99-0649 Martindale v. Ripp

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And, because we conclude that this erroneous exercise of discretion affected plaintiff’s substantial rights, we reverse and remand the case to the circuit court for a new trial.

“Here the circuit court erred for several reasons. First, the circuit court excluded expert testimony that would have assisted the trier of fact in understanding the evidence and determining the issue of causation. After recognizing Dr. Ryan’s credentials, permitting him to testify as an expert, and allowing him to give his opinion as to the cause of Martindale’s medical condition, the court denied the expert the ability to explain the “mechanism” that prompted him to reach his conclusion. As a result, the trier of fact never received an explanation of how whiplash could lead to the stretching and tearing of ligament and the displacement of the discs that are part of the TMJs. In excluding this explanation, the circuit court deprived the jury of expert testimony that could have assisted it in sifting through the evidence and reaching its own conclusion. …

“Dr. Ryan’s opinion was not the source of the fact that Martindale suffered whiplash. Martindale was the source of that fact. He told Dr. Ryan and others that he had experienced whiplash in the accident, and whiplash was also reflected in Martindale’s medical records. Martindale said his whiplash occurred when his head “whipped” backward, over the lowered headrest, when his car was hit from behind; then his head snapped forward and his teeth clashed together, when his car was propelled into the vehicle in front of him. The City did not present any evidence that Martindale’s whiplash was caused by anything other than a backward and forward movement. Dr. Ryan relied on this information in forming his opinion about the cause of the TMJ condition. … Because Dr. Ryan was basing his opinion on information he had received from Martindale, plus other information, he had a good foundation for offering the opinion, and the circuit court erred in denying it to the jury. …

“Dr. Ryan testified that the whiplash injury caused the TMJ problem, not that the accident had caused the whiplash injury. The fact that Martindale had suffered a whiplash injury was not contested. Thus, Dr. Ryan … did not stray outside his field of expertise. …

“We conclude that the erroneous exclusion of Dr. Ryan’s testimony created a reasonable possibility that if the evidence had been admitted the verdict would have been different.”

Reversed and remanded.

CONCURRING OPINION: Abrahamson, J. “I join the majority opinion. I wrote a concurrence on the issue of harmless error in In re the Termination of Parental Rights to Jayton S.: Evelyn C.R. v. Tykila S., 2001 WI 110 **37-42, ___ Wis.2d ___, ___ N.W.2d ___ (Abrahamson, C.J. concurring). My views on harmless error expressed in that concurrence apply to the present case as well.”

DISSENTING OPINION: Wilcox, J. “While I agree with the majority that the circuit court properly excluded the proffered testimony regarding the remotely conceivable complications that could occur if Martindale opted to undergo TMJ surgery, I do not join the majority’s conclusion that the circuit court erroneously exercised its discretion by excluding Dr. Ryan’s proffered testimony and diagram regarding the ‘mechanism’ by which Martindale allegedly was injured. Accordingly, I dissent.”

DISSENTING OPINION: Crooks, J., with whom Wilcox, J., joins. “While I join Justice Jon P. Wilcox’s dissent, I write separately to express my concerns about the majority’s standard for harmless error.”

Court of Appeals, Prosser, J.

Attorneys:

For Appellant: Edward E. Grutzner, Beloit

For Respondent: Ted Waskowski, Laura Skilton, Madison