Wisconsin Supreme Court Affirms $1.75M Brachial Plexus Injury Verdict, Discusses Daubert Challenge

162017_132140396847214_292624_nIn its decision filed on January 6, 2017, the Supreme Court of Wisconsin (“Wisconsin Supreme Court”) affirmed a Wisconsin medical malpractice jury’s verdict in the amount of $1,750,000 in favor of a baby who suffered a permanent brachial plexus injury during his delivery that the parents alleged were due to the medical negligence of the delivering doctor. The trial court reduced the noneconomic damages award for pain and suffering to $750,000, pursuant to Wisconsin’s cap on noneconomic damages in medical malpractice cases. Wis. Stat. § 893.55.

The defendants appealed, arguing, in part, that the plaintiffs’ medical expert should not have been allowed to testify because his testimony failed to satisfy Wisconsin’s law regarding such testimony. In particular, the defendants argued that because the expert’s testimony was experience-based, his method was unreliable and inadmissible under Wis. Stat. § 907.02(1).

Wisconsin Stat. § 907.02(1)

Wisconsin Stat. § 907.02(1) provides as follows: “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.”  (the italicized language was added to the statute, effective as of February 1, 2011 and applied in this case)

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.

The new so-called Daubert (the name of a U.S. Supreme Court case) aspect of Wis. Stat. § 907.02(1) requires that expert testimony be based on sufficient facts or data and that the expert testimony be the product of reliable principles and methods. The expert witness must apply the principles and methods reliably to the facts of the case, and these three aspects of the Daubert standard are referred to as the “reliability standard.”

The Wisconsin Supreme Court held that the trial court and the intermediate appellate court did not err in applying Wis. Stat. § 907.02(1) and admitting as reliable the plaintiffs’ expert’s medical testimony on the standard of reasonable care based on his personal experiences (the defendants had argued that the plaintiffs’ expert’s experience-based testimony is not the product of a reliable method; the Wisconsin Supreme Court held that his testimony was reliable and admissible under § 907.02(1)).

The Underlying Facts

The defendant doctor is a family practitioner and had provided prenatal care to the baby’s mother during regular prenatal visits and also delivered the baby. The baby’s mother weighed 269 pounds at the start of her pregnancy, and she gained approximately 36 pounds during her pregnancy. She also had gestational diabetes. The defendant doctor estimated that the baby would weigh eight pounds, eight ounces at birth: his actual birth weight was nine pounds, twelve ounces.

The baby’s mother arrived at the hospital on May 28, 2009, for inducement of labor. Initially, things went well and she was completely dilated and ready to push by 11:00 p.m. After an hour, the baby had started descending but the baby’s mother had grown tired. The defendant doctor then decided to use a vacuum device to assist in the delivery and delivered the baby’s head thirteen minutes and four contractions later.

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 (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 manipulations to mother and baby) to resolve the dystocia. The baby was delivered approximately three minutes after the diagnosis of shoulder dystocia. The baby was diagnosed with a permanent brachial plexus injury a few days later.

The parties did not dispute that an obese mother, gestational diabetes, and a macrosomic baby increase the risk of shoulder dystocia, and that the application of excessive traction beyond what the fetus can withstand may be a cause of severe brachial plexus injuries during childbirth and the use of a vacuum during delivery may increase the risk of a brachial plexus injury.

The plaintiffs’ medical expert testified at length during trial regarding the standard of reasonable care in the instant case and opined that the defendant doctor breached that standard of reasonable care (i.e., the defendant doctor breached the standard of care by failing to order a three-hour glucose test; the defendant doctor breached the standard of care by failing to perform an ultrasound immediately prior to delivery; and, the defendant doctor breached the standard of care by doing a vacuum-assisted delivery), basing his testimony on his personal experiences (he 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).

The plaintiffs’ medical expert had also taught medical students and residents and was chairman of the obstetrics-gynecology department at a hospital for about 20 years, in addition to his private practice. 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, and that he is a member of the American College of Obstetricians and Gynecologists.

The Wisconsin Supreme Court stated that the plaintiffs’ medical expert’s experience and testimony demonstrate that he is familiar with the standard of reasonable care for family practice doctors practicing obstetrics, such as the defendant doctor in the instant case. Nonetheless, the defendants challenged the reliability of the plaintiffs’ expert’s medical testimony (the parties do not dispute that the plaintiffs’ medical expert was qualified as an expert and that his opinion was relevant in the instant case). Wisconsin Stat. § 907.02(1) states that expert testimony must be based on “reliable principles and methods,” and the defendants only challenged the plaintiffs’ expert’s “method” in the instant case.

The Wisconsin Supreme Court stated that the trial court was required to decide the reliability of the methods used by the plaintiffs’ medical expert in reaching his opinions and that the testimony was reliable by a preponderance of the evidence.

To guide the reliability analysis, Daubert provided a nonexhaustive 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. The Federal Rules Advisory Committee added five additional factors. The Wisconsin Supreme Court stated that the trial court may consider some, all, or none of the factors listed to determine whether the expert evidence is reliable.

Reliability Of Expert Medical Opinion Based On The Expert’s Personal Experiences

The Wisconsin Supreme Court stated that 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; such exclusion is rarely justified in cases involving medical experts. Instead of exclusion, the appropriate means of attacking “shaky but admissible” experience-based medical expert testimony is by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.

The Wisconsin Supreme Court stated that 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. The Wisconsin Supreme Court held that that the circuit court applied the correct Daubert reliability standard and did not erroneously exercise its discretion in admitting the plaintiffs’ medical expert’s testimony as reliable under Wis. Stat. § 907.02(1): the plaintiffs’ medical expert 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; the plaintiffs’ medical expert’s testimony about the standard 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; the plaintiffs’ medical expert 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; and, therefore, the plaintiffs’ medical expert 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.

The Wisconsin Supreme Court stated that the plaintiffs’ medical expert’s opinion based on his personal experiences satisfied the Daubert reliability standard: he identified established risk factors (principles) and then he 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.

The Wisconsin Supreme Court held that the plaintiffs’ medical expert’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 the plaintiffs’ medical expert 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.

The Wisconsin Supreme Court further held that the plaintiffs’ medical expert’s failure to rely on medical literature is no bar to admissibility, citing Daubert for the proposition that “Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability.”

The Wisconsin Supreme Court concluded that circuit court did not erroneously exercise its discretion in admitting the plaintiffs’ medical expert’s testimony as reliable based on personal experiences and that the plaintiffs’ medical expert reliably applied his methodology to the facts.

Source Seifert v. Balink, 2017 WI 2.

If your baby suffered a birth injury during labor and/or delivery in Wisconsin or in another U.S. state, you should promptly find a birth injury lawyer in Wisconsin or in your state who may investigate your birth injury claim for you and represent you and your child in a birth injury case, if appropriate.

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This entry was posted on Wednesday, January 11th, 2017 at 5:15 am. Both comments and pings are currently closed.

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