Braylon Seifert v. Kay M. Balink, M.D.

2017 WI 2

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP195

COMPLETE TITLE: 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.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED:

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: September 6, 2016

SOURCE OF APPEAL:

COURT: Circuit Court

COUNTY: Grant

JUDGE: Craig R. Day

JUSTICES:

CONCURRED: ZIEGLER, J. and GABLEMAN, J. concurs, joined by

ROGGENSACK, C. J., J.

(Opinion filed).

DISSENTED: KELLY, J. joined by BRADLEY, R. G., J. dissent

(Opinion Filed).

NOT PARTICIPATING:

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.

2017 WI 2

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2014AP195

(L.C. No. 2011CV588)

STATE OF WISCONSIN : IN SUPREME COURT

Braylon Seifert, by his Guardian ad litem, Paul

J. Scoptur, Kimberly Seifert and David Seifert,

Plaintiffs-Respondents,

Dean Health Insurance and BadgerCare Plus, FILED

Involuntary-Plaintiffs, JAN 6, 2017

v. Diane M. Fremgen

Clerk of Supreme Court

Kay M. Balink, M.D. and Proassurance Wisconsin

Insurance Company,

Defendants-Appellants-Petitioners.

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

1

Seifert ex rel. Scoptur v. Balink, 2015 WI App 59, 364

Wis. 2d 692, 869 N.W.2d 493.

No. 2014AP195

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

2

No. 2014AP195

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

2

All references to the Wisconsin Statutes are to the 2013-

14 version unless otherwise indicated.

3

Wisconsin Stat. § 907.02(1) provides as follows, with

emphasis added to show the new language added in 2011:

If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify

thereto in the form of an opinion or otherwise, if the

testimony is based upon sufficient facts or data, the

testimony is the product of reliable principles and

methods, and the witness has applied the principles

and methods reliably to the facts of the case.

4

The case law uses the words "methodology" and "methods"

interchangeably. See, e.g., Fuesting v. Zimmer, Inc., 421

F.3d 528, 535 (7th Cir. 2005), opinion vacated on other grounds

on reh'g, 448 F.3d 936 (7th Cir. 2006) ("The district court must

also, in keeping with its gatekeeper's duty, assess the

reliability of the methodology the expert has employed in

arriving at his opinion.").

3

No. 2014AP195

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

5

See Daniel D. Blinka, The Daubert Standard in Wisconsin:

A Primer, Wis. Lawyer, Mar. 2011, at 61 ("Only when the witness

identifies her principles and methods is the trial court in a

position to assess their reliability").

6

See Wis. Stat. § 893.55, which caps noneconomic damages at

$750,000 in medical malpractice cases.

4

No. 2014AP195

¶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

5

No. 2014AP195

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:

6

No. 2014AP195

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

7

No. 2014AP195

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 glucose screening

test to determine whether the mother had gestational diabetes.

The test result was 131 mg/dL. A three-hour glucose screening

test diagnoses gestational diabetes more accurately.

8

No. 2014AP195

¶23 The defendant doctor also performed fundal height

measurements, which, according to Dr. Wener, involves "literally

putting a tape measure on mom's pubic bone and then extending

the tape to the top of the fundus, which is the top of the mom's

uterus."

¶24 Obstetricians may also perform an ultrasound near the

date of delivery to get a more accurate estimate of the baby's

size. The defendant doctor did not perform an ultrasound.

¶25 The defendant doctor estimated that Braylon would

weigh eight pounds, eight ounces at birth. Braylon's actual

birth weight was nine pounds, twelve ounces.

¶26 Braylon's mother arrived at the hospital on May 28,

2009 for inducement of labor. Initially, things went well. The

mother was completely dilated and ready to push by 11:00 p.m.

After an hour, the baby had started descending but Braylon's

mother had grown tired.

¶27 The defendant doctor then decided to use a vacuum

device to assist in the delivery. This device is essentially a

suction cup that attaches to the baby's head and is used to aid

the mother's efforts. Thirteen minutes and four contractions

later, the baby's head delivered.

¶28 Right after the baby's head emerged, it retracted into

the mother (the "turtle sign") and the defendant doctor was

faced with a shoulder dystocia. A shoulder dystocia occurs when

one or both of the baby's shoulders become stuck inside the

mother's body and prevent delivery. The defendant doctor then

performed a series of well-known obstetrical maneuvers (physical

9

No. 2014AP195

manipulations to mother and baby) to resolve the dystocia. The

baby was delivered approximately three minutes after the

diagnosis of shoulder dystocia.

B

¶29 Before we delve into the substance of Dr. Wener's

challenged testimony, we turn to undisputed facets of the case,

including aspects of Dr. Wener's testimony and the standard of

reasonable care for a family practice doctor practicing

obstetrics.

¶30 The parties do not dispute that the applicable

standard of care under Wisconsin law is reasonable care for a

family practice doctor practicing obstetrics and that a family

practice doctor may be liable for injury caused by breach of

that standard of care.

¶31 Nor do the parties dispute that the jury in the

instant case was properly instructed on this standard of

reasonable care. The circuit court presented the standard of

reasonable care, as set forth in Wisconsin Jury Instruction

Civil 1023, to the jury as follows:

In treating and diagnosing Kimberly Seifert's

pregnancy, labor, and delivery, Dr. Kay Balink was

required to use the degree of care, skill, and

judgment which reasonable family practice doctors

practicing obstetrics would exercise in the same or

similar circumstances, having due regard for the state

of medical science at the time of the pregnancy,

labor, and delivery. A doctor who fails to conform to

this standard is negligent.

The burden is on the plaintiffs to prove that Dr. Kay

Balink was negligent. A doctor is not negligent;

[sic] however, for failing to use the highest degree

10

No. 2014AP195

of care, skill, and judgment, or solely because a bad

result may have followed her care, and treatment

and/or diagnosis.

The standard you must apply in determining if Dr. Kay

Balink is negligent is whether Dr. Kay Balink failed

to use the degree of care, skill, and judgment which

reasonable family practice doctors practicing

obstetrics would exercise given the state of medical

knowledge at the time of the treatment and diagnosis

in issue. (Emphasis added.)

¶32 The parties do not dispute that Braylon was required

to introduce expert testimony to describe the care that

satisfies the standard of reasonable care in the instant case

and to detail the defendant doctor's failure to furnish care

that met this standard.

¶33 Braylon offered Dr. Wener's testimony to establish the

standard of reasonable care for a family practice doctor

practicing obstetrics. The parties do not dispute that Dr.

Wener is a qualified expert; that Dr. Wener has "scientific,

technical, or other specialized knowledge" that could assist the

trier of fact; and that if admissible, his testimony would be

relevant and helpful to the trier of fact. Wis. Stat.

§ 907.02(1).

¶34 The parties also do not dispute:

• Braylon suffered a shoulder dystocia.

• Immediately after the delivery, Braylon's left upper

arm was not functioning, and within a few days after

birth he was diagnosed with a permanent brachial

plexus injury.

11

No. 2014AP195

• Braylon's brachial plexus injury limits the growth and

function of the arm, required surgery, and will

require continued therapy to ameliorate the injury.

• An obese mother, gestational diabetes, and a

macrosomic baby increase the risk of shoulder

dystocia.

¶35 The circuit court stated that the parties do not

seriously question that the application of excessive traction

beyond what the fetus can withstand may be a cause of severe

brachial plexus injuries during childbirth, although the circuit

court acknowledged that there were contentions that other causes

may have been present in the instant case. Relatedly, the

parties do not dispute that the use of a vacuum during delivery

may increase the risk of a brachial plexus injury.

¶36 Collectively, these shoulder dystocia risk factors——

obese mother, gestational diabetes, macrosomic baby, excessive

traction, and vacuum-assisted delivery——are undisputed; these

are the principles that guide Dr. Wener's testimony.

¶37 The defendants' challenge to Dr. Wener's testimony is

that his testimony is not the product of reliable methods, that

is, the defendants contend that Dr. Wener's methodology is

unreliable. Specifically, the defendants argue that Dr. Wener's

testimony is not the product of reliable methods under Wis.

Stat. § 907.02(1) because the testimony was based on Dr. Wener's

personal experiences. In evaluating the defendants' challenge,

we begin by reviewing the substance of Dr. Wener's testimony.

C

12

No. 2014AP195

¶38 Dr. Wener testified at length about the standard of

reasonable care in the instant case and opined that the

defendant doctor breached that standard of reasonable care. Dr.

Wener's lengthy expert medical testimony was based on his

personal experiences, and he was subjected to extensive cross-

examination.

¶39 Dr. Wener described his extensive qualifications. He

stated that he is a board certified obstetrician-gynecologist

(OB-GYN) who practices in a suburb outside of Chicago. An OB-

GYN provides medical care to women. The obstetric portion of

the practice relates to pregnancy; the gynecological portion of

the practice relates to female patients who are not pregnant.

¶40 As to his obstetrics practice, Dr. Wener estimated

that he has delivered between 7,500 and 8,000 babies and has

encountered between 37 and 40 instances of shoulder dystocia in

his 36-year career.

¶41 In addition to private practice, Dr. Wener has taught

medical students and residents and was chairman of the

obstetrics-gynecology department at a hospital for about 20

years. As chairman, he was responsible for the quality of care

provided by physicians practicing in his department, and he sat

on the medical executive committee of the hospital. He further

testified that he examines medical records for both plaintiff

and defense attorneys. Dr. Wener is a member of the American

College of Obstetricians and Gynecologists.

¶42 Dr. Wener did not preface each of his statements with

the words "a reasonable family doctor practicing obstetrics."

13

No. 2014AP195

The clear inference from Dr. Wener's testimony, taken as a

whole, is that he was setting forth and applying a standard of

reasonable care for prenatal care and delivery applicable to a

family practitioner practicing obstetrics. Furthermore, the

jury instructions declared that the burden was on Braylon to

prove that the defendant doctor was negligent and that the

defendant doctor had to conform to the standard of care "which

reasonable family practice doctors practicing obstetrics would

exercise in the same or similar circumstances." See ¶31, supra.

¶43 Dr. Wener's experience and testimony demonstrate that

he is familiar with the standard of reasonable care for family

practice doctors practicing obstetrics.

¶44 Dr. Wener concluded that the defendant doctor in the

instant case breached the standard of reasonable care in several

respects. He testified that several risk factors should have

alerted the defendant doctor to the risk of shoulder dystocia,

such as the pre-pregnancy weight of the mother and the weight

she gained during pregnancy, the risk of gestational diabetes,

and the risk of a large baby.

¶45 In Dr. Wener's opinion, these three interrelated risk

factors were important because, added together, they increased

the risk of shoulder dystocia. Dr. Wener explained, "A doctor

has to take care of every patient individually. And in doing so

there are risk factors that every patient has. And you have to

look at the patient as a whole and look at all of the risk

factors as they are applicable to the patient." Dr. Wener

opined to a reasonable degree of medical certainty that, based

14

No. 2014AP195

on his education, training, experience, and the facts of the

instant case, it was more likely than not that the mother was a

gestational diabetic because of her weight and a one-hour

glucose test result of 131 mg/dL.

¶46 Dr. Wener asserted that the defendant doctor fell

below the standard of reasonable care for a family practice

doctor practicing obstetrics by failing to order a three-hour

glucose test for Braylon's mother. Dr. Wener concluded that the

standard of reasonable care required a three-hour test when the

result from the one-hour test was over 130 mg/dL and the mother

was obese. The three-hour glucose test would have been more

likely to diagnose gestational diabetes, a condition associated

with increased risk of shoulder dystocia.

¶47 Dr. Wener also gave his opinion to a reasonable degree

of medical certainty that, in view of the mother's size and the

one-hour test result, the defendant doctor breached the standard

of reasonable care for a family practice doctor practicing

obstetrics by failing to perform an ultrasound on Braylon's

mother immediately prior to delivery. An ultrasound, in Dr.

Wener's opinion, would have given the defendant doctor a better

estimate of Braylon's fetal weight and whether Braylon was

macrosomic (that is, a large baby), a condition that Dr. Wener

associated with a greater risk of shoulder dystocia.

¶48 In addition, Dr. Wener testified that the defendant

doctor's use of vacuum assistance during the birthing process

breached the standard of reasonable care by increasing the risk

of shoulder dystocia. Explaining that it is risky to use the

15

No. 2014AP195

vacuum on a patient exhibiting the risk factors that Braylon's

mother exhibited, Dr. Wener opined——to a reasonable degree of

medical certainty——that a vacuum should not have been applied at

all in the instant case.

¶49 Dr. Wener also testified to a reasonable degree of

medical certainty that the defendant doctor breached the

standard of reasonable care for a family practice doctor

practicing obstetrics by applying excessive traction beyond what

the fetus could withstand in attempting to resolve the shoulder

dystocia and that this excessive traction (not the mother's

pushing) had a causative effect on Braylon's brachial plexus

injury.

D

¶50 With the substance of Dr. Wener's testimony in mind,

we turn to the reliability standard governing the admission of

expert evidence set forth in the 2011 amendment to Wis. Stat.

§ 907.02(1). The following emphasized language in Wis. Stat.

§ 907.02(1) adopting the reliability standard was added in 2011.

If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify

thereto in the form of an opinion or otherwise, if the

testimony is based upon sufficient facts or data, the

testimony is the product of reliable principles and

methods, and the witness has applied the principles

and methods reliably to the facts of the case.

¶51 The 2011 amendment to Wis. Stat. § 907.02(1) changed

the law to mirror Federal Rule of Evidence 702, which codifies

16

No. 2014AP195

Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579

(1993), and its progeny.7

¶52 Before 2011, when the legislature adopted the Daubert

reliability standard in amended Wis. Stat. § 907.02(1),

Wisconsin case law applied the "relevancy test" to the admission

of expert evidence: Expert evidence was admissible if the

witness was qualified, the evidence assisted the trier of fact,

and the evidence was relevant.8

¶53 Wisconsin case law had rejected both Frye's "general

acceptance test"9 and the federal Daubert reliability standard.10

7

See 2011 WI Act 2, WI S. Amend. Memo, 2011 Jan. Spec.

Sess. S.B. 1 ("This language [in Wis. Stat. § 907.02(1)] is

identical to the language of Rule 702 of the Federal Rules of

Evidence."); State v. Giese, 2014 WI App 92, ¶17, 356

Wis. 2d 796; 854 N.W.2d 687 ("In January 2011, the legislature

amended § 907.02 to make Wisconsin law on the admissibility of

expert testimony consistent with 'the Daubert reliability

standard embodied in Federal Rule of Evidence 702.'") (quoting

State v. Kandutsch, 2011 WI 78, ¶26 n.7, 336 Wis. 2d 478, 799

N.W.2d 865).

8

For discussion of pre-Daubert Wisconsin case law, see

Daniel D. Blinka, Expert Testimony and the Relevancy Rule in the

Age of Daubert, 90 Marq. L. Rev. 173 (2006).

9

Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923),

stated the rule as follows:

The rule is that the opinions of experts or skilled

witnesses are admissible in evidence in those cases in

which the matter of inquiry is such that inexperienced

persons are unlikely to prove capable of forming a

correct judgment upon it . . . .

. . . .

[W]hile courts will go a long way in admitting expert

testimony deduced from a well-recognized scientific

(continued)

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No. 2014AP195

¶54 Professor Daniel Blinka concludes that Daubert

"created a reliability standard that is less a bright-line test,

as it is often assumed to be, and more an evidentiary

porridge."11

¶55 The instant case is this court's first occasion to

apply amended Wis. Stat. § 907.02(1). We do not write on a

blank slate. Wisconsin Stat. § 907.02(1) mirrors Federal Rule

of Evidence 702 as amended in 2000,12 and we may look for

principle or discovery, the thing from which the

deduction is made must be sufficiently established to

have gained general acceptance in the particular field

in which it belongs.

10

A law student commentator concluded that the Wisconsin

Supreme Court nudged the relevancy standard closer to Daubert to

the point that the relevancy standard became "Daubert lite,"

citing State v. Hibl, 2006 WI 52, ¶52, 290 Wis. 2d 595, 714

N.W.2d 194 (explaining that circuit courts have a limited

gatekeeping function because the relevancy test requires a

showing that the expert's opinion was "reliable enough to be

probative"). Kristen Irgens, Wisconsin Is Open for Business or

Business Just as Usual? The Practical Effects and Implications

of 2011 Wisconsin Act 2, 2012 Wis. L. Rev. 1245, 1256-57.

11

Blinka, supra note 5, at 19 ("[The Daubert reliability

standard] is purportedly more liberal than the once-dominant

general acceptance test ('too cold') yet more demanding than the

relevancy standard ('too hot').").

The post-Daubert case law indicates that rejecting expert

testimony is "the exception rather than the rule." See Federal

Rule Evidence 702 Advisory Committee Note (2000).

12

In 2000, the following underlined language was added to

Federal Rule of Evidence 702 to reflect Daubert:

If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill,

(continued)

18

No. 2014AP195

guidance and assistance in interpreting and applying § 907.02(1)

to the Daubert case and its progeny, to the Advisory Committee

experience, training, or education, may testify

thereto in the form of an opinion or otherwise., if

(1) the testimony is based on sufficient facts or

data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has

applied the principles and methods reliably to the

facts of the case.

Federal Rule of Evidence 702 was also amended in 2011 "as

part of the restyling of the Evidence Rules to make them more

easily understood and to make style and terminology consistent

throughout the rules," but no substantive changes were intended.

Federal Rule of Evidence 702 Committee Notes (2011).

Federal Rule of Evidence 702 now provides:

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify

in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other

specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in

issue;

(b) the testimony is based on sufficient facts or

data;

(c) the testimony is the product of reliable

principles and methods; and

(d) the expert has reliably applied the principles and

methods to the facts of the case.

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No. 2014AP195

Notes to Federal Rule of Evidence 702,13 and to federal and state

cases interpreting the text of Rule 702 or an analogous state

law. The federal or state interpretations, however, are not

necessarily dispositive.14

¶56 As we have previously noted, the federal reliability

standard for the admissibility of expert evidence is explained

in Daubert. After Daubert, the United States Supreme Court

decided General Electric Co. v. Joiner, 522 U.S. 136 (1997), and

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). This

trilogy of cases delineated the contours of the reliability

standard.

¶57 In Daubert——a products liability case——the Court

rejected Frye's general acceptance test and concluded that

Federal Rule of Evidence 702 contemplates that trial courts have

a gatekeeping obligation. This gatekeeping obligation

13

Under the Rules Enabling Act, 28 U.S.C. § 2072, the

United States Supreme Court is authorized to promulgate rules of

practice and procedure for the federal courts. This authority

is exercised by the Judicial Conference of the United States.

The Conference promulgates and changes rules of practice and

procedure in the federal courts subject to oversight by the

Court. For the Federal Rules of Evidence, the Judicial

Conference is aided in its rule-making powers by the Evidence

Advisory Committee; the members of and reporter to this

Committee are appointed by the Chief Justice of the United

States Supreme Court. Paul R. Rice and Neals-Erik William

Delker, Federal Rules of Evidence Advisory Committee: A Short

History of Too Little Consequence, 191 F.R.D. 678, 679 (2000).

14

State v. Poly-America, Inc., 164 Wis. 2d 238, 246, 474

N.W.2d 770 (1991) ("When a state statute is modeled after a

federal rule, we look to the federal interpretation of that rule

for guidance and assistance.").

20

No. 2014AP195

"assign[s] to the trial court the task of ensuring that a

scientific expert is qualified" and that his or her "testimony

both rests on a reliable foundation and is relevant to the task

at hand." Daubert, 509 U.S. at 597.

¶58 In the instant case, the parties challenge the

reliability of Dr. Wener's expert medical testimony.15 We

therefore focus our discussion on the reliability prong of Wis.

Stat. § 907.02(1), specifically the reliability of the methods

used by Dr. Wener.16 The trial court must be satisfied that the

testimony is reliable by a preponderance of the evidence.

Daubert, 509 U.S. at 593; Wis. Stat. § 901.04.

15

The parties do not dispute that Dr. Wener was qualified

as an expert and that his opinion was relevant in the instant

case.

16

Wisconsin Stat. § 907.02(1) states that testimony must be

based on "reliable principles and methods." Only Dr. Wener's

"method" is challenged in the instant case. For an illustration

of the difference between principles and methods, the Federal

Rule of Evidence 702 Advisory Committee Note (2000) gives the

following illustration:

For example, when a law enforcement agent testifies

regarding the use of code words in a drug transaction,

the principle used by the agent is that participants

in such transactions regularly use code words to

conceal the nature of their activities. The method

used by the agent is the application of extensive

experience to analyze the meaning of the

conversations. So long as the principles and methods

are reliable and applied reliably to the facts of the

case, this type of testimony should be admitted.

Several cases tend to collapse principles and methods into

a singular "reliability" analysis.

21

No. 2014AP195

¶59 Daubert makes the trial court a gatekeeper, not a fact

finder. When credible, qualified experts disagree, a litigant

is entitled to have the jury, not the trial court, decide which

expert to believe. Dorn v. Burlington N. Santa Fe R.R. Co., 397

F.3d 1183, 1196 (9th Cir. 2005).17

¶60 Although the Daubert Court focused its discussion on

scientific testimony, the Supreme Court later clarified that

Daubert's inquiry applies not just to scientific evidence, but

to all expert opinions, "whether the testimony reflects

scientific, technical, or other specialized knowledge." Kumho

Tire, 526 U.S. at 149.

¶61 The reliability standard "entails a preliminary

assessment of whether the reasoning or methodology is

scientifically valid." Daubert, 509 U.S. at 592-93.

Reliability depends "solely on principles and methodology, not

17

"Experts often disagree. A trial court's determination

that the proffered testimony of one expert witness is reliable

and helpful does not necessarily mean that the contradictory

testimony of another witness, concerning the same subject matter

by using a different methodology, is not also reliable and

helpful." 4 Jack B. Weinstein, Weinstein's Federal Evidence

§ 702.05[3] (2d ed. 2011), citing Federal Rule of Evidence 702

Committee Note (2000).

"Since its inception, the courts have sought to apply Rule

702 in a manner that preserves the jury's traditional power to

weigh evidence and determine witness credibility." 29 Charles

Alan Wright & Victor Gold, Federal Practice and Procedure:

Evidence, § 6268.2 (2d ed. 2016), citing DiCarlo v. Keller

Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000).

22

No. 2014AP195

on the conclusions that they generate." Daubert, 509 U.S. at

595.

¶62 To guide the reliability analysis, the Daubert court

provided a nonexhaustive18 list of factors that make scientific

evidence sufficiently reliable for admission: "(1) whether the

methodology can and has been tested; (2) whether the technique

has been subjected to peer review and publication; (3) the known

or potential rate of error of the methodology; and (4) whether

the technique has been generally accepted in the scientific

community." Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d

Cir. 1999), citing Daubert, 509 U.S. at 592-93.

¶63 The Federal Rules Advisory Committee added five

factors to those stated in Daubert to guide decisions about

reliability:

(1) Whether experts are "proposing to testify about

matters growing naturally and directly out of research

they have conducted independent of the litigation, or

whether they have developed their opinions expressly

for purposes of testifying. Daubert v. Merrell Dow

Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.

1995).

(2) Whether the expert has unjustifiably extrapolated

from an accepted premise to an unfounded conclusion.

See General Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997) (noting that in some cases a trial court "may

conclude that there is simply too great an analytical

gap between the data and the opinion proffered").

18

"Many factors will bear on the inquiry, and we do not

presume to set out a definitive checklist or test." Daubert,

509 U.S. at 593.

23

No. 2014AP195

(3) Whether the expert has adequately accounted for

obvious alternative explanations. See Claar v.

Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994)

(testimony excluded where the expert failed to

consider other obvious causes for the plaintiff's

condition). Compare Ambrosini v. Labarraque, 101

F.3d 129 (D.C. Cir. 1996) (the possibility of some

uneliminated causes presents a question of weight, so

long as the most obvious causes have been considered

and reasonably ruled out by the expert).

(4) Whether the expert "is being as careful as he

would be in his regular professional work outside his

paid litigation consulting." Sheehan v. Daily Racing

Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See

Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176

(1999) (Daubert requires the trial court to assure

itself that the expert "employs in the courtroom the

same level of intellectual rigor that characterizes

the practice of an expert in the relevant field").

(5) Whether the field of expertise claimed by the

expert is known to reach reliable results for the type

of opinion the expert would give. See Kumho Tire Co.

v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (Daubert's

general acceptance factor does not "help show that an

expert's testimony is reliable where the discipline

itself lacks reliability, as for example, do theories

grounded in any so-called generally accepted

principles of astrology or necromancy."); Moore v.

Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998)

(en banc) (clinical doctor was properly precluded from

testifying to the toxicological cause of the

plaintiff's respiratory problem, where the opinion was

not sufficiently grounded in scientific methodology);

Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th

Cir. 1988) (rejecting testimony based on "clinical

ecology" as unfounded and unreliable)."19

¶64 Considering the broad range of cases in which expert

evidence arises, courts have not been constrained by the listed

19

See commentary following the 2000 amendment to Federal

Rule of Evidence 702. See also Blinka, supra note 5, at 19.

24

No. 2014AP195

factors. How courts apply these factors necessarily varies case

by case, expert by expert. "Too much depends upon the

particular circumstances of the particular case at issue" to

impose hard and fast rules. Kumho Tire, 526 U.S. at 150. A

trial court conducts its reliability analysis with wide

latitude.20 Kumho Tire emphasized that the application of the

Daubert factors is a flexible inquiry: "[T]he law grants a

district court the same broad latitude when it decides how to

determine reliability as it enjoys in respect to its ultimate

reliability determination." Kumho Tire, 526 U.S. at 142.

¶65 Thus, the trial court may consider some, all, or none

of the factors listed to determine whether the expert evidence

is reliable. Federal Rule of Evidence 702 Advisory Committee's

Note (2000).

¶66 Because the instant case involves expert medical

testimony based on a witness's personal experiences, we discuss

the reliability of expert medical opinion based on the expert's

personal experiences.

20

"[W]e conclude that the trial judge must have

considerable leeway in deciding in a particular case how to go

about determining whether particular expert testimony is

reliable. That is to say, a trial court should consider the

specific factors identified in Daubert where they are reasonable

measures of the reliability of expert testimony." Kumho Tire

Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (emphasis

added). "[W]hether Daubert's specific factors are, or are not,

reasonable measures of reliability in a particular case is a

matter that the law grants the trial judge broad latitude to

determine." Kumho Tire, 526 U.S. at 153.

25

No. 2014AP195

¶67 Daubert affirms that experience-based expert evidence

may pass muster as a method under the reliability requirement.

Though the Daubert Court stated that "[p]roposed testimony must

be supported by appropriate validation——i.e., 'good grounds,'

based on what is known," the Court also stated that the very

structure of the rules of evidence suggest that experience can

be "good grounds." Daubert, 509 U.S. at 590.

¶68 Daubert's reference to the structure of the rules of

evidence was a reference to the evidentiary rule that all

witnesses except experts generally must have firsthand knowledge

of the events to which they testify.21 The Daubert court

inferred that this "relaxation of the usual requirement of

firsthand knowledge . . . is premised on an assumption that the

expert's opinion will have a reliable basis in the knowledge and

experience of this discipline." Daubert, 509 U.S. at 592.

¶69 Likewise, the Kumho Tire Court explicitly recognized

that in some cases, "the relevant reliability concerns will

focus upon personal knowledge or experience." Kumho Tire, 526

U.S. at 150.

¶70 In Kumho Tire, the United States Supreme Court

specifically addressed the application of the Daubert

reliability analysis to experience-based, non-scientific expert

testimony. The Court required a witness relying on experience

21

Compare Federal Rule of Evidence 701 (firsthand knowledge

requirement for witnesses) with Federal Rule of Evidence 703 (no

firsthand knowledge requirement for experts).

26

No. 2014AP195

to offer some articulated rationale supporting his or her

opinion. This Kumho Tire requirement is not "impossibly

demanding."22

¶71 The Kumho Tire Court recognized that "there are many

different kinds of experts, and many different kinds of

expertise," Kumho Tire, 526 U.S. at 150, so the factors set

forth in Daubert and Kumho Tire "may or may not be pertinent in

assessing reliability, depending on the nature of the issue, the

expert's particular expertise, and the subject of his

testimony." Kumho Tire, 526 U.S. at 150.

¶72 The Kumho Tire Court emphasized that in the case of a

non-scientific expert, "the relevant reliability concerns may

focus upon personal knowledge or experience." Kumho Tire, 536

U.S. at 150. The point, according to Kumho Tire, is to ensure

that an expert, "whether basing testimony upon professional

studies or personal experience, employs in the courtroom the

same level of intellectual rigor that characterizes the practice

of an expert in the relevant field." Kumho Tire, 526 U.S. at

152.23

22

Blinka, supra note 5, at 61

23

See also Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th

Cir. 1996) (The purpose of the rule announced in Daubert "was to

make sure that when scientists testify in court they adhere to

the same standards of intellectual rigor that are demanded in

their professional work.").

(continued)

27

No. 2014AP195

¶73 The Federal Advisory Committee Note to the 2000

Amendment to Rule 702 also recognizes that expert evidence based

on personal experiences can meet the reliability test and offers

the following general guidance for evaluating experience-based

testimony:

If the witness is relying solely or primarily on

experience, then the witness must explain how that

experience leads to the conclusion reached, why that

experience is a sufficient basis for the opinion, and

how that experience is reliably applied to the facts.24

¶74 The trial court's gatekeeping function in regard to

experience-based testimony, however, "requires more than simply

'taking the expert's word for it.'"25

¶75 An expert cannot establish that a fact is generally

accepted merely by saying so.26 Trial courts do not have "to

admit opinion evidence that is connected to existing data only

by the ipse dixit of the expert." Such an application is

"Kumho at least made it clear that, in addition to gauging

reliability in light of factors specific to the area of

expertise involved, a trial court also may consider whether the

expert's testimony holds together based on logic and common

sense." 29 Wright & Gold, supra note 17, § 6267.

24

Federal Rule of Evidence 702 Advisory Committee Note

(2000).

25

Federal Rule of Evidence 702 Advisory Committee Note

(2000).

26

"A supremely qualified expert cannot waltz into the

courtroom and render opinions unless those opinions are based

upon some recognized scientific method and are reliable and

relevant under the test set forth by the Supreme Court in

Daubert." Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th

Cir. 1999).

28

No. 2014AP195

unreliable because "there is simply too great an analytical gap

between the data and the opinion offered." Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 146 (1997).

¶76 Thus, for example, a federal district court excluded

proffered expert testimony because the witness's experience was

not extensive enough to indicate reliability for testimony based

on personal experience. The expert's "sample size" (himself

alone) was too small:

Essentially, his proposed testimony boils down to the

conclusion that because he has been able to perform

police work successfully despite his monocular vision,

then the Plaintiff will likewise be successful. This

is a leap of faith that the Court is unwilling to

make, as there is nothing inherent about [the

witness's] own personal experience as a monocular

visioned person which logically or scientifically

leads to a supportable conclusion that other persons

with monocular vision necessarily, or even probably,

would have the same abilities that he has.

Trevino v. City of Rock Island Police Dep't, 91

F. Supp. 2d 1204, 1207 (C.D. Ill. 2000).27

¶77 Case law demonstrates, nonetheless, that courts

frequently admit experience-based testimony, especially when

27

Even when expert testimony relies on adequate principles,

trial courts may still exclude the testimony when the

methodology used to reach a conclusion based on those principles

is unsupported. McGovern ex rel. McGovern v. Brigham & Women's

Hosp., 584 F. Supp. 2d 418, 425-26 (D. Mass. 2008) (excluding

expert's "opinion [that was] was connected to existing data

about the risk of stroke after vacuum extraction only by his own

ipse dixit."). The reliability standard requires an explanation

of how the methodology used by the expert is derived from the

witness's experience and led to the conclusion reached.

McGovern, 384 F. Supp. 2d at 426.

29

No. 2014AP195

expert medical evidence is offered. Expert medical opinion

based on experience alone, "or experience in conjunction with

other knowledge, skill, training or education" may constitute a

reliable basis.28 "In certain fields, experience is the

predominant, if not sole, basis for a great deal of reliable

expert testimony."29

¶78 Medicine is an example of such a field because

medicine "is based on specialized as distinguished from

scientific knowledge."30 When evaluating specialized or

technical expert opinion testimony, "the relevant reliability

concerns may focus upon personal knowledge or experience."

Kumho Tire, 526 U.S. at 150.

¶79 The classic medical school texts explain that medicine

is scientific but not entirely a science.31 "Medicine is not a

science but a learned profession, deeply rooted in a number of

sciences and charged with the obligation to apply them for man's

benefit."32 Much of medical decision-making relies on judgment

28

Blinka, supra note 5, at 60 (quoting Federal Rule of

Evidence 702 Advisory Committee Note (2000)).

29

Federal Rule of Evidence 702 Advisory Committee Note

(2000).

30

Sullivan v. U.S. Dep't of the Navy, 365 F.3d 827, 834

(9th Cir. 2004).

31

Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010).

32

Primiano v. Cook, 598 F.3d at 565 (quoting the "classic

medical school text" Cecil Textbook of Medicine 1 (James B.

Wyngaarden & Lloyd H. Smith Jr. eds., 17th ed. 1985)).

30

No. 2014AP195

and is difficult to quantify or even to assess qualitatively.

In medicine, "knowledge is often uncertain," "[t]he human body

is complex," and "etiology is often uncertain."33 Furthermore,

practical and ethical concerns prevent "studies calculated to

establish statistical proof."34 Physicians must use their

knowledge and experience as a basis for weighing known factors

along with "inevitable uncertainties" to "mak[e] a sound

judgment."35

¶80 That Daubert lends its analysis more favorably to more

objective sciences does not bar the testimony of physicians

applying their experience and clinical methods.36 That the

knowledge is uncertain "does not preclude the introduction of

33

United States v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th

Cir. 2006).

34

Sandoval-Mendoza, 472 F.3d at 655.

35

Primiano, 598 F.3d at 565 (quoting the "classic medical

school text" Harrison's Principles of Internal Medicine 3

(Dennis L. Kasper et al. eds., 16th ed. 2005)).

36

See, e.g., 29 Wright & Gold, supra note 17, § 6269.8

(medical expert "opinion[s] also may be based on extensive

personal observations, professional experience, education, and

training even where the medical expert has not conducted an

epidemiological study and even where the expert's opinion is not

generally accepted and is unsupported by peer review");

Sandoval-Mendoza, 472 F.3d at 656 (a well qualified physician

with sufficient expertise could reliably testify about

defendant's brain tumor to establish an entrapment defense);

Primiano, 598 F.3d at 568 (abuse of discretion to exclude

doctor's testimony in products liability case based on his

experiences alone, but noting that medical literature had not

addressed a similar situation).

31

No. 2014AP195

medical expert opinion testimony when medical knowledge permits

the assertion of a reasonable opinion."37

¶81 "A trial court should admit medical expert testimony

if physicians would accept it as useful and reliable."38 In

other words, expert medical opinion testimony is reliable if the

knowledge underlying it "has a reliable basis in the knowledge

and experience of the [relevant] discipline."39

¶82 In Schneider ex rel. Estate of Schneider v. Fried, 320

F.3d 396, 406 (3d Cir. 2003), the federal Third Circuit Court of

Appeals explained that a physician's "experience render[ed] his

testimony reliable [and] demonstrate[d] that his testimony [was]

based on 'good grounds.'" In light of his considerable

professional experience, the physician's testimony on the

standard of care was reliable, even if the content of the

literature cited was irrelevant. The federal court of appeals

37

Sandoval-Mendoza, 472 F.3d at 655 (internal quotation

marks & quoted source omitted).

38

Sandoval-Mendoza, 472 F.3d at 655.

39

Sandoval-Mendoza, 472 F.3d at 655 (quoting Kumho Tire,

526 U.S. at 149 (quoting Daubert, 509 U.S. 579, 592)); Zuchowicz

v. United States, 140 F.3d 381 (2d Cir. 1998) (district court

had discretion to admit opinions of clinical medical experts

about cause of plaintiff's disease because they were based on

methods reasonably relied on by clinical physicians, even though

the drug had not been previously linked to that disease).

"In a non-scientific context, the reliability of an

expert's methodology often will be a function of accepted

practice in the area of expertise in question." 29 Wright &

Gold, supra note 17, § 6268.1.

32

No. 2014AP195

concluded that the magistrate judge abused his discretion by

excluding the expert testimony.40

¶83 The Schneider court stated that expert testimony does

not have to be subject to peer review to be admitted under Rule

702; the physician's experience renders his or her testimony

reliable and demonstrates that the testimony is based on good

grounds.41 The court recognized, however, that the degree to

which the medical expert is qualified implicates the reliability

of the testimony. Schneider, 320 F.3d at 406.

¶84 Similarly, the federal Sixth Circuit Court of Appeals

held that a district court abused its discretion by excluding a

physician's testimony based on extensive, relevant experience

when the physician had not cited medical literature supporting

40

Schneider ex rel. Estate of Schneider v. Fried, 320

F.3d 396 (3rd Cir. 2003), involved a claim that a decedent

received cardiac care that fell below the standard of care. The

court provided the following discussion in regard to this

expert:

The record establishes that as an invasive

cardiologist, who normally diagnoses heart conditions,

Dr. Semigran was routinely present during surgical

procedures and regularly advised interventional

cardiologists during the course of those procedures.

Dr. Semigran also testified that he would consult with

interventional cardiologists about which drugs should

or should not be given to patients undergoing

angioplasties.

Schneider, 320 F.3d at 406.

41

Daubert, 509 U.S. at 590 ("Proposed testimony must be

supported by appropriate validation——i.e., good

grounds . . . .").

33

No. 2014AP195

his view. Dickenson v. Cardiac & Thoracic Surgery of E. Tenn.,

388 F.3d, 976, 980 (6th Cir. 2004). Requiring an expert to

demonstrate a familiarity with accepted medical literature or

published standards in order for the testimony to be reliable in

the sense contemplated by Federal Rule of Evidence 702 is an

erroneous statement of the law. Dickenson, 388 F.3d at 980-81

(citing Federal Rule of Evidence 702, Advisory Committee Note

expressly contemplating that an expert may testify on the basis

of experience).42

42

Kumho Tire, 526 U.S. 137, 156 ("[N]o one denies that an

expert might draw a conclusion from a set of observations based

on extensive and specialized experience."); Feliciano-Hill v.

Principi, 439 F.3d 18, 24-25 (1st Cir. 2006) (physician's expert

testimony met Daubert/Rule 702 standards even though he failed

to support his diagnosis with citations to published

authorities; physician offered a "routine diagnosis" on patient

he had examined, related to common condition well within his

expertise); Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th

Cir. 2001) ("There is no requirement that a medical expert must

always cite published studies on general causation in order to

reliably conclude that a particular object caused a particular

illness." (internal quotation marks & quoted source omitted)).

(continued)

34

No. 2014AP195

¶85 The case law teaches that Daubert's role of ensuring

that the courtroom door remains closed to junk science is not

served by excluding medical expert testimony that is supported

by extensive relevant medical experience.43 Such exclusion is

rarely justified in cases involving medical experts. Dickenson,

388 F.3d at 981. See also Daniel W. Shuman, Expertise in Law,

Medicine, and Health Care, 27 J. Health Pol., Pol'y & L. 267

The defendants cite several cases for the proposition that

to offer reliable testimony, Dr. Wener should have based his

testimony on medical literature. The cases are distinguishable

from the instant case. For example, although the court noted in

Berk v. St. Vincent's Hospital & Medical Center, 380

F. Supp. 2d 334 (S.D.N.Y. 2005), that the excluded expert cited

"no germane medical literature," the expert's report was

excluded for other reasons: the expert's report was unsworn,

was based on incorrect factual assumptions, and offered no

methodology other than the expert's say-so. Berk, 380

F. Supp. 2d at 354-56. In contrast, Dr. Wener's testimony was

given under oath; Dr. Wener relied on Braylon's and his mother's

medical reports; Dr. Wener offered a clinical methodology that

applied accepted risk factors to the facts of the instant case;

and the defendants' experts offered testimony that actually

supported Dr. Wener's testimony.

43

The phrase "junk science" is ordinarily used as an

epithet to refer to research or information that is not

credible. See Kumho Tire, 526 U.S. at 159 (Scalia, J.,

concurring) (Kumho makes clear that the discretion it endorses

is "discretion to choose among reasonable means of excluding

expertise that is fausse and science that is junky.").

35

No. 2014AP195

(2001) (characterizing the effect of Daubert and Kumho cases on

claims of medical expertise as "much ado about little").44

¶86 Instead of exclusion, the appropriate means of

attacking "shaky but admissible" experience-based medical expert

testimony is by "[v]igorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of

proof . . . ." Daubert, 509 U.S. at 597.

44

The Wisconsin Medical Society and American Medical

Association filed an amicus brief urging that this court

"recognize that medical opinions supported by unsystematic

clinical observations have reliability limited to those

situations where physicians would not be expected to produce

extrinsic support for their contentions but presumptively fail

to cross the Daubert reliability threshold when tendered to

establish the standard of care in a medical negligence claim."

See Brief of Amicus Curiae Wisconsin Medical Society & American

Medical Association at 9-10.

This argument is not supported in the case law. Expecting

on-point medical literature to define a physician's standard of

care in the penumbra of clinical situations is unreasonable.

See Michelle M. Mello, Using Statistical Evidence to Prove the

Malpractice Standard of Care: Bridging Legal, Clinical, and

Statistical Thinking, 37 Wake Forest L. Rev. 821, 857 (2002).

The author states:

For clinical scenarios involving a high degree of

independent judgment and careful attention to the

individual characteristics of each patient, expert

opinion testimony tailored to the particular situation

at issue in the malpractice case truly does have an

advantage over reliance on practice guidelines or

other standards formulated ex ante[,] . . . derived

from a population of patients that may not resemble

the plaintiff . . . .

Id. at 846.

36

No. 2014AP195

Once evaluated and deemed sufficiently reliable for

admission, that expert opinion [based on personal

experience] is submitted to the "capabilities of the

jury and of the adversary system generally."

Lapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012) (citing

Daubert, 509 U.S. at 596).45

E

¶87 Our next task is to determine the standard for

reviewing the circuit court's gatekeeping determination under

Wis. Stat. § 907.02(1). We refer to federal law to guide our

analysis of the standard for review.

¶88 We examine the circuit court's rulings both

independently as a question of law and also under the erroneous

exercise of discretion standard.

¶89 The interpretation and application of a statute

presents a question of law that this court decides

independently of the circuit court and court of appeals but

benefiting from their analyses. State v. Steffes, 2013 WI 53,

¶15, 347 Wis. 2d 683, 832 N.W.2d 101. It follows that this

court decides whether the circuit court applied the proper legal

standard under Wis. Stat. § 907.02(1) in the first instance

independently of the circuit court and the court of appeals but

benefiting from their analyses. Lees v. Carthage College, 714

F.3d 516, 520 (7th Cir. 2013) ("[w]hether the district court

45

"Shaky but admissible evidence is to be attacked by cross

examination, contrary evidence, and attention to burden of

proof, not exclusion." Primiano, 598 F.3d at 564 (citing

Daubert, 509 U.S. at 596).

37

No. 2014AP195

applied the appropriate legal framework for evaluating expert

testimony is reviewed de novo"); Lewis v. CITGO Petroleum Corp.,

561 F.3d 698, 705 (2009) ("we review de novo whether the court

employed the correct legal standard in reaching its

admissibility decision").

¶90 Once satisfied that the circuit court applied the

appropriate legal framework, an appellate court reviews whether

the circuit court properly exercised its discretion in

determining which factors should be considered in assessing

reliability,46 and in applying the reliability standard to

determine whether to admit or exclude evidence under Wis. Stat.

§ 907.02(1). Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141

(1997).47

¶91 Once the circuit court selects the factors to be

considered in assessing reliability, the circuit court measures

the expert evidence against these factors. The circuit court

also determines whether the witness faithfully and properly

applied the reliability principles and methodology to the facts

of the case.48

46

Blinka, supra note 5, at 19 (citing Kumho Tire, 526 U.S.

at 152).

47

"[T]he law grants the district court great discretion

regarding the manner in which it conducts that evaluation" of

the admissibility of expert testimony. "[W]e have not required

that the Daubert inquiry take any specific form . . . ." Lewis

v. CITGO Petroleum Corp., 561 F.3d 698, 704 (2009).

48

Blinka, supra note 5, at 19, 60 (citing Federal Rule

Evidence 702 Advisory Committee Note (2000)).

38

No. 2014AP195

¶92 In other words, a circuit court has discretion in

determining the reliability of the expert's principles, methods,

and the application of the principles and methods to the facts

of the case.49

¶93 A trial court's decision on admissibility or exclusion

of expert evidence is an erroneous exercise of discretion when a

decision rests upon a clearly erroneous finding of fact, an

erroneous conclusion of law, or an improper application of law

to fact.50

49

In Kumho Tire, the Supreme Court held that trial courts

have great latitude in determining the methods by which they

test the reliability of expert testimony. Indeed the federal

abuse of discretion standard "applies as much to the trial

court's decisions about how to determine reliability as to its

ultimate conclusion." United States v. Charley, 189 F.3d 1251,

1261 n.11 (10th Cir. 1999) (quoting Kumho Tire, 526 U.S. at

152). "[T]he law grants a district court the same broad

latitude when it decides how to determine reliability as it

enjoys in respect to its ultimate reliability determination."

Kumho Tire, 526 U.S. at 142. See also Gen. Elec. Co. v. Joiner,

522 U.S. 136, 146 (1997) ("abuse of discretion is the proper

standard by which to review a district court's order to admit or

exclude scientific evidence.").

"Our case law has recognized that experts in various fields

may rely properly on a wide variety of sources and may employ a

similarly wide choice of methodologies in developing an expert

opinion." Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1020

(7th Cir. 2000).

50

The federal cases state: "An abuse of discretion may

occur as a result of an errant conclusion of law, an improper

application of law to fact, or a clearly erroneous finding of

fact." McDowell v. Philadelphia Housing Auth., 423 F.3d 233,

238 (3d Cir. 2005).

(continued)

39

No. 2014AP195

F

¶94 Against this backdrop of the teachings about the

reliability of expert medical testimony based on personal

experiences and the standards for appellate review of a circuit

court's determination of reliability, we decide whether the

circuit court erred in admitting Dr. Wener's testimony. We

conclude, as did the court of appeals, that the circuit court

did not erroneously exercise its discretion in admitting Dr.

Wener's testimony as reliable under Wis. Stat. § 907.02(1).

¶95 In the first instance, we note, as a matter of law,

that the circuit court applied the proper reliability standard

under Wis. Stat. § 907.02(1).

In Wisconsin, the cases use the phrase "erroneous exercise

of discretion" in place of the phrase "abuse of discretion."

The two phrases are equivalent. We did not change the standard

of review, just the locution. We concluded that the term "abuse

of discretion" carries unjustified negative connotations. City

of Brookfield v. Milwaukee Metro. Sewerage Dist., 171

Wis. 2d 400, 423, 491 N.W.2d 484, 493 (1992). See King v. King,

224 Wis. 2d 235, 248, 590 N.W.2d 480 (1999) ("A circuit court

erroneously exercises its discretion if it makes an error of law

or neglects to base its decision upon facts in the record.");

Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981):

A discretionary determination . . . must demonstrably

be made and based upon the facts appearing in the

record[,] in reliance on the appropriate and

applicable law[,] . . . and most importantly, a

discretionary determination must be the product of a

rational mental process by which the facts of record

and law relied upon are stated and are considered

together for the purpose of achieving a reasoned and

reasonable determination.

40

No. 2014AP195

¶96 Because the circuit court applied the correct Daubert

reliability standard, our review of the circuit court's decision

to admit Dr. Wener's testimony is limited to reviewing whether

the circuit court erroneously exercised its discretion. See

Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376, 380 (1st

Cir. 2000).

¶97 The circuit court made a good, clear record. Based on

the circuit court's extensive oral rulings on the admissibility

of Dr. Wener's testimony as reliable, it is apparent that the

circuit court examined federal and state case law applying the

Daubert standard to medical expert testimony and fairly

considered the defendants' challenges to the admissibility of

Dr. Wener's testimony.

¶98 Because the circuit court was careful in exploring the

applicable law and in setting out its reasoning, we can more

easily review the circuit court's rulings to determine whether

the circuit court erroneously exercised its discretion. We

commend the circuit court's efforts and conclude that the

circuit court's rulings establishing that Dr. Wener's personal

clinical experiences satisfy the reliability requirement, are

well reasoned, and are not an erroneous exercise of discretion.

¶99 The defendants make the following three principal

arguments supporting their position that Dr. Wener's testimony

was unreliable under Wis. Stat. § 907.02(1) and was not applied

reliably:

(1) Dr. Wener's testimony was unreliable under Wis. Stat.

§ 907.02(1) because Dr. Wener did not apply a sound

41

No. 2014AP195

methodology: Dr. Wener's testimony rested on his

qualifications and "personal preferences."

(2) Dr. Wener's testimony was unreliable under Wis. Stat.

§ 907.02(1) because Dr. Wener did not rely on medical

literature or other recognized sources of reliability.

(3) Dr. Wener's application of his opinions to the facts

of the case was flawed because Dr. Wener's testimony

was internally inconsistent.

¶100 We address each of the defendants' arguments in turn.

(1)

¶101 To use defendants' counsel's words, the defendants'

challenge to Dr. Wener's testimony is based on "method, method,

method."

¶102 The circuit court ruled that Dr. Wener's testimony

satisfied the Wis. Stat. § 907.02(1) reliability standard

because his methodology was reliable: Dr. Wener's methodology

is a "classic medical methodology," looking at recognized

medical indicators.

¶103 The circuit court explained that Dr. Wener's

testimony, taken as a whole, demonstrated that Dr. Wener

formulated an opinion about the standard of reasonable care of

family practice doctors practicing obstetrics on the basis of

his experiences, as opposed to simply his own personal

preference. Thus, Dr. Wener had a reliable basis for rendering

an opinion.

¶104 In contrast, the defendants contend that Dr. Wener was

really just opining based on his "personal preferences." The

42

No. 2014AP195

defendants assert that an expert cannot establish that a fact is

generally accepted merely by saying so. They argue that Dr.

Wener's testimony had to be based on the methods and procedures

of science rather than on his subjective belief or unsupported

speculation. According to the defendants, Dr. Wener's opinion

about the standard of reasonable care was connected to existing

data only by his own ipse dixit.

¶105 The circuit court regarded Dr. Wener's methods as the

ordinary methodology of medicine: conscientious use of the

thousands of instances in which he had delivered babies and made

decisions about the care of individual patients and his teaching

and hospital experiences relating to obstetrics. Echoing case

law, the circuit court declared that medicine is "not a science,

but a learned profession deeply rooted in a number of sciences."

¶106 The circuit court viewed Dr. Wener's methodology as

essentially a comparison of the instant case to other

deliveries, reasoning that the Daubert factors were not helpful

in evaluating this methodology because a medical expert's

personal clinical experience is not subject to precise

measurements. "[B]ecause the standard of care is determined by

the care customarily provided by other physicians, it need not

be scientifically tested or proven effective . . . ."

Palandjian v. Foster, 842 N.E.2d 916, 921 (Mass. 2006).

¶107 Dr. Wener gave ample testimony about what a family

practice doctor practicing obstetrics should have known and how

a family practice doctor practicing obstetrics should have acted

in the instant case. Dr. Wener's testimony about the standard

43

No. 2014AP195

of reasonable care of family practice doctors practicing

obstetrics was based on his knowledge of family practice doctors

practicing obstetrics gained through education, his decades of

delivering thousands of babies, his repeated observations in

decades of clinical experiences, and his numerous teaching and

supervisory experiences in important positions in the field of

obstetrics and gynecology. He used his many experiences to

arrive at an opinion in the instant case that is sufficiently

similar to his vast array of clinical experiences over decades

of practice.

¶108 Dr. Wener demonstrated to the circuit court that he

had formed an opinion about the standard of reasonable care of a

family practice doctor practicing obstetrics and that the

opinion had a reliable basis.

¶109 The circuit court concluded on the basis of the record

and case law that it had adequate grounds to view Dr. Wener's

testimony as not subjective belief, unsupported conjecture, or

ipse dixit. The circuit court ruled that Dr. Wener's

methodology was reliable based on Dr. Wener's extensive personal

experiences. In other words, Dr. Wener's testimony was based on

"good grounds." Daubert, 509 U.S. at 590.

¶110 Characterizing its pretrial decision as "a close

call," and looking at the vagaries of medical treatment and

diagnosis, the circuit court concluded that Dr. Wener's

testimony was "reliably based on a reliable medical methodology

looking at recognized factors of the standard of care."

44

No. 2014AP195

¶111 The circuit court declared that Dr. Wener looked at

recognized risk factors and, using his own varied experiences,

concluded that the defendant doctor breached the standard of

reasonable care by failing to weigh these risk factors.

According to the circuit court, Dr. Wener used his knowledge and

experience as a basis for weighing known factors along with the

inevitable uncertainties to make a sound judgment. Dr. Wener's

testimony was not based on his personal preference, ruled the

circuit court; it was based on clinical experience, a reliable

methodology.

¶112 The circuit court determined that the way in which Dr.

Wener "adds [the factors up] is debatable, but that's not the

same as saying the way that Dr. Wener adds them up is not

reliable." According to the circuit court, Dr. Wener explained

the bases for his opinions in sufficient detail to permit the

jury to evaluate his conclusions.

¶113 The circuit court obviously relied on Daubert case law

in making its determination of reliability and used the language

and reasoning set forth in the case law to rule on the

reliability and admissibility of Dr. Wener's expert medical

testimony based on personal experiences.

¶114 The circuit court regarded the defendants' contention

that Dr. Wener's opinions are unreliable because they are

untestable as failing from the outset. According to Daubert,

testability is not a prerequisite to admission. Testability,

like all of the Daubert factors, is a suggested way to assess

methodology, not a required way to assess methodology.

45

No. 2014AP195

¶115 The circuit court ruled that Dr. Wener's testimony was

testable and met the Wis. Stat. § 907.02(1) standard. The

circuit court reasoned that "the testable principles[ ] are the

biological and physiological and anatomical principles that

inform the conclusions that arise."

¶116 The circuit court also explained that the defendants

could (and did) test Dr. Wener's testimony through cross

examination, further explaining that although "medicine is a

science, it is not a quantified science. It is not a

measurement, in many respects. It is not engineering."

¶117 The circuit court further compared Dr. Wener's

testimony with the testimony of defense experts, including Dr.

Michelle Grimm, a defense expert on medical engineering, and Dr.

Dwight Jonathan Rouse, an obstetrician with additional training

in maternal fetal medicine.

¶118 According to the circuit court, some defense expert

testimony actually supported Dr. Wener's testimony. For

example, both Dr. Wener and the defense expert witnesses

testified that applying excessive traction beyond what the fetus

can withstand during childbirth violates the standard of

reasonable care.

¶119 Accordingly, the circuit court declared that the

context of the entire case supported admitting Dr. Wener's

testimony as reliable:

[A]fter the trial there is a lot more context within

which to analyze the issues in respect to Dr. Wener's

testimony.

46

No. 2014AP195

. . . .

And I still believe that Dr. Wener's testimony met the

Daubert standards as that applies to medical

testimony.

. . . .

And after trial, Dr. Werner's position looked every

bit as good, and better, than it did pretrial when the

context of the other experts, Grimm and Rouse,

particularly, was taken into account. And so I stand

on my prior rulings as to Dr. Wener as supplemented

here today with what we know after trial. His

testimony was properly admitted, to the extent it was

admitted.

¶120 In sum, the circuit court ruled that Dr. Wener's

principles and methods were sufficiently reliable to be

admitted, emphasizing that Dr. Wener's testimony, although

shaky, is not junk science and that Dr. Wener is not a junk

scientist:

Dr. Wener's opinions are shaky due to their

generality, but I conclude that they are sufficiently

reliable to be admitted. The methodology employed is

what I will call, I guess, holistic. The defense

motion parses out the various factors and how they

don't match a body of opinion about that particular

factor. . . . [T]he essence of Dr. Wener's opinion [is

that] these elements converge and then the sum is

greater than the total of the parts, essentially.

It's not something that's been peer reviewed or

published because it's an individualized determination

based upon the facts of this case, and in using known

factors.

¶121 We conclude, as did the court of appeals, that the

circuit court did not erroneously exercise its discretion when

it concluded that the Daubert factors were not helpful and that

Dr. Wener's clinical methodology rendered his expert medical

47

No. 2014AP195

testimony on the standard of reasonable care based on his

personal experiences reliable under Wis. Stat. § 907.02(1).

¶122 Dr. Wener's opinion based on his personal experiences

satisfied the reliability standard. He identified established

risk factors (principles). He then used classic, ordinary

medical methods to establish the standard of care of a family

practice doctor practicing obstetrics and to opine that the

defendant doctor breached this standard.

¶123 In the instant case, the reliability standard entails

the circuit court's assessment of methodology. In expert

medical evidence, the methodology often relies on judgment based

on the witness's knowledge and experience. Accordingly,

reliability concerns may focus on the personal knowledge and

experience of the medical expert witness. Dr. Wener's testimony

was based on his knowledge of and experience with obstetrics and

family practice doctors practicing obstetrics. He gained his

knowledge through education, his decades of delivering thousands

of babies, his repeated observations during decades of clinical

experiences, and his numerous teaching and supervisory

experiences in the fields of obstetrics and gynecology. Because

Dr. Wener applied an accepted medical method relied upon by

physicians and had extensive personal experiences and knowledge

pertaining to the standard of reasonable care, the circuit court

did not erroneously exercise its discretion in admitting his

testimony.

(2)

48

No. 2014AP195

¶124 The defendants argue that Dr. Wener's testimony was

mere speculation because it was not supported by even one peer

reviewed publication or medical text. The defendants correctly

contend, as we stated previously, that an expert cannot

establish that a fact is generally accepted merely by saying so.

¶125 With respect to the defendants' arguments that Dr.

Wener's testimony was not reliable because he did not rely on

medical literature, the circuit court concluded that Dr. Wener's

approach is "not something that's been peer reviewed or

published because it's an individualized determination based

upon the facts of this case, and in using known factors" such as

estimated maternal weight, fetal weight, and glucose levels.

¶126 Indeed, on cross-examination Dr. Wener said he was

aware of the medical literature but that there was a wide range

of statistics in the literature so that the publications were

not helpful and did not directly contradict his testimony.

¶127 For example, Dr. Wener concluded that, considering all

of the risk factors in totality, the defendant doctor breached

the standard of reasonable care by failing to order a three-hour

glucose test after the one-hour test's result exceeded 130

mg/dL. The defendants, citing American College of Obstetricians

and Gynecologists, Clinical Management Guidelines for

Obstetrician-Gynecologists No. 30 (Sept. 2001) (reaffirmed 2008)

[hereinafter Guidelines], argued that Dr. Wener's opinion was

erroneous because the Guidelines suggest that the reasonable

standard of care requires a three-hour test when the mother's

one-hour test result exceeds 140 mg/dL. The publication notes,

49

No. 2014AP195

however, that either the 130 or 140 mg/dL "threshold is

acceptable." Guidelines at 762. Furthermore, the publication

expressly states that it does not prescribe a standard of care:

"These guidelines should not be construed as dictating an

exclusive course of treatment or procedure. Variations in

practice may be warranted based on the needs of the individual

patient, resources, and limitations unique to the institution or

type of practice." Guidelines at 759. Dr. Wener's testimony

did not directly contradict the guidelines.

¶128 The circuit court did not bar Dr. Wener's testimony on

the ground that Dr. Wener did not cite to any publications as

support, reasoning that peer-reviewed literature would not be

all that useful in the experience-specific methodology that Dr.

Wener applied in the instant case.

¶129 The circuit court's conclusion was not an erroneous

exercise of discretion. Dr. Wener's failure to rely on

literature is no bar to admissibility. Daubert supports the

circuit court in the instant case: "Publication (which is but

one element of peer review) is not a sine qua non of

admissibility; it does not necessarily correlate with

reliability." Daubert, 509 U.S. at 593.

(3)

¶130 Reliable application, or "fit," is the final step in

the Daubert analysis. The defendants argue that Dr. Wener

failed to reliably apply his methodology to the facts.

¶131 The defendants argue that Dr. Wener's "holistic"

methodology was unreliable. We have already discussed Dr.

50

No. 2014AP195

Wener's methodology (as part of our analysis of the defendants'

objections to Dr. Wener's testimony) and concluded that the

circuit court did not err in declaring that Dr. Wener's use of a

constellation of factors is reliable, as doctors usually apply

this method when treating patients.

¶132 The defendants also contend that Dr. Wener improperly

applied his method to the instant case because his testimony was

riddled with inconsistencies. The circuit court correctly

concluded that inconsistencies do not necessarily render expert

testimony unreliable; they go to the weight of the testimony:

"Vigorous cross-examination, presentation of contrary evidence,

and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but

admissible evidence." Daubert, 509 U.S. at 596.

¶133 The defendants argue in this court that Dr. Wener's

experience-based testimony was not reliably applied,

specifically objecting to three of Dr. Wener's opinions related

to prenatal care and the delivery of Braylon. The defendants

objected to Dr. Wener's statements that the defendant doctor

breached the standard of care by failing to order a three-hour

glucose test; that the defendant doctor breached the standard of

care by failing to perform an ultrasound immediately prior to

delivery; and that the defendant doctor breached the standard of

care by doing a vacuum-assisted delivery. The defendants again

argue that these opinions are personal preferences and that

personal preference is not a permissible basis for an expert

opinion.

51

No. 2014AP195

¶134 The circuit court reviewed Dr. Wener's discussion of

the generally accepted risk factors of shoulder dystocia——

elevated birth weight, maternal obesity, and gestational

diabetes——and his application of these risk factors, in

totality, to the facts of the instant case. The circuit court

acknowledged that just as clinical medical practice entails

evaluating a specific patient and applying known risk factors or

variables, Dr. Wener's testimony analyzed Braylon's mother's

prenatal care and the delivery of Braylon with respect to the

three risk factors that he adduced at trial. The circuit court

did not view Dr. Wener's testimony as stating a personal

preference, but as based on reliable medical methods.

¶135 Furthermore, Dr. Wener's testimony regarding threshold

glucose levels for gestational diabetes and macrosomia did not

necessarily contradict the defendants' experts: Each offered a

spectrum of ranges under which the risks warranted special care,

and their spectrums overlapped. Any disagreement, ruled the

circuit court, goes to the weight of Dr. Wener's testimony, not

its admissibility.

¶136 For the reasons set forth by the circuit court, we

conclude that the circuit court did not erroneously exercise its

discretion in admitting Dr. Wener's testimony as reliable based

on personal experiences and that Dr. Wener reliably applied his

methodology to the facts. The circuit court kept the gate open

52

No. 2014AP195

to the opinion of Dr. Wener, a qualified OB-GYN. "[T]rial

judges are gatekeepers, not armed guards."51

II

¶137 The second issue we must address is whether three

remarks separately or together made by Braylon's counsel during

his closing arguments prejudiced the defendants, justifying a

new trial. We will set out each of the remarks and address each

of the defendants' arguments for a new trial. Ultimately, we

agree with the court of appeals that the circuit court properly

exercised its discretion by rejecting the defendants' motion for

a new trial.

¶138 We begin by noting that although the defendants

contemporaneously objected to Braylon's counsel's remarks, the

defendants erred by failing to move for a mistrial. Generally,

an offended party must object and then move for a mistrial to

preserve a challenge to prejudicial remarks. Hansen v. State,

64 Wis. 2d 541, 551-52, 219 N.W.2d 246 (1974). The court of

appeals nonetheless addressed this issue by exercising its

discretionary authority. Seifert ex rel. Scoptur v. Balink,

51

29 Wright & Gold, supra note 17, § 6268.2 (citing Ruiz-

Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77,

86 (1st Cir. 1998)).

See Guild v. Gen. Motors Corp., 53 F. Supp. 2d 363

(W.D.N.Y. 1999) ("[T]rial judges acting as gatekeepers under

Daubert must not assume 'the role of St. Peter at the gates of

heaven, performing a searching inquiry into the depth of an

expert witness's soul' and thereby usurp 'the ageless role of

the jury' in evaluating witness credibility and weight of the

evidence." (quoted source omitted)).

53

No. 2014AP195

2015 WI App 59, ¶36 n.10, 364 Wis. 2d 692, 869 N.W.2d 493

(citing Pophal v. Siverhus, 168 Wis. 2d 533, 545, 484 N.W.2d 555

(Ct. App. 1992)). We do the same.

¶139 We review a circuit court's decision to deny a motion

for a new trial under an erroneous exercise of discretion

standard.52 An order for a new trial based on improper

statements of counsel is appropriate if it "'affirmatively

appear[s]' that the remarks prejudiced the complaining party."

Wausau Underwriters Ins. Co. v. Dane Cty., 142 Wis. 2d 315, 329-

30, 417 N.W.2d 914 (Ct. App. 1987) (quoting Roeske v. Schmitt,

266 Wis. 557, 572, 64 N.W.2d 394 (1954)). This standard is

satisfied when the circuit court is convinced that "the verdict

reflects a result which in all probability would have been more

favorable to the complaining party but for the improper

argument."53 Related to our review of a circuit court's decision

to deny the defendants' motion for a new trial is the assumption

that "a properly given admonitory instruction is followed" and

that "the jury acted according to law." State v. Pitsch, 124

Wis. 2d 628, 645 n.8, 369 N.W.2d 711 (1985) (citations omitted).

(1)

¶140 The defendants assert that Braylon's counsel made an

impermissible and prejudicial reference to the rules of the road

52

Wagner v. Am. Family Mut. Ins. Co., 65 Wis. 2d 243, 249,

222 N.W.2d 652 (1974).

53

Wagner, 65 Wis. 2d at 249.

54

No. 2014AP195

during his closing argument.54 The following is Braylon's

counsel's reference to the rules of the road during closing

argument:

Thank you. Okay, well, on a nice, beautiful sunny

day, clear skies, 65 miles an hour is probably fine.

But there may be factors that you have to consider

that would make that not fine. That would make you

question whether that's the speed you should be going.

Let's say it's pouring rain, let's say it's snowing.

You're not going to look at that number the same. And

Dr. Wener, who I'll talk about in a moment, explained

that to you. And this is the issue in this case about

gestational diabetes.

No one is denying that they're throwing these two

numbers out; 130 and 140. But what he tried to

explain to you was when you have a big mom, who has an

increased risk of gestational diabetes because of her

weight, and an increased risk of a big baby because of

her weight, you've got to consider which of these

numbers you're going to use.

His point was what's safe at one speed might not be at

another. And that you have to consider those issues.

¶141 The defendants made timely objections to these

statements, which the circuit court overruled. The defendants

also challenged these statements in their motion after the

verdict. They argued that these statements violated the circuit

court's order in limine and that the statements prejudicially

confused the jury in regard to the applicable standard of

reasonable care. The defendants asserted that as a result of

54

The circuit court granted a motion in limine to prohibit

Braylon's counsel from analogizing medical negligence to the

failure of a driver to follow the rules of the road.

55

No. 2014AP195

Braylon's counsel's statements, "the jury was left with the

impression that Dr. Wener's opinions regarding standards of care

could be equated to speed limits and weather hazards on the

roadway."

¶142 The circuit court rejected this argument. The circuit

court decided that Braylon's counsel's analogy to driving a car

in various weather conditions did not violate the order in

limine. Instead, the circuit court interpreted Braylon's

counsel's statement as "an attempt to analogize and to put into

context Dr. Wener's theory of these additive elements as they

pile up with the total being more than the sum of its parts,"

not as an analogy to ordinary negligence.

¶143 Further, in regard to the defendants' concern that the

jury was confused as to the applicable standard of reasonable

care, the circuit court concluded that the jury was not confused

about the standard of care to apply:55 The jurors were

instructed to "find a standard of care for medical negligence."

Jurors are assumed to follow jury instructions. Accordingly,

the circuit court concluded that "there is no reason to believe"

Braylon's counsel's statements were prejudicial or could be

interpreted by the jury in a way that would violate the in

limine order.

55

The circuit court also noted, "We have to remember that

the juror's [sic] don't even know what regular negligence is,

probably. They weren't instructed on regular

negligence. . . . They were given one instruction."

56

No. 2014AP195

¶144 The court of appeals agreed with the circuit court and

concluded that Braylon's counsel did not violate the circuit

court's order in limine and that counsel's analogy to drivers

did not prejudice the defendants. The court of appeals reasoned

that instead of comparing ordinary negligence and medical

negligence, "the analogy illustrated the interplay of the

alleged risk factors present in this case through a comparison

to the interplay of various weather conditions that might affect

a driver's decision-making process."56

¶145 Further, the court of appeals concluded that there was

no indication that the absence of the analogy would have

resulted in a different verdict. The analogy pertained to

gestational diabetes testing thresholds, which was just one

aspect of the evidence presented to the jury on the issue of the

standard of reasonable care. The circuit court instructed the

jury that its decision must be based only on the evidence

presented to the jury and nothing else, including the statements

of counsel.

¶146 We agree with the reasoning and conclusion of the court

of appeals.

(2)

¶147 Turning to another remark of Braylon's counsel, the

defendants assert that they were prejudiced because Braylon's

counsel made an impermissible "Golden Rule" argument in

56

Seifert, 364 Wis. 2d 692, ¶40.

57

No. 2014AP195

violation of an order in limine. "Golden Rule" arguments arise

when counsel asks "the jurors to place themselves in the

position of someone claiming injury or damage and ask[s] the

jurors what they would want as compensation." State v. DeLain,

2004 WI App 79, ¶23, 272 Wis. 2d 356, 679 N.W.2d 562.

¶148 An order in limine prohibited Braylon's counsel from

making statements that might suggest that the jury determine

whether medical negligence occurred based on the jurors' own

knowledge, experience, common sense, or what they would want or

deserve.

¶149 The defendants assert that Braylon's counsel violated

the order in limine when he stated:

Now, you heard some testimony from the defense

experts, and I'll talk about them as I go along in

this case as well and their bias, where they're coming

from. You heard somebody actually get up on the

witness stand and say——Dr. Rouse, I think it was——if

it was 139, I wouldn't have done anything. Really?

If it was 139, I would have done nothing different.

Is that reasonable to you? Is that reasonable

medicine to you? Is that how you want your doctor to

care?

. . . .

Is that what you want? You want a doctor to treat

you, or you want a doctor to say, well, you're at 139.

You're not at 140. No test for you. Or do you want a

doctor to think about you?

¶150 The defendants' counsel objected to these remarks at

trial, and Braylon's counsel withdrew the first remark. The

circuit court sustained the defendants' objection to the second

remark. The circuit court, however, did not strike either

statement, opting instead to give a "curative" instruction.

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No. 2014AP195

¶151 The curative instruction followed counsel's remarking:

"How do you want to be with your healthcare? Do you want to be

a participant in your healthcare?" The curative instruction

stated: "There aren't a lot of rules about what can and can't

be argued, but one of them is that a lawyer may not ask a juror

to place themselves in the position of the injured person or the

doctor for that matter. Not sure that's what was going on, but

if you got that idea, disregard it."

¶152 The defendants argued in their motion after the

verdict that these "Golden Rule"-type statements were

prejudicial and warranted a new trial. They argued that

arguments involving what a juror would want from his or her

doctor are irrelevant and appeal to the jurors' emotions. They

further argued that involving jurors' personal feelings about

the standard of care caused the jury to consider a standard of

care inconsistent with the reasonable physician standard. They

also argued that these statements violated the circuit court's

order in limine.

¶153 The circuit court refused to order a new trial on

"Golden Rule" grounds. The circuit court explained that

Braylon's counsel's statements were "not [] classic "golden

rule" violations, where the jurors were explicitly asked to

place themselves in the position of the plaintiff." The circuit

court noted that its curative instruction obviated any prejudice

which may have resulted from Braylon's counsel's remarks. The

circuit court denied the defendants' request for a new trial.

59

No. 2014AP195

¶154 The circuit court is in the best position to evaluate

"Golden Rule" statements and should look at a variety of factors

such as "the nature of the case, the emphasis upon the improper

measuring stick, the reference in relation to the entire

argument, [and] the likely impact or effect upon the jury."

Rodriguez v. Slattery, 54 Wis. 2d 165, 170, 194 N.W.2d 817

(1972).

¶155 The court of appeals concluded that the circuit court

did not erroneously exercise its discretion for the following

reasons:

• These were not pure "Golden Rule" violations because

the jurors were not asked to place themselves in the

victim's shoes.

• Even if these remarks were "Golden Rule" violations,

the circuit court gave the curative instruction stated

above.

• The remarks, in light of the entire argument presented

to the jury, did not affirmatively prejudice the

defendants.57

¶156 We agree with the court of appeals' analysis that

these remarks did not violate the order in limine.

¶157 In sum, because the circuit court properly considered

objections to Braylon's counsel's statements during trial and

after the verdict and provided a curative instruction, we

57

Seifert, 364 Wis. 2d 692, ¶46.

60

No. 2014AP195

conclude that the circuit court did not erroneously exercise its

discretion by denying the defendants' motion for a new trial on

the basis of these remarks.

(3)

¶158 Turning to their final challenge, the defendants argue

that they were prejudiced by Braylon's counsel's remarks (1)

disparaging the defendants' attorney and (2) suggesting to the

jurors that the jurors were experts.

¶159 The defendants refer to the following remarks:

• I spoke to you in my closing argument and I

addressed issues. I didn't tell you what to do.

I didn't tell you you're not experts. I didn't

tell you you're not that smart. I didn't tell

you don't know the law. Apparently I have a

little more respect for you than Mr. Leib does.

• I've got a little more faith in you than he does,

because he spent the last hour and a half telling

you what to do, telling you what you can't do,

telling you what you don't know and that you're

not going to be experts——you're not going to know

the information. I disagree.

• These are the kind of arguments you make to

juries if you think they're not too smart. Fool

you, scare you, you know? You people are from

Lancaster. How smart could you be, right? I

think you're pretty smart. I think you get it.

I think you see through all this nonsense. I

think you should be respected, not told what to

do or fooled. You should be talked to like

adults, make you own decisions about this case.

Not be told what to do.

• This shell game, you know, this game that they're

trying to play with you. You know, it's that

game, you know, when you go to the fair? Where's

the ball? Whoa, whoa, whoa, where's the ball?

That's what they tried to do to you. It's a

matter of respect. I don't do it to you. I'm

61

No. 2014AP195

giving you the information, you'll figure it out.

I'm not telling you what to do. You're smart.

• So when Mr. Leib comes before you and makes his

big grandstand move. Where's this one, where's

that one? Where's this one? Well, you know,

it's just not true. It's a matter, again, of

respect. It's a matter of respecting you as a

group and trying to fool you. You're not going

to get fooled. You're pretty damn smart. You're

not going to get fooled. I don't think you'll

get fooled.

• You have common sense and you can analyze the

expert testimony and you're smart enough to do

it. I'm like, again, I'm like Mr. Leib. I have

a lot of faith in your smarts. I think you are

experts in a sense. I think you've learned quite

a bit and I think you can make good decisions. I

don't have to tell you what to do or how to do

it. I'm not going to do that. But think it

through, ladies and gentlemen.

• Unlike Mr. Leib, I think you're smart people and

I think you've learned the medicine and I think

you are experts in a sense.

¶160 The circuit court concluded that, in context, these

statements (and others of a similar vein) were not prejudicial or

improper. The circuit court explained that these were rebuttal

statements made in response to the defendants' "strenuous

argument" and were meant to empower the jury to weigh the

conflicting expert testimony and make the required credibility

determinations.

¶161 The circuit court also explained that in a complex

medical malpractice case filled with days of expert medical

testimony, jurors have to make a finding based on medical

evidence, so they do "in a sense become expert." The circuit

court concluded there was nothing wrong with telling jurors that

62

No. 2014AP195

they are smart while simultaneously characterizing defense

counsel's view of the jurors as that they are "dumb."

¶162 Considering the context in which these remarks arose,

we conclude that the circuit court did not erroneously exercise

its discretion in ruling in favor of Braylon. Braylon's

counsel's remarks were used to empower the jury to perform its

essential role of weighing conflicting testimony and making

credibility determinations.

¶163 The remarks at issue did not cause the jury to reach a

decision that it would not have reached otherwise. Accordingly,

we affirm the court of appeals' decision that the circuit court

did not erroneously exercise its discretion in concluding that

Braylon's counsel's remarks during closing argument did not

constitute prejudicial error justifying a new trial.

III

¶164 Lastly, the defendants argue that this court should

grant their motion for a new trial in the interests of justice

under Wis. Stat. § 751.06.58 They claim that justice was not

58

Wisconsin Stat. § 751.06 provides:

Discretionary reversal. In an appeal in the supreme

court, if it appears from the record that the real

controversy has not been fully tried, or that it is

probable that justice has for any reason miscarried,

the court may reverse the judgment or order appealed

from, regardless of whether the proper motion or

objection appears in the record, and may direct the

entry of the proper judgment or remit the case to the

trial court for the entry of the proper judgment or

for a new trial, and direct the making of such

amendments in the pleadings and the adoption of such

(continued)

63

No. 2014AP195

served because the circuit court admitted Dr. Wener's unreliable

testimony and did not order a new trial in response to Braylon's

counsel's prejudicial remarks.

¶165 We have already concluded that the circuit court did

not erroneously exercise its discretion by admitting Dr. Wener's

testimony or by failing to grant a new trial on the basis of

Braylon's counsel's remarks. Nevertheless, we will elaborate

further on Wis. Stat. § 751.06.

¶166 Under this court's interpretations, Wis. Stat.

§ 751.06 rarely calls for a new trial. This court has often

expressed its "reluctan[ce] to grant a new trial in the interest

of justice" and has stated that it "exercises its discretionary

power only in exceptional cases." State v. Cuyler, 110

Wis. 2d 133, 141, 327 N.W.2d 662 (1983) (ordering new trial

where trial court misread evidentiary statute and thus

prohibited material witnesses from testifying). Such

"exceptional" cases occur in two situations: (1) "when the real

controversy has not been fully tried" and (2) "when it is

probable that justice has for any reason been miscarried."

Vollmer v. Luety, 156 Wis. 2d 1, 7, 456 N.W.2d 797 (1990).

procedure in that court, not inconsistent with

statutes or rules, as are necessary to accomplish the

ends of justice.

64

No. 2014AP195

¶167 The real controversy was fully tried in the instant

case and there is no "substantial degree of probability that a

different result was likely to be produced on retrial.59

¶168 For the reasons set forth, we affirm the decision of

the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

59

Discretionary reversals based on a miscarriage of justice

are appropriate when this court "determine[s] to a substantial

degree of probability that a different result was likely to be

produced on retrial." State v. Wyss, 124 Wis. 2d 681, 741, 370

N.W.2d 745 (1985).

65

No. 2014AP195.akz

¶169 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I

concur only in the court's conclusion to affirm the decision of

the court of appeals. I do not join the lead opinion for two

reasons. First, the lead opinion does not sufficiently address

the legislature's 2011 changes to Wis. Stat. § 907.02 (2009-10),

which had significant effect on the admissibility of expert

opinion testimony in Wisconsin. The legislature has now

tightened the applicable standard. Second, the lengthy lead

opinion does not adequately guide trial courts with regard to

how they should apply Wis. Stat. § 907.02 (2013-14).1 I write to

clarify that § 907.02 has now changed the gatekeeping function

of the trial court concerning the admissibility of expert

testimony. Simply stated, the trial court now must adhere to and

apply the heightened Daubert-Wis. Stat. § 907.02 standard. In

my view, a best practice for trial courts and counsel is to

create a detailed, complete record regarding why any particular

expert's testimony meets the heightened scrutiny due under

§ 907.02. The trial court's determinations here are upheld

under the facts of this case because the trial court did not

erroneously exercise its discretion in admitting the testimony

of Dr. Wener.

¶170 While I agree that this court should uphold the

circuit court's decision to admit Dr. Wener's expert testimony

at trial, I reach this conclusion in spite of the fact that the

legislature tightened the standard of admissibility of expert

1

All subsequent references to the Wisconsin Statutes are to

the 2013-14 version unless otherwise indicated.

1

No. 2014AP195.akz

opinion testimony when it amended Wis. Stat. § 907.02 (2009-10).

The circuit court did not "appl[y] an improper legal standard or

make[] a decision not reasonably supported by the facts of

record" in admitting Dr. Wener's testimony, 118th St. Kenosha,

LLC v. DOT, 2014 WI 125, ¶18, 359 Wis. 2d 30, 856 N.W.2d 486

(quoting 260 North 12th St., LLC v. DOT, 2011 WI 103, ¶38, 338

Wis. 2d 34, 808 N.W.2d 372), and its decision should be upheld.

See id. I view the record below, however, as a "close call"

which might not survive appellate review had this been a

different case type.

I

¶171 We have recognized that the legislature amended Wis.

Stat. § 907.02 (2009-10) in 2011 Wisconsin Act 2 in order "to

adopt the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), reliability standard as stated in Federal Rule of

Evidence 702." 260 North 12th St., 338 Wis. 2d 34, ¶55 n.10.

Allow me to provide background concerning the federal adoption

of Daubert. Unlike in Wisconsin, where the Daubert standard

heightened the level of scrutiny to apply to expert witnesses,

in the federal system, Daubert loosened the standard for

admission of expert testimony.

¶172 To begin with, while the federal rule, Rule 702, may

"embod[y] a liberal standard of admissibility for expert

opinions," Nimely v. City of New York, 414 F.3d 381, 395 (2d

Cir. 2005), it is liberal as compared to the standard it

"superseded," namely the so-called Frye "'general acceptance'

test," Daubert, 509 U.S. at 585-87 (named for Frye v. United

2

No. 2014AP195.akz

States, 293 F. 1013 (D.C. Cir. 1923)). See Nimely, 414 F.3d at

395-96. It is not liberal as compared to Wisconsin's prior test

for admitting expert testimony.

¶173 Frye's "austere standard" "made 'general acceptance'

[of the matter upon which expert scientific testimony is based]

the exclusive test for admitting expert scientific testimony."

Daubert, 509 U.S. at 585-86, 589. Daubert recognized that the

Federal Rules of Evidence, on the other hand, did not mandate

general acceptance, consistent with the Rules' "general approach

of relaxing the traditional barriers to 'opinion' testimony."

Id. at 588-89 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S.

153, 169 (1988)).

¶174 In Wisconsin, however, there is no "traditional

barrier[]" à la Frye for the legislature's adoption of Rule 702

to "relax[]." See State v. Walstad, 119 Wis. 2d 483, 516, 351

N.W.2d 469 (1984) ("The Frye concept is alien to the Wisconsin

law of evidence."). Wisconsin's prior standard of admissibility

of expert evidence was considerably more accommodating than

either the Frye test or Rule 702's standard. As stated, Frye's

yardstick is "general acceptance." Rule 702 mandates, inter

alia, that expert testimony be "based on sufficient facts or

data" and "the product of reliable principles and methods" and

that the expert testifying "reliably appl[y] the principles and

methods to the facts of the case." Fed. R. Evid. 702(b)-(d).

In contrast, under the previous Wisconsin standard "questions of

the weight and reliability of relevant evidence [were] matters

for the trier of fact." State v. Fischer, 2010 WI 6, ¶7, 322

3

No. 2014AP195.akz

Wis. 2d 265, 778 N.W.2d 629. "[E]xpert testimony [was]

generally admissible in the circuit court's discretion if the

witness [was] qualified to testify and the testimony would help

the trier of fact understand the evidence or determine a fact at

issue." State v. Kandutsch, 2011 WI 78, ¶26, 336 Wis. 2d 478,

799 N.W.2d 865. This was a "low threshold." State v. Shomberg,

2006 WI 9, ¶67, 288 Wis. 2d 1, 709 N.W.2d 310 (Butler, J.,

dissenting) (citing State v. St. George, 2002 WI 50, ¶39, 252

Wis. 2d 499, 643 N.W.2d 777).

¶175 The fact that the legislature has added three new

prerequisites to the admission of expert testimony in Wisconsin

means that it now requires more of a showing and further trial

court analysis before expert testimony may be introduced. That

the legislature now requires——in addition to its earlier

mandates of a qualified expert and sufficiently helpful

testimony, Kandutsch, 336 Wis. 2d 478, ¶26——testimony "based

upon sufficient facts or data," testimony which is "the product

of reliable principles and methods" and a witness who has

"applied the principles and methods reliably to the facts of the

case," Wis. Stat. § 907.02(1), suggests that trial courts must

now be much more piercing in their evaluation of proffered

expert testimony. The days of relatively easy admission of

expert testimony into Wisconsin courtrooms are over. The trial

courts' gatekeeping function has changed in light of § 907.02.

¶176 The Wisconsin legislature's adoption of the Daubert

standard was part of a larger seemingly legislative reaction to

Wisconsin Supreme Court decisions; one observer argues that "Act

4

No. 2014AP195.akz

2 generated the most significant changes in at least sixteen

years to Wisconsin's civil litigation system by limiting the

applicability of 'risk contribution' theory, capping punitive

damages, and mandating damages for frivolous claims," "most

drastically chang[ing] the areas of strict products liability

and expert opinion testimony." Kristen Irgens, Comment,

Wisconsin Is Open for Business or Business Just As Usual? The

Practical Effects and Implications of 2011 Wisconsin Act 2, 2012

Wis. L. Rev. 1245, 1247 (2012) (footnotes omitted); see

Honorable Diane S. Sykes, Reflections on the Wisconsin Supreme

Court, 89 Marq. L. Rev. 723, 737-38 (2006) (arguing that certain

"cases from the last term reflect a court quite willing to

aggressively assert itself to implement the statewide public

policies it deems to be most desirable," and that "[t]he court

is loosening the usual constraints on the use of its power,

freeing itself to move the law essentially as a legislature

would, except that its decisions are for the most part not

susceptible of political correction as the legislature's would

be").2

¶177 Previously this court has rejected the invitation to

follow the Daubert approach taken in the federal courts with

2

Compare, e.g., Thomas ex rel. Gramling v. Mallett, 2005 WI

129, ¶¶178-79, 285 Wis. 2d 236, 701 N.W.2d 523 (Wilcox, J.,

dissenting) (contending that the court's "expansion" of risk-

contribution theory "amounts to an unwarranted and unprecedented

relaxation of the traditional rules governing tort liability,

and raises serious concerns of fundamental fairness"), with 14

Jay E. Grenig, Wisconsin Practice Series: Elements of an Action

§ 14:5, at 765 (2015-2016 ed.) (arguing that Act 2 "limits the

holding of Thomas").

5

No. 2014AP195.akz

regard to expert testimony. See Fischer, 322 Wis. 2d 265, ¶7

("[T]here is no reason for us to revisit [in this case]

Wisconsin's well-established role for the circuit court where

expert testimony is proffered. The law in Wisconsin continues

to be that questions of the weight and reliability of relevant

evidence are matters for the trier of fact. . . . We, therefore,

decline to adopt a Daubert-like approach to expert testimony

that would make the judge the gatekeeper."). Act 2 negates this

decision, transforming Wisconsin law so that it now adheres to

Federal Rule 702's heightened standard. To minimize the

significance of this change, as the lead opinion might be read

to do, contravenes the requirement of Wisconsin's Act 2, which

clearly contemplates a more substantial burden on litigants who

seek to have expert testimony admitted in Wisconsin courts.

¶178 Importantly, even after Daubert, trial courts retain

substantial discretion in deciding whether to admit expert

testimony. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S.

137, 141–42 (1999) ("[T]he test of reliability is 'flexible,'

and Daubert's list of specific factors[3] neither necessarily nor

3

In Daubert the Supreme Court "discussed

certain . . . factors . . . some or all of which might prove

helpful in determining the reliability of a particular

scientific 'theory or technique.'" Kumho Tire Co. v. Carmichael,

526 U.S. 137, 141 (1999) (quoting Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993)). The Daubert

Court pointed to "whether [a theory or technique] can be (and

has been) tested," "whether the theory or technique has been

subjected to peer review and publication," "the known or

potential rate of error," and whether there is "general

acceptance" of the matter within the "relevant scientific

community." Daubert, 509 U.S. at 593-94 (quoting United States

v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)).

6

No. 2014AP195.akz

exclusively applies to all experts or in every case. Rather,

the law grants a district court the same broad latitude when it

decides how to determine reliability as it enjoys in respect to

its ultimate reliability determination." (quoting Daubert, 509

U.S. at 594)). Moreover, the question before this court in

reviewing the circuit court's evidentiary decision below "is not

whether this court agrees with the ruling of the trial court,

but whether appropriate discretion was in fact exercised."

Martindale v. Ripp, 2001 WI 113, ¶29, 246 Wis. 2d 67, 629

N.W.2d 698 (quoting State v. Wollman, 86 Wis. 2d 459, 464, 273

N.W.2d 225 (1979)).

¶179 Given the foregoing, the facts of this current case

might stand as a poor example to clearly illustrate the

heightened standard of Wis. Stat. § 907.02. This court today

decides that the court below did not erroneously exercise its

discretion but does little to advise courts how to apply the new

heightened standard to other cases involving different expert

testimony. I note that, had the circuit court below decided to

exclude Dr. Wener's testimony, we would analyze that exclusion

of evidence in light of the standard espoused in Daubert and the

fact that we owe the circuit court erroneous-exercise-of-

discretion deference. In this case, under these facts,

involving this doctor's testimony, that deference due tips the

scales in favor of the circuit court's detailed determination

below.

II

7

No. 2014AP195.akz

¶180 In this medical malpractice case, the defense seeks to

exclude the testimony of a medical doctor who is board certified

in obstetrics and gynecology, who has delivered thousands of

babies over three decades and confronted dozens of instances of

shoulder dystocia, who taught medical students and residents in

a clinical capacity for four years at the University of

California, San Diego, and who served as chairman of the OB/GYN

department at a hospital for 20 years, arguing that this expert

cannot meet the Daubert standard as set forth in Wis. Stat.

§ 907.02. The above expertise is directly on point with the

claim made here.

¶181 Wisconsin Stat. § 907.02(1) requires, for the

admission of expert testimony: (1) that "scientific, technical,

or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue"; (2)

that the expert witness "testify[ing] thereto in the form of an

opinion or otherwise" is "qualified as an expert by knowledge,

skill, experience, training, or education"; (3) that the expert

testimony is "based upon sufficient facts or data"; (4) that the

expert testimony is "the product of reliable principles and

methods"; and (5) that the expert witness "has applied the

principles and methods reliably to the facts of the case."

§ 907.02(1).

¶182 Digging deeper into the facts specific to this case,

Dr. Balink argues that Dr. Wener's testimony is not the product

of reliable principles and methods, and that Dr. Wener did not

apply the principles and methods he used reliably to the facts

8

No. 2014AP195.akz

of the case. Dr. Balink contends that Dr. Wener's opinions are

simply based on his own personal preferences rather than, for

instance, on medical literature; criticizes Dr. Wener's so-

called "holistic" approach; and points out supposedly

contradictory or confusing aspects of Dr. Wener's testimony.

All of these arguments could be well-developed in cross-

examination. Argument could be made that such personal

preference does not meet the legal definition of medical

malpractice. The circuit court did not erroneously exercise its

discretion in declining to exclude Dr. Wener's testimony. The

trial court concluded that Dr. Wener's opinion was "reliably

based on a reliable medical methodology looking at recognized

factors of the standard of care."

¶183 Wisconsin Stat. § 907.02 uses, for example, two key

terms relevant to this case: "method[]" and "principle[]." See

Wis. Stat. § 907.02(1). A "method" is a "mode of organizing,

operating, or performing something, esp. to achieve a goal."

Method, Black's Law Dictionary 1141 (10th ed. 2014). A

"principle" is a "basic rule, law, or doctrine; esp., one of the

fundamental tenets of a system." Principle, id. at 1386.

Generally speaking, Dr. Wener's method in providing the disputed

expert testimony was, to quote the plaintiffs-respondents'

brief, to "review the [relevant medical] records and provide an

opinion based upon his education, training, and 36 years of

experience" as to whether the steps taken and not taken by Dr.

Balink in her care of Braylon and Kimberly Seifert met the

applicable standard of care. More specifically, Dr. Wener's

9

No. 2014AP195.akz

application of his education, training, and experience to the

facts of the Seiferts' case included consideration of a specific

set of medical "principles," namely the various "risk factors"

for shoulder dystocia present in the Seiferts' case. These

principles suggested that "maternal obesity, excessive weight

gain [in the mother], gestational diabetes [suspected through

the result of blood glucose testing,] . . . a large baby[,]" and

use of a vacuum during delivery all increase the likelihood that

shoulder dystocia will occur during delivery.

¶184 Moreover, the Wisconsin Jury Instructions state the

standard used in a case involving alleged medical negligence

like this one in part as follows:

In (treating) (diagnosing) (plaintiff)'s

(injuries) (condition), (doctor) was required to use

the degree of care, skill, and judgment which

reasonable (doctors who are in general practice)

(specialists who practice the specialty which (doctor)

practices) would exercise in the same or similar

circumstances, having due regard for the state of

medical science at the time (plaintiff) was (treated)

(diagnosed). A doctor who fails to conform to this

standard is negligent. The burden is on (plaintiff) to

prove that (doctor) was negligent.

A doctor is not negligent, however, for failing

to use the highest degree of care, skill and judgment

or solely because a bad result may have followed (his)

(her) (care and treatment) (surgical procedure)

(diagnosis). The standard you must apply in

determining if (doctor) was negligent is whether

(doctor) failed to use the degree of care, skill, and

judgment which reasonable (general practitioners)

(specialists) would exercise given the state of

medical knowledge at the time of the (treatment)

(diagnosis) in issue.

Wis JICivil 1023 at 1. Dr. Wener's conclusion was essentially

that, given the presence of the risk factors discussed as

10

No. 2014AP195.akz

evidenced by the facts of the case and the medical records he

studied, certain of Dr. Balink's actions and omissions——failure

to perform additional glucose testing, for example——constituted

unreasonable care because of the unjustified risk of shoulder

dystocia. Clearly, cross-examination and argument could dispel

the notion that Dr. Wener's conclusions are but one, and not a

conclusive, reasonable standard of care.

¶185 The circuit court below indeed assessed the

reliability of Dr. Wener's testimony as required by Wis. Stat.

§ 907.02(1). The circuit court explained, citing McGovern ex

rel. McGovern v. Brigham & Women's Hosp., 584 F. Supp. 2d 418

(D. Mass. 2008), that obstetrics "is a recognized field of

expertise" as opposed to "junk science." See McGovern, 584

F. Supp. 2d at 424. The circuit court characterized Dr. Wener's

method as "holistic" "clinical medical methodology," relying

partly on Cooper v. Carl A. Nelson & Co., 211 F.3d 1008 (7th

Cir. 2000), in which the Seventh Circuit——applying Daubert——

noted the apparent agreement of the party seeking to exclude the

expert testimony of three physicians that "in clinical medicine,

the methodology of physical examination and self-reported

medical history employed by [one of the experts] is generally

appropriate." Cooper, 211 F.3d at 1020; see also, e.g.,

Reference Manual on Sci. Evid. 703 (3d ed.) ("A patient-

physician encounter typically consists of four components: (1)

patient history, (2) physical examination, (3) medical

decisionmaking, and (4) counseling."). This approach was

analogous to the one taken by Dr. Wener (although Dr. Wener's

11

No. 2014AP195.akz

review was also retroactive). The circuit court observed that

Dr. Wener's opinion was "based upon the facts of this case," and

on "recognized factors subject to cross[-]examination" such as

Braylon's estimated size, Kimberly's weight gain, and the

results of Kimberly's glucose tests. Consequently, the court

concluded that Dr. Wener's opinion was "reliably based on a

reliable medical methodology looking at recognized factors of

the standard of care."

¶186 The court tempered its conclusions by exploring

various weaknesses in Dr. Wener's approach, stating, for

instance, "[A] lot of things in medicine can't be tested because

you can't repeat the exact same factors because every human body

is different. And maybe that makes the defense's case

ultimately." The court also acknowledged that there was some

level of extrapolation in Dr. Wener's analysis. But there was a

common thread running through the court's remarks: that although

Dr. Wener's testimony was not perfect, it was "sufficiently

reliable to be admitted."

¶187 Remaining in our required position in review of the

record makes plain that the circuit court "applie[d] [the]

[]proper legal standard [and] ma[de] a decision . . . reasonably

supported by the facts of record." 118th St. Kenosha,, 359

Wis. 2d 30, ¶18 (quoting 260 North 12th St., 338 Wis. 2d 34,

¶38). Dr. Wener's conclusions certainly could have been better

supported. In particular, he could have done a better job of

attempting to quantify the point at which a tolerable level of

risk of shoulder dystocia becomes intolerable. In addition,

12

No. 2014AP195.akz

Dr. Balink points to alleged errors and inconsistencies in

Dr. Wener's testimony. But all of these deficiencies were able

to be tested on cross-examination; they did not mandate

exclusion of the entire expert opinion. The record

substantiates a conclusion that Dr. Wener "adhere[d] to the same

standards of intellectual rigor that are demanded in [his]

professional work." Cooper, 211 F.3d at 1020 (quoting Rosen v.

Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996)).4

¶188 Ultimately, and as suggested by the circuit court,

this case does not involve "junk science," a "junk scientist,"

4

In an amicus brief, the American Medical Association and

the Wisconsin Medical Society set forth their concern that:

If left uncorrected, the decisions of the lower courts

would place an unreasonable burden on physicians,

[because] . . . [i]n making decisions about how to

treat their patients, . . . physicians . . . would

have to account for the possibility that the

preferences of a physician they have never

met . . . could serve as the basis by which their

conduct will be judged.

But this argument ignores the fact that the standard against

which a physician's conduct is judged is the conduct of a

similarly-situated reasonable physician. Wis JI——Civil 1023 at

1. And arguably "for any set of clinical facts, however unique,

there are decisions or actions that virtually no doctor would

find acceptable." Mark A. Hall, Mary Anne Bobinski & David

Orentlicher Health Care Law and Ethics 321 (8th ed. 2013)

(presenting idea without necessarily endorsing it). Physicians

need only ensure that their conduct matches the conduct of a

similarly-situated reasonable physician. Assuming that a judge

finds that expert testimony passes the requirements of Wis.

Stat. § 907.02, the party against whom the testimony is offered

may dispute it by cross-examination and by presenting contrary

expert testimony suggesting that the party's conduct was

reasonable. It is then up to the jury to decide which set of

testimony is more believable.

13

No. 2014AP195.akz

or a "junk opinion." McGovern, 584 F. Supp. 2d at 424. This

was testimony in a "recognized field of expertise" as to the

standard of care required, provided by a well-qualified

physician who had delivered thousands of babies. Dr. Wener used

his own education, training, and experience to review the

relevant medical records and to reach a conclusion as to whether

the applicable standard of care was followed. The circuit court

did not err in admitting this testimony.5

III

¶189 Thus, I concur only in the court's conclusion to

affirm the decision of the court of appeals. I do not join the

lead opinion for two reasons. First, the lead opinion does not

sufficiently address the legislature's 2011 changes to Wis.

Stat. § 907.02 (2009-10), which had significant effect on the

admissibility of expert opinion testimony in Wisconsin. The

5

I reject Dr. Balink's remaining arguments for reversal.

Without opining on whether, or the extent to which, the

Seiferts' attorney violated various pretrial orders, and without

opining on the possibility that Dr. Balink has waived this

argument, I conclude that the record does not establish that,

because of comments made by the Seiferts' attorney during

closing arguments following this week-long jury trial, "the

verdict reflects a result which in all probability would have

been more favorable to the complaining party but for the

improper argument." Wagner v. Am. Family Mut. Ins. Co., 65

Wis. 2d 243, 250, 222 N.W.2d 652 (1974) (citing Klein v. State

Farm Mut. Auto. Ins. Co., 19 Wis. 2d 507, 510 n.1, 120

N.W.2d 885 (1963)). The circuit court did not erroneously

exercise its discretion in declining to grant a new trial. See

id. at 249-50.

Further, given the conclusions set forth in this writing,

discretionary reversal is not warranted. See Wis. Stat.

§ 751.06.

14

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