Peer Reviewed Publications Not Required for Expert Opinion, Appeals Court Rules
The Wisconsin Court of Appeals has lowered the bar for admissible medical expert witness testimony, drawing a distinction between medical professionals and other experts.
In Seifert v. Balink, M.D., 2015AP59 (July 30, 2015), the circuit court had ruled that, in regards to medical expert testimony, the Daubert standard must be flexible. The circuit court admitted that the medical expert witness used a "'holistic' methodology" that likely could not be tested.
The medical expert's holistic methodology used no peer reviewed publications nor any reference to published medical guidelines to support his testimony about standards of prenatal and delivery care, relying entirely on his "extensive experience." In upholding the circuit court, the Wisconsin District IV Court of Appeals found that "reliance on peer reviewed publications is just one factor that courts may consider under Daubert." .
In the case, Kimberly and David Seifert sued Dr. Kay Balink for negligence after their baby suffered nerve damage that permanently impaired his left arm. Dr Balink had provided prenatal care to Kimberly and delivered the baby.
The Seifert's Obstetrics & Gynecology expert witness, Dr. Jeffery Wener, testified that the care provide by Dr. Balink fell below the requisite standard because she:
- did not perform an ultrasound to estimate fetal weight immediately prior to birth;
- did not order a three-hour glucose test to determine whether the Kimberly Seifert had gestational diabetes; and,
- she should not have performed a vacuum-assisted delivery because of weight considerations.
The combination of these three factors, Dr. Wener opined, increased the baby's risk for shoulder dystocia, potentially causing nerve damage and oxygen depletion.
Dr. Wener also testified that he considered the baby to have macrosomia (excessive birth weight) when it's estimated weight just before birth was 3856 grams (eight pounds, eight ounces), although the threshold for macrosomia is considered to be either 4000 or 4500 grams.
Before trial, Dr. Balink filed a motion to exclude Dr. Wener's testimony as inadmissible, arguing that his testimony was not based on "reliable principles or methods" but "… based solely on his personal preferences in practicing medicine" and that he did not reliably apply his opinions to the facts of the case. Under guidelines from the American College of Obstetrics and Gynecology, Dr. Balink gave Kimberly Seifert a one-hour gestational diabetes screening, which Seifert passed.
The circuit court denied Dr. Balink's motion, and at trial the jury found Dr. Balink negligent. The Seifert's were awarded almost $900,000. Dr. Balink appealed, arguing that Dr. Wener's testimony did not meet the Daubert standard for admissibility and that opposing counsel had broken the Golden Rule prohibition, justifying a new trial.
The appellate court unanimously rejected Dr. Balink's claim that Dr. Wener's testimony about her standard of prenatal and delivery care should have been excluded.
She did not challenge Dr. Wener's qualifications, the court noted, but rather his opinions. Dr. Balink argued that Wener's opinions did not meet the five-factor test from Daubert and Rule 702; his opinions were unreliable because personal experiences cannot be "challenged in some objective sense."
The appellate court differentiated between the "reliability" and the "weight" of opinions. The circuit court was within its discretion to allow Dr. Werner's testimony because it "... could be weakened or discredited on cross-examination, through other expert testimony, or by argument." The appellate court noted Primiano, 598 F.3d at 564: "Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion."
The circuit court acknowledged that the reliability of Dr. Wener's opinion was a “close call.” While in upholding the decision the court of appeals has made a distinction between medical and non-medical experts, the the impact of that distinction may not be as great as some would suggest.
Dr. Balink argued as well that the Golden Rule prohibition against emotional arguments was violated twice, first when opposing counsel asked the jury "Is that reasonable medicine to you? Is that how you want your doctor to care?" and again later “Is that what you want?… You want a doctor to say … no test for you. Or do you want a doctor to think about you?”
The prohibited Golden Rule argument in personal injury cases is one where a plaintiff's attorney asks jurors to put themselves in the position of the plaintiff in determining what they would want as compensation, an appeal to emotions that is generally prohibited.
At trial, Dr. Balink's counsel had objected to the statements, but they were not stricken. Instead, the circuit court gave a curative instruction.
The appellate court found that the statements were not pure violations of the Golden Rule because opposing counsel did not explicitly ask the jury to place themselves in the plaintiffs' shoes.
In Seifert, the Wisconsin appellate court has shown that the Daubert standard is not always that high, even though some states are still debating the costs and complexities of adopting it.