Seifert v. Kay M. Balink, M.D. & Proassurance Wis. Ins. Co., 2014AP195

CourtUnited States State Supreme Court of Wisconsin
Citation2017 WI 2
Docket NumberNo. 2014AP195,2014AP195
PartiesBraylon 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.
Decision Date06 January 2017

2017 WI 2

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

STATE OF WISCONSIN IN SUPREME COURT

ORAL ARGUMENT: September 6, 2016
January 6, 2017


ATTORNEYS:

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.

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NOTICE

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

(L.C. No. 2011CV588)

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 SHIRLEY S. ABRAHAMSON, J. 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

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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

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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 (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

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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

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¶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

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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:

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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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review the circuit court's ruling and conclude, as did the court of appeals, that the circuit court did not erroneously exercise its discretion in admitting Dr. Wener's expert medical testimony on the standard of reasonable care based on his personal experiences. Accordingly, we affirm the decision of the court of appeals affirming the circuit court's admission of Dr. Wener's testimony. See ¶¶101-146, infra.

A

¶19 The defendant doctor, a family practitioner, provided prenatal care to Braylon's mother during regular prenatal visits and also delivered Braylon.

¶20 During the regular prenatal visits, as relevant here, the defendant doctor measured the mother's weight, tested the mother for gestational diabetes, and performed fundal height measurements. Obstetricians use the results of these tests to estimate the baby's birth size. An obese or diabetic mother and a large fundal height indicate macrosomia (a large baby). The baby's expected weight influences decisions made leading up to and during the delivery.

¶21 Braylon's mother weighed 269 pounds at the start of her pregnancy, and she gained approximately 36 pounds during the pregnancy.

¶22 The defendant doctor used a one-hour...

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