Castaneda v. Pederson

500 N.W.2d 703, 176 Wis. 2d 457, 1993 Wisc. App. LEXIS 484

• Court: Court of Appeals of Wisconsin
• Decided: April 27, 1993
• Docket: 92-0149
• Status: Published

Opinions

FINE, J.

This is a medical-malpractice action brought on behalf of Antonio Castaneda, a minor, to recover damages allegedly sustained by him as the result of the claimed negligent failure by Thomas E. Pederson, M.D., an ophthalmologist, to diagnose Antonio's brain tumor, which allegedly caused Antonio's regression from poor sight to total blindness. Antonio's parents also sought compensation for their losses. The jury found Dr. Pederson causally negligent, and awarded to Antonio the following: $750,000 for pain, suffering, and disability; $300,000 for impairment of his earning capacity; $750,000 for the cost of his future care; and $49,787.08 for his past medical and hospital expenses. Additionally, the jury awarded to Antonio's mother, Sherry L. Castaneda, $150,000 as compensation for the loss of Antonio's society and companionship. The jury awarded nothing to Antonio's father, who was separated from Mrs. Castaneda. Dr. Pederson and his malpractice insurer, St. Paul Fire & Marine Insurance Company, and the Wisconsin Patients Compensation Fund appeal. We affirm, and discuss in turn the issues they raise.

1. Alleged juror misconduct.

Both Dr. Pederson and the Wisconsin Patients Compensation Fund assert that the trial court should have granted a new trial because, during a noon break between the closing arguments, one of the jurors researched the range of jury awards in medical malpractice cases. They argue that the jury was tainted or, at the very least, the individual juror should have been disqualified from the case. If the juror was disqualified, a new trial would be necessary because she was one of the ten out of twelve jurors who joined in the verdict. See Rule 805.09(2), Stats, (verdict in civil case must be agreed to by five-sixths of the jurors).

In a post-conviction hearing, the trial court found that the juror consulted a 1987 publication that pegged the average medical-malpractice award in 1985 at $1.5 million. The trial court further found that the juror did not share this information with the other jurors until after all but one of the special-verdict questions had been answered. The remaining question asked the jury to fix an award that would fairly and reasonably compensate Antonio for his pain, suffering, and disability. As noted, the jury awarded to Antonio $750,000 in response to this question.

The trial court's findings of fact are not challenged on appeal, and we accept them under our deferential standard of review. See 805.17(2), Stats, (trial court's findings of fact may not be reversed on appeal unless they are "clearly erroneous"). The trial court concluded the defendants had not shown by clear and convincing proof that a new trial was warranted. Although we are assisted by the trial court's thoughtful and able examination of the problem created by the juror's excursion into independent research, we review de novo the trial court's ultimate legal conclusion that a new trial was not warranted. See After Hour Welding v. Laneil Management Co., 108 Wis. 2d 734, 741, 324 N.W.2d 686, 690-691 (1982). We agree with the trial court's conclusion, and affirm.

A party seeking to impeach a jury verdict in a civil case with evidence of juror-misconduct must clear three hurdles. First, the proffered evidence must be competent under Rule 906.06(2), Stats. After Hour Welding, 108 Wis. 2d at 738-740, 324 N.W.2d at 689-690. Second, the proffered evidence must be "clear and convincing." Id., 108 Wis. 2d at 740-741, 324 N.W.2d at 690. Third, the competent evidence must show by the "clear and convincing" standard that the moving party was prejudiced"not in an analysis of the jurors' subjective thought processes, because that inquiry is forbidden by Rule 906.06(2), but, rather," 'on the basis of the nature of the matter and its probable effect on a hypothetical average jury.'" Id., 108 Wis. 2d at 741, 324 N.W.2d at 691 (citation omitted).

Rule 906.06(2), Stats., provides that a juror may testify, either in person or by affidavit, "on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror." Evidence that a juror was exposed to matters not of record is competent under Rule 906.06(2). See State v. Poh, 116 Wis. 2d 510, 520-521, 343 N.W.2d 108, 114 (1984) (defendant's driving record). The average medical-malpractice award in 1985 was extraneous to the record and, therefore, the evidence concerning the juror's conduct was competent. The first hurdle of the After Hour Welding analysis is thus cleared.

The second and third hurdles to jury impeachment in a civil case established by After Hour Welding are interrelated: the party seeking a new trial must establish by clear and convincing evidence that a new trial is warranted because of the prejudicial impact the extraneous information would have on a hypothetical average jury, in light of the facts, circumstances, and result of the case.¹ United States v. Crosby, 294 F.2d 928, 950 (2d Cir. 1961), cert. denied, 368 U.S. 984 (relied upon by After Hour Welding, 108 Wis. 2d at 741, 324 N.W.2d at 691); see Poh, 116 Wis. 2d at 530, 343 N.W.2d at 119. We look to a "hypothetical jury" because, as noted, inquiry into the motives of the actual jury is expressly forbidden by Rule 906.06(2), Stats. We consider the result because otherwise the question of prejudice becomes a speculative, almost metaphysical exercise.²

The Wisconsin Patients Compensation Fund cites cases, including those from other states, where new trials were ordered because of prejudicial extraneous information. The Wisconsin decisions it cites are representative: Poh, 116 Wis. 2d 510, 343 N.W.2d 108; State v. Barthels, 166 Wis. 2d 876, 480 N.W.2d 814 (Ct. App. 1992), aff'd on other grounds, 174 Wis. 2d 173, 495 N.W.2d 341(1993); and State v. Ott, 111 Wis. 2d 691, 331 N.W.2d 629 (Ct. App. 1983).

In Poh, the defendant was convicted of three counts of negligent operation of a motor vehicle while under the influence of an intoxicant. 116 Wis. 2d at , 343 N.W.2d at 111. In the course of their deliberations, some of the jurors were told by another juror that the defendant had a history of drunk driving and, indeed, previously had been involved in fatal accidents. Id., 116 Wis. 2d at 520-521, 343 N.W.2d at 114-115. Poh recognized that the "other acts evidence" in the case "raise[d] 'a definite risk that the jury might convict to punish a person they perceive to be a generally bad actor where automobiles are concerned.'" Id., 116 Wis. 2d at 531, 343 N.W.2d at 119 (citation omitted, bracketing added). The court noted that, although the evidence in the case was sufficient to convict Poh, there were what the court termed "weaknesses" in the State's case. Id., 116 Wis. 2d at 532, 343 N.W.2d at 120. Given the power of the "other acts evidence" to divert the jury from its impartial assessment of the case, the supreme court directed that a new trial be ordered. Id., 116 Wis. 2d at 532-533, 343 N.W.2d at 120.

Barthels and Ott present similar situations. In Barthels, the defendant was convicted of first-degree sexual assault against a child. 166 Wis. 2d at 879, 480 N.W.2d at 816. During the course of the trial, some jurors were exposed to a newspaper article reporting that the sexual-assault charge had been severed from an endangering-safety charge that involved the same victim. Id., 166 Wis. 2d at 890-891, 480 N.W.2d at 820-821. In an alternate holding, see id., 166 Wis. 2d at 890 n.8, 480 N.W.2d at 820 n.8, Barthels noted that the similarity between the two charges improperly suggested "a pattern" of "assaultive behavior" against the alleged victim. Id., 166 Wis. 2d at 895, 480 N.W.2d at 822. Other act evidence may not be used to show a defendant's propensity to commit the crime charged. Rule 904.04, Stats.

In Ott, the defendant was convicted of injury by conduct regardless of life. Ill Wis. 2d at 691, 331 . Central to this issue was whether the defendant's conduct under consideration "evinced" a "depraved mind." Id., 111 Wis. 2d at 692, 331 N.W.2d at 630. Following instruction by the trial court, and after the jury had started to deliberate, the jury was permitted to go home for the night. Ibid. One of the jurors then looked up the jury definition of the words "evinced" and "depraved." Id., 111 Wis. 2d at 693, 331 N.W.2d at 630. Ott determined that the dictionary definition of "depraved," as most likely discovered by the juror (the precise definition was not of record, id., Ill Wis. 2d at 695, 331 N.W.2d at 631), "was sufficiently broader than the technical meaning embodied in the instruction to probably prejudice Ott." Id., Ill Wis. 2d at 696, 331 N.W.2d at 631. A new trial was ordered. Id., 111 Wis. 2d at 696-697, 331 N.W.2d at 632.

The circumstances here are substantially different from any of the authorities cited by the defendants. Although wholly inappropriate, the juror's research on benchmark awards in medical malpractice cases merely extended — by how much is not in the record — the average citizen's awareness of jury verdicts generally, as reported in the lay media. Thus, as Poh teaches, the juror's "discovery" was very little different from what jurors are expected to bring with them into the jury room:

Jurors are expected to bring commonly known facts and their experiences to bear in arriving at their verdict. [³] We cannot "expunge from jury deliberations the subjective opinions of jurors, their attitudinal expositions or their philosophies. These involve the very strengths of our jury system."

Poh, 116 Wis. 2d at 518-519, 343 N.W.2d at 113 (citation omitted). Additionally, this is not a case where the extraneous information was either at odds with the applicable legal standards, the Ott situation, or deemed by the law to be prejudicial per se, the Poh and Barthels situations. As the trial court pointed out, the jury determined that as a result of Dr. Pederson's negligence, Antonio went from poor vision to no vision at all. We conclude, as did the trial court, that an award of $750,000 for Antonio's pain, suffering, and disability is low, and does not demonstrate by clear, satisfactory, and convincing evidence that a hypothetical average jury reaching the same result would have probably been prejudiced against the defendants by the extraneous information.⁴ A new trial was not warranted either with respect to the jury as a whole or with respect to the juror who did the over-the-recess research.⁵

2. Evidence to support jury's finding that Dr. Pederson's negligence caused Antonio's injuries.

The Wisconsin Patients Compensation Fund and Dr. Pederson argue that there was insufficient evidence to support the jury's verdict. Specifically, they argue that much of Antonio's injuries were caused by his fall down some stairs, after he was treated by Dr. Pederson. Additionally, Dr. Pederson contends that two of the Castanedas' expert witnesses, Dr. Marilyn Kay and Dr. Joel Weinstein, lacked the requisite expertise to give an opinion as to the standard of care applicable to the average ophthalmologist. This latter issue bears on the first. Accordingly, we discuss it first.

A. Qualifications ofDrs. Kay and Weinstein. The thrust of Dr. Pederson's argument concerning the qualifications of Drs. Kay and Weinstein is that they were too qualified. Thus, he argues in his appellate brief:

Dr. Kay and Dr. Weinstein are neurophthalmolo-gists, not general ophthalmologists. Their expertise is focused on problems the general ophthalmologist cannot handle and their practices are reliant upon referrals from general ophthalmologists and other physicians. They do not practice in the "trenches" of general ophthalmology in the manner in which Dr. Pederson does. Dr. Kay, in particular, only sees patients who have been referred by other ophthalmologists or neurologists or neurosurgeons who feel there is a neurologic problem affecting the patient's vision. Her field is restricted to the field of ophthalmology that deals with neurological and brain problems as they affect the eyes and vision of a patient.

This argument borders on the frivolous.

Dr. Kay is a board certified ophthalmologist and specializes in neuro-ophthalmology. She is an associate professor of ophthalmology at the Medical College of Wisconsin, where she was acting chairman of the ophthalmology department. She is also a board examiner in ophthalmology. Additionally, she practiced general ophthalmology when she worked in the City General Ophthalmology Clinic in Houston, Texas. Dr. Kay clearly has the requisite degree of "knowledge, skill, experience, training, or education" to give an opinion as to whether Dr. Pederson fulfilled the applicable standard of care. See Rule 907.02, Stats. Cf. Kerkman v. Hintz, 138 Wis. 2d 131, 149, 406 N.W.2d 156, 163 (Ct. App. 1987) (medical doctor may give an opinion "as to a chiropractor's performance under the chiropractic standard of care ... if there is a sufficient factual showing that the medical witness is qualified by 'knowledge, skill, experience, training, or education,' see sec. 907.02, Stats."), aff'd in part and rev'd in part on other grounds, 142 Wis. 2d 404, 418 N.W.2d 795 (1988). Significantly, neither Dr. Pederson nor the Wisconsin Patients Compensation Fund specifically objected before the trial court to her competency to testify (beyond asserting the non-specific "lack of foundation"), and Dr. Pederson cites no authority in support of his proposition that Dr. Kay was not qualified to give an opinion under Rule 907.02.

Although the Castanedas' brief on appeal does not address Dr. Pederson's contention that Dr. Weinstein was also not qualified to give an expert opinion about the appropriate standard of care, and this would be sufficient grounds for us to reverse on this point, see Charolais Breeding Ranches, Ltd. v. FPC Securities Corp., no Wis. 2d 97, 109, 279 N.W.2d 493, 499 (Ct. App. 1979) (" 'Respondents on appeal cannot complain if propositions of appellants are taken as confessed which they do not undertake to refute.'" (citation omitted)), we conclude upon our independent analysis of the record that, like Dr. Kay, Dr. Weinstein, who is a neuro-ophthalmologist and has practiced pediatric ophthalmology, was qualified under Rule 907.02, Stats., to give the opinion.⁶

B. Sufficiency of the Evidence. Both the Fund and Dr. Pederson contend that there was insufficient evidence to support the jury's verdict. Our standard of review of a jury's verdict is, however, severely circumscribed; we must affirm "if there is any credible evidence to support the verdict." Fehring v. Republic Ins. Co., 118 Wis. 2d 299, 305, 347 N.W.2d 595, 598 (1984). Our task is not to search the record for evidence contrary to the jury's verdict, but, rather to search the record for credible evidence in support of the verdict, accepting any reasonable inferences favorable to the verdict that the jury could have drawn from that evidence. Id., 118 Wis. 2d at 305-306, 347 N.W.2d at 598.

Dr. Kay testified that in her opinion Dr. Pederson failed to fulfill the applicable standard of care because he failed to take appropriate actions when he discovered the boy's optic atrophy on July 21, 1988. There was also evidence that this failure was a substantial factor in Antonio's blindness, which, in turn, was a substantial factor in his fall down the stairs. Thus, Dr. Kay opined that had Dr. Pederson properly diagnosed Antonio, Antonio's vision would have either improved or Antonio "would have at least retained" the minimal vision he did have. Similarly, Antonio's treating pediatric neurologist testified that Antonio'3 "vision would probably be better if the tumor was diagnosed earlier." Furthermore, Dr. Glenn Meyer, a professor of neurosurgery and pediatrics at the Medical College of Wisconsin, testified that, "within reasonable medical probability," Antonio's vision "would have been somewhat better" if the tumor operation had been done shortly after Dr. Pederson saw Antonio, in July of 1988. Dr. Meyer also testified that the tumor and its effect on Antonio's vision "certainly led to the fall down the stairs." In light of this evidence and our standard of review, the defendants' contention that there was insufficient evidence to support the jury's finding of causal negligence is without merit.⁷ Similarly without merit is the defendants' contention that this court should order a remittitur; the argument is based on their challenge to the sufficiency of the evidence.

3. Depositions of Dr. David Allen and Dr. Joel Weinstzein.

Dr. Pederson claims that the trial court erred in permitting the Castanedas to read to the jury deposition testimony of Drs. Allen and Weinstein even though Drs. Allen and Weinstein were originally identified as defense witnesses. Dr. Pederson also claims error because the trial court permitted the Castanedas to tell the jury that Drs. Allen and Weinstein had originally been identified as defense witnesses. Finally, Dr. Pederson contends that the opinions offered by Drs. Allen and Weinstein failed to meet the requisite legal standard. We discuss these issues in turn.

First, we perceive no legal reason why the deposition testimony by Drs. Allen and Weinstein should not have been read to the jury, and, beyond their mere contention to the contrary, defendants assert none. See Rule 804.07(l)(c), Stats. ("The deposition of a medical expert may be used by any party for any purpose, without regard to the limitations otherwise imposed by this paragraph." (emphasis added)).

Second, other than the inapposite citation to State v. Tilley, 79 S.E.2d 473 (N.C. 1954), which opined, in dictum, that a party may not impeach the testimony of the witness whose deposition that party offers, see id., 79 S.E.2d at 475, an outmoded view that is contrary to Rule 906.07, Stats., Dr. Pederson has cited no authority to support his argument that the trial court erred when it permitted the plaintiffs to tell the jury that Drs. Allen and Weinstein had been designated as defense witnesses.⁸ We perceive no error, and, in light of Dr. Pederson's failure to develop his argument, we do not consider it further. See W. H. Pugh Coal Co., 157 Wis. 2d at 634, 460 N.W.2d at 792; Rule 809.19(1)(e), Stats.

Dr. Pederson's complaint that the opinions of Drs. Allen and Weinstein were not given to the requisite degree of professional probability is also without merit. First, an expert witness need not use any specific language in giving an opinion, as long as his or her testimony is not speculative. Drexler v. All American Life & Casualty Co., 72 Wis. 2d 420, 432-433, 241 N.W.2d 401, 408 (1976). The opinions given by Drs. Allen and Weinstein during the course of their testimony were not speculative. Second, had the defendants wanted Drs. Allen and Weinstein to base their opinions in more specific language, they were obligated to object during the deposition. See Rule 804.07(3)(c)1 & 2, Stats.⁹ Challenges to any infirmity in the degree of certainty of their opinions, and we perceive none, were thus waived. See ibid.

4. Alleged contributory negligence of Antonio's mother.

The defendants contend that Antonio's mother was contributorily negligent in both failing to bring Antonio back to Dr. Pederson for a follow-up visit, and because she allegedly failed to take reasonable precautions to prevent him from falling down the stairs. They argue that the trial court erred in not submitting the issue of the mother's contributory negligence to the jury. We do not reach the merits of this contention because the defendants did not preserve this issue for appeal.

Rule 805.13(3), Stats., provides that failure of counsel to object at the instructions conference, which must be held prior to closing arguments, to the trial court's proposed jury instructions "constitutes a waiver of any error in the proposed instructions or verdict." Although counsel for Dr. Pederson did submit to the trial court proposed instructions concerning the Cas-tanedas' alleged contributory negligence, there was no objection to the trial court's decision not to include the contributory-negligence issue in the instructions until after closing arguments were completed. Indeed, before the lawyers began their closing arguments, the trial court specifically, and appropriately, attempted to determine whether any counsel had objections to the proposed instructions: "I understand there's been a stipulation on all the instructions, that the only issue is the one question on the special verdict, which I think is cured by the instruction, and therefore we're ready to proceed with closing arguments." Neither counsel for the Wisconsin Patients Compensation Fund nor counsel for Dr. Pederson raised any objection at that time to the trial court's having not included the issue of whether Antonio's mother was contributorily negligent. The issue was waived.

5. Request by the Wisconsin Patients Compensation Fund to amend scheduling order.

The Wisconsin Patients Compensation Fund contends that a new trial is required because the trial court declined to amend a previously-entered scheduling order so as to permit the belated naming of certain defense witnesses.

This action was commenced on March 27, 1989. Trial was scheduled to begin on February 4, 1991. On January 23, 1991, less than two weeks prior to trial, the Fund appeared by new counsel. The trial court denied the Fund's motion to delay the trial. This court granted a stay pending the Fund's interlocutory appeal. The interlocutory appeal was voluntarily dismissed on February 19,1991, after the February 4 trial date had passed. The Fund then sought to amend the scheduling order to permit the naming of additional witnesses who were expert "in various specialties including pediatric neurology, neuropathology, diabetes and endocrinology, neurosurgery and ophthalmology." The trial court denied the motion, and the Fund unsuccessfully sought leave to appeal to this court.

The Fund sought reconsideration of the trial court's earlier denial of the Fund's motion to name additional expert witnesses. The motion specifically referred to witnesses previously identified by the Fund in a letter dated February 21, 1991. The trial court granted this motion in full. The Fund's claim that the trial court also denied the Fund's motion tc name additional witnesses — witnesses not named in the February 21 letter — is not supported by the record.

For the foregoing reasons, we affirm the judgment entered upon the verdict.

By the Court. — Judgment affirmed.

1 In criminal cases, a finding that the extraneous information would be prejudicial to a hypothetical jury requires reversal unless the error is harmless beyond a reasonable doubt. State v. Poh, 116 Wis. 2d 510, 529, 343 N.W.2d 108, 118-119 (1984).

2 The following two scenarios demonstrate the rationale behind this rule:

1) A man is seriously injured as the result of the defendant's negligence. A fair award for the man's injuries is within the range of fifty to one-hundred thousand dollars. During the course of its deliberations, the jury learns that the man is a paroled murderer.

The jury awards the man a total of ten dollars for his injuries.

2) The facts are the same as in 1 but the jury awards the man a total of seventy-five thousand dollars for his injuries.

In both instances, the information that the man is a paroled murderer is extraneous and prejudicial. Under the applicable test, the court must evaluate the impact of that extraneous and prejudicial information on a hypothetical average jury. If the actual outcome in each case could not be considered in evaluating whether reversal was warranted, however, reversal would be required either in both or neither of the cases, and would depend solely on an assessment in the abstract of the degree of prejudice. Although the dissent bows to this logic in what it calls "the more obvious cases," Dissent at 481, its resolution to ignore the result in closer cases is contrary to both the teaching of Crosby, 294 F.2d 928, 950 (2d Cir. 961), cert. denied, 368 U.S. 984, and the factors Poh suggests should be considered, 116 Wis. 2d at 530, 343 N.W.2d at 119 ("the nature of the state's case; the defense presented at trial; and the connection between the extraneous information and a material issue in the case"). The dissent's position that the actual result in the case is not material except in the "obvious" cases cuts the required analysis loose from the anchor of reality and permits hypothetical excursions into the seas of speculation where the only polestar is the judge's own subjective views. The law requires standards of review that are more stable; the quest for the great White Whale of perfection must, at some point, end. See State v. Marhal, 172 Wis. 2d 491, 495-496 n.3, 493 N.W.2d 758, 761 n.3 (Ct. App. 1992) (no reasonable way to ensure "perfect" jury).

3 A footnote in Poh at this point reads:

"[I]t is an impossible standard to require the tribunal [the jury] to be a laboratory, completely sterilized and freed from any external factors." Rideau v. Louisiana, 373 U.S. 723, 733 (1963) (Clark, J., dissenting).

Poh, 116 Wis. 2d at 518 n.6, 343 N.W.2d at 113 n.6 (bracketing in original).

4 Unlike the dissent, we do not read the trial court's decision as determining that there was "prejudice" "[wjithout question." See Dissent at 479. At most, the trial court found a wash in prejudicial effect when it concluded that "the award ... was so low as to malte the prejudice . . . equally applicable to the plaintiff and the defendant." See ibid. To conclude, as does the dissent, that this finding of "equally applicable" prejudice is equivalent to a finding of "prejudice" "[w]ithout question," is akin to saying that "both teams scored" when a football game ends in a seven-to-seven tie. Simply put, a finding of "equally applicable" prejudice fails the prejudice prong of the test in After Hours Welding v. Laneil Management, 108 Wis. 2d 734, 741, 324 N.W.2d 686, 691 (1982).

5 The Wisconsin Patients Compensation Fund argues in its brief that the brochure examined by the juror during the break in deliberations contained additional extraneous and prejudicial information other than the average medical malpractice award in 1985, and points to the brochure's table of contents. The trial court, however, made no finding as to this other information. Rather, its findings are focussed entirely on the 1985 average. The Fund has not directed us to anything in the record that supports its argument that either the juror, or the jury, was tainted by anything else that might have been in the brochure.

6 We note that as with his challenge of Dr. Kay's credentials to give an opinion in this case, Dr. Pederson has not cited authority in support of his proposition that Dr. Weinstein did not meet the requisite qualifications under Rule 907.02, Stats. See W. H. Pugh Coal Co. v. State, 157 Wis. 2d 620, 634, 460 N.W.2d 787, 792 (Ct. App. 1990) (an appellate court is not required to determine an issue that is undeveloped in the briefs or that contains no citation to authority); see also Rule 809.19(1) (e), Stats.

7 Both the Wisconsin Patients Compensation Fund and Dr. Pederson make passing reference to Antonio's apparent mental retardation, endocrine disorder, and decreased life-expectancy in the course of their argument that the evidence adduced at trial does not support the jury's verdict. Neither party, however, cites to the record, proffers legal authority, or in any other way develops this part of its argument, other than to point out that some of plaintiffs' expert witnesses attributed Antonio's mental retardation to his fall down the stairs. We decline to address this sub-issue except to note, as we have already seen, that there is sufficient competent evidence in the record that Dr. Pederson's negligence was a substantial factor in Antonio's fall. See W. H. Pugh Coal Co., 157 Wis. 2d at 630, 460 N.W.2d at 792; Rule 809.19(1)(e), Stats.

8 Rule 906.07, Stats., provides:

Who may impeach. The credibility of a witness may be attacked by any party, including the party calling the witness.

9 Rule 804.07(3)(c)l & 2, Stats., provides:

As to taking of deposition. 1. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

2. Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct or parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.