Wisconsin Lawyer
Vol. 82, No. 4, April 2009

• Criminal Procedure
• Torts

Criminal Procedure

State v. Ndina, 2009 WI 21 (filed 26 Feb. 2009)

The defendant was charged with attempting to kill his nephew. On the third day of the trial there was a disturbance in the courtroom involving the defendant’s family members. The judge directed the bailiff to instruct the individuals to remain silent. The following day there was another disturbance in the courtroom involving the defendant’s family members. The judge noted that people were walking in and out during testimony and expressed concern about the sanctity of the court’s sequestration order. The judge then ordered the exclusion from the courtroom of all of the defendant’s family members, except the defendant’s mother. The excluded individuals were subsequently permitted to return to the courtroom for jury instructions and closing arguments. The defense did not object to the circuit court’s order excluding the family members.

The jury convicted the defendant, who filed a postconviction motion for a new trial. The circuit court (presided over by a different judge) ruled that the defendant’s public-trial right had been violated by the exclusion of his family members from the courtroom. It issued an order granting a new trial. The state appealed.

In a published decision, the court of appeals reversed the circuit court. State v. Ndina, 2007 WI App 268, 306 Wis. 2d 706, 743 N.W.2d 722. It concluded that “by failing to object timely to the circuit court’s order excluding his family from the trial proceedings, the defendant had waived or forfeited his right to argue the Sixth Amendment issue in his postconviction motion and on appeal” (¶ 3). The court of appeals then evaluated the defendant’s public-trial argument in the context of determining whether the defendant’s trial counsel had been ineffective. The court of appeals concluded that the defendant’s claim of ineffective assistance failed because the defendant did not demonstrate that he was prejudiced by his trial counsel’s failure to object to the exclusion of his family (see id.).

In a majority decision authored by Chief Justice Abrahamson, the supreme court affirmed the court of appeals but on different grounds. It chose to directly address whether the defendant’s Sixth Amendment right to a public trial had been violated instead of reviewing the matter through the ineffective assistance of counsel lens as the court of appeals had done. And it noted that “[i]f a defendant’s right to a public trial is determined to have been violated, the defendant need not show prejudice; the doctrine of harmless error does not apply to structural errors” (¶ 43).

An appellate court applies a two-step analysis to determine the question of law whether a defendant’s Sixth Amendment right to a public trial has been violated. The court first determines whether closure of the trial implicates the Sixth Amendment right to a public trial. If it does, the court then must decide whether the closure was justified under the circumstances of the particular trial (see ¶ 46). In this case the court held that closure of the courtroom to the defendant’s family members implicated the values furthered by the Sixth Amendment guarantee of a public trial as articulated by the U.S. Supreme Court. “The closure implicated the values of (1) ensuring a fair trial; (2) reminding the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) encouraging witnesses to come forward; and (4) discouraging perjury” (¶ 54).

Having determined that the public-trial right was implicated by the exclusion of family members, the court turned to the question of whether the exclusion order was justified. “Closure of a criminal trial is justified when four conditions are met: (1) the party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial, (2) the closure must be narrowly tailored to protect that interest, (3) alternatives to closure must be considered by the trial court, and (4) the court must make findings sufficient to support the closure” (¶ 56) (internal quotes omitted).

On the facts of this case the supreme court concluded that the circuit court was justified in excluding the family members. The supreme court held that the circuit court reasonably concluded that the overriding interest of promoting truthfulness served by its sequestration order was imperiled by the conduct of the defendant’s family members (see ¶ 61) and, in the circumstances of this case, the circuit court was justified in applying its exclusion order to all the defendant’s family members (except for his mother) (see ¶ 66). Further, “the circuit court implicitly determined that no less restrictive alternative would protect its interest in ensuring the sanctity of its sequestration order” (¶ 83). Lastly, “[a]lthough we acknowledge that the circuit court’s findings on the record are limited and no hearing was held, we nevertheless conclude that the record is sufficient to support the closure order. The closure was narrowly tailored to serve an overriding interest likely to be prejudiced unless the family members were excluded” (¶ 86).

Justice Prosser filed a concurring opinion that was joined by Justice Ziegler and Justice Gableman. According to Justice Prosser, “This defendant was required to object to the exclusion of family members from the courtroom at the time they were excluded inasmuch as he (and his experienced counsel) knew exactly what was happening and why. He was not entitled to remain silent in the face of the court’s order and then raise a constitutional objection many months after he was convicted and sentenced” (¶ 144).

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Torts

Blunt v. Medtronic Inc., 2009 WI 16 (filed 17 Feb. 2009)

In May 2004 doctors implanted in Blunt a defibrillator made by Medtronic Inc. Less than a year later Blunt underwent a second surgery to replace the original defibrillator because of potential battery problems; Blunt’s device never malfunctioned. He and his wife sued Medtronic, asserting negligence and other claims. The circuit court granted summary judgment to Medtronic on the ground that federal law preempted the Blunts’ state law claims. The court of appeals affirmed.

The supreme court affirmed in an opinion authored by Justice Roggensack. This case is largely controlled by Riegel v. Medtronic Inc., 128 S. Ct. 999 (2008); Blunt raised three issues on which the Riegel decision provided “definitive direction.” “The first is whether Medtronic’s Marquis 7230 implantable cardioverter defibrillator (the Marquis 7230 defibrillator), which was approved under the Food and Drug Administration’s (FDA) premarket approval process, 21 U.S.C. § 360e, met the federal ‘requirement’ specific to that device. … The second question is whether the Blunts’ common law claims, which allege negligence, strict liability and loss of consortium, constitute state requirements that are ‘different from, or in addition to,’ the federal requirement. The third question is whether the preemption analysis of Riegel applies to claims against the Marquis 7230 defibrillator, even though supplemental premarket approval was given to a later defibrillator” (¶ 44).

In answer to the first question, the court held that the Blunts’ claims of negligence and strict products liability unquestionably related to the safety of the original defibrillator. In answer to the second question, the court held that the state claims were “different from, or in addition to, the federal requirements governing premarket approval” (¶ 23). The third issue was whether the FDA’s supplemental approval of later design changes effectively “superseded” (¶ 26) its earlier approval of the original model, thus rendering the device no longer subject to a federal “requirement.” The supreme court “found nothing in the comprehensive federal regulatory scheme that suggests a change in device-specific premarket approval of a Class III medical device occurs simply because a subsequent device has received supplemental premarket approval, and the Blunts have identified no such provision in the federal law. Accordingly, we conclude that the supplemental premarket approval that Medtronic received did not affect the federal requirement of premarket approval granted to the original Marquis 7230 defibrillator” (¶ 32). The majority also relied on the preemption principles discussed in Geier v. American Honda Motor, 529 U.S. 861 (2000).

Justice Bradley, joined by Chief Justice Abrahamson, concurred in the judgment. The concurring justices expressed the “concern that the United States Supreme Court’s interpretation of the 1976 Medical Device Amendments does not adequately protect the safety of the citizens of Wisconsin. With one stroke of a pen, it has diminished the states’ traditional authority over the development of the common law and substituted instead mandatory adherence to a regulatory standard that may be substandard” (¶ 45). The concurring justices did not believe that such adherence was mandated by the express language of the amendments but they acknowledged that they are bound by the Supreme Court’s interpretation (see id.).

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