High court: Doctor’s testimony based on personal experience satisfies Daubert standards

Listen to this article

The Wisconsin Supreme Court has found that two lower courts were right when they allowed a medical expert to draw on personal experiences for his testimony in a medical-malpractice case.

The high court, in a 5-2 decision on Friday, found that Grant County Circuit Court Judge Craig Day had got it right and the Court of Appeals had later properly affirmed Day’s decision.

Unlike many 5-2 decisions issued by the state Supreme Court, this one did not split along ideological lines. Instead, the justices commonly believed to make up the court’s five-seat conservative majority found themselves at odds with each other.

Dissent came from Justices Rebecca Bradley and Dan Kelly, while the majority opinion saw justices Annette Ziegler, Michael Gableman and Chief Justice Pat Roggensack side with the two justices who are generally believed to form the court’s liberal minority — Ann Walsh Bradley and Shirley Abrahamson.

Abrahamson wrote the court’s opinion in the case, which stemmed from a medical-malpractice lawsuit filed by the parents of 7-year-old Brayton Seifert against the doctor who delivered Seifert. When Seifert was being born, his shoulder got stuck and he suffered permanent damage.

The Seiferts sued in 2011, alleging that Dr. Kay Balink was negligent in both Seifert’s delivery in 2009 and in providing prenatal care to Seifert’s mother, who was overweight. A jury awarded Seifert more than $1.75 million in damages; but because Wisconsin specifically caps economic damages at $750,000, the amount of the total award was reduced to nearly $900,000.

Balink had opposed the testimony of one of Seifert’s expert witnesses, Dr. Jeffery Wener, a board-certified obstetrician from the Chicago suburbs who has practiced for 36 years and delivered thousands of babies. Balink challenged the testimony both before and after the trial.

Wener cited various reasons for his contention that Balink had breached the standard of reasonable care. Among other things, he said Balink should have conducted additional testing to learn if Seifert’s mother had gestational diabetes, especially in light of her weight and the results of a blood glucose test. Wener also said Balink should have performed an ultrasound before the delivery to gain an idea of Seifert’s size.

Balink argued that Wener’s testimony was not admissible because it was based on Wener’s personal experience instead of reliable methods called for by law. Those methods were largely laid out by the U.S. Supreme Court in the case of Daubert v. Merrell Dow.

State statutes were later amended in 2011 to incorporate those changes and codify federal rules of evidence.

The decision handed down Friday was the state Supreme Court’s first attempt at interpreting the 2011 amendment. In particular, the amendment provides that expert testimony is not admissible unless it is based on sufficient facts or data and is the product of reliable principles and methods, both of which must be applied reliably to a case’s facts.

Judge Day and the District 4 Court of Appeals had found that Wener fulfilled the requirements of that amendment. They noted that Daubert and later cases do not preclude the use of expert medical testimony based on personal experience, as long as it is of the sort that doctors would accept as being useful and reliable.

In writing for the high court’s majority, Abrahamson commended Day for “making a good, clear record.” The court also clarified that trial courts have discretion in gauging an expert’s reliability.

In his dissent, Justice Kelly argued that Wener’s testimony was not admissible because Wener was not qualified to testify about the standard of care to which Balink was supposed to have been held. Kelly said the court had missed an opportunity to clarify the standard for admitting expert testimony.

“As we sketch out the contours of Wis. Stat. § 907.02, I think we should use a sharper pencil,” he wrote. “As it is, we have not made the necessary distinction between the thing about which an expert is to testify, on the one hand, and on the other, the qualification to so testify.”

Kelly noted that Wener only testified about what he himself would have done, and not what reasonably qualified doctors would have done.

“As it turns out, we focused so narrowly on Dr. Wener’s sterling professional credentials that we let him become the thing about which he was supposed to testify,” Kelly wrote. Follow @erikastrebel