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Evidence — collateral source rule

By: WISCONSIN LAW JOURNAL STAFF//June 28, 2012//

Evidence — collateral source rule

By: WISCONSIN LAW JOURNAL STAFF//June 28, 2012//

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Wisconsin Supreme Court

Civil

Evidence — collateral source rule

Although it was error to admit evidence of collateral source payments, the error was harmless where the amount of damages were stipulated to.

“In this case, considering the trial as a whole, we agree with the physicians that the circuit court’s error in admitting the evidence of life insurance proceeds and social security benefits did not affect the Weborgs’ substantial rights. That is, the admission of the evidence of collateral source payments does not undermine our confidence in the jury’s determination that neither Dr. Jenny, Dr. Borgnes, nor Dr. Rebhan was negligent in his care and treatment of William Weborg. The fact that Theresa Weborg received life insurance proceeds and social security benefits as a result of her husband’s death was first introduced on the third day of the eight-day trial by counsel for the Weborgs through his direct examination of Theresa Weborg. The amount of the life insurance proceeds was then elicited by counsel for the Injured Patients and Families Compensation Fund through his cross-examination of Theresa Weborg. Neither the life insurance proceeds nor social security benefits were ever mentioned again. Indeed, on the fifth day of trial, at the close of the Weborgs’ case, the parties stipulated to the amount of damages. As a result, the physicians made no mention of damages during their case, and neither the Weborgs nor the physicians mentioned damages, let alone the collateral source payments, in their closing arguments. Moreover, pursuant to the parties’ stipulation, the jury received no instructions pertaining to damages and was not asked to determine damages; rather, the jury was instructed on and asked to determine only negligence and causation. In particular, consistent with Wis JI——Civil 1023, the jury was instructed that the standard it must apply in determining if either Dr. Jenny, Dr. Borgnes, or Dr. Rebhan was negligent is whether the respective physician failed to conform to the standard of care. The standard of care, the circuit court explained, is ‘the degree of care, skill and judgment which a reasonable cardiologist, family practitioner, and general diagnostic radiologist, respectively, would exercise in the same or similar circumstances, having due regard for the state of medical science at the time William Weborg was treated and diagnosed.’ Thus, in order for us to conclude, as the Weborgs submit, that there is a reasonable possibility that the evidence of collateral source payments contributed to the outcome of the trial, we would have to assume that the jury disregarded its instructions and based its determination that the three physicians were not negligent on evidence that had no bearing on the standard of care. While that may be a possibility, it is not a reasonable one. As the court of appeals aptly noted, see Weborg, No. 2010AP258, unpublished slip op., ¶15, we must presume that the jury followed the circuit court’s instructions. State v. Johnston, 184 Wis. 2d 794, 822, 518 N.W.2d 759 (1994); Curkeet v. Joint Sch. Dist. No. 2, 159 Wis. 149, 153, 149 N.W. 708 (1914); State v. Deer, 125 Wis. 2d 357, 364, 372 N.W.2d 176 (Ct. App. 1985).”

Affirmed.

2010AP258 Weborg v. Jenny

Ziegler, J.

Attorneys: For Appellant: End, J. Michael, Milwaukee; For Respondent: Colwin, David J., Fond du Lac; Heffernan, Michael S., Madison; Van Sicklen, Michael B., Madison

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