Author: Hamilton

1st District Court of Appeals Decision: Greta Crawford v. Aurora Sinai Medical Center (Medical Malpractice)

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In Greta Crawford v. Aurora Sinai Medical Center (2018AP40), the Court of Appeals District I upheld the dismissal of a negligence claim against an emergency room doctor and Aurora Sinai Medical Center because the plaintiff lacked a credible expert witness.

Milwaukee police transported Greta Crawford to Aurora following her arrest. Crawford refused treatment but received several tests. Crawford argued that her improper hospitalization caused physical and mental/emotional injury and filed suit against Aurora and the emergency room doctor for her injuries.

The circuit court ruled that Crawford’s sole witness was not qualified to testify that the emergency room doctor did not meet the appropriate standard of care. The appeals court subsequently upheld summary judgment in favor of Aurora because Crawford presented no expert witness as required in medical malpractice claims.

3rd District Court of Appeals Decision: Shawn M. Wallace v. Richard R. Woodford (Admissibility of Evidence)

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In Shawn M. Wallace v. Richard R. Woodford (2016AP2359), the Court of Appeals District III maintained that Central Mudracing Association and Chippewa Valley Antique Engine & Model Club were not negligent in a mud bog racing accident that injured plaintiff Shawn Wallace.

The appeals court denied Wallace’s argument that the court should have included evidence of a prior accident at the track. The 2005 accident was properly excluded because the circumstances were substantially different from the accident at issue, Central Mudracing took remedial action after the first accident, and the jury could draw the same inferences with or without knowing of the 2005 accident.

Wallace further argued that Central Mudracing and Chippewa Valley made improper closing arguments that indicated no previous accidents had occurred on the track. However, the appeals court held that the defense attorneys’ claims implied no similar accident had previously occurred. The closing arguments were consistent with the court’s decision to exclude the 2005 accident evidence based on dissimilarities in the circumstances.

Finally, Wallace argued the court should have included a report from an accident reconstruction specialist, but the appeals court upheld that the expert testimony failed to meet the admissibility criteria in Wis. Stat. § 907.02.

1st District Court of Appeals Decision: Harley-Davidson v. LIRC (Worker’s Compensation)

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In Harley-Davidson v. LIRC (2017AP2284), the Court of Appeals District I upheld a Labor and Industry Review Commission (LIRC) decision that a Harley-Davidson employee sustained 85 percent hearing loss from noise exposure during his employment, despite conflicting medical opinions.

After retiring from Harley-Davidson’s power train assembly division, Robert Schulfer underwent several hearing tests indicating he had severe hearing loss. When Harley-Davidson denied his claim for hearing aids reimbursement, Harley-Davidson requested he undergo another test by their appointed doctor. That doctor indicated Schulfer might have been faking his hearing loss, based on results conflicting with other tests.

LIRC appointed a third independent physician, whose tests were inconsistent. A pure tone audiometry test suggested severer hearing loss than a speech reception threshold test. Citing the unreliability of the patient, the physician used the speech reception threshold test to calculate Schulfer had 33 percent hearing loss.

Despite the unreliability of the physician’s pure tone audiometry test, LIRC used the pure tone test to determine that Schulfer had 85 percent hearing loss as a result of working at Harley-Davidson. Department of Workforce Development code requires pure tone tests for determining hearing impairment.

Harley-Davidson appealed on the grounds that the physician himself stated the pure tone test was unreliable. However, the appeals court found that LIRC resolved the inconsistencies among the tests and there was substantial and credible evidence in all three physicians’ test results supporting LIRC’s determination.

3rd District Court of Appeals Decision: Halderson v. Northern States Power Co. (Stray Voltage)

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In Halderson v. Northern States Power Co. (2017AP2522), the Court of Appeals District III upheld that Northern States Power (NSP) was negligent but not liable for treble damages for stray voltage on the Halderson family’s dairy farm.

The Halderson’s filed suit against NSP alleging stray voltage caused injury to their dairy herd. The Haldseron’s claimed negligence and damages under Wis. Stat. § 196.64(1), which requires public utilities to pay treble damages for negligent actions performed “willfully, wantonly or recklessly.”

The appeals court upheld the jury’s negligence verdict against NSP because NSP did not perform basic tests specified by the Public Service Commission (PSC) nor additional tests after the initial ones failed to reveal stray voltage. Furthermore, the court found NSP negligent because it did not conduct measurements in proper locations and did not initially inform the Haldersons of their right to request neutral isolation to mitigate the effects of the stray voltage on their cows.

NSP argued that the Halderson’s negligence claim was insufficient because it relied on testing beyond PSC mandates. However, the appeals court rejected this argument because Wis. Stat. § 196.857(1g)(b) does not prohibit public utilities from using testing procedures beyond those standardized by PSC, and PSC’s stray voltage Docket 106 mandates that utilities should pursue additional tests when animals exhibit stray voltage symptoms.

Although the court ruled NSP negligent, there was no clear and convincing evidence that NSP acted “willfully, wantonly or recklessly” as required for treble damages. The court upheld the circuit court judge’s directed verdict reversing the jury’s $4.5 million treble damages award to the Haldersons under Wis. Stat. § 196.64(1).

On appeal, NSP also raised objections to the jury instructions on finding negligence based on violation of a safety statute. NSP said the instructions misinterpreted PSC dockets as safety statutes, “cherry-picked” only docket provisions favorable to the Haldersons, and did not accurately reflect the dockets’ mandates. The appeals court held that NSP forfeited its right to object to the jury instructions during the circuit court trial.

The appeals court also denied NSP’s request for a new trial based on the fact that the Halderson’s attorney failed to disclose a familial relationship to one of the jurors.

ATRA Tort Reform Record Recognizes Wisconsin Legislation

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In its July 2018 Tort Reform Enactments and Record, the American Tort Reform Association (ATRA) has recognized Wisconsin for 2017 Act 235. Act 235 included common-sense discovery and class action reforms to address the high transactional cost of litigation. Act 235 also makes Wisconsin the first state in the country to require disclosure of third-party litigation funding.

ATRA’s biannual Tort Reform Enactments and Record highlights the civil justice laws enacted throughout the country. The report shows Wisconsin leading the way in terms of the substance and number of changes enacted into law.

Read more about Act 235.

Judge Neubauer Announces Run for Supreme Court

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Wisconsin Court of Appeals Chief Judge Lisa Neubauer announced last week her candidacy for Wisconsin Supreme Court.

Judge Neubauer is running for the seat that will be vacated by Justice Shirley Abrahamson’s retirement in 2019. Justice Abrahamson announced in May she will not run for re-election after four terms on the bench.

Judge Neubauer has served on the Second District Court of Appeals in Waukesha since she was appointed by Gov. Jim Doyle in 2007. She became chief judge in 2015. Prior to serving on the appeals court, Judge Neubauer was a partner at Foley & Lardner and clerked for U.S. Judge Barbara Crabb.

Judge Neubauer’s husband has previously served as a Democrat in the state legislature, and her daughter Rep. Greta Neubauer (D-Racine) currently represents Assembly District 66.

Second District Appeals Court Judge Brian Hagedorn has also expressed interest in running for Abrahamson’s seat, though he has not formally announced a candidacy.

Supreme Court Decision: Wisconsin Bell v. Labor and Industry Review Commission (Employment Discrimination)

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In a 5-2 decision, the Supreme Court established that employers must know an employee’s disability caused misconduct in order for the Labor and Industry Review Commission (LIRC) to determine intentional employment discrimination.

Previously in employment discrimination cases, LIRC used the “inference method,” which finds intent to discriminate when employers take action against employees for any misconduct caused by a disability. The decision amended LIRC’s “inference method” by requiring employers’ have knowledge that an employee’s disability caused the misconduct.

In 2010, Wisconsin Bell suspended employee Charles Carlson for inappropriately hanging up and blocking customer calls. In a hearing related to Carlson’s suspension, Carlson’s treatment providers wrote letters to Wisconsin Bell describing Carlson’s diagnosis of bipolar disorder, but the letters did not detail specifically how the disorder affects Carlson’s workplace conduct. As a condition for returning to work after the suspension, Carlson signed a “last chance agreement” stating that he would be terminated for another infraction.

Almost a year later, Carlson broke the last chance agreement, and Wisconsin Bell terminated him. Carlson claimed Wisconsin Bell intentionally discriminated against him because his bipolar disorder caused his misconduct.

The court held that Wisconsin Bell did not violate Wisconsin’s employment discrimination statute (Wis. Stat. § 111.322(1)) because it was not aware Carlson’s bipolar disorder caused his misconduct.

This decision also further clarifies the court’s position on the agency deference doctrine, decided in Tetra Tech v. Department of Revenue. Here, the court did not defer to LIRC’s decision but gave “due weight” to the agency’s technical experience.

Supreme Court Decision: Department of Workforce Development v. Labor and Industry Review Commission (Unemployment Compensation)

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In a unanimous decision, the Supreme Court held in DWD v. LIRC that terminated employees are not eligible for unemployment compensation if they violate their employer’s absenteeism policy, even if the policy is stricter than the policy in statute.

In this case, terminated employee Valerie Beres violated the written attendance policy that she signed with her employer by missing a shift without notifying the employer. The employer’s single instance policy was stricter than the two occasions in a 120-day period policy laid out in the unemployment compensation absenteeism statute (Wis. Stat. § 108.04(5)(e)).

The unemployment compensation statutes state that employees terminated for “misconduct” – including absenteeism – are ineligible for benefits. Citing those statutes, the Department of Workforce Development (DWD) denied Beres benefits. Beres appealed to the Labor and Industry Review Commission.

The court’s ruling upheld DWD’s decision to deny Beres benefits. The court ruled that, according to the “unless clause” in Wis. Stat. § 108.04(5)(e), employers may adopt absenteeism policies stricter than the statute. If employees have violated their employer’s stricter policy, they are still ineligible for unemployment compensation.

Supreme Court Decision: Porter v. Wisconsin (Anti-Combination Statutes)

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A 5-2 Supreme Court held in Porter v. Wisconsin Funeral Directors Examining Board that the anti-combination laws prohibiting ownership of both a cemetery and funeral home are constitutional. In another interesting split decision for this term, liberal Justice Shirley Abrahamson wrote the opinion, and only two out of five conservative justices dissented.

The plaintiff in this case is E. Glen Porter, who owns Highland Memorial Park cemetery in New Berlin and wished to expand his business by opening a funeral home. Because owning both is illegal under the anti-combination laws (Wis. Stat. § § 157.067(2) and 445.12(6)), Porter sued the state, arguing a violation of the constitutional rights to due process and equal protection.

The court used the same rational basis test as in Mayo to determine that the anti-combination laws are rationally related to legitimate government interests in protecting consumers. Therefore, the anti-combination statutes survive the rational basis test and survive Porter’s constitutional challenge.

The dissent from Justices R. Bradley and Kelly disagrees with the state’s assessment that joint ownership of cemeteries and funeral homes would create an unfair market and harm consumers. Thus, the dissent argues the anti-combination laws lack rational relation to the legitimate government purpose of protecting consumers. The dissent also suggests that a potential violation of the fundamental right to economic liberty deserves strict scrutiny, rather than the broader rational basis test.

Supreme Court Decision: Kristi Koschkee v. Tony Evers (REINS Act & State Agency Counsel)

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The Supreme Court held that the Department of Public Instruction (DPI) and the state superintendent may retain separate counsel instead of representation by the Department of Justice (DOJ).

The cases rises from a dispute about whether DPI must comply with the Regulations from the Executive In Need of Scrutiny (REINS) Act (2017 Act 57). Stemming from the REINS Act dispute, another dispute arose between DPI and DOJ regarding whether DOJ attorneys should represent DPI. DOJ said DPI is subject to the REINS Act, a position contrary to DPI and DPI Superintendent Tony Evers. DOJ filed a motion that they should be DPI’s attorneys. DPI filed a motion to deny substitution of DOJ for their in-house counsel.

The court used its “superintending and administrative authority over all courts” (Wisconsin Constitution Art. 7 § 3) to allow DPI the counsel of their choice. The court argued that allowing DOJ to represent Evers and DPI would have given the attorney general too much power and would be unethical because of their disagreeing positions on the case.

The court also ruled that Gov. Scott Walker is not a necessary party to the action because he did not fulfill the statutory criteria necessary for a party to be joined in a case (Wis. Stat. § 808.03(1)). The court said the governor’s obligation to review scope statements under the REINS Act is not affected by the outcome of the DPI case.

 In a concurring opinion/dissent, Justice R. Bradley (joined by Justices Gableman and Kelly) agreed that Gov. Walker should not be a party to the action but would have allowed DOJ to represent DPI and Evers. The dissent argued that Wis. Stat. § 165.25(1m) says the governor can request DOJ represent any state department/agency in any matter in which the state has interest. The dissent says the court inappropriately exercised its superintending authority to override the statutes, which give no independent litigation authority to DPI or the state superintendent.