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High court tackles Daubert standards in 2017’s first decision

Ryan Wiesner is an associate with the newly founded Leib Knott Gaynor LLC in Milwaukee. He specializes in defending complex litigation in state and federal courts across the country, mostly representing clients in matters involving professional negligence, civil rights, products liability and commercial disputes. He can be contacted at

Ryan Wiesner is an associate with the newly founded Leib Knott Gaynor LLC in Milwaukee. He specializes in defending complex litigation in state and federal courts across the country, mostly representing clients in matters involving professional negligence, civil rights, products liability and commercial disputes. He can be contacted at

Earlier this month the Wisconsin Supreme Court issued a lengthy decision in the case of Seifert v. Balink, handing down the court’s first decision on the recently amended Wis. Stat. § 907.02 and, specifically, whether a medical expert’s opinions are reliable under Daubert.

A plurality of the court agreed that a medical expert’s personal experience can render his opinions reliable under Wis. Stat. § 907.02 and, in doing so, affirmed the Court of Appeals’ decision to permit the plaintiff’s medical expert’s testimony at trial. But the opinion does not establish a bright-line rule or standard for trial courts and litigants to use moving forward.

Only two justices actually agreed with the lead opinion: Shirley Abrahamson and Ann Walsh Bradley. Justices Michael Gableman, joined by Pat Roggensack, and Annette Zeigler filed concurring opinions agreeing with the lead opinion’s holding but not reasoning. And Justice Daniel Kelly, joined by Rebecca Bradley, filed a dissent. The facts and individual holdings are as follows:

Braylon Seifert suffered a brachial plexus injury (permanent nerve damage to his shoulder) following his birth in May 2009. He suffered a shoulder dystocia during delivery. This is a life-threatening condition that results when a baby’s shoulder is caught on his mother’s pubic bone and inhibits travel through the birth canal. The plaintiffs, Kimberly and David Seifert, and their child, Braylon, sued the doctor who oversaw Ms. Seifert’s prenatal care and labor and delivery: Dr. Kay Balink—a family practice physician. Balink was accused of negligence and failure to obtain informed consent. Their ultimate claim was that Dr. Balink had failed to recognize several risk factors for shoulder dystocia, which were present during Ms. Seifert’s pregnancy or discoverable through testing.

The plaintiffs retained OB/GYN Dr. Jeffrey Wener as an expert to support their claims. Dr. Wener was critical of Dr. Balink in three regards. Dr. Wener concluded that the doctor breached the standard of care because (1) she had failed to perform additional diagnostic testing to determine if Ms. Seifert was a gestational diabetic, a risk factor for shoulder dystocia; (2) she had failed to perform an ultrasound before delivery to better assess fetal weight (large fetal weight is another risk factor for shoulder dystocia); and (3) she should not have used a vacuum device to assist in delivery, given the risk signs of shoulder dystocia. He provided these opinions based solely on his “decades” of experience delivering thousands of babies and experience in academia and leadership positions at medical facilities. He did not cite medical literature, nor did he rely on medical literature when providing his opinions.

Dr. Wener’s opinions predominantly related to Dr. Balink’s use of a one-hour glucose screen to determine if Ms. Seifert was a gestational diabetic. Dr. Balink believed the results of that test evidenced normal glucose levels, 131 mg/dl, and that Seifert was therefore not diabetic. The defense relied on nationally published medical experts and literature from the American College of Obstetricians and Gynecologists, which supported that a glucose level in excess of either 130 or 140 mg/dl would require further testing in the form of a three-hour glucose test. Dr. Balink relied on the 140 mg/dl threshold as the standard of care, testifying that she would have performed the additional test if the screening results had exceeded that number. But since the results were 131 mg/dl, no further testing was required.

Dr. Wener testified that, based on his personal experience, Dr. Balink should have performed the three-hour diagnostic test since Ms. Seifert’s glucose level exceeded 130 mg/dl. He also opined that the three-hour test was the only means of diagnosing gestational diabetes and that Ms. Seifert had gestational diabetes. This condition therefore required an ultrasound before labor to assess fetal weight and contraindicated the use of a vacuum device to assist with delivery.

The defendant moved to exclude Dr. Wener’s opinions as unreliable under Wis. Stat. § 907.02. She argued that Dr. Wener’s opinions were based solely on his own personal preference and were not only not supported by medical literature but, in some instances, were inconsistent with it. The trial court allowed him to testify, finding his opinions reliable based on his personal experience. The trial court believed that any inconsistencies or the unreliable nature of Dr. Wener’s opinions could be subject to scrutiny in cross-examination.

The plaintiffs obtained a favorable verdict and the defendants appealed. The Court of Appeals affirmed the trial court’s decision to permit Dr. Wener’s opinions under Wis. Stat. § 907.02. The parties did not dispute that Dr. Wener, because of his experience and education, was qualified to testify as an expert. They only disputed the reliability of his testimony, his methods, and the application of his methods to the facts of this case.

The Supreme Court reviewed the case and, therefore, had an opportunity to clarify the use of the Daubert standard in Wisconsin, at least in cases involving medical experts. A plurality of the court reached only a narrow holding—that expert testimony can be reliable under Wis. Stat. § 907.02 if based solely on personal experience. No majority of the court agreed on any bright-line rule, standard, or combination of Daubert factors for trial courts and litigators to use in future Daubert disputes.

Justice Abrahamson authored the lead opinion, which Justice Ann Walsh Bradley joined. The court ultimately upheld the admission of Dr. Wener’s opinions, concluding that personal experience alone can be sufficient to render a medical expert witness’ opinions reliable under section 907.02 and Daubert. The court reached this conclusion without applying the reliability factors enumerated by the U.S. Supreme Court in Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) and the Federal Advisory Committee’s notes on an amendment made in 2000 to Federal Rule of Evidence 702. These factors mainly concern whether an expert’s opinions are testable and subject to peer review. The lead opinion, instead, emphasized that medicine “is not a science, but a learned profession deeply rooted in a number of sciences.” The Daubert reliability factors, as a result, did not easily apply to Ms. Seifert’s specific medical condition and treatment.

Justice Ziegler authored a concurrence, agreeing with the decision to affirm the Court of Appeals. She, however, wrote separately because she did not believe the lead opinion sufficiently dealt with changes that the state Legislature made in 2011 to Wis. Stat. § 907.02. Nor did Ziegler think the opinion provided guidance to trial courts over how they should apply the amended statute when assessing expert opinions under both the same statute and Daubert case law. This concurrence ultimately focused on the need for trial courts to “adhere to and apply the heightened Daubert-Wis. Stat. § 907.02 standard.” Had this standard been relied on—which would have mainly entailed looking at whether Dr. Wener’s opinions were based on sufficient data and a reliable method that was properly applied— Ziegler would have admitted his testimony.

Justice Gableman also authored a concurrence, which Justice Roggensack joined. They joined a plurality of the court that agreed that personal experience alone can be sufficient to render a medical expert’s opinion reliable under § 907.02. He wrote separately to note that the expert should be required to “show … how his experience makes his opinion reliable” and that medical literature is not needed to accomplish this goal. Justice Gableman believed that Dr. Wener provided sufficient testimony to support the reliability of his personal experience-based opinions.

Justice Daniel Kelly, joined by Justice Rebecca Bradley, dissented. The dissenters concluded, like the lead opinion, that personal experience can be sufficient to render an expert’s opinions reliable. They, however, would have excluded Dr. Wener’s opinions because they only represented his personal preference for practicing medicine, not the standard of care applicable to reasonable physicians practicing in the same field as Dr. Balink.

The plaintiffs shouldered the burden of identifying that standard and showing why Dr. Balink’s care breached the same. Dr. Wener’s personal experience-based opinions, as he presented them, did not satisfy this burden and did nothing more than show how he alone preferred to practice medicine—it did not create a reasonable-physician standard of care.

The dissenters also recognized that Dr. Balink was a family practice physician — not an obstetrician — so the standard of care for her conduct should have been presented in terms of what a reasonable family-practice doctor should have done.

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