SCOW’s maiden decision on Daubert is split 2-1-2-2

Seifert v. Balink, 2017 WI 2,1/6/17,  affirming a published court of appeals opinion; case activity (including briefs)

It’s true. SCOW’s first decision on §907.02(1), which adopted the Daubert test for the admissibility of expert testimony is 134 pages long and includes 4 separate opinions, but don’t despair. It’s not the mess you imagine. Reading the first 3 opinions by Abrahamson (joined by A.W. Bradley), Ziegler (solo) and Gableman (joined by Roggensack) feels like the kids’ game “spot the difference between these pictures.” They are more alike than different. You might even wonder why the 5 of them couldn’t just sign on to 1 majority opinion. Or you might not. Bottom line: 5 justices affirmed the admission of a medical doctor’s expert testimony even though it was based on his personal experience, not science.

Braylon Seifert suffered a shoulder dystocia at birth. A jury found Dr. Balink negligent in the delivery of Braylon and in the prenatal care of his mother. Before trial, the defense argued that Dr. Wener’s experienced-based expert testimony was unreliable and inadmissible under §907.02(1), which codified Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Justice Abrahamson wrote the “lead opinion” on this issue of 1st impression. She provides a helpful outline for the reader at ¶15.

The parties agreed that the applicable standard of care is reasonable care for a family practice doctor practicing obstetrics, that Dr. Wener was a qualified expert, that he had scientific, technical or other specialized knowledge that could assist the jury, and if admissible, his testimony would be relevant and helpful to the jury. ¶¶30-33. But the defendant argued that Dr. Wener’s testimony was not the product of reliable methods as required by §907.02(1), because: (a) it was based solely on his personal experience, (b) he did not rely on medical literature, and (c) his testimony was internally inconsistent. ¶99.

Five justices reject the defense challenges and affirm the admission of Dr. Wener’s expert opinion. Here are 8 rules distilled from Justice’s Abrahamson’s opinion, which are joined by A.W. Bradley, Gableman and Roggensack:

1. Daubert makes the trial court a gatekeeper, not a fact finder. When credible experts disagree, the jury, not the court decides which expert to believe. Abrahamson/A.W. Bradley ¶59. Accord Gableman/Roggensack ¶¶236-237, ¶241, ¶246.
2. Daubert applies to all expert opinions, not just scientific evidence. A/AWB ¶60. Accord G/R ¶¶235-236.
3. To decide whether an expert’s opinion is reliable, courts should consider a list of factors, but they are neither exhaustive nor definitive. A/AWB ¶¶62-64. Accord G/R ¶225, ¶226, ¶236.
4. How courts apply these factors will vary case by case, expert by expert. A/AWB ¶64. Accord G/R ¶225, ¶236.
5. The trial court may consider some, all, or none of these factors. A/AWB ¶65. Accord G/R ¶115 (quoting Kumho Tire).
6. Daubert and Kumho Tire affirm that experience-based experts may satisfy the reliability requirement. A/AWB ¶¶67-71. Accord G/R ¶226 and Kelly/ R.G. Bradley ¶259.
7. An experienced-based expert cannot establish that a fact is generally accepted merely by saying so. A/AWB ¶75. Accord G/R ¶227.
8. The appropriate way to attack “shaky but admissible” experience-based testimony is by vigorous cross-examination, presentation of contrary evidence and careful instruction on the burden of proof. A/AWB ¶86. Accord G/R ¶244.

Applying these principles, at least 4 justices concluded that:

• Dr. Wener’s opinion was reliable because it was based on his knowledge and experience with obstetrics and with family practice doctors practicing obstetrics. He gained the knowledge through decades of practice, delivering thousands of babies, teaching and supervising other doctors. A/AWB ¶123; Accord G/R ¶194, ¶234, ¶239.
• Dr. Wener’s failure to cite to medical literature was not a bar to admissibility. A/AWB ¶129. Accord G/R ¶194, ¶240.
• Inconsistencies in Dr. Wener’s opinion went to its weight, not its admissibility into evidence. The defense could cross-examine him and present contrary evidence. A/AWB ¶132. Accord G/R ¶241,¶243.

Justice Ziegler says:

I concur only in the court’s conclusion to affirm the decision of the court of appeals.  I do not join the lead opinion for two reasons.  First, the lead opinion does not sufficiently address the legislature’s 2011 changes to Wis. Stat. § 907.02 (2009-10), which had significant effect on the admissibility of expert opinion testimony in Wisconsin.  The legislature has now tightened the applicable standard.  Second, the lengthy lead opinion does not adequately guide trial courts with regard to how they should apply Wis. Stat. § 907.02 (2013-14). I write to clarify that § 907.02 has now changed the gatekeeping function of the trial court concerning the admissibility of expert testimony. Simply stated, the trial court now must adhere to and apply the heightened Daubert-Wis. Stat. § 907.02 standard. ¶169.

Justice Abrahamson doesn’t really address whether § 907.02 raised or lowered the bar for the admission of expert testimony in Wisconsin. Her point is that the Wisconsin legislature codified Daubert, so she focuses on the extensive body of federal law interpreting and applying it. Ziegler does not quibble with any of the 8 rules above and she offers trial courts no alternative rules or guideposts other than the plain language of the statute. So the thrust of her 15-page concurrence seems to be that §907.02(1) tightened Wisconsin’s standard for the admissibility of expert testimony, a point none of the other justices deny. Since she does not engage either the Abrahamson or Gableman opinion, it is hard to see which, if any parts, she does not join. (Since On Point is not infallible please free to register your disagreement in the comment section below).

The odd thing about Gableman’s concurrence re Daubert is that it is written like a competing lead opinion. It lays out the same facts, standard of review, law and conclusions as Justice Abrahamson’s lead opinion. If it is substantively different than hers, that is not apparent (to this author anyway). The only real difference is that there were 3 issues for review in this case (Daubert being only 1 of them), and Gableman would hold that resolution of the Daubert issue made it unnecessary to address Seifert’s “new trial in the interest of justice” argument.

Justice Kelly’s dissent argues that no one ever “described what care we should expect from the reasonably qualified family practitioner in the circumstances revealed by the facts of this case.” ¶262. The proper standard of medical care and the failure to meet the standard are separate inquiries, and the proffered expert has to prove that he has the qualifications to address each topic. ¶265 Kelly asserts that Dr. Wener never identified a standard of care. What he described is what he would have done in the same circumstances, in other words “WWWD.” He did not say what a reasonably qualified family practitioner ought to have done for the Seiferts. ¶281. Furthermore, Dr. Wener is an OB/GYN with sterling professional credentials. Dr. Balink is a family practitioner. Wener allegedly did not identify a standard of care for a family practitioner. ¶285. (Note Abrahamson disputes this point. ¶¶42-49.)

In sum, seven justices agree that an expert opinion based on personal experience may be admitted under Daubert. Four justices agree with the essential points in Justice Abrahamson’s opinion. Justice Ziegler does not explicitly disagree with the essential points in Justice Abrahamson’s opinion. Stay tuned for a future post on what this decision may mean for criminal litigation.

Note that this opinion also addresses the propriety of certain remarks during closing argument, if you happen to be working on that issue. ¶147, ¶248.

For additional discussion, see Mike Tobin’s guest post here.