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BENCH BLOG: Daubert standard weighs on medical witness

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler Law Firm. She can be reached at

A medical-malpractice case — an area of litigation replete with expert testimony — recently spurred the Court of Appeals to examine how Daubert principles should be applied to medical experts.

Seifert v. Balink was filed against a southwestern Wisconsin OB-GYN physician whose prenatal care of an overweight woman and delivery of her baby were in question. The shoulder of the baby, who was relatively heavy at birth, was stuck during a vacuum-extraction delivery. He was eventually dislodged, but not without suffering permanent damage to his shoulder.

Daubert motion

A pretrial motion hearing was held after the defense had filed a Daubert challenge seeking to exclude the testimony of the plaintiff’s expert witness. The witness was an experienced OB-GYN doctor who argued that the defendant doctor had failed to meet the standard of care in three respects.

First, the expert faulted the defendant for not ordering the mother to undergo a three-hour glucose tolerance test after the results of a one-hour test had bordered on being abnormal. The mother’s obesity, the expert explained, had predisposed her to gestational diabetes. A condition of that sort increased the chances that her baby would be heavy at birth, making the child riskier to deliver.

Second, the expert argued, the doctor should have used an ultrasound test to more accurately measure the baby’s weight before birth. As it was, the doctor underestimated the weight of the 9-pound, 12-ounce baby by more than a pound. The likelihood of a high birth weight can influence the type of delivery method that is used.

These considerations led to the third criticism — that the doctor should not have used vacuum extraction to deliver the baby. When the baby’s shoulder became stuck in the birth canal, the expert testified, excessive traction caused the shoulder injury.

The expert did not rely on medical literature, and testified that his opinions instead stemmed from his extensive experience. The defense countered by arguing that the expert’s criticisms were mere preferences that should not be considered reliable in light of the Daubert standard enunciated in sec. 907.02(1).

Grant County Circuit Judge Craig Day presided over the case. He determined that the expert’s opinions were based on “reliable medical methodology looking at recognized factors of the standard of care.” Those factors, the judge decided, are the ones that should be turned to in gauging the risks that were inherent in the woman’s pregnancy and delivery. The judge accordingly exercised the discretion afforded him by the Daubert standards to come out in favor of allowing the expert to testify.

After an eight-day trial, a jury found that the doctor had been causally negligent in the baby’s shoulder injury, and awarded damages of nearly $900,000.

The defense appealed.

Court of Appeals decision

District 4 Court of Appeals Judge Paul Higginbotham wrote for the three-judge panel. Although several matters were raised during the appeal, the primary one was the Daubert ruling.

The court first reviewed the Daubert case itself, as well as a separate one referred to as Kumho Tire. Both had gone before the U.S. Supreme Court.

Under the Daubert standards established by the high court, one principle is that any evaluation of an expert’s reliability must be “flexible.” Moreover, the standards make it clear that reliability is something experts can establish when they offer observations arising from their “extensive and specialized experience.”

Such experience has been cited in various federal cases in order to establish the reliability of medical experts who were called on to testify. One reason for allowing this flexibility for medical experts is that medicine is a “complicated science” in which “ethical concerns often prevent double-blind studies calculated to establish statistical proof.”

In addition, the advisory committee’s notes to the federal codification of the Daubert rule specifically observe that the statute “expressly contemplates that an expert may be qualified on the basis of experience.”

Applying these principles to the case at hand, the Court of Appeals gave an approving nod to Judge Day’s recognition that the plaintiff’s expert’s methods were not as “susceptible to precise definition” as, say, an engineer’s.

Day also observed that the three factors the expert considered  — large birth weight, maternal obesity and glucose testing — were known, generally accepted factors in a standard-of-care analysis. Although the best way to analyze these factors can be debated, that does not mean a particular expert’s testimony is necessarily unreliable.

The Court of Appeals then turned to the defense’s argument that the expert’s opinions were nothing more than mere preferences. The court decided this contention ignored federal case law and the advisory committee’s notes on the use of knowledge and experience in determining the reliability of medical experts.

The complete lack of medical literature to back up the expert’s opinion also meant little under the Daubert standards. The court read Daubert as listing this factor as being only one among many that may be considered.

Lastly, the court distinguished between the admissibility and the weight of expert testimony. Although “shaky” evidence may be admitted, its weight can also be attacked by cross-examination, through other expert testimony and in closing arguments.


This case follows last year’s Daubert case, State v. Giese. It extends the Wisconsin discussion of Daubert to a civil case by applying it to the testimony of a medical expert. Thus, it makes an important contribution to Daubert jurisprudence.

The opinion emphasizes a trial judge’s wide discretion in determining reliability. Moreover, it makes a worthy point of distinguishing the admissibility of evidence from its weight. How much importance a jury attaches to an expert’s opinion can be sharply influenced through cross-examination and countervailing experts.

The decision valued experience over other possible foundations of an expert’s reliability, such as peer-reviewed medical publications. This opens the door to a wider variety of experts testifying in malpractice and personal injury cases. It may also open courts’ doors to testimony from social-science experts and allow experience rather than precision to play a larger role in gauging the reliability of experts.

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