Braylon Seifert v. Kay M. Balink, M.D.

• Court: Wisconsin Supreme Court
• Decided: January 6, 2017
• Docket: 2014AP000195
• Status: Published

Opinion

2017 WI 2

SUPREME COURT OF WISCONSIN CASE NO.: 2014AP195 COMPLETE TITLE: Braylon Seifert, by his Guardian ad litem, Paul J. Scoptur, Kimberly Seifert and David Seifert, Plaintiffs-Respondents, Dean Health Insurance and BadgerCare Plus, Involuntary-Plaintiffs, v. Kay M. Balink, M.D. and Proassurance Wisconsin Insurance Company, Defendants-Appellants-Petitioners.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED: January 6, 2017 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 6, 2016

SOURCE OF APPEAL: COURT: Circuit Court COUNTY: Grant JUDGE: Craig R. Day

JUSTICES: CONCURRED: ZIEGLER, J. and GABLEMAN, J. concurs, joined by ROGGENSACK, C. J., J. (Opinion filed). DISSENTED: KELLY, J. joined by BRADLEY, R. G., J. dissent (Opinion Filed). NOT PARTICIPATING:

ATTORNEYS: For the defendants-appellants-petitioners, there were briefs by Samuel J. Leib, Brent A. Simerson, and Leib, Knott, Gaynor, LLC, Milwaukee, WI, and oral argument by Samuel J. Leib.

For the plaintiffs-respondents, there was a brief by Kenneth M. Levine, (pro hac vice), and Kenneth M. Levine & Associates, LLC, Brookline, MA, and Paul J. Scoptur and Aiken & Scoptur, S.C., Milwaukee. Oral argument by Kenneth M. Levine. 2017 WI 2 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2014AP195 (L.C. No. 2011CV588)

STATE OF WISCONSIN : IN SUPREME COURT

Braylon Seifert, by his Guardian ad litem, Paul J. Scoptur, Kimberly Seifert and David Seifert,

Plaintiffs-Respondents,

Dean Health Insurance and BadgerCare Plus, FILED Involuntary-Plaintiffs, JAN 6, 2017 v. Diane M. Fremgen Clerk of Supreme Court Kay M. Balink, M.D. and Proassurance Wisconsin Insurance Company,

Defendants-Appellants-Petitioners.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of a

published decision of the court of appeals.1 The court of

appeals affirmed a judgment and an order of the Circuit Court

for Grant County, Craig R. Day, Judge, in favor of the

plaintiff, Braylon Seifert (by his guardian ad litem, Paul

1 Seifert ex rel. Scoptur v. Balink, 2015 WI App 59, 364 Wis. 2d 692, 869 N.W.2d 493. No. 2014AP195

Scoptur, and his parents, Kimberly Seifert and David Seifert)

and against the defendants, Dr. Kim Balink (the defendant

doctor) and Proassurance Wisconsin Insurance Company.

¶2 This medical malpractice case is based on the claim

that the defendant doctor was negligent in the prenatal care of

Braylon Seifert's mother and in Braylon's delivery in May 2009.

¶3 Complications arose during Braylon's delivery. Almost

immediately after Braylon's head appeared, the head retracted,

indicating a shoulder dystocia, that is, indicating that the

shoulder was stuck, prohibiting the body from being delivered.

The defendant doctor undertook a series of steps to resolve the

dystocia and delivered the baby. Braylon's shoulder was

injured, however, and the growth and function of Braylon's left

arm are permanently and severely limited.

¶4 Braylon claims that the defendant doctor's care during

delivery fell below the standard of reasonable care and caused

him to have a permanent brachial plexus injury, that is, to have

a permanent injury to the nerves that animate his left arm. ¶5 Braylon's obstetrical expert witness, Dr. Jeffrey

Wener, testified that he was familiar with the standard of care

for family practitioners practicing obstetrics with regard to

prenatal care, labor, and delivery. Dr. Wener explained the

reasonable care to be used in a case like the instant one and

opined that the care provided and the procedures used by the

defendant doctor fell below the standard of reasonable care.

¶6 The defendants challenged Dr. Wener's testimony in the circuit court, in the court of appeals, and in this court as 2 No. 2014AP195

inadmissible under the recently amended Wis. Stat. § 907.02(1)

(2013-14).2 This amended statute governing the admissibility of

expert evidence was enacted in 2011. It adopted the federal

evidentiary standard codified in Federal Rule of Evidence 702

(2000), which in turn adopted the reliability standard

explicated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993).

¶7 The new Daubert aspect of Wis. Stat. § 907.02(1)

became effective February 1, 2011, and applies in the instant

case.3 It requires that expert testimony be based on sufficient

facts or data and that the expert testimony be the product of

reliable principles and methods.4 The expert witness must apply 2 All references to the Wisconsin Statutes are to the 2013- 14 version unless otherwise indicated. 3 Wisconsin Stat. § 907.02(1) provides as follows, with emphasis added to show the new language added in 2011:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. 4 The case law uses the words "methodology" and "methods" interchangeably. See, e.g., Fuesting v. Zimmer, Inc., 421 F.3d 528, 535 (7th Cir. 2005), opinion vacated on other grounds on reh'g, 448 F.3d 936 (7th Cir. 2006) ("The district court must also, in keeping with its gatekeeper's duty, assess the reliability of the methodology the expert has employed in arriving at his opinion.").

3 No. 2014AP195

the principles and methods reliably to the facts of the case.5

These three aspects of the Daubert standard are often referred

to as the "reliability standard."

¶8 Both the circuit court and the court of appeals

concluded in the instant case that Dr. Wener's testimony was

admissible under § 907.02(1).

¶9 The jury's special verdict found that the defendant

doctor was negligent in the delivery of Braylon and in the

prenatal care of his mother and that this negligence was a cause

of injury to Braylon. The jury further found that Braylon

should be awarded $100,000 for past pain, suffering, disability,

and disfigurement and $1,650,000 for future pain, suffering,

disability, and disfigurement.

¶10 The jury did not award any damages to Braylon's

parents. The jury did not find that the defendant doctor

violated informed consent. These two rulings are not at issue

in this review.

¶11 The circuit court entered judgment for Braylon for $135,000 in medical expenses and $750,000 in pain and suffering,

"as reduced pursuant to Wisconsin Statute, plus interest thereon

provided by law."6

5 See Daniel D. Blinka, The Daubert Standard in Wisconsin: A Primer, Wis. Lawyer, Mar. 2011, at 61 ("Only when the witness identifies her principles and methods is the trial court in a position to assess their reliability"). 6 See Wis. Stat. § 893.55, which caps noneconomic damages at $750,000 in medical malpractice cases.

4 No. 2014AP195

¶12 On three occasions, the circuit court carefully and

extensively considered the defendants' challenges to the

admissibility of Dr. Wener's testimony under Wis. Stat.

§ 907.02(1): at a "Daubert" hearing before trial, on a

challenge to Dr. Wener's testimony at trial, and on motions

after verdict. The circuit court ruled in favor of admitting

Dr. Wener's testimony at each of these junctures.

¶13 Seeking a new trial, the defendants raise three issues

in this court:

I. Did the circuit court err in admitting the testimony

of Dr. Jeffrey Wener, Braylon's medical expert? The

defendants claim that because Dr. Wener's testimony

was experience-based, his method was unreliable and

inadmissible under Wis. Stat. § 907.02(1).

II. Did several remarks of Braylon's counsel during

closing argument violate the circuit court's orders in

limine, prejudice the jury, and warrant a new trial?

III. Should this court grant a new trial in the interests of justice pursuant to Wis. Stat. § 751.06?

¶14 The court of appeals affirmed the judgment of the

circuit court, concluding that a new trial was not warranted.

¶15 For the reasons set forth, we affirm the decision of

the court of appeals affirming the circuit court's judgment and

order that a new trial was not warranted. We conclude:

I. The circuit court did not err in applying Wis. Stat.

§ 907.02(1) and admitting as reliable Dr. Wener's

5 No. 2014AP195

expert medical testimony on the standard of reasonable

care based on his personal experiences.

II. The circuit court did not err in concluding that

Braylon's counsel's remarks during closing argument

did not constitute prejudicial error justifying a new

trial.

III. A new trial should not be granted pursuant to Wis.

Stat. § 751.06 in the interests of justice.

¶16 We shall address each issue in turn. The facts and

law relevant to each issue are stated in the discussion of that

issue.

I

¶17 The first issue entails the defendants' challenge to

the testimony of Braylon's medical expert, Dr. Jeffrey Wener, as

unreliable and inadmissible under Wis. Stat. § 907.02(1). Dr.

Wener testified about the standard of reasonable care in the

instant case and how the defendant doctor breached the standard.

¶18 We review the circuit court's admission of Dr. Wener's testimony for compliance with the Daubert reliability standard

codified in Wis. Stat. § 907.02(1). The defendants' challenge

was that Dr. Wener's experience-based testimony is not the

product of a reliable method. We conclude that Dr. Wener's

testimony was reliable and admissible under § 907.02(1). Our

reasoning in reaching the conclusion that the circuit court did

not erroneously exercise its discretion in admitting Dr. Wener's

testimony proceeds as follows:

6 No. 2014AP195

A. We set forth the facts of the defendant doctor's

prenatal care of Braylon's mother and conduct during

Braylon's delivery. See ¶¶19-28, infra.

B. We examine undisputed facets of the case, including

aspects of Dr. Wener's testimony and the standard of

reasonable care applicable to the defendant doctor in

the instant case. See ¶¶29-37, infra.

C. We summarize Dr. Wener's testimony about the standard

of reasonable care of a family practice doctor

practicing obstetrics. Dr. Wener's testimony was

based on his personal experiences; his opinion was

that the defendant doctor breached that standard. See

¶¶38-49, infra.

D. We discuss the reliability standard set forth in Wis.

Stat. § 907.02(1) that governs admission of expert

evidence. We pay special attention to assessing the

method used by a medical expert based on the expert's

personal experiences. See ¶¶50-93, infra. E. We set forth the standard for reviewing a circuit

court's determination that medical expert testimony is

admissible under the reliability standard incorporated

in Wis. Stat. § 907.02(1). See ¶¶94-100, infra.

F. Against this backdrop of the teachings about the

reliability of the methodology of medical expert

opinion testimony based on personal experiences and

the standards for reviewing a circuit court's determination of reliability and admissibility, we 7 No. 2014AP195

review the circuit court's ruling and conclude, as did

the court of appeals, that the circuit court did not

erroneously exercise its discretion in admitting Dr.

Wener's expert medical testimony on the standard of

reasonable care based on his personal experiences.

Accordingly, we affirm the decision of the court of

appeals affirming the circuit court's admission of Dr.

Wener's testimony. See ¶¶101-146, infra.

A

¶19 The defendant doctor, a family practitioner, provided

prenatal care to Braylon's mother during regular prenatal visits

and also delivered Braylon.

¶20 During the regular prenatal visits, as relevant here,

the defendant doctor measured the mother's weight, tested the

mother for gestational diabetes, and performed fundal height

measurements. Obstetricians use the results of these tests to

estimate the baby's birth size. An obese or diabetic mother and

a large fundal height indicate macrosomia (a large baby). The baby's expected weight influences decisions made leading up to

and during the delivery.

¶21 Braylon's mother weighed 269 pounds at the start of

her pregnancy, and she gained approximately 36 pounds during the

pregnancy.

¶22 The defendant doctor used a one-hour glucose screening

test to determine whether the mother had gestational diabetes.

The test result was 131 mg/dL. A three-hour glucose screening test diagnoses gestational diabetes more accurately. 8 No. 2014AP195

¶23 The defendant doctor also performed fundal height

measurements, which, according to Dr. Wener, involves "literally

putting a tape measure on mom's pubic bone and then extending

the tape to the top of the fundus, which is the top of the mom's

uterus."

¶24 Obstetricians may also perform an ultrasound near the

date of delivery to get a more accurate estimate of the baby's

size. The defendant doctor did not perform an ultrasound.

¶25 The defendant doctor estimated that Braylon would

weigh eight pounds, eight ounces at birth. Braylon's actual

birth weight was nine pounds, twelve ounces.

¶26 Braylon's mother arrived at the hospital on May 28,

2009 for inducement of labor. Initially, things went well. The

mother was completely dilated and ready to push by 11:00 p.m.

After an hour, the baby had started descending but Braylon's

mother had grown tired.

¶27 The defendant doctor then decided to use a vacuum

device to assist in the delivery. This device is essentially a suction cup that attaches to the baby's head and is used to aid

the mother's efforts. Thirteen minutes and four contractions

later, the baby's head delivered.

¶28 Right after the baby's head emerged, it retracted into

the mother (the "turtle sign") and the defendant doctor was

faced with a shoulder dystocia. A shoulder dystocia occurs when

one or both of the baby's shoulders become stuck inside the

mother's body and prevent delivery. The defendant doctor then performed a series of well-known obstetrical maneuvers (physical 9 No. 2014AP195

manipulations to mother and baby) to resolve the dystocia. The

baby was delivered approximately three minutes after the

diagnosis of shoulder dystocia.

B

¶29 Before we delve into the substance of Dr. Wener's

challenged testimony, we turn to undisputed facets of the case,

including aspects of Dr. Wener's testimony and the standard of

reasonable care for a family practice doctor practicing

obstetrics.

¶30 The parties do not dispute that the applicable

standard of care under Wisconsin law is reasonable care for a

family practice doctor practicing obstetrics and that a family

practice doctor may be liable for injury caused by breach of

that standard of care.

¶31 Nor do the parties dispute that the jury in the

instant case was properly instructed on this standard of

reasonable care. The circuit court presented the standard of

reasonable care, as set forth in Wisconsin Jury Instruction Civil 1023, to the jury as follows:

In treating and diagnosing Kimberly Seifert's pregnancy, labor, and delivery, Dr. Kay Balink was required to use the degree of care, skill, and judgment which reasonable family practice doctors practicing obstetrics would exercise in the same or similar circumstances, having due regard for the state of medical science at the time of the pregnancy, labor, and delivery. A doctor who fails to conform to this standard is negligent.

The burden is on the plaintiffs to prove that Dr. Kay Balink was negligent. A doctor is not negligent; [sic] however, for failing to use the highest degree

10 No. 2014AP195

of care, skill, and judgment, or solely because a bad result may have followed her care, and treatment and/or diagnosis.

The standard you must apply in determining if Dr. Kay Balink is negligent is whether Dr. Kay Balink failed to use the degree of care, skill, and judgment which reasonable family practice doctors practicing obstetrics would exercise given the state of medical knowledge at the time of the treatment and diagnosis in issue. (Emphasis added.) ¶32 The parties do not dispute that Braylon was required

to introduce expert testimony to describe the care that

satisfies the standard of reasonable care in the instant case

and to detail the defendant doctor's failure to furnish care

that met this standard.

¶33 Braylon offered Dr. Wener's testimony to establish the

standard of reasonable care for a family practice doctor

practicing obstetrics. The parties do not dispute that Dr.

Wener is a qualified expert; that Dr. Wener has "scientific,

technical, or other specialized knowledge" that could assist the

trier of fact; and that if admissible, his testimony would be

relevant and helpful to the trier of fact. Wis. Stat.

§ 907.02(1).

¶34 The parties also do not dispute:

• Braylon suffered a shoulder dystocia.

• Immediately after the delivery, Braylon's left upper

arm was not functioning, and within a few days after

birth he was diagnosed with a permanent brachial

plexus injury.

11 No. 2014AP195

• Braylon's brachial plexus injury limits the growth and

function of the arm, required surgery, and will

require continued therapy to ameliorate the injury.

• An obese mother, gestational diabetes, and a

macrosomic baby increase the risk of shoulder

dystocia.

¶35 The circuit court stated that the parties do not

seriously question that the application of excessive traction

beyond what the fetus can withstand may be a cause of severe

brachial plexus injuries during childbirth, although the circuit

court acknowledged that there were contentions that other causes

may have been present in the instant case. Relatedly, the

parties do not dispute that the use of a vacuum during delivery

may increase the risk of a brachial plexus injury.

¶36 Collectively, these shoulder dystocia risk factors——

obese mother, gestational diabetes, macrosomic baby, excessive

traction, and vacuum-assisted delivery——are undisputed; these

are the principles that guide Dr. Wener's testimony. ¶37 The defendants' challenge to Dr. Wener's testimony is

that his testimony is not the product of reliable methods, that

is, the defendants contend that Dr. Wener's methodology is

unreliable. Specifically, the defendants argue that Dr. Wener's

testimony is not the product of reliable methods under Wis.

Stat. § 907.02(1) because the testimony was based on Dr. Wener's

personal experiences. In evaluating the defendants' challenge,

we begin by reviewing the substance of Dr. Wener's testimony. C 12 No. 2014AP195

¶38 Dr. Wener testified at length about the standard of

reasonable care in the instant case and opined that the

defendant doctor breached that standard of reasonable care. Dr.

Wener's lengthy expert medical testimony was based on his

personal experiences, and he was subjected to extensive cross-

examination.

¶39 Dr. Wener described his extensive qualifications. He

stated that he is a board certified obstetrician-gynecologist

(OB-GYN) who practices in a suburb outside of Chicago. An OB-

GYN provides medical care to women. The obstetric portion of

the practice relates to pregnancy; the gynecological portion of

the practice relates to female patients who are not pregnant.

¶40 As to his obstetrics practice, Dr. Wener estimated

that he has delivered between 7,500 and 8,000 babies and has

encountered between 37 and 40 instances of shoulder dystocia in

his 36-year career.

¶41 In addition to private practice, Dr. Wener has taught

medical students and residents and was chairman of the obstetrics-gynecology department at a hospital for about 20

years. As chairman, he was responsible for the quality of care

provided by physicians practicing in his department, and he sat

on the medical executive committee of the hospital. He further

testified that he examines medical records for both plaintiff

and defense attorneys. Dr. Wener is a member of the American

College of Obstetricians and Gynecologists.

¶42 Dr. Wener did not preface each of his statements with the words "a reasonable family doctor practicing obstetrics." 13 No. 2014AP195

The clear inference from Dr. Wener's testimony, taken as a

whole, is that he was setting forth and applying a standard of

reasonable care for prenatal care and delivery applicable to a

family practitioner practicing obstetrics. Furthermore, the

jury instructions declared that the burden was on Braylon to

prove that the defendant doctor was negligent and that the

defendant doctor had to conform to the standard of care "which

reasonable family practice doctors practicing obstetrics would

exercise in the same or similar circumstances." See ¶31, supra.

¶43 Dr. Wener's experience and testimony demonstrate that

he is familiar with the standard of reasonable care for family

practice doctors practicing obstetrics.

¶44 Dr. Wener concluded that the defendant doctor in the

instant case breached the standard of reasonable care in several

respects. He testified that several risk factors should have

alerted the defendant doctor to the risk of shoulder dystocia,

such as the pre-pregnancy weight of the mother and the weight

she gained during pregnancy, the risk of gestational diabetes, and the risk of a large baby.

¶45 In Dr. Wener's opinion, these three interrelated risk

factors were important because, added together, they increased

the risk of shoulder dystocia. Dr. Wener explained, "A doctor

has to take care of every patient individually. And in doing so

there are risk factors that every patient has. And you have to

look at the patient as a whole and look at all of the risk

factors as they are applicable to the patient." Dr. Wener opined to a reasonable degree of medical certainty that, based 14 No. 2014AP195

on his education, training, experience, and the facts of the

instant case, it was more likely than not that the mother was a

gestational diabetic because of her weight and a one-hour

glucose test result of 131 mg/dL.

¶46 Dr. Wener asserted that the defendant doctor fell

below the standard of reasonable care for a family practice

doctor practicing obstetrics by failing to order a three-hour

glucose test for Braylon's mother. Dr. Wener concluded that the

standard of reasonable care required a three-hour test when the

result from the one-hour test was over 130 mg/dL and the mother

was obese. The three-hour glucose test would have been more

likely to diagnose gestational diabetes, a condition associated

with increased risk of shoulder dystocia.

¶47 Dr. Wener also gave his opinion to a reasonable degree

of medical certainty that, in view of the mother's size and the

one-hour test result, the defendant doctor breached the standard

of reasonable care for a family practice doctor practicing

obstetrics by failing to perform an ultrasound on Braylon's mother immediately prior to delivery. An ultrasound, in Dr.

Wener's opinion, would have given the defendant doctor a better

estimate of Braylon's fetal weight and whether Braylon was

macrosomic (that is, a large baby), a condition that Dr. Wener

associated with a greater risk of shoulder dystocia.

¶48 In addition, Dr. Wener testified that the defendant

doctor's use of vacuum assistance during the birthing process

breached the standard of reasonable care by increasing the risk of shoulder dystocia. Explaining that it is risky to use the 15 No. 2014AP195

vacuum on a patient exhibiting the risk factors that Braylon's

mother exhibited, Dr. Wener opined——to a reasonable degree of

medical certainty——that a vacuum should not have been applied at

all in the instant case.

¶49 Dr. Wener also testified to a reasonable degree of

medical certainty that the defendant doctor breached the

practicing obstetrics by applying excessive traction beyond what

the fetus could withstand in attempting to resolve the shoulder

dystocia and that this excessive traction (not the mother's

pushing) had a causative effect on Braylon's brachial plexus

injury.

D

¶50 With the substance of Dr. Wener's testimony in mind,

we turn to the reliability standard governing the admission of

expert evidence set forth in the 2011 amendment to Wis. Stat.

§ 907.02(1). The following emphasized language in Wis. Stat.

§ 907.02(1) adopting the reliability standard was added in 2011.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. ¶51 The 2011 amendment to Wis. Stat. § 907.02(1) changed the law to mirror Federal Rule of Evidence 702, which codifies

16 No. 2014AP195

Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579

(1993), and its progeny.7

¶52 Before 2011, when the legislature adopted the Daubert

reliability standard in amended Wis. Stat. § 907.02(1),

Wisconsin case law applied the "relevancy test" to the admission

of expert evidence: Expert evidence was admissible if the

witness was qualified, the evidence assisted the trier of fact,

and the evidence was relevant.8

¶53 Wisconsin case law had rejected both Frye's "general

acceptance test"9 and the federal Daubert reliability standard.10

7 See 2011 WI Act 2, WI S. Amend. Memo, 2011 Jan. Spec. Sess. S.B. 1 ("This language [in Wis. Stat. § 907.02(1)] is identical to the language of Rule 702 of the Federal Rules of Evidence."); State v. Giese, 2014 WI App 92, ¶17, 356 Wis. 2d 796; 854 N.W.2d 687 ("In January 2011, the legislature amended § 907.02 to make Wisconsin law on the admissibility of expert testimony consistent with 'the Daubert reliability standard embodied in Federal Rule of Evidence 702.'") (quoting State v. Kandutsch, 2011 WI 78, ¶26 n.7, 336 Wis. 2d 478, 799 N.W.2d 865). 8 For discussion of pre-Daubert Wisconsin case law, see Daniel D. Blinka, Expert Testimony and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev. 173 (2006). 9 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), stated the rule as follows:

The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it . . . .

. . . .

[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific (continued) 17 No. 2014AP195

¶54 Professor Daniel Blinka concludes that Daubert

"created a reliability standard that is less a bright-line test,

as it is often assumed to be, and more an evidentiary

porridge."11

¶55 The instant case is this court's first occasion to

apply amended Wis. Stat. § 907.02(1). We do not write on a

blank slate. Wisconsin Stat. § 907.02(1) mirrors Federal Rule

of Evidence 702 as amended in 2000,12 and we may look for

principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. 10 A law student commentator concluded that the Wisconsin Supreme Court nudged the relevancy standard closer to Daubert to the point that the relevancy standard became "Daubert lite," citing State v. Hibl, 2006 WI 52, ¶52, 290 Wis. 2d 595, 714 N.W.2d 194 (explaining that circuit courts have a limited gatekeeping function because the relevancy test requires a showing that the expert's opinion was "reliable enough to be probative"). Kristen Irgens, Wisconsin Is Open for Business or Business Just as Usual? The Practical Effects and Implications of 2011 Wisconsin Act 2, 2012 Wis. L. Rev. 1245, 1256-57. 11 Blinka, supra note 5, at 19 ("[The Daubert reliability standard] is purportedly more liberal than the once-dominant general acceptance test ('too cold') yet more demanding than the relevancy standard ('too hot').").

The post-Daubert case law indicates that rejecting expert testimony is "the exception rather than the rule." See Federal Rule Evidence 702 Advisory Committee Note (2000). 12 In 2000, the following underlined language was added to Federal Rule of Evidence 702 to reflect Daubert:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, (continued) 18 No. 2014AP195

guidance and assistance in interpreting and applying § 907.02(1)

to the Daubert case and its progeny, to the Advisory Committee

experience, training, or education, may testify thereto in the form of an opinion or otherwise., if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Federal Rule of Evidence 702 was also amended in 2011 "as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules," but no substantive changes were intended. Federal Rule of Evidence 702 Committee Notes (2011).

Federal Rule of Evidence 702 now provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

19 No. 2014AP195

Notes to Federal Rule of Evidence 702,13 and to federal and state

cases interpreting the text of Rule 702 or an analogous state

law. The federal or state interpretations, however, are not

necessarily dispositive.14

¶56 As we have previously noted, the federal reliability

standard for the admissibility of expert evidence is explained

in Daubert. After Daubert, the United States Supreme Court

decided General Electric Co. v. Joiner, 522 U.S. 136 (1997), and

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). This

trilogy of cases delineated the contours of the reliability

standard.

¶57 In Daubert——a products liability case——the Court

rejected Frye's general acceptance test and concluded that

Federal Rule of Evidence 702 contemplates that trial courts have

a gatekeeping obligation. This gatekeeping obligation

13 Under the Rules Enabling Act, 28 U.S.C. § 2072, the United States Supreme Court is authorized to promulgate rules of practice and procedure for the federal courts. This authority is exercised by the Judicial Conference of the United States. The Conference promulgates and changes rules of practice and procedure in the federal courts subject to oversight by the Court. For the Federal Rules of Evidence, the Judicial Conference is aided in its rule-making powers by the Evidence Advisory Committee; the members of and reporter to this Committee are appointed by the Chief Justice of the United States Supreme Court. Paul R. Rice and Neals-Erik William Delker, Federal Rules of Evidence Advisory Committee: A Short History of Too Little Consequence, 191 F.R.D. 678, 679 (2000). 14 State v. Poly-America, Inc., 164 Wis. 2d 238, 246, 474 N.W.2d 770 (1991) ("When a state statute is modeled after a federal rule, we look to the federal interpretation of that rule for guidance and assistance.").

20 No. 2014AP195

"assign[s] to the trial court the task of ensuring that a

scientific expert is qualified" and that his or her "testimony

both rests on a reliable foundation and is relevant to the task

at hand." Daubert, 509 U.S. at 597.

¶58 In the instant case, the parties challenge the

reliability of Dr. Wener's expert medical testimony.15 We

therefore focus our discussion on the reliability prong of Wis.

Stat. § 907.02(1), specifically the reliability of the methods

used by Dr. Wener.16 The trial court must be satisfied that the

testimony is reliable by a preponderance of the evidence.

Daubert, 509 U.S. at 593; Wis. Stat. § 901.04.

15 The parties do not dispute that Dr. Wener was qualified as an expert and that his opinion was relevant in the instant case. 16 Wisconsin Stat. § 907.02(1) states that testimony must be based on "reliable principles and methods." Only Dr. Wener's "method" is challenged in the instant case. For an illustration of the difference between principles and methods, the Federal Rule of Evidence 702 Advisory Committee Note (2000) gives the following illustration:

For example, when a law enforcement agent testifies regarding the use of code words in a drug transaction, the principle used by the agent is that participants in such transactions regularly use code words to conceal the nature of their activities. The method used by the agent is the application of extensive experience to analyze the meaning of the conversations. So long as the principles and methods are reliable and applied reliably to the facts of the case, this type of testimony should be admitted.

Several cases tend to collapse principles and methods into a singular "reliability" analysis.

21 No. 2014AP195

¶59 Daubert makes the trial court a gatekeeper, not a fact

finder. When credible, qualified experts disagree, a litigant

is entitled to have the jury, not the trial court, decide which

expert to believe. Dorn v. Burlington N. Santa Fe R.R. Co., 397

F.3d 1183, 1196 (9th Cir. 2005).17

¶60 Although the Daubert Court focused its discussion on

scientific testimony, the Supreme Court later clarified that

Daubert's inquiry applies not just to scientific evidence, but

to all expert opinions, "whether the testimony reflects

scientific, technical, or other specialized knowledge." Kumho

Tire, 526 U.S. at 149.

¶61 The reliability standard "entails a preliminary

assessment of whether the reasoning or methodology is

scientifically valid." Daubert, 509 U.S. at 592-93.

Reliability depends "solely on principles and methodology, not

17 "Experts often disagree. A trial court's determination that the proffered testimony of one expert witness is reliable and helpful does not necessarily mean that the contradictory testimony of another witness, concerning the same subject matter by using a different methodology, is not also reliable and helpful." 4 Jack B. Weinstein, Weinstein's Federal Evidence § 702.05[3] (2d ed. 2011), citing Federal Rule of Evidence 702 Committee Note (2000).

"Since its inception, the courts have sought to apply Rule 702 in a manner that preserves the jury's traditional power to weigh evidence and determine witness credibility." 29 Charles Alan Wright & Victor Gold, Federal Practice and Procedure: Evidence, § 6268.2 (2d ed. 2016), citing DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000).

22 No. 2014AP195

on the conclusions that they generate." Daubert, 509 U.S. at

595.

¶62 To guide the reliability analysis, the Daubert court

provided a nonexhaustive18 list of factors that make scientific

evidence sufficiently reliable for admission: "(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." Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d

Cir. 1999), citing Daubert, 509 U.S. at 592-93.

¶63 The Federal Rules Advisory Committee added five

factors to those stated in Daubert to guide decisions about

reliability:

(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. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).

(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. 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").

18 "Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test." Daubert, 509 U.S. at 593.

23 No. 2014AP195

(3) Whether the expert has adequately accounted for obvious alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff's condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996) (the possibility of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert).

(4) Whether the expert "is being as careful as he would be in his regular professional work outside his paid litigation consulting." Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176 (1999) (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").

(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. See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (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."); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff's respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on "clinical ecology" as unfounded and unreliable)."19 ¶64 Considering the broad range of cases in which expert

evidence arises, courts have not been constrained by the listed

19 See commentary following the 2000 amendment to Federal Rule of Evidence 702. See also Blinka, supra note 5, at 19.

24 No. 2014AP195

factors. How courts apply these factors necessarily varies case

by case, expert by expert. "Too much depends upon the

particular circumstances of the particular case at issue" to

impose hard and fast rules. Kumho Tire, 526 U.S. at 150. A

trial court conducts its reliability analysis with wide

latitude.20 Kumho Tire emphasized that the application of the

Daubert factors is a flexible inquiry: "[T]he law grants a

district court the same broad latitude when it decides how to

determine reliability as it enjoys in respect to its ultimate

reliability determination." Kumho Tire, 526 U.S. at 142.

¶65 Thus, the trial court may consider some, all, or none

of the factors listed to determine whether the expert evidence

is reliable. Federal Rule of Evidence 702 Advisory Committee's

Note (2000).

¶66 Because the instant case involves expert medical

testimony based on a witness's personal experiences, we discuss

the reliability of expert medical opinion based on the expert's

personal experiences.

20 "[W]e conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (emphasis added). "[W]hether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Kumho Tire, 526 U.S. at 153.

25 No. 2014AP195

¶67 Daubert affirms that experience-based expert evidence

may pass muster as a method under the reliability requirement.

Though the Daubert Court stated that "[p]roposed testimony must

be supported by appropriate validation——i.e., 'good grounds,'

based on what is known," the Court also stated that the very

structure of the rules of evidence suggest that experience can

be "good grounds." Daubert, 509 U.S. at 590.

¶68 Daubert's reference to the structure of the rules of

evidence was a reference to the evidentiary rule that all

witnesses except experts generally must have firsthand knowledge

of the events to which they testify.21 The Daubert court

inferred that this "relaxation of the usual requirement of

firsthand knowledge . . . is premised on an assumption that the

expert's opinion will have a reliable basis in the knowledge and

experience of this discipline." Daubert, 509 U.S. at 592.

¶69 Likewise, the Kumho Tire Court explicitly recognized

that in some cases, "the relevant reliability concerns will

focus upon personal knowledge or experience." Kumho Tire, 526 U.S. at 150.

¶70 In Kumho Tire, the United States Supreme Court

specifically addressed the application of the Daubert

reliability analysis to experience-based, non-scientific expert

testimony. The Court required a witness relying on experience

21 Compare Federal Rule of Evidence 701 (firsthand knowledge requirement for witnesses) with Federal Rule of Evidence 703 (no firsthand knowledge requirement for experts).

26 No. 2014AP195

to offer some articulated rationale supporting his or her

opinion. This Kumho Tire requirement is not "impossibly

demanding."22

¶71 The Kumho Tire Court recognized that "there are many

different kinds of experts, and many different kinds of

expertise," Kumho Tire, 526 U.S. at 150, so the factors set

forth in Daubert and Kumho Tire "may or may not be pertinent in

assessing reliability, depending on the nature of the issue, the

expert's particular expertise, and the subject of his

testimony." Kumho Tire, 526 U.S. at 150.

¶72 The Kumho Tire Court emphasized that in the case of a

non-scientific expert, "the relevant reliability concerns may

focus upon personal knowledge or experience." Kumho Tire, 536

U.S. at 150. The point, according to Kumho Tire, is to ensure

that an expert, "whether basing testimony upon professional

studies or personal experience, employs in the courtroom the

same level of intellectual rigor that characterizes the practice

of an expert in the relevant field." Kumho Tire, 526 U.S. at 152.23

22 Blinka, supra note 5, at 61 23 See also Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996) (The purpose of the rule announced in Daubert "was to make sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded in their professional work.").

(continued) 27 No. 2014AP195

¶73 The Federal Advisory Committee Note to the 2000

Amendment to Rule 702 also recognizes that expert evidence based

on personal experiences can meet the reliability test and offers

the following general guidance for evaluating experience-based

testimony:

If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.24 ¶74 The trial court's gatekeeping function in regard to

experience-based testimony, however, "requires more than simply

'taking the expert's word for it.'"25

¶75 An expert cannot establish that a fact is generally

accepted merely by saying so.26 Trial courts do not have "to

admit opinion evidence that is connected to existing data only

by the ipse dixit of the expert." Such an application is

"Kumho at least made it clear that, in addition to gauging reliability in light of factors specific to the area of expertise involved, a trial court also may consider whether the expert's testimony holds together based on logic and common sense." 29 Wright & Gold, supra note 17, § 6267. 24 Federal Rule of Evidence 702 Advisory Committee Note (2000). 25 Federal Rule of Evidence 702 Advisory Committee Note (2000). 26 "A supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method and are reliable and relevant under the test set forth by the Supreme Court in Daubert." Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999).

28 No. 2014AP195

unreliable because "there is simply too great an analytical gap

between the data and the opinion offered." Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 146 (1997).

¶76 Thus, for example, a federal district court excluded

proffered expert testimony because the witness's experience was

not extensive enough to indicate reliability for testimony based

on personal experience. The expert's "sample size" (himself

alone) was too small:

Essentially, his proposed testimony boils down to the conclusion that because he has been able to perform police work successfully despite his monocular vision, then the Plaintiff will likewise be successful. This is a leap of faith that the Court is unwilling to make, as there is nothing inherent about [the witness's] own personal experience as a monocular visioned person which logically or scientifically leads to a supportable conclusion that other persons with monocular vision necessarily, or even probably, would have the same abilities that he has. Trevino v. City of Rock Island Police Dep't, 91

F. Supp. 2d 1204, 1207 (C.D. Ill. 2000).27

¶77 Case law demonstrates, nonetheless, that courts frequently admit experience-based testimony, especially when

27 Even when expert testimony relies on adequate principles, trial courts may still exclude the testimony when the methodology used to reach a conclusion based on those principles is unsupported. McGovern ex rel. McGovern v. Brigham & Women's Hosp., 584 F. Supp. 2d 418, 425-26 (D. Mass. 2008) (excluding expert's "opinion [that was] was connected to existing data about the risk of stroke after vacuum extraction only by his own ipse dixit."). The reliability standard requires an explanation of how the methodology used by the expert is derived from the witness's experience and led to the conclusion reached. McGovern, 384 F. Supp. 2d at 426.

29 No. 2014AP195

expert medical evidence is offered. Expert medical opinion

based on experience alone, "or experience in conjunction with

other knowledge, skill, training or education" may constitute a

reliable basis.28 "In certain fields, experience is the

predominant, if not sole, basis for a great deal of reliable

expert testimony."29

¶78 Medicine is an example of such a field because

medicine "is based on specialized as distinguished from

scientific knowledge."30 When evaluating specialized or

technical expert opinion testimony, "the relevant reliability

concerns may focus upon personal knowledge or experience."

Kumho Tire, 526 U.S. at 150.

¶79 The classic medical school texts explain that medicine

is scientific but not entirely a science.31 "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."32 Much of medical decision-making relies on judgment

28 Blinka, supra note 5, at 60 (quoting Federal Rule of Evidence 702 Advisory Committee Note (2000)). 29 Federal Rule of Evidence 702 Advisory Committee Note (2000). 30 Sullivan v. U.S. Dep't of the Navy, 365 F.3d 827, 834 (9th Cir. 2004). 31 Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010). 32 Primiano v. Cook, 598 F.3d at 565 (quoting the "classic medical school text" Cecil Textbook of Medicine 1 (James B. Wyngaarden & Lloyd H. Smith Jr. eds., 17th ed. 1985)).

30 No. 2014AP195

and is difficult to quantify or even to assess qualitatively.

In medicine, "knowledge is often uncertain," "[t]he human body

is complex," and "etiology is often uncertain."33 Furthermore,

practical and ethical concerns prevent "studies calculated to

establish statistical proof."34 Physicians must use their

knowledge and experience as a basis for weighing known factors

along with "inevitable uncertainties" to "mak[e] a sound

judgment."35

¶80 That Daubert lends its analysis more favorably to more

objective sciences does not bar the testimony of physicians

applying their experience and clinical methods.36 That the

knowledge is uncertain "does not preclude the introduction of

33 United States v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir. 2006). 34 Sandoval-Mendoza, 472 F.3d at 655. 35 Primiano, 598 F.3d at 565 (quoting the "classic medical school text" Harrison's Principles of Internal Medicine 3 (Dennis L. Kasper et al. eds., 16th ed. 2005)). 36 See, e.g., 29 Wright & Gold, supra note 17, § 6269.8 (medical expert "opinion[s] also may be based on extensive personal observations, professional experience, education, and training even where the medical expert has not conducted an epidemiological study and even where the expert's opinion is not generally accepted and is unsupported by peer review"); Sandoval-Mendoza, 472 F.3d at 656 (a well qualified physician with sufficient expertise could reliably testify about defendant's brain tumor to establish an entrapment defense); Primiano, 598 F.3d at 568 (abuse of discretion to exclude doctor's testimony in products liability case based on his experiences alone, but noting that medical literature had not addressed a similar situation).

31 No. 2014AP195

medical expert opinion testimony when medical knowledge permits

the assertion of a reasonable opinion."37

¶81 "A trial court should admit medical expert testimony

if physicians would accept it as useful and reliable."38 In

other words, expert medical opinion testimony is reliable if the

knowledge underlying it "has a reliable basis in the knowledge

and experience of the [relevant] discipline."39

¶82 In Schneider ex rel. Estate of Schneider v. Fried, 320

F.3d 396, 406 (3d Cir. 2003), the federal Third Circuit Court of

Appeals explained that a physician's "experience render[ed] his

testimony reliable [and] demonstrate[d] that his testimony [was]

based on 'good grounds.'" In light of his considerable

professional experience, the physician's testimony on the

standard of care was reliable, even if the content of the

literature cited was irrelevant. The federal court of appeals

37 Sandoval-Mendoza, 472 F.3d at 655 (internal quotation marks & quoted source omitted). 38 Sandoval-Mendoza, 472 F.3d at 655. 39 Sandoval-Mendoza, 472 F.3d at 655 (quoting Kumho Tire, 526 U.S. at 149 (quoting Daubert, 509 U.S. 579, 592)); Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998) (district court had discretion to admit opinions of clinical medical experts about cause of plaintiff's disease because they were based on methods reasonably relied on by clinical physicians, even though the drug had not been previously linked to that disease).

"In a non-scientific context, the reliability of an expert's methodology often will be a function of accepted practice in the area of expertise in question." 29 Wright & Gold, supra note 17, § 6268.1.

32 No. 2014AP195

concluded that the magistrate judge abused his discretion by

excluding the expert testimony.40

¶83 The Schneider court stated that expert testimony does

not have to be subject to peer review to be admitted under Rule

702; the physician's experience renders his or her testimony

reliable and demonstrates that the testimony is based on good

grounds.41 The court recognized, however, that the degree to

which the medical expert is qualified implicates the reliability

of the testimony. Schneider, 320 F.3d at 406.

¶84 Similarly, the federal Sixth Circuit Court of Appeals

held that a district court abused its discretion by excluding a

physician's testimony based on extensive, relevant experience

when the physician had not cited medical literature supporting

40 Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396 (3rd Cir. 2003), involved a claim that a decedent received cardiac care that fell below the standard of care. The court provided the following discussion in regard to this expert:

The record establishes that as an invasive cardiologist, who normally diagnoses heart conditions, Dr. Semigran was routinely present during surgical procedures and regularly advised interventional cardiologists during the course of those procedures. Dr. Semigran also testified that he would consult with interventional cardiologists about which drugs should or should not be given to patients undergoing angioplasties.

Schneider, 320 F.3d at 406. 41 Daubert, 509 U.S. at 590 ("Proposed testimony must be supported by appropriate validation——i.e., good grounds . . . .").

33 No. 2014AP195

his view. Dickenson v. Cardiac & Thoracic Surgery of E. Tenn.,

388 F.3d, 976, 980 (6th Cir. 2004). Requiring an expert to

demonstrate a familiarity with accepted medical literature or

published standards in order for the testimony to be reliable in

the sense contemplated by Federal Rule of Evidence 702 is an

erroneous statement of the law. Dickenson, 388 F.3d at 980-81

(citing Federal Rule of Evidence 702, Advisory Committee Note

expressly contemplating that an expert may testify on the basis

of experience).42

42 Kumho Tire, 526 U.S. 137, 156 ("[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience."); Feliciano-Hill v. Principi, 439 F.3d 18, 24-25 (1st Cir. 2006) (physician's expert testimony met Daubert/Rule 702 standards even though he failed to support his diagnosis with citations to published authorities; physician offered a "routine diagnosis" on patient he had examined, related to common condition well within his expertise); Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) ("There is no requirement that a medical expert must always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness." (internal quotation marks & quoted source omitted)).

(continued) 34 No. 2014AP195

¶85 The case law teaches that Daubert's role of ensuring

that the courtroom door remains closed to junk science is not

served by excluding medical expert testimony that is supported

by extensive relevant medical experience.43 Such exclusion is

rarely justified in cases involving medical experts. Dickenson,

388 F.3d at 981. See also Daniel W. Shuman, Expertise in Law,

Medicine, and Health Care, 27 J. Health Pol., Pol'y & L. 267

The defendants cite several cases for the proposition that to offer reliable testimony, Dr. Wener should have based his testimony on medical literature. The cases are distinguishable from the instant case. For example, although the court noted in Berk v. St. Vincent's Hospital & Medical Center, 380 F. Supp. 2d 334 (S.D.N.Y. 2005), that the excluded expert cited "no germane medical literature," the expert's report was excluded for other reasons: the expert's report was unsworn, was based on incorrect factual assumptions, and offered no methodology other than the expert's say-so. Berk, 380 F. Supp. 2d at 354-56. In contrast, Dr. Wener's testimony was given under oath; Dr. Wener relied on Braylon's and his mother's medical reports; Dr. Wener offered a clinical methodology that applied accepted risk factors to the facts of the instant case; and the defendants' experts offered testimony that actually supported Dr. Wener's testimony. 43 The phrase "junk science" is ordinarily used as an epithet to refer to research or information that is not credible. See Kumho Tire, 526 U.S. at 159 (Scalia, J., concurring) (Kumho makes clear that the discretion it endorses is "discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.").

35 No. 2014AP195

(2001) (characterizing the effect of Daubert and Kumho cases on

claims of medical expertise as "much ado about little").44

¶86 Instead of exclusion, the appropriate means of

attacking "shaky but admissible" experience-based medical expert

testimony is by "[v]igorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of

proof . . . ." Daubert, 509 U.S. at 597.

44 The Wisconsin Medical Society and American Medical Association filed an amicus brief urging that this court "recognize that medical opinions supported by unsystematic clinical observations have reliability limited to those situations where physicians would not be expected to produce extrinsic support for their contentions but presumptively fail to cross the Daubert reliability threshold when tendered to establish the standard of care in a medical negligence claim." See Brief of Amicus Curiae Wisconsin Medical Society & American Medical Association at 9-10.

This argument is not supported in the case law. Expecting on-point medical literature to define a physician's standard of care in the penumbra of clinical situations is unreasonable. See Michelle M. Mello, Using Statistical Evidence to Prove the Malpractice Standard of Care: Bridging Legal, Clinical, and Statistical Thinking, 37 Wake Forest L. Rev. 821, 857 (2002). The author states:

For clinical scenarios involving a high degree of independent judgment and careful attention to the individual characteristics of each patient, expert opinion testimony tailored to the particular situation at issue in the malpractice case truly does have an advantage over reliance on practice guidelines or other standards formulated ex ante[,] . . . derived from a population of patients that may not resemble the plaintiff . . . .

Id. at 846.

36 No. 2014AP195

Once evaluated and deemed sufficiently reliable for admission, that expert opinion [based on personal experience] is submitted to the "capabilities of the jury and of the adversary system generally." Lapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012) (citing

Daubert, 509 U.S. at 596).45

E ¶87 Our next task is to determine the standard for

reviewing the circuit court's gatekeeping determination under

Wis. Stat. § 907.02(1). We refer to federal law to guide our analysis of the standard for review.

¶88 We examine the circuit court's rulings both

independently as a question of law and also under the erroneous

exercise of discretion standard.

¶89 The interpretation and application of a statute

presents a question of law that this court decides

independently of the circuit court and court of appeals but

benefiting from their analyses. State v. Steffes, 2013 WI 53,

¶15, 347 Wis. 2d 683, 832 N.W.2d 101. It follows that this

court decides whether the circuit court applied the proper legal

standard under Wis. Stat. § 907.02(1) in the first instance

independently of the circuit court and the court of appeals but

benefiting from their analyses. Lees v. Carthage College, 714

F.3d 516, 520 (7th Cir. 2013) ("[w]hether the district court

45 "Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to burden of proof, not exclusion." Primiano, 598 F.3d at 564 (citing Daubert, 509 U.S. at 596).

37 No. 2014AP195

applied the appropriate legal framework for evaluating expert

testimony is reviewed de novo"); Lewis v. CITGO Petroleum Corp.,

561 F.3d 698, 705 (2009) ("we review de novo whether the court

employed the correct legal standard in reaching its

admissibility decision").

¶90 Once satisfied that the circuit court applied the

appropriate legal framework, an appellate court reviews whether

the circuit court properly exercised its discretion in

determining which factors should be considered in assessing

reliability,46 and in applying the reliability standard to

determine whether to admit or exclude evidence under Wis. Stat.

§ 907.02(1). Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141

(1997).47

¶91 Once the circuit court selects the factors to be

considered in assessing reliability, the circuit court measures

the expert evidence against these factors. The circuit court

also determines whether the witness faithfully and properly

applied the reliability principles and methodology to the facts of the case.48

46 Blinka, supra note 5, at 19 (citing Kumho Tire, 526 U.S. at 152). 47 "[T]he law grants the district court great discretion regarding the manner in which it conducts that evaluation" of the admissibility of expert testimony. "[W]e have not required that the Daubert inquiry take any specific form . . . ." Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (2009). 48 Blinka, supra note 5, at 19, 60 (citing Federal Rule Evidence 702 Advisory Committee Note (2000)).

38 No. 2014AP195

¶92 In other words, a circuit court has discretion in

determining the reliability of the expert's principles, methods,

and the application of the principles and methods to the facts

of the case.49

¶93 A trial court's decision on admissibility or exclusion

of expert evidence is an erroneous exercise of discretion when a

decision rests upon a clearly erroneous finding of fact, an

erroneous conclusion of law, or an improper application of law

to fact.50

49 In Kumho Tire, the Supreme Court held that trial courts have great latitude in determining the methods by which they test the reliability of expert testimony. Indeed the federal abuse of discretion standard "applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion." United States v. Charley, 189 F.3d 1251, 1261 n.11 (10th Cir. 1999) (quoting Kumho Tire, 526 U.S. at 152). "[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Kumho Tire, 526 U.S. at 142. See also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) ("abuse of discretion is the proper standard by which to review a district court's order to admit or exclude scientific evidence.").

"Our case law has recognized that experts in various fields may rely properly on a wide variety of sources and may employ a similarly wide choice of methodologies in developing an expert opinion." Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1020 (7th Cir. 2000). 50 The federal cases state: "An abuse of discretion may occur as a result of an errant conclusion of law, an improper application of law to fact, or a clearly erroneous finding of fact." McDowell v. Philadelphia Housing Auth., 423 F.3d 233, 238 (3d Cir. 2005).

(continued) 39 No. 2014AP195

F

¶94 Against this backdrop of the teachings about the

reliability of expert medical testimony based on personal

experiences and the standards for appellate review of a circuit

court's determination of reliability, we decide whether the

circuit court erred in admitting Dr. Wener's testimony. We

conclude, as did the court of appeals, that the circuit court

did not erroneously exercise its discretion in admitting Dr.

Wener's testimony as reliable under Wis. Stat. § 907.02(1).

¶95 In the first instance, we note, as a matter of law,

that the circuit court applied the proper reliability standard

under Wis. Stat. § 907.02(1).

In Wisconsin, the cases use the phrase "erroneous exercise of discretion" in place of the phrase "abuse of discretion." The two phrases are equivalent. We did not change the standard of review, just the locution. We concluded that the term "abuse of discretion" carries unjustified negative connotations. City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 423, 491 N.W.2d 484, 493 (1992). See King v. King, 224 Wis. 2d 235, 248, 590 N.W.2d 480 (1999) ("A circuit court erroneously exercises its discretion if it makes an error of law or neglects to base its decision upon facts in the record."); Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981):

A discretionary determination . . . must demonstrably be made and based upon the facts appearing in the record[,] in reliance on the appropriate and applicable law[,] . . . and most importantly, a discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination.

40 No. 2014AP195

¶96 Because the circuit court applied the correct Daubert

reliability standard, our review of the circuit court's decision

to admit Dr. Wener's testimony is limited to reviewing whether

the circuit court erroneously exercised its discretion. See

Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376, 380 (1st

Cir. 2000).

¶97 The circuit court made a good, clear record. Based on

the circuit court's extensive oral rulings on the admissibility

of Dr. Wener's testimony as reliable, it is apparent that the

circuit court examined federal and state case law applying the

Daubert standard to medical expert testimony and fairly

considered the defendants' challenges to the admissibility of

Dr. Wener's testimony.

¶98 Because the circuit court was careful in exploring the

applicable law and in setting out its reasoning, we can more

easily review the circuit court's rulings to determine whether

the circuit court erroneously exercised its discretion. We

commend the circuit court's efforts and conclude that the circuit court's rulings establishing that Dr. Wener's personal

clinical experiences satisfy the reliability requirement, are

well reasoned, and are not an erroneous exercise of discretion.

¶99 The defendants make the following three principal

arguments supporting their position that Dr. Wener's testimony

was unreliable under Wis. Stat. § 907.02(1) and was not applied

reliably:

(1) Dr. Wener's testimony was unreliable under Wis. Stat. § 907.02(1) because Dr. Wener did not apply a sound 41 No. 2014AP195

methodology: Dr. Wener's testimony rested on his

qualifications and "personal preferences."

(2) Dr. Wener's testimony was unreliable under Wis. Stat.

§ 907.02(1) because Dr. Wener did not rely on medical

literature or other recognized sources of reliability.

(3) Dr. Wener's application of his opinions to the facts

of the case was flawed because Dr. Wener's testimony

was internally inconsistent.

¶100 We address each of the defendants' arguments in turn.

(1)

¶101 To use defendants' counsel's words, the defendants'

challenge to Dr. Wener's testimony is based on "method, method,

method."

¶102 The circuit court ruled that Dr. Wener's testimony

satisfied the Wis. Stat. § 907.02(1) reliability standard

because his methodology was reliable: Dr. Wener's methodology

is a "classic medical methodology," looking at recognized

medical indicators. ¶103 The circuit court explained that Dr. Wener's

testimony, taken as a whole, demonstrated that Dr. Wener

formulated an opinion about the standard of reasonable care of

family practice doctors practicing obstetrics on the basis of

his experiences, as opposed to simply his own personal

preference. Thus, Dr. Wener had a reliable basis for rendering

an opinion.

¶104 In contrast, the defendants contend that Dr. Wener was really just opining based on his "personal preferences." The 42 No. 2014AP195

defendants assert that an expert cannot establish that a fact is

generally accepted merely by saying so. They argue that Dr.

Wener's testimony had to be based on the methods and procedures

of science rather than on his subjective belief or unsupported

speculation. According to the defendants, Dr. Wener's opinion

about the standard of reasonable care was connected to existing

data only by his own ipse dixit.

¶105 The circuit court regarded Dr. Wener's methods as the

ordinary methodology of medicine: conscientious use of the

thousands of instances in which he had delivered babies and made

decisions about the care of individual patients and his teaching

and hospital experiences relating to obstetrics. Echoing case

law, the circuit court declared that medicine is "not a science,

but a learned profession deeply rooted in a number of sciences."

¶106 The circuit court viewed Dr. Wener's methodology as

essentially a comparison of the instant case to other

deliveries, reasoning that the Daubert factors were not helpful

in evaluating this methodology because a medical expert's personal clinical experience is not subject to precise

measurements. "[B]ecause the standard of care is determined by

the care customarily provided by other physicians, it need not

be scientifically tested or proven effective . . . ."

Palandjian v. Foster, 842 N.E.2d 916, 921 (Mass. 2006).

¶107 Dr. Wener gave ample testimony about what a family

practice doctor practicing obstetrics should have known and how

a family practice doctor practicing obstetrics should have acted in the instant case. Dr. Wener's testimony about the standard 43 No. 2014AP195

of reasonable care of family practice doctors practicing

obstetrics was based on his knowledge of family practice doctors

practicing obstetrics gained through education, his decades of

delivering thousands of babies, his repeated observations in

decades of clinical experiences, and his numerous teaching and

supervisory experiences in important positions in the field of

obstetrics and gynecology. He used his many experiences to

arrive at an opinion in the instant case that is sufficiently

similar to his vast array of clinical experiences over decades

of practice.

¶108 Dr. Wener demonstrated to the circuit court that he

had formed an opinion about the standard of reasonable care of a

family practice doctor practicing obstetrics and that the

opinion had a reliable basis.

¶109 The circuit court concluded on the basis of the record

and case law that it had adequate grounds to view Dr. Wener's

testimony as not subjective belief, unsupported conjecture, or

ipse dixit. The circuit court ruled that Dr. Wener's methodology was reliable based on Dr. Wener's extensive personal

experiences. In other words, Dr. Wener's testimony was based on

"good grounds." Daubert, 509 U.S. at 590.

¶110 Characterizing its pretrial decision as "a close

call," and looking at the vagaries of medical treatment and

diagnosis, the circuit court concluded that Dr. Wener's

testimony was "reliably based on a reliable medical methodology

looking at recognized factors of the standard of care."

44 No. 2014AP195

¶111 The circuit court declared that Dr. Wener looked at

recognized risk factors and, using his own varied experiences,

concluded that the defendant doctor breached the standard of

reasonable care by failing to weigh these risk factors.

According to the circuit court, Dr. Wener used his knowledge and

experience as a basis for weighing known factors along with the

inevitable uncertainties to make a sound judgment. Dr. Wener's

testimony was not based on his personal preference, ruled the

circuit court; it was based on clinical experience, a reliable

methodology.

¶112 The circuit court determined that the way in which Dr.

Wener "adds [the factors up] is debatable, but that's not the

same as saying the way that Dr. Wener adds them up is not

reliable." According to the circuit court, Dr. Wener explained

the bases for his opinions in sufficient detail to permit the

jury to evaluate his conclusions.

¶113 The circuit court obviously relied on Daubert case law

in making its determination of reliability and used the language and reasoning set forth in the case law to rule on the

reliability and admissibility of Dr. Wener's expert medical

testimony based on personal experiences.

¶114 The circuit court regarded the defendants' contention

that Dr. Wener's opinions are unreliable because they are

untestable as failing from the outset. According to Daubert,

testability is not a prerequisite to admission. Testability,

like all of the Daubert factors, is a suggested way to assess methodology, not a required way to assess methodology. 45 No. 2014AP195

¶115 The circuit court ruled that Dr. Wener's testimony was

testable and met the Wis. Stat. § 907.02(1) standard. The

circuit court reasoned that "the testable principles[ ] are the

biological and physiological and anatomical principles that

inform the conclusions that arise."

¶116 The circuit court also explained that the defendants

could (and did) test Dr. Wener's testimony through cross

examination, further explaining that although "medicine is a

science, it is not a quantified science. It is not a

measurement, in many respects. It is not engineering."

¶117 The circuit court further compared Dr. Wener's

testimony with the testimony of defense experts, including Dr.

Michelle Grimm, a defense expert on medical engineering, and Dr.

Dwight Jonathan Rouse, an obstetrician with additional training

in maternal fetal medicine.

¶118 According to the circuit court, some defense expert

testimony actually supported Dr. Wener's testimony. For

example, both Dr. Wener and the defense expert witnesses testified that applying excessive traction beyond what the fetus

can withstand during childbirth violates the standard of

reasonable care.

¶119 Accordingly, the circuit court declared that the

context of the entire case supported admitting Dr. Wener's

testimony as reliable:

[A]fter the trial there is a lot more context within which to analyze the issues in respect to Dr. Wener's testimony.

46 No. 2014AP195

And I still believe that Dr. Wener's testimony met the Daubert standards as that applies to medical testimony.

And after trial, Dr. Werner's position looked every bit as good, and better, than it did pretrial when the context of the other experts, Grimm and Rouse, particularly, was taken into account. And so I stand on my prior rulings as to Dr. Wener as supplemented here today with what we know after trial. His testimony was properly admitted, to the extent it was admitted. ¶120 In sum, the circuit court ruled that Dr. Wener's

principles and methods were sufficiently reliable to be

admitted, emphasizing that Dr. Wener's testimony, although

shaky, is not junk science and that Dr. Wener is not a junk

scientist:

Dr. Wener's opinions are shaky due to their generality, but I conclude that they are sufficiently reliable to be admitted. The methodology employed is what I will call, I guess, holistic. The defense motion parses out the various factors and how they don't match a body of opinion about that particular factor. . . . [T]he essence of Dr. Wener's opinion [is that] these elements converge and then the sum is greater than the total of the parts, essentially. It's not something that's been peer reviewed or published because it's an individualized determination based upon the facts of this case, and in using known factors. ¶121 We conclude, as did the court of appeals, that the

circuit court did not erroneously exercise its discretion when

it concluded that the Daubert factors were not helpful and that

Dr. Wener's clinical methodology rendered his expert medical

47 No. 2014AP195

testimony on the standard of reasonable care based on his

personal experiences reliable under Wis. Stat. § 907.02(1).

¶122 Dr. Wener's opinion based on his personal experiences

satisfied the reliability standard. He identified established

risk factors (principles). He then used classic, ordinary

medical methods to establish the standard of care of a family

practice doctor practicing obstetrics and to opine that the

defendant doctor breached this standard.

¶123 In the instant case, the reliability standard entails

the circuit court's assessment of methodology. In expert

medical evidence, the methodology often relies on judgment based

on the witness's knowledge and experience. Accordingly,

reliability concerns may focus on the personal knowledge and

experience of the medical expert witness. Dr. Wener's testimony

was based on his knowledge of and experience with obstetrics and

family practice doctors practicing obstetrics. He gained his

knowledge through education, his decades of delivering thousands

of babies, his repeated observations during decades of clinical experiences, and his numerous teaching and supervisory

experiences in the fields of obstetrics and gynecology. Because

Dr. Wener applied an accepted medical method relied upon by

physicians and had extensive personal experiences and knowledge

pertaining to the standard of reasonable care, the circuit court

did not erroneously exercise its discretion in admitting his

testimony.

(2)

48 No. 2014AP195

¶124 The defendants argue that Dr. Wener's testimony was

mere speculation because it was not supported by even one peer

reviewed publication or medical text. The defendants correctly

contend, as we stated previously, that an expert cannot

establish that a fact is generally accepted merely by saying so.

¶125 With respect to the defendants' arguments that Dr.

Wener's testimony was not reliable because he did not rely on

medical literature, the circuit court concluded that Dr. Wener's

approach is "not something that's been peer reviewed or

published because it's an individualized determination based

upon the facts of this case, and in using known factors" such as

estimated maternal weight, fetal weight, and glucose levels.

¶126 Indeed, on cross-examination Dr. Wener said he was

aware of the medical literature but that there was a wide range

of statistics in the literature so that the publications were

not helpful and did not directly contradict his testimony.

¶127 For example, Dr. Wener concluded that, considering all

of the risk factors in totality, the defendant doctor breached the standard of reasonable care by failing to order a three-hour

glucose test after the one-hour test's result exceeded 130

mg/dL. The defendants, citing American College of Obstetricians

and Gynecologists, Clinical Management Guidelines for

Obstetrician-Gynecologists No. 30 (Sept. 2001) (reaffirmed 2008)

[hereinafter Guidelines], argued that Dr. Wener's opinion was

erroneous because the Guidelines suggest that the reasonable

standard of care requires a three-hour test when the mother's one-hour test result exceeds 140 mg/dL. The publication notes, 49 No. 2014AP195

however, that either the 130 or 140 mg/dL "threshold is

acceptable." Guidelines at 762. Furthermore, the publication

expressly states that it does not prescribe a standard of care:

"These guidelines should not be construed as dictating an

exclusive course of treatment or procedure. Variations in

practice may be warranted based on the needs of the individual

patient, resources, and limitations unique to the institution or

type of practice." Guidelines at 759. Dr. Wener's testimony

did not directly contradict the guidelines.

¶128 The circuit court did not bar Dr. Wener's testimony on

the ground that Dr. Wener did not cite to any publications as

support, reasoning that peer-reviewed literature would not be

all that useful in the experience-specific methodology that Dr.

Wener applied in the instant case.

¶129 The circuit court's conclusion was not an erroneous

exercise of discretion. Dr. Wener's failure to rely on

literature is no bar to admissibility. Daubert supports the

circuit court in the instant case: "Publication (which is but one element of peer review) is not a sine qua non of

admissibility; it does not necessarily correlate with

reliability." Daubert, 509 U.S. at 593.

(3)

¶130 Reliable application, or "fit," is the final step in

the Daubert analysis. The defendants argue that Dr. Wener

failed to reliably apply his methodology to the facts.

¶131 The defendants argue that Dr. Wener's "holistic" methodology was unreliable. We have already discussed Dr. 50 No. 2014AP195

Wener's methodology (as part of our analysis of the defendants'

objections to Dr. Wener's testimony) and concluded that the

circuit court did not err in declaring that Dr. Wener's use of a

constellation of factors is reliable, as doctors usually apply

this method when treating patients.

¶132 The defendants also contend that Dr. Wener improperly

applied his method to the instant case because his testimony was

riddled with inconsistencies. The circuit court correctly

concluded that inconsistencies do not necessarily render expert

testimony unreliable; they go to the weight of the testimony:

"Vigorous cross-examination, presentation of contrary evidence,

and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but

admissible evidence." Daubert, 509 U.S. at 596.

¶133 The defendants argue in this court that Dr. Wener's

experience-based testimony was not reliably applied,

specifically objecting to three of Dr. Wener's opinions related

to prenatal care and the delivery of Braylon. The defendants objected to Dr. Wener's statements that the defendant doctor

breached the standard of care by failing to order a three-hour

glucose test; that the defendant doctor breached the standard of

care by failing to perform an ultrasound immediately prior to

delivery; and that the defendant doctor breached the standard of

care by doing a vacuum-assisted delivery. The defendants again

argue that these opinions are personal preferences and that

personal preference is not a permissible basis for an expert opinion. 51 No. 2014AP195

¶134 The circuit court reviewed Dr. Wener's discussion of

the generally accepted risk factors of shoulder dystocia——

elevated birth weight, maternal obesity, and gestational

diabetes——and his application of these risk factors, in

totality, to the facts of the instant case. The circuit court

acknowledged that just as clinical medical practice entails

evaluating a specific patient and applying known risk factors or

variables, Dr. Wener's testimony analyzed Braylon's mother's

prenatal care and the delivery of Braylon with respect to the

three risk factors that he adduced at trial. The circuit court

did not view Dr. Wener's testimony as stating a personal

preference, but as based on reliable medical methods.

¶135 Furthermore, Dr. Wener's testimony regarding threshold

glucose levels for gestational diabetes and macrosomia did not

necessarily contradict the defendants' experts: Each offered a

spectrum of ranges under which the risks warranted special care,

and their spectrums overlapped. Any disagreement, ruled the

circuit court, goes to the weight of Dr. Wener's testimony, not its admissibility.

¶136 For the reasons set forth by the circuit court, we

conclude that the circuit court did not erroneously exercise its

discretion in admitting Dr. Wener's testimony as reliable based

on personal experiences and that Dr. Wener reliably applied his

methodology to the facts. The circuit court kept the gate open

52 No. 2014AP195

to the opinion of Dr. Wener, a qualified OB-GYN. "[T]rial

judges are gatekeepers, not armed guards."51

II

¶137 The second issue we must address is whether three

remarks separately or together made by Braylon's counsel during

his closing arguments prejudiced the defendants, justifying a

new trial. We will set out each of the remarks and address each

of the defendants' arguments for a new trial. Ultimately, we

agree with the court of appeals that the circuit court properly

exercised its discretion by rejecting the defendants' motion for

a new trial.

¶138 We begin by noting that although the defendants

contemporaneously objected to Braylon's counsel's remarks, the

defendants erred by failing to move for a mistrial. Generally,

an offended party must object and then move for a mistrial to

preserve a challenge to prejudicial remarks. Hansen v. State,

64 Wis. 2d 541, 551-52, 219 N.W.2d 246 (1974). The court of

appeals nonetheless addressed this issue by exercising its discretionary authority. Seifert ex rel. Scoptur v. Balink,

51 29 Wright & Gold, supra note 17, § 6268.2 (citing Ruiz- Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 86 (1st Cir. 1998)).

See Guild v. Gen. Motors Corp., 53 F. Supp. 2d 363 (W.D.N.Y. 1999) ("[T]rial judges acting as gatekeepers under Daubert must not assume 'the role of St. Peter at the gates of heaven, performing a searching inquiry into the depth of an expert witness's soul' and thereby usurp 'the ageless role of the jury' in evaluating witness credibility and weight of the evidence." (quoted source omitted)).

53 No. 2014AP195

2015 WI App 59, ¶36 n.10, 364 Wis. 2d 692, 869 N.W.2d 493

(citing Pophal v. Siverhus, 168 Wis. 2d 533, 545, 484 N.W.2d 555

(Ct. App. 1992)). We do the same.

¶139 We review a circuit court's decision to deny a motion

for a new trial under an erroneous exercise of discretion

standard.52 An order for a new trial based on improper

statements of counsel is appropriate if it "'affirmatively

appear[s]' that the remarks prejudiced the complaining party."

Wausau Underwriters Ins. Co. v. Dane Cty., 142 Wis. 2d 315, 329-

30, 417 N.W.2d 914 (Ct. App. 1987) (quoting Roeske v. Schmitt,

266 Wis. 557, 572, 64 N.W.2d 394 (1954)). This standard is

satisfied when the circuit court is convinced that "the verdict

reflects a result which in all probability would have been more

favorable to the complaining party but for the improper

argument."53 Related to our review of a circuit court's decision

to deny the defendants' motion for a new trial is the assumption

that "a properly given admonitory instruction is followed" and

that "the jury acted according to law." State v. Pitsch, 124 Wis. 2d 628, 645 n.8, 369 N.W.2d 711 (1985) (citations omitted).

¶140 The defendants assert that Braylon's counsel made an

impermissible and prejudicial reference to the rules of the road

52 Wagner v. Am. Family Mut. Ins. Co., 65 Wis. 2d 243, 249, 222 N.W.2d 652 (1974). 53 Wagner, 65 Wis. 2d at 249.

54 No. 2014AP195

during his closing argument.54 The following is Braylon's

counsel's reference to the rules of the road during closing

argument:

Thank you. Okay, well, on a nice, beautiful sunny day, clear skies, 65 miles an hour is probably fine. But there may be factors that you have to consider that would make that not fine. That would make you question whether that's the speed you should be going.

Let's say it's pouring rain, let's say it's snowing. You're not going to look at that number the same. And Dr. Wener, who I'll talk about in a moment, explained that to you. And this is the issue in this case about gestational diabetes.

No one is denying that they're throwing these two numbers out; 130 and 140. But what he tried to explain to you was when you have a big mom, who has an increased risk of gestational diabetes because of her weight, and an increased risk of a big baby because of her weight, you've got to consider which of these numbers you're going to use.

His point was what's safe at one speed might not be at another. And that you have to consider those issues. ¶141 The defendants made timely objections to these

statements, which the circuit court overruled. The defendants also challenged these statements in their motion after the

verdict. They argued that these statements violated the circuit

court's order in limine and that the statements prejudicially

confused the jury in regard to the applicable standard of

reasonable care. The defendants asserted that as a result of

54 The circuit court granted a motion in limine to prohibit Braylon's counsel from analogizing medical negligence to the failure of a driver to follow the rules of the road.

55 No. 2014AP195

Braylon's counsel's statements, "the jury was left with the

impression that Dr. Wener's opinions regarding standards of care

could be equated to speed limits and weather hazards on the

roadway."

¶142 The circuit court rejected this argument. The circuit

court decided that Braylon's counsel's analogy to driving a car

in various weather conditions did not violate the order in

limine. Instead, the circuit court interpreted Braylon's

counsel's statement as "an attempt to analogize and to put into

context Dr. Wener's theory of these additive elements as they

pile up with the total being more than the sum of its parts,"

not as an analogy to ordinary negligence.

¶143 Further, in regard to the defendants' concern that the

jury was confused as to the applicable standard of reasonable

care, the circuit court concluded that the jury was not confused

about the standard of care to apply:55 The jurors were

instructed to "find a standard of care for medical negligence."

Jurors are assumed to follow jury instructions. Accordingly, the circuit court concluded that "there is no reason to believe"

Braylon's counsel's statements were prejudicial or could be

interpreted by the jury in a way that would violate the in

limine order.

55 The circuit court also noted, "We have to remember that the juror's [sic] don't even know what regular negligence is, probably. They weren't instructed on regular negligence. . . . They were given one instruction."

56 No. 2014AP195

¶144 The court of appeals agreed with the circuit court and

concluded that Braylon's counsel did not violate the circuit

court's order in limine and that counsel's analogy to drivers

did not prejudice the defendants. The court of appeals reasoned

that instead of comparing ordinary negligence and medical

negligence, "the analogy illustrated the interplay of the

alleged risk factors present in this case through a comparison

to the interplay of various weather conditions that might affect

a driver's decision-making process."56

¶145 Further, the court of appeals concluded that there was

no indication that the absence of the analogy would have

resulted in a different verdict. The analogy pertained to

gestational diabetes testing thresholds, which was just one

aspect of the evidence presented to the jury on the issue of the

standard of reasonable care. The circuit court instructed the

jury that its decision must be based only on the evidence

presented to the jury and nothing else, including the statements

of counsel. ¶146 We agree with the reasoning and conclusion of the court

of appeals.

¶147 Turning to another remark of Braylon's counsel, the

defendants assert that they were prejudiced because Braylon's

counsel made an impermissible "Golden Rule" argument in

56 Seifert, 364 Wis. 2d 692, ¶40.

57 No. 2014AP195

violation of an order in limine. "Golden Rule" arguments arise

when counsel asks "the jurors to place themselves in the

position of someone claiming injury or damage and ask[s] the

jurors what they would want as compensation." State v. DeLain,

2004 WI App 79, ¶23, 272 Wis. 2d 356, 679 N.W.2d 562.

¶148 An order in limine prohibited Braylon's counsel from

making statements that might suggest that the jury determine

whether medical negligence occurred based on the jurors' own

knowledge, experience, common sense, or what they would want or

deserve.

¶149 The defendants assert that Braylon's counsel violated

the order in limine when he stated:

Now, you heard some testimony from the defense experts, and I'll talk about them as I go along in this case as well and their bias, where they're coming from. You heard somebody actually get up on the witness stand and say——Dr. Rouse, I think it was——if it was 139, I wouldn't have done anything. Really? If it was 139, I would have done nothing different. Is that reasonable to you? Is that reasonable medicine to you? Is that how you want your doctor to care?

Is that what you want? You want a doctor to treat you, or you want a doctor to say, well, you're at 139. You're not at 140. No test for you. Or do you want a doctor to think about you? ¶150 The defendants' counsel objected to these remarks at

trial, and Braylon's counsel withdrew the first remark. The

circuit court sustained the defendants' objection to the second

remark. The circuit court, however, did not strike either statement, opting instead to give a "curative" instruction.

58 No. 2014AP195

¶151 The curative instruction followed counsel's remarking:

"How do you want to be with your healthcare? Do you want to be

a participant in your healthcare?" The curative instruction

stated: "There aren't a lot of rules about what can and can't

be argued, but one of them is that a lawyer may not ask a juror

to place themselves in the position of the injured person or the

doctor for that matter. Not sure that's what was going on, but

if you got that idea, disregard it."

¶152 The defendants argued in their motion after the

verdict that these "Golden Rule"-type statements were

prejudicial and warranted a new trial. They argued that

arguments involving what a juror would want from his or her

doctor are irrelevant and appeal to the jurors' emotions. They

further argued that involving jurors' personal feelings about

the standard of care caused the jury to consider a standard of

care inconsistent with the reasonable physician standard. They

also argued that these statements violated the circuit court's

order in limine. ¶153 The circuit court refused to order a new trial on

"Golden Rule" grounds. The circuit court explained that

Braylon's counsel's statements were "not [] classic "golden

rule" violations, where the jurors were explicitly asked to

place themselves in the position of the plaintiff." The circuit

court noted that its curative instruction obviated any prejudice

which may have resulted from Braylon's counsel's remarks. The

circuit court denied the defendants' request for a new trial.

59 No. 2014AP195

¶154 The circuit court is in the best position to evaluate

"Golden Rule" statements and should look at a variety of factors

such as "the nature of the case, the emphasis upon the improper

measuring stick, the reference in relation to the entire

argument, [and] the likely impact or effect upon the jury."

Rodriguez v. Slattery, 54 Wis. 2d 165, 170, 194 N.W.2d 817

(1972).

¶155 The court of appeals concluded that the circuit court

did not erroneously exercise its discretion for the following

reasons:

• These were not pure "Golden Rule" violations because

the jurors were not asked to place themselves in the

victim's shoes.

• Even if these remarks were "Golden Rule" violations,

the circuit court gave the curative instruction stated

above.

• The remarks, in light of the entire argument presented

to the jury, did not affirmatively prejudice the defendants.57

¶156 We agree with the court of appeals' analysis that

these remarks did not violate the order in limine.

¶157 In sum, because the circuit court properly considered

objections to Braylon's counsel's statements during trial and

after the verdict and provided a curative instruction, we

57 Seifert, 364 Wis. 2d 692, ¶46.

60 No. 2014AP195

conclude that the circuit court did not erroneously exercise its

discretion by denying the defendants' motion for a new trial on

the basis of these remarks.

¶158 Turning to their final challenge, the defendants argue

that they were prejudiced by Braylon's counsel's remarks (1)

disparaging the defendants' attorney and (2) suggesting to the

jurors that the jurors were experts.

¶159 The defendants refer to the following remarks:

• I spoke to you in my closing argument and I addressed issues. I didn't tell you what to do. I didn't tell you you're not experts. I didn't tell you you're not that smart. I didn't tell you don't know the law. Apparently I have a little more respect for you than Mr. Leib does.

• I've got a little more faith in you than he does, because he spent the last hour and a half telling you what to do, telling you what you can't do, telling you what you don't know and that you're not going to be experts——you're not going to know the information. I disagree.

• These are the kind of arguments you make to juries if you think they're not too smart. Fool you, scare you, you know? You people are from Lancaster. How smart could you be, right? I think you're pretty smart. I think you get it. I think you see through all this nonsense. I think you should be respected, not told what to do or fooled. You should be talked to like adults, make you own decisions about this case. Not be told what to do.

• This shell game, you know, this game that they're trying to play with you. You know, it's that game, you know, when you go to the fair? Where's the ball? Whoa, whoa, whoa, where's the ball? That's what they tried to do to you. It's a matter of respect. I don't do it to you. I'm

61 No. 2014AP195

giving you the information, you'll figure it out. I'm not telling you what to do. You're smart.

• So when Mr. Leib comes before you and makes his big grandstand move. Where's this one, where's that one? Where's this one? Well, you know, it's just not true. It's a matter, again, of respect. It's a matter of respecting you as a group and trying to fool you. You're not going to get fooled. You're pretty damn smart. You're not going to get fooled. I don't think you'll get fooled.

• You have common sense and you can analyze the expert testimony and you're smart enough to do it. I'm like, again, I'm like Mr. Leib. I have a lot of faith in your smarts. I think you are experts in a sense. I think you've learned quite a bit and I think you can make good decisions. I don't have to tell you what to do or how to do it. I'm not going to do that. But think it through, ladies and gentlemen.

• Unlike Mr. Leib, I think you're smart people and I think you've learned the medicine and I think you are experts in a sense. ¶160 The circuit court concluded that, in context, these

statements (and others of a similar vein) were not prejudicial or

improper. The circuit court explained that these were rebuttal

statements made in response to the defendants' "strenuous

argument" and were meant to empower the jury to weigh the

conflicting expert testimony and make the required credibility

determinations.

¶161 The circuit court also explained that in a complex

medical malpractice case filled with days of expert medical

testimony, jurors have to make a finding based on medical

evidence, so they do "in a sense become expert." The circuit court concluded there was nothing wrong with telling jurors that

62 No. 2014AP195

they are smart while simultaneously characterizing defense

counsel's view of the jurors as that they are "dumb."

¶162 Considering the context in which these remarks arose,

we conclude that the circuit court did not erroneously exercise

its discretion in ruling in favor of Braylon. Braylon's

counsel's remarks were used to empower the jury to perform its

essential role of weighing conflicting testimony and making

credibility determinations.

¶163 The remarks at issue did not cause the jury to reach a

decision that it would not have reached otherwise. Accordingly,

we affirm the court of appeals' decision that the circuit court

did not erroneously exercise its discretion in concluding that

Braylon's counsel's remarks during closing argument did not

constitute prejudicial error justifying a new trial.

III

¶164 Lastly, the defendants argue that this court should

grant their motion for a new trial in the interests of justice

under Wis. Stat. § 751.06.58 They claim that justice was not

58 Wisconsin Stat. § 751.06 provides:

Discretionary reversal. In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such (continued) 63 No. 2014AP195

served because the circuit court admitted Dr. Wener's unreliable

testimony and did not order a new trial in response to Braylon's

counsel's prejudicial remarks.

¶165 We have already concluded that the circuit court did

not erroneously exercise its discretion by admitting Dr. Wener's

testimony or by failing to grant a new trial on the basis of

Braylon's counsel's remarks. Nevertheless, we will elaborate

further on Wis. Stat. § 751.06.

¶166 Under this court's interpretations, Wis. Stat.

§ 751.06 rarely calls for a new trial. This court has often

expressed its "reluctan[ce] to grant a new trial in the interest

of justice" and has stated that it "exercises its discretionary

power only in exceptional cases." State v. Cuyler, 110

Wis. 2d 133, 141, 327 N.W.2d 662 (1983) (ordering new trial

where trial court misread evidentiary statute and thus

prohibited material witnesses from testifying). Such

"exceptional" cases occur in two situations: (1) "when the real

controversy has not been fully tried" and (2) "when it is probable that justice has for any reason been miscarried."

Vollmer v. Luety, 156 Wis. 2d 1, 7, 456 N.W.2d 797 (1990).

procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

64 No. 2014AP195

¶167 The real controversy was fully tried in the instant

case and there is no "substantial degree of probability that a

different result was likely to be produced on retrial.59

¶168 For the reasons set forth, we affirm the decision of

the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

59 Discretionary reversals based on a miscarriage of justice are appropriate when this court "determine[s] to a substantial degree of probability that a different result was likely to be produced on retrial." State v. Wyss, 124 Wis. 2d 681, 741, 370 N.W.2d 745 (1985).

65 No. 2014AP195.akz

¶169 ANNETTE KINGSLAND ZIEGLER, J. (concurring). 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).1 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. In

my view, a best practice for trial courts and counsel is to

create a detailed, complete record regarding why any particular

expert's testimony meets the heightened scrutiny due under

§ 907.02. The trial court's determinations here are upheld under the facts of this case because the trial court did not

erroneously exercise its discretion in admitting the testimony

of Dr. Wener.

¶170 While I agree that this court should uphold the

circuit court's decision to admit Dr. Wener's expert testimony

at trial, I reach this conclusion in spite of the fact that the

legislature tightened the standard of admissibility of expert

1 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.

1 No. 2014AP195.akz

opinion testimony when it amended Wis. Stat. § 907.02 (2009-10).

The circuit court did not "appl[y] an improper legal standard or

make[] a decision not reasonably supported by the facts of

record" in admitting Dr. Wener's testimony, 118th St. Kenosha,

LLC v. DOT, 2014 WI 125, ¶18, 359 Wis. 2d 30, 856 N.W.2d 486

(quoting 260 North 12th St., LLC v. DOT, 2011 WI 103, ¶38, 338

Wis. 2d 34, 808 N.W.2d 372), and its decision should be upheld.

See id. I view the record below, however, as a "close call"

which might not survive appellate review had this been a

different case type.

¶171 We have recognized that the legislature amended Wis.

Stat. § 907.02 (2009-10) in 2011 Wisconsin Act 2 in order "to

adopt the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), reliability standard as stated in Federal Rule of

Evidence 702." 260 North 12th St., 338 Wis. 2d 34, ¶55 n.10.

Allow me to provide background concerning the federal adoption

of Daubert. Unlike in Wisconsin, where the Daubert standard heightened the level of scrutiny to apply to expert witnesses,

in the federal system, Daubert loosened the standard for

admission of expert testimony.

¶172 To begin with, while the federal rule, Rule 702, may

"embod[y] a liberal standard of admissibility for expert

opinions," Nimely v. City of New York, 414 F.3d 381, 395 (2d

Cir. 2005), it is liberal as compared to the standard it

"superseded," namely the so-called Frye "'general acceptance' test," Daubert, 509 U.S. at 585-87 (named for Frye v. United

2 No. 2014AP195.akz

States, 293 F. 1013 (D.C. Cir. 1923)). See Nimely, 414 F.3d at

395-96. It is not liberal as compared to Wisconsin's prior test

for admitting expert testimony.

¶173 Frye's "austere standard" "made 'general acceptance'

[of the matter upon which expert scientific testimony is based]

the exclusive test for admitting expert scientific testimony."

Daubert, 509 U.S. at 585-86, 589. Daubert recognized that the

Federal Rules of Evidence, on the other hand, did not mandate

general acceptance, consistent with the Rules' "general approach

of relaxing the traditional barriers to 'opinion' testimony."

Id. at 588-89 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S.

153, 169 (1988)).

¶174 In Wisconsin, however, there is no "traditional

barrier[]" à la Frye for the legislature's adoption of Rule 702

to "relax[]." See State v. Walstad, 119 Wis. 2d 483, 516, 351

N.W.2d 469 (1984) ("The Frye concept is alien to the Wisconsin

law of evidence."). Wisconsin's prior standard of admissibility

of expert evidence was considerably more accommodating than either the Frye test or Rule 702's standard. As stated, Frye's

yardstick is "general acceptance." Rule 702 mandates, inter

alia, that expert testimony be "based on sufficient facts or

data" and "the product of reliable principles and methods" and

that the expert testifying "reliably appl[y] the principles and

methods to the facts of the case." Fed. R. Evid. 702(b)-(d).

In contrast, under the previous Wisconsin standard "questions of

the weight and reliability of relevant evidence [were] matters for the trier of fact." State v. Fischer, 2010 WI 6, ¶7, 322

3 No. 2014AP195.akz

Wis. 2d 265, 778 N.W.2d 629. "[E]xpert testimony [was]

generally admissible in the circuit court's discretion if the

witness [was] qualified to testify and the testimony would help

the trier of fact understand the evidence or determine a fact at

issue." State v. Kandutsch, 2011 WI 78, ¶26, 336 Wis. 2d 478,

799 N.W.2d 865. This was a "low threshold." State v. Shomberg,

2006 WI 9, ¶67, 288 Wis. 2d 1, 709 N.W.2d 310 (Butler, J.,

dissenting) (citing State v. St. George, 2002 WI 50, ¶39, 252

Wis. 2d 499, 643 N.W.2d 777).

¶175 The fact that the legislature has added three new

prerequisites to the admission of expert testimony in Wisconsin

means that it now requires more of a showing and further trial

court analysis before expert testimony may be introduced. That

the legislature now requires——in addition to its earlier

mandates of a qualified expert and sufficiently helpful

testimony, Kandutsch, 336 Wis. 2d 478, ¶26——testimony "based

upon sufficient facts or data," testimony which is "the product

of reliable principles and methods" and a witness who has "applied the principles and methods reliably to the facts of the

case," Wis. Stat. § 907.02(1), suggests that trial courts must

now be much more piercing in their evaluation of proffered

expert testimony. The days of relatively easy admission of

expert testimony into Wisconsin courtrooms are over. The trial

courts' gatekeeping function has changed in light of § 907.02.

¶176 The Wisconsin legislature's adoption of the Daubert

standard was part of a larger seemingly legislative reaction to Wisconsin Supreme Court decisions; one observer argues that "Act

4 No. 2014AP195.akz

2 generated the most significant changes in at least sixteen

years to Wisconsin's civil litigation system by limiting the

applicability of 'risk contribution' theory, capping punitive

damages, and mandating damages for frivolous claims," "most

drastically chang[ing] the areas of strict products liability

and expert opinion testimony." Kristen Irgens, Comment,

Wisconsin Is Open for Business or Business Just As Usual? The

Practical Effects and Implications of 2011 Wisconsin Act 2, 2012

Wis. L. Rev. 1245, 1247 (2012) (footnotes omitted); see

Honorable Diane S. Sykes, Reflections on the Wisconsin Supreme

Court, 89 Marq. L. Rev. 723, 737-38 (2006) (arguing that certain

"cases from the last term reflect a court quite willing to

aggressively assert itself to implement the statewide public

policies it deems to be most desirable," and that "[t]he court

is loosening the usual constraints on the use of its power,

freeing itself to move the law essentially as a legislature

would, except that its decisions are for the most part not

susceptible of political correction as the legislature's would be").2

¶177 Previously this court has rejected the invitation to

follow the Daubert approach taken in the federal courts with

2 Compare, e.g., Thomas ex rel. Gramling v. Mallett, 2005 WI 129, ¶¶178-79, 285 Wis. 2d 236, 701 N.W.2d 523 (Wilcox, J., dissenting) (contending that the court's "expansion" of risk- contribution theory "amounts to an unwarranted and unprecedented relaxation of the traditional rules governing tort liability, and raises serious concerns of fundamental fairness"), with 14 Jay E. Grenig, Wisconsin Practice Series: Elements of an Action § 14:5, at 765 (2015-2016 ed.) (arguing that Act 2 "limits the holding of Thomas").

5 No. 2014AP195.akz

regard to expert testimony. See Fischer, 322 Wis. 2d 265, ¶7

("[T]here is no reason for us to revisit [in this case]

Wisconsin's well-established role for the circuit court where

expert testimony is proffered. The law in Wisconsin continues

to be that questions of the weight and reliability of relevant

evidence are matters for the trier of fact. . . . We, therefore,

decline to adopt a Daubert-like approach to expert testimony

that would make the judge the gatekeeper."). Act 2 negates this

decision, transforming Wisconsin law so that it now adheres to

Federal Rule 702's heightened standard. To minimize the

significance of this change, as the lead opinion might be read

to do, contravenes the requirement of Wisconsin's Act 2, which

clearly contemplates a more substantial burden on litigants who

seek to have expert testimony admitted in Wisconsin courts.

¶178 Importantly, even after Daubert, trial courts retain

substantial discretion in deciding whether to admit expert

testimony. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S.

137, 141–42 (1999) ("[T]he test of reliability is 'flexible,' and Daubert's list of specific factors[3] neither necessarily nor 3 In Daubert the Supreme Court "discussed certain . . . factors . . . some or all of which might prove helpful in determining the reliability of a particular scientific 'theory or technique.'" Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993)). The Daubert Court pointed to "whether [a theory or technique] can be (and has been) tested," "whether the theory or technique has been subjected to peer review and publication," "the known or potential rate of error," and whether there is "general acceptance" of the matter within the "relevant scientific community." Daubert, 509 U.S. at 593-94 (quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)).

6 No. 2014AP195.akz

exclusively applies to all experts or in every case. Rather,

the law grants a district court the same broad latitude when it

decides how to determine reliability as it enjoys in respect to

its ultimate reliability determination." (quoting Daubert, 509

U.S. at 594)). Moreover, the question before this court in

reviewing the circuit court's evidentiary decision below "is not

whether this court agrees with the ruling of the trial court,

but whether appropriate discretion was in fact exercised."

Martindale v. Ripp, 2001 WI 113, ¶29, 246 Wis. 2d 67, 629

N.W.2d 698 (quoting State v. Wollman, 86 Wis. 2d 459, 464, 273

N.W.2d 225 (1979)).

¶179 Given the foregoing, the facts of this current case

might stand as a poor example to clearly illustrate the

heightened standard of Wis. Stat. § 907.02. This court today

decides that the court below did not erroneously exercise its

discretion but does little to advise courts how to apply the new

heightened standard to other cases involving different expert

testimony. I note that, had the circuit court below decided to exclude Dr. Wener's testimony, we would analyze that exclusion

of evidence in light of the standard espoused in Daubert and the

fact that we owe the circuit court erroneous-exercise-of-

discretion deference. In this case, under these facts,

involving this doctor's testimony, that deference due tips the

scales in favor of the circuit court's detailed determination

below.

7 No. 2014AP195.akz

¶180 In this medical malpractice case, the defense seeks to

exclude the testimony of a medical doctor who is board certified

in obstetrics and gynecology, who has delivered thousands of

babies over three decades and confronted dozens of instances of

shoulder dystocia, who taught medical students and residents in

a clinical capacity for four years at the University of

California, San Diego, and who served as chairman of the OB/GYN

department at a hospital for 20 years, arguing that this expert

cannot meet the Daubert standard as set forth in Wis. Stat.

§ 907.02. The above expertise is directly on point with the

claim made here.

¶181 Wisconsin Stat. § 907.02(1) requires, for the

admission of expert testimony: (1) that "scientific, technical,

or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue"; (2)

that the expert witness "testify[ing] thereto in the form of an

opinion or otherwise" is "qualified as an expert by knowledge,

skill, experience, training, or education"; (3) that the expert testimony is "based upon sufficient facts or data"; (4) that the

expert testimony is "the product of reliable principles and

methods"; and (5) that the expert witness "has applied the

principles and methods reliably to the facts of the case."

¶182 Digging deeper into the facts specific to this case,

Dr. Balink argues that Dr. Wener's testimony is not the product

of reliable principles and methods, and that Dr. Wener did not apply the principles and methods he used reliably to the facts

8 No. 2014AP195.akz

of the case. Dr. Balink contends that Dr. Wener's opinions are

simply based on his own personal preferences rather than, for

instance, on medical literature; criticizes Dr. Wener's so-

called "holistic" approach; and points out supposedly

contradictory or confusing aspects of Dr. Wener's testimony.

All of these arguments could be well-developed in cross-

examination. Argument could be made that such personal

preference does not meet the legal definition of medical

malpractice. The circuit court did not erroneously exercise its

discretion in declining to exclude Dr. Wener's testimony. The

trial court concluded that Dr. Wener's opinion was "reliably

based on a reliable medical methodology looking at recognized

factors of the standard of care."

¶183 Wisconsin Stat. § 907.02 uses, for example, two key

terms relevant to this case: "method[]" and "principle[]." See

Wis. Stat. § 907.02(1). A "method" is a "mode of organizing,

operating, or performing something, esp. to achieve a goal."

Method, Black's Law Dictionary 1141 (10th ed. 2014). A "principle" is a "basic rule, law, or doctrine; esp., one of the

fundamental tenets of a system." Principle, id. at 1386.

Generally speaking, Dr. Wener's method in providing the disputed

expert testimony was, to quote the plaintiffs-respondents'

brief, to "review the [relevant medical] records and provide an

opinion based upon his education, training, and 36 years of

experience" as to whether the steps taken and not taken by Dr.

Balink in her care of Braylon and Kimberly Seifert met the applicable standard of care. More specifically, Dr. Wener's

9 No. 2014AP195.akz

application of his education, training, and experience to the

facts of the Seiferts' case included consideration of a specific

set of medical "principles," namely the various "risk factors"

for shoulder dystocia present in the Seiferts' case. These

principles suggested that "maternal obesity, excessive weight

gain [in the mother], gestational diabetes [suspected through

the result of blood glucose testing,] . . . a large baby[,]" and

use of a vacuum during delivery all increase the likelihood that

shoulder dystocia will occur during delivery.

¶184 Moreover, the Wisconsin Jury Instructions state the

standard used in a case involving alleged medical negligence

like this one in part as follows:

In (treating) (diagnosing) (plaintiff)'s (injuries) (condition), (doctor) was required to use the degree of care, skill, and judgment which reasonable (doctors who are in general practice) (specialists who practice the specialty which (doctor) practices) would exercise in the same or similar circumstances, having due regard for the state of medical science at the time (plaintiff) was (treated) (diagnosed). A doctor who fails to conform to this standard is negligent. The burden is on (plaintiff) to prove that (doctor) was negligent.

A doctor is not negligent, however, for failing to use the highest degree of care, skill and judgment or solely because a bad result may have followed (his) (her) (care and treatment) (surgical procedure) (diagnosis). The standard you must apply in determining if (doctor) was negligent is whether (doctor) failed to use the degree of care, skill, and judgment which reasonable (general practitioners) (specialists) would exercise given the state of medical knowledge at the time of the (treatment) (diagnosis) in issue. Wis JICivil 1023 at 1. Dr. Wener's conclusion was essentially that, given the presence of the risk factors discussed as 10 No. 2014AP195.akz

evidenced by the facts of the case and the medical records he

studied, certain of Dr. Balink's actions and omissions——failure

to perform additional glucose testing, for example——constituted

unreasonable care because of the unjustified risk of shoulder

dystocia. Clearly, cross-examination and argument could dispel

the notion that Dr. Wener's conclusions are but one, and not a

conclusive, reasonable standard of care.

¶185 The circuit court below indeed assessed the

reliability of Dr. Wener's testimony as required by Wis. Stat.

§ 907.02(1). The circuit court explained, citing McGovern ex

rel. McGovern v. Brigham & Women's Hosp., 584 F. Supp. 2d 418

(D. Mass. 2008), that obstetrics "is a recognized field of

expertise" as opposed to "junk science." See McGovern, 584

F. Supp. 2d at 424. The circuit court characterized Dr. Wener's

method as "holistic" "clinical medical methodology," relying

partly on Cooper v. Carl A. Nelson & Co., 211 F.3d 1008 (7th

Cir. 2000), in which the Seventh Circuit——applying Daubert——

noted the apparent agreement of the party seeking to exclude the expert testimony of three physicians that "in clinical medicine,

the methodology of physical examination and self-reported

medical history employed by [one of the experts] is generally

appropriate." Cooper, 211 F.3d at 1020; see also, e.g.,

Reference Manual on Sci. Evid. 703 (3d ed.) ("A patient-

physician encounter typically consists of four components: (1)

patient history, (2) physical examination, (3) medical

decisionmaking, and (4) counseling."). This approach was analogous to the one taken by Dr. Wener (although Dr. Wener's

11 No. 2014AP195.akz

review was also retroactive). The circuit court observed that

Dr. Wener's opinion was "based upon the facts of this case," and

on "recognized factors subject to cross[-]examination" such as

Braylon's estimated size, Kimberly's weight gain, and the

results of Kimberly's glucose tests. Consequently, the court

concluded that Dr. Wener's opinion was "reliably based on a

reliable medical methodology looking at recognized factors of

the standard of care."

¶186 The court tempered its conclusions by exploring

various weaknesses in Dr. Wener's approach, stating, for

instance, "[A] lot of things in medicine can't be tested because

you can't repeat the exact same factors because every human body

is different. And maybe that makes the defense's case

ultimately." The court also acknowledged that there was some

level of extrapolation in Dr. Wener's analysis. But there was a

common thread running through the court's remarks: that although

Dr. Wener's testimony was not perfect, it was "sufficiently

reliable to be admitted." ¶187 Remaining in our required position in review of the

record makes plain that the circuit court "applie[d] [the]

[]proper legal standard [and] ma[de] a decision . . . reasonably

supported by the facts of record." 118th St. Kenosha,, 359

Wis. 2d 30, ¶18 (quoting 260 North 12th St., 338 Wis. 2d 34,

¶38). Dr. Wener's conclusions certainly could have been better

supported. In particular, he could have done a better job of

attempting to quantify the point at which a tolerable level of risk of shoulder dystocia becomes intolerable. In addition,

12 No. 2014AP195.akz

Dr. Balink points to alleged errors and inconsistencies in

Dr. Wener's testimony. But all of these deficiencies were able

to be tested on cross-examination; they did not mandate

exclusion of the entire expert opinion. The record

substantiates a conclusion that Dr. Wener "adhere[d] to the same

standards of intellectual rigor that are demanded in [his]

professional work." Cooper, 211 F.3d at 1020 (quoting Rosen v.

Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996)).4

¶188 Ultimately, and as suggested by the circuit court,

this case does not involve "junk science," a "junk scientist,"

4 In an amicus brief, the American Medical Association and the Wisconsin Medical Society set forth their concern that:

If left uncorrected, the decisions of the lower courts would place an unreasonable burden on physicians, [because] . . . [i]n making decisions about how to treat their patients, . . . physicians . . . would have to account for the possibility that the preferences of a physician they have never met . . . could serve as the basis by which their conduct will be judged.

But this argument ignores the fact that the standard against which a physician's conduct is judged is the conduct of a similarly-situated reasonable physician. Wis JI——Civil 1023 at 1. And arguably "for any set of clinical facts, however unique, there are decisions or actions that virtually no doctor would find acceptable." Mark A. Hall, Mary Anne Bobinski & David Orentlicher Health Care Law and Ethics 321 (8th ed. 2013) (presenting idea without necessarily endorsing it). Physicians need only ensure that their conduct matches the conduct of a similarly-situated reasonable physician. Assuming that a judge finds that expert testimony passes the requirements of Wis. Stat. § 907.02, the party against whom the testimony is offered may dispute it by cross-examination and by presenting contrary expert testimony suggesting that the party's conduct was reasonable. It is then up to the jury to decide which set of testimony is more believable.

13 No. 2014AP195.akz

or a "junk opinion." McGovern, 584 F. Supp. 2d at 424. This

was testimony in a "recognized field of expertise" as to the

standard of care required, provided by a well-qualified

physician who had delivered thousands of babies. Dr. Wener used

his own education, training, and experience to review the

relevant medical records and to reach a conclusion as to whether

the applicable standard of care was followed. The circuit court

did not err in admitting this testimony.5

¶189 Thus, 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

5 I reject Dr. Balink's remaining arguments for reversal. Without opining on whether, or the extent to which, the Seiferts' attorney violated various pretrial orders, and without opining on the possibility that Dr. Balink has waived this argument, I conclude that the record does not establish that, because of comments made by the Seiferts' attorney during closing arguments following this week-long jury trial, "the verdict reflects a result which in all probability would have been more favorable to the complaining party but for the improper argument." Wagner v. Am. Family Mut. Ins. Co., 65 Wis. 2d 243, 250, 222 N.W.2d 652 (1974) (citing Klein v. State Farm Mut. Auto. Ins. Co., 19 Wis. 2d 507, 510 n.1, 120 N.W.2d 885 (1963)). The circuit court did not erroneously exercise its discretion in declining to grant a new trial. See id. at 249-50.

Further, given the conclusions set forth in this writing, discretionary reversal is not warranted. See Wis. Stat. § 751.06.

14 No. 2014AP195.akz

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. 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. In my view, a best practice for trial courts and

counsel is to create a detailed, complete record regarding why

any particular expert's testimony meets the heightened scrutiny

due under § 907.02. The trial court's determinations here are

upheld under the facts of this case because the trial court did

not erroneously exercise its discretion in admitting the

testimony of Dr. Wener.

¶190 While I agree that this court should uphold the

circuit court's decision to admit Dr. Wener's expert testimony

at trial, I reach this conclusion in spite of the fact that the

legislature tightened the standard of admissibility of expert opinion testimony when it amended Wis. Stat. § 907.02 (2009-10).

The circuit court did not "appl[y] an improper legal standard or

record" in admitting Dr. Wener's testimony, 118th St. Kenosha,

359 Wis. 2d 30, ¶18 (quoting 260 North 12th St., 338

Wis. 2d 34, ¶38), and its decision should be upheld. See id. I

view the record below, however, as a "close call" which might

not survive appellate review had this been a different case type.

15 No. 2014AP195.akz

¶191 For the foregoing reasons, I respectfully concur.

16 No. 2014AP195.mjg

¶192 MICHAEL J. GABLEMAN, J. (concurring in the

judgment). This is a review of a published decision of the

court of appeals that affirmed the Grant County circuit court's1

order denying Dr. Kay M. Balink's ("Dr. Balink") postverdict

motion for a new trial. Seifert ex rel. Scoptur v. Balink, 2015

WI App 59, 364 Wis. 2d 692, 869 N.W.2d 493. Dr. Balink

requested a new trial because (1) the circuit court erred by

admitting the medical standard-of-care expert testimony of Dr.

Jeffrey Wener ("Dr. Wener"); (2) counsel's statements during

closing arguments unfairly prejudiced the verdict; and (3) the

interests of justice require a new trial because the issues have

not been fully tried.

¶193 This case requires us to interpret how the Daubert2

standard as adopted in Wis. Stat. § 907.02(1) (2013-14)3 applies

to a standard-of-care expert in a medical malpractice case where

the expert relies on his experience to show that his principles

and methods, and the application thereof, are reliable.

¶194 I conclude that experience is sufficient to satisfy Daubert's reliability requirement provided the expert shows how

his experience makes his opinion reliable. No medical

literature is required provided this is done. Thus, Dr. Wener's

opinion is admissible in this case because he showed how his

1 The Honorable Craig R. Day presided. 2 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 3 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.

1 No. 2014AP195.mjg

experience made his opinion reliable, and the circuit court did

not err when it admitted his testimony at trial. Consequently,

the circuit court did not err when it denied Dr. Balink's motion

for a new trial based on her argument that the circuit court

erroneously admitted Dr. Wener's testimony.

¶195 Further, I conclude the circuit court did not err when

it denied Dr. Balink's request for a new trial based on the

effect of counsel's statements during closing argument.

¶196 I do not reach Dr. Balink's request for a new trial in

the interests of justice as Dr. Balink bases the request on the

inadmissibility of Dr. Wener's testimony and the effect of

counsel's statements during closing arguments. I consider it

unnecessary to reach her request because I conclude that the

circuit court properly admitted Dr. Wener's testimony and the

verdict was not unfairly prejudiced by counsel's statements.

¶197 Accordingly, I would affirm the decision of the court

of appeals, and I concur in the court's judgment. I write

separately, however, to express how I reach this result. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Ms. Seifert's Prenatal Care

¶198 Beginning on December 5, 2008, Dr. Balink assumed Ms.

Seifert's prenatal care. As part of this prenatal care, Dr.

Balink tracked Ms. Seifert's weight. Ms. Seifert weighed 269

pounds at the beginning of the pregnancy, which meant Ms.

Seifert was obese. Over the course of her pregnancy, Ms.

Seifert gained an additional 36 pounds, and by the time of delivery, she weighed 305 pounds.

2 No. 2014AP195.mjg

¶199 Dr. Balink took regular fundal measurements in order

to measure the baby's growth and to estimate its size. On

occasion, Dr. Balink used ultrasounds, but typically, Dr. Balink

used fundal measurements. When performing these fundal

measurements, Dr. Balink placed a tape measure on Ms. Seifert's

stomach and measured the distance from her pubic bone to the top

of the fundus, the fundus being the top of her uterus.

¶200 As another aspect of Ms. Seifert's prenatal care, Dr.

Balink monitored Ms. Seifert's glucose level. Here Dr. Balink

used a one-hour glucose tolerance test in order to determine if

Ms. Seifert's glucose level rose above a 140 mg/dL threshold.

If Ms. Seifert's glucose level rose above the 140 mg/dL

threshold, Dr. Balink would have performed a three-hour glucose

tolerance test to determine if Ms. Seifert had gestational

diabetes. Because Ms. Seifert's glucose level was 131 mg/dL,

Dr. Balink considered Ms. Seifert's glucose level safe and never

ran the diagnostic test to determine if in fact Ms. Seifert had

gestational diabetes. B. Braylon Seifert's Delivery

¶201 On May 26, 2009, Dr. Balink ordered Ms. Seifert's

labor be induced. In the induction order, Dr. Balink noted that

Ms. Seifert's baby was "expected LGA," meaning large for

gestational age. Again using a fundal height measurement, Dr.

Balink estimated the baby's weight at eight pounds, eight

ounces. Dr. Balink did not order an ultrasound, a more accurate

method of measuring the baby's size, despite her awareness of

3 No. 2014AP195.mjg

the complicating factors of Ms. Seifert's obesity and the

possibility of the LGA child.

¶202 Ms. Seifert arrived at the hospital for induction of

labor on May 28, 2009. After she had been pushing for one hour

without making progress in delivering her baby, Ms. Seifert

tired, and Dr. Balink decided to use a vacuum device on the

baby's head for assistance. Braylon Seifert's ("Braylon") head

emerged when Dr. Balink used the vacuum, but shortly thereafter,

it retracted. This type of retraction, known as the "turtle

sign," indicates shoulder dystocia, which essentially means the

baby's shoulder is caught on the mother's pubic bone. Thus,

after seeing Braylon's head retract, Dr. Balink quickly

diagnosed Braylon with shoulder dystocia.

¶203 Shoulder dystocia can be a life-threatening emergency

if not swiftly resolved. This is so because a baby experiencing

such a condition cannot breathe properly. In an effort to

resolve the situation as quickly as possible, Dr. Balink

attempted a variety of maneuvers to safely deliver Braylon. Eventually she succeeded by using traction to dislodge Braylon's

shoulder and pull him out. At 12:24 a.m. on May 29, 2009,

Braylon was born. He weighed nine pounds, twelve ounces. Only

a few minutes had elapsed from the time Dr. Balink diagnosed the

shoulder dystocia to the time she delivered Braylon, and it

appeared that the situation had been successfully resolved with

no permanent harm to the baby. However, Braylon was diagnosed

just days later with a permanent brachial plexus injury in his left arm that inhibits its growth and use. Braylon has since

4 No. 2014AP195.mjg

undergone surgery to improve the use of his left arm, but even

with surgery and therapy, he will never have full use of his

arm.

C. Dr. Balink's Trial for Medical Malpractice

¶204 After discovering Braylon's permanent brachial plexus

injury, Braylon's parents (David and Kimberly) and his guardian

ad litem (Paul J. Scoptur) sued Dr. Balink and Proassurance

Wisconsin Insurance Co. on Braylon's behalf alleging that Dr.

Balink was (1) negligent in providing Ms. Seifert's prenatal

care; (2) negligent in delivering Braylon; and (3) failed to

obtain Ms. Seifert's informed consent before using the vacuum to

assist with the delivery.

1. Dr. Wener's Opinion on the Standard of Care

¶205 Braylon's parents and guardian ad litem hired Dr.

Wener, a board certified obstetrician-gynecologist, to testify

as to the standard of care required of Dr. Balink as a family

practitioner and Dr. Balink's breach of that standard of care.

According to Dr. Wener, Dr. Balink fell below the standard of care because (1) she did not use an ultrasound to estimate

Braylon's weight prior to delivery despite Ms. Seifert's obesity

and Braylon's suspected LGA status; (2) she never ordered the

three-hour glucose tolerance test to determine if Ms. Seifert

did in fact have gestational diabetes even though Ms. Seifert

was obese and had gained more weight than would be expected over

the course of her pregnancy; and (3) she used a vacuum to assist

5 No. 2014AP195.mjg

in the delivery in spite of the presence of an increased risk

for shoulder dystocia.4

¶206 To form both his opinion of the applicable standard of

care as well as his opinion that Dr. Balink had breached that

standard of care, Dr. Wener considered the following factors:

(1) Ms. Seifert's prepregnancy weight of 269 pounds; (2) Ms.

Seifert's 36-pound weight gain over the course of her pregnancy;

(3) the 131 mg/dL result from the 1-hour glucose tolerance test;

and (4) Braylon's estimated fetal weight of 8 pounds, 8 ounces.

Dr. Wener opined that, as a result of the confluence of these

factors, Braylon was at an increased risk for shoulder dystocia.

Furthermore, Dr. Wener testified that Dr. Balink fell below the

applicable standard of care because her conduct did not account

for the increased risk created by the factors presented by Ms.

Seifert and her unborn child.

¶207 Dr. Wener testified that a family practitioner

practicing obstetrics in accordance with the applicable standard

of care in 2009 would have recognized that Ms. Seifert's obesity and above-average weight gain would have rendered a fundal

measurement too inaccurate for the situation and would have

instead ordered an ultrasound in order to estimate the baby's

size. Obtaining a more accurate measurement would, in turn,

have indicated to Dr. Balink that the vacuum device should not

4 Dr. Wener also opined that Dr. Balink fell below the standard of care by applying excessive traction when resolving the shoulder dystocia, but this part of Dr. Wener's opinion is unchallenged.

6 No. 2014AP195.mjg

be used on a baby of Braylon's size because of the risk of

shoulder dystocia. In addition, Dr. Wener opined that a family

practitioner practicing obstetrics in 2009 should have used a

lower threshold than Dr. Balink used——130 mg/dL as opposed to

140 mg/dL——when performing the 1-hour glucose tolerance test

because of Ms. Seifert's weight, which increased the risk of

gestational diabetes. Finally, Dr. Wener opined that, to meet

the applicable standard of care, a family practitioner

practicing obstetrics in 2009 would avoid use of a vacuum device

during the delivery because of the increased risk of shoulder

dystocia resulting from Ms. Seifert's weight and Braylon's

suspected status as a large baby.

2. Dr. Balink's Challenge to Dr. Wener's Opinion on the

Standard of Care

¶208 Before trial, Dr. Balink challenged the admissibility

of Dr. Wener's opinion, arguing that his opinion was unreliable

because it was based not on science and medical literature but

rather was based solely on Dr. Wener's personal preferences. At a pretrial hearing to address, inter alia, the admissibility of

Dr. Wener's opinion, the circuit court determined Dr. Wener used

a "holistic" method whereby Dr. Wener looked at the patient as a

whole using recognized factors in order to come to a conclusion

about the standard of care required. In support of its decision

to admit Dr. Wener's opinion, the circuit court pointed to "the

vagaries of medical treatment and diagnosis" and emphasized that

Dr. Wener does not represent the junk science Daubert was intended to exclude. Thus, the circuit court ruled that Dr.

7 No. 2014AP195.mjg

Wener's opinion testimony was admissible, and the case proceeded

to trial.

3. Closing Arguments

¶209 At trial, Kenneth M. Levine ("Atty. Levine"), the

Seiferts' counsel, made a series of statements during closing

arguments that Dr. Balink argues require a new trial because the

statements were improper and unfairly prejudiced the verdict.

First, Dr. Balink says Atty. Levine compared Dr. Wener's opinion

about the standard of care required of Dr. Balink as a family

practitioner to the standard of care required of an ordinary

person while driving. Dr. Balink's counsel objected to these

statements as a violation of the "rules of the road prohibition"

put in place by the circuit court in a ruling on a motion in

limine. The circuit court's ruling stated that Atty. Levine

could not compare medical negligence to ordinary negligence.

Second, Atty. Levine asked the jurors on three occasions how

they would like their doctors to care for them, and in so doing,

Dr. Balink argues Atty. Levine violated the "golden rule prohibition." At the time of the first violation, Atty. Levine

withdrew his statement in response to the objection made by Dr.

Balink's counsel; at the time of the second violation, the

circuit court gave a brief curative instruction; and at the time

of the third violation, the circuit court sustained the

objection made by Dr. Balink's counsel. Third, in his rebuttal

argument, Atty. Levine made a statement that he thought more

highly of the jurors than Dr. Balink's counsel and another

8 No. 2014AP195.mjg

statement that he thought the jurors were well equipped to

decide the case and were experts in their own right.

4. Dr. Balink's Motion for a New Trial

¶210 Following the verdict, Dr. Balink moved the circuit

court for a new trial based on three arguments. First, Dr.

Balink argued the circuit court erred when it admitted Dr.

Wener's testimony. Second, the cumulative effects of Atty.

Levine's statements during closing arguments unfairly prejudiced

the verdict. Third, the interests of justice required a new

trial because the issues were not fully tried due to the

erroneous admission of Dr. Wener's testimony and the effect of

Atty. Levine's improper statements during closing arguments.

¶211 At the hearing to address Dr. Balink's motion for a

new trial, the circuit court again determined that Dr. Wener's

opinion was admissible.5 The circuit court noted Dr. Wener's

method was grounded in science and further that his method can

be tested. In regard to the nature of Dr. Wener's testimony,

the circuit court observed, "[I]t is not in the nature of engineering or other more hard sciences. It is not a

mathematical calculation wherein one plus one plus one always

yields three. Sometimes it yields 3.2 and sometimes it yields

2.8." Further, in light of the expert testimony Dr. Balink

introduced at trial, it was more firmly assured of the

5 In total, the circuit court considered the admissibility of Dr. Wener's testimony three times: first at the pretrial hearing, second at trial pursuant to an objection to Dr. Wener's testimony, and third at the hearing on Dr. Balink's motion for a new trial.

9 No. 2014AP195.mjg

admissibility of Dr. Wener's testimony because there were points

on which Dr. Balink's experts agreed with Dr. Wener.

¶212 The circuit court also found that neither Atty.

Levine's statements, nor their cumulative effect, required an

order for a new trial. The circuit court determined that the

first set of statements did not violate the motion in limine,

even though it was close. In reaching its conclusion, the

circuit court noted that the jury was instructed on medical

negligence, not ordinary negligence; therefore, the jury was

unlikely to see the comparison between the two types of

negligence given that the jury had not been instructed on

ordinary negligence. For the second set of statements, the

circuit court found that the sustained objection of Dr. Balink's

counsel and curative instruction given by the court were

sufficient to eliminate any unfair prejudice. Finally, for the

third set of statements, the circuit court found the context——

rebuttal argument——important because Atty. Levine's statements

were made in response to statements made by Dr. Balink's counsel during closing arguments. In addition, the circuit court

determined that Atty. Levine employed an argument technique

meant to empower the jury and give it confidence to decide the

case. Therefore, these statements were not improper. Thus, the

effect of Atty. Levine's statements did not require a new trial.

¶213 The circuit court then denied Dr. Balink's request for

5. Dr. Balink's Appeal

10 No. 2014AP195.mjg

¶214 Dr. Balink appealed, and the court of appeals affirmed

the circuit court determining that it did not err when it denied

Dr. Balink's request for a new trial. Seifert, 364 Wis. 2d 692,

¶3. Relying heavily on the discretion afforded to circuit

courts in the Daubert analysis, the court of appeals determined

the circuit court properly exercised its discretion in admitting

Dr. Wener's opinion. Id., ¶¶23-27, 34. Then, pointing out that

Dr. Balink failed to move for a mistrial before the verdict, the

court of appeals determined that the circuit court did not err

when it denied Dr. Balink's request for a new trial based on the

effect of Atty. Levine's statements during closing arguments.

Id., ¶¶36 n.10, 37. The court of appeals next addressed Dr.

Balink's request for a new trial in the interests of justice

stating that the issues were fully tried and no new trial was

needed. Id., ¶49 n.12.

¶215 Dr. Balink then petitioned this court for review, and

because we have yet to address the adoption of the Daubert

standard in Wisconsin, we granted review to take the opportunity to define the reliability analysis for a standard-of-care expert

in a medical malpractice case.

II. STANDARD OF REVIEW

¶216 Before discussing the standard of review it is

important to note that while Daubert has imposed change in some

areas of the law concerning expert testimony, it has not changed

the standard of review in such cases. Gen. Elec. Co. v. Joiner,

522 U.S. 136, 141-43 (1997). Thus, review of a circuit court's decision to admit or exclude expert testimony follows the same

11 No. 2014AP195.mjg

standards previously used before the legislature adopted the

Daubert standard in 2011.

¶217 This court reviews a circuit court's decision to admit

or exclude expert testimony for an erroneous exercise of

discretion. State v. Kandutsch, 2011 WI 78, ¶23, 336

Wis. 2d 478, 799 N.W.2d 865. "The circuit court has 'broad

discretion to admit or exclude evidence,'" and this court

upholds the circuit court's decision unless it failed to apply

the proper legal standard or the record lacks reasonable support

for its decision. Id. (quoting State v. Nelis, 2007 WI 58, ¶26,

300 Wis. 2d 415, 733 N.W.2d 619; Martindale v. Ripp, 2001 WI

113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698).

¶218 In order to determine whether the circuit court

erroneously exercised its discretion, this court must first

interpret the Daubert standard as adopted by the legislature in

Wis. Stat. § 907.02(1) and determine if the circuit court used

the proper legal standard when it analyzed Dr. Wener's

testimony. Statutory interpretation is a question of law this court reviews de novo. State v. Hemp, 2014 WI 129, ¶12, 359

Wis. 2d 320, 856 N.W.2d 811. Should this court interpret

§ 907.02(1) and conclude that the circuit court used the proper

legal standard, "the [circuit] court's choice of relevant

factors within [the Daubert] framework and its ultimate

conclusion as to admissibility" is reviewed for an erroneous

exercise of discretion. Lees v. Carthage Coll., 714 F.3d 516,

520 (7th Cir. 2013).

12 No. 2014AP195.mjg

¶219 As with evidentiary rulings, this court reviews a

circuit court's ruling on a motion for a new trial for an

erroneous exercise of discretion. Wagner v. Am. Family Mut.

Ins., 65 Wis. 2d 243, 249-50, 222 N.W.2d 652 (1974).

III. DISCUSSION

¶220 First, I consider the admissibility of Dr. Wener's

opinion and conclude that the circuit court properly exercised

its discretion when it admitted Dr. Wener's opinion. In so

concluding, I further conclude the circuit court properly

exercised its discretion in denying Dr. Balink's request for a

new trial. Second, I consider the effect of Atty. Levine's

statements during closing arguments and conclude the circuit

court properly exercised its discretion when it found the effect

of the statements did not require a new trial. As noted above,

I do not reach Dr. Balink's argument for a new trial in the

interests of justice because the circuit court properly admitted

Dr. Wener's testimony and Atty. Levine's statements do not

require a new trial. Thus, the issues were fully tried, and there is no reason to grant a new trial in the interests of

justice under Wis. Stat. § 751.06.

A. The Admissibility of Dr. Wener's Testimony

1. The Governing Statute

¶221 The admissibility of expert testimony is governed by

Wis. Stat. § 907.02(1):

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify

13 No. 2014AP195.mjg

thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. (Emphasis added). This last part of the statute, emphasized

above, was added by the legislature in 2011, see 2011 Wis. Act

2, § 34m, and it is this addition that I address today.

¶222 In addressing the addition to § 907.02(1), I first

look at the standard previously followed in Wisconsin and then

look to federal law for guidance on how Federal Rule 702 ("Rule

702") and Daubert have been interpreted and applied in the

federal courts. Next, I evaluate Dr. Wener's testimony and the

circuit court's analysis of his testimony in order to determine

whether the circuit court erred in determining that Dr. Wener's

principles and methods meet the reliability standards set forth.

After concluding that Dr. Wener's principles and methods are

reliable, I then evaluate if his principles and methods were

reliably applied.

2. The Relevancy Standard and Wisconsin's Adoption of the

Daubert Standard

¶223 Traditionally, Wisconsin followed the relevancy

standard as articulated in State v. Walstad, 119 Wis. 2d 483,

515-16, 351 N.W.2d 469 (1984), to determine the admissibility of

expert testimony. Under this standard, the expert needed only

to be qualified, helpful, and relevant in order to be permitted

to testify. Id. at 516. Reliability was considered a

credibility determination left for the jury. State v. Fischer, 2010 WI 6, ¶2, 322 Wis. 2d 265, 778 N.W.2d 629. When confronted

14 No. 2014AP195.mjg

with the opportunity to replace the relevancy standard with the

Daubert standard followed in federal courts, this court

confirmed adherence to the relevancy standard. E.g., Fischer,

322 Wis. 2d 265, ¶7. Not until the legislature amended the

statute governing expert testimony in 2011 to add the language

emphasized above did Wisconsin adopt the Daubert standard

followed in federal courts. See 2011 Wis. Act 2, § 34m. Thus,

because our statute governing the admissibility of expert

testimony now mirrors Rule 702, compare Wis. Stat. § 907.02(1),

with Fed. R. Evid. 702, we may look to federal law interpreting

the Daubert standard for guidance concerning how we should apply

the standard in Wisconsin, State v. Gudenschwager, 191

Wis. 2d 431, 439, 529 N.W.2d 225 (1995).

3. Federal Rule of Evidence 702 and the Daubert Standard

¶224 Rule 702 contains five inquiries for a district court

to make before admitting expert testimony. Fed. R. Evid. 702.

All of these inquiries must be met by a preponderance of the

evidence. Id. advisory committee notes (2000 amend.). First, the witness must be qualified. Lees, 714 F.3d at 521.

Essentially this means that the witness must possess specialized

knowledge, which is something Wisconsin has required for expert

testimony before the legislature amended Wis. Stat. § 907.02(1).

Second, the witness's testimony must be helpful, meaning it must

assist the trier of fact. Lees, 714 F.3d at 521. This element

closely relates to the relevance requirement previously followed

in Wisconsin. Third, the witness's testimony must be based on sufficient facts and data. Id. Fourth, the witness must have

15 No. 2014AP195.mjg

reliable principles and methods, and fifth, those principles and

methods must be reliably applied to the facts of the case. Id.

at 521-22. I address the fourth and fifth elements today

because these elements are new to Wisconsin law with the

legislature's adoption of the Daubert standard and are the

elements at issue in this case.

4. The Reliability Analysis

¶225 In order to assist with the reliability analysis

required by the fourth and fifth elements (reliable principles

and methods reliably applied to the facts of the case), the

United States Supreme Court in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993), articulated

four non-exhaustive factors courts could use to analyze the

reliability of expert testimony: (1) whether the method has

been or will be tested; (2) whether the method "has been

subjected to peer review and publication"; (3) "the known or

potential rate of error"; and (4) whether the method has been

generally accepted. In articulating these factors, the Court emphasized the factors are flexible and do not represent all the

factors a court could possibly consider. Id. at 594. In fact,

a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999).

"[T]here are many different kinds of experts and many different

kinds of expertise, including experts in drug terminology,

handwriting analysis, land valuation, agricultural practices,

railroad procedures, and so forth." United States v. Brumley,

217 F.3d 905, 911 (7th Cir. 2000). Therefore, the reliability

analysis must be flexible enough to allow the circuit court to

assess the type of expert being evaluated.

¶226 As a result of the different kinds of experts, courts

developed additional factors——many of which are listed in the

Advisory Committee Notes of Rule 702——for analyzing the

reliability of an expert's opinion as the situation required.

In some of these situations, particularly those involving

specialized knowledge, courts used an expert's experience to

determine reliability. See Kumho Tire, 526 U.S. at 150. Rule

702 expressly allows for the use of an expert's experience, and

the Advisory Committee Notes say:

Nothing in this amendment is intended to suggest that experience alone——or experience in conjunction with other knowledge, skill, training or education——may not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. Fed. R. Evid. 702 advisory committee notes (2000 amend.)

(emphasis added). In fact, "[i]n certain fields, experience is

the predominant, if not sole, basis for a great deal of reliable

expert testimony." Id. Therefore, when assessing reliability,

a circuit court should have flexibility to use different reliability factors, including the expert's experience, to 17 No. 2014AP195.mjg

analyze whether the expert's opinion is reliable. As the Court

pointed out in Kumho Tire,

[e]xperts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called "general truths derived from . . . specialized experience." And whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert's testimony often will rest "upon an experience confessedly foreign in kind to [the jury's] own." 526 U.S. at 148-49 (alteration in original) (emphasis added)

(citation omitted) (quoting Learned Hand, Historical and

Practical Considerations Regarding Expert Testimony, 15 Harv. L.

Rev. 40, 54 (1901)).

¶227 In general, when assessing reliability, a circuit

court is looking for "good grounds" for the expert's opinion to

show that it is "more than subjective belief or unsupported

speculation" and demonstrates "a reliable basis in the knowledge

and experience of his discipline." Daubert, 509 U.S. at 590,

592. Therefore, whatever factors a court uses to assess an expert's reliability, the factors, and the court's analysis,

must ensure the expert has good grounds for his or her opinion.

In addition, "[t]he focus, of course, must be solely on

principles and methodology, not on the conclusions that they

generate." Id. at 595. Thus, if a circuit court finds that an

expert has good grounds for his opinion, it is for the jury to

decide between competing conclusions.

5. The Reliability Analysis in the Medical Standard-of-Care Context

18 No. 2014AP195.mjg

¶228 When assessing a medical standard-of-care expert,

other jurisdictions have found good grounds for the expert's

opinion when the expert had experience that demonstrated

familiarity with the type of medicine at issue and the standard

of care for that type of medicine. For example, the Third

Circuit concluded a doctor's testimony was based on good grounds

and the district court abused its discretion in excluding the

doctor's standard-of-care testimony because the doctor no longer

practiced as an interventional cardiologist and now practiced as

an invasive cardiologist. Schneider ex rel. Estate of Schneider

v. Fried, 320 F.3d 396, 399-400 (3d Cir. 2003). As an invasive

cardiologist, the doctor still interacted with, and even

advised, interventional cardiologists, which, along with his

past experience as an invasive cardiologist, was sufficient to

satisfy Daubert. Id. at 406-07. Therefore, the Third Circuit

concluded the expert was sufficiently familiar with the type of

medicine involved in the case such that he could reliably

testify to the standard of care. ¶229 The Sixth Circuit reached a similar conclusion in

Dickenson v. Cardiac & Thoracic Surgery of Eastern Tennessee,

P.C., 388 F.3d 976, 978-82 (6th Cir. 2004), when it concluded

the district court abused its discretion in excluding a cardio-

thoracic surgeon's testimony regarding the standard of care

required for a pulmonologist. There, the court concluded the

district court abused its discretion by not allowing the doctor

to testify as to the standard of care based on the doctor's

19 No. 2014AP195.mjg

extensive experience and familiarity with the pulmonology issue

involved in the case. Id. at 980-82.

¶230 As Hippocrates, the father of medicine, noted in his

writing On the Art of Medicine, clinical medicine is an art that

requires good judgment developed over time and through

experience. Put another way, "medicine is scientific, but not

entirely a science." Primiano v. Cook, 598 F.3d 558, 565 (9th

Cir. 2010). As the Sixth Circuit noted,

Daubert's role of "ensur[ing] that the courtroom door remains closed to junk science," is not served by excluding testimony such as [the doctor's] that is supported by extensive relevant experience. Such exclusion is rarely justified in cases involving medical experts as opposed to supposed experts in the area of product liability. Dickenson, 388 F.3d at 982 (alteration in original) (citation

omitted) (quoting Amorgianos v. Nat'l R.R. Passenger Corp., 303

F.3d 256, 267 (2d Cir. 2002)).

6. Determining the Reliability of Dr. Wener's Principles and

Methods

¶231 With the foregoing in mind, we now turn to the question of whether Dr. Wener's principles and methods are

reliable such that he can testify about the standard of care

applicable to Dr. Balink.

i. Identifying Dr. Wener's Principles and Methods

¶232 In order to answer the question before us, namely

whether Dr. Wener's testimony is admissible under Daubert, the

first step is to identify the principles and methods Dr. Wener

employed. The circuit court found Dr. Wener used a "holistic," or comprehensive, method of determining the standard of care 20 No. 2014AP195.mjg

applicable to Ms. Seifert. Essentially, this comprehensive

method amounts to an expert physician examining the patient as a

whole, determining what, if any, of the risk factors recognized

by the medical community are present within the patient, and

then using that expert physician's experience to interpret the

risk factors and arrive at the standard of care required. It

is, as it must be, a case-by-case method to determine what type

of care is appropriate for a particular patient.

¶233 Here, Dr. Wener identified the following risk factors

recognized by the medical community: (1) Ms. Seifert's

prepregnancy weight of 269 pounds; (2) Ms. Seifert's 36-pound

weight gain over the course of her pregnancy; (3) the 131 mg/dL

result from the one-hour glucose tolerance test; and (4)

Braylon's estimated fetal weight. As his method, Dr. Wener used

his experience to determine that these factors indicated that

Ms. Seifert's baby was at an increased risk for shoulder

dystocia and that Dr. Balink fell below the standard of care

because she did not account for this increased risk. ii. Assessing Reliability

¶234 Now that we have identified Dr. Wener's principles and

methods, we must determine if they are reliable and reliably

applied. In this case, I conclude that the circuit court did

not err when it found Dr. Wener's principles and methods are

sufficiently reliable and reliably applied. Dr. Wener showed

how his experience made his methodology reliable and

demonstrated, through his experience, an understanding of the applicable standard of care in a way that he can reliably opine

21 No. 2014AP195.mjg

about the standard of care required. Dr. Wener testified that

he delivered 7,500 to 8,000 babies, encountered shoulder

dystocia, and even brachial plexus injuries, which shows that

Dr. Wener is experienced with the type of medical practice at

issue in this case. This experience in turn makes his

comprehensive methodology reliable because Dr. Wener has used

his factors and his methods in treating his own patients. Dr.

Wener also testified that he has experience as Chairman of the

Department of Obstetrics and Gynecology at Saint Alexius Medical

Center. Part of his responsibilities as Chairman required

reviewing the work of other doctors and setting the quality of

care for the hospital. In addition, Dr. Wener testified that he

taught medical students at the University of California San

Diego, and he was named "One of Chicago's Top Doctors" by his

peers. This testimony demonstrates an understanding of the

applicable standard of care by showing Dr. Wener is familiar

with the medical community and more than just his own practice.

When tailoring the reliability analysis to a medical standard- of-care expert, good grounds may come from the expert's own

experience provided that experience has made him or her familiar

with the type of medicine at issue. Dr. Wener shows that here,

and therefore the circuit court did not err when it found his

testimony reliable.

¶235 Further, the circuit court undertook a thoughtful

analysis of the admissibility of Dr. Wener's testimony that

shows it considered the reliability factors in order to determine good grounds for Dr. Wener's opinion. It noted that

22 No. 2014AP195.mjg

Dr. Wener is not the kind of junk scientist Daubert sought to

exclude and Dr. Wener's decision not to use medical literature

was acceptable because the individualized nature of a

determination made when caring for a particular patient is not

something that can be published or peer reviewed. Also, the

circuit court correctly found that Dr. Wener's method had an

aspect of testability to it because the factors he relied on

were, indeed, capable of being tested. Although it prudently

and accurately observed that the nature of the case was "not in

the nature of engineering or other more hard sciences," the

circuit court properly admitted Dr. Wener's opinion based on Dr.

Wener's experience.

¶236 Indeed, I emphasize that the circuit court does have

and must have discretion to apply the Daubert analysis so as to

fit the facts of each particular case, as the circuit court did

here. See Kumho Tire, 526 U.S. at 150 ("Our emphasis on the

word 'may' thus reflects Daubert's description of the Rule 702

inquiry as 'a flexible one.' Daubert makes clear that the factors it mentions do not constitute a 'definitive checklist or

test.' And Daubert adds that the gatekeeping inquiry must be

'tied to the facts' of a particular 'case.'" (citations omitted)

(quoting Daubert, 509 U.S. at 591, 593-94)). However, this

discretion does not allow the circuit court to abdicate its role

as gatekeeper in performing the reliability analysis. Id. at

158-59 (Scalia, J., concurring) ("[T]he discretion [the Court]

endorses——trial-court discretion in choosing the manner of testing expert reliability——is not discretion to abandon the

23 No. 2014AP195.mjg

gatekeeping function. . . . Rather, it is discretion to choose

among reasonable means of excluding expertise that is fausse and

science that is junky.").

¶237 As is evident by the circuit court's discussion of the

Daubert factors, it did not abdicate its role as gatekeeper when

admitting Dr. Wener's testimony; instead, the analysis indicates

the circuit court thoughtfully and carefully considered the

Daubert factors before turning to other considerations. The

circuit court used its discretion to tailor its analysis to the

type of expert we have here, namely a medical standard-of-care

expert, and it looked to Dr. Wener's experience in order to

determine reliability. In so doing, it noted that Dr. Wener

used factors recognized by the medical community that he then

"added up" based on his own experience with delivering babies,

dealing with shoulder dystocia, and setting the quality of care

at his hospital to reach a conclusion as to the standard of care

required here. This, the circuit court said, made Dr. Wener's

opinion reliable, and I see no error in this conclusion. 7. Dr. Balink's Arguments

¶238 Dr. Balink makes two main arguments as to the

unreliability of Dr. Wener's opinion. First, she argues that

Dr. Wener's testimony is based on nothing but his personal

preferences, and second, she argues that Dr. Wener's failure to

ground his testimony in any published medical literature makes

his testimony unreliable. I address each argument in turn.

i. Dr. Wener's Opinion Is More than Personal Preference

24 No. 2014AP195.mjg

¶239 First, Dr. Balink argues Dr. Wener has nothing but his

personal preferences to support his conclusion as to the

standard of care and Dr. Balink's breach of that standard of

care. Thus, his opinion is unreliable because it reflects only

what Dr. Wener would do and not what the reasonable family

practitioner practicing obstetrics in 2009 would do. While it

may be true that Dr. Wener practices medicine in the manner he

set forth as the applicable standard of care, that fact,

standing alone, does not transform his opinion into a statement

of personal preference. Dr. Wener assisted in setting the

quality of care required at Saint Alexius Medical Center while

he served there as Chairman of the Department of Obstetrics and

Gynecology. Furthermore, Dr. Wener taught medical students and

was named "One of Chicago's Top Doctors" by his peers. At least

one other court has reached a similar conclusion when presented

with the question of how to determine if a medical standard-of-

care expert's testimony is reliable based on his experience. In

Ellison v. United States, 753 F. Supp. 2d 468, 480-81 (E.D. Pa. 2010), the court dismissed the United States' argument that the

standard-of-care expert based his opinion on his personal

preferences because, "[t]aken as a whole, Dr. Super's testimony

is that he has formulated an opinion as to the general——as

opposed to simply his own, personal——standard of care and that,

based on his experience, he had a reliable basis for doing so."

ii. There Is No Medical Literature Requirement

¶240 Second, Dr. Balink argues that Dr. Wener's failure to rely on published medical literature makes his opinion

25 No. 2014AP195.mjg

unreliable. However, as the Third Circuit noted when it

addressed medical literature in the context of differential

diagnosis,

[i]n the actual practice of medicine, physicians do not wait for conclusive, or even published and peer- reviewed, studies to make diagnoses to a reasonable degree of medical certainty. Such studies of course help them to make various diagnoses or to rule out prior diagnoses that the studies call into question. However, experience with hundreds of patients, discussions with peers, attendance at conferences and seminars, detailed review of a patient's family, personal, and medical histories, and thorough physical examinations are the tools of the trade, and should suffice for the making of a differential diagnosis even in those cases in which peer-reviewed studies do not exist to confirm the diagnosis of the physician. Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999);

see also Dickenson, 388 F.3d at 980 (calling the district

court's imposition of a medical literature requirement for a

medical expert "an erroneous statement of the law"); Schneider,

320 F.3d at 406 ("Where there are other factors that demonstrate

the reliability of the expert's methodology, an expert opinion

should not be excluded simply because there is no literature on

point."); Kudabeck v. Kroger Co., 338 F.3d 856, 862 (8th Cir. 2003) ("[P]ublication is not a prerequisite for

admissibility."). The Court itself noted in Daubert that

"[p]ublication . . . is not a sine qua non of admissibility."

Daubert, 509 U.S. at 593. Thus, there simply is no medical

literature requirement of the kind Dr. Balink suggests, and an

expert's decision not to rely on literature does not render his

opinion unreliable provided the expert has something else, like his experience, to make his opinion reliable. Thus, because

26 No. 2014AP195.mjg

there is no requirement that an expert physician's testimony be

based in whole or in part on medical literature and Dr. Wener

showed how his experience makes his opinion reliable, the

circuit court did not err when it admitted Dr. Wener's

¶241 It is true that Dr. Balink produced medical literature

in this case that seemingly contradicted Dr. Wener's opinion,

particularly regarding the threshold to use for the one-hour

glucose tolerance test; however, Dr. Wener was able to meet that

literature and provide an explanation for why, based on his

experience, he did not agree with it. Thus, the presence of

this literature does not render Dr. Wener's testimony unreliable

as a matter of law, as Dr. Balink argues. Such a conflict of

evidence boils down to an issue of credibility, requiring

determination by the trier of fact. "Daubert makes the

[circuit] court a gatekeeper, not a fact finder." United States

v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006).

8. Determining the Reliable Application of Dr. Wener's Principles and Methods

¶242 Last in the Daubert analysis, I determine that Dr.

Wener reliably applied his comprehensive method to the facts of

this case.

¶243 Under the Daubert analysis, we are to look for

reliable principles and methods and a conclusion that logically

follows from those reliable principles and methods. See Joiner,

522 U.S. at 144-46. If the expert's conclusion logically follows from reliable principles and methods, any

27 No. 2014AP195.mjg

inconsistencies,6 or flaws, go to the weight, or credibility, of

the expert's testimony as opposed to its admissibility. See

Lees, 714 F.3d at 525.

¶244 Such is the case here. As detailed above, Dr. Wener

had a reliable method of determining the standard of care

applicable to this case because of his experience. His

conclusion that Dr. Balink breached that standard of care

logically follows from that method. Thus, the inconsistencies

Dr. Balink points to in her brief as examples of an unreliable

application go to the weight to be given to Dr. Wener's

testimony and not to the question of its admissibility. When

assessing expert testimony, we are looking for good grounds, not

flawless grounds. "Vigorous cross-examination, presentation of

proof are the traditional and appropriate means of attacking

shaky but admissible evidence." Daubert, 509 U.S. at 596.

¶245 "[W]hen an expert purports to apply principles and

methods in accordance with professional standards, and yet reaches a conclusion that other experts in the field would not

reach, the [circuit] court may fairly suspect that the

principles and methods have not been faithfully applied." Fed.

6 Dr. Balink complains of inconsistencies in Dr. Wener's testimony. As one example, Dr. Balink points to Dr. Wener's testimony that he would not use a vacuum for a baby with an estimated fetal weight greater than 4,500 grams by ultrasound and that babies with an estimated fetal weight of greater than 4,500 grams are associated with an increased risk of shoulder dystocia. Dr. Balink argues that Dr. Wener's testimony is inconsistent for the facts of this case because Braylon's actual birth weight was only 4,370 grams.

28 No. 2014AP195.mjg

R. Evid. 702 advisory committee notes (2000 amend.). This is

not the case here, and Dr. Wener's testimony may not be excluded

because, as the circuit court noted in the postverdict motion

hearing, Dr. Balink's experts agreed with Dr. Wener in some

respects. Thus, the circuit court did not have reason to

exclude Dr. Wener's testimony because the record discloses no

reason to suspect that Dr. Wener's application of his principles

and methods to the facts of this case was unreliable.

¶246 In some cases the expert's conclusion bears on the

reliability analysis because "conclusions and methodology are

not entirely distinct from one another." Joiner, 522 U.S. at

146. For example, "[a] court may conclude that there is simply

too great an analytical gap between the data and the opinion

proffered." Id. However, provided the conclusions of the

respective expert physicians logically follow from their methods

and there is no analytical gap between the two, a court is not

to choose between the differing conclusions of two experts; such

a determination is left for the jury. See id. But this is not the case with Dr. Wener's testimony despite the fact that Dr.

Balink presented contradictory medical literature and comes to a

different conclusion. Thus, Dr. Wener's conclusion does not

render his testimony inadmissible because it differs from Dr.

Balink's conclusion.

¶247 In sum, I conclude that Dr. Wener's opinion is

admissible. His comprehensive method is reliable and reliably

applied. This is a result of his extensive experience that supports his opinion, and the circuit court did not err when it

29 No. 2014AP195.mjg

found Dr. Wener's testimony admissible. Thus, Dr. Balink's

request for a new trial based on the erroneous admission of Dr.

Wener's testimony was properly denied.

B. Counsel's Statements During Closing Arguments

¶248 Dr. Balink next argues that the circuit court

erroneously denied her motion for a new trial because the effect

of Atty. Levine's improper statements during closing arguments

unfairly prejudiced the verdict.

¶249 Before addressing this argument, I first note that I

conclude that Dr. Balink waived this argument by failing to move

for a mistrial. See Wagner, 65 Wis. 2d at 249. However, like

the court of appeals, I choose to address this argument under

the court's discretionary jurisdiction.

¶250 A motion for a new trial based on unfairly prejudicial

statements by counsel "is addressed to the discretion of the

trial court." Id. at 249-50; see also Rodriguez v. Slattery, 54

Wis. 2d 165, 170-71, 194 N.W.2d 817 (1972) ("The trial court is

in a particularly good 'on-the-spot' position to evaluate these factors."). Thus, we are bound to uphold the circuit court's

decision unless the circuit court erroneously exercised its

discretion. See Klein v. State Farm Mut. Auto. Ins., 19

Wis. 2d 507, 511, 120 N.W.2d 885 (1963).

¶251 Here, the circuit court gave an account of its

reasoning. I see no reason to say the circuit court erroneously

exercised its discretion by denying Dr. Balink's motion for a

new trial. IV. CONCLUSION

30 No. 2014AP195.mjg

¶252 In this instance, I conclude that experience is

sufficient to satisfy Daubert's reliability requirement provided

the expert shows how his experience makes his opinion reliable.

No medical literature is required provided this is done. Thus,

Dr. Wener's opinion is admissible in this case because he showed

how his experience made his opinion reliable, and the circuit

court did not err when it admitted his testimony at trial.

Consequently, the circuit court did not err when it denied Dr.

Balink's motion for a new trial based on her argument that the

circuit court erroneously admitted Dr. Wener's testimony.

¶253 Further, I conclude the circuit court did not err when

it denied Dr. Balink's request for a new trial based on the

¶254 I do not reach Dr. Balink's request for a new trial in

the interests of justice as Dr. Balink bases the request on the

inadmissibility of Dr. Wener's testimony and the effect of

counsel's statements during closing arguments. I consider it

unnecessary to reach her request because I conclude that the circuit court properly admitted Dr. Wener's testimony and the

verdict was not unfairly prejudiced by opposing counsel's

statements.

¶255 Accordingly, I would affirm the decision of the court

of appeals, and I concur in the court's judgment. I write

separately, however, to express how I reach this result.

¶256 For the foregoing reasons I concur.

¶257 I am authorized to state that Chief Justice PATIENCE DRAKE ROGGENSACK joins this concurrence.

31 No. 2014AP195.dk

¶258 DANIEL KELLY, J. (dissenting). I dissent,

respectfully, because we missed an opportunity to clarify the

standards for admission of expert testimony. This lack of

clarity caused us to affirm the admission of testimony that does

not satisfy the requirements of Wis. Stat. § 907.02 (2013–14).1

¶259 I agree with the lead opinion that an expert's

personal experience can qualify him as an expert under Wis.

Stat. § 907.02, making his testimony sufficiently "reliable" for

admission to the jury. But that just begs the question: In

light of that personal experience, to what is the admitted

expert qualified to testify? Here, Dr. Wener's task was to

identify and describe the standard of medical care against which

to measure Dr. Balink's performance of her duties. His

testimony failed to satisfy Wis. Stat. § 907.02 because there

was no apparent match between this objective and his

qualification as an undeniably accomplished

obstetrician/gynecologist. 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. That is, instead of determining whether Dr. Wener was

qualified to discover and describe the proper standard of

medical care, we found that he is the standard of medical care.

¶260 The primary question this case presents is whether the

plaintiffs identified a proper standard of medical care against

1 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.

1 No. 2014AP195.dk

which a jury could measure Dr. Balink's performance in the

delivery of Braylon Seifert.2 Even though this case progressed

through a jury trial, an appeal, and review by this court, I

find that I still do not know what that standard might be, or

whether Dr. Wener was qualified to describe it.

¶261 Here is what we do know. We know young Seifert

suffered a grievous injury at birth. We know the injury was

caused by the manner in which he was delivered. We know he

could have been delivered differently. We know that Dr. Wener

says that if young Seifert had been delivered according to the

practices and procedures he described, the injury very likely

would not have occurred. And I believe he is right.

¶262 What I do not know is whether young Seifert's delivery

was done negligently. The reason I do not know this is because

no one described what care we should expect from the reasonably

qualified family practitioner in the circumstances revealed by

this case. That is, the jury never received a proper measuring

stick against which to compare Dr. Balink's performance of her obligations.

2 Dr. Balink phrased the issue as whether "an expert witness' qualifications and personal preferences [are] alone sufficient to meet Wis. Stat. § 907.02(1)'s new reliability standard?" Although this framing conflates the statute's subjective and objective criteria (as I discuss below), and so obscures the gravamen of her concern, there is no doubt her central complaint is that the plaintiffs' expert witness did not identify a proper standard of medical care.

2 No. 2014AP195.dk

¶263 As we sketch out the contours of Wis. Stat. § 907.02,3

I think we should use a sharper pencil. 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. Because we did not make that

distinction, it almost necessarily followed that our

"qualification" inquiry focused on the wrong question.

¶264 The Seiferts tasked Dr. Wener with demonstrating that

Dr. Balink delivered young Seifert negligently. That task

comprises two separate responsibilities. First, Dr. Wener

needed to identify the proper standard of medical care under the

circumstances of this case. Francois v. Mokrohisky, 67

Wis. 2d 196, 200–01, 226 N.W.2d 470 (1975). And second, he had

to opine on whether Dr. Balink's performance fell short of that

standard. Christianson v. Downs, 90 Wis. 2d 332, 338, 279

N.W.2d 918 (1979) ("Unless the situation is one where the common

knowledge of laymen affords a basis for finding negligence,

expert medical testimony is required to establish the degree of care and skill required of a physician."). Competence in one of

these subjects does not automatically conclude competence in the

other. The proper standard of medical care and the failure to

meet that standard are distinct subjects and should receive

3 The standard described in this statute was first enunciated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and later formalized as Federal Rule of Evidence 702 (as amended in 2000). Because § 907.02(1)'s wording mirrors that of the Federal Rule, and other states have followed suit, I will follow the lead opinion's example in consulting relevant cases from other jurisdictions.

3 No. 2014AP195.dk

distinct treatment. This means the proffered expert must

satisfy the court he has the necessary qualifications to speak

on each one.

¶265 We did not, however, require this of Dr. Wener. That

is, we allowed the Seiferts to graft Dr. Wener's competence to

testify with respect to the second inquiry (performance in

relation to the standard) onto the first (identification of the

standard). Perhaps he can authoritatively speak on both

subjects, but we do not know because no one asked. And he was

not asked because there was insufficient appreciation of the

need to conceptually separate the two inquiries. Here is what I

mean.

¶266 I assume Dr. Wener is a very talented obstetrician.

Indeed, for the sake of illustration, I will assume he is the

gold standard when it comes to delivering babies under the

circumstances this case presents. To what, then, shall we have

him testify? Shall we learn from him the optimal means of delivering babies in those circumstances? Or should he teach us

how the reasonably qualified family practitioner delivers babies

in such circumstances? There are potentially leagues of

difference between the answers to these questions. If we select

the first, we will hear about the best possible practices that

could have been followed in young Seifert's delivery. If we

select the second, however, we will hear what we may

legitimately expect from any given family practitioner. Put another way, the first option informs us of the care we all

4 No. 2014AP195.dk

want, while the second describes the standard of medical care to

which we may hold all family practitioners accountable.

¶267 Qualifying under the first option is pretty

straightforward. Having established himself as the gold

standard, it necessarily follows that Dr. Wener may

authoritatively opine on how he would deliver a baby when

confronted with patients like the Seiferts. Thus would he

establish the standard of medical care for the case, a reference

point we might usefully call the "What Would Wener Do" standard

("WWWD"). This is a narrowly vertical inquiry——we explore the

depth, and precision, of his knowledge, experience, and practice

in relation to the circumstances at hand.

¶268 As I will explain at greater length below, qualifying

under the second option calls for something different. It is a

broadly horizontal inquiry. It requires that the testifying

doctor have more than just knowledge of the best method of

delivering a baby in such circumstances. In light of the

natural variability inherent in the practice of medicine, it requires that he be familiar with what is generally expected of

reasonably qualified practitioners under similar circumstances.4

He must have a source of knowledge that informs him of what

other doctors do under similar circumstances, or describes what

4 Francois v. Mokrohisky, 67 Wis. 2d 196, 201–02, 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.").

5 No. 2014AP195.dk

they ought to do, or what they must do. His knowledge of such

things must be extensive enough that he can distill from it

certain practices and procedures of sufficiently widespread

implementation that one may conclude that they represent a

standard known to reasonably qualified doctors in the relevant

field of practice.

¶269 If he cannot do this, and yet he testifies, then we

allow him to collapse the medical field into himself, and we

appoint him the reference point against which we measure all

doctors who deliver babies. For the following reasons, I

believe this is untenable, and it is not what Wis. Stat.

§ 907.02 either requires or authorizes.

¶270 I will begin by describing the nature of the standard

applicable to this case. That is, I will explain why I believe

it is essential that the standard be external to the testifying

expert. Afterwards, I will address Dr. Wener's qualification to

testify regarding that standard. ¶271 The Seiferts bore the burden of establishing the

standard of medical care to which they wished to hold Dr. Balink

accountable. Carney-Hayes v. Nw. Wis. Home Care, Inc., 2005 WI

118, ¶37, 284 Wis. 2d 56, 699 N.W.2d 524. Generally speaking,

expert testimony is necessary to meet that burden: "Unless the

situation is one where the common knowledge of laymen affords a

basis for finding negligence, expert medical testimony is

required to establish the degree of care and skill required of a physician." Christianson, 90 Wis. 2d at 338. Negligence, in

6 No. 2014AP195.dk

this case, turns (at least in part) on recognizing circumstances

that call for a three-hour glucose diagnostic test (rather than

a one-hour screening test), when it is necessary to perform an

ultrasound examination of the baby immediately before delivery,

and when a vacuum assistance device may or may not be used to

assist the baby in making his exit from the birth canal. These

are not subjects on which laypeople would commonly find

themselves knowledgeable.

¶272 The expert's first task, therefore, is to identify the

relevant standard of medical care, which must "be established by

a determination of what it is reasonable to expect of a

professional given the state of medical knowledge at the time of

the treatment in issue." Nowatske v. Osterloh, 198 Wis. 2d 419,

438-39, 543 N.W.2d 265 (1996), abrogated on other grounds by

Nommensen v. Am. Cont. Ins. Co., 2001 WI 112, 246 Wis. 2d 132,

629 N.W.2d 301. This means one may not establish a standard

with reference to what one doctor, or a non-representative

sampling of doctors, would do under the circumstances. A "standard" is not the same thing as the existence of alternative

procedures or more accomplished practitioners.

¶273 A standard is, instead, normative. It is a reference

point external to the testifying doctor, something commonly

accessible by those practicing in the relevant field:

True, there was evidence that other physicians might have acted differently and that there were alternate procedures available, but no physician testified that what was done did not comport with approved medical practice under the circumstances. As we said in Trogun v. Fruchtman, 58 Wis. 2d 569, 584, 207 N.W.2d 297 (1973): 7 No. 2014AP195.dk

'(A) plaintiff must prove the defendant failed to give him, not the highest degree of care, but merely the reasonable care and skill usually possessed by physicians of the same school . . . .' Francois, 67 Wis. 2d at 201 (emphasis added). A physician

answers to this normalized reference point, not to the WWWD

standard of medical care: "He is obliged to conform to the

accepted standard of reasonable care, but he is not liable for

failing to exercise an extraordinary degree of care." Id.

(emphasis added).

¶274 Other courts reject self-referential standards of

medical care, too. Massachusetts says that "[b]ecause the

standard of care is based on the care that the average qualified

physician would provide in similar circumstances, the actions

that a particular physician, no matter how skilled, would have

taken are not determinative." Palandjian v. Foster, 842

N.E.2d 916, 920-21 (Mass. 2006). The Michigan Supreme Court

recently addressed this issue in Elher v. Misra, 878 N.W.2d 790

(Mich. 2016) (per curiam). It rejected the proffered expert's

testimony because "his opinion was based on his own beliefs,

there was no evidence that his opinion was generally accepted

within the relevant expert community, there was no peer-reviewed

medical literature supporting his opinion, plaintiff failed to

provide any other support for [the expert's] opinion, and

defendants submitted contradictory peer-reviewed literature."

Id. at 798 (emphasis added). California has long recognized

that "the fact that another physician or surgeon might have elected to treat the case differently or use methods other than

8 No. 2014AP195.dk

those employed by defendant does not of itself establish

negligence." Lawless v. Calaway, 147 P.2d 604, 607 (Cal. 1944).

The District of Columbia says that "[t]he personal opinion of

the testifying expert as to what he or she would do in a

particular case, without reference to a standard of care, is

insufficient to prove the applicable standard of care." Travers

v. District of Columbia, 672 A.2d 566, 568 (D.C. 1996). South

Carolina's court of appeals has similarly stated that if an

expert "merely testifies as to his own personal standard of

care, rather than the generally recognized and accepted standard

of care, such testimony is insufficient to survive summary

judgment." Melton v. Medtronic, Inc., 698 S.E.2d 886, 893 (S.C.

Ct. App. 2010). In Wallbank v. Rothenberg, 74 P.3d 413, 416

(Colo. Ct. App. 2003), the Colorado Court of Appeals said that

"a standard of care may not be established by the testimony of

the personal practices of expert witnesses." Georgia also

follows this rule: A party "may not establish the applicable

standard of care with evidence of an expert witness's personal practices, or evidence about the course of conduct the expert

would have followed under similar circumstances." Dendy v.

Wells, 718 S.E.2d 140, 144 (Ga. Ct. App. 2011). Arizona's court

of appeals recognizes that testimony regarding a physician's

personal practices can be useful to the jury, but only after the

standard of care is established. See Smethers v. Campion, 108

P.3d 946 (Ariz. Ct. App. 2005).5

5 Treatises reflect the same principles. See, e.g., 29 Charles Alan Wright & Victor Gold, Federal Practice & Procedure: (continued) 9 No. 2014AP195.dk

¶275 Nor may physicians smuggle their own practices or

preferences past the Daubert gatekeeper by box-checking expected

phrases. Missouri's court of appeals provided the only logical

response to such an effort. It reasoned that "[i]n articulating

the appropriate legal standard of care, it is insufficient for

an expert merely to use the terms 'accepted medical standards'

or 'standards of care.'" Sheffler v. Arana, 950 S.W.2d 259, 267

(Mo. Ct. App. 1997). Instead, the court said "an expert should

be properly oriented with the meaning of negligence in a health

care provider context and, in fact, employ the legal standards

in offering his opinion." Id. The court recognized that "[t]he

purpose of these requirements is to prevent experts from relying

upon their own views of acceptable practice rather than applying

the objective legal standards." Id.

¶276 Our cases, and those across the country, teach us that

a proper standard of medical care is one that is "approved,"

"generally recognized," "customary," "generally accepted," or

"objective," and that describes skills "usually possessed" by a physician in the relevant field of practice. However one

chooses to synthesize this into a single descriptor, the

manifest import is that a standard of medical care exists

Evidence § 6268.1 (2d ed. 2016) ("In a non-scientific context, the reliability of an expert's methodology often will be a function of accepted practice in the area of expertise in question."); 5 D.W. Louisell & H. Williams, Medical Malpractice § 29.01, at 29–7 (2005) ("The standard is measured against what a reasonably prudent practitioner in the defendant's position would do, not what any individual physician or physicians might do.").

10 No. 2014AP195.dk

separately and apart from the testifying expert, it is

widespread within the relevant medical community, it has gained

at least some acceptance, and it is legitimate to charge a

reasonably qualified physician with its knowledge.

¶277 Doctor Wener did not identify such a standard. One of

the consequences of not requiring the expert to focus on an

external, generally-known standard is that the resulting

testimony resolves into a self-portrait. As the circuit court

and the lead opinion's characterization of his testimony

demonstrate, that is largely what happened here:

• "Dr. Wener formulated an opinion about the standard of reasonable care of family practice doctors practicing obstetrics on the basis of his experiences. . . ." Lead op., at ¶103.

• Dr. Wener's methodology consisted of the "conscientious use of the thousands of instances in which he had delivered babies and made decisions about the care of individual patients and his teaching and hospital experiences relating to obstetrics." Lead op., at ¶105.

• "[E]ssentially a comparison of the instant case to other deliveries . . . ." Lead op., at ¶106.

• "He used his many experiences to arrive at an opinion in the instant case that is sufficiently similar to his vast array of clinical experiences over decades of practice." Lead op., at ¶107.

• "The circuit court ruled that Dr. Wener's methodology was reliable based on Dr. Wener's extensive personal experiences." Lead op., at ¶109. ¶278 A review of the transcript confirms the accuracy of

these characterizations. Here, for example, is the closest Dr. Wener came to establishing any standard of medical care with

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respect to use of a vacuum to assist in the delivery of young

Seifert:

My opinion is that the standard of care required that a vacuum not be applied on this child at all. Because of the risk factors already established for shoulder dystocia, and knowing that the vacuum is the largest of the risk factors, you're adding a major risk factor on top of that. And in my opinion that's why the baby had a severe brachial plexus injury. That may or may not be a proper standard of medical care, but

because he never described how he goes about discovering such

standards, this ends up as the type of ipse dixit that Sheffler

properly rejected.

¶279 With respect to whether Dr. Balink should have

performed an ultrasound immediately before young Seifert's

birth, Dr. Wener said: "I would have known that an ultrasound——

assuming it's done within the standard of care——would have been

within 10 to 15 percent off. And [with] a baby that's 9 pounds

12 ounces, [an] ultrasound would have shown a macrosomic

infant." This is two steps removed from establishing a standard

of medical care. First, he is simply describing what he knows. And second, he says nothing about whether this knowledge

necessarily means an ultrasound should have been done

immediately before birth to meet the applicable standard of

medical care. And if he believes this is what is required to

meet the standard, he has offered nothing to establish how he

knows this is, in fact, the standard.

¶280 Dr. Wener's testimony reveals he is impressively

qualified along the vertical axis; his experience and knowledge are deep, deep. Surely this is the physician one would want in 12 No. 2014AP195.dk

attendance when faced with the Seiferts' situation. But his

testimony along the horizontal axis was almost non-existent.

What he described was what he would have done had he been the

attending physician. That is, he testified that the relevant

standard of medical care was WWWD; he told us little about what

a reasonably qualified family practitioner ought to have done

for the Seiferts. Consequently, the jury received the case

without knowing the proper standard against which to compare Dr.

Balink's performance. And that is why we still do not know

whether Dr. Balink negligently delivered young Seifert.

¶281 So now I arrive at the subject that gave rise to our

consideration of this case: Dr. Wener's qualification under

Wis. Stat. § 907.02 to testify about his opinions. This statute

contains both subjective and objective criteria, both of which

he must satisfy before giving his thoughts to the jury:6

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. 6 I use the terms "subjective" and "objective" in their grammatical sense. These terms separate the one testifying (the subject) from the thing about which the subject is testifying (the object). So the subjective element of Wis. Stat. § 907.02 inquires into Dr. Wener's qualifications, while the objective element concentrates on the thing about which he testifies (the standard of medical care).

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Wis. Stat. § 907.02(1).

¶282 On the objective criterion, Dr. Wener may testify if

his opinions are "based upon sufficient facts or data, the

testimony is the product of reliable principles and methods, and

the witness has applied the principles and methods reliably to

the facts of the case." Id. With respect to the subjective

criterion, he must be "qualified as an expert by knowledge,

skill, experience, training, or education." Id.

¶283 I have already addressed the objective criterion——it

is the standard of medical care. In the context of this case,

"facts or data" are situations like the Seiferts' and how

reasonably qualified family practitioners respond to them. The

"reliable principles and methods" are the means by which a

qualified expert informs himself of those facts and data. As

described above, Dr. Wener offered no such testimony. He did

not offer testimony about the skills usually possessed by family

practitioners who deliver babies. He did not tell us what the "generally accepted" practices might be, what is "approved," or

"generally recognized," or "customary." Nor did he say anything

about the "principles and methods" he used to discover that

information. Instead, he offered himself——a supremely qualified

obstetrician——as the standard of medical care. The result was a

conflation of the objective and subjective criteria.

¶284 This was a mistake for two reasons. First, by

allowing Dr. Wener to become the standard against which to measure Dr. Balink's performance, we eliminate the concept of a

14 No. 2014AP195.dk

consistent and knowable standard against which to measure a

physician's performance. It's WWWD this time. But the

plaintiffs in the next malpractice case might employ a different

expert witness, thereby establishing a new standard. So as a

practical matter, no one will know the "standard" of medical

care until the plaintiffs reveal their expert witness.

¶285 Second, even if it is appropriate to pick a specific

doctor and make his practices the touchstone, as opposed to an

objectively-verifiable standard external to the expert, we

allowed the plaintiffs in this case to pick the wrong doctor.

Dr. Wener is an obstetrician. Dr. Balink is a family

practitioner. The standard of medical care expected of each are

not the same. We must assess a physician's conduct in the

context of the field in which she practices. Phelps v.

Physicians Ins. Co. of Wis., Inc., 2005 WI 85, ¶40, 282

Wis. 2d 69, 698 N.W.2d 643. This is such an embedded principle

in our law that it even appears in our pattern jury

instructions:

In (treating) (diagnosing) (plaintiff)'s (injuries) (condition), (doctor) was required to use the degree of care, skill, and judgment which reasonable (doctors who are in the general practice) [or] (specialists who practice the specialty which (doctor) practices) would exercise in the same or similar circumstances, having due regard for the state of medical science at the time (plaintiff) was (treated) (diagnosed). A doctor who fails to conform to this standard is negligent. The burden is on (plaintiff) to prove that (doctor) was negligent.

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Wis. JI——Civil 1023 (emphasis added). So if the expert himself

is to be the standard, we should at least require that he is

from the same field of practice.7

¶286 Dr. Wener's testimony neither identified a standard

external to himself, nor did it describe what we should expect

of a family practitioner, as opposed to an obstetrician. His

testimony should have been excluded because it did not satisfy

the objective criterion of Wis. Stat. § 907.02. Not because he

was unqualified to testify about what he would have done had he

been the attending physician (no one is better qualified to

offer that testimony), but because in the main he did not

describe what we may expect of reasonably qualified family

practitioners, and so failed to satisfy the objective criterion.

¶287 I say Dr. Wener did not describe the required standard

"in the main" because there were a few pieces of testimony that

contained the seed of such a standard. For example, with

respect to when a three-hour glucose test should be conducted based on the results of the one-hour glucose screening, Dr.

Wener said the following:

Q: You're also aware that some, as you mentioned some people use a 140? 7 If the expert offers proper testimony——that is, a standard of medical care external to himself——then it is not necessary that he come from the same field of medical practice as the physician in question. Thus, if Dr. Wener can demonstrate he has the requisite knowledge to identify and describe the standard of medical care applicable to family physicians in these circumstances, there is no reason he could not qualify as an expert.

16 No. 2014AP195.dk

A: Yes.

Q: [O]f what significance was it that the glucose tolerance one hour testing revealed to be 131?

A: Well 131 is abnormal. By 2009, those providing obstetrical care were using 130. For many, many years prior to that it had been 140. And then probably around the turn of the century . . . changed to 130. And by 2009 most everyone was using 130. . . . And to use 140 as a cut off is not the right number. This, of course, is just one piece of information that goes into

describing what a reasonably qualified doctor would do for the

Seiferts (although whether it describes the "cut-off" family

practitioners, as opposed to obstetricians, were using as of

2009 cannot be determined from the testimony).

¶288 If this seed had matured into a fully-formed objective

standard applicable to family practitioners, we would ask

whether Dr. Wener satisfied the subjective criterion of Wis.

Stat. § 907.02. We do so by looking to his "knowledge, skill,

experience, training, or education." Id.

¶289 But we would not look at those qualities in a vacuum——

we would be interested in them insofar as they bear on the

objective criterion (the standard of medical care). That is, we

must allow the standard of medical care to focus our attention

on the type of background we should require of the proffered

expert witness. In this case, we would ask not whether Dr.

Wener is a well-qualified obstetrician (he is). We would

instead ask whether he has the knowledge, experience, training,

or education necessary to search out and describe the standard

of medical care we may reasonably expect a family practitioner to meet.

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¶290 The background required by the subjective criterion

may not be as obvious as it might appear. As much as we wish

the practice of medicine to be a scientific endeavor, it

inescapably encompasses a substantial amount of art. And to the

extent it is a science, it is nonetheless constantly developing

and evolving. All physicians learn the practice of medicine in

(presumably) the same general sense——they attend medical school.

But the United States has 147 medical schools,8 and it is

reasonable to expect that each will offer instruction that

varies in technique, emphasis, expertise, and extent. The

current result of those natural variations is over 900,000

practicing physicians9 spread amongst 5,600 hospitals10 and many

additional smaller clinics and offices.

¶291 Theoretically, those initial variations could amplify

once the physician begins his practice and encounters new

methods, analyses, equipment, or experiences. Or, conversely,

they could dampen as the hospitals and other centers of practice

8 About the AAMC, Assoc. of Am. Med. Colleges (last visited Jan. 3, 2017), https://www.aamc.org/about. 9 Total Professionally Active Physicians, The Henry J. Kaiser Family Found. (last accessed Jan. 3, 2017), http://kff.org/other/state-indicator/total-active- physicians/?currentTimeframe=0&selectedRows=%7B%22nested%22:%7B% 22all%22:%7B%7D%7D,%22wrapups%22:%7B%22united- states%22:%7B%7D%7D%7D&sortModel=%7B%22colId%22:%22Location%22,% 22sort%22:%22asc%22%7D (stating that in September 2016 there were 926,119 practicing physicians in the United States). 10 Fast Facts on US Hospitals, Am. Hosp. Ass'n (Jan. 2016), http://www.aha.org/research/rc/stat-studies/fast-facts.shtml (stating that in January 2016 there were 5,627 U.S. hospitals registered with the American Hospital Association).

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impose some measure of uniformity on practitioners. Whichever

it is, the result is the same——there is no obvious playbook to

which we, or a practitioner, may readily resort to determine

what "ought" to be done in every given circumstance. The

"ought" is out there, but courts and juries are not equipped to

identify it on their own. That is why we need experts to sift

through all the different ways in which physicians treat their

patients, the extant literature on the subject at hand (if any),

and information from any other potentially instructive source,

to identify the common threads with which to stitch together a

standard of medical care.

¶292 The background required to do a competent job of such

sifting and identifying is not necessarily the same as the

background that leads to successful, injury-free deliveries of

babies like young Seifert. This case calls for an expert who is

familiar with the type of training and experience typical of

family practitioners (not obstetricians), the type of equipment

available to them, the tests and diagnostic procedures they commonly employ, and their practical responses to situations

like that of the Seiferts. This is a background that reflects a

broadly horizontal outward focus——what do others know, and

experience, and do? It may be that Dr. Wener has that kind of

background and knowledge, but he did not speak of it in this

case.

¶293 This division between subjective and objective

criteria is essential to the rule of law as it relates to negligence, especially in the context of medical malpractice.

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When the Seiferts asserted their cause of action against Dr.

Balink, the import of their claim was that there existed a

knowable standard of medical care and that she failed to conform

to that standard when she delivered young Seifert. Dr. Balink

did not know that a court, sometime in the future, would decide

that the standard governing her conduct would be WWWD. And

there is no apparent reason why she should have known that.

¶294 To the extent the lead opinion concludes that a

person's personal experience can qualify him as an expert

witness for the purpose of testifying about a standard of

medical care, I have no dispute. But because our pencil was not

sharp enough in answering that question, the holding we announce

today is that an individual doctor's personal experience can be

the standard of medical care.

¶295 And for that reason, I respectfully dissent.

¶296 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this dissent.

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