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    Wisconsin Lawyer
    February 01, 2017

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer


    Expert Opinion Testimony – Specialized Experience

    Seifert v. Balink, 2017 WI 2 (filed 6 Jan. 2017)

    HOLDING: The trial court properly admitted expert medical opinion testimony based on the witness’s specialized experience practicing medicine.

    SUMMARY: The plaintiffs sued Dr. Balink, a family care physician, for negligently causing permanent injuries to their son Braylon during his birth. The plaintiffs presented medical testimony by an obstetrical expert, Dr. Wener, regarding the multiple mistakes made by Dr. Balink that led to Braylon’s shoulder dystocia. The trial judge overruled defense objections that Dr. Wener’s opinion did not comport with the standard of admissibility set forth in current Wis. Stat. section 907.02.

    The jury returned a verdict in favor of the plaintiffs. In a published decision, the court of appeals affirmed, finding that the trial court properly exercised its discretion. See 2015 WI App 59.

    The supreme court affirmed but its decision produced no majority opinion. Nonetheless, there is helpful common ground. The entire court agreed that specialized experience can form an appropriate basis for expert opinion testimony. Five justices found that the trial court appropriately exercised its discretion in admitting the testimony here, thus underscoring the primacy of the trial judge’s discretion. The opinions total approximately 135 pages; their subtleties are left to the reader. The opinion also addressed multiple objections to the plaintiffs’ closing argument, including “golden rule” violations, which are not addressed in this summary.

    Justice Abrahamson wrote the lead opinion. The primary issue concerned the admissibility of Dr. Wener’s expert opinion testimony under Wis. Stat. section 907.02, which is based on Federal Rule of Evidence 702, which in turn embraced the “Daubert” rule. See Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Essentially, expert opinion testimony must be predicated on specialized knowledge that is the product of reliable methods that are reliably applied to sufficient facts and data. Dr. Wener’s methodology was based on his specialized experience in delivering babies.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The lead opinion deeply draws on federal authority recognizing that experts, including physicians, may rely on specialized experience even when those methods are not tested or peer reviewed (see ¶ 80). Reliability “is not served by excluding medical expert testimony that is supported by extensive relevant medical experience” (¶ 85). The lead opinion “commend[ed]” the circuit court’s scrutiny of Dr. Wener’s “personal clinical experience” (¶ 98).

    The court discussed and rejected the defense’s objections to Dr. Wener’s methodology (see ¶¶ 99-129). His opinions were not based on “personal preferences” (¶ 111). “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” (¶ 122). Any inconsistencies in Dr. Wener’s assessment went to the weight of the evidence (see ¶ 132).

    Justice Ziegler concurred in the decision to affirm but did not join the lead opinion. First, the lead opinion did not, she believed, “sufficiently address” the “significant effect” of the new rule.
    Second, it does not provide sufficient guidance to trial courts. Nonetheless, Justice Ziegler agreed that “this court should uphold the circuit court’s decision” admitting Dr. Wener’s testimony
    (¶¶ 170, 190).

    Justice Gableman, joined by Chief Justice Roggensack, concurred in the judgment. This concurrence too found that Dr. Wener “had a reliable method. … When assessing expert testimony we are looking for good grounds, not flawless grounds” (¶ 244).

    Justice Kelly, joined by Justice Rebecca Bradley, dissented. They found Dr. Wener’s testimony too subjective and of too little assistance in determining what a “qualified family practitioner,” such as Dr. Balink, should have done during the delivery (¶¶ 280, 292).

    Public Records Law

    Training Videos from Prosecutor Education Conferences – Wisconsin Public Records Law

    Democratic Party of Wis. v. Wisconsin Dep’t of Justice, 2016 WI 100 (filed 28 Dec. 2016)

    HOLDING: The public policy factors favoring nondisclosure of videos from a prosecutor training conference overcame the presumption in favor of disclosure under Wisconsin’s public records law.

    SUMMARY: In this case the circuit court granted a writ of mandamus compelling the Wisconsin Department of Justice (DOJ) to disclose two video recordings requested by the Democratic Party of Wisconsin under Wisconsin’s public records law (Wis. Stat. §§ 19.31– 39). The videos depicted presentations made at Wisconsin State Prosecutors Education and Training conferences by Attorney General Brad Schimel when he was the Waukesha County district attorney. These conferences were training sessions for prosecutors and victims’ rights advocates, with some law enforcement representatives present. Attendance was limited to those groups, and the conferences were not open to the public or the media. One video recording was of a presentation made by Schimel on May 14, 2013, on the topic of victim confidentiality, and the other video recording was of a presentation on June 17, 2009, concerning the prosecution of online child-exploitation cases and common defenses thereto.

    After applying the public records balancing test, the DOJ record custodian concluded that the public interest in nondisclosure of these videos outweighed the general presumption favoring their release. In an unpublished opinion, the court of appeals affirmed the circuit court’s grant of a writ of mandamus compelling the DOJ to release the videos. In a majority opinion authored by Justice Rebecca Bradley, the supreme court reversed the court of appeals.

    With respect to the 2009 video, the supreme court found that the fact that Schimel is an elected official weighs in favor of disclosing the video. “The content of the 2009 video, however, and its potentially harmful impact on the public interest weighs strongly in favor of nondisclosure. In the video, Attorney Schimel discusses tactics and strategies used by law enforcement and prosecutors to catch and convict criminals who prey on minors. The techniques discussed involve undercover and sting operations to catch criminals who use computers to victimize children” (¶ 18).

    “Releasing this video would create a significant risk that specific techniques and strategies being used in Wisconsin could instantly be disseminated over the internet and exploited by sexual predators” (¶ 19).

    “In applying the balancing test to the 2009 video, we conclude that the public interest in preventing release of specific police and prosecution strategies and techniques being taught and used in Wisconsin outweighs the general legislative presumption that public records should be disclosed. We are a State committed to open and transparent government, but if disclosure results in greater public harm than nondisclosure, the scale must tip in favor of nondisclosure, especially when sexual exploitation of vulnerable children is at risk. Because the 2009 video consists almost entirely of police tactics and specific prosecution strategies in cases involving sexual exploitation of children, disclosure would result in public harm. The public policy factors favoring nondisclosure thus overcome the presumption in favor of disclosure” (¶ 24).

    With regard to the 2013 video, the supreme court balanced the equally important public policies of openness of public records against the constitutional declaration demanding protection and fair treatment of victims, coupled with the need for victim reporting and cooperation to identify lawbreakers.

    The majority concluded “that the Public Records Law did not require the record custodian to release the 2013 video.… [I]t contains an oral account of the prosecution of a high school student who sexually extorted dozens of his fellow students. The account was presented at a confidential prosecutor training seminar, and aside from the general presumption favoring disclosure, it has little public value. Disclosure would provide the public with Attorney Schimel’s mental processes and thoughts with respect to a sex extortion case he prosecuted many years ago…” (¶ 33).

    “[R]eleasing the video would give the public insight into Attorney Schimel’s discretionary charging decisions, and it would likely reignite the public and media outrage associated with the crimes at issue here. It would undoubtedly retraumatize and harm the victims who were minors at the time of these crimes, and its disclosure would send a strong message to crime victims that the continued pain that sometimes accompanies the pursuit of justice does not end – even when a prosecution is complete and the case is closed. The balancing test clearly weighs in favor of nondisclosure and strongly overcomes the presumption favoring disclosure” (id.).

    The court also found that the 2013 recording is an accounting of a single case and the functional equivalent of a prosecutor’s case file, which is exempt from disclosure under State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991).

    Justice Abrahamson filed a dissenting opinion that was joined in by Justice Ann Walsh Bradley.


    Valuations – Regulated Housing

    Regency W. Apartments LLC v. City of Racine, 2016 WI 99 (filed 22 Dec. 2016)

    HOLDING: The valuation methodology the city applied for purposes of assessing real estate taxes did not comply with state law.

    SUMMARY: A limited liability company (LLC) that owned an apartment complex sued the city of Racine to recover refunds from claimed excessive taxation for 2012 and 2013. The circuit court dismissed the claims and, in an unpublished per curiam opinion, the court of appeals affirmed.

    The supreme court reversed the court of appeals in an opinion authored by Chief Justice Roggensack. The court held that Racine’s valuation methodologies did not comply with Wisconsin law for both 2012 and 2013. Put otherwise, the LLC had overcome the presumption of correctness that is applied to valuations.

    For 2012, both Racine and the LLC used an income approach but reached different conclusions. Racine used market-rate vacancies and market-rate expenses instead of the vacancy and expense projections that were specific to this property, which was federally regulated housing (see ¶¶ 36-37, 52). For 2012, Racine valued the property at $4.425 million, while the LLC valued its property at $2.7 million. The LLC’s “appraisal is the best evidence of the property’s value” (¶ 57). For 2013, the LLC again used the income approach to valuation, but Racine applied a “comparative sales approach” (¶ 58). The court held that only the LLC’s valuation complied with Wisconsin law.

    Justice Abrahamson dissented, joined by Justice Ann Walsh Bradley, contending that the “majority opinion flouts the longstanding principle that property tax assessors should use the best information possible in order to determine real property’s full value, upends the proper scope of appellate review, and inserts itself as a fact-finder” (¶ 74).

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