In Seifert v. Balink, the Wisconsin Supreme Court Misses Its Chance to Clarify Daubert
This January, the Wisconsin Supreme Court issued its decision in Seifert v. Balink, which represents the court’s first review of the standard for the admissibility of expert testimony since the legislature amended Wis. Stat. § 907.02 in 2011 to adopt the federal Daubert standard.1 The court’s decision is a mosaic of opinions, but unfortunately lacks a majority decision that provides a framework to assist trial courts and litigators facing similar issues in the future. Four justices penned opinions— Justice Shirley Abrahamson (joined by Justice Ann Walsh Bradley) drafted the “lead” opinion (which, despite its title, is only a two-justice opinion and does not contain the rationale of even a plurality of the court), Justice Michael Gableman (joined by Chief Justice Roggensack) and Justice Annette Ziegler contributed concurrences, and Justice Daniel Kelly (joined by Justice Rebecca Bradley) issued a dissent. The decision ultimately represents a missed opportunity to clarify the Daubert framework in Wisconsin.
The plaintiffs, David, Kimberly, and Braylon Seifert, sued Dr. Kay Balink, a family practice physician, claiming that Dr. Balink provided inadequate care to Kimberly during her pregnancy and the labor and delivery of Braylon.2 Braylon was born with a brachial plexus injury—permanent nerve damage in his shoulder—caused by a shoulder dystocia during delivery.3 Shoulder dystocia is a life-threatening condition caused when an infant becomes caught on the mother’s pubic bone during delivery and is unable to travel through the birth canal.4
The plaintiffs’ case, like all medical malpractice actions, hinged on expert testimony.5 They retained Dr. Jeffrey Wener, an OB/GYN with over 36 years of experience providing prenatal and labor and delivery care, to provide several opinions critical of Dr. Balink.6 Dr. Wener’s most crucial opinion was that Dr. Balink failed to perform necessary testing to confirm that Kimberly had gestational diabetes, a risk factor for shoulder dystocia.7 Dr. Balink, to test this condition, performed a one-hour glucose screen and ruled out gestational diabetes based on Kimberly’s result of 131 mg/dl.8 Dr. Balink relied on standards promulgated by the American College of Obstetricians and Gynecologists (ACOG) in making this decision. The ACOG standards stated that a normal glucose level is 130 to 140 mg/dl, and recommended a three-hour test if levels were higher.9 Dr. Balink relied on the 140 number and believed further testing was not needed.10
Dr. Wener testified that Dr. Balink should have performed the three-hour test because Kimberly’s glucose level exceeded 130 mg/dl, the standard he personally used throughout his practice as an OB/ GYN.11 He opined that, had Dr. Balink performed this additional test, she would have confirmed that Kimberly had gestational diabetes, and that such a diagnosis, coupled with Kimberly’s weight and the size of the fetus, would have indicated a serious risk for shoulder dystocia.12 Dr. Wener also opined that Dr. Balink should have ordered a prelabor ultrasound and avoided the use of a vacuum device to assist with delivery.13 The jury returned a verdict for the plaintiffs, finding that Dr. Balink had breached the standard of care in her management of Kimberly’s pregnancy and Braylon’s delivery.14
Dr. Balink’s attorneys had attacked Dr. Wener’s opinions as inadmissibly unreliable under Wis. Stat. § 907.02 (incorporating the Daubert standard) in pretrial motions, motions after verdict, and on appeal.15 Each time, Dr. Balink’s attorneys had argued that Dr. Wener’s opinions were not based on reliable principles or methods that had been tested and generally accepted. Dr. Balink’s attorneys argued that Dr. Wener’s opinions should be excluded because they were instead based on Dr. Wener’s own personal preferences for practicing medicine.16 The trial court rejected Dr. Balink’s challenges to Dr. Wener, finding that his “holistic” approach was reliable, permitted him to testify, and upheld the admissibility of his testimony in motions after verdict.17 The court of appeals affirmed, and the supreme court then accepted Dr. Balink’s petition for review.18
The Supreme Court’s Several Opinions
The supreme court was unable to put forth a single opinion joined by four justices. Instead, the court issued a two-justice “lead” opinion, two concurrences (a two-justice concurrence and a onejustice concurrence), and a two-justice dissent.
Justice Abrahamson, joined by Justice Ann Walsh Bradley, authored the lead opinion holding that Dr. Wener’s opinions based on personal experience were reliable under Wis. Stat. § 907.02 and Daubert.19 However, the lead opinion did not approve of or adopt a test or framework based on the reliability factors enumerated by the Daubert court20 or the Advisory Committee’s Note on the 2000 Amendment to Fed. R. Evid. 702.21 Instead, Justice Abrahamson concluded that the classic Daubert framework was unworkable when assessing medical testimony because medicine is not a hard science prone to a set-in-stone analysis.22
Justice Abrahamson relied on several federal circuit court decisions distinguishing medicine from other fields of “scientific knowledge,”23 and concluded that “medicine is not a science but a learned profession, deeply rooted in a number of sciences and charged with the obligation to apply them for man’s benefit.”24 She believed that Dr. Wener’s opinions were reliable based on his extensive experience as an OB/GYN, and approved of his “holistic” approach.25
Justice Ziegler authored a concurrence agreeing with the lead opinion only as to its bottom line in what she termed a “close call.”26 She believed the trial court made a good record and did not erroneously exercise its discretion when admitting Dr. Wener’s testimony.27 However, Justice Ziegler wrote separately to voice her concern with the lead opinion’s failure to address the 2011 changes to Wis. Stat. § 907.02 and to provide guidance for future courts. She advocated for trial courts to “adhere to and apply the heightened Daubert-Wis. Stat. § 907.02 standard.”28
Justice Gableman, joined by Chief Justice Roggensack, concurred, joining the lead opinion’s bottom line finding that Dr. Wener’s opinions were reliable based on his personal experience.29 He wrote separately to note that medical literature is not required to support reliability and that experience is sufficient if the expert shows how that “experience makes his opinions reliable,” which he believed Dr. Wener had accomplished.30 Justice Gableman’s concurrence, like Justice Ziegler’s, advocated for at least some type of Daubert analysis based on the reliability factors identified by the United States Supreme Court and other federal panels.
Justice Daniel Kelly authored a dissent joined by Justice Rebecca Bradley.31 The dissent agreed with the lead opinion’s holding that an expert’s personal opinions could still be considered reliable, but disagreed that Dr. Wener’s opinions were admissible in the specific case.32 Instead of focusing solely on the Daubert question, Justice Kelly couched his main conclusion in terms of the standard of care.33 To prove medical negligence, Justice Kelly wrote that the plaintiffs had to identify the applicable, objective standard of care of a reasonable physician and show that the defendant’s conduct had breached that standard.34 Dr. Wener’s opinions, according to the dissent, did not constitute the accepted, objective standard of care of a reasonable family practice physician, and instead represented only Dr. Wener’s personal preferences for practicing medicine—i.e., a “what would Wener do” standard (WWWD).35
The Court’s Missed Opportunity to Clarify the Daubert Standard in Wisconsin
The Seifert decision represents a missed opportunity for the justices to provide guidance to trial courts and litigators moving forward. The court’s ultimate decision to admit Dr. Wener’s testimony should have been only a footnote in an opinion that provided a framework for trial courts to use when assessing Daubert issues for years to come—even if only limited to factually similar medical negligence actions.
Daubert and Fed. R. Evid. 702 impute to trial courts a “gatekeeper” function, requiring judges to confirm the reliability of all expert testimony, whether based on “scientific, technical or other specialized knowledge.”36 Trial courts are given broad discretion to make this call by using any relevant combination of the myriad factors that have been identified by the United States Supreme Court and the Advisory Committee.37 Those factors, which are fluid based on the facts and experts presented, include:
1. Whether the methodology can and has been tested;
2. Whether the technique has been subjected to peer review and publication;
3. The known or potential rate of error of the methodology; and
4. Whether the technique has been generally accepted in the scientific community.38
Appellate courts faced with reliability issues have taken it upon themselves to identify additional factors that they have found helpful, as identified by the 2000 Amendment to the Advisory Committee Note. These additional factors include:
1. Whether experts are “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying”39;
2. Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion40;
3. Whether the expert has adequately accounted for obvious alternative explanations41;
4. Whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting” 42; and
5. Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.43
Seifert was the Wisconsin Supreme Court’s first opportunity to provide guidance to trial courts since the Wisconsin Legislature adopted the Daubert standard in 2011. Prior to Seifert, the supreme court had yet to weigh in on which of these factors, if any, were appropriate to use to determine the reliability of medical expert testimony. The Seifert decision, while providing a thorough overview of the Daubert framework as applied by various state and federal courts, unfortunately does nothing to articulate a standard for Wisconsin trial courts, despite a majority of justices advocating for a heightened standard of admissibility.44 The decision, in total, represents a single-case review based on the specific facts presented, rather than a decision that develops, clarifies, or harmonizes the law, which is the usual purpose for supreme court review.45
The two-justice lead opinion foregoes applying any Daubert factors to determine reliability. The opinion states that “medicine is not a science” subject to a reliability analysis.46 However, regardless of what adjective is used to describe the practice of medicine, a Daubert analysis is still needed to confirm the reliability of medical expert testimony. The United States Supreme Court and the Advisory Committee have confirmed that Rule 702 “does not distinguish between scientific and other forms of expert testimony”; rather, a “trial court’s gatekeeping function applies to testimony by any expert.”47 While not all factors may apply to medical testimony—and different factors would undoubtedly apply to different medical fields—the court should have used its review as an opportunity to identify or create a framework for future courts to use to assess the reliability of medical expert testimony under Daubert.
The only holding agreed upon by a majority of the court was that an expert’s past experience can render his testimony reliable. This holding, though, is nothing new; it is a staple of Daubert jurisprudence recognized since the United States Supreme Court’s 1999 decision in Kumho Tire.48 But the lead opinion in Seifert does not take this hornbook rule of law to its needed conclusion—determining “how that experience leads to the conclusion reached, why that experience is a sufficient basis for that opinion, and how that experience is reliably applied to the facts.”49 Answering this question undoubtedly requires assessing the medical testimony in light of the factors identified by Daubert and the Advisory Committee, including general acceptance and the reliability of specific methods.50
Justices Gableman and Ziegler were keen on this assessment in their concurrences, with Justice Gableman advocating for a rule in which an expert must demonstrate the reliability of his personal preference/methods and Justice Ziegler advocating for a heightened Wis. Stat. § 907.02 standard.51 However, a majority of the justices simply could not agree on any given approach. As things currently stand, trial courts and litigators are left with a nonbinding holding that personal experience can render medical testimony reliable—nothing more.
Using Available Literature to Assess Reliability
The individual opinions generally touch on the use of literature in assessing reliability, with a majority of the justices agreeing—rightfully so— that medical literature is not required to render an expert’s opinions reliable under Wis. Stat. § 907.01.52 But the court did not expand on this holding to educate future judges and lawyers about the proper role of relevant medical literature in a Daubert analysis and, in particular, failed to offer any guidance regarding whether available literature from a respective organization or medical group should be used to assess whether an expert’s opinion is generally accepted.
Literature providing standards of practice can be found in every major field of medicine.53 The organizations behind the literature are focused predominantly on educating clinicians in their fields by providing guidelines and standards for the everyday practice of medicine.54 This literature is undoubtedly useful in determining accepted practices and, therefore, is relevant when assessing the reliability of an expert’s opinions and testimony. It is obvious that an expert’s opinion contrary to accepted published standards should be scrutinized more closely than testimony that conforms to those standards.
In Seifert, the defense relied heavily on the American College of Obstetrics and Gynecology’s standards for performing glucose testing.55 ACOG is a professional organization focused on producing “practice guidelines and other education materials” for practicing OB/GYNs.56 Its standards and “practice guidelines” are accepted in the obstetrics field and followed by credentialed OB/GYNs across the country.57 The parties disputed the importance of these standards, however, with Dr. Wener advocating for a 130 mg/dl threshold instead of the 140 mg/dl level that was permitted by the ACOG standards.58
The court acknowledged the ACOG literature and the parties’ contrary opinions as to glucose testing standards, but failed to incorporate the literature into its holdings or to identify the role of this literature in assessing the reliability of the expert. While applying the literature in Seifert may not have changed the outcome, it is hard to imagine a scenario where relevant and generally accepted guidelines and standards from prominent medical organizations would not be useful in assessing the reliability of medical experts—especially if an expert’s personal preference opinions are contrary to those accepted standards.
The “Standard of One” Problem
As discussed in Justice Kelly’s dissent, acceptance of Dr. Wener’s personal preference opinions may cause problems with the legal standard in medical negligence actions. Medical malpractice turns on a plaintiff’s ability to identify the applicable standard of care and prove that the defendant’s care or treatment breached that standard.59 In terms of standard of care, a physician is only required “to use the degree of care, skill, and judgment which reasonable doctors [who practice the same specialty] would exercise in the same or similar conditions.”60 The question is not what a single provider, or expert, would have personally done when treating the plaintiff, but what objective physicians in the same field would do when treating like patients. Yet the court’s lead opinion in Seifert could lend itself to the admission of personal preference opinions to prove a breach of the standard of care, and this is the result criticized by Justice Kelly’s dissent.61
Justice Kelly recognized that, although Dr. Wener was qualified based on his personal experience, and able to render his opinions reliable based on the same, the applicable legal standard in malpractice cases still required him to “be familiar with what is generally expected of reasonably qualified practitioners under similar circumstances.”62 Dr. Wener did not identify such a standard, but rather testified only as to his own practices, and in essence created a “standard of one” by which the jury measured Dr. Balink’s care.63 This creates a troubling precedent, because a physician’s treatment must be measured against the reasonable practices of his medical field, not the subjective beliefs of a single, for-pay expert whose sole purpose is to criticize and discredit. The lead opinion implies that medical experts should be permitted to testify about standard of care opinions based solely on their personal clinical methods or beliefs, instead of identifying the standard of care that is generally accepted in practice.
All in all, Seifert represents a missed opportunity for the Wisconsin Supreme Court to provide guidance regarding the Daubert standard, particularly in the context of medical testimony. Unfortunately, it may be some time before the court issues a new opinion on this topic. Hopefully, when that happens, the court will at least be able to generate a majority opinion with insights into how the standard should be applied by trial courts. For now, all we can do is wait.
Ryan M. Wiesner and Brent Simerson are associates with Leib Knott Gaynor LLC, a Milwaukee-based litigation outfit specializing in defending complex litigation in state and federal courts across the county. Ryan and Brent focus their practices on representing hospitals, physicians, and other licensed professionals in catastrophic negligence cases, and defending municipalities and their employees in high-stakes civil rights litigation. They also handle cases involving commercial and business disputes, products liability, medical device litigation, and other complex torts. Ryan and Brent can be contacted at email@example.com and firstname.lastname@example.org. For more information on their practice and LKG please visit LKGlaw.net.
1 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816.
2 See id.
3 Id., ¶¶ 3, 203.
4 Id., ¶¶ 28, 203; see also http://www.emedicinehealth.com/ script/main/art.asp?articlekey=39656 (last visited March 6, 2017).
5 Carney-Hayes v. Northwest Wis. Home Care, Inc., 2005 WI 118, ¶ 37, 284 Wis. 2d 56, 699 N.W.2d 524 (holding that plaintiff must present expert testimony to prove a health care provider’s breach of the standard of care).
6 Seifert, 372 Wis. 2d 525, ¶¶ 5, 40.
7 Id., ¶ 46.
8 Id., ¶ 22.
9 Id., ¶ 127.
11 Id., ¶¶ 46, 127.
12 Id., ¶¶ 44, 46.
13 Id., ¶ 271.
14 Id., ¶ 9.
15 Id., ¶ 58.
16 Id., ¶¶ 37, 104, 133.
17 Id., ¶¶ 8, 102, 109, 120.
18 Id., ¶¶ 8, 14, 94.
19 Id., ¶ 15.
20 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.579 (1993).
21 Fed. R. Evid. 702, Advisory Committee Note, 2000 Amendment.
22 Seifert, 372 Wis. 2d 525, ¶¶ 77-79.
23 Id. (quoting Sullivan v. U.S. Dep’t of the Navy, 365 F.3d 827, 834 (9th Cir. 2004)).
24 Id., ¶ 79 (quoting Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010)) (relying on “classic medical school text,” Cecil Textbook of Medicine 1 (James B. Wyngaarden & Lloyd H. Smith, Jr., eds., 17th ed. 1985)).
25 Id., ¶ 15.
26 Id., ¶¶ 169-170.
28 Id., ¶¶ 169-191.
29 Id., ¶ 192.
30 Id., ¶ 194.
31 Id., ¶ 258.
34 See Wis. JI-Civil 1023.
35 Seifert, 372 Wis. 2d 525, ¶ 267.
36 Fed. R. Evid. 702; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).
37 Kumho Tire, 526 U.S. at 141.
38 Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir. 1999) (citing Daubert, 509 U.S. at 592-93).
39 Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).
40 See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that, in some cases, a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”).
41 See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (excluding testimony where the expert failed to consider other obvious causes for the plaintiff’s condition).
42 Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997); see Kumho Tire, 526 U.S. at 149-50 (recognizing that Daubert requires the trial court to assure itself that the expert “employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field”).
43 See Kumho Tire, 526 U.S. at 149-150 (recognizing that Daubert’s general acceptance factor does not “help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally
accepted principles of astrology or necromancy”).
44 Seifert, 372 Wis. 2d 525, ¶¶ 54, 169, 223.
45 Wis. Stat. § 809.62(1r).
46 Seifert, 372 Wis. 2d 525, ¶ 79.
47 Daubert, 509 U.S. at 589-90; see also Kumho Tire, 526 U.S. 137; Fed. R. Evid. 702, Advisory Committee Note, 2000 Amendment (emphasis added).
48 Kumho Tire, 526 U.S. at 147-151.
49 Fed. R. Evid. 702, Advisory Committee Note, 2000 Amendment.
50 Kumho Tire, 526 U.S. at 151.
51 Seifert, 372 Wis. 2d 525, ¶¶ 169-170, 194.
52 Id., ¶¶ 129, 194, 235, 240.
53 See https://www.jointcommission.org; https://www.acr.org; http://www.aaem.org; https://www.aap.org/en-us/Pages/Default.aspx (last visited March 6, 2017).
54 Id.; see, e.g., http://www.acog.org/About-ACOG/About-Us (last visited March 6, 2017).
55 Seifert, 372 Wis. 2d 525, ¶ 127.
56 http://www.acog.org/About-ACOG/About-Us (last visited March 6, 2017).
59 Wis. JI-Civil 1023; Carney-Hayes v. Nw. Wis. Home Care, Inc., 2005 WI 118, ¶ 37, 284 Wis. 2d 56, 699 N.W.2d 524.
60 Wis. JI-Civil 1023; Jandre v. Wis. Injured Patients & Families Comp. Fund, 2012 WI 39, ¶ 95, 340 Wis. 2d 31, 813 N.W.2d 627.
61 Seifert, 372 Wis. 2d 525, ¶ 258.
62 Id., ¶ 268 (citing Francois v. Mohrohisky, 67 Wis. 2d 196, 201-202, 226 N.W.2d 470 (1975) (“The standard to which [physicians] must conform … is determined by the practices of neither the very best nor the worst of the class. Like automobile drivers, engineers, common laborers, and lawyers, they are obliged to conform to reasonable care in the circumstances.”)).
63 Id., ¶ 277.