Vol. 73, No. 3, March 2000

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Court of Appeals Digest

by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Administrative Law | Civil Procedure | Criminal Procedure |
| Domestic Abuse | Employment Law | Family Law |
| Insurance | Lemon Law | Medical Assistance |
| Taxation | Torts | Trials |

Damages - Personal Injuries - Amended Complaint

Gosse v. Navistar Int'l Transport. Corp., 2000 WI App 8 (filed 9 Dec. 1999) (ordered published 19 Jan. 2000)

The plaintiff leased a truck and later complained that it vibrated excessively. He later sued for personal injuries and other damages under the Lemon Law. The trial court ruled that the Lemon Law does not permit damages for personal injuries and it also refused plaintiff's request to amend the complaint for a third time.

The court of appeals, in an opinion written by Judge Dykman, affirmed. First, the court found that the words "any damages" in Wis. Stat. section 218.015(7) are ambiguous. It held, however, that construing damages to include personal injuries would contravene the Lemon Law's purpose because it "was enacted to give consumers a means by which to ensure that a newly purchased vehicle would conform to its warranty." The plaintiff could have asserted a separate claim under "another law" to recover damages for personal injuries.

As to the second issue, the court upheld the trial judge's refusal to permit a third amendment of the complaint stating such a separate personal injury claim. The motion came more than 22 months after the filing of the original complaint and only two weeks before trial. The judge noted that the plaintiff could have stated an alternative claim in the original complaint. (A third issue relating to the form of the verdict is record-intensive and does not raise any novel legal issues.)

Spousal Impoverishment - Counting One Spouse's IRA as an Asset in Determining the Other Spouse's Eligibility for Medical Assistance

Keip v. Wisconsin Department of Health and Family Services, 2000 WI App 13 (filed 23 Dec. 1999) (ordered published 19 Jan. 2000)

The appellant wife retired in September 1996 and rolled her employee pension into an IRA. The next year she began the medical assistance (MA) application process on her husband's behalf. She learned, however, that the Department of Health and Family Services intended to count her IRA as an asset in determining her husband's eligibility for MA and that the inclusion of the IRA would render him ineligible.

The couple requested a "fair hearing" before the Division of Hearings and Appeals in order to challenge the denial of MA. The hearing examiner concluded that the IRA should not have been included as a resource in determining the husband's MA eligibility. The department's final decision, however, concluded that, under the "spousal impoverishment provisions" of federal law (42 U.S.C. § 1396r-5 (1994)), the IRA was correctly determined to be a countable resource in determining the husband's MA eligibility. The circuit court affirmed.

The court of appeals, in a decision authored by Judge Deininger, reversed. It concluded that the department erred in interpreting the federal "spousal impoverishment" provisions to require the inclusion of a community spouse's IRA as an asset when determining the MA eligibility of her institutionalized spouse.

Wisconsin Income Tax - Taxing Menominee Indian Who Lives on and Derives Income from Oneida Indian Reservation

La Rock v. Wisconsin Department of Revenue, 2000 WI App 24 (filed 28 Dec. 1999) (ordered published 19 Jan. 2000)

The petitioner resides in Wisconsin on land that is part of the Oneida Reservation and is employed by the Oneida tribe on the Oneida reservation. She is a member of the Menominee Indian tribe of Wisconsin. She married an Oneida Indian, with whom she had four children. She is now divorced from her husband. Her children are enrolled members of the Oneida tribe; she is not.

On these facts the issue before the court of appeals was whether the petitioner is exempt from Wisconsin's income tax. The circuit court affirmed a decision of the Wisconsin Tax Appeals Commission, which held that Wisconsin may impose an income tax on her because, although an Indian, she is not a member of the Oneida tribe on whose land she resides and from whom she derives income.

On appeal the appellant argued that she is exempt from Wisconsin's income tax based on her status as an Indian living in and deriving income from sources in Indian country. In a decision authored by Judge Hoover, the court of appeals disagreed. It held that McClanahan v. Arizona, 411 U.S. 164 (1973), exempts from taxation only Indians who reside on and derive income from their own tribe's land. No act of Congress, treaty, state statute, or agreement with any tribe impairs Wisconsin's right to impose an income tax on enrolled members of a federally recognized Indian tribe who live and work on a reservation of another tribe.

Statute of Limitations - Optometrists - "Medical" Care - Affidavits by Attorneys

Webb v. Ocularra Holding Inc., 2000 WI App 25 (filed 28 Dec. 1999) (ordered published 19 Jan. 2000)

The plaintiffs sued an optometrist who allegedly failed to note an abnormal test result while examining the husband, and thus neglected to refer him to a medical specialist. The husband alleged that his headaches and blurred vision were related to a brain tumor that should have been detected earlier. The trial court dismissed the claim because the medical malpractice statute of limitation had expired, thus barring the action.

The court of appeals, in an opinion written by Judge Curley, affirmed. First, the plaintiffs argued that the husband's claim was governed by the statute of limitations in Wis. Stat. section 893.54, not the medical malpractice statute of limitations at section 893.55. The plaintiffs' most compelling argument was that "optometrists" are not listed as "mandatory participants" or even as "optional participants" in Wis. Stat. chapter 655, which governs "medical" malpractice claims. Recent case law, however, undercut this contention. The courts have construed chapter 655 to embrace podiatrists, dentists, and chiropractors who provide "medical care." Hence, optometrists also are swept within chapter 655.

Second, under the medical malpractice statute the action was time barred. Case law established that the statute began to run on the date of plaintiff's one-and-only eye examination by the defendant; in short, the "date of negligence and the date of the injury were the same." ¶20. Since the plaintiffs failed to commence the suit within three years of that date, their only recourse was under the discovery rule, Wis. Stat. section 893.55(1)(b). The record revealed, however, that the plaintiff discussed the optometrist's alleged negligence with the neurosurgeon back in 1995, the day he learned about the tumor. The conversation would not have occurred unless the plaintiff "clearly harbored suspicions about the care rendered." Thus, the discovery statute expired at the end of 1996, before this suit was filed.

Third, the court of appeals also agreed that the plaintiff failed to file adequate affidavits to prove the optometrist's negligence. Specifically, the plaintiff's attorney filed an affidavit reciting the opinion of a medical expert that the optometrist had acted negligently. The attorney's affidavit lacked "personal knowledge" and hence consisted of inadmissible testimony that was stricken for summary judgment purposes.

Jury Bias - Child Witness Videotapes

State v. Jimmie R.R., 2000 WI App 5 (filed 8 Dec. 1999) (ordered published 19 Jan. 2000)

The court of appeals affirmed Jimmie's convictions for sexual assault and incest involving a 5-year-old girl. Judge Nettesheim applied the juror-bias analysis recently prescribed by the supreme court in State v. Faucher and also took the opportunity to elaborate upon it. The court emphasized that subjective bias turns on the juror's demeanor and thus is a determination that ordinarily is best left to the trial judge. Objective bias requires: "(1) some direct or personal connection between the challenged juror and some important aspect of the case, or (2) a firmly held negative predisposition by the juror regarding the justice system that precludes the juror from fairly and impartially deciding the case."

On the record, the court upheld the trial judge's determination that the juror was not biased under either the objective or the subjective test. The court of appeals also remarked upon the "steady stream" of juror bias cases flowing before it. During voir dire lawyers are permitted to ask jurors leading questions which often yield "contradictory" responses depending upon which side asks the question. On appeal each side dutifully and predictably points to the answers that support its position. Thus, it is all the more "appropriate" for the appellate court to defer to the trial court, which is in a "better position to assess the prospective juror's credibility and honesty."

The second issue concerned the admissibility of a videotaped statement under Wis. Stat. section 908.08, which requires that a child have an "understanding that false statements are punishable and the importance of telling the truth." The court held that both concepts - the truth is important and lies will be punished - are interrelated and that most reasonable children would associate the one with the other. Viewing the videotape for itself, the court of appeals was satisfied that the child had made the appropriate connection.

Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.