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Failure to pay jury fee excusable


“That a trial might be easier without a jury does not trump the constitutional guarantee; many cases present complex issues of law and fact.”

Hon. Ralph Adam Fine
Wisconsin Court of Appeals

A court cannot deny a party a jury trial for failure to timely pay the jury fee, unless it finds inexcusable neglect, the Wisconsin Court of Appeals held on April 27.

Marlene L. Phelps was pregnant with Adam and Kyle when she was treated by Dr. Matthew Lindemann, who was then an unlicensed first-year resident at St. Joseph’s Hospital.

The Phelpses filed a malpractice action, alleging that Dr. Lindemann negligently caused Adam’s death. Lindemann and Physicians Insurance Company of Wisconsin filed an answer, and demanded a trial by jury.

A scheduling order was entered on July 10, 2001, providing that jury fees must be paid in accordance with Local Rule #371 on or before Sept. 1, 2001, or the jury shall be deemed waived.

The attorney for the defendants became ill in August, 2001, and the jury fee was not timely paid. Another member of the firm paid the fee on Sept. 13, 2001, but did not send notice to the plaintiffs indicating that it had been paid.

Two days prior to trial, in December 2002, the plaintiffs objected to trial by jury. Milwaukee County Circuit Court Judge Michael P. Sullivan granted the motion, citing the failure to pay the fee timely, and the highly-complicated nature of the case.

The defendants explained the reason for failing to pay the fee timely, but the court did not change its decision, again citing the complex nature of the case.

The court found the defendants negligent, and entered judgment against them. The defendants appealed, and the court of appeals reversed in a decision by Judge Ralph Adam Fine.


Under Rule 805.01(2), parties must demand a trial by jury in civil cases “at or before the scheduling conference or pretrial conference, whichever is held first.”
Section 814.61(4) provides, “For a jury in all civil actions, except a garnishment action under ch. 812, a nonrefundable fee of $6 per juror demanded to hear the case to be paid by the party demanding a jury within the time permitted to demand a jury trial. If the jury fee is not paid, no jury may be called in the action, and the action may be tried to the court without a jury.”

The court thus found that, under the statutes, the defendants had to pay the jury fee by the July 10, 2001, scheduling conference. However, Milwaukee County Cir. Ct. Rule 371 gave them until thirty days following the scheduling conference within which to pay the jury fee. The scheduling order, in contrast, gave them until Sept. 1, 2001.

The court acknowledged that these provisions and the scheduling order conflict, but held the conflict immaterial, because none of the parties contended that the scheduling order’s resetting the date to Sept. 1, 2001, was invalid.

Excusable Neglect

What the court held

Case: Phelps v. Physicians Ins. Co. of Wisconsin, Inc., No. 03-0580.

Issue: Where a party failed to pay the jury fee timely, because the attorney became seriously ill, but the fee was paid only seven business days late, was the neglect excusable?

Holding: If the failure to pay the fee timely was neglect at all, it was certainly excusable.

Counsel: Barrett J. Corneille, Madison; Michael S. Heffernan, Madison; John S. Skilton, Madison; Michael B. Van Sicklen, Madison; David J. Pliner, Madison; Christopher G.W. Hanewicz, Madison, for appellant; William M. Cannon, Brookfield; Sarah E. Kaas, Brookfield, for respondent.

The court then held that the circuit court erroneously denied the defendants a jury trial, because the circuit court failed to consider whether the failure to pay the jury was the result of excusable neglect.

In Chitwood v. A.O. Smith Harvestore Prods., Inc., 170 Wis.2d 622, 628, 489 N.W.2d 697, 701 (Ct.App.1992), the court held that whether to forgive late payment of a jury fee is within the trial court’s discretion.

Rule 801.15(2)(a) provides that a court may enlarge nunc pro tunc the time within which a party must do something if “the court finds that the failure to act [timely] was the result of excusable neglect.”

In addition, Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 468, 326 N.W.2d 727, 731 (1982), holds that, once “excusable neglect” is found, the trial court should consider the “interests of justice.”

Applying this standard, the court found that the motion should have been granted. The court noted, “the trial court did not apply the requisite excusable-neglect standard. This was error. We therefore undertake our own review of the uncontested facts.”

Addressing excusable neglect, the court concluded, “The only reason of record for the seven-business-day delay in paying the $72 jury fee was that the lawyer responsible for the file discovered that he was ‘serious[ly]’ ill in August, 2001 — that is, before the September 1 due date. As he testified: ‘I became ill in late August, knew that I had a serious problem, turned out to be kidney cancer.’ If his letting the Sep
tember 1 date pass without paying the jury fee was ‘neglect’ it certainly was ‘excusable.’”

Turning to the “interest of justice” issue, the court found that a jury trial should have been permitted.

The court rejected the court’s concern with the complicated nature of the case, stating, “that a trial might be easier without a jury does not trump the constitutional guarantee; many cases present complex issues of law and fact.” The court cited a Ninth Circuit case, Fabrikant v. Bache & Co., 609 F.2d 411, 419- 432 (9th Cir.1979), for the proposition that “there is no complexity-exception to the Seventh Amendment to the United States Constitution.”

The court found no evidence of bad faith on the defendants’ part in not paying the fee timely. The court reasoned, “Although the Phelpses accuse Physicians Insurance and Dr. Lindemann of ‘laying in the weeds’ because the defendants did not tell the Phelpses that they had paid the fee on September 13, by the Phelpses’ own reading of MILWAUKEE COUNTY CIR. CT. RULE 371 this should have put the Phelpses on notice that the fee had not been paid by September 1. See MILWAUKEE COUNTY CIR. CT. RULE 371 (party demanding a trial by jury ‘shall notify in writing all counsel of record … of payment of the jury fee’). Significantly, as we have seen, the rule does not, in so many words, require a party who demands a jury but does not pay the fee to notify opposing parties of the non-payment, although it does require such notification if the party demanding a jury subsequently decides to waive the jury-trial right. Of course, the defendants should have notified the plaintiffs when they did pay the jury fee, and it would have also been better for them to seek relief under Wis. Stat. Rule 801.15(2) at that time.”

The court also found no prejudice the plaintiffs, because they did not realize that the jury fee was not paid timely until the week of Nov. 25, 2002, and had already filed proposed jury instructions and special verdict forms.

Accordingly, the court reversed and remanded the case for a trial by jury.

Other Issues

Before remand, however, the court addressed other issues that will recur at retrial.

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Case Analysis

The court held that Lindemann was not to be held to the same degree of care as the average physician who provides obstetrical care. Instead, the court held, “Dr. Lindemann was not a licensed physician; he was an unlicensed medical-college graduate who was undergoing his ‘postgraduate training of 12 months in a facility approved by the Medical Examining Board, as a precondition to licensure. He should have been held to the standard applicable to his class. This does not mean, of course, that he automatically escapes liability. As in [Johnson v. Agoncillo, 183 Wis.2d 143, 515 n.W.2d 508 (Ct.App.1994)], Dr. Lindemann could be found to be negligent if he undertook to treat outside the scope of his expertise, or if the standard of care applicable to pre-licensure residents required that he either have consulted with someone more skilled, or have referred Mrs. Phelps to someone else, as the trial court found. On remand, the trial court shall instruct the jury accordingly.”

The court also held that Dr. Lindemann, as a first year resident, was not a “health care provider” as that term is defined by Chapter 655, and thus, the cap on noneconomic damages in sec. 893.55(4)(b) does not apply.

However, the court held that he is a “health care provider” within the meaning of sec. 146.38, and thus, peer review of his performance by the hospital may be exempt from discovery.

The court acknowledged the anomaly that a first-year resident is a “health care provider” within the meaning of some statutes using that term, but not others, but stated, “this is what the legislature has done; it can remove the anomaly if it desires.”

Click here for Case Analysis.

David Ziemer can be reached by email.

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