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COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 1, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2462
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
GLEN BASKEN, SHIRLEY
BASKEN and
AMBER BASKEN, BY HER
GUARDIAN
AD LITEM, RODNEY W.
DEQUAINE,
Plaintiffs-Appellants,
STATE OF WISCONSIN, DEPARTMENT
OF HEALTH AND SOCIAL SERVICES,
Subrogated Party,
v.
DR. RICHARD BECHTEL,
ST. VINCENT
HOSPITAL WISCONSIN
HEALTH CARE
LIABILITY INSURANCE
PLAN and
WISCONSIN PATIENT'S
COMPENSATION
FUND, JOINED PURSUANT
TO 655.27(5)
WIS. STATS.,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Brown County:
VIVI L. DILWEG, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Glen Basken, Shirley Basken and Amber
Basken, by her guardian ad litem, appeal a judgment dismissing their complaint
following a jury verdict finding no negligence and zero damages. The Baskens argue that the trial court
deprived them of a fair trial because it erroneously (1) ruled on numerous
occasions that no evidence could be repeated, and interfered with
cross-examination; (2) demeaned the Baskens' counsel and their proofs,
demonstrating its lack of impartiality; (3) instructed the jury on "the
alternative method of treatment"; and (4) refused to set aside the verdict
on the grounds that the damages were inadequate. They argue that a new trial is required in the interest of justice. We reject these contentions and affirm the
judgment.
FACTS
This complex medical
malpractice trial began May 1 and ended May 17, 1995. The Baskens' version of facts is as follows.[1] Shirley Basken, thirty-seven years old, was
admitted to St. Vincent Hospital in her thirty-ninth week of pregnancy by her
obstetrician, Dr. Richard Bechtel, to deliver her baby by induction. Earlier tests showed a well-developed
healthy baby. Starting at approximately
8:30 a.m., the doctor used the drug Pitocin continuously for eleven and
one-half hours in doses that exceeded recommended limits.
At
8:29 p.m., Amber was delivered by cesarean.
She was not breathing, was motionless, had no reflexes, no color and a
dropped heart rate. She was put on a
respirator. Shirley's uterus had
ruptured, and Amber and the placenta were found outside the uterus.
Pitocin causes the
uterus to contract, and oxygen deprivation and uterine rupture are risks
because of Pitocin's ability to hyperstimulate the uterus. These risks are enhanced by the length of
time the drug is given, the amount of the dosage and the prior stretching of
the uterus. Because Shirley had several
prior births, she was in the class of women who should not be given Pitocin or
should be recognized as at the greatest risk for rupture.
At trial, the Baskens
showed that tracings produced by monitors during Shirley's labor should have
alerted Bechtel and the nurses that the mother and child were in serious
trouble and the Pitocin should have been shut off. The Baskens' medical experts testified that Amber had suffered
severe oxygen deprivation at birth, resulting in her cerebral palsy and severe
mental retardation.
The defendants
strenuously disputed the Baskens' version of the facts. The defendants showed that shortly before
labor was induced, Shirley developed preeclampsia, a life threatening
condition, for which the only known treatment is delivery. In addition, Shirley suffered from
uncontrolled Class R diabetes, a significant risk to the baby. Although realizing this risk, Shirley was
noncompliant with dietary restrictions and checking blood sugars. Also, Bechtel had previously used Pitocin
with Shirley during which she was able to deliver vaginally.
The defendants disputed
that ultrasound and other tests revealed a fetus in good health, because a
fetus may have suffered undiagnosed brain damage and yet have normal
tests. Their expert witnesses opined
that Amber's neurological injuries occurred well before labor and delivery as a
result of uncontrolled diabetes rather than events during labor.[2] The defendants maintained that the hospital
had no upper limit of Pitocin, and that it was up to the physician to determine
dosage. Dr. Harry Farb,
perinatologist, testified that the dosage of Pitocin was appropriate. Defense witnesses testified that the monitor
tracings and other evidence showed no cause for concern until just before
delivery, when a drop in fetal heart rate was followed by the emergency
cesarean.
1. Evidentiary rulings.
The first several issues
involve the extent of the trial court's discretion in limiting the repetition
of expert testimony and cross-examination.
The judge shall exercise reasonable control over interrogation of
witnesses. Section 906.11(1), Stats. "We have repeatedly held that the conduct
of a trial is largely within the discretion of the trial court and its
determination will not be disturbed unless the rights of the parties have been
prejudiced." Dutcher v.
Phoenix Ins. Co., 37 Wis.2d 591, 606, 155 N.W.2d 609, 617 (1968). Relevant evidence may be excluded if its
probative value is substantially outweighed by considerations of delay, waste
of time and needless presentation of cumulative evidence. Section 904.03, Stats.
Although cross-examiners
"can repeat the questions or put others until the witness is forced to
answer the precise point required, or squarely refuse," Trowbridge
v. Sickler, 54 Wis. 306, 309, 11 N.W. 581, 582 (1882), the trial court
has reasonable discretion in limiting repetitive questioning. See State v. Seibert,
141 Wis.2d 753, 760, 416 N.W.2d 900, 903 (Ct. App. 1987). "The exercise of discretion by the
trial court to deny or restrict cross-examination must be dependent upon the
circumstances of the trial." Neider
v. Spoehr, 41 Wis.2d 610, 617, 165 N.W.2d 171, 175 (1969).
Our review of
evidentiary rulings is deferential, and when the court's reasoning is not
articulated, we must examine the record to determine whether it provides a
reasonable basis for the ruling. State
v. Pharr, 115 Wis.2d 334, 343,
340 N.W.2d 498, 502 (1983). Also, to
preserve an evidentiary ruling that excludes evidence, the record must reflect
an offer of proof and resulting prejudice.
See § 901.03(1), Stats.
The Baskens first called
Bechtel and three attending nurses adversely.
The Baskens contend that the trial court erroneously denied their right
to adversely examine Bechtel with respect to an exhibit comparing Shirley's
monitor tracings to a nursing manual.
Counsel was attempting to prove nonreassuring deceleration in Amber's fetal
heart rate as a sign of oxygen deprivation.
The trial court sustained objection to the exhibit, explaining:
The
problem is that this isn't a learned treatise that this witness would rely on
or has even seen. It is not a learned
treatise that is made for doctors. ... you can certainly question the nurses
... since it's [for nurses].
The Baskens do not
suggest that the exhibit was offered to prove any standard of care. Rather, it was offered to demonstrate the
existence of a medical condition, that Amber's fetal heart rate showed signs of
oxygen deprivation. Bechtel testified
that although the nurses manual was on the ward, he had not reviewed it. There was no showing that the manual set
forth any standard of care for doctors to observe. Because the nursing manual chart was not designed for doctors to
use, and because the doctor was not required to use the manual and had not
reviewed it, the trial court reasonably concluded that necessary foundation to
introduce the exhibit through the doctor was lacking. In any event, the court also ruled that the exhibit could be used
when counsel examined the nurses.
Because the court's ruling in effect permits for later introduction of
the exhibit, the ruling also fails to demonstrate any prejudicial error, if there
was error. See § 901.03(1), Stats.
Next, the Baskens argue that the following
ruling on a question before nurse Ann Bins demonstrates error.
Q. [BASKENS' COUNSEL]: And then at 16:50 she's got pain in the
upper left quadrant, correct?
[DEFENSE COUNSEL]: ... Asked and answered.
[BASKENS' COUNSEL]: I haven't asked this.
THE COURT: Yeah, you have.
Sustained, but that's all right.
Proceed.
....
I'm not going to strike
it.
The Baskens argue that
this excerpt illustrates the court's "unthinking" rulings that
sustain defense objections. We
disagree. This excerpt follows a line
of questions regarding Shirley's pain.
Bins had testified that she does not use the word pain, but rather
"contractions" or discomfort, unless the patient was experiencing
something other than a contraction or discomfort of labor. There is no offer of proof that Bins' notes,
from which this question apparently derived, varied from her testimony. Although this precise question had not been
previously asked, to the extent the question asked about pain, the court could
reasonably conclude that it was repetitive and argumentative. Further, because the court allowed the
question to stand, the ruling did not prejudice the Baskens.[3]
Next, the Baskens argue
that the trial court erroneously refused to strike the nurse's unresponsive
answer. When asked if Shirley was
throwing up at 19:40, Bins answered:
"That's not listed here. A
lady in labor will oftentimes vomit throughout the course of labor. It's not an unusual sign." The Baskens' counsel asked that the answer
be stricken as nonresponsive, but the trial court denied his request. Counsel continued: "At 19:40 you wrote that she was vomiting, correct?"
and Bins answered: "Correct, on
the monitor tracing."
The Baskens ask us to
compare this ruling with the defense's cross-examination of Dr. Peck, a medical
expert for the Baskens. Defense asked
Peck: "[T]here are also physicians
like Dr. Cruikshank who think[] we can use more [Pitocin]?" To which Peck replied: "I doubt very seriously if he would get
up to 44 milliliters per minute."
Defense counsel then
asked the court to instruct the doctor to respond to the questions being
asked. The court stated:
I would ask that you limit yourself to
the questions being asked. The attorney
for the [Baskens] can clarify on redirect.
I'm sure he will. Go ahead.
....
...
He cannot restrict you to a yes or no answer.
In comparing these two
episodes, we have three observations.
First, during Bins' questioning, the Baskens' counsel was permitted to
repeat his question and obtained the answer he sought. Second, although the court granted defense
counsel's request for the instruction to the witness, Peck's answer was not
stricken and was allowed to stand. As a
result, even if one were to assume error, the Baskens were not prejudiced by the
court's rulings.
Third, to the extent the
comparison is meant to demonstrate bias against the Baskens, we disagree. The trial court's management of a trial is a
delicate balancing act to which we owe deference. Section 906.11, Stats. Although in one instance the court denied
the Baskens' request but later granted the defense's, the difference could be
attributed to the court's decision to tighten the reins as the trial progressed
in order to save time. The court
softened the effect of its ruling by clarifying that Peck was not limited to
yes or no answers. We decline to
reverse this exercise of discretion.
Next, the Baskens argue
that outside the presence of the jury, the trial court unfairly berated their
counsel for repetitious questioning of their expert, Dr. Mary
Dominski. After an hour of testimony,
the trial court called a break and excused the jury. The court stated that it would not permit repetition, explaining:
She may give her
testimony. She's a very good
witness. She explains it much better
than the treatise explains it, and then you have her re-read the same testimony
on the treatise. ... Either use the treatise or use your witness, but I only
want the testimony once ....
....
What she does right now is
she gives her opinion, then she reads the treatise, then she tells what the
treatise means, which is exactly the same as her opinion. That is three times that you're presenting
the same information.
....
... I
am not preventing you from having her say that this is supported by the
literature.
The trial court ruled
that it was needlessly cumulative to read the treatise and then explain what it
means, when it is exactly the same as the doctor's opinion. It did not deny the use of the treatise, but
rather exercised control over the mode of questioning. The doctor could have been asked if his
opinion was consistent with the treatise.
Because § 904.03, Stats.,
permits the court to limit evidence if its probative value is outweighed by
considerations of needless presentation of cumulative evidence, the court did
not erroneously exercise its discretion.
Next, the Baskens argue
that the trial court demeaned counsel and erroneously limited their adverse
exam of Dr. Joseph Brand, a treating neonatologist at Shirley's
cesarean. When counsel asked Brand
about opinions expressed in a textbook by Volpe, defense counsel objected that
it was the same exhibit used with
another witness. The trial court
replied: "[W]e'll excuse the jury
for a few minutes when he argues it, okay ... because I'm sure he's going to
argue it." (Emphasis added.)
After the jury left, the
trial court explained that it excused the jury because some of the older
members were having trouble sitting so long, and it did not want multiple
witnesses testifying on the same evidence:
THE COURT: ... I don't mind if [counsel] very quickly goes over it, but I
don't want any time spent on Volpe with this witness because you've already
done that with the other witness, and .... I don't have any difficulty with a
couple of questions ... but I don't mean ten, okay?
....
... [T]here was a lot of testimony as to
Volpe this morning, and I don't want it again ....
[BASKENS' COUNSEL]: You didn't like Volpe?
THE
COURT: It's not that I didn't like
it. I don't think we need to have it
twice. (Emphasis added.)
The Baskens argue that
trial court's statement, "I'm sure he's going to argue it" demeans
counsel before the jury. We
disagree. From the record, it appears
only that the trial court excused the jury to allow argument by counsel. On the other hand, counsel's comment to the
court, "You didn't like Volpe?" shows a patent unwillingness to
accept the court's instructions.
The Baskens also argue
that this episode shows an erroneous exercise of discretion because the court
did not know what the questions would be until they were asked and therefore
had no rational basis to limit them. We
disagree. Based on the line of
questioning, it was reasonable for the court to conclude that Peck's testimony
would repeat a subject covered earlier through a different witness. Counsel is required to make an offer of
proof if the testimony is not going to be unnecessarily repetitive. Cf. § 901.03(1)(b), Stats. (error may not be predicated on
a ruling excluding evidence unless its substance was made known to the judge by
offer of proof). Because trial counsel
failed to make the necessary offer of proof, we are unable to identify what
testimony the trial court excluded. In
any event, after the discussion, the Baskens' counsel asked Brand to identify
Volpe's charts and compare them with Amber's condition, which Brand did. As a result, the Baskens' claim of error
also fails to demonstrate prejudice.
Next, the Baskens argue
that the trial court erroneously limited the use of an exhibit with their
medical expert Peck, an obstetrician specializing in problem pregnancies. The exhibit consisted of a blowup of a page
in medical literature. Counsel asked Peck
if the exhibit was identical to the testimony he just gave, and Peck said it
was, offering to read it. The trial
court sustained the defense objection that reading it was repetitive. The witness then asked if it was anything he
had done, and the trial court stated that it was nothing he had
done. The Baskens argue that the trial
court's ruling was erroneous and demeaning.
We disagree. The trial court was entitled to enforce its
pretrial ruling that repetitive expert testimony was not permitted. Before trial, the court's lengthy
explanation included the following interchange:
THE COURT: I do not allow repetitive experts ....
....
If they give the same testimony, if they
go over the same testimony, they're going to be cut off.
[BASKENS' COUNSEL]: So in other words, you have a doctor for
negligence that is a person who in essence has written in the literature and
then a practicing physician that may be talking about standards, the court will
only allow one expert in this type of case?
THE
COURT: Probably. It depends on whether it is the same
testimony. I don't want to hear the
same testimony time and time again from experts.
Because Peck testified
that the exhibit was "identical" with his testimony, the trial court
reasonably concluded that reading it aloud would be unnecessarily
cumulative. This ruling is within a
reasonable exercise of discretion.
Section 904.03, Stats.
Next, the Baskens argue
that outside the presence of the jury the trial court "berated"
counsel for covering the same ground with Peck as he previously covered with
two other doctors. They argue that
neither doctor dealt with the care Shirley had received and the information to
evaluate the care.
The record cited does
not support the Baskens' claim of error.
The court objected to Peck giving definitions that other doctors have
given:
One
of the reasons I asked you to provide me with definitions is so that you
wouldn't have to give definitions twenty times because you have them written
down so that the jury has something in writing where they can refer to the
definitions if they've forgotten about them.
We've now had ACOG described to us several times.
The court did not oppose
testimony concerning Shirley's care, but ordered that definitions were not to
be given repetitiously. The Baskens
argue that the repetition was harmless because it took only a matter of
seconds. The trial court was reasonably
concerned that the seconds of repetition were adding up. See § 904.03, Stats.
Next, the Baskens
challenge the trial court's ruling that questions of Peck concerning the
nursing manual's chart of atypical decelerations were repetitive of testimony
the day before. The Baskens' counsel
showed Peck a blowup of page ninety-three found in the nursing manual, and asked
what it showed. Defense counsel
objected on grounds of repetition.
Outside the jury's presence, the Baskens' counsel argued that although
these questions were asked of an adverse witness, counsel had not had the
opportunity to ask them of his own witness on direct. The trial court responded:
But you have now for over an hour and a
half, given the same testimony that has been given before by experts. ... I'm not believing you because you've
told me you would stop and you haven't stopped. ... The jury has heard
this ... more than once. ...
....
If
you get to the management of this woman, I will allow you to do that. But you're not at the management of this
woman and you're not at Amber. You are
on the teaching plane .... If you're talking about this specific case,
I will allow you to talk about the case specifically ....
When the jury returned,
Basken asked Peck to use "the diagram" to explain the difference
between the typical and atypical variable, which Peck did.[4] He next asked Peck to define a late
deceleration, which Peck did. Defense
counsel again objected on the ground that another witness gave the same
definition, and the trial court sustained the objection and asked the Baskens'
counsel to follow the court's instructions.
Because the witness had
already answered, no question was before the witness. The court did not strike any testimony, and the Baskens' counsel
proceeded with questioning Peck about his review of Shirley's case. Although a lengthy discourse between the court
and the Baskens' counsel concerning the parameters of Peck's testimony is of
record, the Baskens do not identify what question counsel would have posed and
what answer Peck would have given if the court had not limited Peck's
examination. Absent a clearly stated
offer of proof, the record reveals no prejudice resulting from the court's
ruling. Section 901.03, Stats.
Next, the Baskens
challenge the trial court's ruling limiting their cross-examination of Dr.
Harry Farb, the defense's medical expert on negligence. The Baskens' counsel asked: "You didn't review any literature for
this case?" After the trial court
excused the jury, the court explained that consistent with an earlier order, it
would allow only the question that Farb did not review any literature
specifically for this case:
"Beyond that, I'm not going to let you because I believe ... you
asked that these people be limited. ...
Now, that's my memory of what I determined, and I can see that [the defense]
were following that and they did not have him review literature because they
didn't want another witness coming up with literature ...."
This argument
essentially challenges an earlier trial court ruling with respect to the
handling of medical literature. However, the Baskens' appellate brief does
not cite the record with respect to the court's earlier decision. Without a citation to the earlier decision,
the trial court's comments are out of context and therefore not capable of
review. We decline to hold that this
ruling results in reversible error.
Next, the Baskens argue
that the trial court unfairly interfered with the cross-examination of Farb on
the management of uterine hyperstimulation.
The Baskens' counsel asked whether Farb agreed with Williams'
Obstetrics, a medical textbook, that Pitocin should be discontinued
immediately if contractions exceed five in a ten-minute period, or last longer
than one minute or if the fetal heart rate decelerates significantly. Farb agreed, provided the definition of
hyperstimulation included strong contractions.
Counsel next read a definition of hyperstimulation that included
contractions that were "too frequent or too intense" and asked
Farb: "And they don't use the word
strong, do they sir?" Farb
answered that they used the word "intense." Counsel then asked:
"But they do not say hyperstimulation is too many contractions that
are strong, does it?" Farb answered: "Not in those words, no." The court interrupted:
Mr.
Cates, so we can move along, once you read it, that tells the jury what -- and
the doctor what you're asking. You do
not have to repeat it three times.
The
Baskens argue: "Now the examiner
has got the witness where he wants him.
All he need do to discredit this man is to be able to ask 'If not in
those words, what words,' but the Court interrupts ...." We disagree. The trial court reasonably asked counsel to move along. It is apparent that Farb considered the word
"intense" to signify "strong" contractions. We agree with the trial court that continued
questioning on this point was needlessly repetitious, § 904.03, Stats.
Next,
the Baskens argue that the trial court erroneously excluded impeachment
evidence in the form of a videotape of a 1984 lecture by Farb to insurance
people and lawyers at which he defined "hypertonus" as "An
interval, if its less than two minutes, that's hypertonus." The Baskens argue that the statement is
impeachment because "[t]hat is more than five contractions in a ten-minute
period without any requirement that they be strong." (Emphasis in the original.)
We disagree that the
Baskens demonstrated that Farb's lecture definition is inconsistent with his
trial testimony. At trial, Farb also
had testified that "[H]ypertonus can also mean a resting uterine tone that's
significantly above baseline and have nothing to do with
contractions." Because there is
more than one definition of hypertonus, and at least one that does not have
anything to do with contractions, the absence of any requirement that
contractions be strong in his lecture definition is not necessarily
inconsistent with his trial testimony.
Because the Baskens fail to demonstrate that Farb's lecture comment is
necessarily inconsistent with his trial definition, the record reveals no error. See § 906.13(2), Stats.[5]
Next, the Baskens
challenge a ruling made during their cross-examination of defense expert
Claudia Beckmann, nurse and faculty member at the University of Missouri-Kansas
City, who testified on the lack of negligence of the nursing staff. On direct, she testified that a definition
of uterine hyperstimulation "that most people go by is five contractions
in ten minutes." She testified
that the stronger contractions generally have more of an impact on fetal heart
tones. She testified that there was nothing
worrisome in the heart rate tracing until 8:05 p.m.
On cross-exam, the
Baskens' counsel asked: "The fact
of the matter is, you counted the contractions during the course of the day,
did you not?" to which she replied:
"The activity, yes."
Then counsel asked:
Q. And if they are
contractions, then basically there's hyperstimulation all afternoon; isn't that
true?
A. If
in fact those are contractions. There's
only one period on the monitor that actually is hyperstimulation based on the
monitor. The other is based on uterine activity,
uterine irritability, possibly contractions.
Counsel
then referred to Beckmann's deposition where he asked: "So whatever
they're seeing and calling contractions are occurring all afternoon on a
frequency of greater than five per ten minutes?" to which Beckmann replied
"Correct."
Defense counsel objected
on the grounds that the deposition questions did not use the word
hyperstimulation, which was what the original question asked. The trial court denied the objection,
stating, "That's fine. I'll let
him read it. ... Let's go on."
Counsel next asked, "Well, you defined hyperstimulation as
contractions" when the court cut him off, saying "That has been asked
and answered. Let's not repeat. Go ahead."
The trial court's ruling
is harmless error. The Baskens' counsel
had not previously asked Beckmann's definition of hyperstimulation. However, Beckmann's definition of five
contractions in ten minutes was established on direct and was implicitly
accepted by counsel in the deposition testimony read in as impeachment. Because Beckmann's definition was in the
record and not disputed by the Baskens, the Baskens fail to show prejudice by
the court's ruling preventing the repetition of the definition.
Next, the Baskens argue
that the trial court erroneously limited their cross-exam of the defense
witness Patricia Kempen, an obstetric nurse they had previously called on
adverse. The trial court ordered that
adverse witnesses were not to be re-asked the same questions on cross-exam that
had already been covered. The first
example the Baskens ask us to compare is their counsel's questions to nurse
Kempen:
Q. And what you wrote at 14:40
was "variables with contractions"; isn't that true?
A. Correct.
....
Q. And we can see that the
contractions are occurring very repetitively; correct?
A.
Correct.
Q. And you pointed out the
variable decelerations; correct?
A.
Yes.
Q. But they are occurring
after the contractions, are they not?
A. Variables
can happen whenever.
The trial court
sustained defense counsel's objection to this line of questions on the grounds
that the Baskens' counsel already covered this topic on adverse. The Baskens' counsel next asked: "What you saw at 14:30 and 14:40 caused
you to decrease the Oxytocin; isn't that true?" to which Kempen replied,
"To evaluate the variables."
The Baskens argue that
the record reveals that the court was wrong.
We disagree. The Baskens'
counsel had previously asked Kempen on adverse:
Q. When you came in at 14:30,
you saw ... five to seven contractions in about [a] ten-minute time period;
correct?
A.
I think so.
....
Q. And there were repetitive
decelerations with the variability down; isn't that true?
A. Variable, yes.
The Baskens argue that
the record demonstrates that "[i]n one case the inquiry was about
'variability'; in the other it was about 'variable decelerations.'" We disagree. The Baskens' argument fails to reveal any material difference in
these two lines of questioning. As a
result, we conclude that the trial court's ruling that the subject matter was
covered was reasonable.
Next, the Baskens ask us
to compare nurse Bins' adverse with her cross-examination. On cross, in an attempt to show signs of
oxygen deprivation to the fetus, he asked: "When you came in at [3:30
p.m.] that would have been what you saw ... that the variability is
considerably less than it was at ten o'clock in the morning?" The trial court sustained an objection as
repetitive of adverse, and the Baskens' counsel apologized.
The Baskens argue that
the ruling was error because their cross-examination dealt with the fetal heart
monitor and their earlier questions on adverse dealt with the bottom portion of
the tracing showing uterine activity.[6] We agree.
From the context of the questions, we agree that the two examinations
apparently dealt with different portions of the exhibit and the trial court
erroneously concluded otherwise. Once
again, however, counsel failed to preserve this claim of error for appellate
review by making an offer of proof that his line of questioning dealt with a
different portion of the exhibit. See
§ 901.03(1)(b), Stats.
2.
Trial Court Bias
Next, the Baskens argue
that the trial court's evident lack of impartiality warrants a new trial. We disagree. Whether a judge's partiality, if any, violated a parties' rights
to a fair trial presents a question of law we review de novo. See State v. Sinks, 168 Wis.2d 245, 257, 483 N.W.2d 286, 291 (Ct.
App. 1992). A judge's bias must be
sufficiently severe to translate into partiality; "antagonism or a
strained relationship between counsel and the judge is insufficient." Id. The Baskens summarily list over seventy-five record citations
allegedly demonstrating bias on the part of the trial court. We have reviewed these record citations and
conclude that they do not demonstrate bias on the part of the trial court. The trial court did not permit either side
to introduce repetitive expert testimony.
The record shows that the Baskens' counsel did not accept this
ruling. As a result, counsel was
subject to several admonitions from the trial court. As stated in Oshogay v. Schultz, 257 Wis. 323, 327,
43 N.W.2d 485, 488 (1950): "The court might have been somewhat more
guarded in its remarks, but defendant's counsel invited it."
[I]t
is clear that there was no prejudicial error in the language used under the
circumstances, but, on the contrary, that the purpose of the court was to
confine counsel within proper limits, and to prevent him from persistently
endeavoring to draw out evidence from the witness after rulings of the court
that the same was improper.
Id. at
328, 43 N.W.2d at 485 (quoting Hein v. Mildebrandt, 134 Wis. 582,
589, 115 N.W. 121, 124 (1908)). Here,
the trial court's remarks were not outside the bounds of its discretionary
authority to control the course of trial.
Its rulings were an attempt to make the trial more efficient. The trial court required counsel to
prioritize evidence and emphasize the most important evidence rather than
matters of minimal relevancy. The
Baskens' counsel resisted this ruling, resulting in adverse rulings. Despite what at times might have been
technical error, counsel was afforded a fair and reasonable opportunity to
present evidence.
3. Erroneous Jury Instruction
Next, the Baskens argue
that the trial court erroneously instructed the jury with respect to an
"alternative method of treatment."
Wis J I—Civil 1023; see
also Nowatske v. Osterloh, 198 Wis.2d 419, 447-48, 543 N.W.2d 265,
276 (1996). They argue that everyone
agreed that if the uterus was overstimulated, the Pitocin had to be reduced or
turned off and the "only dispute was whether the evidence established that
there was an overstimulation" and "did Defendants fail to diagnose
this condition."
A trial court has broad
discretion in instructing a jury based on the facts and circumstances of a
case. Fischer v. Ganju, 168
Wis.2d 834, 849, 485 N.W.2d 10, 16 (1992).
"The 'alternative method' instruction is optional and is only to
be given by the trial court when the
evidence allows the jury to find that more than one method of treatment of the
patient is recognized by the average practitioner." Miller v. Kim, 191 Wis.2d 187,
198, 528 N.W.2d 72, 76 (Ct. App. 1995).
The evidence at trial
reasonably supports the instruction.
Whether Pitocin should have been used with Shirley, whether high levels
of Pitocin should have been used and whether it should have been reduced sooner
were subject to much debate among the experts.
Bechtel testified to risks and benefits associated with alternatives
available to him with respect to Shirley's condition. He described the risks of cesarean with a diabetic patient and
the risks of waiting for a spontaneous delivery in a patient suffering
preeclampsia. We conclude that the
instruction given was within trial court discretion.
4. New
Trial in the Interest of Justice.
Finally, the Baskens
argue that they are entitled to a new trial in the interest of justice. They argue that zero damages is not a
rational amount based on the evidence and the verdict indicates the influence
of the court's conduct on the jury. We
disagree. The jury was instructed to
"consider only the damages sustained as a result if any from the treatment
by the defendants." The
instruction required the jury to distinguish and separate the natural results
of damages that flow from Shirley's prenatal condition. Because there was expert testimony that the
baby's condition resulted in abnormalities present in the uterus as a result of
Shirley's prenatal condition, the jury could rationally answer zero damages.
By the Court.—-Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1] The Baskens do not support their statement of facts by citation to the record. See § 809.19(1)(d), Stats. ("The brief must contain ... a statement of facts relevant to the issues presented for review, with appropriate references to the record.") The Baskens' statement of facts was much disputed by the respondents. However, in order to put the issues on appeal in context, we summarize the Baskens' version of facts.
[2] A pathologist who examined the placenta in this case testified that abnormal blood vessels from the bottom of the placenta were characteristic of diabetes and hypertension, indicating the placenta was not getting enough oxygen and nourishment from the mother. His finding of 23% nucleated red blood cells suggests a severe abnormality associated with oxygen deprivation that would take "many, many hours and probably days" to produce. He also testified that the syncytial knotting he observed demonstrate that the placenta was not being properly oxygenated, characteristic of severe placental undernourishment, suggesting a longstanding process of probably several days or more likely several weeks duration due in this case to hypertension and diabetes. Other longstanding abnormalities of weeks if not months were observed.
[3] The Baskens also argue that when asked about Shirley's monitor strip, nurse Bins answered that she did not have enough information to answer the question and that she was unable to tell anything from the limited strip. Evasive answers to adverse exam do not create trial court error. Also, the Baskens' brief cites to "Doc. 112 pp. 225-230" to support their arguments. Because Doc. 112 consist of only 13 pages, none of which is testimony, we assume that the correct reference is to Doc. 113. Also, appellants' brief refers to the exhibit as "exhibit 111"; however, the transcripts of Bechtel's and Bins' testimony refer not to exhibit 111, but "exhibit 11." In this record of over 100 documents and thousands of pages, the need for accurate record citation cannot be over emphasized. See Keplin v. Hardware Mut. Cas. Co., 24 Wis.2d 319, 324, 129 N.W.2d 321, 323 (1964).
[4] Unfortunately, the "diagram" that Peck uses is not identified by exhibit number in the transcript, so we cannot determine whether it is the same page 93 of the nurse's manual that counsel attempted to ask Peck about before the objection.
[5] In any event, the Baskens cite no legal authority for their contention that the videotaped statement is impeachment. See State v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d 370, 378 (Ct. App. 1980) (argument unsupported by legal authority need not be considered).
[6] The Baskens argue that the court's ruling was unfair because the court and defense counsel had secured a daily copy of the trial transcripts but the Baskens had not. The Baskens' argument implies that if their counsel had a daily copy, he would have made an offer of proof at the time of the objection excluding the cross-examination testimony to show that the line of questioning was not repetitive. Neither the Baskens nor the record indicates why their counsel did not have a daily copy.