A judgment of $885,000 in favor of a child who sustained a permanent injury during delivery was affirmed over a challenge to the expert testimony upon which the verdict was based. The Wisconsin Supreme Court rejected a claim that the opinion of a medical expert regarding the appropriate standard of care cannot be based on the expert’s personal experience.

Facts of the Case

Dr. Kim Balick provided prenatal care to Braylon Siefert’s mother and then delivered Braylon. During the delivery, Braylon’s shoulder became stuck, a condition known as shoulder dystocia. Dr. Balick eventually delivered Braylon, but Braylon sustained a brachial plexus nerve injury during the delivery. The injury will limit the growth and function of Braylon’s left arm, even after ameliorative surgery.

Braylon’s mother weighed 269 pounds before her pregnancy and gained another 36 pounds during her pregnancy. Dr. Balick estimated that Braylon would have a birth weight of 8 pounds, 8 ounces. Dr. Balick did not perform an ultrasound to confirm that estimate. Braylon’s actual birth weight was 9 pounds, 12 ounces.

Dr. Balick used a one-hour glucose screening test to determine whether Braylon’s mother had gestational diabetes. The test result was 131 mg/dL. Medical literature suggests that a three-hour glucose screening test should be administered when the results of the one-hour test are 140 mg/dL, although the same literature suggests that the second test might be appropriate when the one-hour test result is 130 mg/dL. Dr. Balick did not administer the three-hour test.

At some point during the delivery, Dr. Balick decided to use a vacuum device. The device is essentially a suction cup that attaches to the baby’s head. Dr. Balick succeeded in delivering the baby’s head, but it quickly retracted. That complication alerted Dr. Balick to the occurrence of shoulder dystocia.

Dr. Balick used a series of obstetric maneuvers to resolve the shoulder dystocia. Braylon was delivered about three minutes later.

The jury was asked whether Dr. Balick provided the standard of care that reasonable family practice physicians who practice obstetrics would provide under the same circumstances. Wisconsin law required Braylon’s attorneys to present expert evidence to establish the particulars of that standard of care and to explain how Dr. Balick failed to meet that standard.

Expert Testimony

Braylon’s lawyers relied on the expert testimony of Dr. Jeffrey Wener to meet that burden. The defendants did not challenge Dr. Wener’s qualifications to testify as an expert.

Dr. Wener testified that a reasonable family practice doctor who delivers babies should have recognized several risk factors in Braylon’s delivery, including the mother’s obesity, gestational diabetes, and a macrosomic (significantly larger than average) baby. He also testified that excessive traction during a delivery can cause a brachial plexus injury and that using a vacuum device to assist delivery increases that risk. None of that testimony was disputed.

Rather, the dispute concerned Dr. Wener’s testimony about the standard of care and Dr. Balick’s failure to follow it. Dr. Wener testified that the mother’s weight before pregnancy, her weight gain during pregnancy, the risk of gestational diabetes in light of the mother’s obesity, and the likelihood that the mother was carrying a macrosomic baby should have alerted Dr. Balick to the enhanced risk of shoulder dystocia.

Dr. Wener opined that Dr. Balick should have administered a three-hour glucose test to obtain a reliable indication of gestational diabetes, given the result of the less reliable one-hour test and the mother’s obesity. He also testified that Dr. Balick breached the standard of care by failing to perform an ultrasound to make a more accurate assessment of the baby’s weight, by using excessive traction during delivery, and (given the elevated risk of shoulder dystocia) by using vacuum assistance during delivery.

Challenge to Admissibility

For years, the Wisconsin Supreme Court firmly resisted adopting the Daubert rule of expert opinion admissibility. In 2011, the state legislature amended the rules of evidence by adopting the Daubert standard. The Wisconsin rule now tracks the language of the federal rule.

As the Court explained, the Daubert rule requires expert opinions to be based on sufficient facts, to be the product of reliable methods, and to be based on the reliable application of those methods to the facts. The defense challenged the admissibility of Dr. Wener’s testimony on the ground that he based his opinions on his personal experience as an obstetrician rather than published studies. The defense complained that Dr. Wener’s methodology was unreliable.

Supreme Court’s Ruling

The trial judge and the Wisconsin Court of Appeals both rejected the Daubert challenge to Dr. Wener’s testimony. The Wisconsin Supreme Court, reviewing those rulings, agreed that the testimony was admissible.

Emphasizing that Daubert makes the court “a gatekeeper, not a fact finder” and that the reliability determination focuses on the expert’s methodology rather than the expert’s conclusions, the Court took care to preserve the jury’s role in deciding whether the expert’s conclusions should be believed. The Court also noted that a gatekeeper is not an armed guard.

The Court rejected the argument that experience-based testimony is always the product of an unreliable methodology. Expert medical opinions may be based on experience if the expert’s relevant experience is sufficiently extensive. Medicine is a learned profession rather than a science, and unlike expert opinions offered by engineers or chemists, a doctor’s opinion about standards of care is often grounded in judgments based on personal experience rather than studies that establish statistical proof.

Medical knowledge is often less certain than scientific knowledge, but the court reasoned that the absence of perfect knowledge does not make the opinion of a medical expert inadmissible if the opinion has a reliable basis in the knowledge and experience of the medical profession. The basis for an expert medical opinion need not be subjected to peer review when the doctor’s own experience is sufficient to establish its reliability.

Nor do doctors need to cite specific studies or medical literature to support opinions that are grounded in their own professional experience. Literature may be helpful in some cases, but it will rarely address the specific facts that are unique to each patient.

The Court emphasized that Daubert is meant to exclude “junk science” from evidence. The Court noted that an expert medical opinion, when grounded in the expert’s extensive professional experience, will rarely be the kind of “junk science” that should be kept from the jury.

Having established the appropriate rule, the Court asked whether the trial court understood and applied the rule correctly. The Court concluded that the trial court reasonably determined that Dr. Wener’s expert opinion was relevant and was grounded in extensive relevant experience. Dr. Wener’s opinion about the appropriate standard of care was not, as the defense argued, merely a personal preference, but was based on medical knowledge that every family practice doctor who provides obstetric care should have. His expert opinion was therefore reliable and admissible.