Torts — medical malpractice — expert testimony — causation

Listen to this article

Wisconsin Court of Appeals

Civil

Torts — medical malpractice — expert testimony — causation

In this medical malpractice action, the plaintiffs Xavier Armagost and his mother, Michelle Armagost, claimed that Gundersen Clinic, Ltd. (Gundersen), acting through two certified nurse midwives, was negligent in providing medical services to Xavier during his mother, Michelle’s, labor and delivery, allegedly resulting in permanent physical injuries to Xavier. At trial, the jury found that the nurse midwives were negligent, but also that their negligence was not a cause of Xavier’s injuries, resulting in judgment for the defendants. Xavier, by his guardian ad litem, appeals an order denying his motion for a new trial and raises two main issues.

Xavier first argues that the circuit court erroneously exercised its discretion in allowing the jury to hear expert testimony suggesting that Michelle’s smoking could have been a cause of the neurological and cognitive disabilities Xavier suffers. We conclude that Xavier fails to show that the court erroneously exercised its discretion in allowing the jury to consider evidence related to smoking based on the testimony of defense experts.

Xavier also argues that the court erred in giving jury instructions that misled the jury on the issue of causation. We conclude that Xavier fails to develop an argument showing that any aspect of the instructions to which he objected at trial rendered the instructions as a whole misleading regarding the law. Accordingly, we affirm the order. Not recommended for publication in the official reports.

2011AP522 Armagost, et al. v. Gundersen Clinic Ltd., et al.

Dist IV, La Crosse County, Bjerke, J., Blanchard, J.

Attorneys: For Appellant: Dentice, M. Angela, Milwaukee; Laufenberg, Lynn R., Milwaukee; LaDien, Joseph, Milwaukee; Janet, Howard A., Baltimore, MD; Offutt, Steven C., Baltimore, MD; Apfell, Dov, Baltimore, MD; Posner, Tara J., Baltimore, MD; For Respondent: Gutglass, James R., Milwaukee; Prekop, Jason, Milwaukee