Lisa Cooper, Individually and as Independent Administrator of the Estate of Matthew Patrick Cooper, Deceased, and Gary Cooper, Individually v. Eagle River Memorial Hospital, Inc., and Wisconsin Patients Compensation FundLisa Cooper, Individually and as Independent Administrator of the Estate of Matthew Patrick Cooper, Deceased, and Gary Cooper, Individually v. Eagle River Memorial Hospital, Inc., and Wisconsin Patients Compensation Fund
Flaum, Chief Judge.
1 Lisa Cooper sued Eagle River Memorial Hospital (“Eagle River“) for medical malpractice on behalf of her deceased son. A jury returned a verdict in favor of Eagle River, and Cooper appeals several alleged errors at trial. For the reasons stated herein, we affirm.
I. Background
2 On June 6, 1998, Cooper, who was approximately 30 weeks pregnant, was vacationing in Eagle River, Wisconsin. Cooper experienced severe cramping in her lower abdomen and visited Eagle River for treatment. At the hospital, Diego Perez, a nurse practitioner, administered an internal examination and diagnosed Cooper with mild dehydration and mild hypoglycemia. Perez subsequently discharged Cooper.
3 Cooper‘s pain worsened following her discharge from Eagle River. Accordingly, she visited the Howard Young Medical Center (“Howard Young“), where treating physicians performed an emergency Cesarian section and delivered Cooper‘s son, Matthew. Matthew‘s condition at birth required an emergency transfer from Howard Young to the Marshfield Clinic. Eight days later, Matthew died.
4 On November 15, 1999, Cooper filed a medical malpractice lawsuit against Eagle River and other defendants. Cooper alleged that Eagle River was negligent for failing to arrange for a physician consultation, failing to conduct standard medical monitoring procedures, and failing to immediately transfer Cooper to Howard Young. The case proceeded to a jury trial. At trial, Cooper offered testimony of several experts on the issues of liability and causation. In defense, Eagle River presented expert testimony from Dr. Nancy Ness, a family physician, regarding the appropriate standard of care for nurse practitioners. Eagle River also relied on expert testimony from Dr. Janice Lage, who examined a pathology slide containing samples of Cooper‘s placenta tissue and testified as to the cause of Cooper‘s placental abruption.1
5 After the close of evidence, Cooper asked the court to instruct the jury that Eagle River may be liable under a negligence per se theory because Eagle River allegedly violated two provisions of the Wisconsin administrative code. The first requires nurse practitioners to consult with physicians via telephone; the second requires hospitals to maintain policies and procedures regarding emergency care. The trial court declined to issue the negligence per se instruction and prohibited Cooper from introducing the provisions into evidence.
6 The jury returned a verdict in favor of Eagle River, and Cooper filed a notice of appeal. Subsequent to that filing, Eagle River moved the clerk of the district court to award costs pursuant to
7 Cooper raises five issues on appeal. First, Cooper argues that the district court should have allowed her to present to the jury a liability theory based upon negligence per se. Second, Cooper maintains the district court should have allowed her to offer into evidence Eagle River‘s operating procedures and policies regarding emergency obstetrical care. Third, Cooper claims the district court erred in introducing the testimony of Dr. Ness, a family physician who testified as an expert regarding the appropriate standard of care for nurse practitioners. Fourth, Cooper contends that the district court erroneously admitted a pathology slide that Eagle River failed to authenticate. Finally, Cooper appeals the imposition of costs.
II. Discussion
A. Standard of Review and Choice of Law
8 In each of the issues raised by Cooper, we review the district court‘s rulings under the abuse of discretion standard. See Stuart Park Assoc. Ltd. Partnership v. Ameritech Pension Trust, 51 F.3d 1319, 1323 (7th Cir. 1995) (jury instructions); United States v. Romero, 57 F.3d 565, 570 (7th Cir. 1995) (admission of expert testimony reviewed under a manifestly erroneous standard). “The abuse of discretion standard means something more than our belief that we would have acted differently if placed in the circumstance confronting the district judge;” rather, the district court‘s decision must strike us as fundamentally wrong. Ladien v. Astrachan, 128 F.3d 1051, 1056 (7th Cir. 1997), quoting Anderson v. United Parcel Serv., 915 F.2d 313, 315 (7th Cir. 1990) (internal citations and quotations omitted). Furthermore, the parties generally agree that Wisconsin law governs all substantive issues in this diversity suit, although federal law applies to procedural matters. See Pro Football Weekly, Inc. v. Gannett Co., 988 F.2d 723, 727 (7th Cir. 1993).
B. Negligence Per Se Instruction
9 Cooper first argues that the district court erred in refusing to provide the jury with a negligence per se instruction based upon Eagle River‘s alleged violation of two provisions of the Wisconsin administrative code. The first is Wisconsin Administrate Code N. 8.10 (2) (“Number 8.10 (2)“), which states:
10 Advanced practice nurse prescribers shall facilitate collaboration with other health care professionals, at least one of whom shall be a physician, through the use of modern communication techniques.
11 The second,
12 Under Wisconsin law, negligence per se instructions are appropriate in a narrowly defined range of circumstances. Specifically, a per se instruction is warranted only when the defendant has violated a “safety statute.” To prove that a legislative enactment is a safety statute, a plaintiff seeking a negligence per se instruction must establish three facts:
13 (1) the harm inflicted was the type the statute was designed to prevent; (2) the person injured was within the class of persons sought to be protected; and (3) there is some expression of legislative intent that the statute become a basis for the imposition of civil liability.
14 Antwaun A. v. Heritage Mut. Ins. Co., 596 N.W.2d 456, 466 (Wis. 1999); Betchkal v. Willis, 378 N.W.2d 684, 687 (Wis. 1985). The Wisconsin courts have interpreted this last requirement narrowly; only when the legislature unambiguously demonstrates an intent to alter the common law standards will a negligence per se instruction be appropriate. Walker v. Bignell, 301 N.W.2d 447, 454-55 (Wis. 1984); Leahy v. Kenosha Memorial Hospital, 348 N.W.2d 607, 612 (Wis. Ct. App. 1984). In distinguishing “safety statutes” from more general regulatory measures, plaintiffs must do more than baldly assert that the statute in question protects a specific class of individuals. All legislation promotes the public welfare to some degree. Instead, the legislation must evince a clear and unambiguous legislative desire to establish civil liability. Leahy, 348 N.W.2d at 612.
15 In Leahy, the plaintiff‘s evidence included a Wisconsin statute that defined the practices of professional nursing and practical nursing. Plaintiff argued that the defendant-hospital violated the statute because the individuals caring for the plaintiff were not registered nurses as defined by the law. Based on this testimony, the trial court included a negligence per se instruction, and the jury found for the defendant liable of medical malpractice. Leahy, 348 N.W.2d at 609.
16 In reversing the jury verdict, the Wisconsin Court of Appeals held that a statute regulating the nursing profession and providing for the licensing of nurses was not a safety statute and did not evince a legislative intent to create new standards for civil liability. Id. at 612. Specifically, the court held that the statute served three clear purposes: regulation of the nursing profession; licensure of nurses; and establishment of penalties for violations. Id. While the law ensured public safety generally, nothing in the act revealed “a legislative intent to grant a private right of action for a violation of the statute.” Id.
17 The Leahy court rejected the appropriateness of the negligence per se instruction because it improperly focused the jury‘s attention on whether “the nurses’ conduct fell within the concept of professional nursing or practical nursing under the statute.” Leahy, 348 N.W.2d at 613. Accordingly, the negligence per se instruction “effectively prohibited consideration of the quality and competency” of the nurses’ conduct, which was the proper inquiry in a negligence action. Id. (emphasis in original).
18 This case is fundamentally the same as the situation presented in Leahy. The administrative code provisions at issue here are clearly regulatory in nature and do not reveal the clear and unambiguous language necessary to impose civil liability. Number 8.10 (2) is part of a larger chapter governing the certification of advanced practice nurses. Similarly, while Section 124.24 requires hospitals to maintain written policies, failure to comply with the provision allows the Wisconsin Department of Health and Family Services to revoke or suspend a hospital‘s license. See
19 The problem associated with issuing a negligence per se instruction based upon alleged statutory violations is easy to identify in this case, just as it was in Leahy. A negligence per se instruction would improperly focus the jury‘s attention on whether Perez complied with the licensure statute governing nurse practitioners. Instead, the appropriate inquiry should have been, as the district court instructed, whether Perez‘s care for Cooper fell within the appropriate standards of care for nurse practitioners.2 Because the two code provisions upon which Cooper relies do not reflect the clear and unambiguous language required to warrant a negligence per se instruction, we affirm the district court‘s refusal to issue one in this case.3
20 Cooper next argues that the district court erred in excluding evidence of Eagle River‘s written operating procedures and policies.4 In large measure, Cooper‘s second argument is inconsistent with her first, in which she claimed that the absence of any hospital procedures constituted negligence as a matter of law.
21 As a general rule in Wisconsin, the internal procedures of a private organization do not set the standard of care applicable in negligence cases. See Johnson v. Misericordia Community Hospital, 294 N.W.2d 501, 510 (Wis. Ct. App. 1980), citing Marolla v. American Family Mut. Ins. Co., 157 N.W.2d 674, 678 (Wis. 1968). However, the Marolla court also recognized an exception to this general rule, “if it could be shown that an entire industry or substantially an entire industry had essentially the same safety regulations,” or if Wisconsin law required the regulations. Id. at 678; Johnson, 294 N.W.2d at 538.
22 Even assuming the exception discussed in Marolla applied in the present case, Cooper‘s argument must still fail. Cooper presented no evidence that the policies and procedures were in effect at the time she received medical treatment at Eagle River. Cooper was not entitled to introduce policies that were not in effect during the relevant time period. As a result, the district court‘s decision to exclude them does not constitute an abuse of discretion.
D. Expert Testimony by Family Physician
23 During trial, Dr. Nancy Ness, a family physician testified as an expert on Eagle River‘s behalf regarding the appropriate standard of care for nurse practitioners. Cooper objects to Dr. Ness‘s testimony in two respects. First, she claims that Eagle River should be “judicially estopped” from presenting Dr. Ness‘s testimony because Eagle River objected in a motion in limine to non-nurse practitioners testifying as to the proper standard of care. When the trial judge overruled Eagle River‘s objection, Eagle River retained Dr. Ness as an expert. Second, Cooper challenges Dr. Ness‘s qualifications to render an expert opinion on the issue of standard of care. Both arguments are without merit.
24 Judicial estoppel is an equitable doctrine, generally applied by circuit courts, that “precludes a party from asserting a position in a legal proceeding and then subsequently asserting an inconsistent position.” State v. Petty, 548 N.W.2d 817, 820 (Wis. 1996). The purpose of judicial estoppel is to “protect the judiciary as an institution.” Id., quoting State v. Fleming, 510 N.W.2d 837, 841 (Wis. Ct. App. 1993). In Wisconsin, the doctrine is used to prevent litigants from playing “fast and loose with the judicial system” by “maintain[ing] inconsistent positions during the course of the litigation.” Id.
25 To invoke judicial estoppel, a court must identify three elements: (1) the later position must be clearly inconsistent with the earlier position; (2) the facts at issue should be the same in both cases; and (3) the party to be estopped must have convinced the first court to adopt its position. Salveson v. Douglas County and Wisconsin County Mut. Ins. Corp., 630 N.W.2d 182, 192 (Wis. 2001). Here, condition #3 is obviously lacking because the district judge did not adopt the position advanced by Eagle River in its motion in limine. Once the district judge overruled Eagle River‘s objection to non-nurse practitioners testifying regarding the appropriate standard of care, Eagle River was free to adhere to the judge‘s decision.
26 Cooper‘s objection to Dr. Ness‘s qualifications as an expert is similarly flawed. Trial judges have broad discretion in determining expert qualifications and their determination will be affirmed unless it is manifestly erroneous. Bob Willow Motors, Inc. v. General Motors Corp., 872 F.2d 788, 797 (7th Cir. 1989); Jones v. Hamelman, 869 F.2d 1023, 1028 (7th Cir. 1989). While Cooper‘s assertion that Dr. Ness had only limited experience with nurse practitioners has some merit, the trial court‘s decision to admit her testimony was not manifestly erroneous. Dr. Ness served as the medical director of a large multi-specialty clinic that employed two nurse practitioners and several physician assistants. Although Dr. Ness‘s role is administrative in nature, at least twenty-five percent of her practice concerns obstetrics. Cooper may quarrel with the conclusions that Dr. Ness reached (and that the jury obviously credited), but her qualifications are not so limited as to warrant a new trial. We therefore affirm the decision of the district court to admit Dr. Ness‘s testimony.
E. Introduction of Pathology Slide
27 During the presentation of its defense, Eagle River called Dr. Janice Lage, who interpreted a pathology slide containing tissue samples from Cooper‘s placenta and offered certain conclusions regarding the cause of Cooper‘s placental abruption. Cooper argues that the district court erred in admitting the slide because Eagle River never established a proper foundation.5
28
29 The pathology slide in this case was properly authenticated to a degree sufficient to warrant its admissibility. The reference number on the slide matched the specimen number contained in Cooper‘s pathology report. Nowhere does Cooper allege that Eagle River engaged in misconduct,6 nor does Cooper point to anything in the record that suggests the placental sample derived from a source other than Cooper. Based on these facts, the district court‘s decision to admit the pathology slide was proper. See United States v. Dombrowski, 877 F.2d 520, 525 (7th Cir. 1989); Mauldin v. Upjohn Co., 697 F.2d 644, 649 (5th Cir. 1983) (presenting analogous factual circumstances).
F. Imposition of Costs
30 Finally, Cooper challenges the imposition of costs. Following the jury verdict, Eagle River petitioned the clerk of the district court for costs pursuant to
31 As a general rule,
32 This case, however, presents a unique problem due to the “dual role” of Magistrate Judge Skupniewitz, who serves as both judicial officer and clerk of the court. At oral argument, Cooper maintained that her failure to seek review in the district court pursuant to
33 Cooper‘s position does not excuse her failure to comply with
34 We therefore hold that Cooper has failed to comply with the timing requirement of
III. Conclusion
35 For the foregoing reasons, we AFFIRM the decision of the district court.