A medical negligence case out of Wisconsin last week provides an interesting look at the varying and subjective ways to determine the admissibility of expert witness testimony.
Seifert v. Balink, M.D. concerned an obstetrician, Dr. Kay Balink, who was sued and found liable for medical negligence in the delivery of the Seifert family’s child. Kimberly Seifert’s baby faced complications during delivery due to shoulder dystocia – basically, when a baby’s shoulder gets stuck – and in spite of Dr. Balink’s attempts to complete delivery without incident, the baby was born with a permanent brachial plexus injury, which limits arm functioning.
The Seiferts alleged medical negligence for several reasons, including Dr. Balink’s choice of prenatal tests and ultrasounds, underestimation of the baby’s weight, and use of a vacuum device during delivery. The family won their initial jury trial, but Dr. Balink appealed to the Wisconsin State Supreme Court on grounds that the plaintiff’s expert witness, an obstetrician as well, “based his opinions on personal experience rather than generally accepted standards and medical literature in the area of obstetrics.” This is essentially a question of whether the expert witness testimony was considered reliable under the Daubert reliability standard, which governs admissibility.
Here’s where it gets interesting. The State Supreme Court upheld the original verdict, agreeing that the circuit court judge properly admitted the expert testimony. But the decision was not unanimous. Five judges concurred that the expert was in fact reliable, while two dissented, but the five agreeing judges delivered three different opinions as to why they made their decisions.
The expert witness in question, Dr. Jeffrey Wener, is a certified OB-GYN in Chicago who has delivered up to 8,000 babies over a 36-year career and chaired the OB-GYN department of a hospital for 20 years. He said that he has seen up to 40 instances of shoulder dystocia, and testified that Dr. Balink did not meet acceptable standards of care in this case.
No one challenged Dr. Wener’s credentials as a physician. What came under scrutiny was that he based his expert witness testimony on his own personal experiences. The defendant, Dr. Balink, cited the Daubert reliability standard, which says that expert witness testimony is admissible if 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.” She argued that personal clinical experience does not equate to generally accepted medical standards.
As mentioned above, the court disagreed. Justice Shirley Abrahamson delivered the lead opinion, in which she asserted that “experience-based expert evidence may pass muster as a method under the reliability requirement. An expert cannot establish that a fact is generally accepted merely by saying so… [but] 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.” She also, as mentioned by the State Bar of Wisconsin article, “noted that medical decision-making is not a strict application of science… If a physician has enough knowledge and experience to form an expert opinion, that expert opinion can be considered reliable.”
If you’ll allow me to insert my two cents: I agree. Hear, hear, Justice Abrahamson.
Four of her fellow judges concurred, but two felt compelled to write separate opinions clarifying their positions. Justice Ziegler stated that “the lengthy lead opinion does not adequately guide trial courts with regard to how they should apply Wis. Stat. § 907.02 .” She said that the Balink case was a “close call” and that “a best practice for trial courts and counsel is to create a detailed, complete record regarding why any particular expert’s testimony meets the heightened scrutiny” of the Daubert reliability standard.
I agree with Justice Ziegler’s sentiment as well. Standards like Daubert require meticulous proof that an expert is, indeed, an expert. This is one of many reasons why the expert witness selection process is so critical, and why a service like ECS can be so beneficial to attorneys who need to ensure the credibility and reliability of their witnesses.
Finally, Justice Gableman, joined by Chief Justice Patience Roggensack, wrote separately to further elucidate how he reached his decision. For these justices, the framework for establishing reliability is quite simple. “Dr. Wener had a reliable method of determining the standard of care applicable to this case because of his experience. His conclusion that Dr. Balink breached that standard of care logically follows from that method.”
For their parts, Justices Kelly and Bradley concluded that Dr. Wener’s testimony did not meet the requirements set forth by Daubert, and that credentials do not translate to standards. “Instead of determining whether Dr. Wener was qualified to discover and describe the proper standard of medical care,” Kelly rather tersely writes, “we found that he is the standard of medical care.” This time, I can’t say I agree.
This case offers a fascinating look at how seven different judges interpret a single standard in a very real, and likely common, scenario. This insight is particularly helpful given the popularity of the Daubert standard for determining expert witness reliability around the country. What, under the law, qualifies as expertise? Sometimes experience alone is enough, but sometimes it’s not. The key is for you – and your expert – to know the difference.