Braylon Seifert, by his Guardian ad litem, Paul J. Scoptur, Kimberly Seifert and David Seifert, Plaintiffs-Respondents,
Kay M. Balink, M.D. and Proassurance Wisconsin Insurance Company, Defendants-Appellants-Petitioners. Dean Health Insurance and BadgerCare Plus, Involuntary-Plaintiffs,
of a decision of the Court of Appeals (L.C. No. 2011CV588).
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.
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.
SHIRLEY S. ABRAHAMSON, J.
This is a review of a published decision of the court of
appeals. The court of appeals affirmed a judgment
and an order of the Circuit Court for Grant County, Craig R.
Day, Judge, in favor of the plaintiff, Braylon Seifert (by
his guardian ad litem, Paul Scoptur, and his parents,
Kimberly Seifert and David Seifert) and against the
defendants, Dr. Kim Balink (the defendant doctor) and
Proassurance Wisconsin Insurance Company.
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
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
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
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.
The defendants challenged Dr. Wener's testimony in the
circuit court, in the court of appeals, and in this court as
inadmissible under the recently amended Wis.Stat. §
907.02(1) (2013-14). 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).
The new Daubert aspect of Wis.Stat. § 907.02(1) became
effective February 1, 2011, and applies in the instant
case. 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. The expert
witness must apply the principles and methods reliably to the
facts of the case.These three aspects of the Daubert
standard are often referred to as the "reliability
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).
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.
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
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."
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
Seeking a new trial, the defendants raise three issues in
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?
The court of appeals affirmed the judgment of the circuit
court, concluding that a new trial was not warranted.
For the reasons set forth, we affirm the decision of the
court of appeals affirming the circuit court's judgment
and order that a new trial was not warranted. We conclude:
I. The circuit court did not err in applying Wis.Stat. §
907.02(1) and admitting as reliable Dr. Wener's expert
medical testimony on the standard of reasonable care based on
his personal experiences.
II. The circuit court did not err in concluding that
Braylon's counsel's remarks during closing argument
did not constitute prejudicial error justifying a new trial.
III.A new trial should not be granted pursuant to Wis.Stat.
§ 751.06 in the interests of justice.
We shall address each issue in turn. The facts and law
relevant to each issue are stated in the discussion of that
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.
We review the circuit court's admission of Dr.
Wener's testimony for compliance with the
Daubert reliability standard codified in Wis.Stat.
§ 907.02(1). The defendants' challenge was that Dr.
Wener's experience-based testimony is not the product of
a reliable method. We conclude that Dr. Wener's testimony
was reliable and admissible under § 907.02(1). Our
reasoning in reaching the conclusion that the circuit court
did not erroneously exercise its discretion in admitting Dr.
Wener's testimony proceeds as follows:
A. We set forth the facts of the defendant doctor's
prenatal care of Braylon's mother and conduct during
Braylon's delivery. See ¶¶19-28,
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
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,
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 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,
¶19 The defendant doctor, a family practitioner,
provided prenatal care to Braylon's mother during regular
prenatal visits and also delivered Braylon.
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.
Braylon's mother weighed 269 pounds at the start of her
pregnancy, and she gained approximately 36 pounds during the
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.
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."
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.
The defendant doctor estimated that Braylon would weigh eight
pounds, eight ounces at birth. Braylon's actual birth
weight was nine pounds, twelve ounces.
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.
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.
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 manipulations to
mother and baby) to resolve the dystocia. The baby was
delivered approximately three minutes after the diagnosis of
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
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.
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 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.)
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.
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).
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
• 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.
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
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.
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
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
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
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.
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.
Dr. Wener did not preface each of his statements with the
words "a reasonable family doctor practicing
obstetrics." 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.
Dr. Wener's experience and testimony demonstrate that he
is familiar with the standard of reasonable care for family
practice doctors practicing obstetrics.
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.
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 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.
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
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.
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 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
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.
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.
The 2011 amendment to Wis.Stat. § 907.02(1) changed the
law to mirror Federal Rule of Evidence 702, which codifies
Daubert v. Merrell Dow Pharmaceuticals Inc., 509
U.S. 579 (1993), and its progeny.
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
Wisconsin case law had rejected both Frye's
"general acceptance test" and the federal
Daubert reliability standard.
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
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,  and we may
look for guidance and assistance in interpreting and applying
§ 907.02(1) to the Daubert case and its progeny, to the
Advisory Committee Notes to Federal Rule of Evidence 702,
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
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.
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 "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.
In the instant case, the parties challenge the reliability of
Dr. Wener's expert medical testimony. 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. 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.
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.
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
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 on the conclusions that they generate."
Daubert, 509 U.S. at 595.
To guide the reliability analysis, the Daubert court
provided a nonexhaustive 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.
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").
(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
Considering the broad range of cases in which expert evidence
arises, courts have not been constrained by the listed
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. 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.
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).
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.
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.
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. 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.
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.
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 to offer some articulated rationale
supporting his or her opinion. This Kumho Tire
requirement is not "impossibly
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.
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.
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
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.
The trial court's gatekeeping function in regard to
experience-based testimony, however, "requires more than
simply 'taking the expert's word for
An expert cannot establish that a fact is generally accepted
merely by saying so. 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
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).
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).
Case law demonstrates, nonetheless, that courts frequently
admit experience-based testimony, especially when 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. "In certain fields,
experience is the predominant, if not sole, basis for a great
deal of reliable expert testimony."
Medicine is an example of such a field because medicine
"is based on specialized as distinguished from
scientific knowledge." 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.
The classic medical school texts explain that medicine is
scientific but not entirely a science.
"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." Much of medical decision-making relies
on judgment 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." Furthermore,
practical and ethical concerns prevent "studies
calculated to establish statistical
proof." Physicians must use their knowledge and
experience as a basis for weighing known factors along with
"inevitable uncertainties" to "mak[e] a sound
That Daubert lends its analysis more favorably to
more objective sciences does not bar the testimony of
physicians applying their experience and clinical
methods. That the knowledge is uncertain
"does not preclude the introduction of medical expert
opinion testimony when medical knowledge permits the
assertion of a reasonable opinion."
"A trial court should admit medical expert testimony if
physicians would accept it as useful and
reliable." 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."
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 concluded
that the magistrate judge abused his discretion by excluding
the expert testimony.
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. 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.
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 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).
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. 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 (2001) (characterizing the
effect of Daubert and Kumho cases on claims
of medical expertise as "much ado about
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.
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
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.
We examine the circuit court's rulings both independently
as a question of law and also under the erroneous exercise of
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 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
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,  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).
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.
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
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. F
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. §
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).
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).
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.
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.
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
(1) Dr. Wener's testimony was unreliable under Wis.Stat.
§ 907.02(1) because Dr. Wener did not apply a sound
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
We address each of the defendants' arguments in turn.
To use defendants' counsel's words, the
defendants' challenge to Dr. Wener's testimony is
based on "method, method, method."
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.
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.
In contrast, the defendants contend that Dr. Wener was really
just opining based on his "personal preferences."
The 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.
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."
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).
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 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
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.
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.
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
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.
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.
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.
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.
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."
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."
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.
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
Accordingly, the circuit court declared that the context of
the entire case supported admitting Dr. Wener's testimony
[A]fter the trial there is a lot more context within which to
analyze the issues in respect to Dr. Wener's testimony.
. . . .
And I still believe that Dr. Wener's testimony met the
Daubert standards as that applies ...