Expert Opinion Excluded Under Wisconsin Daubert Statute as Not Based on Sufficient Facts or Data

The Wisconsin Court of Appeals recently decided one of the first cases analyzing the exclusion of an expert witness under the recently-revised Wis. Stat. § 907.02(1), Wisconsin’s Daubert statute.  In Nationwide Agribusiness v. August Winter & Sons, Inc., No. 2014AP488 (Wis. Ct. App. Oct. 2, 2014), Nationwide was trying to recover payments it made to its insured for property damage and business interruption expenses caused by an explosion of a boiler which August Winter had installed and placed into service.  Nationwide planned to call a single expert witness, Duane Wolf, to prove causation.  In his report, Wolf opined that an August Winter employee failed to sufficiently tighten a screw, which resulted in the accumulation of excessive gas and, ultimately, caused the explosion.

August Winter filed a pretrial motion to exclude Wolf’s testimony arguing, among other things, that Wolf’s deposition showed that his opinion depended on an assumed fact with no basis.  Wolf assumed that the screw was too loose at the particular time of the explosion and based that assumption on scratch marks the screw left, without explaining why the scratch marks could not have occurred at another point in time.  The circuit court agreed with August Winter that Wolf’s factual assumption lacked support and excluded Wolf’s causation opinion.

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Seventh Circuit Holds That Panhandling Ordinance is Content-Neutral, Constitutional

Recently, the Seventh Circuit issued a decision about regulation of First Amendment rights in which it included what could be read as a disclaimer about the holding it reached: “We do not profess certainty about our conclusions.” See Norton v. City of Springfield, Ill., 13-3581, 2014 WL 4756402 (7th Cir. Sept. 25, 2014). It held that a panhandling ordinance was content-neutral and therefore the city’s prohibition against certain kinds of panhandling was constitutional.

Like many cities, Springfield Illinois has an ordinance that prohibits panhandling in its “downtown historic district.” That district comprises less than 2% of the City’s total area but contains “its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings.” The ordinance only prohibits “oral requests for an immediate donation of money.” Signs requesting money and verbal requests that money be sent later are both acceptable.

Springfield evidently views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some persons (especially at night or when no one else is nearby) may find threatening.

P. 2. There are two kinds of regulations that are content-based and therefore invalid infringements of First Amendment rights: regulation that restricts speech because of the ideas it conveys, and regulation that restricts speech because the government disapproves of its message. The court recognized the split amongst circuits as to whether similar ordinances were content-based and therefore unconstitutional. The Fourth, Sixth, and Ninth Circuits have held similar ordinances invalid, while the First Circuit and the District of Columbia held that similar ordinances were content-neutral and therefore valid. The court also examined Supreme Court precedent that, while not directly analogous, consistently recognized that the regulation in question must be “reasonable.”

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School District Not Liable For One Student’s Bullying of Another

A recent Seventh Circuit case reiterated the high burden to impose liability on a school for one student’s mistreatment of another. In Doe v. Galster, et al., No. 13-2551, a girl sued the Elmbrook School District and several school administrators after severe bullying resulted in criminal charges against her tormentors. She asserted claims against the district under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and a section 1983 claim for violations of the Equal Protection Clause.

The girl, “Jane Doe,” was born in Russia and adopted at the age of two by American parents. The events that gave rise to her claim began during the sixth and seventh grade, a period of time that even the most gregarious and graceful pre-teens know to be painfully awkward if not constantly mortifying.  During those years, several of Doe’s male classmates bullied her and she claims they used gendered and ethnic insults. The bullying even turned violent, at which point three of the boys were charged with criminal battery.

The thought of a girl being bullied so viciously that criminal charges ensued is heartbreaking. The Seventh Circuit used language suggesting that they too understood how reprehensible the bullies’ actions were, calling the classmates’ actions “inexcusable.” However, the frequent thoughtlessness and cruelty of children, which regrettably is not unique to this instance, must color a court’s interpretation of the standards of Title VI and Title IX when determining a school’s liability.  In order to hold the school and its administrators liable,

School officials must have had “actual knowledge” of harassment “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” To have actual knowledge of an incident, school officials must have witnessed it or received a report of it. To impose liability, school officials’ response to known harassment also must have been “clearly unreasonable in light of the known circumstances.”

p. 2-3, quoting Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) and citing Gabrielle M. v. Park Forest–Chicago Heights, Illinois School Dist. 163, 315 F.3d 817, 823–24 (7th Cir.2003).

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Recent Seventh Circuit Case Permits Respondeat Superior Liability for Municipality

Pardon me while I dust the cobwebs out of here and shoo away the crickets. Yes, it’s been a while since we’ve last posted. But there have not been many noteworthy–and published– decisions from Wisconsin courts on which to report.

Lest you fear that we’ve thrown in the blogging towel, I am here to assure you that we are ever vigilant for interesting and significant cases. One such case is Petkus v. Richland County, Wisconsin, — F.3d —, 2014 WL 4073075 (7th Cir 2014).

Petkus operated an animal sanctuary in Richland County in rural southwestern Wisconsin. In 2009, Petkus was arrested after an investigation by the ASPCA related to animal cruelty claims under Wis. Stat. § 173.10. The ASPCA investigation included a search of Petkus’s property and resulted in removal of over 300 animals and prosecution for animal neglect. She was convicted and sentenced to three years of probation. Petkus then sued the County and several of its deputy sheriffs, alleging negligence and violation of 42 U.S.C. § 1983. Petkus argued that the County and deputy sheriffs were liable for the negligence of the ASPCA volunteers who conducted the search under the doctrine of respondeat superior for causing extensive physical damage to her house, barn, and other property and causing emotional distress. She also alleged that the search was unreasonable within the meaning of the Fourth Amendment. A jury found in favor of Petkus, though the judge reduced the damages awarded to her. Both sides appealed.

While normally respondeat superior does not apply to municipalities, the County did not challenge its applicability. Thus, the Court took up the County’s argument that it was not responsible for the damage “because the sheriff’s deputies did not supervise the animal-rights activists who conducted the search and who therefore inflicted the damage.” The Court rejected that argument, explaining rather colorfully,

Police cannot hire the Hell’s Angels to conduct highway patrol and, though failing to train or supervise them, shuck off responsibility when one of the Angels beats a speeder into a bloody pulp with a tire iron.

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Supreme Court Explains What Evidence is Necessary to Prove Constructive Notice in Safe Place Claims

One of the supreme court’s recently issued decision should prove helpful in defending against slip-and-fall cases, especially those that are alleged to be the result of snow and ice. See Kochanski v. Speedway SuperAmerica, 2014 WI 72. While the Kochanski decision was prompted by an erroneous use of the absent witness jury instruction, the court’s analysis necessarily required an application of its rationale to the facts: a plaintiff who slipped and fell on snow as he walked into a convenience store. The result is a decision full of useful points about what types of evidence will and will not support a Safe Place claim under Wis. Stat. § 101.11. Especially in cases relying on constructive notice, this decision should help solidify defenses when a plaintiff offers nothing more than weather records or evidence of post-fall remedial measures.

In Kochanski, the plaintiff requested and was given the absent witness instruction because Speedway relied only on surveillance video and did not call any former employees as witnesses.  The absent witness instruction provides:

If a party fails to call a material witness within [its] control, or whom it would be more natural for that party to call than the opposing party, and the party fails to give a satisfactory explanation for not calling the witness, [the jury] may infer that the evidence which the witness would give would be unfavorable to the party who failed to call the witness.

Wis JI——Civil 410. Kochanski’s attorney used the instruction to argue that Speedway didn’t call any witnesses because the testimony would have been unfavorable. He asked, “Why didn’t [Speedway] call anybody? What would that unfavorable testimony have been? Other evidence that’s missing in this case.” ¶ 7. The jury returned a verdict in favor of Kochanski.

On appeal, Speedway argued that the circuit court erroneously gave the absent witness instruction, and the court of appeals and the supreme court both sided with Speedway. In its analysis, the supreme court discussed the implications of a lack of evidence in support of claims of negligence and of violation of the Safe Place Statute. The court said there was no indication in the record that any current Speedway employees could provide information about the store’s snow removal methods, and the plaintiff did not establish that Speedway had any control over its former employees. Furthermore, Speedway provided the employees’ names and addresses to Plaintiff, but Plaintiff made no showing that he could not compel their appearance at trial by subpoena. “The safe-place claim was Kochanski’s to prove; it was not Speedway’s obligation to disprove it.” ¶ 26.

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Reversals Abound As Wisconsin Supreme Court Term Comes to a Close

Throughout the month of July, the Wisconsin Supreme Court has been issuing the last of its decisions for the 2013-2014 term. While plenty of decisions affirm in whole or in part the decisions of the lower courts, a barrage of reversals has also been released within the last 30 days. The following opinions reversed the lower courts:

Madison Teachers, Inc. v. Scott Walker, 2014 WI 99: This suit challenged four aspects of the controversial budget bill, often referred to simply as “Act 10,” as violating the constitutional associational and equal protection rights of employees. The aspects were the collective bargaining limitations, the prohibition on payroll deductions of labor organization dues, the prohibition of fair share agreements, and the annual recertification requirements. In Dane County Circuit Court, the provisions relating to collective bargaining limitations, union recertifications, and the prohibitions on fair share agreements and payroll deductions of labor organization dues were all invalidated. Upon certification by the court of appeals, the supreme court reversed the decision of the circuit court and upheld Act 10 in its entirety.

Milwaukee Branch of the NAACP v. Scott Walker, 2014 WI 98: 2011 Wis. Act 23 is Wisconsin’s voter photo identification act. It requires voters to present photo identification, and it was challenged under the argument that it would “severely burden a significant number of qualified voters but [is] not reasonably necess[ary] or designed to deter fraud or otherwise effect an important government interest.” The Dane County Circuit Court granted declaratory and injunctive relief and concluded that the act was unconstitutional. The supreme court reversed, holding that “the burdens of time and inconvenience associated with obtaining Act 23-acceptable photo identification are not undue burdens on the right to vote and do not render the law invalid.” ¶3. The court also held that the DOT could not require electors to produce documents for which an elector must pay a fee to a government agency (e.g. birth certificates) in order to obtain a photo identification card for voting.

Legue v. City of Racine, 2014 WI 92 (see Remzy Bitar’s earlier post discussing this decision): In another certification to the supreme court, the justices reviewed the Racine County Circuit Court’s decision dismissing the plaintiff’s action arising from a car accident in which she was hit by a Racine police car that was responding to an emergency dispatch call. The circuit court held that the officer was immune from liability under § 893.80, but the supreme court reversed. It held that the immunity statute did not apply to the facts of the case, which demonstrated that the police officer violated his duty to operate the vehicle “with due regard under the circumstances.”

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Immunity Not Available To Emergency Responders When They Violate Statutory Requirement To Operate “With Due Regard Under The Circumstances For Safety Of All Persons.”

The Supreme Court’s latest immunity decision, Legue v. City of Racine, 2014 WI 92, came out last week. The cases involves a car collision between plaintiff’s car and a City of Racine squad car responding to an emergency dispatch.  Before the collision in the intersection, the officer slowed her squad below the speed limit and activated the lights and sirens.   The case went to trial and, upon post-verdict motions, the trial court dismissed under immunity finding that her decision to enter the intersection was discretionary, along with all her other allegedly negligent decisions as she proceeded through that intersection.

The Supreme Court reverses, concluding that immunity is not available to emergency responders when they violate the statutory requirement to operate an emergency vehicle “with due regard under the circumstances for the safety of all persons.” The Court holds “we hold that the officer’s acts in the instant case are outside the scope of the immunity statute and the officer is liable for negligence.”  2014 WI 92, ¶ 133.


 Some background is important.

The traffic code privileges emergency responders to violate rules of the road during emergencies. Wis. Stat. § 346.03. Emergency vehicle operators may proceed past a stop sign or signal “after slowing down … for safe operation,” § 346.03(2)(b), and giving a visual and audible warning signal, § 346.03(3).

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7th Circuit Revives Risk-Contribution Theory in WI Lead Paint Cases

Yesterday the 7th Circuit reversed a 2010 district court decision which ruled that the “risk-contribution theory” violated substantive due process, breathing new life into plaintiff’s case and likely other previously-pending lead paint cases.

In Gibson v. American Cyanide, et al., plaintiff sued former manufacturers of paint containing white lead carbonate pigments, an ingredient that was ultimately banned in the 1970s.  Plaintiff alleges he was poisoned by the white lead carbonate pigment in the paint in his home.  However, he could not identify what specific manufacturer produced the paint he was exposed to.  Thus, his case relied on the risk-contribution theory established by the Wisconsin Supreme Court in Thomas v. Mallet, 2005 WI 129, 701 N.W.2d 523.  The risk-contribution theory allowed Plaintiff to proceed with his claim without having to identify the specific entity or entities that produced or sold the product producing the harm.

In 2010, the district court in Gibson granted the defendants’ motion for summary judgment, holding that the risk-contribution theory of Thomas v. Mallet violated substantive due process.  This ruling, just as the Thomas v. Mallet ruling, had wide-ranging effects.  As noted in my previous article, defendants in pending lead paint cases sought and received stays pending a resolution of the Gibson appeal.

Now those cases may be able to move forward once again. The 7th Circuit ruling concluded that the Constitution grants broad deference to states to develop their common law, and therefore dismissed the defendants’ primary argument (and the one on which the district court relied) that the risk-contribution theory violates the substantive component of the Due Process Clause.  The court held that the risk-contribution theory is not arbitrary or irrational, and therefore comports with due process.

Further, the 7th Circuit agreed with a Milwaukee County Circuit Court ruling in Clark that stated that the retroactive application of Wis. Stat. § 895.046 (abolishing the risk-contribution theory) violated due process.  Wis. Stat. § 895.046 was passed by the Wisconsin Legislature in 2011 in response to Thomas v. Mallet, and was amended shortly thereafter to have a retroactive effect.

The effect of Gibson and § 895.046 is that any cases which were filed between the Thomas decision and the effective date of § 895.046 are likely to resume moving forward.  The defendants in Clark have moved for leave to appeal the Milwaukee Circuit Court’s rejection of the retroactivity of § 895.046 (Appeal No. 2014AP775–LV), however it seems unlikely that appeal would be granted or successful now that the 7th Circuit has chimed in and agreed with the circuit court’s ruling.  Yet despite all of this, one thing remains clear: § 895.046 still applies to cases filed after its effective date, so no new lead paint cases relying on the risk-contribution theory are expected to be filed under the current status of the law.

State Law Claims Against Generic Brand Defendants Preempted by FDCA

We previously wrote about how state courts have differed in their approaches and findings regarding liability against name-brand drug manufacturers for claims against generic offshoots of the name-brand.  As parties and courts wrestle with these differing approaches, recent case law from the Supreme Court has clarified that many product liability claims normally brought under state law are preempted by federal law under the Food, Drug, and Cosmetics Act (FDCA).  This was recently explained by the court in Wagner v. Pfizer, 2014 WL 3447476 (W.D.Wis.).

In Wagner, the plaintiff alleged that she took several medications of hormone therapy to combat her endometrial hyperplasia, which is a buildup of the uterine lining.  This condition “usually . . . result[s from] too much estrogen and not enough progesterone, and the condition increases the risk of endometrial cancer.” Id.  To attempt to correct this imbalance between estrogen and progesterone, the plaintiff was prescribed various synthetic progestins, including brand name medications and generic brand medications.  Continue reading

No Deliberate Indifference Where Non-emergency Complaints Made Outside Institutional Policy

In Smith v. Randle, 2014 WL 3558448 (N.D.Ill.), the plaintiff inmate alleged that numerous correctional officers, correctional facility administrators, and correctional facility medical staff were deliberately indifferent when they ignored his repeated requests for medical care over the course of two years.   Upon his entry into custody, per correctional facility policy, the inmate was examined by various medical staff.  During the examination, the inmate informed one of the doctors that he had nerve damage in his left arm and was taking medication for that.  He also advised that he suffered from sleep apnea and had thus been sleeping with the assistance of a Continuous Airway Pressure Device (“CPAP”) machine.  The doctor noted these things in the inmate’s medical chart. Continue reading


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