*1 of Sarah M. Hegarty, deceased, Estate Hegarty, Special Jeremiah J. Administrator, Hegarty Mary Hegarty, Jeremiah J. D. Plaintiffs-Respondents-Cross-Appellants,
v. Angela Beauchaine, M.D., Defendant-Appellant-Cross-Respondent,† OHIC Insurance Company, foreign corporation, insurance Defendant-Co-Appellant-Cross-Respondent.† of Appeals
Court No. 2004AP3252. Submitted on June 2006. briefs —Decided October 2006 WI App (Also 857.) reported in 727 N.W.2d † Petitions review denied 3/14/07. *13 defendants-appellants-cross- of the On behalf respondents Angela Beauchaine and OHIC Insurance Company, on the of the cause was submitted briefs Knight Kathryn Keppel Gimbel, and A. of Patrick J.
Reilly, Milwaukee, and John S. & Brown of Guerin Christopher Skilton, Bina Hanewicz and Gabrielle E. G. LLP of Heller Ehrman of Madison. defendant-co-appellant-cross- of the On behalf Company, respondent the cause was OHIC Insurance Banks, Jr., H. and on the briefs of Emile submitted Associates, LLC, & of L. Arrowood oí Emile Banks Vicki Milwaukee. plaintiffs-respondents-cross-
On behalf appellants, on the briefs of the cause was submitted and Edward E. Cannon, Sarah F. Kaas William M. Dunphy, & of Brookfield. Robinson Cannon Curley Nettesheim, JJ. Fine, Before appeal This is an and cross- CURLEY, J. malpractice wrongful appeal medical death and following jury of the Estate verdict favor action (Sarah) surviving parents, Hegarty and her M. Sarah (collectively, Mary Hegarty Hegarty D. Jeremiah J. against Angela Hegartys), Beauchaine, company, Insurance OHIC M.D., and her insurance (OHIC). Company (1) appeal by
¶ 2. This case of: consists an judgment; jury findings, OHIC, verdict; from the all rulings during pretrial proceedings, and orders made (2) during regarding post-verdict trial and motions; *14 (collec- appeal combined OHIC and Dr. Beauchaine Beauchaine/OHIC) tively, judgment; jury from the ver- findings, rulings during pre- dict; all and orders made proceedings, during regarding post- trial trial and (3) cross-appeal by motions; verdict and the judgment. from the (1)
¶ 3. OHIC contends that: the Pa- Wisconsin (the Fund)1 Compensation liability tients negligence Fund's for against triggered assessed Dr. Beauchaine is (2) primary policy exhausted; after OHIC's the trial respect special court erred with to the verdict form (a) instructing jury damage in: to answer the question only "yes" if it had answered to one or more of (b) preceding questions; refusing cause to include a question inquiring as to whether Dr. Beauchaine was (i) (ii) employee, conducting a loaned or borrowed (3) provider; business of a health care counsel OHIC right participate should not have been denied the in (4) copies trial; OHIC was entitled to of a settlement agreement plaintiffs settling that the entered into with (5) reading jury defendants; and the trial court erred in damages prior testimony instructions on to the plaintiff Hegarty. Jeremiah
¶ 4. We conclude that the trial court did not (1) granting declaratory judgment in err: liability triggered primary Fund's was not until OHIC's (2) policies respect and exhausted; umbrella were with (a) special instructing jury to the verdict form in: Injured Now known as Wisconsin and Patients Families Compensation Fund. damage question only
to answer the if it answered one preceding questions "yes"; or more of the cause (b) failing question inquiring to include a as to whether (i) employee, Dr. Beauchaine was a loaned or borrowed (ii) conducting provider; the business of a health care (3) denying right participate counsel for OHIO the (4) reading jury damages trial; at instructions on prior testimony Hegarty, to the of Jeremiah and affirm respect appeal. with to these issues raised in OHIC's We refusing further conclude that the trial erred in court production agreement, order of the settlement therefore reverse remand this issue to the trial agreement court and order the release of the to OHIO. (1) ¶ 5. contend that: Beauchaine/OHIC 893.55(4) § ruling trial court erred in that Wis. Stat. (2003-04)2 (2) apply did Beauchaine; to Dr. the trial *15 permitting uncapped pre-death in court erred an award society companionship damages of loss of and to Sarah's (a) parents Hegartys because: the were not entitled to separate pre- post-death society awards for and loss of (b) companionship; Hegartys' pre-death and if even the society companionship loss of and claim was recover- capped by wrongful able, it was the death statute and (c) 898.55(4)(b); § Hegartys' pre- and Wis. the Stat. claim death was not recoverable because it was based (3) upon pain suffering; their own and the issue of Dr. comparative fairly Beauchaine's fault was not tried (a) erroneously: because the trial court excluded evi- regarding negligence prior dence the causal to March (b) regarding possible neg- 20, 1996, excluded evidence ligence 21, 1996; after 7:00 a.m. on March and (c) testimony Kalt, excluded the of and Drs. Lewis and
2All to the references Wisconsin Statutes are to the 2003-04 version unless otherwise noted. (4) testimony Schmidt; of Dr. the trial court
limited the erroneously permitted Hagen expert Dr. to offer testi- (5) mony; erroneously the trial court excluded evidence (6) relating employment file; Dr. the trial to Beauchaine's erroneously College excluded the Medical of Wis- court (the College) special consin Medical from the verdict (7) form; and the trial committed cumulative court trial in the interests of errors necessitate new justice.
¶ 6. We conclude that the trial court did not (1) 893.55(4) § ruling in err: apply that Wis. Stat. did not (2) permitting uncapped in an Beauchaine;
to Dr. society pre-death companionship award for loss of and (a) parents Sarah's because: were entitled separate pre- society post-death and and loss (b) companionship Hegartys' pre-death awards, loss society companionship capped and claim is not (c) § wrongful 893.55(4)(b), death statute or and Hegartys' pre-death claim is recoverable because it was (3) upon pain suffering; not based excluding their own in regarding alleged negli- evidence causal gence prior excluding 20, 1996, to March evidence re- garding possible negligence after on March 7:00 a.m. testimony excluding Kalt, of Drs. Lewis and (4) limiting testimony permit- in Schmidt; of Dr. ting Hagen's testimony, because the court issued (5) excluding relating instruction; curative in evidence (6) employment excluding file; Dr. Beauchaine's College special the Medical from the verdict form. Be- required cause the trial court did not no err, new trial is justice. the interests We therefore affirm with *16 respect ap- to the in issues raised Beauchaine/OHIC's peal. (1) Hegartys
¶ 7. The contend that: the trial reducing damage against in court erred the awards Dr.
88 representing 25%, Beauchaine and OHIC the causal negligence party attributed to dismissed Dr. Stremski jointly because, Dr. since Beauchaine and are OHIC and severally damages, liable for 100% of the and the Hegartys' agreement pursuant settlement not was to a Pierringer3 release, Dr. Beauchaine and OHIC are en- only they $840,046.33 titled to a credit of amount —the would be entitled to recover from in a Stremski (2) limiting action; the contribution trial erred in court Hegartys' recovery past expenses of medical to the paid by involuntary plaintiff amount Milwaukee 893.55(7) County, § applica- because Wis. Stat. has no tion outside Wis. Stat. ch. 655, and therefore does not (3) apply Beauchaine; to Dr. and trial in court erred refusing statutory against to assess interest OHIC pursuant § Wis. 628.46. Stat.
¶ 8. We conclude that the trial court did not (1) limiting Hegartys' recovery past err: in expenses paid by involuntary medical to the amount plaintiff County, Milwaukee because Wis. Stat. 893.55(7) § light properly applied, was in of the fact that Dr. Stremski a Wis. Stat. care ch. 655 health (2) provider; refusing statutory to assess interest against pursuant § 628.46, OHIC Wis. Stat. because satisfy do test, Kontowicz4 regard therefore, affirm with to these issues raised Hegartys' cross-appeal. We further conclude that refusing trial because the court erred in order production agreement of the settlement arewe ordering production agreement, of the we must also 3 Pierringer See 182, Hoger, v. 21 124 Wis. 2d 106 N.W.2d (1963). 4 Wis., Kontowicz v.American Standard Co. Ins. 2006 WI 48, 2d N.W.2d 105. Wis. *17 issue of to the trial court the
reverse and remand damage properly reduced the the trial court whether by against 25%, to be Dr. Beauchaine and OHIC awards agreement, the terms of the determined based on estopped from are because at this time making light of their refusal to release the claim in agreement. settlement Background.
I. age patient ¶ became a twelve, In at Sarah pediatrician. Mary In Zimmer, Dr. a Sarah of experienced Jo pain Zimmer. and consulted Dr. abdominal gastroenterolo- pediatric to a Dr. Zimmer referred Sarah (Children's), gist Hospital at of Milwaukee Children's syndrome. diagnosed who Sarah with irritable bowel brought ¶ 20,1996, to the 10. On March Sarah was emergency room severe abdominal at Children's with by pain. Stremski, seen Dr. an emer- She was Ernest physician consulting gency Dr. who, with room after pediatric gastroenterologist, Zimmer, Balint, and Dr. sending prescribed suggested Sarah treatment insistence, home. At her Sarah was admitted father's Children's. admitted, Dr. 11. Once Sarah was treated time,
Beauchaine. At Beauchaine was an unli- first-year pediatric at Children's. She censed resident training program at the was enrolled a medical through College assigned Medical to Children's College College Medical and the Medical of Wisconsin (MCWAH), Hospitals, specific Inc. her em- Affiliated ployer. Beauchaine, 12. Dr. who treated Sarah until morning,
following diagnosed constipation, Sarah with surgical her a consultation, did not conduct called conflicting testimony "whiner."There was toas whether protocol, Dr Beauchaine followed Children's which re- quired third-year charge that the senior resident Hagen, the patients by Dr Elizabeth floor, oversee the treatment of *18 undisputed unlicensed It is residents. that diagnosis constipation Dr. of Beauchaine’s awas misdi- agnosis, physician actually and that no licensed saw followingmorning. Sarah until 7:30 a.m. the That morn- ing, Sarah was examined Dr. Dr. Zimmer, Balint, and departed Puetz, Dr. Thomas none of whom from the original diagnosis constipation. By of a.m., 11:45 Sarah's p.m. critical, condition was at and 1:45 she was taken surgery, diagnosed into when she was small with bowel complete with infarction, is, supply. volvulus bowel that her cutting small Over, off twisted, bowel had the blood years, eighty-nine the next two Sarah underwent surgical procedures, including organ transplants. two age Sarah on 16, 1998, died March at the of seventeen. during years The of cost her care the two exceeded $3,200,000. Hegartys
¶ On 17,1998, 13. December an filed setting action forth survival claims under Wis. Stat. 895.01(1), § wrongful on behalf of estate, Sarah's and § 894.04, death claims under Wis. on their behalf as Stat. parents. complaint Sarah's named as defen- Beauchaine, Stremski, dants: Dr. Dr. Children's, College, respective liability Medical and MCWAH,their Physicians Company insurers, OHIC and Insurance (PIC), complaint Wisconsin, Inc. and the Fund. The also County, Hegarty's employer, named Milwaukee Jeremiah involuntary plaintiff. thus, insurer, and as an Sarah's primary liability ¶ 14. had a OHIC issued both policy policy a of $400,000, with limit and an umbrella with a limit of million, to Children's. OHIC retained $20
separate represent counsel to in- insureds, its various cluding Dr. Beauchaine and Children's. Hegartys April mo
¶ 2000, filed a 21, 15. On judgment declaratory Children's, MCWAH tion for a vicariously for Dr. Zimmer were liable Dr. respondeat superior. doctrine of Beauchaine under the Hegartys claims, and The trial court dismissed appealed Hegarty ex rel. to this court. See Estate of I), (Hegarty App Hegarty 300, 249 2001 WI v.Beauchaine 355. Before this court heard the Wis. 2d 638 N.W.2d liability appeal, dismissed their vicarious against claims Children's. Hegarty this that a I, In court concluded 16.
genuine a existed as to number material facts issue conflicting from inferences could be drawn undisputed requiring facts, a to resolve Dr. trial whether Dr. Beauchaine was servant MCWAH whether employee.5 ¶¶ Id., 57-78. Beauchaine was borrowed Upon 2004,7 remand,6 March 26, declaratory judgment Beauchaine moved *19 subject Hegartys' against were the claims her the damages caps on set forth in noneconomic Wis. Stat. 5 20, 1999, Hegartys On December the filed an amended seeking her defen complaint to add Dr. Zimmer and insurer as dants, in asserting that Zimmer's role care was not Dr. Sarah's deposition taken. The trial dismissed known until her was court limitations, on of prejudice the claim with based the statute Wis. dismissal, appealed along § The this with Hegartys 893.55. Stat. Hegarty Hegarty liability their vicarious claim Estate ex rel. of 300, 249 142, I), (Hegarty App v. Beauchaine 2001 WI Wis. 2d claim Hegartys' 355. This court concluded that N.W.2d limita against Zimmer on statute of properly Dr. was dismissed Id., 142, 2, 14-27, grounds. 2d tions 249 Wis. 82-89. ¶ 6 May 27, 2003, assigned to On the case was the Honorable I, prior Hegarty Michael D. All were heard proceedings Guolee. by the T. Honorable Francis Wasielewski. motions, dispositive date the deadline for This was after agreed it. but court nonetheless to hear 893.55(4). § May 4, 2004, On the trial court denied the holding Phelps Phy motion based on this court's v. App Wisconsin, sicians Co. Inc., Insurance 2004 WI of first-year 91, 667, 571, 273 Wis. 2d 681 N.W.2d providers medical are residents not health care under subject caps 655, thus, Wis. Stat. ch. and of 893.55(4). Phelps, 667, 273 Wis. 2d 41. April sought
¶ 18. On 14, 2004, the Fund a de- claratory judgment policies liability two insur- by ance issued OHIC for Dr. Children's covered liability Beauchaine, OHIC's combined limit $20,400,000 must be exhausted before the Fund has exposure any liability 16, of Beauchaine. On June granting 2004, trial an motion, court issued order responses request based on OHIC's to a for admissions in admitting 2000, that Children's million umbrella $20 policy through provided coverage OHIC to Dr. Beauchaine. 19. On October trial, the eve of agreement into a entered settlement with the College, physicians Fund,
Medical and several em- ployed by including Children's, and Balint. Drs. Stremski began
¶ trial 4, 2004, October evidence, lasted for three weeks. At the close of Children's and MCWAH were dismissed directed only leaving verdict,8 Dr. Beauchaine and OHIC. The special jury form verdict asked the determine Stremski, Balint, Beauchaine, whether Drs. Zimmer, Hagen negligent, if so, were and, whether the negligence injuries the cause Sarah's and death. *20 jury
¶ 21, 21. On 2004, October the returned Hegartys. in favor verdict of Sarah's estate and the The 2004, by 9, Children's was dismissed order dated November 17, and by MCWAH was dismissed order dated November 2004. negligent jury Dr. Beauchaine and Dr. Stremski found respect treatment, and and that to Sarah's care with injuries negligence and was the cause of Sarah's their jury negligence Dr. 75% of the to death.9 The attributed negligence Dr. Stremski. and of the to Beauchaine 25% money: following jury of The awarded the sums court) (answered (1) by to estate $13,321.53 the Sarah's (2) expenses; in $7,000,000 funeral and burial for pain damages and to estate for Sarah's noneconomic the (answered court) (3) suffering; $3,196,863.78 the Hegartys hospital, ex- for medical and treatment the penses;
(4) Mary Hegarty of for the loss $3,500,000 society companionship 20, from March Sarah's and (5) $3,500,000 16,1998; until her death on March Hegarty society and for loss of Sarah's to Jeremiah companionship until her 20,1996, from March death (6) Hegartys $150,000 to 16, 1998; and March society resulting companionship the loss of Sarah's daughter's $17,360,184.31. from their death —a total Hegartys, Following verdict, 22. Dr. post-verdict The all filed motions. Beauchaine OHIO Dr. heard the motions on December 2004. trial court The motions were denied. Beauchaine's and OHIC's part granted in and denied motions were part. 14, 2004, the trial court On December issued judgment $19,002,754.29.
an amount of order for recover The court ordered that Sarah's estate comprised $7,959,444.06, of: the verdict award pain suffering, plus for Sarah's the ver- $7,000,000 expenses, $13,321.53 for funeral and burial dict award 9 Dr. treatment of Sarah to be jury found Balint's however, negligence not this be negligent; jury did find Dr. injuries jury cause and death. The did find of Sarah's negligent. to be Hagen's Zimmer's and treatment *21 representing $1,753,330.38, minus negligence a 25% credit for the jury plus Stremski, attributed Dr. 12% pursuant § statutory interest to Wis. Stat. in 807.01, $2,699,452.91. amount of The court ordered that Sarah's parents comprised $11,043,310.23, recover of: the ver- parent pre-death of $3,500,000 dict award to each for the society companionship, plus of loss Sarah's and post-death verdict $150,000 award of for the loss of society companionship, plus Sarah's and a remitted ver- past expenses $2,580,608.14 dict award of medical in paid by plaintiff involuntary the total amount Milwau- County, representing kee minus $2,432,652.04, a 25% negligence jury credit for the to Dr. attributed plus statutory pursuant Stremski, 12% interest § in the $3,745,354.13. 807.01 amount of On December judgments perfected judgment 29, 2004, the were was entered favor of in the Sarah's estate amount of Hegartys $8,072,442.88, and in favor of the in the appeal $11,193,830.17.10 amount of This More follows. analysis facts will set forth in be section of this opinion necessary. as Analysis.
II. opinion appeals: ¶ 24. This addresses three appeals separate appeal,11 OHIC in a OHIC and Dr. $8,072,442.88 The awarded to Sarah's com estate was $7,959,444.06 prised of the total calculated on December $96,841.36 2004, plus that had accrued interest since date, $16,157.46. as well as tax in the amount The $11,193,830.17 Hegartys to the comprised awarded $11,177,672.71 14, 2004, plus calculated on December $134,362.48 date, in interest since that had accrued $16,157.46. tax in the amount Hegartys begin response their appeal OHIC's
arguing OHIC, Children's, as its interests relate to lacks standing insured, party to this its appeal as because (collectively in a combined appeal
Beauchaine appeal Beauchaine/OHIC), We cross-appeal. each in turn. appeal address *22 A. OHIC's Appeal Liability Dr. Beauchaine's
1. Fund's for Negligence for liability contends that Fund's 25. OHIC
¶ Dr. Beauchaine is triggered assessed negligence against after is exhausted. primary policy OHIC's 2000, of to responded 26. In OHIC September 2, August for admissions dated Hegartys' request Dr. In OHIC admitted response, 2000. its under OHIC's umbrella policy, Beauchaine was insured 2004, 14, April limit of million.12 On liability with a $20 Children's, disagree. party We Whether has was dismissed. de question of court reviews standing presents law this Inc., Country Village & Club v. Racquet novo. Lake Athletic of 107, Hartland, 301, 13, N.W.2d App 2002 259 Wis. 2d 655 WI case, from the OHIC was 189. While Children's was dismissed against Dr. Beauchaine and judgment not. The was entered OHIC, Hegartys' appeal policies that OHIC's and the asserts such, in OHIC had an interest cover Dr. Beauchaine. As litigation pursue to standing of and has this outcome this arguments. of appeal. We therefore reach merits OHIC's OHIC, 2, 2000, Hegartys provided August On requests Septem for In Beauchaine and Children's admission. to 2000, OHIC, Dr. responded ber Beauchaine and Children's following: were the requests. responses OHIC's REQUEST FOR ADMISSIONS REQUEST copy Exhibit A a 1: That attached hereto as is certified liability insurance, policy policy number UML- of the of umbrella 1996-410^00, by Company to issued defendant OHIC Insurance Inc., by Systems, produced that was defendant Children's Health the Fund filed a motion for declaratory judgment two for OHIC's Children's cover Dr. policies Beauchaine, "and that OHIC's liability combined limit $20,400,000 [the must be exhausted before Fund] has for exposure any liability Beauchaine." The Fund response Company Request Insurance OHIC to No. of the eighth production plaintiffs request for of documents. request by RESPONSE: This is admitted defendant OHIC Angela Company apply Beauchaine, Insurance its interests as M.D. REQUEST policy liability 2: That this umbrella insurance was 1, 1996, through and in force effect from March March request RESPONSE: This admitted defendant OHIC Angela Company apply Beauchaine, Insurance as its interests M.D. REQUEST pursuant Amendatory 3: That General Endorse- liability policy ment No. the limits of under this umbrella *23 $20,000,000. occurring in covered losses March of 1996 was request by RESPONSE: is defendant This admitted OHIC Angela Beauchaine, Company apply Insurance as its interests to M.D. REQUEST Angela 4: That defendant was an insured Beauchaine liability policy this under umbrella at all times material to this lawsuit, including on 3/20/96 3/21/96. request by RESPONSE: This defendant admitted OHIC Company apply Angela Beauchaine, Insurance its as interests to M.D. REQUEST policy provides liability 5: umbrella That this excess coverage Angela any personal injuries to defendant Beauchaine for by professional negligence patients her caused of 1996 to March Wisconsin, Hospital including of Children's of but limited to Hegarty. Sarah request by RESPONSE: This is admitted defendant OHIC Angela Beauchaine, Company apply Insurance as its interests M.D. Dr. Beauchaine and Children's also to the responded above by requests admitting them. for Dr. Beauchaine's liable that it could be
admitted negligence alleged was 'conduct "Beauchaine because caring [Children's] ing for she was while the business' specified that patients resident," but as a there coverage liability only "provide for excess Fund would negligence alleged and above OHIC's over Beauchaine's had con policy the Fund asserted that limits." OHIC "conducting the business Dr. Beauchaine was ceded that response, sent a letter In the Fund of' Children's. "appears explaining to state as if motion even the that 'conducting the business' fact that Beauchaine caring patients [Children's] as a for there she was while Fund]." by [the "[t]his a fact conceded is not resident," Fund] [the explained "for letter further liability through hospital, any exposure for have by policies to the OHIC issued limits of the insurance hospital exhausted." first have to be would response motion, OHIC the Fund's In by policy, argued is covered that while Beauchaine against policy not in fact insure does the umbrella liability. malpractice instead insisted OHIC medical brought due to mistaken motion was that the Fund's policy primary assumption the umbrella things, pointed coverage provided to a same policy provision entities that excludes in the umbrella pro- § a "health care as Wis. Stat. 655.01 defined Compensation Citing Fund v. Lutheran Patients vider." - Hosp. LaCrosse, 439, 588 N.W.2d35 Inc., 223 Wis. 2d wording (1999), argued light of the that, OHIC providers policy excluded, are health care umbrella *24 by policy for the umbrella is not covered Dr. Beauchaine "conducting malpractice she was medical because by if the court asked of' Children's. When business policy counsel touched, OHIC's would ever be umbrella
98 responded only resulting it covers losses from waste," incidents such as "nuclear "toxic waste and damage." property time, this At counsel for the
brought responses to the court's attention to OHIC's request specifically admissions, the 2000 for which had policy "professional indicated that the umbrella covered negligence." granted motion, 29. The court con- Fund's
cluding that it was "clear" that Dr. Beauchaine was liability," professional "insured and covered coverage policies, policy "there $400,000 is under both policy," million and the the Fund's cover- $20 age kick until are "doesnot these two exhausted." On July 9, 2004, filed a motion for OHIC reconsideration requested permission response to amend its to the September request for had 2000 admissions that been ruling.13 the basis for the court's The motions were by applying trial court, which, denied Wis. Stat. 13 requested permission OHIC to amend the to the response request fifth for admission to state: Objection. request vague ambiguous regard This is with injuries phrase by professional negligence."
to her "for caused coverage provided pursuant liability Whether is to the excess policy only question finding can be after a has been determined waiving by jury entered and affirmed court. said Without objection, Policy provides OHIC admits that the Umbrella excess liability coverage Beauchaine; coverage to however said is excess to any Compensation legally amount Wisconsin Patient's Fund obligated pay. conducting If Beauchaine is found have been negligence, alleged [Children's] the business of at the time of her Compensation the Wisconsin Patient's Fund is excess hable as liability any insurer for verdict in excess of the maximum insur- provided ($400,000). Compensation [Children's] ance Patients Inc., Hosp.-LaCrosse, Fund v. 2d Lutheran Wis. (1999). N.W.2d 35 *25 reason to was no there 804.11(2),14 concluded § its admissions:15 to withdraw allow OHIO here, either, court to for this any I real reason don't see I to admissions. change their answers them to allow really It's game in the to do so. pretty it's late think why I any I reason should discretionary act. don't see case. There will particular in this my discretion apply or plaintiff to the prejudice There is prejudice. be some discovery. have to do more They here. would parties all This case process. court's to this prejudice There is progression, normal along [sic] under it's should move this, may something like it anytime try to do we preju- there is of this case. So change progression the court's prejudice to this dice, only parties to the but deny that The court will at this late date. process request. that the Fund's motion first contends 30. OHIO it have been denied. As should declaratory judgment on Lutheran relies court, again at trial OHIC
did
the
In Lutheran
the
Hospital,
Supreme
Wisconsin
Hospital.
Fund, stating
of the
the function
explained
Court
under Wis.
case
malpractice
in a
medical
successful
claim
the
of the
655.27(1),
"pays
part
the Fund
§
Stat.
part:
§
provides
Stat.
804.11
Wisconsin
(2)
Any matter admitted under this
Effect
of Admission.
conclusively
the court on motion
established unless
section is
admission. The court
permits
or amendment of the
withdrawal
presentation
may permit
or amendment when
withdrawal
thereby
party
and the
the action will be subserved
the merits of
satisfy
the court that with-
the admission fails
who obtained
maintaining
prejudice
party in
will
drawal or amendment
or defense on the merits.
action
peti
OHIC's
this court denied
September
On
23, 2004,
not to
trial court's determination
appeal
tion for leave
for admissions.
request
permit the amendment
primary
is in excess of
which
either
amount of
coverage required by
insurance
statute or the amount
primary
coverage actually
insurance
carried
provider,
greater."
health care
whichever is
Lutheran
Hosp.,
While health care self-insurance or force, surety cash or bond remains in the health care estate, provider, provider's the health care and those business, conducting the health care provider's includ- ing health care provider's liability health care carrier, malpractice insurance are liable no more for for (4) expressed than the limits in sub. or the maximum liability limit provider which the health care is for insured, higher, provider whichever is if the health care requirements has met the chapter. this Hosp., (quoting 655.23(5); Lutheran 233 2d at Wis. emphasis Hosp.). Recognizing in Lutheran that Dr. provider" Beauchaine herself is not a "health care under Wis. Stat. ch. 655 because of her an status as unlicensed first-year resident, OHIO contends that the Fund's liability upon liability "is determined based limits applicable Chapter providers.'" to 655 'health care policy part: Because the umbrella reads "It is agreed malpractice liability provided that no medical is any entity by hereunder for which is defined Wisconsin provider," Statutes, 655.001 Section as health care "expressly OHIO submits that Children's is not covered by policy Chapter the umbrella because it ais provider," liability health care and that "the maximum ([Children's]) provider for which the health care is $400,000 $20,000,000." insured is and not Therefore, goes, inappropriately argument the "trial court policy upon that the umbrella relied OHIC's admission coverage 'provides because, Beauchaine'" excess for Hospital, controls is the 'amount under Lutheran "what actually pro- coverage the health care carried " provider Children's, Here, the health care vider.' any argues such, as OHIC it is not liable against Beauchaine and OHIC in amounts assessed policy primary $400,000. limit of excess of OHIC's argument, In a OHIC asserts that it related permitted response to amend its should have been Hegartys' request for In accordance admissions. argument, explains response first OHIC that its with its nothing request for do with to the admissions "has legal question obligation pursuant [the FundJ's request for admis- the relevant statutes" because coverage sions asked about Dr. Beauchaine's under policy, inquiry while the relevant is the amount OHIC's *27 coverage Children's available to it. has According OHIC, the trial court therefore erroneously by concluding denied the amendment discovery required, more would be and that the court's Hegartys process prejudiced and the would be because preclude maintaining them from their it would change and action does not factual issues or Hegartys' Rather, merits of the request claims. because the legal for admission was unrelated to Fund's obligation, request OHIC that its to amend its asserts response actuality upon was in "based the Fund's re- of its conduct- traction statements Beauchaine was ing [Children's] the time of her the business at alleged negligence." Hegartys respond
¶ 33. The that the trial court properly attempt pre- denied OHIC's to withdraw its trial admission because the court articulated a rational overwhelming for basis its decision and there was support calling attempt record, for it in the it a belated payment responsibility to shift for Dr. Beauchaine's negligence onto the Fund. Hegartys
¶ 34. The submit that OHIO has failed showing to make a minimal of how the merits of this case would have been served an amended admission, arguing devastating impact that it "wouldhave had parties the resolution of the case" because the relied on coverage admission, thus, if had become an discovery required, issue, more would indeed have been complete discovery insufficient time existed to before adjournment necessary. trial, and an would have been ¶ 35. The also maintain that the trial correctly primary court determined that OHIC's policies provide coverage $20,400,000 umbrella liability, Dr. Beauchaine's because the issue "turns on interpretation policy terms, OHIC's not on who is vicariously professional negligence." liable for her Ac- cording Hegartys, to the since Dr. Beauchaine an policy, insured under the because, umbrella aas first-year resident, she does not fall under the exclu- applicable sions to Wis. Stat. ch. the umbrella policy applies. begin by addressing
¶ 36. We OHIC's contention response request that motion its to amend its to the granted. admit should have been ¶ 37. The trial court's decision whether to allow withdrawal of an admission is reviewed under the erroneous exercise of Schmid discretion standard. See *28 (1983). 228, v. 111 2d Olsen, 237, Wis. 330 N.W.2d547 discretionary uphold a trial if We will court's act the applied proper facts, court examined the relevant a 103 demonstrating process, a rational law, and, standard of judge reached a conclusion that a reasonable could Loy Bunderson, 400, 414-15, reach. v. 107 Wis. 2d 320 (1982). N.W.2d party responds request a a for an 38. When to by admitting matter,
admission sively the admission conclu- permits issue, establishes the unless the court 804.11(2). § authority A withdrawal. Wis. Stat. court's permit withdrawal is constrained as follows: may permit The court or amendment when withdrawal presentation of the merits of the action will be thereby and the party subserved who obtained satisfy admission fails to the court that withdrawal or prejudice party maintaining amendment will action or defense on the merits. provides 'may' permit "Thus,
Id. the statute that a court only withdrawal or amendment if 'the merits of the party action subserved' if the will be who benefits satisfy from the admission 'fails to the court prejudice' benefiting party." withdrawal.. . will App Commc'ns, Mucek v. Nationwide Inc., 60, 2002 WI 252 Wis. 2d N.W.2d responses request 39. OHIC's for admis- unequivocally sions in 2000 admitted that primary policy Beauchaine was covered OHIC's with policy $400,000, a limit of as well as umbrella with "professional negligence." million, a limit of For $20 years four OHIC made no efforts to amend or retract sought declaratory this admission. When the Fund judgment, argued, contrary time, OHIC for the first policy admission, its that the umbrella does not in fact against malpractice. insure Dr. Beauchaine medical We *29 allowing agree an OHIC's claim that with cannot discovery, required further would not have amendment prejudiced delay, the not have and would or caused Hegartys. Hegartys rightfully relied on the admis- The assump- years, operating under the and, four sion for coverage issue, not an conducted was tion that OHIC's discovery no on the issue. insists, however, that the 40. OHIC by the amendment because unaffected this
would be disagree. If the it and the Fund. We issue was between allowed, in the have been words amendment would making game," thereby in the court, "this late trial logically coverage a substantial issue, an OHIC's required, discovery would have been amount of new causing very long pro- delays already in an additional parties Hegartys, in- other the numerous cess. recognized, judicial and, trial court volved, process as the prejudiced. has OHIC itself, have been would erroneously exer- trial court us that the not convinced refusing allow OHIC to amend to cised its discretion its admission. agree that OHIC's Moreover, we cannot upon request amend "was based
claim that its to was that Beauchaine retraction of its statements Fund's [Children's]." conducting The admission the business of alleged years "retraction," and made four before explained days a the Fund's letter within few consequently, meaning statement; of the contested necessary change its it claim OHIC that became (and made from 2000 based on statement admission immediately explained) con- in 2004 is not thereafter request says, vincing. By logic, as OHIC if, this only response to the Fund's made amend was in fact "request alleged noth- to admit has retraction, and the legal obligation," ing [the won- one do with FundJ's why sought OHIC ders even to amend the admission why appeal argument presented in the same section as their contention that the trial court erroneously granted declaratory the Fund's motion for judgment. reply light OHIC's brief some sheds on what *30 arguing, asserting requested OHIC is in fact that the position regarding amendment "clarifies OHIC's interplay policy, language between its umbrella in Fund['s] ch. 655 and the case law to determine the liability party in case," this and "addresses which will ultimately responsible payment any judg- be for the (the OHIC)." against ment Beauchaine Fund or OHIC opportunity "clarify position" regarding had the its policy years the umbrella motion, before the Fund's yet OHIC failed to do so. OHIC has failed to convince us refusing permit that the trial court erred it to four-year-old response request amend a ato for admis- sions. Beyond
¶ 42. amendment, issue OHIC correctly also claims if that even the court denied its request relying amend, it still erred in on that ruling declaratory judgment admission on the Fund's reply particular explains motion. OHIC's brief in argument its is not that Dr. Beauchaine is not covered by policy, the umbrella rather, but that the umbrella policy triggered, is not and that the court erred in granting declaring the Fund's motion com- OHIC's liability bined $20,400,000 limits of must be exhausted exposure. disagree before the Fund has We with OHIC's although contention that Dr. Beauchaine is covered policy, triggered only the umbrella it would be after the met, Fund's limits are coverage and that because the Fund's policy trig- is unlimited, the umbrella is not gered. wording policy
¶ 43. This issue on the of the turns itself, not on whether Children's is liable for Dr. negligence. Beauchaine's An examination of the um- policy plain. policy, brella makes this umbrella provides Children's, whose named insured is that the "any organization person other insured includes or who any policy underlying is an insured under insurance." undisputed an It is that Dr. Beauchaine is insured primary policy, under the and she would also be an policy. OHIC notes, insured under umbrella As policy specifically umbrella excludes Wis. Stat. ch. 655 providers. undisputed health care it is However, first-year Dr. resident, because Beauchaine was she provider chapter was not a licensed health care under policy, pursuant primary that, 655. It follows to the independently Beauchaine was insured under the um- policy, only it brella and that she was not insured under *31 subject by liability to vicarious Children's. coverage policy pro-
¶ 44. The that the umbrella indemnify net vides is: "To the insured for ultimate loss in excess of the retained limit which the insured legally obligated pay damages to as be- shall become injury, damage personal property cause of ing liability or advertis- applies, by policy caused an to which this clear, occurrence." As is now OHIC's 2000 admission damages coverage made clear that the included result- plain language ing "professional negligence." from coverage description that the umbrella of the indicates liability policy any is is intended to cover insured damages obligated pay in that is in excess of the to primary policy. agree OHIC limits of the cannot with We requirement Fund that there is an additional that the must first before the umbrella is pay policy triggered.16 OHIC has not pointed anything suggest umbrella was intended to be after policy tapped only the Fund see paid. nothing wrong We with the trial court's reliance on that in ruling admission on the Fund's motion. declaratory judgment Luth- Moreover, OHIC's reliance on heavy eran Hospital, and claim that Dr. Beauchaine must be found to have been the business of' "conducting Children's, does not our change conclusion.17 As ex-
16In response, Hegartys argued their that "OHIC 'did an arguing about face' for the first time in opposition to the declaratory judgment Fund's policy motion its umbrella physicians against does not resident malpractice insure medical liability." brief reply language by claiming OHIC's attacks this argued that "OHIC has never policy that its umbrella does not merely cover Beauchaine" and has "consistently argued that its policy triggered." umbrella is not motion, In opposing argued the Fund's "[u]nder OHIC by policy very umbrella its terms Children's didn't insure malpractice liability," themselves for medical claiming instead policy that the triggered only by umbrella things such as waste, toxic nuclear waste and property damage. On appeal, apparently having theory abandoned the that toxic or nuclear required waste or the like was policy for the umbrella to come play, into apparently professional negligence, OHIC admits that including malpractice included, medical attempts but now by distance itself from its seeking admission to shift the responsibility by claiming to the Fund pay that it must first. change This shift does not certainly the fact that OHIC did argue that Dr. Beauchaine was not covered umbrella policy for malpractice, precisely medical what the asserted, disingenuous and it is for OHIC to now claim that it "never" did so. *32 17 Hegartys The further contend that OHIC's focus on whether the policy provides umbrella coverage for Children's is irrelevant because the Fund requested ruling a that OHIC's
108
Beauchaine was
insured
independently
Dr.
plained,
the
agree
umbrella
we
with
policy,
under
the
finding
there is
that
a
nothing
requires
that
Hegartys
found to have been "con-
that Dr. Beauchaine must be
the
of' Children's before a
ducting
ruling
business
in Lutheran
so, the
is made.18 Even
issue
coverage
Fund,
after
Hospital
collecting
was whether
$400,000
question
from the
where
nurse
hospital
Id.,
2d
the nurse.
223 Wis.
worked,
subrogate
could
subrogation
15. The
court held that
a
supreme
available,
$400,000,
one limit
situation there is
subrogate
the Fund does not have a
right
that
is,
Id.,
20,45.
insured;
its own
that
nurse.
against
¶¶
to make the threshold show-
Because OHIC has failed
relying
that
the trial court erred in
on OHIC's
ing
admission, we
no need to further
four-year-old
see
liability
$20,400,000
before the Fund has
limits of
be exhausted
Beauchaine,
Children's,
dispute
for
and there is no
contains an
for health care
policy
OHIC's umbrella
exclusion
coverage from
like Children's who receive excess
providers
Hegartys
point
Hospital
out that Lutheran
Fund. The
also
nurse,
a
Stat. ch.
employee
hospital,
involved a
an
Wis.
coverage by the
provider,
health care
who was entitled to
Fund,
a
Stat. ch. 655 health
whereas Dr. Beauchaine is not Wis.
employee
provider,
nor an
of a health care
provider,
care
coverage.
suggest
thus
does not have Fund
coverage
first-year
resi-
recognized
[Fund]
absence of
"the
$20,000,000
why
policy
umbrella
was
precisely
dents is
coverage for such residents." We decline
pronounced
provide
policy
for the existence of the umbrella
to address the reason
necessary
a determination is not
to our conclusion
because such
liability.
malpractice
for medical
that Dr. Beauchaine is covered
there
specifically
The trial court also
determined
"conducting
the business
insufficient evidence to submit
jury. This issue will
jury
and would confuse the
theory
of'
opinion.
in section A.2.b.ii of this
be further discussed
*33
argument
address OHIC's creative
based on Lutheran
Hospital
"conducting
language
and the
the business of'
655.23(5).
§
dispositive.
of Wis. Stat.
The admission is
Additionally,
party
appeal.
the Fund is not a
to this
Had
argument
OHIC wished to resurrect its
that the Fund is
primary policy
liable
$400,000
once its
exhausted,
steps
it
party.
should have taken
to make the Fund a
Special
2.
Verdict Form
special
¶
A46.
verdict must
all
cover
material
805.12(1).
issues of ultimate fact.
Stat. Wis.
Rule
special
questions
form of the
verdict
is within the
discretion of the trial court. Meurer v. ITT Gen. Con
(1979).
trols,
438,
90 Wis. 2d
445-46, 280 N.W.2d156
A
framing
special
trial court has wide discretion in
verdict. Maci v. State Farm
Co.,
Fire Cas.
105 Wis. 2d
(Ct.
1981),
App.
710, 719, 314
914
N.W.2d
overruled on
grounds by
other
Senecal,
Rockweit v.
409,
197 Wis. 2d
(1995),
determining
jury
trial each in verdict form. We address turn. *34 Damage Jury Question
a. Instruction to Answer Only Questions One or More Cause An- if "Yes" swered
¶ First, the trial court 48. OHIC contends that special erred ii included on the verdict form an when jury questions the the instruction to to answer damages only "yes" if it answered to one or more of the preceding questions on cause. proposed 11, a 2004, 49. On October OHIC following
special in- form that contained the verdict regarding damage question: the struction QUESTIONS THE ONLY IF ANSWER FOLLOWING ’YES" TO ANY OF THE YOU HAVE ANSWERED QUESTIONS THE OF ABOVE RELATED TO CAUSE QUESTIONS 2, 4, 6, 8, 10, 12, 14, INJURY, AS SUCH 24, 28, 18, 22, 26, 20, and 32. special Hegartys proposed verdict jury give one the instruction as the
that would the same jury During special proposed and OHIC. the verdict attorneys handed the conference, instruction the court copies special the verdict form that included of the jury the was to answer the instruction that standard regarding damages, regardless questions it had how previous questions. with the the Consistent answered objected parties' special proposed verdicts, the jury suggested the be to the instruction 111 damage questions only the instructed answer if it "yes" questions, answered to one or more of the cause Runjo accordance with v. St. Paul Fire Marine Insur (Ct. App. Co., ance Wis. 2d N.W.2d 1995), order to avoid an inconsistent verdict. including OHIC issues, raised number of instruction, above at the A conference. recess was taken, recess, and after the the court treated the agreement parties' stipulation, on the instruction aas having Runjo, changed reviewed the court Hegartys' sugges instruction in accordance with the objected By time, tion. At this OHIC to the instruction. prepared printed time, this court had version of special change verdict form and declined to noting parties stipulated instruction, that the had objection the instruction and that' OHIC's was belated. special ¶ 51. OHIC contends that a verdict and jury asking jury damages, instruction to assess regardless negligence of its determination as to or proper causation, should have been used because it is *35 represents procedure. standard OHIC maintains instructing jury that the it was to answer the question damages only affirmatively about if it had question answered the about cause "in essence instruct[ing] jury the as to the effects of verdict," its explicitly prohibited by supreme which is the court's holding Story, in McGowan v. 70 189, 196, Wis. 2d 234 (1975). N.W.2d 325 OHIC thus contends that because making the trial court erred in the modification re quested by Hegartys, objection, the over its it is entitled to a new trial. Hegartys
¶ 52. The contend that OHIC cannot requested very language claim error because it the in its proposed special own verdict form it now chal- lenges improper, as and that OHIC's claim that it
112 objected stipulated instruction, false because it to the object during jury special instruction and did not though conference, verdict even it raised number jury issues, other and waited until the was about be any objection an thus instructed to raise and has waived claimed error. Addressing argument,
¶ 53.
the merits of OHIC's
respond
only
that not
is the instruction
Badger
gave
Chopin v.
the court
not erroneous under
(1892),
Paper Co.,
192,
452
Wis.
N.W.
Railway Co.,
Banderob v.
Central
133 Wis.
Wisconsin
(1907),
appropriate in
249, 113
but it also was
N.W.738
allowing
malpractice cases,
case because in medical
this
jury
damages regardless
an
of how it
to award
negligence
questions can lead to
and cause
swered
Runjo,
594, and
verdicts under
197 Wis. 2d
inconsistent
Group,
App
Inc.,
Medical
2004 WI
LaCombe v. Aurora
¶ 5,
771,
2d
at the
instruction
verdict
any
proposed
error in the
"constitutes waiver
805.13(3);
§
see
instructions or verdict." Wis. Stat.
App
Transp. Corp.,
Int'l
2000 WI
Gosse v. Navistar
¶ 9,
232 Wis. 2d
idea of
only
"yes"
cause
if it had answered
to one or more
pro-
questions, as evidenced
the fact that OHIC's
phrase
posed special
form contained the same
verdict
object
challenging.
fact,
In
did not
that it is now
OHIC
jury
during
to the
instruction
instruction
*36
Hegartys proposed
special
the
verdict conference when
the
instruction
it after the court had included
standard
though
form,
on the
even
it did raise a number of other
issues, and instead waited until the court was about to
objection.
give
jury
the instruction to raise the
objected
instruction,
OHIC claims it
to the
its
While
objection
certainly
Although
Hegartys
was
belated.
objected
stipulated
claim OHIC never
to the in-
struction, OHIC did indicate to the court at the time of
objection
stipulated.
its eventual
it had not
Be-
despite initially proposing
cause,
instruction,
OHIC
object
did
to it when the court announced the modifi-
appears
cation, and
it
unclear
because
whether there
objection
stipulation,
awas
we decline to consider the
argument.
waived and reach the merits of OHIC's
disagree
Hegartys
¶ 56. We
with OHIC. As the
point
supreme
out, our
court has held that it is not
jury
questions
error
damages only
to instruct
to answer
jury affirmatively
ques-
if the
answered
Chopin,
192;
tions on causation. See
Banderob,
83 Wis.
though
practice
Thus,
Runjo governed that the issue is insisting Banderob, McGowan, which postdates Chopin juries may and stands for the that be proposition McGowan, on the effect of the instructed verdict. that Runjo 2d at 196. OHIO claims particular Wis. involved a claim of in- because the case inapplicable formed with this distinction. disagree consent. We informed consent The fact the case involved does not the crux of the that the instruc- change holding inconsistent, and this was the inconsistency tions were Runjo, See trial. reason the court a new granted Runjo fact, In the court specifically 2d at 604-05. Wis. rejected argument defendants' instructions proper they were because were based on the standard reply instruction. See id. Hegartys' 604. OHIC's at also attacks by claiming, reliance on LaCombe in refer- damage question ence to the instruction to answer the regardless jury negligence of how the answered the question, "[a]t no time did the court find such *38 language improper." misleading. This claim is The issue plaintiff in LaCombe was whether the had waived 805.13(3) § by failing object issue under Wis. Stat. to jury it at the Id., instruction conference. 2dWis. Finding ¶ 771, 5. that "LaCombe's claim of error would jury special have evidence been at instruction and conference," verdict the court concluded that the claim ¶ Id., was waived. 11. In contrast to what OHIC would believe, have us the court never reached the merits of complaining age Moreover, the case. while about the Chopin Banderob, and OHIC has made no effort to they longer good show that are no law. agree Runjo
¶ 60. Wethus with the recognizes problem potential of the for inconsistent resulting verdicts from inconsistent instructions, makes clear that it is within the trial court's discretion jury damage questions to instruct to answer the only affirmatively negligence if it answered the questions, request cause and LaCombe adds that a for prior post-verdict such an instruction must be made motions. areWe convinced that the trial court was well jury within its discretion to instruct the in the manner it did. Employment
b. Dr. Beauchaine's Status Hegarty ¶ In I, this Court concluded that a required trial was to resolve whether Dr. Beauchaine awas servant of MCWAH whether Dr. Beauchaine employee, was a because "someone" borrowed had be employer. Id., Dr. Beauchaine's Wis. 2d Following remand, 57-78. the trial court noted that the issue of whether Dr. Beauchaine was a loaned or bor- "may employee question rowed have been a of fact at point appeal, may of the level of the it but not be at this level." already April discussed, 14, 2004, 62. As on declaratory judgment
Fund filed a motion for policies OHIC's two for Children's cover Dr. liability Beauchaine, and that OHIC's combined limit of $20,400,000 must be exhausted before the Fund has any liability exposure Beauchaine, of Dr. a motion ultimately granted. During briefing the trial court motion, an this issue arose as to whether Dr. "conducting Beauchaine was the business of' Children's 655.23(5).19 § as that term is defined in In Wis. Stat. ruling motion, on the trial court stated that question of fact existed as to whether Dr. Beauchaine "conducting the business of Children's on March *39 question 20-21, and that this was to be included special on the verdict form. evidence, 63. At the close of Children's moved grounds nothing
for there in the dismissal that was keep record to it in the case. OHIC admitted it was that any point opposition in unable "to evidence to 655.23(5) § provides: Wisconsin Stat. liability insurance, While health care self-insurance or a cash or (3)(d) force, surety in bond under sub. remains the health care provider's conducting provider, the health care estate and those provider's business, including the health care the health care liability carrier, provider's are for health care insurance hable (4) malpractice expressed for no more than the limits in sub. or the liability provider maximum limit for which the health care is insured, higher, provider is if the met whichever health care has chapter. requirements of this the light [Children's] In of a "different record" motion." granted motion, and it, the court announced: before There is no direct evidence to show that Children's any way regards in in to the Hospital was active Hegarty. absolutely There no treatment of Sarah being in- Hospital actively evidence as to Children's directly indirectly any malprac- volved or or involved any theory tice here either as a or that master/servant up.20 would come
(Footnote added.) requested special
¶ 64. OHIC then that the ver- question dict form include a Dr. as whether "conducting the Beauchaine was business of' College argued Children's, the Medical or both. OHIC College special the Medical should on the be vicariously as Beauchaine, verdict form liable for Dr. jury is, should asked whether Dr. be "conducting Beauchaine was the business of' the Medi- College. Hegartys responded, cal and OHIC even- tually agreed, that there was no evidence that College vicariously Medical was liable for changed argument Beauchaine, and OHIC instead its insisting College the Medical should be on the theory negligent supervision. verdict under agreement among parties Given that there was 20Immediately case, after from Children's dismissal it argued by counsel Children's that for the same reason dismissed, Children's was MCWAHshould also be dismissed. Dr. opposed agreed Beauchaine the motion. The court and dis case, concluding from the "nothing missed MCWAH that it saw any this record to indicate that MCWAHhad control over the Hegarty by any treatment of Sarah Dr. Beauchaine or other doctor," "[t]hey organization and added that are an umbrella *40 process teaching is used to facilitate this of residents through College]." [the Medical suggesting College no evidence that the Medical vicariously Dr. Beauchaine, liable for the court ruled question that no such would be on the verdict. After the ruling, requested court made its OHIC that the trial questions court include as to whether Dr. Beauchaine employee awas loaned or borrowed at the Medical College "conducting and whether Dr. Beauchaine was College. the business of' Children's or the Medical questions ¶ 65. The court refused to include such grounds already that it had ruled on the issue and support concluded that there was no evidence to such findings: already Hospital, "I ruled on I Children's just [the College]." ruled on Medical In its motions after argued verdict, OHIC that the trial court had erred including "conducting question, the business of' requested alternative, and in the declare, that the court "conducting a law, as matter of that Dr. Beauchaine was provider. the business of' a health care i. Loaned or Borrowed Employee ¶ 66. OHIC first contends the trial court failing jury question inquir- erred in to submit ing as to whether Dr. Beauchaine was a loaned or employee, failing and in borrowed to resolve the issue as a matter of law. points
¶ 67. OHIC several facts about argue Beauchaine's status as a resident in an effort to employee, that she was a loaned or borrowed ing: includ- the fact that Dr. an Beauchaine was unlicensed first-year practice resident, medical unable to medicine training program; an outside while she had employment per- MCWAH, contract with MCWAH only bookkeeping formed and the Medical functions, College placed residents; hired and the Medical *41 of charge director was
College's training program residents; schedules, rotations and evaluations for the who supervised by attending physicians residents were College faculty; on the Medical Children's serve necessary all the equipment residents provides instruments, and in return the residents are to required and professional poli- with the administrative comply MCWAH, the cies, regulations rules and procedures, Medical and Children's. College basis, that, "[a]s this OHIC asserts 68. On [Children's] loaned or borrowed the employee and/or are 'health care College, inarguably Medical which both see 655.002(1)(h), § under providers' Chapter an entitled to the Stats., employee Beauchaine was of the economic as a matter of statutory caps protection Corwyn law." OHIC cites Borneman v. Ltd., Transport, for (1998), 219 Wis. 2d for the test N.W.2d when an is borrowed: employee employer employee
The relation of exists as special employer employee between a to whom an is (a) following the loaned whenever facts concur: Con- employee special on the of the for a part sent work (b) entry by employer; employee upon Actual pursuant of and to an special employer work for (c) do; express implied or contract so to Power of the special employer to control the details of the work to be performed and to determine how the work shall be done stop and whether it shall or continue. kind questions vital controversies of this (1) employee actually impliedly are: Did the or consent (2) special employer? work for Whose was work (3) injury? at the time performing he was Whose was right being control details of work (4) performed? primarily For whose benefit was the being
work done? (citation omitted). Id. at 353-54 OHIC as fol- argues lows:
First, Beauchaine for [Children's] consented to work College]by [the Medical virtue of her enrollment and/or Residency in the Program Pediatric and the fact that College] Medical responsible placing [the for resi- dents at member institutions such as [Children's]. Second, Beauchaine performing work *42 College] [Children's] [the Medical at the time of and/or injury; namely, part training as of her medical at College], treating caring [the Medical she was and for [Children's], Third, patients at [Children's] [the and/or College] right Medical had the to control the details of being performed: the work required Beauchaine was comply policies to with the and of procedures [the College] [Children's]; Medical and she was supervised attending by physicians [Children's]; of and she was by College] trained personnel. Finally, [the Medical work being primarily Beauchaine's done for was - benefit of College] [Children's] [the Medical and/or - by not MCWAH as evidenced the fact that [Children's] reimbursed MCWAHfor all costs. Borneman 69. After at explaining length why a
"compels finding that Beauchaine was a borrowed of [Children's] Medical employee College]," [the and/or that, OHIC reason for logical concludes "No exists trial court fiat Beauchaine's declaring employment sta- a The transparent tus non-issue. of that purpose ruling was to create an defendant." In of this uncapped light find, OHIC asks court to a analysis, this as matter of law, that Beauchaine was a loaned employee College, or, Children's Medical alternatively, and/or trial, a new that had grant asserting Children's and/or the Medical been College included on the verdict special form as Dr. employers, Beauchaine's the jury's findings liability as to and would differ- appointment have been ent. argument by dismiss OHIC's 70. The get "nothing attempt
insisting
to
that
is
but an
it
binding pre-trial admissions that Wis. Stat.
around its
apply
Beauchaine
that
its
ch.
does not
to
and
They
liability policy applies to Beauchaine."
umbrella
changed
posi-
impermissibly
its
has
assert that OHIC
ch. 655
tion
applies
times
whether Wis.
numerous
Stat.
for
moved
1999,
to Dr. Beauchaine:
OHIC
summary judgment, arguing
first-year
that,
resi-
as
subject
chapter 655";
Dr. Beauchaine
"not
to
dent,
declaratory judgment, arguing
next, OHIC moved
893.55(4)
independent
§
from ch.
Wis.
Stat.
cap "regardless
to
and Dr. Beauchaine is entitled
relationship
employment
Children's";
her
status or
finally, following
Phelps,
id.,
our decision
see
argued
Beauchaine was
2d
OHIC
that Dr.
Wis.
employment
her
under ch. 655
virtue of
covered
relationship
the Medical
to Children's
status
and/or
Hegarty
Hegartys emphasize
prior
College. The
only
they
party
raise
I,
were the
the issue
vicarious
liability,
no
defendant
raised
*43
employee doctrine
an affirmative
as
borrowed/loaned
They
no
merits,
that even on the
defense.
also assert
properly
party produced
trial
sufficient evidence at
support
any
employee
the
of
inclusion
borrowed/loaned
special
questions
that,
such,
verdict,
on
and
as
satisfy
standard,
is
the Borneman
OHIC
unable
concluding
OHIC
not
who
that "even now
is still
sure
alleged
employer
'borrowing'
Beauchaine."
was the
of
Phelps,
disagree
¶
We
OHIC. In
the su-
71.
with
holding
preme
affirmed
court's
that a first-
court
this
year
provider
care
medical resident
is not
health
meaning
there-
within the
of
Stat. ch. 655 and is
Wis.
893.55(4).
§
subject
caps
fore
of Wis. Stat.
not
to the
Phelps
Physicians
Wis.,
Co.
v.
Ins.
Inc.,
85,
2005 WI
of
¶ 64,
69,
282 Wis. 2d
¶ note, 72. As the there nowas evidence supporting the contention that Dr. Beauchaine awas employee. loaned or fact, borrowed In OHIO never theory employee advanced during of a loaned or borrowed - lay apparently trial it dormant after remand jury until it was mentioned counsel at the instruc- special tion verdict conference. analysis so, Even Borneman, 73. under presumption employee
must start with the
that an
Id.,
loaned or borrowed.
(cid:127) admitted, qualification, without that MCWAH was employer on
her March (cid:127) right denied that "had Children's to control or
supervise provided" by the health care services her *44 at to Children's Sarah
123 (cid:127) right College "had the to the Medical denied that pro- health care services supervise
control or by to Sarah her at Children's vided" (cid:127) employer" her was "de denied that Children's facto (cid:127) "legally responsible for that was denied Children's Sarah provided to
the health care services" she (cid:127) College "legally respon- that the Medical denied provided to for health care services" she
sible Sarah In also dated to the same response inquiries, 14, 1999, to responded, subject Children's
December objection, as follows: vagueness (cid:127) right supervise control and denied it "had the to Dr. Beauchaine provided
health care services" at Sarah Children's
(cid:127) Dr. employer" the "de of denied that is was facto Beauchaine on March (cid:127) "legallyresponsible it health denied that was provided patients Dr. Beauchaine of
care services" Children's, including Sarah establish that unequivocally These admissions and did employer Children's was never Beauchaine's her.21 not "borrow" note, Moreover, is clear from OHIC's claim we as [Children's] [the employee a loaned or borrowed "[a]s and/or College], inarguably pro are 'health care which both
Medical Stats., 655.002(l)(h), § under see Chapter viders' employee protection entitled Beauchaine was an law," is statutory as a matter of what OHIC caps economic reality employment arguing Beauchaine's rather, employee, a loaned or borrowed but status was *45 "Conducting ii. the Question Business of' ¶ 76. Second, OHIC contends that the trial court refusing special question erred in to include a verdict inquiring as to whether Dr. Beauchaine was "conduct- ing provider. the business of' a health care argues
¶ 77. OHIC that the failure to include the question was erroneous because there was sufficient jury evidence to have the decide the issue. OHIC refers testimony by Hegarty, to the Sarah's mother, Mrs. that Sarah went to Children's to receive treatment, and that understanding it her was that Dr. Beauchaine was the person going provide at Children's who was to that testimony treatment. OHIC also to refers the of Dr. Hagen, assigned that as a medical resident conducting Children's, she was the business treating Children's, and that children with medical problems was the business Children's. OHIC further deposition testimony refers to the excluded of Dr. Lewis argument deposition and makes an based what the would have shown.22
that Dr. Beauchaine subject statutory should be to the economic caps. This is also obvious from OHIC's the accusation that trial "transparent purpose" ruling court's for its was "to create an uncapped defendant." We decline to comment on OHIC's harsh beyond comments about the trial ruling pointing court's out that the most "transparent" aspect appears to have OHIC's been attempt subject statutory caps Dr. Beauchaine to the via attempt argue belated that she was a loaned or borrowed employee. deposition testimony OHIC asserts that of Dr. Lewis erroneously was excluded as irrelevant have in would MCWAH, formed jury that paid by "while residents were payments such participating hospitals," were reimbursed procedures that "it practices governed [Children's] was that case, Beauchaine's handling Sarah's as of her part also maintains addition, In OHIC under the super- for Children's were working residents therefore, and that College, of Medical vision evidence in case was clear and uncontroverted College] for and had responsible Medical [the working in the of the residents any over reviews control assign- day-to-day hospital, and that the residents' *46 and supervision were overseen controlled ments and faculty mem- College] pediatric through Medical [the ber. never dis- any was "[t]here OHIC insists that [Children's] case Medical College], [the in this
pute as that 'health care providers' and Zimmer as qualify "[t]hus, while 655," in and that is defined Chapter term which health care as to dispute there be some may or Zim- ([Children's], College], Medical [the provider of,' the business mer), 'conducting Beauchaine was conducting can that she was dispute there be no 655.23(5), Stats."23 business of one of them under comply agreement, required Beauchaine was employment procedures, professional policies, all administrative and with of the exclu- rules, regulations issue [Children's]." in testimony will be addressed section B.3.c.i sion of Lewis's be examined here. opinion and will thus not this alternative, court to rule as again In OHIC asks this conducting the law Dr. Beauchaine was a matter of Children's, or Zimmer on College, of the Medical business 20-21,1996. undisputed evidence asserts that "the OHIC March conducting of all in fact the business is that Beauchaine was case," claiming that under providers health care this three Crosse, Hospital-La Lutheran Compensation Fund v. Patients (Ct. 1997), 49, 57, Inc., App. "[t]he 2d 216 Wis. 573 N.W.2d572 agree employment did a formal fact that Beauchaine not have [Children's], Zimmer College], or Medical [the ment with either finding making such a this preclude Court from does not this Hegartys respond "conducting ¶ 80. The that the question the liability, of' business is no different from vicarious point authority out that OHIC cites no why inquiries there ais difference between the two or for what it means to "conduct the of' a health business provider. They care contend that because at trial, even difficulty trying counsel for OHIC had exactly to articulate "conducting inquiry awhat the business of' was, jury expected could not have been to answer such a question. Finally, referring to OHIC's claim that Dr. conducting Beauchaine was Children's, business of College, the Medical or Dr. Zimmer, the also prove note had that OHIC the burden to whose busi- conducting, ness Dr. Beauchaine therefore, OHIC so, because was unable to do maintain that the did court not err. disagree again
¶ 81. We with OHIC. OHIC has not "conducting inquiry shown how the business of' inquiry liability. By different an from about vicarious sought "conducting *47 the time OHIC to a have the busi- question already added, ness of' the court had ruled- Hegartys' argument agree- on based the and OHIC's argument College ment with that the that Medical was vicariously not liable for Dr. Beauchaine. Likewise, already Children's had been from dismissed the case for the same reason. So when the trial declined court to "conducting further address OHIC's of' business grounds already issue it it, had addressed it clearly properly equated did because so it the "conduct- ing question liability. the business of' with vicarious reject argument case." Because we OHIC's that the trial court refusing "conducting erred in to a include the business of question verdict, special on the do argu we not address this ment. agree with the Further, we also 82. appears have had for OHIC to
that since even counsel exactly "conducting explaining the busi- what difficulties expect it to meant, be unreasonable ness is" would jury comprehend is OHIC's Likewise, it. as clear from to not know whose business brief, even OHIC does conducting: "[W]hile allegedly there was Beauehaine may provider dispute care as to which health be some Zimmer) College], ([Children's], [the or Medical 'conducting of,' can the business there be Beauehaine was conducting dispute of one of no was the business that she identify has whose business them." OHIC the burden conducting, supposed Dr. Beauehaine to have been any specificity so, more than but do with was unable conducting stating been someone's that she must have simply The trial court business. This is insufficient.24 refusing "conducting did not err in to include having question special verdict, on the business of' of vicarious there was no evidence established liability. at Right Denied to Participate Counsel OHIC for
Time Trial contends that counsel for OHIC 83. OHIC right participate denied at should have been the time of trial. actuality, argument appears In what OHIC's to come down "[Wlhile
to is that someone else should be hable her: there may dispute provider some as to which health care be Zimmer) ([Children's], College], or Beauehaine was [the Medical of,' 'conducting dispute can be no that she was the business there 655.23(5), conducting of one of them under Stats." business clear, as As that sentence and was case with loaned makes issue, argument or this more than employee borrowed *48 .little to Dr. under Stat. ch. 655. attempt backdoor fit Beauehaine Wis. During proceedings, ¶ 84. OHIC had two at- torneys: representing first, Grimstad, Paul Dr. OHIC, Beauchaine and as OHIC's interests related to representing Beauchaine; second, Weir, and Todd OHIC, and Children's as OHIC's interests related A trial, Children's. few months hired a before OHIC attorney, represent third Emile Banks, to OHIC's inter- they May ests as 3, 2004, related Children's. On Weir moved to as for OHIC, withdraw counsel as its interests Children's, related to because OHIC had hired Banks. granted The court and Weir's motion ordered Banks to OHIC, serve as counsel for as its interests related to Children's. already explained,
¶ 85. As mo- Fund filed a declaratory judgment tion for that the Fund not be policies liable $20,400,000 exhausted, until OHIC's are granted. which the trial On court the eve trial and day Hegartys the same settled with the Medical College, physicians, Fund,. a number of the requested participate Banks he be allowed to in the "coverage trial as counsel." Both the opposed request. Children's court ruled participate Banks could not in the trial because OHIC's already adequately represented, interests were as both attorneys, Children's Dr. Beauchaine had and there adversity justify was therefore "no him to established to participate." The court stated that had "no more OHIC special "any company status" than other insurance at they pay." explained: what have to The court through attorney, [sic] OHIC their Mr. Banks will not participate, questions, be ask participate allowed or way. any surely He can here. be He can confer with attorneys may those his his help case or issues of theory, [sic] but he'll have no direct as far control this Court is concerned. *49 jury special During
¶ trial, at the instruction 86. hearing and at the motions conference verdict speak, attempted to Banks nonetheless verdict, after failing stopped to follow the the court but was ruling. court's v. cites Kiviniemi American Mutual 87. OHIC
Liability
Co.,
619,
¶ 88. instead contends that unre- OHIC question status meant solved Beauchaine's any company 'like other insurance' OHIC "[t]he defendant," named as fact that OHIC and but [Children's] were at odds each other on its insured with conducting questions the business of the answer to the required represent separate retain OHIC to counsel Accordingly, its own interest in the case." OHIC main- only tains that because Banks was involved in this case protect policy OHIC's umbrella "as counsel for a policy named defendant with a million umbrella at $20 fully participate stake," he should have been allowed to proceedings protect in the OHIC's interest. Hegartys respond that the trial court
correctly right participate denied Banks the to because coverage there were no issues, unresolved since OHIC policies provided had admitted that its in $20,400,000 coverage repre- to Dr. and Beauchaine, since Banks only they sented OHIC's interests as relate to represented Children's, while Children's, Weir their were interests thus not adverse. The also disagree that there was an issue as to whether Dr. "conducting Beauchaine was the of' business Children's 20-21 March because Dr. Beauchaine admitted that employed by MCWAH, she was and of none the defen- declaratory judgment dants for moved or raised the "conducting pleadings the business of' issue in or their at trial. general
¶ 90. rule that the the "extent of right multiple manner and the even of cross- by representing examination different counsel the same party by can be controlled trial the the court so that proceeds orderly trial in and an fair manner." See Hochgurtel Felippo, v. San 78 Wis. 2d 253 N.W. omitted). (1977) (citation 2d 526 This exercise of dis- dependent upon cretion the trial be court must the of circumstances only the trial. Id. This court will reverse clearly appears erroneously if it that the trial court exercised its discretion that "the error affected right complaining party probably of substantial the affected result Id. of trial." This to have arisen out 91. issue seems declaratory judgment. for The heart of
Fund's motion
permit
partici-
trial court's decision not
Banks to
the
pate
simply
need
Banks
that there
was no
was
"coverage
himself,
as,
the words Banks
function
already
via
counsel," because the court had
established
declaratory judgment
primary
that OHIC's
policies
to be exhausted before the Fund
umbrella
had
longer
exposure and
an
had
that as such there
no
coverage.
respect
with
to OHIC's
issue
arguments
¶ 92. OHIC's
focus not on the declara-
tory
pretrial
judgment and
that led
its own
admissions
they
it,
rather,
seek to resurrect an issue con-
but
cerning
"conducting
language
of'
from
business
655.23(5) by
§
claiming
had
that OHIC
Wis.
Stat.
separate
protecting
policy
interest in
umbrella
separate "coverage
needed
counsel."
already
determined,
have
However,
we
opinion,
section A.2.b.ii
this
that the trial court did
*51
refusing
"conducting
err
not
in
to include
the business
question
special
Likewise,
of'
on the
verdict form.
opinion,
of this
we
the trial
section A.1
determined that
granting
court
not err in
the
motion for
did
Fund's
declaratory judgment
pretrial
based on OHIC's
admis-
already
thus
sions. We
have
resolved the issue
coverage,
it
there
no
OHIC's
and
follows that
was
need
"coverage
longer
for
counsel" because it was no
an
given
request
response
issue,
the
to
the
admissions.
unpersuaded by
reason,
For
we are
claim
this
OHIC's
"protect"
Banks
have
should
been allowed to
policy, OHIC's umbrella
that OHIC's interests were
adverse to those
there was
of Children's because
no
longer
respect
an issue with
to whether
umbrella
policy provided coverage. Because the issue had been
adversity.
no
resolved, there was
Since there was no
adversity,
reject
we also
OHIC's claim that
the trial
misinterpreted
acknowledging
court
OHIC's role in not
special
status,
OHIC had a
adverse Children's.
finding
The trial court's
exercise of discretion
no
adversity of interest between Children's and OHIC was
proper.
Hochgurtel,
thus
See
¶ 94. With Kiviniemi we agree Hegartys inappli- with the that these cases are adversity cable in Kiviniemi, because there was be- company tween the insured, insurance and the Peissig attorneys represented parties involved who explained whose interests were at times dissimilar. As above, this was not case here. Moreover, OHIC has not shown that
outcome would have been different had Banks been permitted participate. develop OHIC fails to this argument, beyond stating: the sentence "The denial of right represent OHIC's to have counsel its interests in clearly the case affected the result of the trial as OHIC's jury." not contentions were even considered Not only argument sufficiently developed, is this see (Ct. Pettit, 627, 646, State v. 171 Wis. 2d 492 N.W.2d633 1992), App. regard- it but also reiterates the same issue ing already rejected we "interests" above.
4. Settlement Documents copies
¶ 96. OHIC contends that it entitled to any plaintiffs and all settlement documents that the entered into in the case. trial, 1, 2004, the eve of 97. On October agreement entered into a settlement with College,
Fund and the Medical as well as a number of *52 employees employees doctors who were or former
133
including
and Balint.
Children's,
Drs. Stremski
OHIC, Children's, and
insurer,
and her
Beauchaine
parties
agreement. On Octo-
to the
MCWAHwere
compel
to
the
12, 2004,
made an oral motion
ber
OHIC
"all
releases
disclosure of
settlement and/or
plaintiff
made an
case,"
entered into ... in this
has
proof.
for the
stated that the
offer of
Counsel
agreement
Pierringer release,25
was not a
settlement
agreed
keep
parties had
the terms
and that
production.
ordered its
confidential, unless the court
finding
motion,
that OHIC
The court denied OHIC's
prejudice
or
that would necessitate
had not shown bias
stating:
agreement,
of the
admission
any
I
or bias now and I don't think
prejudice
don't see
really
level,
relevant. It's
this
it's none of
it's
—at
they
I don't
They
business.
do what
do and
defensefs]
any
professional
think
or other witnesses that
—for
they
by the fact that
their
going
prejudiced
are
to be
money. They
company
paid
insurance
has been
some
that,
testify to the facts and I'm sure of
and it's not
will
at
and it will not be ordered.
relevant
this level
14, 2004, OHIC filed a motion
98. On October
compel
for reconsideration and writ of mandamus to
provide
copy
agreement
them a
of the
the Fund to
25
explained
supreme
City
As
court VanCleve v.
Marinette,
80,
2003 WI
258 Wis. 2d
liability reflecting proportion wrongdoing. to the amount its differently, Pierringer operates impute Stated release settling liability settling plaintiff whatever in contribution the may non-settling defendant have to defendants to bar subse- non-settling quent might contribution actions the defendants against settling assert defendants. VanCleve, (citing 2d at Pierringer, 258 Wis. 2d Wis. omitted). 193; footnote *53 pursuant Open statute, to the Wisconsin Records Wis. § 15,2004, 19.35. On October filed a OHIO motion Stat. 893.55(7).26 § pursuant to Wis. Stat. The trial court denied both motions and the of writ mandamus. In again sought verdict, motions after copies OHIO to obtain agreement. of the settlement The trial court stating standing denied the motions, that OHIO lacked request make insured, Children's, to because its had support been dismissed from the In case. of their copies verdict, motions after submitted of agreement the settlement to the trial court for an in inspection. camera general agree- rule is that settlement prove liability.
ments are not to admissible Wis. Stat. § provides: 904.08. Section 904.08 furnishing offering of promising
Evidence or or furnish, accepting offering or or or promising accept, a compromising attempt- valuable consideration in or ing compromise a claim disputed which was as to validity amount, admissible either or is not to prove liability invalidity for or of the claim or its amount. Evidence of conduct or made in compromise statements negotiations is likewise not admissible. exception
¶ 100. The statute also sets forth an permits, require, does not but admission settlement evidence: 893.55, § malpractice; entitled "Medical Wisconsin Stat. actions; damages;
limitation of limitation of itemization of damages," provides, part: in relevant (7) any compensation bodily injury Evidence of for received compensate
from sources other than the defendant to the claimant injury damages for the is admissible in an action to recover malpractice. medical This section does not limit the substantive or procedural rights persons upon who have claims based subro- gation. require
This section does not exclusion when the evi- purpose, proving is offered for another such as dence witness, negativing or a prejudice bias contention satisfaction, delay, proving of undue accord and nova- release, proving compromise tion or or an effort to or investigation prosecution. obstruct criminal or Id.
¶ 101. OHIC asserts that the case law in Wiscon
supports
sin
its contention that it is entitled to obtain
copies
any
agreement.
citing
First,
settlement
Balk v.
Exchange,
Farmers
339, 347,
Insurance
138 Wis. 2d
1987)
(Ct. App.
proposition
N.W.2d 792
general
for the
that a
joint
release of one tortfeasor releases all
tort-
plaintiffs
feasors, OHIC asserts that "if the
in this case
general
any
settling
a
obtained
release from
of the
they may
defendants,
in
have
fact released their claims
against
non-settling
that,
defendants." OHIC claims
Swanigan
Co.,
consistent with
v. State Farm Insurance
(1980),
99 Wis. 2d
¶ 102. OHIC thus contends a that it has settling know whether defendants a Pier- received ringer agreement because, release if the settlement is a Pierringer impute settling release, this would to the plaintiff liability settling whatever in contribution may non-settling defendant have to Ac- defendants. knowledging Hegartys' proclamation counsel's that agreement Pierringer release, is not a main- OHIC party that a tains the label attaches to a release is not always necessitating thorough accurate, a review of the release. OHIC also relies on the in Finally, holding Blanke, v. 158, 168, 2d
Hareng
90 Wis.
¶ 105. In its OHIC asserts that Morden in supports argument copies fact its that it is entitled to agreement agree- because there the terms of the ment, a settlement $500,000, and a covenant not to parties.28 sue, were known suggests "[b]y OHIC also submitting copies agreements to the court for an in camera inspection support of their motions after verdict admit agreements settlement recovery affect their right against OHIC." OHIC contends that it rely should not have to on the Hegartys' they characterization of what legal contend are the agreement. effects of the Because we remand this issue to the trial court proceedings, for further we decline to further com *56 agreement. ment on the character of the Hegartys' As to the agree Hegartys with the 106. We cannot ¶ compel to of the the trial court's refusal disclosure begin by noting agreement proper. settlement We that this centers around the fact that the terms of issue agree agreement to OHIC. with were not known We Hegartys support OHIC that Morden does not agreement because, Morden, terms of the were in parties, inappli- such, known to the and as Morden is Indeed, of the cable to this case. agreement because terms parties, contrary not to all were known OHIC, are the assertions of both the we position in a address whether Wis. § Stat. 904.08 applies to this case. discovery is, core, at its issue. Rather, this discovery order
"The standard of review of a
is whether
erroneously
in
the trial court
exercised its discretion
ordering
discovery."
prohibiting
or
Rademann v.
Dept.
Transp.,
App
34,
State
2002 WI
[the
"The burden
on
Wis. 2d
Additionally, OHIC also agreement failing production to order the of the settlement 893.55(7). again, § Once pursuant release Wis. Stat. and/or trial court for further because remand this issue to the we issue, we need not further address proceedings 893.55(7) 893.55(7) § in this context. Section applicability of will, however, C.2. of be addressed in further detail section properly conclude that the trial court opinion, this where we it in a different context. applied *57 (citation 28,
2002 WI 251 2d 68, Wis. N.W.2d original). omitted; alteration in We will affirm a discre tionary decision the trial court if the record shows trial court "considered the facts of the case and appli arrived at reasonable conclusion based on the Physicians cable law." Wisconsin, Manke v. Ins. Co. of App Inc., 2006 17, 289 WI Wis. 2d 712 N.W.2d 40.
¶ 108. We conclude that the trial court did errone- ously refusing exercise its discretion in to order the production agreement. making of the settlement In its deny requests decision to OHIC's for the settlement documents, the trial court examined the relevance of the ("Evi- agreement, settlement see Wis. 904.02 Rule Stat. admissible."), dence which is not relevant is not why articulated reasons for it concluded that it was not relevant. The trial court did not, however, an conduct in prior ruling camera review the actual document on the motion. filing post-verdict
¶ 109. In their motions, the agreement filed the confidential settlement along with the trial court under seal with their motions. ruling post-verdict In motions, the trial court did agreement review the camera, and could have granted OHIC's motion had it determined that agreement erroneously pre- had been excluded, but, sumably agreement, mindful of the terms of the agreed agreement properly trial court that had been excluded and denied the motion.
¶ 110. We conducted an in camera review of the agree document and are unable with the trial court. Upon independent agree- our review of the settlement ment, we have come conclusion that it is unclear agreement Pierringer whether the is or is not release, appears aspects as the document to contain of a Pier- ringer release. We are satisfied that order to deter- agreement, mine the true character of the it will be necessary for OHIC to have access to the settlement agreement, and we therefore order its disclosure to Accordingly, OHIC. we remand this issue to the trial proceedings.29 court for further Jury Hegarty's Instructions Prior to Jeremiah Testimony
¶ 111. OHIC contends that the trial court erred jury damages prior when it read testimony instructions on to the plaintiff Hegarty. of Jeremiah 112. On 13, 2004, October the called Hegarty, testify. previ- father, Sarah's Jeremiah to The provided fifteen ous witnesses had who testified had mostly testimony. medical Before Sarah's father's testi- mony, jury testimony the court indicated to the that the "going liability [to] damages." would now be from jury damages, court also read two instructions on regarding pain suffering, Wis JI — Civil and regarding parent's society Wis a loss of JI — Civil companionship. parties requested None of the the reading instructions, the and the court did not any parties prior reading consult with of the them. objected reading jury OHIC to the of the instructions on grounds unduly emphasized damage that it the issues and moved for a mistrial. Dr. Beauchaine and Children's
29OHIC also contends that the trial denying court erred in its motion after grounds standing verdict on it lacked because the trial court overlooked the fact that when OHIC first requested agreement the disclosure of the Children's a was still agreement the party, just has an effect on not Children's but all non-settling the parties, agreement may bearing and the have the might ultimately amount that OHIC owe. Because we re mand this issue to the trial court for proceedings, further we ruling need not address the trial standing court's on the issue of at this time. join motion for a mistrial. The trial
did not OHIC's request for a mistrial. court denied that the trial court should 113. OHIO maintains reading granted have its motion for mistrial because only damage jury unwarranted, instructions was "not it unduly damage also served to underscore the issues Insisting in the middle of trial. that Jeremiah case" testimony damage Hegarty's plaintiffs critical to the claim, OHIO asserts that there was no evidence that the jury alerted to the nature or needed be relevance his testimony complicated not "so and tech- because it was jury figure nical that the could not out on its how own testimony fit into the case." Hegartys respond reading ¶ 114. The that the jury proper instructions was exercise of discretion 805.13(2)(b), § and cite which They the court Wis. Stat. allows give preliminary instructions. also submit that challenges merely timing of the in- because OHIO structions, themselves, not instructions and because any weight the court did not make comments about the express any opinions of the evidence or about the testi- mony, mistrial, that, it does necessitate as *59 any possible such, error was harmless. The also "disingenuous say least," call the claim of error to reported because local media outlets OHIC's counsel as saying jury expected. that the size of the verdict was In reply, its OHIC insists that do not instructions qualify preliminary as instructions under Wis. Stat. 805.13(2)(b) § because the court did not consult with prior reading required by counsel to the instruction as the statute. agree Hegartys.
¶ 115. We
with the
Under Wis.
805.13(2)(b),
may
§
give
"The court
additional
Stat.
preliminary
jury
instructions to assist the
in under-
standing
duty
its
and the evidence it will hear." How-
805.13(2)(b)
specifically requires
ever,
"[t]he
also
preliminary
additional
instructions shall be disclosed to
parties
they
given
party may
before
are
and either
object
any specific
propose
to
instruction or
instruc-
given prior
tions of its
own
be
to trial."
agree
¶ 116. We
with OHIO that because the in-
parties
they
structions were not disclosed to the
before
reading
were read
the court the
of the instruction
qualify
preliminary
does not
as a
instruction under Wis.
805.13(2)(b).
§
agree
We nonetheless cannot
Stat.
reading
jury
of the
instructions constituted revers-
ible error. The trial court has broad discretion over the
litigation. Wengerd
conduct of
v.
Rinehart,
2dWis.
(Ct.
1983).
App.
Having
575, 580-81,
to fact long complex in a trial. We are satisfied that the merely trying keep jury properly court fo- Accordingly, cused. the trial court's decision to read jury proper instructions was a exercise of discretion and properly court denied OHIC's motion for mistrial. Appeal B. Dr. Beauchaine and OHIC's Combined 893.55(4) § Applicability Wis. Stat. to Dr. Beauchaine
¶ 117. contend that the trial Beauchaine/OHIC ruling court erred as a matter of law Stat. Wis. 893.55(4) § apply disagree. did not to Dr. Beauchaine. We *60 143 ¶ 26, 2004, March Dr. Beauchaine moved 118. On Hegartys declaratory judgment claims for that for a subject damages to the limit of Wis. non-economic were 893.55(4). holding Phelps, § in After our Stat. first-year are not medical residents like Beauchaine meaning providers" "health care § within 893.55(4), longer parties agreed this no an was Phelps, ¶ 667, 41. 273 Wis. 2d issue.
¶ filed their At the time 119. Beauchaine/OHIC response, filed their and the brief-in-chief Supreme Phelps pending before Wisconsin parties recognized the decision of this Court. Both acknowledged Phelps, 667, 273 2d but court, see Wis. disposition depend on the that the of the issue would supreme outcome at the court. By the time filed their 120. Beauchaine/OHIC
reply supreme court had handed down its brief, the affirming holding first-year Phelps decision in our providers" residents are not "health care under medical 893.55(4). § Phelps, ¶69, 282 Wis. 2d Wis. Stat. reply not, however, does dis- brief Beauchaine/OHIC's cuss the fact that supreme court held that she is not 893.55(4). provider" Rather, the a "health care under supreme explic- an court brief focuses on issue that the namely, first-year itly address, declined to whether employee qualifies of a health resident as borrowed provider, id., 69, 65, care and directs us to Wis. 2d arguments being employee her a borrowed about employee presented in OHIC's brief. borrowed opinion.30 issue is addressed section A.2.b.i this the recent reply brief also references Beauchaine/OHIC's Compen ex rel. Petrucelli v. Patients case of Ferdon Wisconsin 440, Fund, sation 2005 WI 284 Wis. 2d 701 N.W.2d supreme our court held that the noneconomic medical which *61 121. In court our light supreme affirming of ¶ in Phelps, decision this issue is now resolved. Wisconsin 893.55(4) Beauchaine, § not to Dr. apply does Stat. 64, and the trial court Phelps, 282 Wis. 2d did ¶ err in so ruling. and Society
2. Pre-Death Loss
Companionship
of
122.
contend that
the trial
Beauchaine/OHIC
court erred as a matter of law in
an un-
permitting
893.55(4)(d)
damages caps
§
set forth in
malpractice
Wis.
Stat.
They argue adamantly against
are unconstitutional.
Ferdon
so,
being
retroactively, but nonetheless claim that even
applied
acting
Beauchaine
question
"the
of whether
was
as a borrowed
employee
provider
of a health care
is still relevant to whether
wrongful
caps
to the
death
of
she is entitled
893.55(4)(f)
Wis.
Stat.
895.04(4),
and
survived the Ferdon decision."
which
Hegartys
reply
addressing
implications
filed a sur
brief
They argue
applica-
that Ferdon has no
Ferdon
this case.
case,
bility to this
and therefore assert that Beauchaine/OHIC's
arguments
thinly
based on Ferdon are "a
veiled
alternative
advisory
from this
attempt
opinion
their counsel to obtain an
litigation."
pending
court for use in other
Ferdon is irrelevant
to this case. Wisoonsin
Stat.
Ferdon,
893.55(4)(d),
ap
§
held unconstitutional
in
the statute
only,
plied
providers"
per
Stat. ch. 655 "health care
and
Wis.
Phelps,
provider."
Dr. Beauchaine is not a ch. 655 "health care
ruling
intended to have
Nothing
suggests
in Ferdon
that the
argue that
attempt
application.
wider
Beauchaine/OHIC's
already
has
employee
Dr. Beauchaine was a loaned or borrowed
rejected
opinion.
A.2.b.i of this
Because Ferdon
been
section
case,
applied retroactively,
if it was
we
would not affect this
even
question
application.
need not
of retroactive
See
address
(1938)
296, 300,
Hoffman,
v.
¶ 124. The of whether a damages "pre-death" society for the loss of and recover injured question companionship of an minor is a of law Physicians de novo. Pierce v. Ins. Co. we review of Wis., Inc., WI 1, 10, 82, 278 Wis. 2d 692 N.W.2d arguments. present 558. three We Beauchaine/OHIC each in turn. address Recovery Separate and
a. Pre-Death Post-Death Society Companionship and Loss of argue Hegartys ¶ 125. that the Beauchaine/OHIC separate pre-death were not entitled to claim loss of society damages companionship and in addition to society companionship wrongful and dam- death loss of ages. assert that Beauchaine/ argument pre-death
OHIO waived that their loss society companionship and claim did not survive Sarah's death because Dr. Beauchaine failed to raise the complaint in her defense complaint, answers to and amended February dispositive and filing date, motion and did not raise the issue "until the day closing arguments." disagree. We The record separate pre- post-death reveals that the issue of and questions verdict was first discussed at the close of during jury special evidence instruction and verdict conference on October 2004. The court first re- marked that:
It to me there separate questions seems should be two society companionship. They about loss of lost two years society companionship her because of injury that, so there be a question should about they society then have lost and companionship because I question of her death. think there should be about [a] separate question that. I think there should be a for the mother and separate question [a] for the father and it joined should not be .... *63 agreed
¶ discussion, 127. After some it was post-death society companion- the award for loss of and ship capped $150,000 at a is for non-Wis. Stat. ch. 655 Hegartys case. Counsel for the then added that Sarah's parents' society companionship during loss of and years agreed two before Sarah's death is unlimited and purposes post-death parents that for of the award the together, parents sepa- could be but asked that the be purposes pre-death rate for of the award. objected
¶ 128. Counsel for Dr. Beauchaine to the proposal separate questions society court's for for loss of companionship pre- stating: post-death, and and wrongful any
I'm of basis to have a not aware death/loss claim and then a second society companionship and of is, effect, wrongful a relating to the death. It one - action, certainly recovery there a death and while matter, I suffering prior and to death pain for any separate of basis in law to out. don't know "sup- ¶ a Dr. Beauchaine's counsel filed brief 129. jury precluding plain- porting and verdict instruction society recovering companionship from loss of and tiffs period March 20-21,1996[,] March and for the between ultimately disagreed Although with 16,1998." the court kept pre- post-death and Dr. Beauchaine and loss society companionship questions separate, we dis- and agree that Dr. Beauchaine waived with Accordingly, argument reach the on this issue. we her argument. merits Beauchaine/OHIC's argument their 130. base Beauchaine/OHIC principle are that actions available at common law statutory extinguished death, decedent's absent a at the contrary, provision statute, and cite the survival to the § wrongful statute, 895.01, and the death Wis. Stat. They § for 895.04. contend that while claims Wis. Stat. suffering damages pain a for and of deceased survive pass to under the decedent's death and the estate only § provides 895.01, the statute decedent's parent's provide claims survive and does not pre-death society companionship sepa- loss of claim rately survives the decedent's death. they respect to Wis. Stat. With 895.04, § permits parents
argue of a that while the statute bring society deceased minor to companionship, claims loss filing post-death of a it does not allow they argue pre-death Accordingly, that "in the claim. society companionship' death, context of damages 'loss of necessarily to the ... measure total loss
148 parents society companionship" of the child's and and - "[b]y artificially 'time-dividing' claim that this element - only post-death 'capping' and effectively loss the circuit court cap wrongful of eliminated the death disagree. statute." We misinterpret seem 132. Beauchaine/OHIC § meaning 895.01, of Wis. Stat. 895.01. Section merely statute,
survival
forth
in
sets
instances
which
causes of action survive the death of an
who
individual
prior
had that
of
cause
action
to death. While
recognizing
are
in
correct
that
Beauchaine/OHIC
claims for
damages
suffering
pain
due
and
of the
pass
deceased survive the decedent's death and
to the
895.01,
Hubbell,
decedent's
under
estate
see Lord v.
(Ct. App.
Inc.,
150,
2d
165,
210 Wis.
and v. 2d Prier, 66 Wis. (1975), 404, 225 N.W.2d495 and Kottka v. PPG Indus (1986). tries, Inc., 130 Wis. 2d N.W.2d recognize Shockley, an under Beauchaine/OHIC injury may claim to a minor child in a or result for his her injury parent's a claim own for the of the child's loss society companionship, aid, comfort, but assert that may parent's brought only "provided, claim be and on parent's condition, cause action is combined injuries." personal with that of the child for the child's acknowledge Kottka, also re Beauchaine/OHIC covery pre- post-death both loss of consortium they permitted, but claim that the case is distin guishable "because there the claimant filed her claim *65 brief). They (emphasis
prior in death" the decedent's the case that is "irrelevant" because also maintain Kottka pre- post- the combined and did not discuss whether wrongful cap of the claim could exceed the death loss death statute. "pre- Hegartys respond
¶ a claim for 134. separate society companionship and death" loss of is society wrongful and a claim for loss of from companionship, death damages sepa- for each are and that rately They recoverable. contend that Beauchaine/OHIC Shockley, Shockley recognized in fact misread and that right parents injured of an minor child to of society compan- recover the loss of their child's and ionship. They this controlled insist that issue indeed by they Shockley in reach- Kottka, which note relied on ing recovery pre- and the conclusion that for both agree. post-death loss was allowed. We Shockley, recognized supreme In our court parent's right society and a to recover for the loss of the companionship injured by specifically of an child men- tioning parent being do so the unfairness of able to only if the child dies: respect parental
What is said with loss the event injury. child is true in case of Our equally death of a already wrongful recognizes death statute the loss damages society companionship and as an element recognize of death. It reasonable to this case seems injury loss there has to a minor type same where been child. disagree
Id., 2d at with 400. We Wis. Beauchaine/ Shockley prerequisite for a OHIC established as a by society companionship claim for loss of claim there exist a simultaneous parent personal injury- claim the child. 136. Kottka involved the widow of a who worker
died from to chemicals where the worker's exposure carrier compensation reimbursement for the sought of a pre-death settlement that had portion provided payments for both loss of pre- post-death consortium/society Id., 130 Wis. 2d companionship. at 516. Relying court rea- Shockley, supreme *66 soned: recognized
When we first a common-law cause of action in parental negligent injury for loss the event of to a child, distinguished parents' recovery minor we the for society loss of a child's and as an companionship, death, statutory damages wrongful for element of from parents' recovery type during the for of the same loss injured provide remedy the life of the child in order to a injury for the actual losses which to a child causes to Prier, 400-01, parents. Shockley the v. 66 Wis. 2d (1975). policy in N.W.2d The same leads us this distinguish of case to Janet Kottka's claim for loss resulting society companionship William Kottka's and from from her for loss of his death claim consortium alleged injury between time of William's and his death.
Id., 2d at rejected 130 Wis. 517. The court the worker's carrier's and concluded: compensation argument reject argument sec. [W]e of insurers 895.04(4), Stats., right provides only Janet Kottka's society and companionship recover for loss William's right damages and hold that Janet Kottka's to recover society resulting companionship for her and loss 895.04(4) pursuant from death to sec. is William's right damages her common additional law recover prior for loss to William's death. of consortium added). Id. at (emphasis 520-21 by ¶ convinced are not 137. We Beauchaine/ distinguishable on is that Kottka OHIO'S assertion requirement grounds a decision establishes pending at the time of death lawsuit that there be society compan- "pre-death" loss of and order to recover damages, agree ionship that the and with holding turn on whether there was did not court's pending died. when the husband lawsuit and that under Kottka 138. We are satisfied separate Shockley, parents of minor children have society post-death pre-death and loss claims for damages capped companionship, and are not wrongful The trial court thus did not err death limit. allowing recovery for both.31 Wrongful Caps
b. Death argue, in next the alter 139. Beauchaine/OHIC Hegartys' pre-death if the claim native, that even companionship separately society re were loss of §§ capped by 895.04 and coverable, it Wis. Stat. 893.55(4)(b). § They caps dam contend that 895.04 society ages death, loss of in the context of because *67 inherently injury companionship a as it "is not divisible "artificially parents' and the total loss..." measures permits 'stacking' dividing] and such a claim both brief). recovery" (emphasis in double Beauchaine/OHIC rely Hall, WI 100, 23, 2004 274 Wis. 2d on Maurin v. supreme especially 866, court's 28, 682 N.W.2d 31 the circuit court denied their OHIO also claims analysis." A of the record motion "without review post-verdict in fact denied their motion based on the reveals that the court 394, 404, Frier, 2d 225 N.W.2d holdings Shockley in v. 66 Wis. Industries, Inc., (1975), 130 2d and Kottka v. PPG Wis. 495 (1986). 160 388 N.W.2d 893.55(4)(b)32 § support Maurin, reliance on for plaintiffs precluded their contention that are "from 'stacking' damage caps parent's the noneconomic for a wrongful pain death claim and the Estate's and suffer- ing They "[u]nder Maurin, claim." conclude that separate Hegartys $3,500,000 awards to each of the Hegartys' law," must be stricken a matter as and the recovery pre- post-death for total both and loss of society companionship should be reduced to $150,000. Hegartys disagree 140. that Maurin limits recovery insisting ap- to $150,000,
their plies that Maurin only within the context of Stat. Wis. ch. 655 and liability Dr. Beauchaine's is not on ch. or based 655 Wis. 893.55(4). § Stat. disagree
¶ 141. We with Mau- Beauchaine/OHIC. provider." rin involved Wis. Stat. ch. "health care agree, parties Phelps, noted, As and as the under provider," Beauchaine was not a ch. 655 care "health 893.55(4) § subject and is therefore not to the Stat. Wis. caps. Phelps, supreme ¶69, Hence, 282 Wis. 2d 893.55(4) § court's discussion in Maurin is irrel- about explained previous subsection, evant. As Kottka Shockley give right a common law 893.55(4)(b) provides: § Wisconsin Stat. damages injury, bodily The total noneconomic recoverable for any including proceeding action or based on contribution or any person indemnification and for a than action claim other person injured damages for for noneconomic recoverable (d) bodily injury, may par. each not exceed the hmit under 6, 2006, April providers or occurrence on after from all health care acting employees providers scope and all care within health employment providing of their care health services who are injured negligent patients found and from the and families com- pensation fund.
153 society for both and loss of and post-death recover pre- Maurin does our conclu- not alter companionship: err in allowing separate The trial court did not sion.33 recoveries. Factors Award Based on Jury Impermissible
c. that the argue 142. Finally, ¶ Beauchaine/OHIC of submitting court erred as a matter law in trial society of and companionship loss separate pre-death They jury's to the assert that the jury. question society award and $7,000,000 pre-death for loss the invited error" because companionship product "is the question light misunderstood jury which what Hegartys' closing argument emphasized claim the award parents through. They Sarah's went parents' in fact an award for Sarah's impermissible care love, affection, not for the and pain suffering, that her would have received from parents protection had as it injured, their child the child been should 33 Hall, 100, Although, Maurin 2004 WI explained as v. 866, 23, 28, 2d applicable 274 Wis. 682 N.W.2d is not ¶ us, portion upon by relied case before we note by the has since been overturned Wisconsin Beauchaine/OHIC Compen In Supreme Court. Bartholomew v. WisconsinPatients Corp., Fund & Health 2006 Compcare sation Services Insurance 3, 38, 216, supreme 2d N.W.2d WI Wis. court recently explicitly portion overturned of Maurin held dies, malpractice cap a victim of medical for when damages, all wrongful death actions limits noneconomic includ damages. Bartholomew, ing pre-death noneconomic 717 N.W.2d interpretation 35-51. concluded: The court 'Maurin's ¶¶ malpractice wrongful of Wisconsin's medical death statutes single imposing global wrongful cap on all noneco- as death damages it into nomic is flawed because failed to take account the well-established distinction Wisconsin tort law between predeath damages postdeath actions for dam actions actions)." Id., ages (wrongful death *69 support, point have been. As to the Beauchaine/OHIC jury's pain $7,000,000 fact the that award for Sarah's suffering parents' and same the amount as the pre-death society combined award for loss of com- and panionship. Citing recovery case that law has viewed caution, emotional distress with Beauchaine/OHIC prohibited claim that because the were from "asserting negligent a claim for of infliction emotional they distress, damages were nevertheless able such to recover guise pre-death [society
under the of 'loss of companionship]' damages." They and therefore ask this judgment. court to strike the award from the Hegartys disagree, noting ¶ 143. The the properly jury court instructed the what factors jury arguments by consider and informed the counsel not do constitute evidence. agree
¶ 144. We cannot with Beauchaine/OHIC. respect question concerning With to the verdict Sarah's parents' pre-death society companionship, loss of and jury the court instructed the as follows: you question This asks to determine Jeremiah and Mary Hegarty's society loss of and companionship re- from sulting injuries by Hegarty. sustained Sarah Society love, and companionship includes the affec- care, tion, protection parent and the have would re- child, from her daughter ceived his or or had the child injured. It does been not include the loss of mon- etary support child, from the or the or grief mental suffering by injury. caused the child's determining
In the parents' society loss of age companionship, you Hegarty consider the of Sarah age parents, and the past relationship the the be- parents, affection, tween the the love and and conduct of other, society each towards each and companionship child, given parents that has to the been child and disposition, and character personality, by you The amount should reason- parent. inserted society and ably parents for loss of compensate he or she had sustained since the date companionship diagnosis up March till and treatment on Hegarty's time death on March of Sarah clear abundantly 145. This instruction was the jury what the court was to determine asking about loss of society —even explicitly explaining *70 "the or mental grief did include companionship jury the injury." caused child's is suffering have this instruction. State v. to followed presumed (1978). 2d Williamson, 84 Wis. N.W.2d 337 jury 146. even the instruc- referencing Without tion, and that with the presumption the fact we start it, the jury followed instead Beauchaine/OHIC which, in their argument criticize the Hegartys' closing the view, jury's by emphasizing Hegar- invited the error However, gave before counsel their tys' plight. closing court instructed the as follows: arguments, jury the arguments [Y]ou will hear of counsel. You should carefully closing arguments the of the attor- consider conclusions, neys, arguments, opinions but their and your your are not Draw own conclusions and evidence. from own inferences the evidence and answer according my questions in the verdict to the law and according Arguments instruction and to the evidence. may you. tell helpful They be to will summarize and you it, you theory, may agree you their with parts may agree may helpful. of. are to all It be You with decision, you okay. make own is an unambiguous telling jury This instruction we evidence, are not which arguments again presume id. jury followed. See Disregarding ¶ 147. this instruction, Beauchaine/ "[a]ny OHIO claim that doubt about this conclusion is by comparing suffering pain resolved" Sarah's award parents' society compan- with her award for loss of They ionship. explain not, however, do how the fact that happen implies jury the amounts to be same that the damages something for awarded other than for it what unsupported was instructed to award them. Aside from Hegartys' closing argument assertions about the and the jury size award, of the are unable Beauchaine/OHIC point anything give that would this court reason to jury conclude that fact misunderstood what it was erroneously damages asked to do and awarded parents' Sarah's emotional distress. denying Moreover, note, as the post-verdict motion, Beauchaine's the court found clearly supported jury's award, evidence
stating: family commended,
This be and the pain and suffering through she went before she received the treatment, it proper was terrible. She ate never solid surgeries, Had foods. addicted to morphine, had *71 wounds, open through organ went two transplants and any parents loss normal relationship of between her during They surely society compan- time. lost ionship they unlike, imagine any because were I can't this, family doing being that, total participant a in having regular not their child as a child.
¶ 149. are We satisfied that Beauchaine/OHIC's Hegartys' society of accusation- that the loss and com- panionship being impermissible an award for emotional disguise nothing unsup- distress is more than an ported speculation.
157 Com- Dr. Beauehaine's 3. Fair Trial on Issue of parative Fault Finally, a
¶
contend that
150.
Beauchaine/OHIC
required
the issue of
new trial
because
fairly
comparative
not
as a
fault
tried
Beauehaine's
evidentiaiy rulings that vio-
of
trial court's
result
comparative negligence law.
lated Wisconsin's
[trial]
¶
"A
discretion
151.
court has broad
admissibility
prof
determining
the relevance
132,
Oberlander,
v.
149 Wis. 2d
fered evidence." State
omitted).
(1989) (citation
We
140, 438
580
N.W.2d
exclude this evidence
the trial court's decision to
review
exercise of discretion standard.
under the erroneous
¶
Walters,
142,
2d
675
WI 18, 13,
v.
269 Wis.
State
uphold
appellate
"An
court
an eviden-
778.
will
N.W.2d
tiary ruling
[trial]
exam
if it concludes that the
court
proper
applied
facts,
a
standard
ined the relevant
process,
law, used demonstrated rational
and reached
judge
Id.,
could reach."
conclusion
a reasonable
Therefore,
will
an erroneous
14.
this court
not find
if
for the trial
exercise of discretion
a reasonable basis
Pharr,
v.
115Wis. 2d
court's determination exists. State
(1983).
¶
"(1)
claim,
negligence
must
a
plaintiff
establish
(2)
(3)
(4)
of
breach
a
owed
in
duty
that results
an injury
or
or
in
injuries,
damages[,]"
short, "a
act or
negligent
Skemp,
Paul v.
omission that
an injury."
causes
2001 WI
17,
507,
Thus,
Wis. 2d
to matter of or unless made, application court to which the is an after examination of the proceeding, appear action entire or it shall that the com- error plained rights party seeking of has affected the substantial of the judgment, to reverse or set aside the or a trial. to secure new 901.03(1) § provides: Wisconsin Stat. "Effect of ERRoneous Ruling. may predicated Error not be upon ruling which admits or right party excludes evidence unless substantial affected." *73 (1967). Admissi- 696, 337 688,
34 2d 150 N.W.2d Wis. governed by expert testimony bility is Wis. of Stat. testimony permits expert if the witness 907.02,35which specialized possesses scientific, technical, or other question knowledge specific to a the testi- relevant understanding mony in the trier of fact will assist the determining in 907.02 or a fact issue. Section evidence " liberally admitting expert the tradition of 'continues George, testimony' WI in State v. St. 2002 Wisconsin." (citation 50, ¶ 499, 2d 643 777 39, 252 Wis. N.W.2d omitted). Admissibility testimony generally expert 246 Martindale, of the trial court. within the discretion expert qualified ¶ or An if "he 67, 2d 28. witness is Wis. knowledge superior in area the she has which George, precise question ¶ 499, 2d 40 lies." St. 252 Wis. (citation omitted). expert wit- case, 155. In this there were six of causation: for the
nesses who testified the issue Langnas, Hegartys, Ament, Dr. Dr. Dr. Jon Marvin Alan Quigley; defense, Eamonn and for the Morris, and Dr. Bishop. Dr. Ronald Nichols Dr. Warren Regarding Possible a. Exclusion Evidence Negligence 21, a.m. on March 7:00 after ¶ 156. contend that the trial Beauchaine/OHIC erroneously regarding possible evidence court excluded negligence 21, March after 7:00 a.m. on trial, 157. Before start of possible negli- moved limine to exclude evidence scientific, § "If techni provides: 907.02 Wisconsin Stat. cal, to specialized knowledge will the trier of fact or other assist issue, or determine a fact in understand evidence skill, expert by knowledge, qualified experience, witness as an education, may testify in the of an training, or thereto form opinion or otherwise."
gence 21, 1996, after a.m. on March 7:00 by expert causal and that was not established testi- mony. Hegartys' agreed experts trial, Prior all of surgery performed have would had be before reports 6:00 a.m. on March filed experts they Beauchaine's identify, indicated were unable to degree certainty, any to a of medical causal negligence that occurred after 7:00 a.m. on March 21. expert opinions,
¶ 158. on these Based court granted explaining: the motion *74 by testimony, testimony
It's clear the the all relevant reviewed, the that court has that as of on the seven a.m. 21st, morning Surgery of March it was all over. thing the only going Anything was that was to happen. anybody try else would have done to remediate her problem any Surgery wouldn't have had effect. was the only answer. when we talk about might So what have might happened, something who have seven done from operation just till the it irrelevant and would confuse the can theory issues. You have a who is different about responsible during stages activity various this but stage. not on that Once at a.m. it's all We are seven over. talking surgery, only thing, about and that is the not somebody may done, done, pos- what have could have done, sibly done, could it have should have because has no effect on the causation. questioning
The court therefore ruled that the line of anything happened that about after 7:00 a.m. would not allowed. be Relying
¶ on 159. Hernke v. Northern Insurance (1963), Co., 352, 360, 20 2d 122 Wis. N.W.2d 395 begin by asserting in medical that Beauchaine/OHIC malpractice plaintiff produce testimony cases, the must probabilities, on based reasonable medical while the may plaintiffs by showing weaken defendant claim possibilities. mere are mistaken. Beauchaine/OHIC
161 party need not rise trae that 160. While it is cross-examining probability an when of medical a level opposing regarding party's expert matters on witness proof, party opposing the burden of see bears which 456-58, 471 N.W.2d Perchik, 163 2d Zintek v. Wis. (Ct. grounds by 1991), App on other overruled Steinberg 439, 534 Wis. 2d N.W.2d Jensen, v. sought (1995), to do that is what Beauchaine/OHIC challenging appeal. they are and not what at trial physicians sought they prove were that other Rather, Putting physicians causally negligent. who other special verdict, after a.m. on Sarah 7:00 treated they might possibility have been that on a mere based jury speculation negligent, have invited would proper with the have inconsistent been would "by jury be satisfied is, must standard; that that weight greater evidence, to reasonable of the credible [the] 'yes' certainty, to the verdict should be answer questions." 200.36 Wis JI — Civil contend Nonetheless, Beauchaine/OHIC ruling, "the record court made its at the time the 'delay' taking replete with evidence *75 provides: JI —Civil Wisconsin you questions questions in the verdict ask that answer Certain you questions party "yes" to answer the or "no". The who wants proof questions. "yes" those This burden has the burden of as to evidence, satisfy you by greater weight of the credible to to "yes" your certainty, to the that should be answer
reasonable weight questions. greater the credible evidence verdict "yes" has in of a answer more means that the evidence favor opposed convincing power to it. Credible evi- than the evidence light you of reason and common believe in dence means evidence you persuaded certainty" based means that are sense. "Reasonable certainty is upon of the evidence. Absolute a rational consideration guess enough required, to meet the burden of but a is not not proof. surgery approximately Sarah between to 7:00 a.m. and p.m. progressive additional, 2:45 caused death her They rely testimony small bowel." on Dvorak, of Dr. diagnosis suspected who "had stated that been even surgeons may earlier, there have been a different They insist, result." record, without citation to the opined deposition 'point "Balint. in . . had her that the probably of no for Sarah return' time occurred some They between a.m. 10:00 and noon March 21." also "[e]ven Hegartys' experts, maintain that two of the Drs. Quigley depositions Ament, and conceded that sur- gery might soon after 7:00 a.m. have led to a different Quigley you asked, outcome." Dr. was "do think that changed, gone would have been altered if she had to the operating realizing at 7 o'clock, room that she would responded, have bowel lost some even at 7 o'clock?"and unlikely "I think it's would she have died postoperative period immediate if she went to the OR at response question, "If 7:00 a.m." Dr. Ament's to the she gone surgery morning, had at or 10:00 in the 9:00 likely would she have bowel 2:30" lost less than at was likely "more than not." claim Dr. Beauchaine/OHIC "agreed begin Ament bowel did Sarah's until a.m. on March 21 then 'infarcted 6:00 infarct over the next six hours or so or seven hours or before so they finally got surgery.'" her in also Beauchaine/OHIC report "explained cite Dr. claim Schmidt's that it why belated condition, Zimmer's assessment of Sarah's particularly diagnose surgical Zimmer's failure to highly any abdomen, relevant assessment alleged negligence." Beauchaine's they jury 162. On this basis contend that compare should of Dr. have been allowed to the conduct personnel that of medical Beauchaine with more senior they control care because when assumed of Sarah's *76 physicians arriving also March "those same after on misdiagnosed and continued same Sarah's condition brief). They (emphasis in conclude course treatment" of considering jury precluding from even that post-7:00 Zimmer, of Puetz and a.m. conduct Drs. by determining trial Balint affected the outcome this occurring causal, after a.m. was no that no conduct 7:00 negligent. matter how Hegartys respond that the trial court 163. The negligence
properly a.m. after 7:00 excluded evidence testimony any negli- expert no because there was gence causal, and after 7:00 a.m. was Beauchaine/OHIC's "speculative opinions possi- argument on was based experts' opinions their own bilities that contradicted testimony They of Dr. refer to the causation." experts, Bishop. Drs. Dr. Beauchaine's own Nichols already dead "at that Sarah's bowel was Nichols testified deposition, Dr. time of the ER admission." At a approximately" Bishop "Yes, when asked answered damage and the approximately whether "the horse was out of barn basically done and irreversible after was on March 1996." a.m. Disagreeing in- with Beauchaine/OHIC's depositions
terpretations Balint and of the of Drs. Quigley Hegartys' experts Dvorak and the Drs. Ament, maintain that Beauchaine/OHIC desperate "[i]n a at- mischaracterize the statements tempt appellate to create an issue where none exists." They explain contrary that, as- Beauchaine/OHIC's only probable sertion, that it was "Balint testified a.m. and noon" and infarction occurred between 10 may "[t]hat have maintain that the fact infarction occurred at this time did not alter the outcome because already They damage irreversible then." admit, Dvorak, who that, note as Beauchaine/OHIC *77 merely that trial, would have testified not called at was morning, performed surgery in it the had the been They "might note that the altered the outcome." have they deposition Quigley's portion cite indi- that of Dr. only unlikely would have it that Sarah cated that was gone immediately surgery into after the had she died surgery ignore a.m., at 7:00 and that Beauchaine/OHIC Quigley disposition page where Dr. of the the next probably by too late to save a.m., it was stated that 6:00 Hegartys disagree also with Sarah. Beauchaine/ jury was not allowed contention that OHIC's reached the same fact that other doctors consider the a.m. Dr. Beauchaine did before after 7:00 as conclusion jury "[t]he hear such that did a.m.,
7:00 and note They point Ament's Dr. Schmidt's and Dr. evidence." they testified about testimonies, and that both observe spe- physicians diagnoses a.m., 7:00 of other after they cifically Balint, and that Zimmer, Drs. Puetz diagnose correctly failed to Sarah. all therefore conclude that 165. The proper that a balance," and court "struck the trial danger significant ruling create a different "would believing jury it would base misled into would be occurring negligence liability a.m., after 6 on acts of testimony linking conduct such causation even without injuries." to Sarah's agree with 166. We cannot Beauchaine/OHIC. Hegartys' by persuaded contention are instead
We
seeking
is,
do
are
that what Beauchaine/OHIC
appellate
exists.
where none
an
issue
fact, create
sidestep
arguments seem to
entire
Beauchaine/OHIC's
seemingly arguing causation,
the central issue
unjustifiably
jury
went
in the dark about what
was
They
Ollman,
¶ 167. The trial court's evidence negligence of after 7:00 a.m. was based on lack of place In words, causation. other events took prior injuries to the time after which Sarah's fatal could longer experts no avoided, have been were causal. All six agreed light that the cutoff no later than 7:00 a.m. In expert testimony, of this clear the trial court did not err excluding negligence evidence of after 7:00 a.m as non-causal. argu-
¶ reason, 168. For this OHIC/Beauchaine's jury compare ment that the should have been allowed to the conduct of Dr. Beauchaine with that of senior medi- personnel, cal who assumed control after 7:00 a.m. and continued the same treatment, course of is irrelevant. excluding The trial court did not err in evidence of possible negligence after 21, 7:00 a.m. on March 1996. Regarding Negligence
b. Evidence the Causal Physicians 20, Sarah's Prior March ¶ 169. contend that the trial Beauchaine/OHIC erroneously regarding court excluded evidence the al- leged negligence physicians causal who treated Sarah prior 20, to March 1996. 1995, 170. In Sarah was in July Indianapolis severe abdominal hospitalized
where she was with pain and treated Dr. Jensen and Dr. McDonnell. Approxi- month before on hospitalized one Sarah was mately Brown, March Dr. gastroenterologist, Zimmer, Sarah's treated Sarah for pediatrician, pain. abdominal trial, During moved to ex- 20,1996
clude evidence of to March as negligence prior 14, 2004, too remote to be causal. On October the trial motion, court that "the are granted stating issues what March 20th into the happened morning 21st," March and that before that time is "too anything remote as to the causation here." In making ruling, its the court stated: bringing defense... out
[T]he has been this issue very interesting, about what went on before. And it's may and it be that Dr. Beauchaine allowed shown diagnosing though had difficulties this even there were different circumstances than these other doctors be- difficulty diagnosing cause these other doctors had this interesting before and after. So that's and relevant as to culpability. her *79 physicians may negligent,
The other be but it is too you right remote as to the here. So I can tell causation my anticipation now it's that none of these doctors will on the verdict and none of the after. he before doctors going So we're to zero in.
Now, say... I all stop that's not to that will may testimony happened about what because it be interesting theory, that other line of as the other diagnose. tough But. .. defense this was says negligent very expert they an were is whether interesting, but it is not causal to the issue at hand. ... happened [T]he issues are what on March 20th and into morning on March 21st. gives you So if that any guide objection as to as to you present your testimony how .... In verdict, 172. motions after Beauchaine/OHIC
asserted that trial court erred in evi- precluding Jensen, dence regarding McDonell, Drs. Brown and Zimmer. The court disagreed reiterated: very
I think it transcript why clear I did it. ... I did indicate it relevant difficulty as to the diagnosing that might making Beauchaine have in diagnosis just Brown, like these other parties. Dr. Zimmer had problems making proper diagnosis, as did, Dr. Stremski as some doctors after the fact did. But surely it has no causal connection to what happened on question, the date in question, the time in particu- this lar episode. drag And to them in drag anybody and to her, may who have seen might have found out some- thing, if she would have had the problem when she was in Indianapolis Brown, or with Dr. then that would be that lawsuit. We have different lawsuit here. claim now that the trial Beauchaine/OHIC
court erred in excluding evidence of negligence prior March causal, as not alleging the record "was with replete evidence that actions taken nu- merous before physicians that date were a substantial factor in causing injuries." Sarah's She first points to Dr. Ament's testimony regarding the care of Dr. Jensen and Dr. McDonnell in July 1995, according to which Dr. Jensen and Dr. McDonnell were negligent not telling Sarah's parents Sarah's condition was potentially serious. They assert that Dr. Ament "unequivocally testified that Brown failed to evaluate Sarah appropri- *80 ately, resulting diagnosis, in an incorrect and that this legal injuries negligence of was cause Sarah's They testimony Bishop, death." also refer to the of Dr. testimony regarding they sup- Dr. Brown claim whose ported They point of
that Dr. Ament. also to the testimony expert Schmidt, excluded of Dr. an witness defense, for the who would also have testified that Dr. negligent. They Brown's care was further claim that "the that evidence was uncontroverted Stremski relied pre-March heavily physicians' on the other 1996 con- problems simply clusions that Sarah's constipation." were chronic above, Based on the ar- 174. Beauchaine/OHIC gue "by excluding negligent that conduct of the physicians prior 20, 1996, who treated to March Sarah - key theory court eviscerated defense diagnose Beauchaine's failure to Sarah's condition was negligent experienced physi- not because several more including specialists physicians treated cians, who repeated basis, Sarah on a diagnosis." also failed to make that They possi- there a "real thus insist that bility the outcome of this case would have been responsibility had the for the India- different causal placed napolis doctors, Brown, and Zimmer on the been verdict."37 Hegartys respond that evidence of
negligence properly 20, 1996, March ex- before brief, appear adopt reply In their Beauchaine/OHIC respect in their brief-in-chief with assumption advanced excluding argument their that the trial court erred evidence a.m., namely, they, as the defen negligence after 7:00 dants, allegations any needed of their to the level prove not already As merely possibility. but to the level of probability, section, B.3.a, possibility, is the explained probability, correct standard. *81 Indianapolis
eluded because the involvement of the doctors and Dr. causal, Brown was too remote to be and expert testimony establishing there was no negligence their causal purposes of their inclusion on the ver- dict. They explain
¶ 176. that the main issue was Sarah's admission to Children's on 20, 1996, March symptoms yet with obstruction, bowel Beauchaine/ Indianapo- OHIC "cite the involvement of doctors from eight prior lis months and the involvement of Dr. prior making Brown, one month 20, 1996, March general negligence by references to evidence of these legal injuries doctors that 'awas cause' of Sarah's They death." add that reference to contrary Beauchaine/OHIC's being causally negligent Dr. Brown interrogatories, Beauchaine's answers to and that their "unequivocally" claim that Dr. Ament testified that Dr. negligence legal inju- Brown's was "a cause" of Sarah's factually ries and death is inaccurate because Dr. only departed Ament testified Dr. that Brown from the acceptable practice, standard of and that her references Bishop They to Drs. and Schmidt are also not accurate. argue also reference to Dr. Beauchaine/OHIC's testimony physicians Indianapolis Ament's if properly July appro- had evaluated Sarah in 1995, an priate procedure performed could have been and the events of March 20-21 would avoided, have been does likening "permit- not meet the standard, causation it to ting jury in an automobile accident case to assess negligent speed driver's ten miles before the accident." again agree ¶ 177. We cannot with Beauchaine/ argument regarding negligence OHIC. As with their after 7:00 a.m. on 21,1996, March do Beauchaine/OHIC appear fully appreciate the causation standard. They Ollman, 178 2d at 667. cite bits and See pieces Wis. testimony apparent attempt in an to convince physicians the conduct of other than us negligent. They not, however, do ex Beauchaine was plain any potential negli of these references to how satisfy having gence purportedly the standard of caused injuries. critically, the trial Sarah's Most as court Hegartys recognized, ap the parently and as Beauchaine/OHIC not, Brown,
do or not Dr. treated whether who earlier, McDonnell, Sarah a month or Drs. Jensen eight negligent, earlier, treated months were who Sarah doctors *82 irrelevant, because treatments those happened no connection to what on March have causal experts agreed, 20-21, 1996, the time the Sarah's ulti mately injuries prevented. fatal have could been point
¶
on
178. To further illustrate case law this
Perhaps
comparison
the
can be
is instructive.
best
Virginia Supreme
by
Court,
in a
the
cited
found
case
(Va. 1997).
Hegartys, Bryan Burt,
the
v.
both in trial and in mo- making proper diagnosis verdict, tions after only difficult not for Dr. Beauchaine, bút also for a number of Sarah, doctors who saw and the court thus did allow evidence to that effect from before March equated That, however, is not to be with causal negligence. agree 180. For reasons, these we cannot that the ruling key theory
trial court's "eviscerated a of defense" Faced with a lack of evidence Beauchaine/OHIC. showing properly causation, the trial court ruled evi- negligence prior dence of to March 20, 1996, inadmis- sible. Limiting Testimony
c. Exclusion and Witness ¶ 181. contend that the trial Beauchaine/OHIC erroneously testimony court excluded of Drs. Lewis and testimony Kalt and limited the of Dr. Schmidt.
i. Dr. Lewis ¶ 182. contend that the trial Beauchaine/OHIC erroneously excluding court exercised its discretion in deposition testimony. Dr. Lewis's Indianapolis physicians and Dr. Brown during treated Sarah an episode of disagree volvulus. We with Bryan this distinction. family turned on the fact physician that the present was not on day the patient emergency was taken to the room at the start of the incident that led to her death. of the Medical
¶ the director Dr. Lewis was 183. residency pediatric graduate College's education deposed programs in 1996, and was March on employment January rela- He testified about 2000. attending physi- tionship residents, between the College, In and Children's. MCWÁH,the Medical cians, September defense did not Dr. Lewis died. The in list or indicate its Dr. Lewis on its witness include deposition report pretrial be Dr. Lewis's would that specifically pretrial report stated that instead, the read; they except depositions "d[id] as utilize not intend to impeachment required cross-examination." During trial, moved Beauchaine/OHIC Hegar- testimony. deposition Dr. Lewis's introduce tys argued unfairly they prejudiced would be testimony identified as Dr. Lewis had been because the introduc- refused to allow The trial court witness. grounds deposition Dr. Lewis's tion of testimony helpful probative or to the "not Lewis's was jury," give and "a issues this Court will ultimate divert[s] jury's time, and time, this waste of this court's the issues at hand." us from that Dr. Lewis's assert 185. Beauchaine/OHIC
testimony "highly it clarified relevant" because admitting of senior residents role and involvement evaluating patients, admitted have been and should 804.07(l)(c)(l)a.39 They portions § cite under Wis. Stat. they testimony relevant, find includ- of Dr. Lewis's WISCONSIN Stat. § 804.07(l)(c)(l)a. provides: any part or all of a At the trial (1) depositions. Use applied the rules of evidence deposition, far as admissible under so may testifying, present be though were then as witness present represented at the against any party or who was used thereof, in taking deposition reasonable notice or who had of the any following provisions: of the accordance with *84 ing: supervis- admitted, that once "the senior resident ing assigned admissions" to Dr. Sarah Beauchaine "and patient on"; the team she was that "for a admitted in the evening, usually the intern will be in contact with two "first-year different residents"; senior and that a resident required admitting to communicate to the senior resident." Responding Hegartys' argument
¶ 186. to the dur- ing trial that Dr. Lewis was not named on the witness list, admit that the defense "did not Beauchaine/OHIC explicitly name Lewis in her list," witness but note that "expressly right Dr. Beauchaine reserved the in her pretrial report to offer additional exhibits, name addi- any deposition witnesses, tional mark as exhibits tran- scripts referred to or from trial, read at the time of any by party," Hegartys call witnesses named another deposition themselves filed Dr. court, Lewis's with the pretrial report identify and Children's deposition did Dr. Lewis's testimony They consequently as to be read in. disagree reading testimony that Dr. Lewis's could have surprise They prejudicial. disagree been or also deposition pro- cumulative, and claim that it supervision vided critical details about control and adding sources, were elicited from other it [(the "Hagen's duty night rebutted senior resident on admitted)] self-serving Sarah was denials of her involve- They "[h]ad ment in Sarah's case." thus conclude that jury permitted been to consider Beauchaine's role in full likely context, it would not have been so hard on her." (c)l. deposition expert, aof witness other than a medical party, may any party any whether or not a purpose be used any following: if the court finds of the
a. That the witness is dead. *85 Hegartys respond ¶ 187. The that the defense not only scheduling identifying violated the order not Dr. pretrial report, Lewis their witness list and but also designate deposition Dr. failed to Lewis's to be read into adding trial, evidence at claim Beauchaine/OHIC's right that the the defense reserved to add witnesses pretrial report meaningless ignores renders the and the experts gone attempted fact that their were when she They probative introduce it. also insist that the value of general knowledge Dr. Lewis's of the role of senior admitting evaluating patients residents in weighed by is out- danger confusing misleading the the jury, they ability as did not have the to cross-examine Dr. Lewis. disagree
¶ 188. We with Their Beauchaine/OHIC. deposition claim that the should not have been excluded pretrial report right because reserved the to add depositions and mark witnesses as exhibits referred to entirely very purpose or read from at trial defeats the requirement. problem allowing the witness list compounded by such a late addition is the fact that Dr. deposition Beauchaine did not seek to have the read midway through Hegar- trial, until at a time when the tys' already experts making had far left, it too late for respond them to be called back to contents of already deposition. from the discussed, Aside issues problem being obvious of the able to cross-examine Dr. Lewis remains. deposition purportedly
¶ 189. As far as the clari- fying providing the role of senior evidence residents Hagen, despite that Dr. her denials, was involved case, Sarah's we are unsure how Beauchaine/OHIC Hagen's deposition Dr. believe the would have rebutted testimony, given deposition that Dr. Lewis's does not Hagen. deposition It that the
mention seems would provided non-specific have little more than statements general interplay about the residents and between already which, institutions as the trial court various dragged already concluded, would have further out an long reasons, trial. For these we are satisfied that the properly deposition. trial court excluded Lewis's
ii. Dr. Kalt ¶ 190. contend trial Beauchaine/OHIC erroneously excluding court exercised its discretion in testimony. Dr. Kalt's *86 third-year
¶ 191. Dr. Melissa Kalt was a resident who, 21, 1996, on March on the was same team as Dr. Karen Zorek and Dr. Beauchaine. Dr. Kalt on saw Sarah March at a.m. 1, 2004, 7:30 On October Dr. subpoenaed Kalt, Beauchaine Dr. but did not indicate an Hagen intention to call her as a At Dr. trial, witness. Hegartys. Hagen Dr. Zorek testified for the Both Dr. gave testimony suggesting Dr. Zorek that Dr. Beauchaine may have altered and falsified Sarah's medical records protocol required partici- and not followed the pation third-years residents, instead, but took sole responsibility Hagen, third-year for Sarah's care. Dr. resident with whom Dr. Beauchaine should have con- specifically caring sulted, denied for Sarah. After the Hagen Zorek, testimonies of Dr. and Dr. Dr. Beauchaine sought testimony to introduce Dr. Kalt's Dr. rebut Hagen's and Dr. Zorek's testimonies. The court denied grounds scheduling motion, on that it violated the surprise order, was an unfair in the middle ofthe trial for parties which the other notice, were not on and was not probative enough prejudice to overcome the to the other parties. explained: The court No,
Did the parties they believe Kalt would be called? put were never on notice. 1st, . October Beauchaine ..
I'm told now that on know, might person." want to use this 'You we said told, Nobody including the Court.... surprise There's on the prejudice? there unfair
So is Court, surprise surprise on the there's parties, there's Why until the middle of trial system .... wait theory, potential one may It be rebuttal on a spring this. not condone trial theory, we cannot and will but I that. or ambush. cannot allow surprise here, I indicated before look at the record as If we in a experts failed to name Defendant Beauchaine scheduling given order. She was timely per manner to allow them to do that.... grace of the Court again offering a Dr. Beauchaine Now we have "Well, it's rebuttal. She was at this late date. witness they have named in the record and should generally .... known." should have called it to Beauchaine would have and naming the time of attention earlier at
the Court's witness, interrogatories, happened it could wherever minimum, record, guess and I at a October be in the 1.... Kalt was not named. listed her witnesses.
Beauchaine *87 scheduling order. of the This is a violation of this probative at the value we look [W]hen... going weigh to is this if we're .... How reliable witness really testimony suspect. is weight The of that it? ... that, value, look at when we probative So the parties the surely, prejudice the very suspect. And value of that.40 outweighs probative this case applied the trial court argue that also Beauchaine/OHIC balancing test applying legal standard the incorrect
(Footnote added.) The'court denied Beauchaine/OHIC's motion after verdict on this issue. § ¶ 192. Wisconsin 904.03 sets forth the bal- Stat.
ancing admitting excluding test or evidence whereby compares probative a court value of the prejudicial evidence to its effect. "explo-
¶ 193. assert that Beauchaine/OHIC highly prejudicial" Hagen sive and testimonies of Dr. proffered and Dr. Zorek made Dr. Halt's rebuttal testi- mony "necessary" because it "would have established Hagen ... was indeed involved Sarah's admis- particular, sion." In contend that Dr. Beauchaine/OHIC directly Hagen's Kalt would have contradicted Dr. tes- timony by establishing acting that Dr. Beauchaine was supervision Hagen, under the and rebutted the suggestions that Dr. Beauchaine doctored records. Second, contend that al- Beauchaine/OHIC though Dr. Kalt was not named on their list, witness generically by she was identified both the defense and (1) ways: partici- in at least three As a pant in Sarah's treatment fell she under the defense's category "any nursing catchall all and medical or staff Hospital. provided at Children's . . who care for Sarah"; (2) third-year as a medical student at Medical College Hegartys' she fell under the witness list's catch- "[a]ll parties including agents all of to this lawsuit their (3) employees"; category under the defense's and/or probative Wis. value versus unfair § Stat. 904.03— prejudice conclude that Dr. Kalt would not be allowed to —to testify, calling this "exclusion of a an "extreme witness" sanc- disagree. tion." We applied proper legal court standard. Claiming that a witness was "excluded" confuses the issues because she begin was never named as a witness with. Not allowing the last-minute addition was not an "extreme sanc- tion." *88 "any by "any and all named witnesses" "Plaintiffs" and They Hegartys
co-defendant." therefore assert that the potential were on notice that Dr. Kalt was witness identity Hegartys, that Dr. Kalt's was known as she was identified in Sarah's medical records and in Dr. deposition. They pro- Beauchaine's 1999 nonetheless "[r]egardless, claim that Beauchaine an had absolute right plaintiffs on rebuttal to address the new 'evi- " They probative dence.' conclude that because the testimony clearly outweighed any value of Dr. Kalt's prejudice Hegartys, to the the exclusion of Dr. Kalt's testimony resulted in an error that was not harmless. Hegartys properly
¶ 195. The insist that the court testimony excluded Dr. Kalt's because it violated the scheduling They disagree order. that Dr. Kalt fits under any provisions, of the three catchall and note potential Beauchaine did not disclose Dr. Kalt aas response interrogatories sought witness identify other doctors or students who saw or examined Sarah and individuals with whom Dr. Beauchaine dis Hegar- 20-21, cussed Sarah's care on March 1996. The tys contend that the references to Dr. Kalt in the deposition medical records and in Dr. Beauchaine's excusing only than their failure, this raises "Mather questions [BJeauchaine why properly more as to did not Kalt."; They name call assertion Beauchaine/OHIC's testimony necessary that Dr. Kalt's was "ironic" because Hagen both Dr. Zorek and Dr. were on the named any "[t]hus surprise defense's witness list and claimed [BJeauchaine's anticipate from results failure to their testimony!" own witnesses' By contrast, maintain that
calling surprise Dr. Kalt as a witness did come as parties them, the other court, and the and that its weight "really suspect," resulting preju- in unfair *89 outweighed probative
dice that would have value of testimony. They that the record submit refutes attempt place to in "belated Kalt Beauchaine/OHIC's deposition Dr. Sarah's room" because Beauchaine's tes- timony only physician indicated she was the who exam- p.m. ined Sarah from 8:00 on March 20th until 7:30 morning, the next and that she did not see Kalt a.m. Dr. perform physical morning on exam Sarah the They point March 21. testimony also to Dr. Beauchaine's trial memory where she testified that she had no being room, of Dr. in Kalt as well as Nurse testimony Gutierrez's and Sarah's mother's Dr. that Kalt was not the room. again disagree
¶ 197. We with Beauchaine/OHIC. attempt undoubtedly Their call to Dr. Kalt was belated scheduling and in violation of the agree order. We cannot fitting that she should be seen as under the three provisions they provi- listed, catch-all and that those enough give might sions are notice that Dr. Kalt be deposition, called later. As was the case with Dr. Lewis's generic "any references like and all medical staff' and parties including agents "all lawsuit, to the their and/or hardly employees," purpose scheduling serve the of the Hegartys right rely order. The had a on the inter- disagree rogatories. testimony We that Dr. Kalt's would surprise Hegartys not have come as a to the and that Hegartys were on notice virtue of the fact that appeared name Kalt's in the medical records. respect ¶ 198. With asser- Beauchaine/OHIC's testimony "necessary," tion that was nonetheless it appear suspicious does that now Beauchaine/OHIC allege they Hagen were unaware of what Dr. testify given Hagen Dr. Zorek would to, that both Dr. named on the and Dr. Zorek were defense's own witness agree Hegartys list. also with the trial court and the We weight testimony appears ques- of Dr. Kalt's light conflicting evidence from Dr. tionable deposition testimony, Beauchaine's own and trial as testimony well as the of Sarah's mother and the nurse duty, all of which that Dr. indicated Kalt never saw Sarah. The trial court was well within its discretion in concluding prejudice to the out- weighed any probative testimony might value Dr. Kalt's have had.
¶ 199. We are satisfied that the court did trial refusing err in to allow Dr. Kalt to be added as a witness.
Hi. Dr. Schmidt ¶ 200. contend that the trial Beauchaine/OHIC erroneously limiting court exercised its discretion in expert testimony of Dr. Schmidt. ¶ Schmidt, 201. Dr. Emmett the Director Residency Program Pediatric Hospital at Massachusetts General School,
and Harvard Medical was called as a April 27, 2004, defense witness. On Dr. Schmidt had expert report regarding issued an Dr. Beauchaine's first-year expected fulfillment of standards of care from training pediatric residents medicine. day trial, the last Dr. Beauchaine On
sought to call Dr. Schmidt as a witness. The trial court testimony provide con- ruled that Schmidt could cerning Harvard, the standard used at but could not at or the comment on standard used Children's College, stating: Medical - happen expert put I think what can and this can be
- Harvard, educating jury they for about do at this what they he did at Children's or but what thinks about what College] If he to [the at Medical is irrelevant.... wants do at Harvard. We have the say "Here is what we third-years first-year resident and we have resi- dent," Accordingly, suggest you keep I fine.... general expert [about] him comments as an what to might very interesting It be and the they do at Harvard. here, they they that to what did and jury compare can it, going I'm may feelings some about but to have - say ... all of a sudden this expert allow him as an system wrong.... ultimately gave testamentary 203. Dr. Schmidt respect opinions regarding proof to his
offer of with care about which he was not allowed to standard of testify. testamentary proof, In that offer of Dr. Schmidt Indianapolis opined and McDonald in that Drs. Jensen exploratory negligent perform an were for failure to surgery repaired identified and Sarah's that would have dying prevented Sarah from when she did. volvulus opined negligent for Dr. Schmidt that Dr. Brown was failing surgeon surgical explora- refer to a Sarah given greater have than chance tion that would 51% that Sarah's volvulus would have been identified repaired dying and led to Sarah not when she did. Dr. opined 20, 1996, that on March the admit- Schmidt also duty ting third-year independent resident had an responsibility personally Sarah, examine and evaluate and the failure to do so constituted care that fell below acceptable Finally, opined that if standards. Dr. Schmidt *91 third-year admitting participated in resident Sarah's acquiesced plan, in the treatment treatment departure care, from the standard of and that a first-year procedure requires input residents third-year in before a resident becomes involved the care acceptable procedure.41 is not an 41 recognize the Although correct stan Beauchaine/OHIC admissibility expert testimony, argument dard for the their
182 refusing contend that in Beauehaine/OHIC testify opinion regard- to allow Dr. Schmidt to as to his ing the standard of care at Children's or the Medical College, "gutted the court the heart of Schmidt's testi- mony." They point to the fact that the court allowed Hegartys, Drs. Morris, Ament and who testified for the to state that Dr. Beauchaine failed to meet the standard first-year despite of care for an unlicensed intern, expertise required "lesser on the duties and standards residency programs throughout country." They or testify, contend that had Schmidt been allowed to testimony jury his would have assisted the in under- standing residency program the medical at Children's and the roles of all the residents in involved Sarah's They care and treatment. also believe Dr. Schmidt's opinions given were "critical" the contentions that she 'rogue' first-year acting was "a resident on her own and supervision," concluding without senior resident controversy comparative the real as to fault was not tried. Hegartys disagree. They
¶ 205. The first submit prior day time, that at no to the last of trial was there regarding negligence by third-year an issue causal College. They residents, or Children's the Medical ref- interrogatory erence an where Dr. Beauchaine was section includes the sentence "the court applied the erroneous standard order to exclude testimony" following Schmidt's ruling assertion that "the precluded court's Schmidt from ren dering any opinions critical College/Children's the Medical including applicable standard of care." Because it is unclear what standard, mean an erroneous since Beauchaine/OHIC they explain neither suggest one, and, what it is nor correct fact, one, reference the proper we cannot portion address this Pettit, See State v. argument. their 2dWis. (Ct. 1992) N.W.2d 633 App. (undeveloped arguments will not be addressed). *92 employees agents or of Children's
asked whether regard causally negligent College with the Medical were responded did not that she care, and she to Sarah's discovery They anyone also refer to was. contend that response that she had no Beauchaine stated where Dr. any party knowledge, third information, that or belief causally of care or was the standard failed to meet negligent. report, acknowledging Dr. Schmidt's 206. While stating
they "it had no factual basis it, that discount negligent expressed opinion that Children's was [the third-year opinion Medical residents or no that any negligence negligent College] or that were such, as insist causal," and Beauchaine/OHIC suggesting expert report produce that a failed to an College third-year or the Medical resident, Children's they causally negligent. reasons, For these submit were allowing on the of "this new 'issue' the introduction plaintiffs' day in all of evidence was last of trial after highly experts gone have been unfair." and their would again disagree with once 207. We Beauchaine/ note, not until Schmidt OHIC. As the any day of trial had there ever been on the last surfaced negligent allegation third-year had residents been complete in treatment of Sarah. This includes their pleadings, any in Dr. Beauchaine's lack of such mention answer, and affirmative defenses. Beauchaine/OHIC light In of the issue filed such a cross-claim. also never having previously raised, we are convinced been limiting Dr. Schmidt's testi- that no error occurred sup- regard. mony further This conclusion is this interrogatory ported by re- own Dr. Beauchaine's *93 sponses, clearly which indicated that other no employees College of or Children's the Medical had been causally negligent.42 proper
¶ 208. We are also satisfied that it awas part exercise of discretion on the of trial court to testimony general limit Dr. Schmidt’s to comments residency pro- about the care standard of and about grams grounds implied on it have would that a departure from done what is at Harvard renders what here occurred below the care, standard of because Dr. expertise procedures place Schmidt’s concerned the procedures place Harvard, at not the at Children's. Additionally, deposi- as was the case Dr. with Lewis's very timing, tion, because of the late as the trial court might it observed, have been difficult respond testimony to to Dr. Schmidt's all of because already experts departed. their In sum, had we discern part no error on of the trial court. Hagen Dr.
d. ¶ 209. trial contend that Beauchaine/OHIC erroneously Hagen permitted expert court Dr. to offer testimony. During Hagen trial, 210. Dr. was called tes-
tify. provide She first testified that she Sarah did any care, medical and that she did not discuss Sarah's care with Dr. on 21, Beauchaine March 20 or She portion As Dr. testamentary Schmidt's offer of proof Jensen, he indicated that felt Drs. McDonald and negligent, Brown already were we have established in section opinion excluding B.3.b. this that the trial not err in court did negligence evidence of from before March 1996 as not causal, hence, any testimony regarding negli the possible gence Jensen, of Drs. McDonald and Brown irrelevant. interrogatory Dr. an that answers to
also testified according person Beauchaine, which she was regarding Hegarty Sarah "conversed with Beauchaine p.m. a.m. on March 1996 until 8:15 from 7:45 Dr. Beauchaine "exam- 21, 1996," March and she and together time and formulated orders at the ined Sarah con- admission," untrue. She testified that the were interrogatory in Dr. Beauchaine's versation mentioned place, response first never and that the time she took had a claim had been made that she became aware that she con- been involved in Sarah's care was when give deposition. tacted to *94 presented then 211. Counsel the Hagen hypothetical on Dr. with situations based several Hagen medical records and asked Dr. what she Sarah's treating Dr. had Sarah. would have done she been Hagen's responses rectal included that the results of a p.m. 20,1996, on were examination done at 9:00 March constipation, and addi- with chronic that inconsistent have tional tests should been done. She also testified particularly light history of of that Sarah's abdominal pain and the fact that the measures that had been attempted problem, her had not resolved the condition diagno- constipation was inconsistent with the chronic objected multiple occasions, to the defense, sis. The grounds they expert questions, questions on that were Hagen a fact The court and Dr. was listed as witness. objections, stating doctor, the she overruled that as can answer them. days agreed later, some 212. Two court that Hegartys' questions "call[ed] for had
of the counsel's Hagen] analyze [Dr. and act as an what was done expert," in this it is area, and that "at least somewhat very prejudicial." added, however, The court that "it is 186 greater curable" and "not so drastic in of scheme things," following issued curative instruction: testified,
There I Hagen, was one witness that think Dr. objection and there some about some of her testi- mony. go was, I'm going not into what it I but basically let of it in some because she was a doctor . .. questions there was some asked of her to talk about Dr. activity. Beauchaine's
She wasn't called an expert, as she was called as a witness, okay? any fact So if she made statements that may have inferred Dr. Beauchaine was below the care, you're standard she wasn't called for that and disregard She that. was called as fact witness. She questions might was asked some about she what have done, any effect, but if there's inferences to that disre- it gard they're because stricken from record.
¶ 213. contend that the trial Beauchaine/OHIC admitting Hagen's testimony, calling court erred in " 'opinion' testimony going it to the heart case" "self-serving highly prejudicial speculation 'lay opinion.'" which did even rise to the level of Referring Hagen "surprise witness," to Dr. as a citing Seipel, maintain, v. Johnson Beauchaine/OHIC (Ct. 1989), App. 2d Wis. N.W.2d way knowing defense "had no *95 Hegartys Hagen expert opinion," would use to elicit probative outweighed by therefore, that its was value prejudice They "irreparable defense. add that damage" was done to Dr. Beauchaine's defense because "unring the curative instruction was not sufficient prejudice it bell" because did not undo the and failed jury portion disregard. to tell the what it to was Hegartys respond ¶ 214. The trial that the court Hagen's properly testimony admitted Dr. and elimi- any nated error with a curative instruction. they Hagen's Dr. testi- First, 215. contend testimony expert
mony on the in offered as was not fact testimony care, rather as "relevant fact of but standard citing impeachment, impeach As to and to Beauchaine." deposition, testified, in "I do Dr. Beauchaine's which she during any physician who examined her know of not they myself," Dr. note that at trial that time besides her testified, direct contradiction to Beauchaine Hagen jointly performed deposition, she and Dr. plan. physical approved the treatment Sarah, of Hegartys Hagen's that, with Dr. add consistent any testimony provide not that she did medical trial pages "[n]owhere Sarah, in the care for thousands Hagen treating noted as Sarah." medical records is They reference to also contend that Beauchaine/OHIC's unpersuasive Johnson, the court Johnson is because testimony of who had not to allow the a witness refused testimony deposed named or and whose would been Hagen cumulative, here, been whereas was have deposed, witness, had and her named as a she been testimony was not cumulative. Alternatively, Hegartys submit
any by error As to was cured curative instruction. claim that instruction Beauchaine/OHIC's they object insufficient, note that did wording thus, instruction, of the curative to the Cooperative, 229 under Stunkel v. Price Electric (Ct. 1999), they App. 671, 664, 2d Wis. 599 N.W.2d objection any instruction, to the and that even waived App Lombard, so, under In re Commitment 2003 WI long ¶ 18, 266 157, "as as Wis. 2d 669 N.W.2d meaning communicated the instruc the overall grounds law, was a correct statement of the no tions reversal exist." *96 Hagen's testimony
¶ 217. Dr. While was fact tes- timony part impeach and in at least intended to Dr. agree testimony Beauchaine, we cannot that all of her categories. agree such, fit under two these As we with testimony given by Beauchaine/OHIC Hagen overstepped expected the bounds of that a from responded questions fact witness when she about hypothetical situations based on Sarah’s medical records. acknowledged
¶ 218. The trial court its error, however, and issued curative instruction. We assume jury that the followed the instruction. Williamson, by at Wis. 2d areWe unconvinced Beauchaine/ OHIC's insistence that the instruction was insufficient prejudice imprecise jury to undo the and too to tell the ignore. certainly what to The instruction was clear enough satisfy communicating the standard of correct facts law, Lombard, 887, 18, 266 Wis. 2d point and, as the out, Beauchaine/OHIC did object given not to the instruction at it the time was any objection have thus waived Stunkel, to it. Wis. 2d at 671.
¶ 219. Because we are that the satisfied curative analysis instruction error, eliminated the our need go further. Employment
e. Beauchaine's File ¶ 220. contend that trial Beauchaine/OHIC erroneously relating court excluded evidence to Dr. employment Beauchaine's file. employment
¶ 221. Dr. Beauchaine's file was College. request maintained the Medical Via production of documents dated 14,1999, December *97 College provide, requested
Hegartys that the Medical relating things, "[a]ny among all and documents other respect supervision employment, control, or with including Hospital, but not at residents Children's Angela in Beauchaine, that were in effect limited to College by responded The Medical stat- March 1996." ing, "[w]e Dr. Lewis was no such documents." have January deposed he and that had 29, 2000, on testified generally, performance Dr. Beauchaine's but reviewed response, specific In to her treatment of Sarah. not request production Hegartys for of those docu- amade College 24, 2003, the Medical ments. On November employment produced file, most of Dr. Beauchaine's March accumulated after consisted of documents which explained that certain "credential- 1996. A cover letter protected pro- ing" be and could not materials were during Hegartys 2004, trial, the 11, duced. On October College from Medical that stated received a letter credentialing previously materials withheld Hegartys' produced pursuant in fact to the were request to be copies of and of three letters recom- included by of Dr. behalf Dr. written Lewis on mendation April August 2001, 17, 1998, Beauchaine dated August The three letters described "outstanding pediatric resident," an Beauchaine as in 2001 mentioned that while the two letters written ongoing malpractice they action, in an she was named yet "as also that the action is unresolved" stated knowledge my "[t]o there is no evidence of best any way inappro- Beauchaine's conduct was that Dr. priate negligent patient." in the care of this or in limine to 222. The filed motion grounds preclude of the letters introduction hearsay. that while the let- asserted Beauchaine/OHIC they exception hearsay, satisfied the ters were regularly activity records of conducted under Wis. Stat. 908.03(6).43 § The trial court found that the letters hearsay, disagreed they exception were but met the regularly-conducted activity any exception. or other improperly implied The court also felt that the letters negligent that Dr. Beauchaine had not been in her stating: treatment Sarah, "There is no real circum- guarantee stantial of trustworthiness this and it province jury. legal invades of the It calls for person object conclusions this examina- cross *98 probative tion." The court added that the value of the outweighed by causing preju- letters was their risk of jury dice and confusion. The court later denied post-verdict motion on this issue. Beauchaine/OHIC's ¶ 223. contend that the trial Beauchaine/OHIC concluding court erred in that the letters do fall not 908.03(6), § under Wis. Stat. and cite Rollie Johnson Heating Plumbing Department Service, & Inc. v. of Transportation, 70 2d 787, 793, Wis. 235 N.W.2d528 908.03(6) (1975), proposition § "specifically for the opinions, includes well acts, conditions, as as events and proper objects as of admissible entries under stat They allege probative ute." also that the value favored testimony admission because the letters refuted the Hegartys' questioning from the witnesses performance accusing violating Beauchaine's her of provides part: § in 908.03 relevant Wisconsin Stat. (6) regular memorandum, A activity. Records conducted report, record, any form, acts, events, compilation, or data conditions, opinions, diagnoses, by, or made at or near the time or person knowledge, by, from information transmitted with all in regularly activity, by the course of a conducted as shown testimony witness, qualified of the custodian or other or 909.02(12) (13), complies certification that with s. or a or statute permitting certification, or unless the sources of information other circumstances indicate lack of trustworthiness. Calling procedures. defense, the letters "crucial" their their exclusion was maintain that Beauchaine/OHIC highly prejudicial Dr. Beauchaine un- it made because they "Hagen highly and Zorek's what call to rebut able self-serving testimony effect that to the critical and inept acted inde- an rule-breaker who Beauchaine was pendently comply poli- with established and refused cies." Hegartys respond that the court was holding the letters inadmissible.
within its discretion argue They do not fall under Wis. Stat. that the letters 'regularly 908.03(6), explaining § it not "a College] [the activity' Medical to review at conducted conclusory malpractice letters," lawsuits and author not indications of trust- and that were sufficient there probative They maintain that also worthiness. substantially outweighed by the of the letters was value misleading jury, citing danger note, Pucci v. (1971), Rausch, 513, 519, 2d 51 Wis. 187 N.W.2d expressed by opinions "the Lewis were not made degree probability." of medical reasonable again, do find error. 225. Once we reversible *99 agree particular the trial in with court's conclusion We outweighed by probative the letters' value was that causing prejudice jury risk confusion. their of Hegartys seen, re- 226. As we have the first production including quested documents, Dr. the of employment file, 1999, Beauchaine's in but were told request none existed. A second for documents was that response deposition 2000, in in made to Lewis's Dr. having Dr. he mentioned reviewed Beauchaine's when performance. years in later, Three and one-half Hegartys portions of Dr. Beauchaine's the received employment file, informed that certain "cre- but were dentialing" including ques- documents, the letters in yet year tion, included, later, were not in the middle of provided copies trial, were the of letters, along acknowledgement they an with that were in not protected. point, sought fact At this Beauchaine/OHIC newly-disclosed to introduce the of letters recommen- letters, dation. The three written in 1998 and provided Hegartys extremely were to the late, in the long request trial, middle of after their had been made being after told, in first direct contradiction to subsequent they protected concession, that were produced. certainly could be not This caused both surprise prejudice Hegartys. to the Considering conjunction
¶ 227. the letters in with deposition testimony, Dr. in Lewis's he which indicated performance that had he reviewed Dr. Beauchaine's generally, specific but her not treatment of Sarah, seriously question reliability calls into of the letters. why It is unclear Dr. Lewis would write letters expressing opinion recommendation a clear Dr. way any Beauchaine's treatment of Sarah not "in was inappropriate negligent" or if he had not reviewed Dr. performance specific Beauchaine's to her treatment of course, Sarah. Of as was the case Dr. with Lewis's deposition, having due died, cross- Lewis's option verify question examination was an not or implication of the contents letters. in the Because negli- letters that Dr. Beauchaine's treatment was not gent unquestionably improperly suggested would have jury negligent to the Dr. Beauchaine fact jury Sarah, her treatment of risk confusion from the admission the letters have would been great. properly We are satisfied the court unduly
excluded letters of recommendation as *100 193 confusing. prejudicial ad need not We therefore regularly of were records dress the letters whether activity. 300, 296, Hoffman, Gross v. Wis. conducted (1938) (unnecessary non- to address 277 dispositive N.W. issues). College Medical Exclusion of
f. Special Verdict Form from ¶ trial contend that 229. Beauchaine/OHIC erroneously College from the Medical court excluded special verdict form. Hegartys provided Dr. Beauchaine 230. The interrogatory request dated for admissions with an question: 1, 2002, which included the October entities, any persons or you Do contend that Admission, Request [which the above named individually through or College,] included the Medical agents negligent were under the employees, their or omission, care, or standard of commission applicable they provided or in the care or failed treatment any provide Hegarty at time between Sarah 7/28/95 and 11:00 a.m. on 3/2/96? response, dated October
Dr. Beauchaine's avail- was: "Not at this time based the information able to date." During evidence, trial, after the close spe- proposed
when submitted their Beauchaine/OHIC question read, "Was form, cial verdict it included through College employees Wisconsin, its the Medical respect agents, negligent with the care and/or provided Hegarty?" court, In how- treatment to Sarah changed ever, his mind and counsel for Beauchaine liability, Medi- stated that rather than via vicarious College negligent cal be on the verdict for should training/supervision: *101 College
The Medical of Wisconsin should be on the verdict, I [counsel but would concur with the for I Hegartys] liability don't that way believe vicarious the Court, we have submitted the instruction to the it [but] regard negligence is with to the in the supervision training hiring regard operation with to the of and/or pediatric program. the residency 232. trial court denied the request ¶ stated:
I works, think many the facts are clear. She of these parties College Wisconsin, for the Medical work of of put hospital through ... some them are into the hospitals. I affiliated But think of are both them I irrelevant. And think it is a at double kick the cat.... So question College no on the as to the Medical verdict Wisconsin, thereof, they of or instructions whether are or vicariously otherwise liable. In 233. denying post- Beauchaine/OHIC's
verdict motion grounds a new trial on that seeking court had misapplied the law not by including Medical College verdict, the court that explained "even [in] testimony Beauchaine's earlier she admitted that the Medical Wisconsin was College negli- think and that that never issue I gent, was an until ." there was a .. . shifting defenses contend that the trial Beauchaine/OHIC ruling court's for a denying request its new trial its motion post-verdict constitutes reversible error and the trial court called it a erroneously "double kick at the cat."44 Shore Citing Connar v. West Equipment of Milwaukee, Inc., 45, 68 Wis. 2d 227 660 N.W.2d 44 they proposed state that "submitted Beauchaine/OHIC jury including instructions and a verdict Medical proposed [the College] negligent supervision based on its of Beauchaine." This College]
(1975), they "[the argue Medical any required to the verdict if there was 'evidence be on by jury, which, if would consti of conduct believed College]," negligence1 [the and that Medical tute College] "[t]he [the with the fact that Medical settled apportionment must was immaterial: 'the may negligence all have contributed to include whose They arising cite of action.'" also cause Railway Langhoff Co., v. du Milwaukee Prairie Chien (1865), proposition "[a] Wis. *102 entity may person or court exclude a from trial only if there 'an entire absence of evidence' verdict was tending They negligence.'" thus as establish their comparative Langhoff, and in a sert under Connar opportunity jury given negligence case, the must be an compare persons negligence all involved. above, 235. Based on the Beauchaine/OHIC "replete" that the record was evidence maintain with College's negligence Zorek, Medical Drs. because they Hagen, and Beauchaine testified that were under College supervision employees Drs. of the Medical and Zimmer. further assert Lewis Beauchaine/OHIC Hegartys1 theory, the Medical that even under the claiming College included, should have been that both presented specifi evidence, and MCWAH cally, Hagen, suggest the testimonies Drs. Zorek and ing Dr. Beauchaine's failure to follow the Medical College's policies in resulted Sarah's death. Under this seen, simply claim is incorrect. As we have counsel for proposed Beauchaine instructions based vicarious submitted then, court, in liability, apparently response and to the arguments by Hegartys' no counsel that there was evidence liable, College was suggesting vicariously the Medical arguing mind changed their and switched to a verdict question inquiring negligent supervision. about argument goes, question scenario, the "the becomes College negligent training whether the Medical supervising "[i]f residents," and hence, it was policy known that residents failed to follow established practice ... and that such actions resulted in patients receiving physicians, care from licensed [the College] supervisory duty Medical had a to address remedy They the situation." thus insist that the ruling prevented trial court's Dr. Beauchaine from defending herself. Hegartys respond
¶ 236. The that Beauchaine/ they OHIC waived the issue because failed to raise the College's alleged negligence Medical in the answer and against College. did not make cross-claim the Medical They agree ¶ 237. also with the trial court's re- question special fusal to include the on the verdict pre- based on failure to amend the Beauchaine/OHIC's interrogatory response, question trial and because the interroga- would have been cumulative. As to the 2002 tory in which Dr. Beauchaine denied that the Medical College "individually through agents employ- or their or negligent," they w[as] ees believe the court was well *103 804.12(2) § within its discretion under Wis. Stat. in refusing Dr. to allow Beauchaine to take an inconsistent
position question being cumulative, at trial. As to the explaining inquired that since the verdict about the negligence Hagen, of Drs. Zimmer who alleged responsible super- for were Beauchaine/OHIC vising jury Dr. Beauchaine, to the extent agreed Hegartys them, the it with believe would have given "two kicks at the cat" to also Beauchaine/OHIC question regarding include another the Medical College's alleged negligence. they Finally, that because maintain 238. testimony expert introduce failed to
Beauchaine/OHIC certainty regarding degree of medical a reasonable to College the standard acted below the Medical whether negligence applicable caused and whether such it, to satisfy injuries death, failed to she Sarah's question testimony requisite expert on the a such special verdict. agree again cannot with 239. We Beauchaine/ contrary to assertion First,
OHIO. Beauchaine/OHIC's improperly refused to include trial court negligent College's alleged question about the Medical grounds supervision had settled that the why College, real the court Medical reason with the request grant to the belated refused deny- interrogatory response Beauchaine's unamended College, negligence part ing any on the of the Medical § it would have 804.12,45 and because see Wis. Stat. been cumulative. part: § in relevant provides, Stat. 804.12 Wisconsin discovery; to make sanctions.
Failure (a) (2) officer, party If or an comply Failure to with order director, party person designated managing agent to or of a or a obey provide testify party fails to an order to or on behalf of a (1) discovery, including permit an order made under sub. or s. pending may 804.10, such the action is make the court which just, among regard failure as are others orders following: party support refusing An order allow the disobedient defenses, designated prohibiting oppose or the disobe- or claims or introducing designated party matters in evidence. dient from *104 fully agree Hegartys ¶ 240. We with the that the properly interrogatory trial court relied on the re- sponse. Perhaps significantly, Hegar- more even as the tys note, raised a never claim of Beauchaine/OHIC negligent supervision part College the of the Medical bring in her cross-claim answers and did not a on the dispositive. issue. This As with the last-minute im- plication proffered testimony from Dr. Schmidt's third-year negligent, negli- residents were the issue of gent supervision by College sprung the Medical was also upon very at the last minute. The trial properly court refused to allow the late addition. Langhoff, ¶ 241. Connor cited proposi- Beauchaine/OHIC, are immaterial because apply only tions cited in situations where the was issue properly place. explained, raised the first As that was not the case here.
¶ 242. We are trial did satisfied court refusing question err in include about the Medical College's alleged negligent supervision based on timely failure to raise the issue. We Beauchaine/OHIC's question thus need not address is cumula- whether (unnecessary Hoffman, tive. See Wis. at issues). non-dispositive address
g. New Trial in the Interests Justice Finally, contend that 243. Beauchaine/OHIC cumulative errors of trial court necessitate justice. new trial in the interests post-verdict In motions, Beauchaine/OHIC justice. moved for a new trial in the interests stating: motion, trial court denied the Beauchaine, showing, jury's the burden of [S]he has weight finding contrary greater to the and clear *105 evidence, though the find- the even of preponderance to in. order by credible evidence ings supported are Well, justice. going that isn't trial grant a new which burden. has not met that [she] here . .. happen time and time findings, I indicated jury's The as on these facts. again, good a verdict based following ¶ reference the 245. Beauchaine/OHIC beginning of court at the the trial comment specials, [sic] medical $3,000,000 trial: "There is get prepared big okay. expenses. case, a So So this is duty. your get prepared I'm to be able to do sure it, and way you assert one or the other." will Beauchaine/OHIC from there." Cit "Beauchaine's case went downhill Albright, ing 677, 196 663, 98 Wis. 2d 298 N.W.2d State v. (Ct. 1980), they App. cumulative maintain that the of the a new trial while each errors necessitate because prejudicial, rulings erroneous and above were reviewed warranting effect of trial, "the cumulative these a new brief). They (emphasis rulings guaranteed result" and evidence that would have claim favorable evidence excluded Dr. Beauchaine's decisions was contextualized severely hook," limited, other actors were "let off or period "so as to and the relevant time was constrained exaggerate relative re isolate and thus Beauchaine's sponsibility." disagree Hegartys that a new trial is 246. The disagree they
required. First, with Beauchaine/OHIC's reasoning challenging "[r]ather and contend that than they litany complaints forth a of evidence, set regarding or limitation of evidence favor- the exclusion 'exaggeration' her re- Beauchaine, and the able sponsibility." this As to the trial court's comment about merely being "big it case," contend that jurors prospective importance "impressed on the duty." their may granted in the interests 247. A new trial be justice only jury findings contrary are when preponderance great weight clear of the evi Chicago Transp. v. Northwestern
dence. Krolikowski (1979). 580, Co., 89 Wis. 2d 278 N.W.2d grant a new trial decision of whether or not to court's appeal in the absence of trial will not be disturbed showing of an erroneous exercise of discretion. See clear Larry Co., Ins. 2d v. Commercial Union Wis. (1979). *106 821 We exercise our discretion 277 N.W.2d judi infrequently ary power grant a trial new ciously. Ray, 855, 874, 2d See State v. 166 Wis. 1992). (Ct. App. N.W.2d disagree
¶
final
248. We
with Beauchaine/OHIC's
needed in the interests of
contention that a new trial is
justice
prejudicial
of the
cumulative
effect
based
the
alleged.
they
in the
For the reasons set forth
errors
have
already
foregoing
that the
sections, we have
determined
and it follows that
err,
trial court did not
Beauchaine/
merit.
of a cumulative error is without
OHIC's claim
799, 809,
C. The against Damage Awards 1. Reduction of by OHIC 25% Beauchaine and Hegartys trial court ¶ contend that the 249. jury's damage against reducing Dr. the awards erred in by representing per- 25%, the Beauchaine and OHIC by jury centage negligence of causal attributed party Dr. Stremski. dismissed 1, 2004, trial, On the eve of October defendants, settled with a number of includ- College, ing Fund, and a the Medical number including College, doctors from the Medical Dr. Strem- party agreement ski. The defendants not to this MCWAH, Children's, remained OHIC and Dr. were: agreement After Beauchaine. the settlement requests copies reached, OHIC made numerous agreement, including a motion for reconsideration original request, of the court's denial of their a writ of compel copy mandamus to the Fund to release a under open request law, the Wisconsin records under Wis. 893.55(7), § and a motion after verdict. All of Stat. attempts OHIC's were denied. jury mentioned, 251. As attributed 75% negligence the causal to Dr. Beauchaine and 25% to requested verdict, Stremski. In motions after OHIC against the verdict it and Dr. Beauchaine be by percentage 25%, reduced negligence to reflect the of causal jury assigned had to Dr. Stremski. The agreed Hegartys' trial court and reduced the total gave following explana- verdict 25%. The court *107 tion:
Now as to the effect of the release and so on and I how that, joint deal with I there a will know is doctrine of liability. presumed and several It is that and is based on premise belief that innocent victims should by not suffer loss caused immune or insolvent wrongdoers, wrongdoers or other are also liable. really anomaly many
This case is an I think in ways. I haven't seen a like where case this we have a capped and an uncapped party plaintiff .... settled really and And I gave up with Stremski others. think 202 Stremski, potential percent they didn't know what the percentage would be. But whatever findings negligence against would be any of the parties they gave that were named Iup think settling. They took a chance. say say, they
Now to I jointly should well are and severally liable, they get should back on that even though they ... I don't right. settled think that's It is proper under these facts under the circumstances. They gave it the 25 up, percent by settling. Hegartys
¶ 252. First, insist that Dr. jointly severally Beauchaine and OHIO are liable Hegartys' damages. of the 100% Under Wis. Stat. § person "[a] causally negligent 895.045, found to be percentage negligence whose of causal is 51% or more jointly severally damages shall be liable for the allowed." The thus contend that because the jury causally negligent, found Dr. Beauchaine to be 75% (and OHIO) jointly severally "she her insurer are damages Hegartys" liable for all of the awarded to the brief). (emphasis in Hegartys explain Second, that Dr.
Beauchaine and OHIO are not entitled to a reduc- 25% damages agree- tion in the because their settlement Pierringer ment was not a release,46and did not release any parties extinguish claims or or Dr. Beauchaine's rights against and OHIC's contribution Dr. Stremski. explained by As the supreme court in VanCleve: Pierringer release, effect, joint [A] limits second tort-feasor's liability reflecting proportion wrongdoing. to the amount its differently, Pierringer operates impute Stated release to the settling plaintiff liability settling whatever contribution the may non-settling defendant have to defendants and to bar subse- quent non-settling might contribution actions the defendants against settling assert defendants. *108 Hegartys following having list the as been to in the settlement agreed agreement: (cid:127) released; parties no were (cid:127) Hegartys County the and Milwaukee covenanted settling defendants;
not to sue the (cid:127) agreed the parties expressly settlement
agreement Pierringer release, was not a not to be such; constructed as
(cid:127) Hegartys expressly against reserved all claims OHIC;
Beauchaine and (cid:127) Hegartys agreed indemnify any never or hold settling
of the defendants respect harmless with any contribution claims that Beauchaine and OHIC may bring;
(cid:127) rights Beauchaine's and OHIC's contribution were way
in no prejudiced; (cid:127) satisfy the settlement or intended to credit
any liability percentage settling that the defen- may assigned damages dants be of the total suffered Hegartys County and Milwaukee in the event of a verdict.
(Footnote omitted.) Having agreement described manner, above it explain credit agreement, specifically designed to not be a Pierringer release, "so that the Hegartys would not end up 'eating' whatever of causal percentage negligence be might attributable to the health care settling provid- following ers trial." also They reduc- complain verdict, their "the ing circuit court did not determine VanCleve, (citing 258 Wis. 2d Pierringer, Wis. 2d at 193) (footnote omitted). *109 Pierringer agreement constituted a settlement that the authorizing simply reduction, a but rather release, such Hegartys explanation, that the 'took ruled, without by settling.'" they 'gave up Hence, and chance' they reserved all their claims that, maintain because agreed indemnify rights recovery, to or of and never and settling any defendants harmless with hold of the any subsequent respect claim, there is to contribution Pierringer construing agreement the as a no basis for entitling and OHIC to a release, Dr. Beauchaine 25% damages extinguishing or their contri- reduction rights against Dr. Stremski. bution upon assumptions Based these two —that severally jointly are and Dr. Beauchaine and OHIC agreement is not a liable, and that the settlement Hegartys Pierringer reach their actual release —the argument: Dr. and OHIC are entitled Beauchaine only Dr. $840,046.33 of from Stremski to a credit they amount to which would be because that is the subsequent action, and also entitled in a contribution Hegartys would have been able the amount directly, had he not been dismissed. recover from him asserting figure by pursuant They that, reach this malpractice held that when medical Maurin, which only society for death, case loss results brought wrongful companionship is a death that can be 895.04(4), § Stremski, Dr. claim under Wis. Wis. Stat. provider, for is immune ch. 655 health care Stat. argu- damages. pre-death Therefore, the noneconomic damages liability goes, for noneconomic was ment his wrongful (post- death for thus limited to those awarded death) society companionship. Because loss of society companionship post-death loss of award for was determined $150,000 and because Stremski only responsible for he have been fault, be at would 25% $37,500, $373,750.47 not do not Hegartys contest $3,210,185.31 25% reduction award for (medical damages economic and funeral and expenses $802,546.32, burial or expenses), because Stremski's liability damages, economic unlike noneconomic ones, Thus, their final calculation for the uncapped. amount could have recovered from Strem- ski, settled, he had for which Dr. Beauchaine and had a right contribution, $802,546.32 OHIO is: (economic (noneconomic $37,500 + damages) damages) = $840,046.32. 255. OHIO and responses *110 Beauchaine/OHIC's48 similar,
are both that the contending Hegartys' argu- ments are premature. Hegartys insist that situation this is no different person causally negligent
than one in which a be determined to bankrupt joint is immune or a where tortfeasor found to be 51% or more at fault damages remains liable for 100% of the awarded, though prevented recovering even is from he/she bankrupt Thus, contribution from the or immune tortfeasor. because under Maurin Dr. Stremski liability immune from pre-death damages, noneconomic "[a]s between the innocent Hegartys adjudged wrongdoer Beauchaine, and the Beauchaine and her insurer OHIO should have to shoulder the difference between of the total damages 25% noneconomic awarded and liability $37,500." the maximum under the Stremski law of Moreover, opinion, as mentioned in footnote 33 of this Bartholomew, supreme recently our court overturned portion the of Maurin relied upon by Hegartys, holding that: "Maurin's interpretation malpractice wrongful of Wisconsin's medical imposing single global wrongful death statutes as cap death damages all noneconomic is flawed because it failed to take into account the well-established distinction in Wisconsin tort law damages for predeath postdeath between actions and actions for actions)." Id., damages (wrongful death 717 N.W.2d 35-51, 127. ¶¶ 48OHIO and separate submitted but Beauchaine/OHIC similar briefs. Hegartys' argu-
¶ 256. OHIC submits that agreement was a "credit ment the settlement Pierringer agreement," release, are rather than based solely interpretation agreement, of the since on their them, and OHIC has been denied access to that it is now having placed impossible position of to make in an arguments a document it has not been about Explaining unwilling permitted to see. it is accept Hegartys' representations as to the effect of agreement, OHIC adds that the fact that settlement agreement form the basis of the terms of the settlement Hegartys' cross-appeal importance. underscores its indepen- OHIC therefore maintains that it is entitled to dently agreement to the effect of review the determine agreement's to order the terms and asks this court production of the documents and to remand the case to the trial court. similarly contend that 257. Beauchaine/OHIC they agreement, they
because never saw the settlement Hegartys' characterization of its cannot evaluate the Hegartys are effect, and that the therefore terms estopped arguing that the terms of the settlement from entirety preserved right of the their to collect the "[w]hile judgment.49 that, add Beauchaine/OHIC portions interpretation *111 summarize their footnote, following make the In a Beauchaine/OHIC why Hegartys the made this "There is little doubt accusation: - and agreement likely demonstrated the bias decision. The - agreement, the cooperation parties of the perhaps express Hegartys efforts at trial all of which contributed to the therefore, and, the increase isolate and condemn Beauchaine Because we are obtaining uncapped an verdict." possibility court, to comment trial decline remanding this issue to the we might might or not demon agreement the what settlement strate. they agreement cross-appeal,
the settlement their do agreement quote attach the from or itself." Hegartys' To reach the merits of the ulti- 258. argument, necessary mate agree it would for us to first be Hegartys with the two conditions that the set jointly severally forth: that Dr. Beauchaine is and agreement liable, and that the settlement was not a Pierringer release. This we cannot do. Hegartys' argument problem the with they
is that have refused to disclose the substance and agreement details of their settlement with Dr. Stremski settling and the other defendants to OHIC and Dr. reply Hegartys brief, Beauchaine. In their insist arguments OHIC's Beauchaine/OHIC's Hegartys estopped arguing should be from that the reducing jury's trial court erred in verdict 25% they agree- because refused to turn over the settlement They nothing ment is "ludicrous." instead note that requires agree- automatic disclosure of settlement they referencing agree- ments, the fact that filed the ment with trial court under seal for in camera review.
¶ 260. While the are correct in that authority requiring there no automatic disclosure of agreements, they confidential settlement did while agreement argument file court, with the trial this ignores the essence of OHIC's Beauchaine/OHIC's qualm Hegartys' argument doing about the so still deprives right them of the to review the document. We agree with OHIC that because terms of the settle- agreement Hegartys' ment constitute the basis of the cross-appeal, impossible it is for them to formulate a response simply trusting Hegartys' without inter- pretation of the note, documents. As Beauchaine/OHIC *112 especially given quoting that, this is so rather than agreement, Hegartys merely from the summarize portions interpretation agree- their of of the settlement Hegartys suggest that, court, ment. like the trial agreement court should review the this and construe its already terms to resolve the issue. As discussed opinion, Section A.4 this we did review the document erroneously and determined that the trial court did refusing compel its exercise discretion consequently disclosure, document's ordered its disclosure OHIO. reasons, 261. For these we conclude that
Hegartys estopped, arguing time, are at this from agreement preserved of their terms settlement right entirety judgment their to collect the of their against Dr. Beauchaine and OHIC. Because we resolve estoppel this issue based on due to the non-disclosure of agreement, argument the settlement and note an agreement entirely prema- based the terms of the joint ture, we need not address the issue of and several liability hence, do not reach the merits of the Hegartys' argument. ordering pro- are Because we agreement, duction of the settlement we remand this proceedings. issue to the trial court for further 2. Recovery Past Medical Limited to Expenses
Amount Paid ¶ 262. The contend that the trial court limiting recovery past erred in their medical ex- penses actually paid by involuntary to the amount plaintiff County. Milwaukee County, employer
¶ 263. of Jer- Milwaukee Hegarty, emiah insurer, and thus Sarah's and an invol- untary plaintiff approximately paid case, in this $2.5 expenses million in medical for Sarah. The actual *113 by providers was health care Sarah's amount billed agree- pursuant approximately an to million, but $3.2 County reached with Sarah's Milwaukee ment only paid providers, actual amount was care health million. $2.5 Hegartys in moved
¶ trial, Prior 264. argument testimony any preclude evidence, or limine to paid by regarding health insur medical bills that were citing 111, 246 v. 2001 WI ance, Leichtfuss, Koffman Shelbrock, v. 31, 201, Ellsworth 2d N.W.2d Wis. 76, which 63, 235 Wis. 2d 611 N.W.2d 2000 WI rule, an collateral source that under the established may injured party the reasonable value recover subrogated will and the amount be medical services injured recovery party and the deducted from this remainder. entitled to the hearing At the on the motion October 265. make a factual asked the court to
2004, the finding medical to the reasonable value of Sarah's as expenses, on the "fill in the sum of million" and to $3.2 adding special court, that "the on motions form, verdict legal damages, [verdict] can make a deter- after on the amount incurred or the of whether it's the mination op- paid." nor Dr. Beauchaine amount Neither OHIO only posed motion, Fund, which at the time objected party, for Dr. to the motion. Counsel was still responded: Beauchaine understanding regard damages, we didn't
My with any object certainly intent to the reasonable- have ness, necessity just It's in this incident of what is billed. numbers, the amount that there are two one of which is billed, being or the other the amount generated circumstances, I appli- Under the think paid. that was law, presented numbers are cably under the that both jury and that the is allowed to in regard select of the terms ultimate verdict question .... trial court made the following ruling: later,
These matters can be sorted out paid what was actually incurred, and what was jury and the need not speculate on this. The collateral legis- source rule and lation, to, fact, ... and going the court is jury so the general scope knows the having this without to prove up amount, each individual that what the billed were, amounts and that will be put jury on the as a special damage verdict question. It be will inserted *114 telling the court jury they worry need not about that issue. 267. This ruling was reduced to in writing
¶ form of an order 5, 2004, dated October which stated:
2. That the of the plaintiffs precluding the motion evidence, defendants from introducing any argument testimony or regarding the paid medical bills that were by health or other insurance be and the shall same hereby granted and the Court will enter the amount $3,196,863.78 of past expenses medical bills $13,321.53 expenses for funeral and burial on the Verdict, Special jury and will advise the on the appro- item, priate regarding further, instruction this the Court will decide the issue whether the final specials amount of medical is the amount incurred or paid Motions after Verdict. 268. a motion brought after
¶ Beauchaine/OHIC verdict regarding the value of medical expenses. The court ruled that the amount of medical damages the Hegartys would be able to recover would be the amount rather paid, incurred, than the amount reduc- ing $3,196,863.87 amount from $2,500,000. See 893.55(7). explained specifically § The court
Wis. Stat. ruling the collateral in accordance with was that this source rule. the trial court contend that
¶ 269. 893.55(7)50 § applying their to reduce erred in Wis. Stat. recovery expenses amount actu- to a lesser of medical agree- County pursuant ally paid to an Milwaukee providers, rather than health care ment with Sarah's allowing the fair and reasonable value to recover them care received. of the medical application They that the court's contend 270. 893.55(7) § erroneous because was of Wis. Stat. application 655, Stat. ch. outside Wis. has no statute apply Beauchaine, who does not and therefore They first-year refer to resident. an unlicensed (and supreme Phelps, court held this court where affirmed) first-year medical an unlicensed later purposes provider" for care is not a "health resident ¶¶ Under that 2d 30-31. Id., ch. 273 Wis. Phelps, reasoning held that since this court also provid first-year care are not ch. 655 "health residents they of the also not entitled to benefits ers," are 893.55(4)-(5). § Phelps, damage cap under noneconomic Hegartys point to the fact 41. The 2d 273 Wis. Phelps, reaching this court this conclusion that in expansive mean between the more noted the difference *115 893.55(1)-(3) § provider" ing in and the "health care 893.55(4)-(5),Phelps, § 273 Wis. 2d one in more narrow Phelps, ¶¶ ¶ 69, 58-64, 2d 44; also 282 Wis. 667, see 50 893.55(7) provides: § Stat. Wisconsin bodily injury any compensation from received Evidence of compensate the claimant for than the defendant to sources other damages injury for medical in an action to recover is admissible proce- malpractice. limit the or This section does not substantive upon subrogation. rights persons claims based dural who have
212 893.55(4) (5) just § like submit have no 893.55(7). application § 655, outside ch. neither does ¶ 271. The brief-in-chief was submitted supreme Lager before the court issued its in decision that, Acknowledging strom, 285 Wis. 2d 27. 893.55(7) Lagerstrom challenge § to Wis. Stat. pending Supreme before the court, Wisconsin the He- gartys' remaining arguments were based on the state of the law at the time. July 272. On 2005, before OHIO and response, supreme filed their
Beauchaine/OHIC Lagerstrom. court issued its decision in The court held though payments that even collateral source do not automatically expenses, reduce the amount of medical may fact-finder use collateral source evidence "to deter- mine the reasonable Id., value of medical services." ¶1, Wis. 2d Lagerstrom,
¶ 273. Based OHIO and respond prop- that the trial court Beauchaine/OHIC51 erly concluded that the reasonable value of the medical expenses paid, was the $2,500,000 that was not the approximately charged. They $3,200,000 that had been 893.55(7) § explain encompasses that because Wis. Stat. "payments, forgiveness directly write-offs, or made providers," Lagerstrom health care and under evidence agreement County of the between Milwaukee providers may Sarah's health care be used determining fact-finder the reasonable value of medi- section, In this and OHIC's briefs are Beauchaine/OHIC's nearly identical where certain appear sections of text in dissimi orders, long lar but where passages are verbatim recitations of Therefore, party's arguments the other brief. their will not be separated. quoted passages appear in both briefs. *116 properly- expenses, ¶¶ 28-30, court the trial id.,
cal 893.55(7) determining § value applied in the reasonable medical services. disagree that ¶ OHIO 274. Beauchaine/OHIC provider" under "health care is not a Beauchaine Dr. argument "ignores the 655, and claim the ch. Stat. Wis. though Hegar- "even case" because of the substance tys argue a 'health defendants was not one of those re- provider' 655, the fact under Ch. as defined care jury heard and decided and circuit court that the mains They malpractice trial add that the trial." a medical explicitly the collateral noted that it considered court making in its decision. rule source reply, that, concede In their payments Lagerstrom, pursuant insurance health 893.55(7), § subject and that the case are to Wis. Stat. challenges adversely them, most of their resolved, expenses past amount to the medical the reduction County. They paid however, that observe, Milwaukee argument Lagerstrom resolve their did 893.55(7) application § Stat. ch. 655 to non-Wis. has no They providers thus like Dr. Beauchaine. care health Phelps between differentiated reiterate that because 893.55(4)-(5) 893.55(1)-(3), § § see Wis. Stat. "clearly" legislature Phelps, 44, 2dWis. 893.55(7) § provider" "health the term care intended interpreted it is in the same manner as to be (6). (5) 893.55(4), They § that, therefore submit "[b]ecause Phelps, rule has the collateral source under against malpractice abrogated in cases medical not been providers," non-chapter health care expenses liability past medical should Beauchaine's paid by Milwau reduced to the amount not have been County. kee *117 disagree
¶ 276. We that the trial court erred in reducing paid pursuant the award to the amount to Wis. 893.55(7). § undisputed It is that Dr. Beauchaine Stat. provider was not a Wis. Stat. ch. 655 health care at the Phelps precludes time she treated Sarah and, such, as 893.55(4) being subject § caps. her from to the However, agree Hegartys' even if reasoning we were to with the why subject Dr. Beauchaine should not be 893.55(7) § why the collateral source rule should apply,the fact remains that the reduction of the amount expenses only of medical affected not the amount of the judgment against final Beauchaine, Dr. it also affected given light the 25% credit that was of the causal negligence attributed to Dr. Stremski. Dr. Stremski is clearly provider, a ch. 655 health and, care such, as he is 893.55(7). indisputably subject §to ¶ 277. This leaves us with a situation where one physician clearly subject § 893.55(7), is to Wis. Stat. may may light while another or not be. In of this agree scenario, we with OHIO and Beauchaine/OHIC's approach looking big picture; at the is, the fact Hegartys brought malpractice that the a medical case against multiple providers health care and their em- ployees they alleged negligent for what was medical care that caused Sarah's death. We conclude that when 893.55(7) applicability § physicians to one of the negligence injuries whose caused Sarah's and death is causally negligent unknown, the fact that the other physician undisputed was an Wis. Stat. ch. 655 health 893.55(7). provider § application care dictates the per Lagerstrom, Thus, because Stremski, un- questionably subject to the collateral rule, source in fact Dr. Beauchaine whether need not decide
we on Dr. based resolve the issue 893.55(7), § but subject status. Stremski's did not err the trial court Consequently, 278.
¶ to the medical services value of the reasonable reducing County. Milwaukee paid amount Statutory Interest 3. the trial contend that Lastly, 279. interest statutory to assess refusing erred in
court 628.46, based Wis. pursuant OHIC against § Stat. their claim. to timely pay its failure motions, the Hegartys In their post-verdict *118 interest statutory award of a twelve-percent moved for 628.46, expenses on the medical under Wis. Stat. § served with the date OHIC was from accruing before 23, 1998, day until to December complaint, settlement, July their offer of served Hegartys pay "shall 628.46,52 promptly all insurers § Under 52 628.46(1) provides: § Wisconsin Stat. promptly pay by law, provided shall an insurer
Unless otherwise paid if not within every A claim shall be overdue insurance claim. fact of days notice of the the insurer is furnished written 30 after If notice amount of the loss. such written loss and of the a covered claim, any partial to the entire to the insurer as is not furnished paid by if within supported notice is overdue not written amount Any days to the insurer. notice is furnished after such written subsequently that is part of the claim or all of the remainder days paid supported overdue if not within written notice is Any payment shall the insurer. notice is furnished to after written proof to has reasonable the insurer not be deemed overdue when responsible payment, for the insurer is not establish that the notwithstanding to the has been furnished that written notice any calculating purpose the extent to which For the insurer. being overdue, payment on the treated as made is shall be claim equivalent to which is draft or other valid instrument date a addressed, properly placed in a payment in the U.S. mail every pay any if claim," insurance and an insurer fails to portion thirty days, payment of a claim within that is authorizing percent considered overdue, twelve interest per year. Hegartys' Id. The motion was based on the fact complaint gave that their written notice to OHIO the procedures amount of Sarah's medical bills and the she undergone, specifically requested judgment had and "[f]or attorney's costs, all disbursements actual and owing pursuant fees, and all and interest due to sec. rejected Hegartys' 628.46 Wis. Stat." The trial court stating: motion, interest,
[A]s going grant any to the Court not to is [expenses] the medical to the submitted insurance company at earlier date. I think it would be impossible say that under facts that these insurance this, company should have come up with these costs right away without determining whether who was time, liable them any at that or at until I point think legitimate objections throughout there was this trial might who be liable for under what So, say they circumstances. should paid have delineated, they this amount because it was didn't pay it, run, therefore interest should Court going to rule that I think way. under the facts of this case, it would he improper do so.
¶ 281. The contend that the trial court refusing statutory against erred in to assess interest *119 § pursuant OHIC 628.46, to Wis. Stat. based on its timely pay Hegartys' They failure to the claim. submit though § that even 628.46 is an "all-inclusive statute requiring companies promptly pay all all insurance to claims," Co., Fritsche v. Ford Motor 2d Credit 171 Wis. envelope, or, posted,
postpaid delivery. if so date of All not on the payments simple per overdue shall bear at the rate of 12 interest year.
217 (Ct. 1992), it is limited 304, 491 by 119 280, App. N.W.2d only "This section 628.46(3), applies § provides: which 646.31(2)." claims enumerated in s. of the classes 646.31(2), turn, in relevant provides, part: Section paid. (2) may No claim be of to be Classes claims claim in one of the chapter this unless the is paid under following classes:
(d) liability A claim under a party Third claimants. compensation policy, if either the or workers' insurance of 3rd resident this party insured or the claimant at of event. the time the insured state their time the filed brief- 282. At the ¶ held in Kontowicz v. in-chief, court had recently this Wisconsin, Co. American Standard Insurance 664, 112, 2d N.W.2d that Wis. WI 278 Wis. App liability § 628.46 does not apply third-party Stat. Kontowicz, 2d cases. 278 Wis. personal injury claims Kontowicz as their barring 23. Acknowledging interest, made their statutory they argument claim issue for review possible supreme preserve court. OHIC's responses Beauchaine/OHIC's
refer to our decision in Kontowicz asserting claims for interest under Wis. holding statutory bars § had 628.46. court Recognizing supreme Stat. review, OHIC addresses granted petition maintains that Hegartys' argument. merits OHIC there claim fails because was "reasonable Hegartys' not proof' solely responsible, that OHIC was and under 628.46, not be shall deemed overdue "Any payment proof when the insurer has reasonable to establish the insurer for the responsible payment." Specifi- *120 cally, complaint only the named as defendants not Beauchaine and but OHIO, entities, also six other including company, another insurance some of whom complaint did trial, not settle until the of eve and the allegations against contained individuals and entities that OHIO did not insure. OHIO also remarks the Hegartys damages made claims for to two different companies, insurance PIC, OHIO and and thus main- Hegartys' tain that even if the claim is sufficient to trigger application they statute, of the the fact that submitted identical claims to two different is insurers proof they reasonable that even were not who sure expenses. would be liable for the medical reply ¶ request In their brief, 284. briefing supreme that a schedule set in be the event court reverses. May supreme
¶
2006,
285. On
18,
re-
court
reversing
leased
in Kontowicz,
its decision
the decision
appeals,
holding
of the court of
that under certain
§
apply
circumstances, Wis. Stat.
628.46 does
to third-
party liability
personal injury.
claims for
v.
Kontowicz
Wis.,
¶
Standard
Co.
48,
American
Ins.
2006 WI
of
explicitly
2d 290 Wis.
¶ Debra 287. Kontowicz involved two quadriplegic as a result Kontowicz, rendered who was from accident in which she was struck an automobile Larry Buyatt, and who was Jeffers, behind injured Daniel solely by the caused an automobile collision negligence ¶¶ 3,11. The insur- Id., of Jason Schoessow. brought against were Jeffers's ance claims liability respective insurers, American Schoessow's Metropolitan. Standard and respect ¶ Kontowicz, court con- 288. to the With statutory require- met the cluded that she had all notice amount, informed the insurer of the satis- ments and fying Applying ¶ Id., the first factors two and three. 53. liability part question of on of the factor"no "[t]here no court determined that was insured"the question liability in- of American Standard's of the explaining sured," that: involving accident
American Standard knew about the fault, Kontowicz, Jeffers and that Jeffers was at apparently paralyzed. Jeffers con- that Kontowicz was liability interrogatories. in his to ceded answer accident, investigated had American Standard injury that once Kontowicz's severe was determined confirmed, light liability the part of the admitted Jeffers, policy. that it under its was liable omitted). (footnote ¶ Therefore, the court held Id., to that Kontowicz was entitled interest. Buyatt, respect Metropolitan
¶ had 289. to With admitted was sole cause of the that Schoessow injuries. Applying Buyatt's Id., 14. the first factor with Buyatt, "Metropoli- respect to court concluded that knowledge liability tan had of clear for the accident." respect Id., However, with to factor, the second explained court that: Metropolitan
[B]ecause had information that there pre-existing injuries were nature, of a similar as well as injuries subsequent similar accident, Schoessow fairly it and was debatable wage as whether the loss specials and medical were all attributable the Schoe- accident, ssow we Metropolitan determine that had proof reasonable to establish that it not responsible portion Buyatt's for at least a claim. amount that responsible it was for could not be any determined with certainty. Therefore, interest under Wis. Stat. 628.46 is *122 appropriate Buyatt's not in case. (emphasis original). ¶
Id., in Contrasting ¶ 290. these two scenarios to the case Hegartys us, before we are satisfied that the do not satisfy the Kontowicz test. of 23,1998, As December date from which the interest, seek OHIO was merely Especially a named defendant in the lawsuit. among since, notes, as OHIO the named defendants were entities insured OHIC as well as another company, insurance some of whom did not settle until definitely "question trial, eve there was most liability part ¶ on the of the Id., insured." 48. Unlike liability Kontowicz, where Jeffers conceded and where liability it clear fault, here, that Schoessow was at jury was not established until the so found. Because all met, three conditions have be we need not reach the other two factors. Id. We are therefore satisfied that appropriate § interest Wis. under 628.46 is not in Stat. this case. Judgment By affirmed in order the Court.— part part; with direc- cause remanded reversed in tions. dissenting (concurring part; in in FINE, J. 291. paragraphs join Majority except opinion
part). I 262-278. use the amount trial court did not 292. The determining County
actually paid by Milwaukee recovery it the measure "reasonableness"; it used as higher, agreed though parties billed, that the even disagree figure I also with was "reasonable»" 893.55(7) § Majority's apply decision Wis. Stat. though ch. she is not under Wis. Stat. Beauchaine even part Accordingly, of the I reverse that would medical-expense Hegartys' judgment reduced the recovery.