The issue in this case concerns the admission of expert testimony about medical practices and testing procedures during pregnancy and child birth. This medical malpractice case was brought on behalf of Breylon Seifert, who was injured during the birthing process, by his guardian ad litem and parents against their doctor, Dr. Kay Balink. Seifert retained a doctor to act as an expert witness to prove medical malpractice. The trial court admitted the doctor’s testimony under the Daubert test adopted by the Wisconsin Legislature in 2011 Act 2, specifically under Wis. Stat. § 907.02(1). The Daubert test empowers judges to act as “gatekeepers” and exclude unreliable unscientific testimony passed off as “expert testimony.” Seifert ultimately won at trial. On appeal Dr. Balink argued Seifert’s expert’s testimony was not sufficiently reliable because the expert (1) based his testimony solely on his personal preferences for practicing medicine, and (2) the expert did not support his opinion with reference to medical literature (Dr. Balink made other arguments on appeal, but they are not relevant to the Daubert factors.). Dr. Balink further contended that the expert’s personal experience contradicts pertinent medical literature. The Fourth District Court of Appeals affirmed the trial court’s decision holding the circuit court did not abuse its discretion when admitting expert testimony based solely on personal experience. Dr. Balink appealed to the Wisconsin Supreme Court where the case is currently being briefed. Federal courts disagree on whether personal experience alone is enough to satisfy the Daubert test.
The Great Lakes Legal Foundation is keeping an eye on this case because of its potential to impact, and weaken, the standard state courts determine whether to allow in expert testimony at trial.
Seifert Court of Appeals Decision (July 30, 2015)
Reply Brief Defendants-Appellants (Aug. 13, 2014)
Response Brief Plaintiffs-Respondents (July 14, 2014)
First Brief Defendants-Appellants (May 13, 2014)