In the recent court of appeals decision, Seifert ex rel. Scoptur v. Balink, 2015 WI App 59,the court established differing standards between medical doctors and other experts, effectively lowering the threshold that must be met for a medical doctor’s testimony to be admissible as expert testimony.
This medical malpractice case arose out of the defendant doctor’s conduct during the plaintiff’s pre-natal care and delivery. The plaintiff’s medical expert was to testify that the defendant doctor’s decision to perform a vacuum assisted delivery and her failure “to utilize an ultrasound to estimate fetal weight just prior to birth” and “to order a three-hour glucose test for gestational diabetes[,]” fell short of the required standard of care. Id. at ¶ 6. The defendant doctor moved to exclude this testimony on the basis that it was inadmissible pursuant to the Daubert1 standard promulgated in Wisconsin Statute section 907.02(1). The defendant doctor argued that the plaintiff’s expert’s opinion “was not the product of reliable principles or methods.” Seifert, 2015 WI App 59, ¶ 8.Determining that “[the plaintiff’s expert] used a holistic methodology” to formulate his opinion and “medical methodology is ‘a little less susceptible to precise definition’ due to ‘vagaries of medical treatment and diagnosis,’” the court allowed the plaintiff’s expert’s testimony. Id. at ¶ 8.
In determining that “[the plaintiff’s expert’s] conclusions were ‘based on a reasonable medical methodology,’” the court distinguished medical experts from “other scientific or specialized expert[s]” by asserting that medicine is less exact and more uncertain. Id. at ¶¶ 8, 19. In its decision, the court noted that the standard, in regards to medical expert testimony, is flexible, Id. at ¶ 31., and shaky testimony should be challenged on cross-examination rather than being excluded. Id. at ¶ 33. The court further noted that personal preferences can be considered as “personal experience and knowledge when determining the reliability of expert testimony." Id. at ¶¶ 28-29.
The court of appeals’ recent decision in Seifert signifies a line of demarcation between medical experts and other scientific or specialized experts, augmenting the threshold of what is considered admissible testimony for medical experts. This decision, as it currently stands, will affect the admissibility of expert testimony, making it more difficult to bar an expert offering medical opinions.
1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995)