COURT OF APPEALS DECISION DATED AND FILED July 15, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. Lisa and Robert Stellmacher appeal from a judgment dismissing their medical malpractice claims against Dr. Paul Boeder. After a trial on just liability, the jury returned a no negligence verdict. The Stellmachers argue that it was error to bifurcate liability and damages for separate jury trials. We agree and reverse the judgment and remand for further proceedings.
¶2 We first address Boeder’s argument that the claim of error is waived. The possibility of bifurcating liability and damages arose at a pretrial conference. At a motion hearing a few days later, the trial court brought it up again and reiterated that it would look favorably at bifurication to first determine if there was negligence by the doctor before presenting and determining damages. It noted that the Stellmachers had expressed some objection to that procedure when it was raised during the pretrial conference.[1] The Stellmachers explained that damage evidence was necessary to present their informed consent claim. The trial court disagreed and ordered that liability be tried first. It set a three-day trial date. No date was set for the damage portion of the bifurcated trial.
¶3 Boeder contends the Stellmachers waived the right to claim
error with respect to bifurcation because they did not move for reconsideration
in the six-month period between the trial court’s decision to bifurcate and the
trial date and because they failed to move for a mistrial prior to the jury’s
verdict. Boeder offers nothing in
support of his contention that a motion for reconsideration or petition for
interlocutory appeal was a necessary precondition to raising the claim on
appeal. Where a trial error is so
serious a nature that it may warrant a mistrial, a litigant must not only
object but must also demand a mistrial and the failure to demand a mistrial is
an acknowledgement that the error is harmless.
Lobermeier v. General Tel. Co., 119
¶4 The record reflects that the Stellmachers objected to the
trial court’s proposal to bifurcate liability and damages. The trial court made a firm ruling to
bifurcate. A motion for reconsideration
or a mistrial was not necessary because the Stellmachers made a pretrial
objection. The issue is not waived.
¶5 Waters v. Pertzborn, 2001 WI 62, ¶35, 243
¶6 Boeder argues that the Stellmachers have not shown any prejudice from the bifurcation. Waters does not suggest that such a showing is necessary. It is enough that the statutes prohibit the very thing the trial court did here.[4] See Waters, ¶31 (a trial court’s discretion to control the presentation of evidence at trial is not unfettered and must give way to statutory provisions that are not discretionary). A new trial is required.
¶7 We need not address the Stellmachers’ claim that the trial
court erroneously exercised its discretion in admitting an abstract and
manufacturer’s information on the device used during surgery. It is not known whether the same evidence
will be necessary or offered at the new trial.
By the Court.—Judgment reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The record does not include a transcript of the pretrial conference.
[2] A
motion for a mistrial is not always necessary even when the ruling is made
during trial. For example, in Pophal
v. Siverhus, 168
[3] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[4] Waters
v. Pertzborn, 2001 WI 62, ¶14 n.3, 243