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SCOW grants review of Daubert issue in civil case

Seifert v. Balink, 2015 WI App 59, petition for review granted 11/4/15; affirmed, 2017 WI 2; case activity (including briefs)

While this case involves a medical malpractice claim rather than an issue of criminal law, On Point thought it worth noting because it will be the first time the Wisconsin Supreme Court will address the admissibility of expert opinion evidence since § 907.02(1) was revamped to adopt Federal Rule of Evidence 702 and, by extension, the interpretation of FRE 702 by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

The specific claim in this case involves negligence by a doctor in prenatal and delivery care. Balink, the doctor being sued, challenged the admissibility of the opinions of the plaintiff’s expert, Wener, on two primary grounds: First, she argued Wener’s opinion is unreliable because it is based solely on his own personal preferences derived from his extensive experience practicing medicine; second, she argued Wener undermined the reliability of his testimony by refusing to rely on applicable medical literature. Neither argument persuaded the court of appeals:

¶29     Dr. Balink’s [first] argument misses the mark. First, she ignores the Supreme Court’s statement in Kumho Tire that a court may consider personal experience and knowledge when determining the reliability of expert testimony. Second, she ignores language in the advisory committee’s note to the 2000 amendments to Rule 702 to the same effect. Third, she fails to recognize, in contravention of several federal court decisions, that consideration of the knowledge and expertise of a testifying physician may be particularly useful in evaluating the reliability of medical expert testimony. Finally, Dr. Balink does not challenge Dr. Wener’s qualifications in any way. Therefore, to the extent that the circuit court relied on Dr. Wener’s expertise and knowledge as a practicing physician when it admitted his testimony, it did not erroneously exercise its discretion.


¶31     [As to the second argument], reliance on peer[-]reviewed publications is just one factor that courts may consider under Daubert. The Supreme Court in Daubert and in Kumho emphasized that the factors listed in Daubert are guidelines to assist the court to determine the reliability of an expert’s opinion, and that the court is afforded flexibility in deciding which factors are appropriate for the particular circumstances of each case. Here, the court’s analysis was not strictly tied to consideration of whether Dr. Wener’s opinions were reliable based on medical literature. Instead, as we discussed above, the court considered other pertinent factors to determine the reliability of Dr. Wener’s testimony. ….

Since these kinds of arguments could well apply to medical, psychiatric, psychological, or other opinion evidence in a criminal prosecution, the decision in this case will likely be important outside the medical malpractice setting. Stay tuned to On Point for coverage of the decision when it comes out, sometime in the spring or summer of 2016.

UPDATE (1/11/2017): As noted above, the supreme court affirmed the court of appeals in a divided opinion. For more analysis, see here.

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