Seifert v. Balink, 2014AP195
| Court | United States State Supreme Court of Wisconsin |
| Writing for the Court | SHIRLEY S. ABRAHAMSON, J. |
| Citation | 372 Wis.2d 525,888 N.W.2d 816 |
| Parties | Braylon SEIFERT, by his Guardian ad litem, Paul J. Scoptur, Kimberly Seifert and David Seifert, Plaintiffs-Respondents, Dean Health Insurance and BadgerCare Plus, Involuntary-Plaintiffs, v. Kay M. BALINK, M.D. and Proassurance Wisconsin Insurance Company, Defendants-Appellants-Petitioners. |
| Docket Number | No. 2014AP195,2014AP195 |
| Decision Date | 06 January 2017 |
372 Wis.2d 525
888 N.W.2d 816
Braylon SEIFERT, by his Guardian ad litem, Paul J. Scoptur, Kimberly Seifert and David Seifert, Plaintiffs-Respondents,†
Dean Health Insurance and BadgerCare Plus, Involuntary-Plaintiffs,
v.
Kay M. BALINK, M.D. and Proassurance Wisconsin Insurance Company, Defendants-Appellants-Petitioners.
No. 2014AP195
Supreme Court of Wisconsin.
ORAL ARGUMENT: September 6, 2016
OPINION FILED: January 6, 2017
For the defendants-appellants-petitioners, there were briefs by Samuel J. Leib, Brent A. Simerson, and Leib, Knott, Gaynor, LLC, Milwaukee, WI, and oral argument by Samuel J. Leib.
For the plaintiffs-respondents, there was a brief by Kenneth M. Levine, (pro hac vice), and Kenneth M. Levine & Associates, LLC, Brookline, MA, and Paul J. Scoptur and Aiken & Scoptur, S.C., Milwaukee. Oral argument by Kenneth M. Levine.
SHIRLEY S. ABRAHAMSON, J.
¶1 This is a review of a published decision of the court of appeals.1 The court of appeals affirmed a judgment and an order of the Circuit Court for Grant County, Craig R. Day, Judge, in favor of the plaintiff, Braylon Seifert (by his guardian ad litem, Paul Scoptur, and his parents, Kimberly Seifert and David Seifert) and against the defendants, Dr. Kim Balink (the defendant doctor) and Proassurance Wisconsin Insurance Company.
¶2 This medical malpractice case is based on the claim that the defendant doctor was negligent in the prenatal care of Braylon Seifert's mother and in Braylon's delivery in May 2009.
¶3 Complications arose during Braylon's delivery. Almost immediately after Braylon's head appeared, the head retracted, indicating a shoulder dystocia, that is, indicating that the shoulder was stuck, prohibiting the body from being delivered. The defendant doctor undertook a series of steps to resolve the dystocia and delivered the baby. Braylon's shoulder
was injured, however, and the growth and function of Braylon's left arm are permanently and severely limited.
¶4 Braylon claims that the defendant doctor's care during delivery fell below the standard of reasonable care and caused him to have a permanent brachial plexus injury, that is, to have a permanent injury to the nerves that animate his left arm.
¶5 Braylon's obstetrical expert witness, Dr. Jeffrey Wener, testified that he was familiar with the standard of care for family practitioners practicing obstetrics with regard to prenatal care, labor, and delivery. Dr. Wener explained the reasonable care to be used in a case like the instant
one and opined that the care provided and the procedures used by the defendant doctor fell below the standard of reasonable care.
¶6 The defendants challenged Dr. Wener's testimony in the circuit court, in the court of appeals, and in this court as inadmissible under the recently amended Wis. Stat. § 907.02(1) (2013-14).2 This amended statute governing the admissibility of expert evidence was enacted in 2011. It adopted the federal evidentiary standard codified in Federal Rule of Evidence 702 (2000), which in turn adopted the reliability standard explicated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
¶7 The new Daubert aspect of Wis. Stat. § 907.02(1) became effective February 1, 2011, and applies in the instant case.3 It requires that expert testimony be based on sufficient facts or data and that
the expert testimony be the product of reliable principles and methods.4 The expert witness must apply the principles and methods reliably to the facts of the case.5 These three aspects of the Daubert standard are often referred to as the "reliability standard."
¶8 Both the circuit court and the court of appeals concluded in the instant case that Dr. Wener's testimony was admissible under § 907.02(1).
¶9 The jury's special verdict found that the defendant doctor was negligent in the delivery of Braylon and in the prenatal care of his mother and that this negligence was a cause of injury to Braylon. The jury further found that Braylon should be awarded $100,000 for past pain, suffering, disability, and disfigurement and $1,650,000 for future pain, suffering, disability, and disfigurement.
¶10 The jury did not award any damages to Braylon's parents. The jury did not find that the
defendant doctor violated informed consent. These two rulings are not at issue in this review.
¶11 The circuit court entered judgment for Braylon for $135,000 in medical expenses and $750,000 in pain and suffering, "as reduced pursuant to Wisconsin Statute, plus interest thereon provided by law."6
¶12 On three occasions, the circuit court carefully and extensively considered the defendants' challenges to the admissibility
of Dr. Wener's testimony under Wis. Stat. § 907.02(1) : at a "Daubert" hearing before trial, on a challenge to Dr. Wener's testimony at trial, and on motions after verdict. The circuit court ruled in favor of admitting Dr. Wener's testimony at each of these junctures.
¶13 Seeking a new trial, the defendants raise three issues in this court:
I. Did the circuit court err in admitting the testimony of Dr. Jeffrey Wener, Braylon's medical expert? The defendants claim that because Dr. Wener's testimony was experience-based, his method was unreliable and inadmissible under Wis. Stat. § 907.02(1).
II. Did several remarks of Braylon's counsel during closing argument violate the circuit court's orders in limine, prejudice the jury, and warrant a new trial?
III. Should this court grant a new trial in the interests of justice pursuant to Wis. Stat. § 751.06 ?
¶14 The court of appeals affirmed the judgment of the circuit court, concluding that a new trial was not warranted.
¶15 For the reasons set forth, we affirm the decision of the court of appeals affirming the circuit court's judgment and order that a new trial was not warranted. We conclude:
I. The circuit court did not err in applying Wis. Stat. § 907.02(1) and admitting as reliable Dr. Wener's expert medical testimony on the standard of reasonable care based on his personal experiences.
II. The circuit court did not err in concluding that Braylon's counsel's remarks during closing argument did not constitute prejudicial error justifying a new trial.
III. A new trial should not be granted pursuant to Wis. Stat. § 751.06 in the interests of justice.
¶16 We shall address each issue in turn. The facts and law relevant to each issue are stated in the discussion of that issue.
I
¶17 The first issue entails the defendants' challenge to the testimony of Braylon's medical expert, Dr. Jeffrey Wener, as unreliable and inadmissible under Wis. Stat. § 907.02(1). Dr. Wener testified about the standard of reasonable care in the instant case and how the defendant doctor breached the standard.
¶18 We review the circuit court's admission of Dr. Wener's testimony for compliance with the Daubert reliability standard codified in Wis. Stat. § 907.02(1). The defendants' challenge was that Dr. Wener's experience-based testimony is not the product of a reliable method. We conclude that Dr. Wener's testimony was reliable and admissible under § 907.02(1).
Our reasoning in reaching the conclusion that the circuit court did not erroneously exercise its discretion in admitting Dr. Wener's testimony proceeds as follows:
A. We set forth the facts of the defendant doctor's prenatal care of Braylon's mother and conduct during Braylon's delivery. See¶¶19-28, infra.
B. We examine undisputed facets of the case, including aspects of Dr. Wener's testimony and the standard of reasonable care applicable to the defendant doctor in the instant case. See¶¶29-37, infra.
C. We summarize Dr. Wener's testimony about the standard of reasonable care of a family practice doctor practicing obstetrics. Dr. Wener's testimony was based on his personal experiences; his opinion was that
the defendant doctor breached that standard. See¶¶38-49, infra.
D. We discuss the reliability standard set forth in Wis. Stat. § 907.02(1) that governs admission of expert evidence. We pay special attention to assessing the method used by a medical expert based on the expert's personal experiences. See¶¶50-93, infra.
E. We set forth the standard for reviewing a circuit court's determination that medical expert testimony is admissible under the reliability standard incorporated in Wis. Stat. § 907.02(1). See¶¶94-100, infra.
F. Against this backdrop of the teachings about the reliability of the methodology of medical expert opinion testimony based on personal experiences and the standards for reviewing a circuit court's determination of reliability and admissibility, we
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...evidence, would bear the burden of proving its admissibility by a preponderance of the evidence. See Seifert v. Balink , 2017 WI 2, ¶58, 372 Wis. 2d 525, 888 N.W.2d 816 (plurality opinion).¶46 Proceeding under the WIS. STAT. § 907.02 framework, the circuit court addressed the threshold cons......
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...the evidence assisted the trier of fact, and the evidence was relevant. § 907.02 (1973-74); Seifert v. Balink, 2017 WI 2, ¶52, 372 Wis. 2d 525, 888 N.W.2d 816 (lead opinion). This court initially interpreted 392 Wis.2d 526 § 907.02 to permit exposition testimony without requiring an expert ......
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...proposed or to request an alternative treatment or method of diagnosis." (emphases added)); Seifert v. Balink , 2017 WI 2, ¶59, 372 Wis. 2d 525, 888 N.W.2d 816 (discussing standard of care and recognizing that "[w]hen credible, qualified experts disagree," the jury "decide[s] which expert t......
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Gaethke v. Pozder, Appeal No. 2016AP541
...decision to deny a motion for a new trial under an erroneous exercise of discretion standard." Seifert v. Balink , 2017 WI 2, ¶ 139, 372 Wis.2d 525, 888 N.W.2d 816. An appellate court "usually defers to the trial court's decision because of the trial court's opportunity to observe the trial......
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State v. Bucki, Appeal No. 2018AP999-CR
...evidence, would bear the burden of proving its admissibility by a preponderance of the evidence. See Seifert v. Balink , 2017 WI 2, ¶58, 372 Wis. 2d 525, 888 N.W.2d 816 (plurality opinion).¶46 Proceeding under the WIS. STAT. § 907.02 framework, the circuit court addressed the threshold cons......
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State v. Dobbs, No. 2018AP319-CR
...the evidence assisted the trier of fact, and the evidence was relevant. § 907.02 (1973-74); Seifert v. Balink, 2017 WI 2, ¶52, 372 Wis. 2d 525, 888 N.W.2d 816 (lead opinion). This court initially interpreted 392 Wis.2d 526 § 907.02 to permit exposition testimony without requiring an expert ......
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Gahl ex rel. Zingsheim v. Aurora Health Care, Inc., Appeal No. 2021AP1787-FT
...proposed or to request an alternative treatment or method of diagnosis." (emphases added)); Seifert v. Balink , 2017 WI 2, ¶59, 372 Wis. 2d 525, 888 N.W.2d 816 (discussing standard of care and recognizing that "[w]hen credible, qualified experts disagree," the jury "deci......
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Gaethke v. Pozder, Appeal No. 2016AP541
...decision to deny a motion for a new trial under an erroneous exercise of discretion standard." Seifert v. Balink , 2017 WI 2, ¶ 139, 372 Wis.2d 525, 888 N.W.2d 816. An appellate court "usually defers to the trial court's decision because of the trial court's opportunity to observe......