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Seifert v. Balink

Supreme Court of Wisconsin

January 6, 2017

Braylon Seifert, by his Guardian ad litem, Paul J. Scoptur, Kimberly Seifert and David Seifert, Plaintiffs-Respondents,
v.
Kay M. Balink, M.D. and Proassurance Wisconsin Insurance Company, Defendants-Appellants-Petitioners. Dean Health Insurance and BadgerCare Plus, Involuntary-Plaintiffs,

          REVIEW of a decision of the Court of Appeals (L.C. No. 2011CV588). Affirmed.

          For the defendants-appellants-petitioners, there were briefs by Samuel J. Leib, Brent A. Simerson, and Leib, Knott, Gaynor, LLC, Milwaukee, WI, and oral argument by Samuel J. Leib.

          For the plaintiffs-respondents, there was a brief by Kenneth M. Levine, (pro hac vice), and Kenneth M. Levine & Associates, LLC, Brookline, MA, and Paul J. Scoptur and Aiken & Scoptur, S.C., Milwaukee. Oral argument by Kenneth M. Levine.

          SHIRLEY S. ABRAHAMSON, J.

         ¶1 This is a review of a published decision of the court of appeals.[1] The court of appeals affirmed a judgment and an order of the Circuit Court for Grant County, Craig R. Day, Judge, in favor of the plaintiff, Braylon Seifert (by his guardian ad litem, Paul Scoptur, and his parents, Kimberly Seifert and David Seifert) and against the defendants, Dr. Kim Balink (the defendant doctor) and Proassurance Wisconsin Insurance Company.

         ¶2 This medical malpractice case is based on the claim that the defendant doctor was negligent in the prenatal care of Braylon Seifert's mother and in Braylon's delivery in May 2009.

         ¶3 Complications arose during Braylon's delivery. Almost immediately after Braylon's head appeared, the head retracted, indicating a shoulder dystocia, that is, indicating that the shoulder was stuck, prohibiting the body from being delivered. The defendant doctor undertook a series of steps to resolve the dystocia and delivered the baby. Braylon's shoulder was injured, however, and the growth and function of Braylon's left arm are permanently and severely limited.

         ¶4 Braylon claims that the defendant doctor's care during delivery fell below the standard of reasonable care and caused him to have a permanent brachial plexus injury, that is, to have a permanent injury to the nerves that animate his left arm.

         ¶5 Braylon's obstetrical expert witness, Dr. Jeffrey Wener, testified that he was familiar with the standard of care for family practitioners practicing obstetrics with regard to prenatal care, labor, and delivery. Dr. Wener explained the reasonable care to be used in a case like the instant one and opined that the care provided and the procedures used by the defendant doctor fell below the standard of reasonable care.

         ¶6 The defendants challenged Dr. Wener's testimony in the circuit court, in the court of appeals, and in this court as inadmissible under the recently amended Wis.Stat. § 907.02(1) (2013-14).[2] This amended statute governing the admissibility of expert evidence was enacted in 2011. It adopted the federal evidentiary standard codified in Federal Rule of Evidence 702 (2000), which in turn adopted the reliability standard explicated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

         ¶7 The new Daubert aspect of Wis.Stat. § 907.02(1) became effective February 1, 2011, and applies in the instant case.[3] It requires that expert testimony be based on sufficient facts or data and that the expert testimony be the product of reliable principles and methods.[4] The expert witness must apply the principles and methods reliably to the facts of the case.[5]These three aspects of the Daubert standard are often referred to as the "reliability standard."

         ¶8 Both the circuit court and the court of appeals concluded in the instant case that Dr. Wener's testimony was admissible under § 907.02(1).

         ¶9 The jury's special verdict found that the defendant doctor was negligent in the delivery of Braylon and in the prenatal care of his mother and that this negligence was a cause of injury to Braylon. The jury further found that Braylon should be awarded $100, 000 for past pain, suffering, disability, and disfigurement and $1, 650, 000 for future pain, suffering, disability, and disfigurement.

         ¶10 The jury did not award any damages to Braylon's parents. The jury did not find that the defendant doctor violated informed consent. These two rulings are not at issue in this review.

         ¶11 The circuit court entered judgment for Braylon for $135, 000 in medical expenses and $750, 000 in pain and suffering, "as reduced pursuant to Wisconsin Statute, plus interest thereon provided by law."[6]

         ¶12 On three occasions, the circuit court carefully and extensively considered the defendants' challenges to the admissibility of Dr. Wener's testimony under Wis.Stat. § 907.02(1): at a "Daubert" hearing before trial, on a challenge to Dr. Wener's testimony at trial, and on motions after verdict. The circuit court ruled in favor of admitting Dr. Wener's testimony at each of these junctures.

         ¶13 Seeking a new trial, the defendants raise three issues in this court:

I. Did the circuit court err in admitting the testimony of Dr. Jeffrey Wener, Braylon's medical expert? The defendants claim that because Dr. Wener's testimony was experience-based, his method was unreliable and inadmissible under Wis.Stat. § 907.02(1).
II. Did several remarks of Braylon's counsel during closing argument violate the circuit court's orders in limine, prejudice the jury, and warrant a new trial?
III. Should this court grant a new trial in the interests of justice pursuant to Wis.Stat. § 751.06?

         ¶14 The court of appeals affirmed the judgment of the circuit court, concluding that a new trial was not warranted.

         ¶15 For the reasons set forth, we affirm the decision of the court of appeals affirming the circuit court's judgment and order that a new trial was not warranted. We conclude:

I. The circuit court did not err in applying Wis.Stat. § 907.02(1) and admitting as reliable Dr. Wener's expert medical testimony on the standard of reasonable care based on his personal experiences.
II. The circuit court did not err in concluding that Braylon's counsel's remarks during closing argument did not constitute prejudicial error justifying a new trial.
III.A new trial should not be granted pursuant to Wis.Stat. § 751.06 in the interests of justice.

         ¶16 We shall address each issue in turn. The facts and law relevant to each issue are stated in the discussion of that issue.

         I

         ¶17 The first issue entails the defendants' challenge to the testimony of Braylon's medical expert, Dr. Jeffrey Wener, as unreliable and inadmissible under Wis.Stat. § 907.02(1). Dr. Wener testified about the standard of reasonable care in the instant case and how the defendant doctor breached the standard.

         ¶18 We review the circuit court's admission of Dr. Wener's testimony for compliance with the Daubert reliability standard codified in Wis.Stat. § 907.02(1). The defendants' challenge was that Dr. Wener's experience-based testimony is not the product of a reliable method. We conclude that Dr. Wener's testimony was reliable and admissible under § 907.02(1). Our reasoning in reaching the conclusion that the circuit court did not erroneously exercise its discretion in admitting Dr. Wener's testimony proceeds as follows:

A. We set forth the facts of the defendant doctor's prenatal care of Braylon's mother and conduct during Braylon's delivery. See ¶¶19-28, infra.
B. We examine undisputed facets of the case, including aspects of Dr. Wener's testimony and the standard of reasonable care applicable to the defendant doctor in the instant case. See ¶¶29-37, infra.
C. We summarize Dr. Wener's testimony about the standard of reasonable care of a family practice doctor practicing obstetrics. Dr. Wener's testimony was based on his personal experiences; his opinion was that the defendant doctor breached that standard. See ¶¶38-49, infra.
D. We discuss the reliability standard set forth in Wis.Stat. § 907.02(1) that governs admission of expert evidence. We pay special attention to assessing the method used by a medical expert based on the expert's personal experiences. See ¶¶50-93, infra.
E. We set forth the standard for reviewing a circuit court's determination that medical expert testimony is admissible under the reliability standard incorporated in Wis.Stat. § 907.02(1). See ¶¶94-100, infra.
F. Against this backdrop of the teachings about the reliability of the methodology of medical expert opinion testimony based on personal experiences and the standards for reviewing a circuit court's determination of reliability and admissibility, we 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.

         ¶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 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 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.
• 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

         ¶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." 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 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 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 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]

         ¶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 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, [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 "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.

         ¶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 on the conclusions that they generate." Daubert, 509 U.S. at 595.

         ¶62 To guide the reliability analysis, the Daubert court provided a nonexhaustive[18] 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").
(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 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.

         ¶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 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]

         ¶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 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 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 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 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 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 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]

         ¶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 (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.

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 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]

         ¶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] 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).

         ¶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 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 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 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."

         ¶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.

         ¶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.
. . . .
And I still believe that Dr. Wener's testimony met the Daubert standards as that applies ...

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