians Insurance Co. of Wisconsin, Inc., 2004 WI App 91, 273 Wis.2d 667, 681 N.W.2d 571, that first-year medical residents are not health care providers under WIS. STAT. ch. 655, and thus, not......
  • Phelps v. Physicians Ins. Co. of Wisconsin
    • United States
    • Wisconsin Court of Appeals
    • December 4, 2007
    ...WIS. STAT. ch. 655, and to `employees of health care providers' as the phrase is further limited by § 893.55(4)(b)." Phelps v. Physicians Ins. Co. of Wis., 2004 WI App 91, ¶ 45, 273 Wis.2d 667, 681 N.W.2d 571 (Phelps I), rev'd on other grounds by Phelps II, 282 Wis.2d 69, 698 N.W.2d ¶ 14 Th......

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