                                                                         2017 WI 2

                  SUPREME COURT              OF     WISCONSIN
CASE NO.:                2014AP195
COMPLETE TITLE:          Braylon Seifert, by his Guardian ad litem, Paul
                         J.
                         Scoptur, Kimberly Seifert and David Seifert,
                         Plaintiffs-Respondents,
                         Dean Health Insurance and BadgerCare Plus,
                         Involuntary-Plaintiffs,
                         v.
                         Kay M. Balink, M.D. and Proassurance Wisconsin
                         Insurance
                         Company,
                         Defendants-Appellants-Petitioners.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           September 6, 2016

SOURCE OF APPEAL:
   COURT:                Circuit Court
   COUNTY:               Grant
   JUDGE:                Craig R. Day

JUSTICES:
   CONCURRED:            ZIEGLER, J. and GABLEMAN, J. concurs, joined by
                         ROGGENSACK, C. J., J.
                          (Opinion filed).
  DISSENTED:             KELLY, J. joined by BRADLEY, R. G., J. dissent
                         (Opinion Filed).
  NOT PARTICIPATING:

ATTORNEYS:
       For        the    defendants-appellants-petitioners,         there        were
briefs by Samuel J. Leib, Brent A. Simerson, and Leib, Knott,
Gaynor, LLC, Milwaukee, WI, and oral argument by Samuel J. Leib.


       For      the     plaintiffs-respondents,      there   was    a    brief     by
Kenneth      M.     Levine,   (pro   hac   vice),   and   Kenneth   M.   Levine    &
Associates, LLC, Brookline, MA, and Paul J. Scoptur and Aiken &
Scoptur, S.C., Milwaukee. Oral argument by Kenneth M. Levine.
                                                                                   2017 WI 2
                                                                       NOTICE
                                                         This opinion is subject to further
                                                         editing and modification.   The final
                                                         version will appear in the bound
                                                         volume of the official reports.
No.       2014AP195
(L.C. No.    2011CV588)

STATE OF WISCONSIN                                   :            IN SUPREME COURT

Braylon Seifert, by his Guardian ad litem, Paul
J. Scoptur, Kimberly Seifert and David Seifert,

              Plaintiffs-Respondents,

Dean Health Insurance and BadgerCare Plus,                                   FILED
              Involuntary-Plaintiffs,                                   JAN 6, 2017
      v.                                                                  Diane M. Fremgen
                                                                       Clerk of Supreme Court
Kay M. Balink, M.D. and Proassurance Wisconsin
Insurance Company,

              Defendants-Appellants-Petitioners.




      REVIEW of a decision of the Court of Appeals.                         Affirmed.


      ¶1      SHIRLEY     S.    ABRAHAMSON,    J.        This    is    a    review       of   a

published     decision     of    the   court    of       appeals.1          The    court      of

appeals affirmed a judgment and an order of the Circuit Court

for   Grant     County,        Craig   R.   Day,     Judge,       in       favor    of     the

plaintiff,     Braylon     Seifert      (by    his       guardian      ad    litem,      Paul

      1
       Seifert ex rel. Scoptur v. Balink, 2015 WI App 59, 364
Wis. 2d 692, 869 N.W.2d 493.
                                                                 No.    2014AP195



Scoptur, and his parents, Kimberly Seifert and David Seifert)

and   against    the   defendants,   Dr.     Kim    Balink     (the    defendant

doctor) and Proassurance Wisconsin Insurance Company.

      ¶2   This medical malpractice case is based on the claim

that the defendant doctor was negligent in the prenatal care of

Braylon Seifert's mother and in Braylon's delivery in May 2009.

      ¶3   Complications arose during Braylon's delivery.                 Almost

immediately after Braylon's head appeared, the head retracted,

indicating a shoulder dystocia, that is, indicating that the

shoulder was stuck, prohibiting the body from being delivered.

The defendant doctor undertook a series of steps to resolve the

dystocia   and    delivered   the    baby.         Braylon's    shoulder     was

injured, however, and the growth and function of Braylon's left

arm are permanently and severely limited.

      ¶4   Braylon claims that the defendant doctor's care during

delivery fell below the standard of reasonable care and caused

him to have a permanent brachial plexus injury, that is, to have

a permanent injury to the nerves that animate his left arm.
      ¶5   Braylon's     obstetrical     expert      witness,    Dr.     Jeffrey

Wener, testified that he was familiar with the standard of care

for family practitioners practicing obstetrics with regard to

prenatal care, labor, and delivery.                Dr. Wener explained the

reasonable care to be used in a case like the instant one and

opined that the care provided and the procedures used by the

defendant doctor fell below the standard of reasonable care.

      ¶6   The defendants challenged Dr. Wener's testimony in the
circuit court, in the court of appeals, and in this court as
                                     2
                                                                      No.   2014AP195



inadmissible under the recently amended Wis. Stat. § 907.02(1)

(2013-14).2       This amended statute governing the admissibility of

expert evidence was enacted in 2011.                   It adopted the federal

evidentiary standard codified in Federal Rule of Evidence 702

(2000),    which      in    turn     adopted     the     reliability        standard

explicated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993).

     ¶7     The    new     Daubert   aspect     of     Wis.   Stat.    § 907.02(1)

became effective February 1, 2011, and applies in the instant

case.3    It requires that expert testimony be based on sufficient

facts or data and that the expert testimony be the product of

reliable principles and methods.4              The expert witness must apply
     2
       All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise indicated.
     3
       Wisconsin Stat. § 907.02(1) provides as follows,                         with
emphasis added to show the new language added in 2011:

     If   scientific,   technical,   or  other   specialized
     knowledge will assist the trier of fact to understand
     the evidence or to determine a fact in issue, a
     witness qualified as an expert by knowledge, skill,
     experience,   training,   or  education,  may   testify
     thereto in the form of an opinion or otherwise, if the
     testimony is based upon sufficient facts or data, the
     testimony is the product of reliable principles and
     methods, and the witness has applied the principles
     and methods reliably to the facts of the case.
     4
       The case law uses the words "methodology" and "methods"
interchangeably.    See, e.g., Fuesting v. Zimmer, Inc., 421
F.3d 528, 535 (7th Cir. 2005), opinion vacated on other grounds
on reh'g, 448 F.3d 936 (7th Cir. 2006) ("The district court must
also, in keeping with its gatekeeper's duty, assess the
reliability of the methodology the expert has employed in
arriving at his opinion.").


                                        3
                                                                                    No.     2014AP195



the principles and methods reliably to the facts of the case.5

These three aspects of the Daubert standard are often referred

to as the "reliability standard."

       ¶8      Both      the    circuit         court     and     the       court    of     appeals

concluded in the instant case that Dr. Wener's testimony was

admissible under § 907.02(1).

       ¶9      The jury's special verdict found that the defendant

doctor      was    negligent         in   the     delivery       of    Braylon       and     in   the

prenatal care of his mother and that this negligence was a cause

of    injury      to    Braylon.          The     jury    further       found       that    Braylon

should be awarded $100,000 for past pain, suffering, disability,

and    disfigurement           and    $1,650,000         for    future       pain,        suffering,

disability, and disfigurement.

       ¶10     The      jury    did       not    award     any    damages          to     Braylon's

parents.          The    jury     did      not    find     that       the    defendant       doctor

violated informed consent.                      These two rulings are not at issue

in this review.

       ¶11     The      circuit      court       entered    judgment         for     Braylon      for
$135,000 in medical expenses and $750,000 in pain and suffering,

"as reduced pursuant to Wisconsin Statute, plus interest thereon

provided by law."6

       5
       See Daniel D. Blinka, The Daubert Standard in Wisconsin:
A Primer, Wis. Lawyer, Mar. 2011, at 61 ("Only when the witness
identifies her principles and methods is the trial court in a
position to assess their reliability").
       6
       See Wis. Stat. § 893.55, which caps noneconomic damages at
$750,000 in medical malpractice cases.


                                                  4
                                                                       No.    2014AP195



    ¶12   On three occasions, the circuit court carefully and

extensively     considered         the   defendants'          challenges      to        the

admissibility    of      Dr.      Wener's        testimony     under    Wis.       Stat.

§ 907.02(1):      at     a     "Daubert"         hearing   before      trial,      on     a

challenge to Dr. Wener's testimony at trial, and on motions

after verdict.     The circuit court ruled in favor of admitting

Dr. Wener's testimony at each of these junctures.

    ¶13   Seeking a new trial, the defendants raise three issues

in this court:

    I.    Did the circuit court err in admitting the testimony

          of Dr. Jeffrey Wener, Braylon's medical expert?                               The

          defendants claim that because Dr. Wener's testimony

          was experience-based,                 his method was unreliable               and

          inadmissible under Wis. Stat. § 907.02(1).

    II.   Did    several          remarks       of   Braylon's      counsel      during

          closing argument violate the circuit court's orders in

          limine, prejudice the jury, and warrant a new trial?

    III. Should this court grant a new trial in the interests
          of justice pursuant to Wis. Stat. § 751.06?

    ¶14   The    court       of   appeals       affirmed     the   judgment     of      the

circuit court, concluding that a new trial was not warranted.

    ¶15   For the reasons set forth, we affirm the decision of

the court of appeals affirming the circuit court's judgment and

order that a new trial was not warranted.                  We conclude:

    I.    The circuit court did not err in applying Wis. Stat.

          § 907.02(1)          and   admitting       as    reliable     Dr.     Wener's


                                            5
                                                                 No.   2014AP195



             expert medical testimony on the standard of reasonable

             care based on his personal experiences.

      II.    The   circuit   court   did   not    err   in   concluding      that

             Braylon's   counsel's   remarks      during     closing   argument

             did not constitute prejudicial error justifying a new

             trial.

      III. A new trial should not be granted pursuant to Wis.

             Stat. § 751.06 in the interests of justice.

      ¶16    We shall address each issue in turn.              The facts and

law relevant to each issue are stated in the discussion of that

issue.

                                      I

      ¶17    The first issue entails the defendants' challenge to

the testimony of Braylon's medical expert, Dr. Jeffrey Wener, as

unreliable and inadmissible under Wis. Stat. § 907.02(1).                    Dr.

Wener testified about the standard of reasonable care in the

instant case and how the defendant doctor breached the standard.

      ¶18    We review the circuit court's admission of Dr. Wener's
testimony for compliance with the Daubert reliability standard

codified in Wis. Stat. § 907.02(1).              The defendants' challenge

was   that   Dr.   Wener's   experience-based       testimony     is   not   the

product of a reliable method.              We conclude that Dr. Wener's

testimony was reliable and admissible under § 907.02(1).                      Our

reasoning in reaching the conclusion that the circuit court did

not erroneously exercise its discretion in admitting Dr. Wener's

testimony proceeds as follows:


                                      6
                                                                              No.        2014AP195



A.   We    set     forth       the     facts       of    the       defendant            doctor's

     prenatal care of Braylon's mother and conduct during

     Braylon's delivery.               See ¶¶19-28, infra.

B.   We examine undisputed facets of the case, including

     aspects of Dr. Wener's testimony and the standard of

     reasonable care applicable to the defendant doctor in

     the instant case.               See ¶¶29-37, infra.

C.   We summarize Dr. Wener's testimony about the standard

     of    reasonable           care     of        a     family         practice          doctor

     practicing       obstetrics.                  Dr.       Wener's      testimony           was

     based    on    his    personal           experiences;              his   opinion         was

     that the defendant doctor breached that standard.                                        See

     ¶¶38-49, infra.

D.   We discuss the reliability standard set forth in Wis.

     Stat.       § 907.02(1)         that      governs         admission            of    expert

     evidence.       We pay special attention to assessing the

     method used by a medical expert based on the expert's

     personal experiences.                  See ¶¶50-93, infra.
E.   We    set    forth        the   standard           for    reviewing            a    circuit

     court's determination that medical expert testimony is

     admissible under the reliability standard incorporated

     in Wis. Stat. § 907.02(1).                     See ¶¶94-100, infra.

F.   Against       this    backdrop           of       the    teachings         about         the

     reliability          of     the     methodology               of    medical          expert

     opinion testimony based on personal experiences and

     the     standards           for     reviewing             a        circuit          court's
     determination         of        reliability             and    admissibility,             we
                                        7
                                                                 No.     2014AP195



           review the circuit court's ruling and conclude, as did

           the court of appeals, that the circuit court did not

           erroneously exercise its discretion in admitting Dr.

           Wener's expert medical testimony on the standard of

           reasonable   care   based     on    his   personal    experiences.

           Accordingly, we affirm the decision of the court of

           appeals affirming the circuit court's admission of Dr.

           Wener's testimony.    See ¶¶101-146, infra.

                                         A

    ¶19    The defendant doctor, a family practitioner, provided

prenatal care to Braylon's mother during regular prenatal visits

and also delivered Braylon.

    ¶20    During the regular prenatal visits, as relevant here,

the defendant doctor measured the mother's weight, tested the

mother   for   gestational   diabetes,       and   performed    fundal    height

measurements.     Obstetricians use the results of these tests to

estimate the baby's birth size.        An obese or diabetic mother and

a large fundal height indicate macrosomia (a large baby).                     The
baby's expected weight influences decisions made leading up to

and during the delivery.

    ¶21    Braylon's mother weighed 269 pounds at the start of

her pregnancy, and she gained approximately 36 pounds during the

pregnancy.

    ¶22    The defendant doctor used a one-hour glucose screening

test to determine whether the mother had gestational diabetes.

The test result was 131 mg/dL.         A three-hour glucose screening
test diagnoses gestational diabetes more accurately.
                                   8
                                                                 No.       2014AP195



    ¶23    The   defendant   doctor       also    performed     fundal      height

measurements, which, according to Dr. Wener, involves "literally

putting a tape measure on mom's pubic bone and then extending

the tape to the top of the fundus, which is the top of the mom's

uterus."

    ¶24    Obstetricians may also perform an ultrasound near the

date of delivery to get a more accurate estimate of the baby's

size.   The defendant doctor did not perform an ultrasound.

    ¶25    The   defendant   doctor       estimated    that     Braylon      would

weigh eight pounds, eight ounces at birth.                 Braylon's actual

birth weight was nine pounds, twelve ounces.

    ¶26    Braylon's mother arrived at the hospital on May 28,

2009 for inducement of labor.         Initially, things went well.              The

mother was completely dilated and ready to push by 11:00 p.m.

After an hour, the baby had started descending but Braylon's

mother had grown tired.

    ¶27    The   defendant   doctor       then   decided   to   use    a    vacuum

device to assist in the delivery.            This device is essentially a
suction cup that attaches to the baby's head and is used to aid

the mother's efforts.        Thirteen minutes and four contractions

later, the baby's head delivered.

    ¶28    Right after the baby's head emerged, it retracted into

the mother (the     "turtle sign") and the defendant doctor was

faced with a shoulder dystocia.           A shoulder dystocia occurs when

one or both of the baby's shoulders become stuck inside the

mother's body and prevent delivery.              The defendant doctor then
performed a series of well-known obstetrical maneuvers (physical
                                      9
                                                                               No.   2014AP195



manipulations to mother and baby) to resolve the dystocia.                                The

baby    was    delivered        approximately            three     minutes       after    the

diagnosis of shoulder dystocia.

                                               B

       ¶29    Before     we    delve    into       the    substance      of    Dr.   Wener's

challenged testimony, we turn to undisputed facets of the case,

including aspects of Dr. Wener's testimony and the standard of

reasonable      care      for     a    family           practice     doctor      practicing

obstetrics.

       ¶30    The   parties       do     not       dispute       that    the     applicable

standard of care under Wisconsin law is reasonable care for a

family practice doctor practicing obstetrics and that a family

practice doctor may be liable for injury caused by breach of

that standard of care.

       ¶31    Nor   do    the    parties       dispute       that    the      jury   in   the

instant      case   was       properly    instructed          on     this      standard    of

reasonable care.          The circuit court presented the standard of

reasonable     care,      as    set    forth       in    Wisconsin      Jury    Instruction
Civil 1023, to the jury as follows:

       In   treating   and   diagnosing  Kimberly   Seifert's
       pregnancy, labor, and delivery, Dr. Kay Balink was
       required to use the degree of care, skill, and
       judgment which reasonable family practice doctors
       practicing obstetrics would exercise in the same or
       similar circumstances, having due regard for the state
       of medical science at the time of the pregnancy,
       labor, and delivery. A doctor who fails to conform to
       this standard is negligent.

       The burden is on the plaintiffs to prove that Dr. Kay
       Balink was negligent.    A doctor is not negligent;
       [sic] however, for failing to use the highest degree

                                           10
                                                                              No.   2014AP195


     of care, skill, and judgment, or solely because a bad
     result may have followed her care, and treatment
     and/or diagnosis.

     The standard you must apply in determining if Dr. Kay
     Balink is negligent is whether Dr. Kay Balink failed
     to use the degree of care, skill, and judgment which
     reasonable   family   practice   doctors   practicing
     obstetrics would exercise given the state of medical
     knowledge at the time of the treatment and diagnosis
     in issue. (Emphasis added.)
     ¶32   The parties do not dispute that Braylon was required

to   introduce     expert    testimony           to       describe      the     care     that

satisfies the standard of reasonable care in the instant case

and to detail the defendant doctor's failure to furnish care

that met this standard.

     ¶33   Braylon offered Dr. Wener's testimony to establish the

standard   of    reasonable         care     for      a    family       practice       doctor

practicing obstetrics.          The parties do not dispute that Dr.

Wener is a qualified expert; that Dr. Wener has "scientific,

technical, or other specialized knowledge" that could assist the

trier of fact; and that if admissible, his testimony would be

relevant   and     helpful     to     the    trier         of       fact.      Wis.     Stat.

§ 907.02(1).

     ¶34   The parties also do not dispute:

        • Braylon suffered a shoulder dystocia.

        • Immediately after the delivery, Braylon's left upper

           arm was not functioning, and within a few days after

           birth    he   was    diagnosed          with         a    permanent      brachial

           plexus injury.




                                            11
                                                                           No.    2014AP195



        • Braylon's brachial plexus injury limits the growth and

             function       of    the     arm,      required      surgery,       and    will

             require continued therapy to ameliorate the injury.

        • An        obese        mother,      gestational         diabetes,        and     a

             macrosomic          baby     increase         the    risk     of     shoulder

             dystocia.

      ¶35    The    circuit       court    stated      that      the   parties     do    not

seriously question that the application of excessive traction

beyond what the fetus can withstand may be a cause of severe

brachial plexus injuries during childbirth, although the circuit

court acknowledged that there were contentions that other causes

may   have   been    present       in   the       instant   case.        Relatedly,      the

parties do not dispute that the use of a vacuum during delivery

may increase the risk of a brachial plexus injury.

      ¶36    Collectively, these shoulder dystocia risk factors——

obese mother, gestational diabetes, macrosomic baby, excessive

traction,     and    vacuum-assisted          delivery——are         undisputed;        these

are the principles that guide Dr. Wener's testimony.
      ¶37    The defendants' challenge to Dr. Wener's testimony is

that his testimony is not the product of reliable methods, that

is,   the    defendants      contend       that      Dr.    Wener's      methodology      is

unreliable.        Specifically, the defendants argue that Dr. Wener's

testimony is not the product of reliable methods                                under Wis.

Stat. § 907.02(1) because the testimony was based on Dr. Wener's

personal experiences.             In evaluating the defendants' challenge,

we begin by reviewing the substance of Dr. Wener's testimony.
                                              C
                                              12
                                                                        No.    2014AP195



    ¶38    Dr. Wener testified at length about the standard of

reasonable      care   in    the    instant    case      and     opined       that    the

defendant doctor breached that standard of reasonable care.                           Dr.

Wener's   lengthy      expert      medical    testimony        was    based     on    his

personal experiences, and he was subjected to extensive cross-

examination.

    ¶39    Dr. Wener described his extensive qualifications.                           He

stated that he is a board certified obstetrician-gynecologist

(OB-GYN) who practices in a suburb outside of Chicago.                          An OB-

GYN provides medical care to women.                    The obstetric portion of

the practice relates to pregnancy; the gynecological portion of

the practice relates to female patients who are not pregnant.

    ¶40    As    to    his   obstetrics      practice,     Dr.       Wener    estimated

that he has delivered between 7,500 and 8,000 babies and has

encountered between 37 and 40 instances of shoulder dystocia in

his 36-year career.

    ¶41    In addition to private practice, Dr. Wener has taught

medical   students       and     residents     and      was     chairman       of     the
obstetrics-gynecology          department     at   a    hospital      for     about    20

years.    As chairman, he was responsible for the quality of care

provided by physicians practicing in his department, and he sat

on the medical executive committee of the hospital.                          He further

testified that he examines medical records for both plaintiff

and defense attorneys.             Dr. Wener is a member of the American

College of Obstetricians and Gynecologists.

    ¶42    Dr. Wener did not preface each of his statements with
the words "a reasonable family doctor practicing obstetrics."
                                        13
                                                                        No.     2014AP195



The   clear      inference    from   Dr.    Wener's        testimony,    taken       as   a

whole, is that he was setting forth and applying a standard of

reasonable care for prenatal care and delivery applicable to a

family    practitioner        practicing    obstetrics.          Furthermore,         the

jury instructions declared that the burden was on Braylon to

prove    that     the   defendant    doctor       was   negligent    and      that    the

defendant doctor had to conform to the standard of care "which

reasonable family practice doctors practicing obstetrics would

exercise in the same or similar circumstances."                   See ¶31, supra.

      ¶43     Dr. Wener's experience and testimony demonstrate that

he is familiar with the standard of reasonable care for family

practice doctors practicing obstetrics.

      ¶44     Dr. Wener concluded that the defendant doctor in the

instant case breached the standard of reasonable care in several

respects. He testified that several risk factors should have

alerted the defendant doctor to the risk of shoulder dystocia,

such as the pre-pregnancy weight of the mother and the weight

she gained during pregnancy, the risk of gestational diabetes,
and the risk of a large baby.

      ¶45     In Dr. Wener's opinion, these three interrelated risk

factors were important because, added together, they increased

the risk of shoulder dystocia.                  Dr. Wener explained, "A doctor

has to take care of every patient individually.                     And in doing so

there are risk factors that every patient has.                    And you have to

look at the patient as a whole and look at all of the risk

factors     as   they   are    applicable       to   the    patient."         Dr.   Wener
opined to a reasonable degree of medical certainty that, based
                                           14
                                                                         No.     2014AP195



on his education, training, experience, and the facts of the

instant case, it was more likely than not that the mother was a

gestational      diabetic     because       of    her    weight    and     a    one-hour

glucose test result of 131 mg/dL.

      ¶46   Dr.    Wener    asserted       that    the    defendant      doctor      fell

below the standard of reasonable care                     for a family practice

doctor practicing obstetrics by failing to order a three-hour

glucose test for Braylon's mother.                Dr. Wener concluded that the

standard of reasonable care required a three-hour test when the

result from the one-hour test was over 130 mg/dL and the mother

was obese.        The three-hour glucose test would have been more

likely to diagnose gestational diabetes, a condition associated

with increased risk of shoulder dystocia.

      ¶47   Dr. Wener also gave his opinion to a reasonable degree

of medical certainty that, in view of the mother's size and the

one-hour test result, the defendant doctor breached the standard

of   reasonable     care    for     a    family    practice       doctor       practicing

obstetrics    by   failing     to       perform   an     ultrasound      on    Braylon's
mother immediately prior to delivery.                     An ultrasound, in Dr.

Wener's opinion, would have given the defendant doctor a better

estimate    of    Braylon's    fetal       weight       and   whether    Braylon      was

macrosomic (that is, a large baby), a condition that Dr. Wener

associated with a greater risk of shoulder dystocia.

      ¶48   In addition, Dr. Wener testified that the defendant

doctor's use of vacuum assistance during the birthing process

breached the standard of reasonable care by increasing the risk
of shoulder dystocia.          Explaining that it is risky to use the
                                           15
                                                               No.   2014AP195



vacuum on a patient exhibiting the risk factors that Braylon's

mother exhibited, Dr. Wener opined——to a reasonable degree of

medical certainty——that a vacuum should not have been applied at

all in the instant case.

    ¶49    Dr. Wener also testified to a reasonable degree of

medical    certainty    that   the    defendant    doctor      breached   the

standard   of    reasonable    care    for   a   family   practice    doctor

practicing obstetrics by applying excessive traction beyond what

the fetus could withstand in attempting to resolve the shoulder

dystocia   and   that   this   excessive     traction   (not   the   mother's

pushing) had a causative effect on Braylon's brachial plexus

injury.

                                      D

    ¶50    With the substance of Dr. Wener's testimony in mind,

we turn to the reliability standard governing the admission of

expert evidence set forth in the 2011 amendment to Wis. Stat.

§ 907.02(1).     The following emphasized language in Wis. Stat.

§ 907.02(1) adopting the reliability standard was added in 2011.

    If   scientific,   technical,   or  other   specialized
    knowledge will assist the trier of fact to understand
    the evidence or to determine a fact in issue, a
    witness qualified as an expert by knowledge, skill,
    experience,   training,   or  education,  may   testify
    thereto in the form of an opinion or otherwise, if the
    testimony is based upon sufficient facts or data, the
    testimony is the product of reliable principles and
    methods, and the witness has applied the principles
    and methods reliably to the facts of the case.
    ¶51    The 2011 amendment to Wis. Stat. § 907.02(1) changed
the law to mirror Federal Rule of Evidence 702, which codifies


                                      16
                                                                 No.   2014AP195



Daubert     v.    Merrell     Dow   Pharmaceuticals      Inc.,   509   U.S. 579

(1993), and its progeny.7

      ¶52     Before 2011, when the legislature adopted the Daubert

reliability        standard    in    amended   Wis.      Stat.    § 907.02(1),

Wisconsin case law applied the "relevancy test" to the admission

of   expert      evidence:     Expert   evidence   was    admissible    if   the

witness was qualified, the evidence assisted the trier of fact,

and the evidence was relevant.8

      ¶53     Wisconsin case law had rejected both Frye's "general

acceptance test"9 and the federal Daubert reliability standard.10

      7
       See 2011 WI Act 2, WI S. Amend. Memo, 2011 Jan. Spec.
Sess. S.B. 1 ("This language [in Wis. Stat. § 907.02(1)] is
identical to the language of Rule 702 of the Federal Rules of
Evidence."); State v. Giese, 2014 WI App 92, ¶17, 356
Wis. 2d 796; 854 N.W.2d 687 ("In January 2011, the legislature
amended § 907.02 to make Wisconsin law on the admissibility of
expert testimony consistent with 'the Daubert reliability
standard embodied in Federal Rule of Evidence 702.'") (quoting
State v. Kandutsch, 2011 WI 78, ¶26 n.7, 336 Wis. 2d 478, 799
N.W.2d 865).
      8
       For discussion of pre-Daubert Wisconsin case law, see
Daniel D. Blinka, Expert Testimony and the Relevancy Rule in the
Age of Daubert, 90 Marq. L. Rev. 173 (2006).
      9
       Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923),
stated the rule as follows:

      The rule is that the opinions of experts or skilled
      witnesses are admissible in evidence in those cases in
      which the matter of inquiry is such that inexperienced
      persons are unlikely to prove capable of forming a
      correct judgment upon it . . . .

              . . . .

      [W]hile courts will go a long way in admitting expert
      testimony deduced from a well-recognized scientific
                                                     (continued)
                                        17
                                                                             No.    2014AP195



      ¶54    Professor        Daniel    Blinka        concludes          that       Daubert

"created a reliability standard that is less a bright-line test,

as   it     is   often    assumed      to    be,     and    more        an    evidentiary

porridge."11

      ¶55    The instant case is this court's first occasion to

apply amended Wis. Stat. § 907.02(1).                      We do not write on a

blank slate.       Wisconsin Stat. § 907.02(1) mirrors Federal Rule

of   Evidence    702     as   amended   in       2000,12   and     we    may       look   for

      principle or discovery, the thing from which the
      deduction is made must be sufficiently established to
      have gained general acceptance in the particular field
      in which it belongs.
      10
       A law student commentator concluded that the Wisconsin
Supreme Court nudged the relevancy standard closer to Daubert to
the point that the relevancy standard became "Daubert lite,"
citing State v. Hibl, 2006 WI 52, ¶52, 290 Wis. 2d 595, 714
N.W.2d 194 (explaining that circuit courts have a limited
gatekeeping function because the relevancy test requires a
showing that the expert's opinion was "reliable enough to be
probative"). Kristen Irgens, Wisconsin Is Open for Business or
Business Just as Usual? The Practical Effects and Implications
of 2011 Wisconsin Act 2, 2012 Wis. L. Rev. 1245, 1256-57.
      11
       Blinka, supra note 5, at 19 ("[The Daubert reliability
standard] is purportedly more liberal than the once-dominant
general acceptance test ('too cold') yet more demanding than the
relevancy standard ('too hot').").

     The post-Daubert case law indicates that rejecting expert
testimony is "the exception rather than the rule." See Federal
Rule Evidence 702 Advisory Committee Note (2000).
      12
       In 2000, the following underlined language was added to
Federal Rule of Evidence 702 to reflect Daubert:

      If   scientific,  technical,  or   other  specialized
      knowledge will assist the trier of fact to understand
      the evidence or to determine a fact in issue, a
      witness qualified as an expert by knowledge, skill,
                                                     (continued)
                                            18
                                                            No.    2014AP195



guidance and assistance in interpreting and applying § 907.02(1)

to the Daubert case and its progeny, to the Advisory Committee




    experience,   training, or education,  may  testify
    thereto in the form of an opinion or otherwise., if
    (1) the testimony is based on sufficient facts or
    data, (2) the testimony is the product of reliable
    principles and methods, and (3) the witness has
    applied the principles and methods reliably to the
    facts of the case.

     Federal Rule of Evidence 702 was also amended in 2011 "as
part of the restyling of the Evidence Rules to make them more
easily understood and to make style and terminology consistent
throughout the rules," but no substantive changes were intended.
Federal Rule of Evidence 702 Committee Notes (2011).

    Federal Rule of Evidence 702 now provides:

    A witness who is qualified as an expert by knowledge,
    skill, experience, training, or education may testify
    in the form of an opinion or otherwise if:

    (a) the expert's scientific, technical, or other
    specialized knowledge will help the trier of fact to
    understand the evidence or to determine a fact in
    issue;

    (b) the   testimony   is   based   on    sufficient    facts   or
    data;

    (c)   the  testimony   is   the         product   of   reliable
    principles and methods; and

    (d) the expert has reliably applied the principles and
    methods to the facts of the case.


                                 19
                                                                         No.   2014AP195



Notes to Federal Rule of Evidence 702,13 and to federal and state

cases interpreting the text of Rule 702 or an analogous state

law.        The federal or state interpretations, however, are not

necessarily dispositive.14

       ¶56    As we have previously noted, the federal reliability

standard for the admissibility of expert evidence is explained

in   Daubert.        After     Daubert, the United States Supreme Court

decided General Electric Co. v. Joiner, 522 U.S. 136 (1997), and

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).                           This

trilogy      of    cases    delineated   the    contours     of    the    reliability

standard.

       ¶57    In    Daubert——a       products     liability        case——the     Court

rejected      Frye's       general   acceptance       test   and    concluded      that

Federal Rule of Evidence 702 contemplates that trial courts have

a    gatekeeping           obligation.         This     gatekeeping        obligation

       13
       Under the Rules Enabling Act, 28 U.S.C. § 2072, the
United States Supreme Court is authorized to promulgate rules of
practice and procedure for the federal courts.     This authority
is exercised by the Judicial Conference of the United States.
The Conference promulgates and changes rules of practice and
procedure in the federal courts subject to oversight by the
Court. For the Federal Rules of Evidence, the Judicial
Conference is aided in its rule-making powers by the Evidence
Advisory Committee; the members of and reporter to this
Committee are appointed by the Chief Justice of the United
States Supreme Court.     Paul R. Rice and Neals-Erik William
Delker, Federal Rules of Evidence Advisory Committee: A Short
History of Too Little Consequence, 191 F.R.D. 678, 679 (2000).
       14
       State v. Poly-America, Inc., 164 Wis. 2d 238, 246, 474
N.W.2d 770 (1991) ("When a state statute is modeled after a
federal rule, we look to the federal interpretation of that rule
for guidance and assistance.").


                                         20
                                                                           No.    2014AP195



"assign[s]    to       the   trial     court     the   task   of    ensuring       that   a

scientific expert is qualified" and that his or her "testimony

both rests on a reliable foundation and is relevant to the task

at hand."    Daubert, 509 U.S. at 597.

     ¶58    In     the       instant    case,      the    parties        challenge     the

reliability       of     Dr.    Wener's     expert       medical        testimony.15      We

therefore focus our discussion on the reliability prong of Wis.

Stat. § 907.02(1), specifically the reliability of the methods

used by Dr. Wener.16           The trial court must be satisfied that the

testimony    is    reliable       by    a   preponderance          of    the     evidence.

Daubert, 509 U.S. at 593; Wis. Stat. § 901.04.


     15
       The parties do not dispute that Dr. Wener was qualified
as an expert and that his opinion was relevant in the instant
case.
     16
       Wisconsin Stat. § 907.02(1) states that testimony must be
based on "reliable principles and methods."    Only Dr. Wener's
"method" is challenged in the instant case. For an illustration
of the difference between principles and methods, the Federal
Rule of Evidence 702 Advisory Committee Note (2000) gives the
following illustration:

     For example, when a law enforcement agent testifies
     regarding the use of code words in a drug transaction,
     the principle used by the agent is that participants
     in such transactions regularly use code words to
     conceal the nature of their activities. The method
     used by the agent is the application of extensive
     experience   to    analyze   the    meaning   of   the
     conversations. So long as the principles and methods
     are reliable and applied reliably to the facts of the
     case, this type of testimony should be admitted.

     Several cases tend to collapse principles and methods into
a singular "reliability" analysis.


                                            21
                                                                  No.   2014AP195



     ¶59   Daubert makes the trial court a gatekeeper, not a fact

finder.    When credible, qualified experts disagree, a litigant

is entitled to have the jury, not the trial court, decide which

expert to believe.     Dorn v. Burlington N. Santa Fe R.R. Co., 397

F.3d 1183, 1196 (9th Cir. 2005).17

     ¶60   Although the Daubert Court focused its discussion on

scientific   testimony,   the    Supreme    Court    later    clarified     that

Daubert's inquiry applies not just to scientific evidence, but

to   all   expert    opinions,     "whether    the    testimony         reflects

scientific, technical, or other specialized knowledge."                    Kumho

Tire, 526 U.S. at 149.

     ¶61   The     reliability     standard   "entails        a    preliminary

assessment    of    whether      the    reasoning     or     methodology      is

scientifically      valid."        Daubert,    509     U.S.       at     592-93.

Reliability depends "solely on principles and methodology, not




     17
       "Experts often disagree.   A trial court's determination
that the proffered testimony of one expert witness is reliable
and helpful does not necessarily mean that the contradictory
testimony of another witness, concerning the same subject matter
by using a different methodology, is not also reliable and
helpful."   4 Jack B. Weinstein, Weinstein's Federal Evidence
§ 702.05[3] (2d ed. 2011), citing Federal Rule of Evidence 702
Committee Note (2000).

     "Since its inception, the courts have sought to apply Rule
702 in a manner that preserves the jury's traditional power to
weigh evidence and determine witness credibility."   29 Charles
Alan Wright & Victor Gold, Federal Practice and Procedure:
Evidence, § 6268.2 (2d ed. 2016), citing DiCarlo v. Keller
Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000).


                                       22
                                                                   No.    2014AP195



on the conclusions that they generate."                 Daubert, 509 U.S. at

595.

       ¶62   To guide the reliability analysis, the Daubert court

provided a nonexhaustive18 list of factors that make scientific

evidence sufficiently reliable for admission:                   "(1) whether the

methodology can and has been tested; (2) whether the technique

has been subjected to peer review and publication; (3) the known

or potential rate of error of the methodology; and (4) whether

the    technique     has   been    generally    accepted   in    the    scientific

community."        Heller v. Shaw Indus., Inc., 167 F.3d 146, 152 (3d

Cir. 1999), citing Daubert, 509 U.S. at 592-93.

       ¶63   The    Federal       Rules    Advisory    Committee       added   five

factors to those stated in                Daubert   to guide decisions about

reliability:

       (1) Whether experts are "proposing to testify about
       matters growing naturally and directly out of research
       they have conducted independent of the litigation, or
       whether they have developed their opinions expressly
       for purposes of testifying.    Daubert v. Merrell Dow
       Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.
       1995).

       (2) Whether the expert has unjustifiably extrapolated
       from an accepted premise to an unfounded conclusion.
       See General Elec. Co. v. Joiner, 522 U.S. 136, 146
       (1997) (noting that in some cases a trial court "may
       conclude that there is simply too great an analytical
       gap between the data and the opinion proffered").



       18
       "Many factors will bear on the inquiry, and we do not
presume to set out a definitive checklist or test."  Daubert,
509 U.S. at 593.


                                           23
                                                  No.   2014AP195


    (3) Whether the expert has adequately accounted for
    obvious alternative explanations.        See Claar v.
    Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994)
    (testimony excluded where the expert failed to
    consider other obvious causes for the plaintiff's
    condition).    Compare Ambrosini v. Labarraque, 101
    F.3d 129 (D.C. Cir. 1996) (the possibility of some
    uneliminated causes presents a question of weight, so
    long as the most obvious causes have been considered
    and reasonably ruled out by the expert).

    (4) Whether the expert "is being as careful as he
    would be in his regular professional work outside his
    paid litigation consulting."   Sheehan v. Daily Racing
    Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997).     See
    Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176
    (1999) (Daubert requires the trial court to assure
    itself that the expert "employs in the courtroom the
    same level of intellectual rigor that characterizes
    the practice of an expert in the relevant field").

    (5) Whether the field of expertise claimed by the
    expert is known to reach reliable results for the type
    of opinion the expert would give. See Kumho Tire Co.
    v. Carmichael, 119 S. Ct. 1167, 1175 (1999) (Daubert's
    general acceptance factor does not "help show that an
    expert's testimony is reliable where the discipline
    itself lacks reliability, as for example, do theories
    grounded   in   any    so-called   generally  accepted
    principles of astrology or necromancy."); Moore v.
    Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998)
    (en banc) (clinical doctor was properly precluded from
    testifying   to   the   toxicological   cause of   the
    plaintiff's respiratory problem, where the opinion was
    not sufficiently grounded in scientific methodology);
    Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th
    Cir. 1988) (rejecting testimony based on "clinical
    ecology" as unfounded and unreliable)."19
    ¶64   Considering the broad range of cases in which expert

evidence arises, courts have not been constrained by the listed


    19
       See commentary following the 2000 amendment to Federal
Rule of Evidence 702. See also Blinka, supra note 5, at 19.


                              24
                                                                   No.    2014AP195



factors.     How courts apply these factors necessarily varies case

by   case,    expert   by     expert.        "Too    much   depends      upon    the

particular circumstances of the particular case at issue" to

impose hard and fast rules.             Kumho Tire, 526 U.S. at 150.               A

trial     court    conducts    its      reliability     analysis      with      wide

latitude.20       Kumho Tire emphasized that the application of the

Daubert factors is a flexible inquiry:                  "[T]he law grants a

district court the same broad latitude when it decides how to

determine reliability as it enjoys in respect to its ultimate

reliability determination."          Kumho Tire, 526 U.S. at 142.

     ¶65     Thus, the trial court may consider some, all, or none

of the factors listed to determine whether the expert evidence

is reliable.       Federal Rule of Evidence 702 Advisory Committee's

Note (2000).

     ¶66     Because   the    instant     case      involves   expert      medical

testimony based on a witness's personal experiences, we discuss

the reliability of expert medical opinion based on the expert's

personal experiences.



     20
       "[W]e   conclude   that  the   trial   judge  must   have
considerable leeway in deciding in a particular case how to go
about determining whether particular expert testimony is
reliable.   That is to say, a trial court should consider the
specific factors identified in Daubert where they are reasonable
measures of the reliability of expert testimony."     Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (emphasis
added). "[W]hether Daubert's specific factors are, or are not,
reasonable measures of reliability in a particular case is a
matter that the law grants the trial judge broad latitude to
determine." Kumho Tire, 526 U.S. at 153.


                                        25
                                                                             No.    2014AP195



       ¶67    Daubert affirms that experience-based expert evidence

may pass muster as a method under the reliability requirement.

Though the Daubert Court stated that "[p]roposed testimony must

be supported by appropriate validation——i.e.,                             'good grounds,'

based on what is known," the Court also stated that the very

structure of the rules of evidence suggest that experience can

be "good grounds."             Daubert, 509 U.S. at 590.

       ¶68    Daubert's reference to the structure of the rules of

evidence      was     a    reference      to    the       evidentiary     rule     that   all

witnesses except experts generally must have firsthand knowledge

of   the     events       to   which     they    testify.21         The    Daubert     court

inferred      that    this      "relaxation          of    the   usual    requirement      of

firsthand knowledge . . . is premised on an assumption that the

expert's opinion will have a reliable basis in the knowledge and

experience of this discipline."                  Daubert, 509 U.S. at 592.

       ¶69    Likewise, the Kumho Tire Court explicitly recognized

that    in   some     cases,      "the    relevant         reliability     concerns       will

focus upon personal knowledge or experience."                             Kumho Tire, 526
U.S. at 150.

       ¶70    In     Kumho      Tire,     the        United      States    Supreme    Court

specifically          addressed         the      application         of     the      Daubert

reliability analysis to experience-based, non-scientific expert

testimony.         The Court required a witness relying on experience


       21
       Compare Federal Rule of Evidence 701 (firsthand knowledge
requirement for witnesses) with Federal Rule of Evidence 703 (no
firsthand knowledge requirement for experts).


                                                26
                                                                       No.    2014AP195



to   offer     some     articulated       rationale     supporting     his     or    her

opinion.        This     Kumho     Tire    requirement     is    not    "impossibly

demanding."22

       ¶71    The Kumho Tire Court recognized that "there are many

different      kinds     of   experts,      and     many   different         kinds   of

expertise," Kumho Tire, 526 U.S. at 150, so the factors set

forth in Daubert and Kumho Tire "may or may not be pertinent in

assessing reliability, depending on the nature of the issue, the

expert's       particular        expertise,       and    the    subject       of     his

testimony."      Kumho Tire, 526 U.S. at 150.

       ¶72    The Kumho Tire Court emphasized that in the case of a

non-scientific expert, "the relevant reliability concerns may

focus upon personal knowledge or experience." Kumho Tire, 536

U.S. at 150.          The point, according to Kumho Tire, is to ensure

that     an   expert,    "whether     basing      testimony     upon   professional

studies or personal experience, employs in the courtroom the

same level of intellectual rigor that characterizes the practice

of an expert in the relevant field."                    Kumho Tire, 526 U.S. at
152.23




       22
            Blinka, supra note 5, at 61
       23
       See also Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th
Cir. 1996) (The purpose of the rule announced in Daubert "was to
make sure that when scientists testify in court they adhere to
the same standards of intellectual rigor that are demanded in
their professional work.").

                                                                        (continued)
                                           27
                                                                      No.    2014AP195



      ¶73    The     Federal      Advisory     Committee     Note    to     the   2000

Amendment to Rule 702 also recognizes that expert evidence based

on personal experiences can meet the reliability test and offers

the following general guidance for evaluating experience-based

testimony:

      If the witness is relying solely or primarily on
      experience, then the witness must explain how that
      experience leads to the conclusion reached, why that
      experience is a sufficient basis for the opinion, and
      how that experience is reliably applied to the facts.24
      ¶74    The trial court's gatekeeping function in regard to

experience-based testimony, however, "requires more than simply

'taking the expert's word for it.'"25

      ¶75    An expert cannot establish that a fact is generally

accepted merely by saying so.26                Trial courts do not have "to

admit opinion evidence that is connected to existing data only

by   the    ipse   dixit    of    the   expert."      Such   an     application     is

     "Kumho at least made it clear that, in addition to gauging
reliability in light of factors specific to the area of
expertise involved, a trial court also may consider whether the
expert's testimony holds together based on logic and common
sense." 29 Wright & Gold, supra note 17, § 6267.
      24
           Federal   Rule    of    Evidence     702   Advisory      Committee     Note
(2000).
      25
           Federal   Rule    of    Evidence     702   Advisory      Committee     Note
(2000).
      26
       "A supremely qualified expert cannot waltz into the
courtroom and render opinions unless those opinions are based
upon some recognized scientific method and are reliable and
relevant under the test set forth by the Supreme Court in
Daubert."   Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th
Cir. 1999).


                                          28
                                                             No.    2014AP195



unreliable because "there is simply too great an analytical gap

between the data and the opinion offered."            Gen. Elec. Co. v.

Joiner, 522       U.S. 136, 146 (1997).

     ¶76   Thus, for example, a federal district court excluded

proffered expert testimony because the witness's experience was

not extensive enough to indicate reliability for testimony based

on personal experience.         The expert's "sample size" (himself

alone) was too small:

     Essentially, his proposed testimony boils down to the
     conclusion that because he has been able to perform
     police work successfully despite his monocular vision,
     then the Plaintiff will likewise be successful. This
     is a leap of faith that the Court is unwilling to
     make, as there is nothing inherent about [the
     witness's] own personal experience as a monocular
     visioned person which logically or scientifically
     leads to a supportable conclusion that other persons
     with monocular vision necessarily, or even probably,
     would have the same abilities that he has.
Trevino      v.     City   of   Rock       Island   Police    Dep't,      91

F. Supp. 2d 1204, 1207 (C.D. Ill. 2000).27

     ¶77   Case      law   demonstrates,     nonetheless,    that     courts
frequently    admit    experience-based     testimony,   especially     when

     27
       Even when expert testimony relies on adequate principles,
trial courts may still exclude the testimony when the
methodology used to reach a conclusion based on those principles
is unsupported. McGovern ex rel. McGovern v. Brigham & Women's
Hosp., 584 F. Supp. 2d 418, 425-26 (D. Mass. 2008) (excluding
expert's "opinion [that was] was connected to existing data
about the risk of stroke after vacuum extraction only by his own
ipse dixit."). The reliability standard requires an explanation
of how the methodology used by the expert is derived from the
witness's experience and led to the conclusion reached.
McGovern, 384 F. Supp. 2d at 426.


                                    29
                                                                                No.   2014AP195



expert    medical    evidence          is    offered.         Expert       medical    opinion

based on experience alone, "or experience in conjunction with

other knowledge, skill, training or education" may constitute a

reliable     basis.28        "In       certain        fields,      experience         is    the

predominant, if not sole, basis for a great deal of reliable

expert testimony."29

     ¶78    Medicine        is    an        example    of     such     a    field     because

medicine      "is   based        on     specialized           as   distinguished           from

scientific      knowledge."30                When      evaluating          specialized       or

technical expert opinion testimony,                         "the relevant reliability

concerns    may     focus    upon       personal        knowledge          or   experience."

Kumho Tire, 526 U.S. at 150.

     ¶79    The classic medical school texts explain that medicine

is scientific but not entirely a science.31                          "Medicine is not a

science but a learned profession, deeply rooted in a number of

sciences and charged with the obligation to apply them for man's

benefit."32       Much of medical decision-making relies on judgment


     28
       Blinka, supra note 5, at 60 (quoting Federal Rule of
Evidence 702 Advisory Committee Note (2000)).
     29
          Federal    Rule    of       Evidence        702    Advisory       Committee      Note
(2000).
     30
       Sullivan v. U.S. Dep't of the Navy, 365 F.3d 827, 834
(9th Cir. 2004).
     31
          Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010).
     32
       Primiano v. Cook, 598 F.3d at 565 (quoting the "classic
medical school text" Cecil Textbook of Medicine 1 (James B.
Wyngaarden & Lloyd H. Smith Jr. eds., 17th ed. 1985)).


                                               30
                                                                No.    2014AP195



and is difficult to quantify or even to assess qualitatively.

In medicine, "knowledge is often uncertain," "[t]he human body

is complex," and "etiology is often uncertain."33                 Furthermore,

practical and ethical concerns prevent "studies calculated to

establish    statistical   proof."34         Physicians    must     use   their

knowledge and experience as a basis for weighing known factors

along     with   "inevitable     uncertainties"      to   "mak[e]     a   sound

judgment."35

     ¶80    That Daubert lends its analysis more favorably to more

objective    sciences   does   not   bar     the   testimony   of   physicians

applying    their   experience    and    clinical    methods.36       That   the

knowledge is uncertain "does not preclude the introduction of



     33
       United States v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th
Cir. 2006).
     34
          Sandoval-Mendoza, 472 F.3d at 655.
     35
       Primiano, 598 F.3d at 565 (quoting the "classic medical
school text" Harrison's Principles of Internal Medicine 3
(Dennis L. Kasper et al. eds., 16th ed. 2005)).
     36
        See, e.g., 29 Wright & Gold, supra note 17, § 6269.8
(medical expert "opinion[s] also may be based on extensive
personal observations, professional experience, education, and
training even where the medical expert has not conducted an
epidemiological study and even where the expert's opinion is not
generally accepted and is unsupported by peer review");
Sandoval-Mendoza, 472 F.3d at 656 (a well qualified physician
with   sufficient   expertise   could  reliably  testify   about
defendant's brain tumor to establish an entrapment defense);
Primiano, 598 F.3d at 568 (abuse of discretion to exclude
doctor's testimony in products liability case based on his
experiences alone, but noting that medical literature had not
addressed a similar situation).


                                        31
                                                                          No.    2014AP195



medical expert opinion testimony when medical knowledge permits

the assertion of a reasonable opinion."37

     ¶81       "A trial court should admit medical expert testimony

if physicians would accept it as useful and reliable."38                                In

other words, expert medical opinion testimony is reliable if the

knowledge underlying it "has a reliable basis in the knowledge

and experience of the [relevant] discipline."39

     ¶82       In Schneider ex rel. Estate of Schneider v. Fried, 320

F.3d 396, 406 (3d Cir. 2003), the federal Third Circuit Court of

Appeals explained that a physician's "experience render[ed] his

testimony reliable [and] demonstrate[d] that his testimony [was]

based     on    'good      grounds.'"       In    light       of    his   considerable

professional        experience,      the    physician's            testimony     on    the

standard       of   care    was   reliable,      even   if    the     content     of   the

literature cited was irrelevant.                 The federal court of appeals


     37
       Sandoval-Mendoza, 472 F.3d                 at    655    (internal        quotation
marks & quoted source omitted).
     38
          Sandoval-Mendoza, 472 F.3d at 655.
     39
       Sandoval-Mendoza, 472 F.3d at 655 (quoting Kumho Tire,
526 U.S. at 149 (quoting Daubert, 509 U.S. 579, 592)); Zuchowicz
v. United States, 140 F.3d 381 (2d Cir. 1998) (district court
had discretion to admit opinions of clinical medical experts
about cause of plaintiff's disease because they were based on
methods reasonably relied on by clinical physicians, even though
the drug had not been previously linked to that disease).

     "In a non-scientific context, the reliability of an
expert's methodology often will be a function of accepted
practice in the area of expertise in question." 29 Wright &
Gold, supra note 17, § 6268.1.


                                           32
                                                     No.   2014AP195



concluded that the magistrate judge abused his discretion by

excluding the expert testimony.40

     ¶83     The Schneider court stated that expert testimony does

not have to be subject to peer review to be admitted under Rule

702; the physician's experience renders his or her testimony

reliable and demonstrates that the testimony is based on good

grounds.41     The court recognized, however, that the degree to

which the medical expert is qualified implicates the reliability

of the testimony.    Schneider, 320 F.3d at 406.

     ¶84     Similarly, the federal Sixth Circuit Court of Appeals

held that a district court abused its discretion by excluding a

physician's testimony based on extensive, relevant experience

when the physician had not cited medical literature supporting


     40
        Schneider ex rel. Estate of Schneider v. Fried, 320
F.3d 396 (3rd Cir. 2003), involved a claim that a decedent
received cardiac care that fell below the standard of care. The
court provided the following discussion in regard to this
expert:

     The   record   establishes   that    as  an   invasive
     cardiologist, who normally diagnoses heart conditions,
     Dr. Semigran was routinely present during surgical
     procedures   and   regularly   advised  interventional
     cardiologists during the course of those procedures.
     Dr. Semigran also testified that he would consult with
     interventional cardiologists about which drugs should
     or should not be given to patients undergoing
     angioplasties.

Schneider, 320 F.3d at 406.
     41
       Daubert, 509 U.S. at 590 ("Proposed testimony must be
supported     by     appropriate   validation——i.e.,     good
grounds . . . .").


                                 33
                                                    No.   2014AP195



his view.   Dickenson v. Cardiac & Thoracic Surgery of E. Tenn.,

388 F.3d, 976, 980 (6th Cir. 2004).       Requiring an expert to

demonstrate a familiarity with accepted medical literature or

published standards in order for the testimony to be reliable in

the sense contemplated by Federal Rule of Evidence 702 is an

erroneous statement of the law.     Dickenson, 388 F.3d at 980-81

(citing Federal Rule of Evidence 702, Advisory Committee Note

expressly contemplating that an expert may testify on the basis

of experience).42




     42
       Kumho Tire, 526 U.S. 137, 156 ("[N]o one denies that an
expert might draw a conclusion from a set of observations based
on extensive and specialized experience."); Feliciano-Hill v.
Principi, 439 F.3d 18, 24-25 (1st Cir. 2006) (physician's expert
testimony met Daubert/Rule 702 standards even though he failed
to   support   his   diagnosis  with   citations   to   published
authorities; physician offered a "routine diagnosis" on patient
he had examined, related to common condition well within his
expertise); Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th
Cir. 2001) ("There is no requirement that a medical expert must
always cite published studies on general causation in order to
reliably conclude that a particular object caused a particular
illness." (internal quotation marks & quoted source omitted)).

                                                      (continued)
                               34
                                                   No.   2014AP195



    ¶85   The case law teaches that Daubert's role of ensuring

that the courtroom door remains closed to junk science is not

served by excluding medical expert testimony that is supported

by extensive relevant medical experience.43   Such exclusion is

rarely justified in cases involving medical experts.   Dickenson,

388 F.3d at 981.   See also Daniel W. Shuman, Expertise in Law,

Medicine, and Health Care, 27 J. Health Pol., Pol'y & L. 267




     The defendants cite several cases for the proposition that
to offer reliable testimony, Dr. Wener should have based his
testimony on medical literature. The cases are distinguishable
from the instant case. For example, although the court noted in
Berk   v.  St.   Vincent's  Hospital  &   Medical   Center,  380
F. Supp. 2d 334 (S.D.N.Y. 2005), that the excluded expert cited
"no germane medical literature," the expert's report was
excluded for other reasons:    the expert's report was unsworn,
was based on incorrect factual assumptions, and offered no
methodology other than the expert's say-so.           Berk, 380
F. Supp. 2d at 354-56.   In contrast, Dr. Wener's testimony was
given under oath; Dr. Wener relied on Braylon's and his mother's
medical reports; Dr. Wener offered a clinical methodology that
applied accepted risk factors to the facts of the instant case;
and the defendants' experts offered testimony that actually
supported Dr. Wener's testimony.
    43
       The phrase "junk science" is ordinarily used as an
epithet to refer to research or information that is not
credible.    See Kumho Tire, 526 U.S. at 159 (Scalia, J.,
concurring) (Kumho makes clear that the discretion it endorses
is "discretion to choose among reasonable means of excluding
expertise that is fausse and science that is junky.").


                               35
                                                              No.     2014AP195



(2001) (characterizing the effect of Daubert and Kumho cases on

claims of medical expertise as "much ado about little").44

     ¶86   Instead     of    exclusion,    the   appropriate        means    of

attacking "shaky but admissible" experience-based medical expert

testimony is by "[v]igorous cross-examination, presentation of

contrary   evidence,   and    careful    instruction   on   the     burden   of

proof . . . ."   Daubert, 509 U.S. at 597.




     44
       The Wisconsin Medical Society and American Medical
Association filed an amicus brief urging that this court
"recognize that medical opinions supported by unsystematic
clinical   observations  have  reliability  limited   to  those
situations where physicians would not be expected to produce
extrinsic support for their contentions but presumptively fail
to cross the Daubert reliability threshold when tendered to
establish the standard of care in a medical negligence claim."
See Brief of Amicus Curiae Wisconsin Medical Society & American
Medical Association at 9-10.

     This argument is not supported in the case law. Expecting
on-point medical literature to define a physician's standard of
care in the penumbra of clinical situations is unreasonable.
See Michelle M. Mello, Using Statistical Evidence to Prove the
Malpractice Standard of Care: Bridging Legal, Clinical, and
Statistical Thinking, 37 Wake Forest L. Rev. 821, 857 (2002).
The author states:

     For clinical scenarios involving a high degree of
     independent judgment and careful attention to the
     individual characteristics of each patient, expert
     opinion testimony tailored to the particular situation
     at issue in the malpractice case truly does have an
     advantage over reliance on practice guidelines or
     other standards formulated ex ante[,] . . . derived
     from a population of patients that may not resemble
     the plaintiff . . . .

Id. at 846.


                                    36
                                                                             No.   2014AP195


     Once evaluated and deemed sufficiently reliable for
     admission, that expert opinion [based on personal
     experience] is submitted to the "capabilities of the
     jury and of the adversary system generally."
Lapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012) (citing

Daubert, 509 U.S. at 596).45

                                          E
     ¶87   Our     next    task      is       to    determine     the    standard       for

reviewing the circuit court's gatekeeping                        determination under

Wis. Stat. § 907.02(1).           We refer to federal law to guide our
analysis of the standard for review.

     ¶88   We      examine     the            circuit       court's     rulings        both

independently as a question of law and also under the erroneous

exercise of discretion standard.

     ¶89   The     interpretation             and     application       of     a   statute

presents    a    question         of      law        that     this      court      decides

independently of the circuit court and court of appeals but

benefiting from their analyses.                    State v. Steffes, 2013 WI 53,

¶15, 347   Wis. 2d 683, 832            N.W.2d 101.            It follows that this

court decides whether the circuit court applied the proper legal

standard   under    Wis.     Stat.     § 907.02(1)          in   the    first      instance

independently of the circuit court and the court of appeals but

benefiting from their analyses.                     Lees v. Carthage College, 714

F.3d 516, 520 (7th Cir. 2013) ("[w]hether the district court


     45
       "Shaky but admissible evidence is to be attacked by cross
examination, contrary evidence, and attention to burden of
proof, not exclusion."     Primiano, 598 F.3d at 564 (citing
Daubert, 509 U.S. at 596).


                                              37
                                                                       No.     2014AP195



applied the appropriate legal framework for evaluating expert

testimony is reviewed de novo"); Lewis v. CITGO Petroleum Corp.,

561 F.3d 698, 705 (2009) ("we review de novo whether the court

employed     the      correct        legal        standard     in     reaching        its

admissibility decision").

       ¶90   Once   satisfied        that    the    circuit    court    applied       the

appropriate legal framework, an appellate court reviews whether

the    circuit      court        properly    exercised        its    discretion        in

determining      which     factors    should       be   considered     in    assessing

reliability,46      and     in    applying        the   reliability    standard        to

determine whether to admit or exclude evidence under Wis. Stat.

§ 907.02(1).        Gen.     Elec.    Co.     v.    Joiner,    522    U.S. 136,       141

(1997).47

       ¶91   Once    the    circuit       court    selects    the    factors     to   be

considered in assessing reliability, the circuit court measures

the expert evidence against these factors.                      The circuit court

also    determines    whether       the     witness     faithfully     and   properly

applied the reliability principles and methodology to the facts
of the case.48

       46
       Blinka, supra note 5, at 19 (citing Kumho Tire, 526 U.S.
at 152).
       47
       "[T]he law grants the district court great discretion
regarding the manner in which it conducts that evaluation" of
the admissibility of expert testimony. "[W]e have not required
that the Daubert inquiry take any specific form . . . ." Lewis
v. CITGO Petroleum Corp., 561 F.3d 698, 704 (2009).
       48
       Blinka, supra note 5, at 19, 60 (citing Federal Rule
Evidence 702 Advisory Committee Note (2000)).


                                            38
                                                                No.   2014AP195



     ¶92     In   other   words,   a   circuit   court   has   discretion   in

determining the reliability of the expert's principles, methods,

and the application of the principles and methods to the facts

of the case.49

     ¶93     A trial court's decision on admissibility or exclusion

of expert evidence is an erroneous exercise of discretion when a

decision rests upon a clearly erroneous finding of fact, an

erroneous conclusion of law, or an improper application of law

to fact.50




     49
       In Kumho Tire, the Supreme Court held that trial courts
have great latitude in determining the methods by which they
test the reliability of expert testimony.     Indeed the federal
abuse of discretion standard "applies as much to the trial
court's decisions about how to determine reliability as to its
ultimate conclusion."   United States v. Charley, 189 F.3d 1251,
1261 n.11 (10th Cir. 1999) (quoting Kumho Tire, 526 U.S. at
152).    "[T]he law grants a district court the same broad
latitude when it decides how to determine reliability as it
enjoys in respect to its ultimate reliability determination."
Kumho Tire, 526 U.S. at 142. See also Gen. Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997) ("abuse of discretion is the proper
standard by which to review a district court's order to admit or
exclude scientific evidence.").

     "Our case law has recognized that experts in various fields
may rely properly on a wide variety of sources and may employ a
similarly wide choice of methodologies in developing an expert
opinion."   Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1020
(7th Cir. 2000).
     50
       The federal cases state:   "An abuse of discretion may
occur as a result of an errant conclusion of law, an improper
application of law to fact, or a clearly erroneous finding of
fact."   McDowell v. Philadelphia Housing Auth., 423 F.3d 233,
238 (3d Cir. 2005).

                                                                 (continued)
                                       39
                                                                 No.    2014AP195



                                       F

    ¶94    Against    this     backdrop    of   the    teachings      about   the

reliability   of     expert    medical     testimony    based    on     personal

experiences and the standards for appellate review of a circuit

court's   determination       of   reliability,   we    decide     whether    the

circuit court erred in admitting Dr. Wener's testimony.                        We

conclude, as did the court of appeals, that the circuit court

did not erroneously exercise its discretion in admitting Dr.

Wener's testimony as reliable under Wis. Stat. § 907.02(1).

    ¶95    In the first instance, we note, as a matter of law,

that the circuit court applied the proper reliability standard

under Wis. Stat. § 907.02(1).




     In Wisconsin, the cases use the phrase "erroneous exercise
of discretion" in place of the phrase "abuse of discretion."
The two phrases are equivalent. We did not change the standard
of review, just the locution. We concluded that the term "abuse
of discretion" carries unjustified negative connotations.    City
of   Brookfield  v.   Milwaukee   Metro.   Sewerage  Dist.,   171
Wis. 2d 400, 423, 491 N.W.2d 484, 493 (1992). See King v. King,
224 Wis. 2d 235, 248, 590 N.W.2d 480 (1999) ("A circuit court
erroneously exercises its discretion if it makes an error of law
or neglects to base its decision upon facts in the record.");
Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981):

    A discretionary determination . . . must demonstrably
    be made and based upon the facts appearing in the
    record[,]   in   reliance  on  the   appropriate   and
    applicable   law[,] . . . and  most   importantly,   a
    discretionary determination must be the product of a
    rational mental process by which the facts of record
    and law relied upon are stated and are considered
    together for the purpose of achieving a reasoned and
    reasonable determination.


                                      40
                                                                      No.    2014AP195



      ¶96    Because the circuit court applied the correct Daubert

reliability standard, our review of the circuit court's decision

to admit Dr. Wener's testimony is limited to reviewing whether

the circuit court erroneously exercised its discretion.                            See

Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376, 380 (1st

Cir. 2000).

      ¶97    The circuit court made a good, clear record.                    Based on

the circuit court's extensive oral rulings on the admissibility

of Dr. Wener's testimony as reliable, it is apparent that the

circuit court examined federal and state case law applying the

Daubert     standard       to    medical        expert    testimony    and     fairly

considered the defendants' challenges to the admissibility of

Dr. Wener's testimony.

      ¶98    Because the circuit court was careful in exploring the

applicable law and in setting out its reasoning, we can more

easily review the circuit court's rulings to determine whether

the   circuit      court   erroneously      exercised      its   discretion.       We

commend     the    circuit      court's    efforts       and   conclude     that   the
circuit court's rulings establishing that Dr. Wener's personal

clinical experiences satisfy the reliability requirement, are

well reasoned, and are not an erroneous exercise of discretion.

      ¶99    The    defendants     make     the     following    three      principal

arguments supporting their position that Dr. Wener's testimony

was unreliable under Wis. Stat. § 907.02(1) and was not applied

reliably:

      (1)    Dr. Wener's testimony was unreliable under Wis. Stat.
             § 907.02(1) because Dr. Wener did not apply a sound
                                           41
                                                                          No.     2014AP195



              methodology:       Dr.    Wener's      testimony          rested    on     his

              qualifications and "personal preferences."

      (2)     Dr. Wener's testimony was unreliable under Wis. Stat.

              § 907.02(1) because Dr. Wener did not rely on medical

              literature or other recognized sources of reliability.

      (3)     Dr. Wener's application of his opinions to the facts

              of the case was flawed because Dr. Wener's testimony

              was internally inconsistent.

      ¶100 We address each of the defendants' arguments in turn.

                                            (1)

      ¶101 To use defendants'               counsel's      words, the defendants'

challenge to Dr. Wener's testimony is based on "method, method,

method."

      ¶102 The       circuit    court   ruled       that    Dr.    Wener's       testimony

satisfied      the    Wis.      Stat.    § 907.02(1)         reliability         standard

because his methodology was reliable:                      Dr. Wener's methodology

is    a    "classic      medical    methodology,"          looking       at     recognized

medical indicators.
      ¶103 The        circuit       court     explained       that        Dr.        Wener's

testimony,      taken     as    a   whole,        demonstrated       that      Dr.     Wener

formulated an opinion about the standard of reasonable care of

family practice doctors practicing obstetrics on the basis of

his       experiences,     as    opposed      to     simply       his    own     personal

preference.       Thus, Dr. Wener had a reliable basis for rendering

an opinion.

      ¶104 In contrast, the defendants contend that Dr. Wener was
really just opining based on his "personal preferences."                                 The
                                            42
                                                                         No.         2014AP195



defendants assert that an expert cannot establish that a fact is

generally accepted merely by saying so.                        They argue that Dr.

Wener's testimony had to be based on the methods and procedures

of science rather than on his subjective belief or unsupported

speculation.        According to the defendants, Dr. Wener's opinion

about the standard of reasonable care was connected to existing

data only by his own ipse dixit.

     ¶105 The circuit court regarded Dr. Wener's methods as the

ordinary   methodology       of   medicine:           conscientious        use       of   the

thousands of instances in which he had delivered babies and made

decisions about the care of individual patients and his teaching

and hospital experiences relating to obstetrics.                         Echoing case

law, the circuit court declared that medicine is "not a science,

but a learned profession deeply rooted in a number of sciences."

     ¶106 The circuit court viewed Dr. Wener's methodology as

essentially     a     comparison      of        the    instant      case        to     other

deliveries, reasoning that the Daubert factors were not helpful

in   evaluating      this    methodology         because       a   medical       expert's
personal   clinical         experience          is    not      subject     to        precise

measurements.       "[B]ecause the standard of care is determined by

the care customarily provided by other physicians, it need not

be    scientifically         tested        or         proven       effective . . . ."

Palandjian v. Foster, 842 N.E.2d 916, 921 (Mass. 2006).

     ¶107 Dr. Wener gave ample testimony about what a family

practice doctor practicing obstetrics should have known and how

a family practice doctor practicing obstetrics should have acted
in the instant case.          Dr. Wener's testimony about the standard
                                           43
                                                                     No.    2014AP195



of     reasonable       care   of   family     practice      doctors      practicing

obstetrics was based on his knowledge of family practice doctors

practicing obstetrics gained through education, his decades of

delivering    thousands        of   babies,    his   repeated     observations       in

decades of clinical experiences, and his numerous teaching and

supervisory experiences in important positions in the field of

obstetrics and gynecology.                He used his many experiences to

arrive at an opinion in the instant case that is sufficiently

similar to his vast array of clinical experiences over decades

of practice.

       ¶108 Dr. Wener demonstrated to the circuit court that he

had formed an opinion about the standard of reasonable care of a

family    practice       doctor     practicing       obstetrics     and    that     the

opinion had a reliable basis.

       ¶109 The circuit court concluded on the basis of the record

and case law that it had adequate grounds to view Dr. Wener's

testimony as not subjective belief, unsupported conjecture, or

ipse     dixit.         The    circuit    court      ruled   that    Dr.        Wener's
methodology was reliable based on Dr. Wener's extensive personal

experiences.       In other words, Dr. Wener's testimony was based on

"good grounds."         Daubert, 509 U.S. at 590.

       ¶110 Characterizing          its   pretrial     decision     as     "a     close

call,"    and looking at the vagaries of medical treatment and

diagnosis,        the    circuit     court     concluded     that    Dr.        Wener's

testimony was "reliably based on a reliable medical methodology

looking at recognized factors of the standard of care."


                                          44
                                                                        No.    2014AP195



       ¶111 The circuit court declared that Dr. Wener looked at

recognized risk factors and, using his own varied experiences,

concluded that the defendant doctor breached the standard of

reasonable     care     by    failing      to     weigh     these     risk     factors.

According to the circuit court, Dr. Wener used his knowledge and

experience as a basis for weighing known factors along with the

inevitable uncertainties to make a sound judgment.                       Dr. Wener's

testimony was not based on his personal preference, ruled the

circuit court; it was based on clinical experience, a reliable

methodology.

       ¶112 The circuit court determined that the way in which Dr.

Wener "adds [the factors up] is debatable, but that's not the

same as saying the way that Dr. Wener adds them up is not

reliable."     According to the circuit court, Dr. Wener explained

the bases for his opinions in sufficient detail to permit the

jury to evaluate his conclusions.

       ¶113 The circuit court obviously relied on Daubert case law

in making its determination of reliability and used the language
and    reasoning     set     forth   in    the    case     law   to    rule    on    the

reliability    and    admissibility         of    Dr.     Wener's     expert    medical

testimony based on personal experiences.

       ¶114 The circuit court regarded the defendants' contention

that    Dr.   Wener's      opinions       are    unreliable      because      they   are

untestable as failing from the outset.                     According to Daubert,

testability is not a prerequisite to admission.                         Testability,

like all of the Daubert factors, is a suggested way to assess
methodology, not a required way to assess methodology.
                                           45
                                                                                    No.       2014AP195



      ¶115 The circuit court ruled that Dr. Wener's testimony was

testable    and     met        the    Wis.      Stat.           § 907.02(1)    standard.             The

circuit court reasoned that "the testable principles[ ] are the

biological       and     physiological               and        anatomical     principles         that

inform the conclusions that arise."

      ¶116 The circuit court also explained that the defendants

could     (and    did)         test      Dr.     Wener's           testimony       through       cross

examination,       further           explaining           that     although    "medicine         is    a

science,     it     is     not       a    quantified             science.          It    is    not    a

measurement, in many respects.                       It is not engineering."

      ¶117 The         circuit           court       further         compared       Dr.       Wener's

testimony with the testimony of defense experts, including Dr.

Michelle Grimm, a defense expert on medical engineering, and Dr.

Dwight Jonathan Rouse, an obstetrician with additional training

in maternal fetal medicine.

      ¶118 According to the circuit court, some defense expert

testimony        actually        supported            Dr.        Wener's     testimony.              For

example,     both        Dr.     Wener         and        the     defense     expert      witnesses
testified that applying excessive traction beyond what the fetus

can     withstand        during          childbirth             violates     the    standard          of

reasonable care.

      ¶119 Accordingly,               the      circuit           court     declared       that       the

context    of     the     entire         case    supported           admitting          Dr.   Wener's

testimony as reliable:

      [A]fter the trial there is a lot more context within
      which to analyze the issues in respect to Dr. Wener's
      testimony.


                                                     46
                                                                    No.    2014AP195


            . . . .

      And I still believe that Dr. Wener's testimony met the
      Daubert   standards  as   that   applies  to   medical
      testimony.

            . . . .

      And after trial, Dr. Werner's position looked every
      bit as good, and better, than it did pretrial when the
      context of the other experts, Grimm and Rouse,
      particularly, was taken into account. And so I stand
      on my prior rulings as to Dr. Wener as supplemented
      here today with what we know after trial.          His
      testimony was properly admitted, to the extent it was
      admitted.
      ¶120 In    sum,   the    circuit    court     ruled    that   Dr.     Wener's

principles      and   methods     were        sufficiently    reliable      to   be

admitted,    emphasizing       that   Dr.      Wener's     testimony,      although

shaky, is not junk science and that Dr. Wener is not a junk

scientist:

      Dr.   Wener's  opinions   are  shaky   due   to  their
      generality, but I conclude that they are sufficiently
      reliable to be admitted. The methodology employed is
      what I will call, I guess, holistic.       The defense
      motion parses out the various factors and how they
      don't match a body of opinion about that particular
      factor. . . . [T]he essence of Dr. Wener's opinion [is
      that] these elements converge and then the sum is
      greater than the total of the parts, essentially.
      It's not something that's been peer reviewed or
      published because it's an individualized determination
      based upon the facts of this case, and in using known
      factors.
      ¶121 We conclude, as did the court of appeals, that the

circuit court did not erroneously exercise its discretion when

it concluded that the Daubert factors were not helpful and that

Dr.   Wener's   clinical      methodology       rendered    his   expert    medical



                                         47
                                                                         No.     2014AP195



testimony     on   the   standard   of    reasonable         care       based     on   his

personal experiences reliable under Wis. Stat. § 907.02(1).

       ¶122 Dr. Wener's opinion based on his personal experiences

satisfied the reliability standard.               He identified established

risk    factors    (principles).      He       then   used    classic,           ordinary

medical methods to establish the standard of care of a family

practice     doctor   practicing    obstetrics        and    to     opine       that   the

defendant doctor breached this standard.

       ¶123 In the instant case, the reliability standard entails

the    circuit     court's   assessment     of    methodology.              In    expert

medical evidence, the methodology often relies on judgment based

on     the   witness's    knowledge      and     experience.             Accordingly,

reliability concerns may focus on the personal knowledge and

experience of the medical expert witness.               Dr. Wener's testimony

was based on his knowledge of and experience with obstetrics and

family practice doctors practicing obstetrics.                       He gained his

knowledge through education, his decades of delivering thousands

of babies, his repeated observations during decades of clinical
experiences,       and    his   numerous         teaching         and     supervisory

experiences in the fields of obstetrics and gynecology.                          Because

Dr. Wener applied an accepted medical method relied upon by

physicians and had extensive personal experiences and knowledge

pertaining to the standard of reasonable care, the circuit court

did not erroneously exercise its discretion in admitting his

testimony.

                                      (2)


                                      48
                                                                          No.     2014AP195



      ¶124 The defendants argue that Dr. Wener's testimony was

mere speculation because it was not supported by even one peer

reviewed publication or medical text.                    The defendants correctly

contend,    as    we     stated       previously,        that    an      expert     cannot

establish that a fact is generally accepted merely by saying so.

      ¶125 With    respect       to      the    defendants'      arguments       that   Dr.

Wener's testimony was not reliable because he did not rely on

medical literature, the circuit court concluded that Dr. Wener's

approach    is    "not        something        that's    been    peer      reviewed      or

published    because     it's       an    individualized        determination        based

upon the facts of this case, and in using known factors" such as

estimated maternal weight, fetal weight, and glucose levels.

      ¶126 Indeed,       on    cross-examination         Dr.     Wener    said     he   was

aware of the medical literature but that there was a wide range

of statistics in the literature so that the publications were

not helpful and did not directly contradict his testimony.

      ¶127 For example, Dr. Wener concluded that, considering all

of the risk factors in totality, the defendant doctor breached
the standard of reasonable care by failing to order a three-hour

glucose    test   after       the     one-hour       test's    result     exceeded      130

mg/dL.     The defendants, citing American College of Obstetricians

and      Gynecologists,          Clinical           Management         Guidelines       for

Obstetrician-Gynecologists No. 30 (Sept. 2001) (reaffirmed 2008)

[hereinafter Guidelines], argued that Dr. Wener's opinion was

erroneous    because     the     Guidelines         suggest     that    the     reasonable

standard of care requires a three-hour test when the mother's
one-hour test result exceeds 140 mg/dL.                       The publication notes,
                                               49
                                                                                 No.     2014AP195



however,    that       either    the        130        or    140     mg/dL      "threshold       is

acceptable."       Guidelines at 762.                   Furthermore, the publication

expressly states that it does not prescribe a standard of care:

"These   guidelines          should    not        be        construed      as    dictating       an

exclusive   course       of     treatment          or       procedure.          Variations      in

practice may be warranted based on the needs of the individual

patient, resources, and limitations unique to the institution or

type of practice."            Guidelines at 759.                   Dr. Wener's testimony

did not directly contradict the guidelines.

      ¶128 The circuit court did not bar Dr. Wener's testimony on

the ground that Dr. Wener did not cite to any publications as

support, reasoning that peer-reviewed literature would not be

all that useful in the experience-specific methodology that Dr.

Wener applied in the instant case.

      ¶129 The circuit court's conclusion was not an erroneous

exercise    of     discretion.              Dr.        Wener's       failure     to     rely     on

literature is no bar to admissibility.                               Daubert supports the

circuit court in the instant case:                           "Publication (which is but
one   element      of    peer     review)          is        not    a   sine     qua     non     of

admissibility;          it     does     not            necessarily           correlate         with

reliability."      Daubert, 509 U.S. at 593.

                                             (3)

      ¶130 Reliable application, or "fit," is the final step in

the   Daubert    analysis.            The    defendants            argue     that      Dr.   Wener

failed to reliably apply his methodology to the facts.

      ¶131 The     defendants          argue       that        Dr.      Wener's        "holistic"
methodology      was    unreliable.               We    have       already      discussed      Dr.
                                              50
                                                                          No.    2014AP195



Wener's methodology (as part of our analysis of the defendants'

objections      to    Dr.    Wener's     testimony)      and    concluded       that    the

circuit court did not err in declaring that Dr. Wener's use of a

constellation of factors is reliable, as doctors usually apply

this method when treating patients.

      ¶132 The defendants also contend that Dr. Wener improperly

applied his method to the instant case because his testimony was

riddled    with      inconsistencies.             The    circuit    court       correctly

concluded that inconsistencies do not necessarily render expert

testimony unreliable; they go to the weight of the testimony:

"Vigorous cross-examination, presentation of contrary evidence,

and     careful      instruction       on   the      burden    of   proof       are    the

traditional       and       appropriate     means       of    attacking     shaky      but

admissible evidence."           Daubert, 509 U.S. at 596.

      ¶133 The defendants argue in this court that Dr. Wener's

experience-based             testimony         was      not    reliably         applied,

specifically objecting to three of Dr. Wener's opinions related

to prenatal care and the delivery of Braylon.                        The defendants
objected to Dr. Wener's statements that the defendant doctor

breached the standard of care by failing to order a three-hour

glucose test; that the defendant doctor breached the standard of

care by failing to perform an ultrasound immediately prior to

delivery; and that the defendant doctor breached the standard of

care by doing a vacuum-assisted delivery.                      The defendants again

argue    that     these     opinions     are     personal     preferences       and    that

personal preference is not a permissible basis for an expert
opinion.
                                            51
                                                                         No.   2014AP195



      ¶134 The circuit court reviewed Dr. Wener's discussion of

the   generally      accepted     risk    factors       of     shoulder    dystocia——

elevated     birth     weight,     maternal          obesity,     and     gestational

diabetes——and       his     application        of     these     risk     factors,    in

totality, to the facts of the instant case.                      The circuit court

acknowledged    that       just   as    clinical      medical     practice      entails

evaluating a specific patient and applying known risk factors or

variables,    Dr.    Wener's      testimony         analyzed    Braylon's      mother's

prenatal care and the delivery of Braylon with respect to the

three risk factors that he adduced at trial.                     The circuit court

did   not   view     Dr.    Wener's      testimony      as     stating    a    personal

preference, but as based on reliable medical methods.

      ¶135 Furthermore, Dr. Wener's testimony regarding threshold

glucose levels for gestational diabetes and macrosomia did not

necessarily contradict the defendants' experts:                        Each offered a

spectrum of ranges under which the risks warranted special care,

and their spectrums overlapped.                 Any disagreement, ruled the

circuit court, goes to the weight of Dr. Wener's testimony, not
its admissibility.

      ¶136 For the reasons set forth by the circuit court, we

conclude that the circuit court did not erroneously exercise its

discretion in admitting Dr. Wener's testimony as reliable based

on personal experiences and that Dr. Wener reliably applied his

methodology to the facts.              The circuit court kept the gate open




                                          52
                                                                        No.     2014AP195



to   the   opinion   of    Dr.   Wener,    a     qualified      OB-GYN.         "[T]rial

judges are gatekeepers, not armed guards."51

                                          II

      ¶137 The    second    issue    we    must       address    is    whether     three

remarks separately or together made by Braylon's counsel during

his closing arguments prejudiced the defendants, justifying a

new trial.      We will set out each of the remarks and address each

of the defendants' arguments for a new trial.                          Ultimately, we

agree with the court of appeals that the circuit court properly

exercised its discretion by rejecting the defendants' motion for

a new trial.

      ¶138 We    begin     by    noting        that   although        the     defendants

contemporaneously objected to Braylon's counsel's remarks, the

defendants erred by failing to move for a mistrial.                         Generally,

an offended party must object and then move for a mistrial to

preserve a challenge to prejudicial remarks.                         Hansen v. State,

64 Wis. 2d 541, 551-52, 219 N.W.2d 246 (1974).                          The court of

appeals    nonetheless      addressed      this       issue     by    exercising     its
discretionary authority.            Seifert ex rel. Scoptur v. Balink,

      51
       29 Wright & Gold, supra note 17, § 6268.2 (citing Ruiz-
Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77,
86 (1st Cir. 1998)).

     See Guild v. Gen. Motors Corp., 53 F. Supp. 2d 363
(W.D.N.Y. 1999) ("[T]rial judges acting as gatekeepers under
Daubert must not assume 'the role of St. Peter at the gates of
heaven, performing a searching inquiry into the depth of an
expert witness's soul' and thereby usurp 'the ageless role of
the jury' in evaluating witness credibility and weight of the
evidence." (quoted source omitted)).


                                          53
                                                                             No.     2014AP195



2015    WI    App       59,     ¶36    n.10,    364     Wis. 2d 692,       869     N.W.2d 493

(citing Pophal v. Siverhus, 168 Wis. 2d 533, 545, 484 N.W.2d 555

(Ct. App. 1992)).              We do the same.

       ¶139 We review a circuit court's decision to deny a motion

for    a    new    trial        under    an    erroneous      exercise      of    discretion

standard.52            An      order    for    a     new   trial    based    on     improper

statements        of     counsel        is    appropriate     if    it     "'affirmatively

appear[s]' that the remarks prejudiced the complaining party."

Wausau Underwriters Ins. Co. v. Dane Cty., 142 Wis. 2d 315, 329-

30, 417 N.W.2d 914 (Ct. App. 1987) (quoting Roeske v. Schmitt,

266 Wis. 557, 572, 64 N.W.2d 394 (1954)).                             This standard is

satisfied when the circuit court is convinced that "the verdict

reflects a result which in all probability would have been more

favorable         to     the     complaining          party   but    for    the     improper

argument."53           Related to our review of a circuit court's decision

to deny the defendants' motion for a new trial is the assumption

that "a properly given admonitory instruction is followed" and

that "the jury acted according to law."                            State v. Pitsch, 124
Wis. 2d 628, 645 n.8, 369 N.W.2d 711 (1985) (citations omitted).

                                                (1)

       ¶140 The defendants assert that Braylon's counsel made an

impermissible and prejudicial reference to the rules of the road



       52
       Wagner v. Am. Family Mut. Ins. Co., 65 Wis. 2d 243, 249,
222 N.W.2d 652 (1974).
       53
            Wagner, 65 Wis. 2d at 249.


                                                54
                                                                       No.        2014AP195



during      his    closing    argument.54         The     following    is    Braylon's

counsel's reference to the rules of the road during closing

argument:

       Thank you.    Okay, well, on a nice, beautiful sunny
       day, clear skies, 65 miles an hour is probably fine.
       But there may be factors that you have to consider
       that would make that not fine.     That would make you
       question whether that's the speed you should be going.

       Let's say it's pouring rain, let's say it's snowing.
       You're not going to look at that number the same. And
       Dr. Wener, who I'll talk about in a moment, explained
       that to you. And this is the issue in this case about
       gestational diabetes.

       No one is denying that they're throwing these two
       numbers out; 130 and 140.      But what he tried to
       explain to you was when you have a big mom, who has an
       increased risk of gestational diabetes because of her
       weight, and an increased risk of a big baby because of
       her weight, you've got to consider which of these
       numbers you're going to use.

       His point was what's safe at one speed might not be at
       another. And that you have to consider those issues.
       ¶141 The      defendants      made        timely    objections        to     these

statements, which the circuit court overruled.                        The defendants
also    challenged     these      statements      in    their   motion       after     the

verdict.      They argued that these statements violated the circuit

court's order in limine and that the statements prejudicially

confused     the    jury     in   regard    to    the     applicable    standard        of

reasonable care.           The defendants asserted that as a result of


       54
       The circuit court granted a motion in limine to prohibit
Braylon's counsel from analogizing medical negligence to the
failure of a driver to follow the rules of the road.


                                           55
                                                                        No.    2014AP195



Braylon's        counsel's   statements,       "the     jury   was    left    with    the

impression that Dr. Wener's opinions regarding standards of care

could be equated to speed limits and weather hazards on the

roadway."

      ¶142 The circuit court rejected this argument.                      The circuit

court decided that Braylon's counsel's analogy to driving a car

in   various      weather    conditions    did        not   violate    the    order    in

limine.          Instead,    the   circuit       court      interpreted       Braylon's

counsel's statement as "an attempt to analogize and to put into

context Dr. Wener's theory of these additive elements as they

pile up with the total being more than the sum of its parts,"

not as an analogy to ordinary negligence.

      ¶143 Further, in regard to the defendants' concern that the

jury was confused as to the applicable standard of reasonable

care, the circuit court concluded that the jury was not confused

about      the    standard   of    care   to     apply:55        The    jurors       were

instructed to "find a standard of care for medical negligence."

Jurors are assumed to follow jury instructions.                         Accordingly,
the circuit court concluded that "there is no reason to believe"

Braylon's        counsel's   statements        were    prejudicial     or     could   be

interpreted by the jury in a way that would violate the in

limine order.



      55
       The circuit court also noted, "We have to remember that
the juror's [sic] don't even know what regular negligence is,
probably.         They    weren't    instructed     on regular
negligence. . . . They were given one instruction."


                                          56
                                                                             No.    2014AP195



       ¶144 The court of appeals agreed with the circuit court and

concluded that Braylon's counsel did not violate the circuit

court's order in limine and that counsel's analogy to drivers

did not prejudice the defendants.                   The court of appeals reasoned

that    instead          of   comparing       ordinary     negligence        and    medical

negligence,        "the       analogy     illustrated       the       interplay     of     the

alleged risk factors present in this case through a comparison

to the interplay of various weather conditions that might affect

a driver's decision-making process."56

       ¶145 Further, the court of appeals concluded that there was

no   indication          that    the    absence     of    the     analogy     would       have

resulted      in     a    different     verdict.         The    analogy     pertained       to

gestational        diabetes       testing     thresholds,       which       was    just   one

aspect of the evidence presented to the jury on the issue of the

standard of reasonable care.                   The circuit court instructed the

jury    that    its       decision     must    be   based      only    on   the    evidence

presented to the jury and nothing else, including the statements

of counsel.
       ¶146 We agree with the reasoning and conclusion of the court

of appeals.

                                              (2)

       ¶147 Turning to another remark of Braylon's counsel, the

defendants assert that they were prejudiced because Braylon's

counsel       made       an     impermissible       "Golden       Rule"      argument       in


       56
            Seifert, 364 Wis. 2d 692, ¶40.


                                              57
                                                                No.    2014AP195



violation of an order in limine.           "Golden Rule" arguments arise

when   counsel    asks   "the   jurors     to   place   themselves     in   the

position of someone claiming injury or damage and ask[s] the

jurors what they would want as compensation."             State v. DeLain,

2004 WI App 79, ¶23, 272 Wis. 2d 356, 679 N.W.2d 562.

       ¶148 An order in limine prohibited Braylon's counsel from

making statements that might suggest that the jury determine

whether medical negligence occurred based on the jurors' own

knowledge, experience, common sense, or what they would want or

deserve.

       ¶149 The defendants assert that Braylon's counsel violated

the order in limine when he stated:

       Now, you heard some testimony from the defense
       experts, and I'll talk about them as I go along in
       this case as well and their bias, where they're coming
       from.   You heard somebody actually get up on the
       witness stand and say——Dr. Rouse, I think it was——if
       it was 139, I wouldn't have done anything.     Really?
       If it was 139, I would have done nothing different.
       Is that reasonable to you?        Is that reasonable
       medicine to you? Is that how you want your doctor to
       care?

            . . . .

       Is that what you want?     You want a doctor to treat
       you, or you want a doctor to say, well, you're at 139.
       You're not at 140. No test for you. Or do you want a
       doctor to think about you?
       ¶150 The defendants' counsel objected to these remarks at

trial,    and   Braylon's   counsel   withdrew    the   first   remark.     The

circuit court sustained the defendants' objection to the second

remark.     The   circuit   court,    however,    did   not   strike    either
statement, opting instead to give a "curative" instruction.

                                      58
                                                                      No.     2014AP195



     ¶151 The curative instruction followed counsel's remarking:

"How do you want to be with your healthcare?                      Do you want to be

a participant in your healthcare?"                   The curative instruction

stated:     "There aren't a lot of rules about what can and can't

be argued, but one of them is that a lawyer may not ask a juror

to place themselves in the position of the injured person or the

doctor for that matter.          Not sure that's what was going on, but

if you got that idea, disregard it."

     ¶152 The       defendants    argued       in    their    motion     after       the

verdict     that     these      "Golden        Rule"-type         statements      were

prejudicial    and    warranted     a    new     trial.       They     argued     that

arguments involving what a juror would want from his or her

doctor are irrelevant and appeal to the jurors' emotions.                         They

further argued that involving jurors' personal feelings about

the standard of care caused the jury to consider a standard of

care inconsistent with the reasonable physician standard.                         They

also argued that these statements violated the circuit court's

order in limine.
     ¶153 The circuit court refused to order                       a new trial on

"Golden     Rule"    grounds.      The        circuit   court       explained     that

Braylon's    counsel's    statements          were   "not    []    classic     "golden

rule"   violations,     where    the    jurors       were   explicitly       asked   to

place themselves in the position of the plaintiff."                     The circuit

court noted that its curative instruction obviated any prejudice

which may have resulted from Braylon's counsel's remarks.                            The

circuit court denied the defendants' request for a new trial.


                                         59
                                                                            No.    2014AP195



    ¶154 The circuit court is in the best position to evaluate

"Golden Rule" statements and should look at a variety of factors

such as "the nature of the case, the emphasis upon the improper

measuring       stick,       the     reference    in    relation       to    the    entire

argument, [and] the likely impact or effect upon the jury."

Rodriguez       v.    Slattery,       54    Wis. 2d 165,      170,     194    N.W.2d 817

(1972).

    ¶155 The court of appeals concluded that the circuit court

did not erroneously exercise its discretion for the following

reasons:

          • These were not pure "Golden Rule" violations because

               the jurors were not asked to place themselves in the

               victim's shoes.

          • Even if these remarks were "Golden Rule" violations,

               the circuit court gave the curative instruction stated

               above.

          • The remarks, in light of the entire argument presented

               to    the     jury,    did   not   affirmatively         prejudice       the
               defendants.57

    ¶156 We          agree    with    the   court      of   appeals'    analysis       that

these remarks did not violate the order in limine.

    ¶157 In sum, because the circuit court properly considered

objections to Braylon's counsel's statements during trial and

after    the     verdict      and     provided    a     curative     instruction,        we


    57
          Seifert, 364 Wis. 2d 692, ¶46.


                                             60
                                                   No.    2014AP195



conclude that the circuit court did not erroneously exercise its

discretion by denying the defendants' motion for a new trial on

the basis of these remarks.

                               (3)

    ¶158 Turning to their final challenge, the defendants argue

that they were prejudiced by Braylon's counsel's remarks (1)

disparaging the defendants' attorney and (2) suggesting to the

jurors that the jurors were experts.

    ¶159 The defendants refer to the following remarks:

       • I spoke to you in my closing argument and I
         addressed issues. I didn't tell you what to do.
         I didn't tell you you're not experts.     I didn't
         tell you you're not that smart.     I didn't tell
         you don't know the law.      Apparently I have a
         little more respect for you than Mr. Leib does.

       • I've got a little more faith in you than he does,
         because he spent the last hour and a half telling
         you what to do, telling you what you can't do,
         telling you what you don't know and that you're
         not going to be experts——you're not going to know
         the information. I disagree.

       • These are the kind of arguments you make to
         juries if you think they're not too smart. Fool
         you, scare you, you know?    You people are from
         Lancaster.   How smart could you be, right?    I
         think you're pretty smart.   I think you get it.
         I think you see through all this nonsense.     I
         think you should be respected, not told what to
         do or fooled.     You should be talked to like
         adults, make you own decisions about this case.
         Not be told what to do.

       • This shell game, you know, this game that they're
         trying to play with you.     You know, it's that
         game, you know, when you go to the fair? Where's
         the ball?   Whoa, whoa, whoa, where's the ball?
         That's what they tried to do to you.      It's a
         matter of respect.   I don't do it to you.    I'm

                               61
                                                                             No.      2014AP195


            giving you the information, you'll figure it out.
            I'm not telling you what to do. You're smart.

          • So when Mr. Leib comes before you and makes his
            big grandstand move.    Where's this one, where's
            that one?    Where's this one?    Well, you know,
            it's just not true.     It's a matter, again, of
            respect.   It's a matter of respecting you as a
            group and trying to fool you.    You're not going
            to get fooled. You're pretty damn smart. You're
            not going to get fooled.     I don't think you'll
            get fooled.

          • You have common sense and you can analyze the
            expert testimony and you're smart enough to do
            it. I'm like, again, I'm like Mr. Leib. I have
            a lot of faith in your smarts.   I think you are
            experts in a sense. I think you've learned quite
            a bit and I think you can make good decisions. I
            don't have to tell you what to do or how to do
            it.   I'm not going to do that.     But think it
            through, ladies and gentlemen.

          • Unlike Mr. Leib, I think you're smart people and
            I think you've learned the medicine and I think
            you are experts in a sense.
    ¶160 The circuit court concluded that, in context, these

statements (and others of a similar vein) were not prejudicial or

improper.    The circuit court explained that these were rebuttal

statements    made     in    response         to       the    defendants'          "strenuous

argument"    and   were     meant       to   empower         the    jury    to     weigh   the

conflicting expert testimony and make the required credibility

determinations.

    ¶161 The circuit court also explained that in a complex

medical    malpractice      case    filled         with      days   of     expert     medical

testimony,    jurors      have     to    make      a    finding      based       on   medical

evidence, so they do "in a sense become expert."                                 The circuit
court concluded there was nothing wrong with telling jurors that

                                             62
                                                                       No.    2014AP195



they    are    smart    while    simultaneously         characterizing        defense

counsel's view of the jurors as that they are "dumb."

       ¶162 Considering the context in which these remarks arose,

we conclude that the circuit court did not erroneously exercise

its    discretion      in   ruling     in    favor    of   Braylon.          Braylon's

counsel's remarks were used to empower the jury to perform its

essential      role    of   weighing    conflicting        testimony    and    making

credibility determinations.

       ¶163 The remarks at issue did not cause the jury to reach a

decision that it would not have reached otherwise.                     Accordingly,

we affirm the court of appeals' decision that the circuit court

did not erroneously exercise its discretion in concluding that

Braylon's      counsel's     remarks    during       closing   argument       did   not

constitute prejudicial error justifying a new trial.

                                            III

       ¶164 Lastly, the defendants argue that this court should

grant their motion for a new trial in the interests of justice

under Wis. Stat. § 751.06.58                They claim that justice was not


       58
            Wisconsin Stat. § 751.06 provides:

       Discretionary reversal. In an appeal in the supreme
       court, if it appears from the record that the real
       controversy has not been fully tried, or that it is
       probable that justice has for any reason miscarried,
       the court may reverse the judgment or order appealed
       from, regardless of whether the proper motion or
       objection appears in the record, and may direct the
       entry of the proper judgment or remit the case to the
       trial court for the entry of the proper judgment or
       for a new trial, and direct the making of such
       amendments in the pleadings and the adoption of such
                                                      (continued)
                                            63
                                                                       No.      2014AP195



served because the circuit court admitted Dr. Wener's unreliable

testimony and did not order a new trial in response to Braylon's

counsel's prejudicial remarks.

    ¶165 We have already concluded that the circuit court did

not erroneously exercise its discretion by admitting Dr. Wener's

testimony or by failing to grant a new trial on the basis of

Braylon's counsel's remarks.              Nevertheless, we will elaborate

further on Wis. Stat. § 751.06.

    ¶166 Under         this     court's       interpretations,           Wis.      Stat.

§ 751.06 rarely calls for a new trial.                   This court has often

expressed its "reluctan[ce] to grant a new trial in the interest

of justice" and has stated that it "exercises its discretionary

power   only    in    exceptional       cases."        State     v.      Cuyler,        110

Wis. 2d 133,     141,   327     N.W.2d 662      (1983)    (ordering          new   trial

where   trial     court       misread     evidentiary          statute       and    thus

prohibited      material       witnesses       from      testifying).               Such

"exceptional" cases occur in two situations:                   (1) "when the real

controversy     has   not     been    fully   tried"     and    (2)    "when       it    is
probable   that      justice    has    for    any   reason      been     miscarried."

Vollmer v. Luety, 156 Wis. 2d 1, 7, 456 N.W.2d 797 (1990).




    procedure in that court, not inconsistent with
    statutes or rules, as are necessary to accomplish the
    ends of justice.


                                         64
                                                                No.   2014AP195



     ¶167 The real controversy was fully tried in the instant

case and there is no "substantial degree of probability that a

different result was likely to be produced on retrial.59

     ¶168 For the reasons set forth, we affirm the decision of

the court of appeals.

     By   the   Court.—The   decision   of   the   court   of     appeals   is

affirmed.




     59
       Discretionary reversals based on a miscarriage of justice
are appropriate when this court "determine[s] to a substantial
degree of probability that a different result was likely to be
produced on retrial." State v. Wyss, 124 Wis. 2d 681, 741, 370
N.W.2d 745 (1985).


                                   65
                                                                       No.   2014AP195.akz


      ¶169 ANNETTE           KINGSLAND      ZIEGLER,        J.     (concurring).          I

concur only in the court's conclusion to affirm the decision of

the court of appeals.              I do not join the lead opinion for two

reasons.        First, the lead opinion does not sufficiently address

the legislature's 2011 changes to Wis. Stat. § 907.02 (2009-10),

which     had    significant       effect      on   the    admissibility       of    expert

opinion     testimony        in    Wisconsin.             The    legislature    has    now

tightened the applicable standard.                        Second, the lengthy lead

opinion does not adequately guide trial courts with regard to

how they should apply Wis. Stat. § 907.02 (2013-14).1                          I write to

clarify that § 907.02 has now changed the gatekeeping function

of   the    trial       court     concerning        the    admissibility       of    expert

testimony. Simply stated, the trial court now must adhere to and

apply the heightened Daubert-Wis. Stat. § 907.02 standard.                               In

my view, a best practice for trial courts and counsel is to

create a detailed, complete record regarding why any particular

expert's        testimony       meets    the   heightened         scrutiny     due    under

§ 907.02.         The    trial     court's     determinations        here    are     upheld
under the facts of this case because the trial court did not

erroneously exercise its discretion in admitting the testimony

of Dr. Wener.

      ¶170 While         I   agree      that   this       court    should    uphold    the

circuit court's decision to admit Dr. Wener's expert testimony

at trial, I reach this conclusion in spite of the fact that the

legislature tightened the standard of admissibility of expert

      1
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                               1
                                                                               No.    2014AP195.akz


opinion testimony when it amended Wis. Stat. § 907.02 (2009-10).

The circuit court did not "appl[y] an improper legal standard or

make[]       a    decision        not    reasonably         supported    by     the     facts     of

record" in admitting Dr. Wener's testimony, 118th St. Kenosha,

LLC v. DOT, 2014 WI 125, ¶18, 359 Wis. 2d 30, 856 N.W.2d 486

(quoting          260 North 12th St., LLC v. DOT, 2011 WI 103, ¶38, 338

Wis. 2d 34, 808 N.W.2d 372), and its decision should be upheld.

See id.           I view the record below, however, as a "close call"

which    might         not    survive       appellate         review     had     this      been    a

different case type.

                                                   I

       ¶171 We have recognized that the legislature amended Wis.

Stat. § 907.02 (2009-10) in 2011 Wisconsin Act 2 in order "to

adopt the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), reliability standard as stated in Federal Rule of

Evidence 702."               260 North 12th St., 338 Wis. 2d 34, ¶55 n.10.

Allow me to provide background concerning the federal adoption

of Daubert.            Unlike in Wisconsin, where the Daubert standard
heightened the level of scrutiny to apply to expert witnesses,

in     the       federal      system,      Daubert          loosened     the     standard       for

admission of expert testimony.

       ¶172 To begin with, while the federal rule, Rule 702, may

"embod[y]          a   liberal          standard       of    admissibility           for   expert

opinions," Nimely v. City of New York, 414 F.3d 381, 395 (2d

Cir.    2005),         it    is    liberal    as       compared     to    the        standard     it

"superseded," namely the so-called                           Frye   "'general acceptance'
test," Daubert, 509 U.S. at 585-87 (named for Frye v. United

                                                   2
                                                             No.    2014AP195.akz


States, 293 F. 1013 (D.C. Cir. 1923)).          See Nimely, 414 F.3d at

395-96.   It is not liberal as compared to Wisconsin's prior test

for admitting expert testimony.

      ¶173 Frye's "austere standard" "made 'general acceptance'

[of the matter upon which expert scientific testimony is based]

the exclusive test for admitting expert scientific testimony."

Daubert, 509 U.S. at 585-86, 589.         Daubert recognized that the

Federal Rules of Evidence, on the other hand, did not mandate

general acceptance, consistent with the Rules' "general approach

of relaxing the traditional barriers to 'opinion' testimony."

Id. at 588-89 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S.

153, 169 (1988)).

      ¶174 In   Wisconsin,     however,   there       is   no      "traditional

barrier[]" à la Frye for the legislature's adoption of Rule 702

to "relax[]."     See State v. Walstad, 119 Wis. 2d 483, 516, 351

N.W.2d 469 (1984) ("The Frye concept is alien to the Wisconsin

law of evidence.").      Wisconsin's prior standard of admissibility

of   expert   evidence   was   considerably    more    accommodating        than
either the Frye test or Rule 702's standard.               As stated, Frye's

yardstick is "general acceptance."            Rule 702 mandates, inter

alia, that expert testimony be "based on sufficient facts or

data" and "the product of reliable principles and methods" and

that the expert testifying "reliably appl[y] the principles and

methods to the facts of the case."            Fed. R. Evid. 702(b)-(d).

In contrast, under the previous Wisconsin standard "questions of

the weight and reliability of relevant evidence [were] matters
for the trier of fact."        State v. Fischer, 2010 WI 6, ¶7, 322

                                    3
                                                                          No.    2014AP195.akz


Wis. 2d 265,         778     N.W.2d 629.              "[E]xpert         testimony         [was]

generally admissible in the circuit court's discretion if the

witness [was] qualified to testify and the testimony would help

the trier of fact understand the evidence or determine a fact at

issue."       State v. Kandutsch, 2011 WI 78, ¶26, 336 Wis. 2d 478,

799 N.W.2d 865.          This was a "low threshold."                   State v. Shomberg,

2006    WI    9,    ¶67,    288   Wis. 2d 1,         709   N.W.2d 310        (Butler,         J.,

dissenting) (citing State v. St. George, 2002 WI 50, ¶39, 252

Wis. 2d 499, 643 N.W.2d 777).

       ¶175 The      fact    that   the    legislature           has    added     three       new

prerequisites to the admission of expert testimony in Wisconsin

means that it now requires more of a showing and further trial

court analysis before expert testimony may be introduced.                                    That

the    legislature          now   requires——in         addition         to      its     earlier

mandates      of     a     qualified      expert       and       sufficiently           helpful

testimony,         Kandutsch,     336     Wis. 2d 478,       ¶26——testimony              "based

upon sufficient facts or data," testimony which is "the product

of    reliable      principles      and    methods"        and    a     witness        who    has
"applied the principles and methods reliably to the facts of the

case," Wis. Stat. § 907.02(1), suggests that trial courts must

now    be    much    more    piercing     in       their   evaluation        of       proffered

expert testimony.             The days of relatively easy admission of

expert testimony into Wisconsin courtrooms are over.                                  The trial

courts' gatekeeping function has changed in light of § 907.02.

       ¶176 The Wisconsin legislature's adoption of the                                 Daubert

standard was part of a larger seemingly legislative reaction to
Wisconsin Supreme Court decisions; one observer argues that "Act

                                               4
                                                                           No.   2014AP195.akz


2 generated the most significant changes in at least sixteen

years to Wisconsin's civil litigation system by limiting the

applicability of 'risk contribution' theory, capping punitive

damages,        and    mandating      damages       for       frivolous    claims,"     "most

drastically chang[ing] the areas of strict products liability

and    expert         opinion       testimony."           Kristen       Irgens,     Comment,

Wisconsin Is Open for Business or Business Just As Usual? The

Practical Effects and Implications of 2011 Wisconsin Act 2, 2012

Wis.       L.   Rev.        1245,   1247    (2012)        (footnotes        omitted);      see

Honorable Diane S. Sykes, Reflections on the Wisconsin Supreme

Court, 89 Marq. L. Rev. 723, 737-38 (2006) (arguing that certain

"cases      from      the    last   term   reflect        a    court    quite    willing    to

aggressively          assert    itself     to   implement         the     statewide   public

policies it deems to be most desirable," and that "[t]he court

is loosening the usual constraints on the use of its power,

freeing itself to move the law essentially as a legislature

would,      except      that    its   decisions       are      for   the    most   part    not

susceptible of political correction as the legislature's would
be").2

       ¶177 Previously this court has rejected the invitation to

follow the Daubert approach taken in the federal courts with

       2
       Compare, e.g., Thomas ex rel. Gramling v. Mallett, 2005 WI
129, ¶¶178-79, 285 Wis. 2d 236, 701 N.W.2d 523 (Wilcox, J.,
dissenting) (contending that the court's "expansion" of risk-
contribution theory "amounts to an unwarranted and unprecedented
relaxation of the traditional rules governing tort liability,
and raises serious concerns of fundamental fairness"), with 14
Jay E. Grenig, Wisconsin Practice Series: Elements of an Action
§ 14:5, at 765 (2015-2016 ed.) (arguing that Act 2 "limits the
holding of Thomas").


                                                5
                                                                    No.   2014AP195.akz


regard to expert testimony.             See Fischer, 322 Wis. 2d 265, ¶7

("[T]here    is    no   reason    for   us     to   revisit     [in       this   case]

Wisconsin's well-established role for the circuit court where

expert testimony is proffered.               The law in Wisconsin continues

to be that questions of the weight and reliability of relevant

evidence are matters for the trier of fact. . . . We, therefore,

decline to adopt a Daubert-like approach to expert testimony

that would make the judge the gatekeeper.").                  Act 2 negates this

decision, transforming Wisconsin law so that it now adheres to

Federal     Rule    702's   heightened       standard.        To      minimize     the

significance of this change, as the lead opinion might be read

to do, contravenes the requirement of Wisconsin's Act 2, which

clearly contemplates a more substantial burden on litigants who

seek to have expert testimony admitted in Wisconsin courts.

     ¶178 Importantly, even after Daubert, trial courts retain

substantial       discretion     in   deciding      whether    to     admit      expert

testimony.     See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S.

137, 141–42 (1999) ("[T]he test of reliability is 'flexible,'
and Daubert's list of specific factors[3] neither necessarily nor
     3
       In     Daubert      the   Supreme     Court    "discussed
certain . . . factors . . . some or all of which might prove
helpful   in   determining   the reliability   of  a  particular
scientific 'theory or technique.'" Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141 (1999) (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993)). The Daubert
Court pointed to "whether [a theory or technique] can be (and
has been) tested," "whether the theory or technique has been
subjected to peer review and publication," "the known or
potential rate of error," and whether there is "general
acceptance" of the matter within the "relevant scientific
community." Daubert, 509 U.S. at 593-94 (quoting United States
v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)).

                                         6
                                                                          No.   2014AP195.akz


exclusively applies to all experts or in every case.                                Rather,

the law grants a district court the same broad latitude when it

decides how to determine reliability as it enjoys in respect to

its ultimate reliability determination." (quoting Daubert, 509

U.S. at 594)).             Moreover, the question before this court in

reviewing the circuit court's evidentiary decision below "is not

whether this court agrees with the ruling of the trial court,

but    whether       appropriate        discretion         was   in     fact    exercised."

Martindale      v.    Ripp,      2001    WI    113,    ¶29,       246    Wis. 2d 67,     629

N.W.2d 698 (quoting State v. Wollman, 86 Wis. 2d 459, 464, 273

N.W.2d 225 (1979)).

       ¶179 Given the foregoing, the facts of this current case

might    stand       as    a    poor    example       to    clearly       illustrate     the

heightened standard of Wis. Stat. § 907.02.                             This court today

decides that the court below did not erroneously exercise its

discretion but does little to advise courts how to apply the new

heightened standard to other cases involving different expert

testimony.       I note that, had the circuit court below decided to
exclude Dr. Wener's testimony, we would analyze that exclusion

of evidence in light of the standard espoused in Daubert and the

fact     that    we       owe   the     circuit      court       erroneous-exercise-of-

discretion       deference.             In    this    case,       under     these    facts,

involving this doctor's testimony, that deference due tips the

scales in favor of the circuit court's detailed determination

below.

                                              II



                                               7
                                                                    No.   2014AP195.akz


     ¶180 In this medical malpractice case, the defense seeks to

exclude the testimony of a medical doctor who is board certified

in obstetrics and gynecology, who has delivered thousands of

babies over three decades and confronted dozens of instances of

shoulder dystocia, who taught medical students and residents in

a   clinical    capacity      for    four     years    at     the    University      of

California, San Diego, and who served as chairman of the OB/GYN

department at a hospital for 20 years, arguing that this expert

cannot meet the Daubert standard as set forth in Wis. Stat.

§ 907.02.      The above expertise is directly on point with the

claim made here.

     ¶181 Wisconsin         Stat.       § 907.02(1)         requires,       for     the

admission of expert testimony: (1) that "scientific, technical,

or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue"; (2)

that the expert witness "testify[ing] thereto in the form of an

opinion or otherwise" is "qualified as an expert by knowledge,

skill, experience, training, or education"; (3) that the expert
testimony is "based upon sufficient facts or data"; (4) that the

expert   testimony     is   "the    product     of    reliable      principles      and

methods";    and     (5)   that   the   expert     witness     "has       applied   the

principles     and   methods      reliably    to     the    facts   of    the     case."

§ 907.02(1).

     ¶182 Digging deeper into the facts specific to this case,

Dr. Balink argues that Dr. Wener's testimony is not the product

of reliable principles and methods, and that Dr. Wener did not
apply the principles and methods he used reliably to the facts

                                          8
                                                                            No.    2014AP195.akz


of the case.          Dr. Balink contends that Dr. Wener's opinions are

simply based on his own personal preferences rather than, for

instance,       on    medical        literature;         criticizes        Dr.    Wener's      so-

called      "holistic"           approach;           and        points     out      supposedly

contradictory         or   confusing         aspects       of     Dr.    Wener's    testimony.

All   of    these       arguments           could    be     well-developed          in       cross-

examination.          Argument        could         be     made     that     such        personal

preference       does      not       meet    the     legal        definition       of    medical

malpractice.          The circuit court did not erroneously exercise its

discretion in declining to exclude Dr. Wener's testimony. The

trial court concluded that Dr. Wener's opinion was "reliably

based on a reliable medical methodology looking at recognized

factors of the standard of care."

      ¶183 Wisconsin Stat. § 907.02 uses, for example, two key

terms relevant to this case: "method[]" and "principle[]."                                      See

Wis. Stat. § 907.02(1).                   A "method" is a "mode of organizing,

operating, or performing something, esp. to achieve a goal."

Method,     Black's        Law       Dictionary          1141     (10th    ed.     2014).         A
"principle" is a "basic rule, law, or doctrine; esp., one of the

fundamental          tenets    of     a     system."         Principle,      id.        at    1386.

Generally speaking, Dr. Wener's method in providing the disputed

expert     testimony          was,     to     quote       the     plaintiffs-respondents'

brief, to "review the [relevant medical] records and provide an

opinion based upon his education, training, and 36 years of

experience" as to whether the steps taken and not taken by Dr.

Balink     in   her     care     of    Braylon       and    Kimberly       Seifert       met   the
applicable standard of care.                        More specifically, Dr. Wener's

                                                9
                                                         No.   2014AP195.akz


application of his education, training, and experience to the

facts of the Seiferts' case included consideration of a specific

set of medical "principles," namely the various "risk factors"

for shoulder dystocia present in the Seiferts' case.                 These

principles suggested that "maternal obesity, excessive weight

gain [in the mother], gestational diabetes [suspected through

the result of blood glucose testing,] . . . a large baby[,]" and

use of a vacuum during delivery all increase the likelihood that

shoulder dystocia will occur during delivery.

    ¶184 Moreover, the Wisconsin Jury Instructions state the

standard used in a case involving alleged medical negligence

like this one in part as follows:

         In    (treating)     (diagnosing)   (plaintiff)'s
    (injuries) (condition), (doctor) was required to use
    the degree of care, skill, and judgment which
    reasonable (doctors who are in general practice)
    (specialists who practice the specialty which (doctor)
    practices) would exercise in the same or similar
    circumstances, having due regard for the state of
    medical science at the time (plaintiff) was (treated)
    (diagnosed).   A doctor who fails to conform to this
    standard is negligent. The burden is on (plaintiff) to
    prove that (doctor) was negligent.

          A doctor is not negligent, however, for failing
    to use the highest degree of care, skill and judgment
    or solely because a bad result may have followed (his)
    (her)   (care  and   treatment)  (surgical  procedure)
    (diagnosis).   The   standard   you   must  apply   in
    determining if (doctor) was negligent is whether
    (doctor) failed to use the degree of care, skill, and
    judgment which reasonable (general practitioners)
    (specialists) would exercise given the state of
    medical knowledge at the time of the (treatment)
    (diagnosis) in issue.
Wis JICivil 1023 at 1.      Dr. Wener's conclusion was essentially
that,   given   the   presence   of   the   risk   factors   discussed   as
                                      10
                                                                           No.    2014AP195.akz


evidenced by the facts of the case and the medical records he

studied, certain of Dr. Balink's actions and omissions——failure

to perform additional glucose testing, for example——constituted

unreasonable care because of the unjustified risk of shoulder

dystocia.       Clearly, cross-examination and argument could dispel

the notion that Dr. Wener's conclusions are but one, and not a

conclusive, reasonable standard of care.

       ¶185 The        circuit         court        below     indeed        assessed        the

reliability of Dr. Wener's testimony as required by Wis. Stat.

§ 907.02(1).        The circuit court explained, citing McGovern ex

rel. McGovern v. Brigham & Women's Hosp., 584 F. Supp. 2d 418

(D.    Mass.    2008),     that       obstetrics      "is     a    recognized       field   of

expertise" as opposed to "junk science."                             See     McGovern, 584

F. Supp. 2d at 424.            The circuit court characterized Dr. Wener's

method    as    "holistic"        "clinical         medical       methodology,"       relying

partly on Cooper v. Carl A. Nelson & Co., 211 F.3d 1008 (7th

Cir.   2000),     in     which       the    Seventh    Circuit——applying            Daubert——

noted the apparent agreement of the party seeking to exclude the
expert testimony of three physicians that "in clinical medicine,

the    methodology        of     physical        examination         and     self-reported

medical history employed by [one of the experts] is generally

appropriate."            Cooper,       211     F.3d    at   1020;      see       also,   e.g.,

Reference       Manual    on     Sci.       Evid.     703   (3d     ed.)     ("A     patient-

physician encounter typically consists of four components: (1)

patient        history,        (2)     physical        examination,          (3)      medical

decisionmaking,          and     (4)       counseling.").           This     approach       was
analogous to the one taken by Dr. Wener (although Dr. Wener's

                                               11
                                                                    No.     2014AP195.akz


review was also retroactive).                 The circuit court observed that

Dr. Wener's opinion was "based upon the facts of this case," and

on "recognized factors subject to cross[-]examination" such as

Braylon's    estimated       size,      Kimberly's       weight     gain,      and     the

results of Kimberly's glucose tests.                    Consequently, the court

concluded that Dr. Wener's opinion was "reliably based on a

reliable medical methodology looking at recognized factors of

the standard of care."

      ¶186 The     court      tempered        its     conclusions      by     exploring

various     weaknesses     in     Dr.       Wener's     approach,      stating,       for

instance, "[A] lot of things in medicine can't be tested because

you can't repeat the exact same factors because every human body

is    different.       And      maybe       that    makes    the    defense's         case

ultimately."       The court also acknowledged that there was some

level of extrapolation in Dr. Wener's analysis.                     But there was a

common thread running through the court's remarks: that although

Dr.   Wener's     testimony     was     not      perfect,   it   was   "sufficiently

reliable to be admitted."
      ¶187 Remaining in our required position in review of the

record    makes    plain   that       the     circuit   court      "applie[d]        [the]

[]proper legal standard [and] ma[de] a decision . . . reasonably

supported by the facts of record."                      118th St. Kenosha,, 359

Wis. 2d 30, ¶18 (quoting 260 North 12th St., 338 Wis. 2d 34,

¶38).     Dr. Wener's conclusions certainly could have been better

supported.      In particular, he could have done a better job of

attempting to quantify the point at which a tolerable level of
risk of shoulder dystocia becomes intolerable.                         In addition,

                                            12
                                                                     No.    2014AP195.akz


Dr. Balink    points      to    alleged     errors      and    inconsistencies            in

Dr. Wener's testimony.           But all of these deficiencies were able

to   be   tested     on   cross-examination;            they    did        not    mandate

exclusion    of     the        entire     expert       opinion.            The        record

substantiates a conclusion that Dr. Wener "adhere[d] to the same

standards    of    intellectual         rigor   that    are    demanded          in    [his]

professional work."        Cooper, 211 F.3d at 1020 (quoting Rosen v.

Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996)).4

     ¶188 Ultimately,          and   as   suggested      by    the   circuit          court,

this case does not involve "junk science," a "junk scientist,"

     4
       In an amicus brief, the American Medical Association and
the Wisconsin Medical Society set forth their concern that:

     If left uncorrected, the decisions of the lower courts
     would place an unreasonable burden on physicians,
     [because] . . . [i]n making decisions about how to
     treat    their    patients, . . . physicians . . . would
     have   to   account   for   the  possibility   that   the
     preferences    of   a    physician   they   have    never
     met . . . could serve as the basis by which their
     conduct will be judged.

But this argument ignores the fact that the standard against
which a physician's conduct is judged is the conduct of a
similarly-situated reasonable physician.  Wis JI——Civil 1023 at
1. And arguably "for any set of clinical facts, however unique,
there are decisions or actions that virtually no doctor would
find acceptable."    Mark A. Hall, Mary Anne Bobinski & David
Orentlicher Health Care Law and Ethics 321 (8th ed. 2013)
(presenting idea without necessarily endorsing it).   Physicians
need only ensure that their conduct matches the conduct of a
similarly-situated reasonable physician.  Assuming that a judge
finds that expert testimony passes the requirements of Wis.
Stat. § 907.02, the party against whom the testimony is offered
may dispute it by cross-examination and by presenting contrary
expert testimony suggesting that the party's conduct was
reasonable.   It is then up to the jury to decide which set of
testimony is more believable.


                                          13
                                                                No.   2014AP195.akz


or a "junk opinion."         McGovern, 584 F. Supp. 2d at 424.                 This

was testimony in a "recognized field of expertise" as to the

standard    of    care     required,     provided    by     a    well-qualified

physician who had delivered thousands of babies.                Dr. Wener used

his   own   education,     training,     and   experience       to    review    the

relevant medical records and to reach a conclusion as to whether

the applicable standard of care was followed.               The circuit court

did not err in admitting this testimony.5

                                       III

      ¶189 Thus,    I    concur   only    in   the   court's     conclusion     to

affirm the decision of the court of appeals.                I do not join the

lead opinion for two reasons.            First, the lead opinion does not

sufficiently     address    the   legislature's      2011   changes      to    Wis.

Stat. § 907.02 (2009-10), which had significant effect on the

admissibility of expert opinion testimony in Wisconsin.                         The

      5
       I reject Dr. Balink's remaining arguments for reversal.
Without opining on whether, or the extent to which, the
Seiferts' attorney violated various pretrial orders, and without
opining on the possibility that Dr. Balink has waived this
argument, I conclude that the record does not establish that,
because of comments made by the Seiferts' attorney during
closing arguments following this week-long jury trial, "the
verdict reflects a result which in all probability would have
been more favorable to the complaining party but for the
improper argument."    Wagner v. Am. Family Mut. Ins. Co., 65
Wis. 2d 243, 250, 222 N.W.2d 652 (1974) (citing Klein v. State
Farm Mut. Auto. Ins. Co., 19 Wis. 2d 507, 510 n.1, 120
N.W.2d 885 (1963)).     The circuit court did not erroneously
exercise its discretion in declining to grant a new trial. See
id. at 249-50.

     Further, given the conclusions set forth in this writing,
discretionary reversal is not warranted.       See Wis. Stat.
§ 751.06.


                                       14
                                                                           No.   2014AP195.akz


legislature has now tightened the applicable standard.                               Second,

the lengthy lead opinion does not adequately guide trial courts

with regard to how they should apply Wis. Stat. § 907.02.                                     I

write to clarify that § 907.02 has now changed the gatekeeping

function      of    the       trial   court     concerning     the    admissibility          of

expert    testimony.             Simply    stated,      the   trial     court      now    must

adhere to and apply the heightened Daubert-Wis. Stat. § 907.02

standard.          In my view, a best practice for trial courts and

counsel is to create a detailed, complete record regarding why

any particular expert's testimony meets the heightened scrutiny

due under § 907.02.                 The trial court's determinations here are

upheld under the facts of this case because the trial court did

not     erroneously           exercise    its        discretion    in      admitting        the

testimony of Dr. Wener.

      ¶190 While          I    agree     that    this    court     should        uphold     the

circuit court's decision to admit Dr. Wener's expert testimony

at trial, I reach this conclusion in spite of the fact that the

legislature tightened the standard of admissibility of expert
opinion testimony when it amended Wis. Stat. § 907.02 (2009-10).

The circuit court did not "appl[y] an improper legal standard or

make[]    a   decision          not    reasonably      supported      by    the    facts     of

record" in admitting Dr. Wener's testimony, 118th St. Kenosha,

359     Wis. 2d 30,           ¶18     (quoting         260    North     12th      St.,      338

Wis. 2d 34, ¶38), and its decision should be upheld.                              See id.     I

view the record below, however, as a "close call" which might

not survive appellate review had this been a different case
type.

                                                15
                                             No.   2014AP195.akz


¶191 For the foregoing reasons, I respectfully concur.




                          16
                                                                      No.   2014AP195.mjg


      ¶192 MICHAEL          J.    GABLEMAN,          J.     (concurring          in     the

judgment).        This is a review of a published decision of the

court of appeals that affirmed the Grant County circuit court's1

order denying Dr. Kay M. Balink's ("Dr. Balink") postverdict

motion for a new trial.           Seifert ex rel. Scoptur v. Balink, 2015

WI    App   59,     364    Wis. 2d 692,       869     N.W.2d 493.           Dr.       Balink

requested a new trial because (1) the circuit court erred by

admitting the medical standard-of-care expert testimony of Dr.

Jeffrey     Wener    ("Dr.    Wener");    (2)       counsel's    statements           during

closing arguments unfairly prejudiced the verdict; and (3) the

interests of justice require a new trial because the issues have

not been fully tried.

      ¶193 This case requires us to interpret how the Daubert2

standard as adopted in Wis. Stat. § 907.02(1) (2013-14)3 applies

to a standard-of-care expert in a medical malpractice case where

the expert relies on his experience to show that his principles

and methods, and the application thereof, are reliable.

      ¶194 I conclude that experience is sufficient to satisfy
Daubert's reliability requirement provided the expert shows how

his    experience         makes   his    opinion          reliable.         No    medical

literature is required provided this is done.                    Thus, Dr. Wener's

opinion is admissible in this case because he showed how his


      1
          The Honorable Craig R. Day presided.
      2
          Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
      3
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                          1
                                                                        No.    2014AP195.mjg


experience made his opinion reliable, and the circuit court did

not err when it admitted his testimony at trial.                            Consequently,

the circuit court did not err when it denied Dr. Balink's motion

for a new trial based on her argument that the circuit court

erroneously admitted Dr. Wener's testimony.

    ¶195 Further, I conclude the circuit court did not err when

it denied Dr. Balink's request for a new trial based on the

effect of counsel's statements during closing argument.

    ¶196 I do not reach Dr. Balink's request for a new trial in

the interests of justice as Dr. Balink bases the request on the

inadmissibility        of    Dr.   Wener's        testimony      and    the     effect     of

counsel's statements during closing arguments.                              I consider it

unnecessary to reach her request because I conclude that the

circuit court properly admitted Dr. Wener's testimony and the

verdict was not unfairly prejudiced by counsel's statements.

    ¶197 Accordingly, I would affirm the decision of the court

of appeals, and I concur in the court's judgment.                                   I write

separately, however, to express how I reach this result.
               I.   FACTUAL BACKGROUND AND PROCEDURAL HISTORY

                       A.    Ms. Seifert's Prenatal Care

    ¶198 Beginning on December 5, 2008, Dr. Balink assumed Ms.

Seifert's prenatal care.               As part of this prenatal care, Dr.

Balink tracked Ms. Seifert's weight.                       Ms. Seifert weighed 269

pounds    at    the    beginning       of   the     pregnancy,        which     meant      Ms.

Seifert   was       obese.      Over    the       course   of    her    pregnancy,         Ms.

Seifert   gained      an     additional     36     pounds,      and    by     the   time    of
delivery, she weighed 305 pounds.

                                              2
                                                                       No.   2014AP195.mjg


       ¶199 Dr. Balink took regular fundal measurements in order

to measure the baby's growth and to estimate its size.                                    On

occasion, Dr. Balink used ultrasounds, but typically, Dr. Balink

used     fundal     measurements.            When      performing        these       fundal

measurements, Dr. Balink placed a tape measure on Ms. Seifert's

stomach and measured the distance from her pubic bone to the top

of the fundus, the fundus being the top of her uterus.

       ¶200 As another aspect of Ms. Seifert's prenatal care, Dr.

Balink monitored Ms. Seifert's glucose level.                          Here Dr. Balink

used a one-hour glucose tolerance test in order to determine if

Ms. Seifert's glucose level rose above a 140 mg/dL threshold.

If     Ms.    Seifert's       glucose    level      rose     above     the     140     mg/dL

threshold, Dr. Balink would have performed a three-hour glucose

tolerance      test   to      determine    if    Ms.    Seifert        had   gestational

diabetes.       Because Ms. Seifert's glucose level was 131 mg/dL,

Dr. Balink considered Ms. Seifert's glucose level safe and never

ran the diagnostic test to determine if in fact Ms. Seifert had

gestational diabetes.
                         B.     Braylon Seifert's Delivery

       ¶201 On    May     26,    2009,    Dr.    Balink      ordered     Ms.    Seifert's

labor be induced.          In the induction order, Dr. Balink noted that

Ms.     Seifert's     baby       was    "expected      LGA,"    meaning        large    for

gestational age.           Again using a fundal height measurement, Dr.

Balink       estimated     the    baby's    weight      at     eight    pounds,        eight

ounces.       Dr. Balink did not order an ultrasound, a more accurate

method of measuring the baby's size, despite her awareness of



                                            3
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the    complicating       factors        of    Ms.    Seifert's       obesity          and   the

possibility of the LGA child.

       ¶202 Ms. Seifert arrived at the hospital for induction of

labor on May 28, 2009.              After she had been pushing for one hour

without      making     progress     in   delivering          her   baby,        Ms.   Seifert

tired, and Dr. Balink decided to use a vacuum device on the

baby's head for assistance.                   Braylon Seifert's ("Braylon") head

emerged when Dr. Balink used the vacuum, but shortly thereafter,

it retracted.          This type of retraction, known as the "turtle

sign," indicates shoulder dystocia, which essentially means the

baby's shoulder is caught on the mother's pubic bone.                                    Thus,

after       seeing     Braylon's      head         retract,     Dr.     Balink         quickly

diagnosed Braylon with shoulder dystocia.

       ¶203 Shoulder dystocia can be a life-threatening emergency

if not swiftly resolved.             This is so because a baby experiencing

such    a   condition     cannot     breathe         properly.        In    an     effort     to

resolve      the     situation      as    quickly       as    possible,          Dr.    Balink

attempted      a     variety   of    maneuvers        to   safely     deliver          Braylon.
Eventually she succeeded by using traction to dislodge Braylon's

shoulder and pull him out.                     At 12:24 a.m. on May 29, 2009,

Braylon was born.          He weighed nine pounds, twelve ounces.                            Only

a few minutes had elapsed from the time Dr. Balink diagnosed the

shoulder dystocia to the time she delivered Braylon, and it

appeared that the situation had been successfully resolved with

no permanent harm to the baby.                     However, Braylon was diagnosed

just days later with a permanent brachial plexus injury in his
left arm that inhibits its growth and use.                            Braylon has since

                                               4
                                                                 No.    2014AP195.mjg


undergone surgery to improve the use of his left arm, but even

with surgery and therapy, he will never have full use of his

arm.

           C.    Dr. Balink's Trial for Medical Malpractice

       ¶204 After discovering Braylon's permanent brachial plexus

injury, Braylon's parents (David and Kimberly) and his guardian

ad litem (Paul J. Scoptur) sued Dr. Balink and Proassurance

Wisconsin Insurance Co. on Braylon's behalf alleging that Dr.

Balink was (1) negligent in providing Ms. Seifert's prenatal

care; (2) negligent in delivering Braylon; and (3) failed to

obtain Ms. Seifert's informed consent before using the vacuum to

assist with the delivery.

           1.    Dr. Wener's Opinion on the Standard of Care

       ¶205 Braylon's    parents     and       guardian    ad   litem    hired    Dr.

Wener, a board certified obstetrician-gynecologist, to testify

as to the standard of care required of Dr. Balink as a family

practitioner and Dr. Balink's breach of that standard of care.

According to Dr. Wener, Dr. Balink fell below the standard of
care   because    (1)   she   did   not       use   an   ultrasound     to   estimate

Braylon's weight prior to delivery despite Ms. Seifert's obesity

and Braylon's suspected LGA status; (2) she never ordered the

three-hour glucose tolerance test to determine if Ms. Seifert

did in fact have gestational diabetes even though Ms. Seifert

was obese and had gained more weight than would be expected over

the course of her pregnancy; and (3) she used a vacuum to assist




                                          5
                                                                 No.    2014AP195.mjg


in the delivery in spite of the presence of an increased risk

for shoulder dystocia.4

      ¶206 To form both his opinion of the applicable standard of

care as well as his opinion that Dr. Balink had breached that

standard of care, Dr. Wener considered the following factors:

(1) Ms. Seifert's prepregnancy weight of 269 pounds; (2) Ms.

Seifert's 36-pound weight gain over the course of her pregnancy;

(3) the 131 mg/dL result from the 1-hour glucose tolerance test;

and (4) Braylon's estimated fetal weight of 8 pounds, 8 ounces.

Dr. Wener opined that, as a result of the confluence of these

factors, Braylon was at an increased risk for shoulder dystocia.

Furthermore, Dr. Wener testified that Dr. Balink fell below the

applicable standard of care because her conduct did not account

for the increased risk created by the factors presented by Ms.

Seifert and her unborn child.

      ¶207 Dr.   Wener    testified         that      a     family     practitioner

practicing obstetrics in accordance with the applicable standard

of care in 2009 would have recognized that Ms. Seifert's obesity
and   above-average   weight     gain       would    have    rendered     a   fundal

measurement   too   inaccurate    for       the     situation   and     would   have

instead ordered an ultrasound in order to estimate the baby's

size.     Obtaining a more accurate measurement would, in turn,

have indicated to Dr. Balink that the vacuum device should not


      4
       Dr. Wener also opined that Dr. Balink fell below the
standard of care by applying excessive traction when resolving
the shoulder dystocia, but this part of Dr. Wener's opinion is
unchallenged.


                                        6
                                                                     No.    2014AP195.mjg


be used on a baby of Braylon's size because of the risk of

shoulder dystocia.        In addition, Dr. Wener opined that a family

practitioner practicing obstetrics in 2009 should have used a

lower threshold than Dr. Balink used——130 mg/dL as opposed to

140   mg/dL——when     performing     the     1-hour     glucose      tolerance       test

because of Ms. Seifert's weight, which increased the risk of

gestational diabetes.         Finally, Dr. Wener opined that, to meet

the    applicable     standard      of       care,     a     family        practitioner

practicing obstetrics in 2009 would avoid use of a vacuum device

during the delivery because of the increased risk of shoulder

dystocia      resulting     from   Ms.   Seifert's          weight    and     Braylon's

suspected status as a large baby.

      2.   Dr. Balink's Challenge to Dr. Wener's Opinion on the

                               Standard of Care

      ¶208 Before trial, Dr. Balink challenged the admissibility

of Dr. Wener's opinion, arguing that his opinion was unreliable

because it was based not on science and medical literature but

rather was based solely on Dr. Wener's personal preferences.                          At
a pretrial hearing to address, inter alia, the admissibility of

Dr. Wener's opinion, the circuit court determined Dr. Wener used

a "holistic" method whereby Dr. Wener looked at the patient as a

whole using recognized factors in order to come to a conclusion

about the standard of care required.                 In support of its decision

to admit Dr. Wener's opinion, the circuit court pointed to "the

vagaries of medical treatment and diagnosis" and emphasized that

Dr.   Wener    does   not    represent       the     junk    science       Daubert   was
intended to exclude.          Thus, the circuit court ruled that Dr.

                                         7
                                                                              No.   2014AP195.mjg


Wener's opinion testimony was admissible, and the case proceeded

to trial.

                                 3.    Closing Arguments

      ¶209 At       trial,       Kenneth       M.      Levine      ("Atty.     Levine"),      the

Seiferts' counsel, made a series of statements during closing

arguments that Dr. Balink argues require a new trial because the

statements were improper and unfairly prejudiced the verdict.

First, Dr. Balink says Atty. Levine compared Dr. Wener's opinion

about the standard of care required of Dr. Balink as a family

practitioner to the standard of care required of an ordinary

person while driving.                 Dr. Balink's counsel objected to these

statements as a violation of the "rules of the road prohibition"

put in place by the circuit court in a ruling on a motion in

limine.          The circuit court's ruling stated that Atty. Levine

could    not      compare    medical         negligence         to   ordinary       negligence.

Second, Atty. Levine asked the jurors on three occasions how

they would like their doctors to care for them, and in so doing,

Dr.     Balink     argues     Atty.          Levine         violated    the     "golden     rule
prohibition."           At the time of the first violation, Atty. Levine

withdrew his statement in response to the objection made by Dr.

Balink's       counsel;     at    the        time      of    the   second     violation,      the

circuit court gave a brief curative instruction; and at the time

of    the    third       violation,          the       circuit       court    sustained       the

objection made by Dr. Balink's counsel.                            Third, in his rebuttal

argument, Atty. Levine made a statement that he thought more

highly      of    the   jurors        than    Dr.      Balink's      counsel        and   another



                                                   8
                                                                         No.   2014AP195.mjg


statement    that    he    thought    the       jurors      were    well       equipped          to

decide the case and were experts in their own right.

                4.    Dr. Balink's Motion for a New Trial

      ¶210 Following the verdict, Dr. Balink moved the circuit

court for a new trial based on three arguments.                                 First, Dr.

Balink    argued     the   circuit    court      erred       when    it    admitted             Dr.

Wener's    testimony.       Second,     the      cumulative         effects          of    Atty.

Levine's statements during closing arguments unfairly prejudiced

the verdict.         Third, the interests of justice required a new

trial     because    the   issues    were       not    fully       tried       due    to        the

erroneous admission of Dr. Wener's testimony and the effect of

Atty. Levine's improper statements during closing arguments.

      ¶211 At the hearing to address Dr. Balink's motion for a

new trial, the circuit court again determined that Dr. Wener's

opinion was admissible.5             The circuit court noted Dr. Wener's

method was grounded in science and further that his method can

be tested.      In regard to the nature of Dr. Wener's testimony,

the   circuit    court     observed,    "[I]t         is    not     in   the    nature          of
engineering     or    other    more    hard        sciences.             It     is        not     a

mathematical calculation wherein one plus one plus one always

yields three.        Sometimes it yields 3.2 and sometimes it yields

2.8."      Further, in light of the expert testimony Dr. Balink

introduced      at   trial,    it     was       more       firmly    assured          of        the

      5
       In total, the circuit court considered the admissibility
of Dr. Wener's testimony three times:     first at the pretrial
hearing, second at trial pursuant to an objection to Dr. Wener's
testimony, and third at the hearing on Dr. Balink's motion for a
new trial.


                                            9
                                                                         No.    2014AP195.mjg


admissibility of Dr. Wener's testimony because there were points

on which Dr. Balink's experts agreed with Dr. Wener.

       ¶212 The     circuit         court    also     found      that     neither       Atty.

Levine's statements, nor their cumulative effect, required an

order for a new trial.               The circuit court determined that the

first set of statements did not violate the motion in limine,

even    though    it     was   close.        In    reaching      its    conclusion,        the

circuit court noted that the jury was instructed on medical

negligence,       not    ordinary     negligence;         therefore,      the     jury     was

unlikely     to    see     the      comparison       between      the     two     types     of

negligence       given    that      the     jury    had   not    been     instructed        on

ordinary negligence.                For the second set of statements, the

circuit court found that the sustained objection of Dr. Balink's

counsel    and     curative         instruction       given      by     the     court     were

sufficient to eliminate any unfair prejudice.                          Finally, for the

third set of statements, the circuit court found the context——

rebuttal argument——important because Atty. Levine's statements

were made in response to statements made by Dr. Balink's counsel
during    closing        arguments.          In    addition,      the     circuit       court

determined       that    Atty.      Levine    employed      an    argument        technique

meant to empower the jury and give it confidence to decide the

case.     Therefore, these statements were not improper.                          Thus, the

effect of Atty. Levine's statements did not require a new trial.

       ¶213 The circuit court then denied Dr. Balink's request for

a new trial.

                               5.   Dr. Balink's Appeal



                                             10
                                                                No.   2014AP195.mjg


      ¶214 Dr. Balink appealed, and the court of appeals affirmed

the circuit court determining that it did not err when it denied

Dr. Balink's request for a new trial.                Seifert, 364 Wis. 2d 692,

¶3.    Relying   heavily      on    the    discretion     afforded    to    circuit

courts in the Daubert analysis, the court of appeals determined

the circuit court properly exercised its discretion in admitting

Dr. Wener's opinion.        Id., ¶¶23-27, 34.         Then, pointing out that

Dr. Balink failed to move for a mistrial before the verdict, the

court of appeals determined that the circuit court did not err

when it denied Dr. Balink's request for a new trial based on the

effect of Atty. Levine's statements during closing arguments.

Id., ¶¶36 n.10, 37.         The court of appeals next addressed Dr.

Balink's request for a new trial in the interests of justice

stating that the issues were fully tried and no new trial was

needed.   Id., ¶49 n.12.

      ¶215 Dr. Balink then petitioned this court for review, and

because   we   have   yet   to     address     the   adoption   of    the   Daubert

standard in Wisconsin, we granted review to take the opportunity
to define the reliability analysis for a standard-of-care expert

in a medical malpractice case.

                        II.      STANDARD OF REVIEW

      ¶216 Before     discussing       the     standard    of   review      it   is

important to note that while Daubert has imposed change in some

areas of the law concerning expert testimony, it has not changed

the standard of review in such cases.                Gen. Elec. Co. v. Joiner,

522 U.S. 136, 141-43 (1997).              Thus, review of a circuit court's
decision to admit or exclude expert testimony follows the same

                                          11
                                                                           No.    2014AP195.mjg


standards    previously            used    before    the    legislature          adopted        the

Daubert standard in 2011.

      ¶217 This court reviews a circuit court's decision to admit

or    exclude     expert        testimony      for     an     erroneous          exercise       of

discretion.            State       v.     Kandutsch,        2011    WI     78,         ¶23,     336

Wis. 2d 478,      799       N.W.2d 865.         "The    circuit       court       has     'broad

discretion       to    admit       or     exclude    evidence,'"          and     this        court

upholds the circuit court's decision unless it failed to apply

the proper legal standard or the record lacks reasonable support

for its decision.             Id. (quoting State v. Nelis, 2007 WI 58, ¶26,

300 Wis. 2d 415, 733 N.W.2d 619; Martindale v. Ripp, 2001 WI

113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698).

      ¶218 In         order    to       determine    whether        the     circuit           court

erroneously      exercised          its    discretion,       this     court       must        first

interpret the Daubert standard as adopted by the legislature in

Wis. Stat. § 907.02(1) and determine if the circuit court used

the     proper    legal        standard       when     it     analyzed           Dr.     Wener's

testimony.       Statutory interpretation is a question of law this
court reviews de novo.                  State v. Hemp, 2014 WI 129, ¶12, 359

Wis. 2d 320,          856     N.W.2d 811.           Should     this       court        interpret

§ 907.02(1) and conclude that the circuit court used the proper

legal     standard,         "the     [circuit]       court's       choice        of     relevant

factors     within          [the    Daubert]        framework       and     its         ultimate

conclusion as to admissibility" is reviewed for an erroneous

exercise of discretion.                 Lees v. Carthage Coll., 714 F.3d 516,

520 (7th Cir. 2013).



                                              12
                                                                        No.   2014AP195.mjg


      ¶219 As    with    evidentiary       rulings,        this    court        reviews      a

circuit   court's    ruling    on    a    motion     for    a     new    trial       for    an

erroneous exercise of discretion.                  Wagner v. Am. Family Mut.

Ins., 65 Wis. 2d 243, 249-50, 222 N.W.2d 652 (1974).

                              III.       DISCUSSION

      ¶220 First,    I   consider        the   admissibility        of        Dr.    Wener's

opinion and conclude that the circuit court properly exercised

its discretion when it admitted Dr. Wener's opinion.                                  In so

concluding,     I   further    conclude        the    circuit           court       properly

exercised its discretion in denying Dr. Balink's request for a

new trial.       Second, I consider the effect of Atty. Levine's

statements     during    closing    arguments        and    conclude          the    circuit

court properly exercised its discretion when it found the effect

of the statements did not require a new trial.                      As noted above,

I do not reach Dr. Balink's argument for a new trial in the

interests of justice because the circuit court properly admitted

Dr.   Wener's    testimony    and    Atty.      Levine's        statements           do    not

require a new trial.          Thus, the issues were fully tried, and
there is no reason to grant a new trial in the interests of

justice under Wis. Stat. § 751.06.

          A.    The Admissibility of Dr. Wener's Testimony

                         1.   The Governing Statute

      ¶221 The admissibility of expert testimony is governed by

Wis. Stat. § 907.02(1):

      If   scientific,   technical,   or  other   specialized
      knowledge will assist the trier of fact to understand
      the evidence or to determine a fact in issue, a
      witness qualified as an expert by knowledge, skill,
      experience,   training,   or  education,  may   testify

                                          13
                                                                   No.   2014AP195.mjg

      thereto in the form of an opinion or otherwise, if the
      testimony is based upon sufficient facts or data, the
      testimony is the product of reliable principles and
      methods, and the witness has applied the principles
      and methods reliably to the facts of the case.
(Emphasis added).         This last part of the statute, emphasized

above, was added by the legislature in 2011, see 2011 Wis. Act

2, § 34m, and it is this addition that I address today.

      ¶222 In     addressing     the     addition    to   § 907.02(1),      I   first

look at the standard previously followed in Wisconsin and then

look to federal law for guidance on how Federal Rule 702 ("Rule

702")     and   Daubert   have    been    interpreted      and   applied     in   the

federal courts.       Next, I evaluate Dr. Wener's testimony and the

circuit court's analysis of his testimony in order to determine

whether the circuit court erred in determining that Dr. Wener's

principles and methods meet the reliability standards set forth.

After concluding that Dr. Wener's principles and methods are

reliable, I then evaluate if his principles and methods were

reliably applied.

     2.   The Relevancy Standard and Wisconsin's Adoption of the

                                 Daubert Standard

      ¶223 Traditionally,          Wisconsin        followed       the     relevancy

standard as articulated in State v. Walstad, 119 Wis. 2d 483,

515-16, 351 N.W.2d 469 (1984), to determine the admissibility of

expert testimony.         Under this standard, the expert needed only

to be qualified, helpful, and relevant in order to be permitted

to   testify.       Id.    at    516.          Reliability   was     considered     a

credibility determination left for the jury.                   State v. Fischer,
2010 WI 6, ¶2, 322 Wis. 2d 265, 778 N.W.2d 629.                    When confronted


                                          14
                                                                    No.    2014AP195.mjg


with the opportunity to replace the relevancy standard with the

Daubert     standard       followed     in    federal        courts,      this       court

confirmed adherence to the relevancy standard.                      E.g., Fischer,

322 Wis. 2d 265,          ¶7.    Not until the legislature amended the

statute governing expert testimony in 2011 to add the language

emphasized       above    did    Wisconsin     adopt     the    Daubert         standard

followed in federal courts.            See 2011 Wis. Act 2, § 34m.                    Thus,

because     our    statute      governing     the     admissibility        of        expert

testimony now mirrors Rule 702, compare Wis. Stat. § 907.02(1),

with Fed. R. Evid. 702, we may look to federal law interpreting

the Daubert standard for guidance concerning how we should apply

the    standard     in      Wisconsin,       State     v.     Gudenschwager,            191

Wis. 2d 431, 439, 529 N.W.2d 225 (1995).

      3.   Federal Rule of Evidence 702 and the Daubert Standard

       ¶224 Rule 702 contains five inquiries for a district court

to make before admitting expert testimony.                     Fed. R. Evid. 702.

All of these inquiries must be met by a preponderance of the

evidence.     Id. advisory committee notes (2000 amend.).                            First,
the    witness     must    be   qualified.           Lees,    714   F.3d        at     521.

Essentially this means that the witness must possess specialized

knowledge, which is something Wisconsin has required for expert

testimony before the legislature amended Wis. Stat. § 907.02(1).

Second, the witness's testimony must be helpful, meaning it must

assist the trier of fact.             Lees, 714 F.3d at 521.              This element

closely relates to the relevance requirement previously followed

in Wisconsin.       Third, the witness's testimony must be based on
sufficient facts and data.             Id.    Fourth, the witness must have

                                         15
                                                                                    No.    2014AP195.mjg


reliable principles and methods, and fifth, those principles and

methods must be reliably applied to the facts of the case.                                           Id.

at   521-22.        I    address        the   fourth             and    fifth       elements       today

because     these       elements        are     new         to    Wisconsin          law     with    the

legislature's        adoption          of   the        Daubert         standard       and     are    the

elements at issue in this case.

                             4.    The Reliability Analysis

       ¶225 In      order         to   assist      with          the    reliability           analysis

required by the fourth and fifth elements (reliable principles

and methods reliably applied to the facts of the case), the

United      States       Supreme        Court          in        Daubert       v.     Merrell        Dow

Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993), articulated

four   non-exhaustive             factors     courts         could       use    to        analyze    the

reliability of expert testimony:                            (1) whether the method has

been   or    will       be    tested;       (2)    whether             the   method         "has    been

subjected to peer review and publication"; (3) "the known or

potential rate of error"; and (4) whether the method has been

generally accepted.                In articulating these factors, the Court
emphasized the factors are flexible and do not represent all the

factors a court could possibly consider.                               Id. at 594.          In fact,

       a trial court may consider one or more of the more
       specific factors that Daubert mentioned when doing so
       will help determine that testimony's reliability.
       But, as the Court stated in Daubert, the test of
       reliability is "flexible," and Daubert's list of
       specific factors neither necessarily nor exclusively
       applies to all experts or in every case. Rather, the
       law grants a district court the same broad latitude
       when it decides how to determine reliability as it
       enjoys   in  respect  to   its  ultimate   reliability
       determination.


                                                  16
                                                                              No.    2014AP195.mjg


Kumho    Tire       Co.   v.    Carmichael,          526    U.S.     137,     141-42     (1999).

"[T]here are many different kinds of experts and many different

kinds    of     expertise,        including          experts       in   drug        terminology,

handwriting         analysis,      land    valuation,             agricultural        practices,

railroad procedures, and so forth."                          United States v. Brumley,

217 F.3d 905, 911 (7th Cir. 2000).                          Therefore, the reliability

analysis must be flexible enough to allow the circuit court to

assess the type of expert being evaluated.

       ¶226 As a result of the different kinds of experts, courts

developed additional factors——many of which are listed in the

Advisory       Committee         Notes    of         Rule        702——for     analyzing       the

reliability of an expert's opinion as the situation required.

In     some    of    these       situations,          particularly           those     involving

specialized         knowledge,        courts    used        an    expert's     experience      to

determine reliability.                See Kumho Tire, 526 U.S. at 150.                       Rule

702 expressly allows for the use of an expert's experience, and

the Advisory Committee Notes say:

       Nothing in this amendment is intended to suggest that
       experience alone——or experience in conjunction with
       other knowledge, skill, training or education——may not
       provide a sufficient foundation for expert testimony.
       To the contrary, the text of Rule 702 expressly
       contemplates that an expert may be qualified on the
       basis of experience.
Fed.    R.     Evid.      702     advisory       committee          notes      (2000     amend.)

(emphasis added).              In fact, "[i]n certain fields, experience is

the predominant, if not sole, basis for a great deal of reliable

expert testimony."              Id.     Therefore, when assessing reliability,

a    circuit     court         should    have        flexibility        to     use     different
reliability         factors,      including          the     expert's        experience,       to
                                                17
                                                                     No.    2014AP195.mjg


analyze whether the expert's opinion is reliable.                          As the Court

pointed out in Kumho Tire,

          [e]xperts of all kinds tie observations to conclusions
          through the use of what Judge Learned Hand called
          "general    truths    derived    from . . . specialized
          experience."     And   whether   the  specific   expert
          testimony focuses upon specialized observations, the
          specialized translation of those observations into
          theory,   a   specialized   theory   itself,   or   the
          application of such a theory in a particular case, the
          expert's testimony often will rest "upon an experience
          confessedly foreign in kind to [the jury's] own."
526 U.S. at 148-49 (alteration in original) (emphasis added)

(citation       omitted)       (quoting      Learned       Hand,     Historical       and

Practical Considerations Regarding Expert Testimony, 15 Harv. L.

Rev. 40, 54 (1901)).

          ¶227 In    general,     when    assessing       reliability,       a    circuit

court is looking for "good grounds" for the expert's opinion to

show that it is "more than subjective belief or unsupported

speculation" and demonstrates "a reliable basis in the knowledge

and experience of his discipline."                  Daubert, 509 U.S. at 590,

592.        Therefore, whatever factors a court uses to assess an
expert's      reliability,      the      factors,   and    the     court's       analysis,

must ensure the expert has good grounds for his or her opinion.

In     addition,      "[t]he    focus,      of   course,     must     be     solely    on

principles and methodology, not on the conclusions that they

generate."          Id. at 595.    Thus, if a circuit court finds that an

expert has good grounds for his opinion, it is for the jury to

decide between competing conclusions.

     5.    The Reliability Analysis in the Medical Standard-of-Care
                                         Context

                                            18
                                                                       No.    2014AP195.mjg


    ¶228 When      assessing       a     medical      standard-of-care            expert,

other jurisdictions have found good grounds for the expert's

opinion    when   the     expert       had     experience        that        demonstrated

familiarity with the type of medicine at issue and the standard

of care for that type of medicine.                        For example, the Third

Circuit concluded a doctor's testimony was based on good grounds

and the district court abused its discretion in excluding the

doctor's standard-of-care testimony because the doctor no longer

practiced as an interventional cardiologist and now practiced as

an invasive cardiologist.          Schneider ex rel. Estate of Schneider

v. Fried, 320 F.3d 396, 399-400 (3d Cir. 2003).                         As an invasive

cardiologist,     the     doctor       still    interacted            with,    and     even

advised,   interventional      cardiologists,             which,      along     with    his

past experience as an invasive cardiologist, was sufficient to

satisfy Daubert.        Id. at 406-07.          Therefore, the Third Circuit

concluded the expert was sufficiently familiar with the type of

medicine   involved     in   the       case    such   that       he    could     reliably

testify to the standard of care.
    ¶229 The      Sixth    Circuit       reached      a    similar      conclusion       in

Dickenson v. Cardiac & Thoracic Surgery of Eastern Tennessee,

P.C., 388 F.3d 976, 978-82 (6th Cir. 2004), when it concluded

the district court abused its discretion in excluding a cardio-

thoracic   surgeon's      testimony       regarding        the    standard       of    care

required for a pulmonologist.                 There, the court concluded the

district court abused its discretion by not allowing the doctor

to testify as to the standard of care based on the doctor's



                                         19
                                                                    No.    2014AP195.mjg


extensive experience and familiarity with the pulmonology issue

involved in the case.           Id. at 980-82.

       ¶230 As Hippocrates, the father of medicine, noted in his

writing On the Art of Medicine, clinical medicine is an art that

requires      good     judgment       developed     over     time     and        through

experience.        Put another way, "medicine is scientific, but not

entirely a science."            Primiano v. Cook, 598 F.3d 558, 565 (9th

Cir. 2010).        As the Sixth Circuit noted,

       Daubert's role of "ensur[ing] that the courtroom door
       remains closed to junk science," is not served by
       excluding testimony such as [the doctor's] that is
       supported by extensive relevant experience.      Such
       exclusion is rarely justified in cases involving
       medical experts as opposed to supposed experts in the
       area of product liability.
Dickenson, 388 F.3d at 982 (alteration in original) (citation

omitted) (quoting Amorgianos v. Nat'l R.R. Passenger Corp., 303

F.3d 256, 267 (2d Cir. 2002)).

  6.    Determining the Reliability of Dr. Wener's Principles and

                                       Methods

       ¶231 With     the     foregoing    in    mind,   we    now     turn       to   the
question      of   whether      Dr.   Wener's    principles    and        methods     are

reliable such that he can testify about the standard of care

applicable to Dr. Balink.

         i.    Identifying Dr. Wener's Principles and Methods

       ¶232 In     order   to    answer   the     question    before       us,   namely

whether Dr. Wener's testimony is admissible under Daubert, the

first step is to identify the principles and methods Dr. Wener

employed.      The circuit court found Dr. Wener used a "holistic,"
or comprehensive, method of determining the standard of care
                                          20
                                                                    No.   2014AP195.mjg


applicable    to       Ms.    Seifert.      Essentially,     this     comprehensive

method amounts to an expert physician examining the patient as a

whole, determining what, if any, of the risk factors recognized

by the medical community are present within the patient, and

then using that expert physician's experience to interpret the

risk factors and arrive at the standard of care required.                           It

is, as it must be, a case-by-case method to determine what type

of care is appropriate for a particular patient.

      ¶233 Here, Dr. Wener identified the following risk factors

recognized        by   the     medical     community:        (1)    Ms.     Seifert's

prepregnancy weight of 269 pounds; (2) Ms. Seifert's 36-pound

weight gain over the course of her pregnancy; (3) the 131 mg/dL

result     from    the       one-hour     glucose    tolerance     test;     and   (4)

Braylon's estimated fetal weight.                As his method, Dr. Wener used

his experience to determine that these factors indicated that

Ms.   Seifert's        baby    was   at    an    increased   risk     for    shoulder

dystocia and that Dr. Balink fell below the standard of care

because she did not account for this increased risk.
                             ii.   Assessing Reliability

      ¶234 Now that we have identified Dr. Wener's principles and

methods, we must determine if they are reliable and reliably

applied.     In this case, I conclude that the circuit court did

not err when it found Dr. Wener's principles and methods are

sufficiently reliable and reliably applied.                      Dr. Wener showed

how   his     experience           made    his      methodology      reliable      and

demonstrated, through his experience, an understanding of the
applicable standard of care in a way that he can reliably opine

                                            21
                                                                            No.   2014AP195.mjg


about the standard of care required.                          Dr. Wener testified that

he   delivered         7,500      to       8,000    babies,       encountered        shoulder

dystocia, and even brachial plexus injuries, which shows that

Dr. Wener is experienced with the type of medical practice at

issue     in    this      case.         This       experience      in      turn   makes    his

comprehensive methodology reliable because Dr. Wener has used

his factors and his methods in treating his own patients.                                  Dr.

Wener also testified that he has experience as Chairman of the

Department of Obstetrics and Gynecology at Saint Alexius Medical

Center.         Part      of   his     responsibilities          as     Chairman     required

reviewing the work of other doctors and setting the quality of

care for the hospital.               In addition, Dr. Wener testified that he

taught    medical       students        at   the     University       of    California     San

Diego, and he was named "One of Chicago's Top Doctors" by his

peers.         This    testimony       demonstrates         an    understanding       of   the

applicable standard of care by showing Dr. Wener is familiar

with the medical community and more than just his own practice.

When tailoring the reliability analysis to a medical standard-
of-care expert, good grounds may come from the expert's own

experience provided that experience has made him or her familiar

with the type of medicine at issue.                      Dr. Wener shows that here,

and therefore the circuit court did not err when it found his

testimony reliable.

     ¶235 Further,             the     circuit      court     undertook       a   thoughtful

analysis       of   the    admissibility           of   Dr.    Wener's      testimony      that

shows     it    considered           the     reliability         factors     in    order    to
determine good grounds for Dr. Wener's opinion.                              It noted that

                                               22
                                                                 No.   2014AP195.mjg


Dr. Wener is not the kind of junk scientist Daubert sought to

exclude and Dr. Wener's decision not to use medical literature

was     acceptable     because     the        individualized     nature      of     a

determination made when caring for a particular patient is not

something that can be published or peer reviewed.                        Also, the

circuit court correctly found that Dr. Wener's method had an

aspect of testability to it because the factors he relied on

were, indeed, capable of being tested.                   Although it prudently

and accurately observed that the nature of the case was "not in

the nature of engineering or other more hard sciences," the

circuit court properly admitted Dr. Wener's opinion based on Dr.

Wener's experience.

      ¶236 Indeed, I emphasize that the circuit court does have

and must have discretion to apply the Daubert analysis so as to

fit the facts of each particular case, as the circuit court did

here.     See Kumho Tire, 526 U.S. at 150 ("Our emphasis on the

word 'may' thus reflects Daubert's description of the Rule 702

inquiry   as   'a    flexible    one.'        Daubert    makes   clear    that    the
factors it mentions do not constitute a 'definitive checklist or

test.'     And Daubert adds that the gatekeeping inquiry must be

'tied to the facts' of a particular 'case.'" (citations omitted)

(quoting Daubert, 509 U.S. at 591, 593-94)).                      However, this

discretion does not allow the circuit court to abdicate its role

as gatekeeper in performing the reliability analysis.                       Id. at

158-59 (Scalia, J., concurring) ("[T]he discretion [the Court]

endorses——trial-court       discretion         in    choosing    the     manner   of
testing   expert     reliability——is      not       discretion   to    abandon    the

                                         23
                                                              No.   2014AP195.mjg


gatekeeping function. . . . Rather, it is discretion to choose

among reasonable means of excluding expertise that is fausse and

science that is junky.").

      ¶237 As is evident by the circuit court's discussion of the

Daubert factors, it did not abdicate its role as gatekeeper when

admitting Dr. Wener's testimony; instead, the analysis indicates

the   circuit    court    thoughtfully      and   carefully   considered      the

Daubert factors before turning to other considerations.                       The

circuit court used its discretion to tailor its analysis to the

type of expert we have here, namely a medical standard-of-care

expert, and it looked to Dr. Wener's experience in order to

determine reliability.         In so doing, it noted that Dr. Wener

used factors recognized by the medical community that he then

"added up" based on his own experience with delivering babies,

dealing with shoulder dystocia, and setting the quality of care

at his hospital to reach a conclusion as to the standard of care

required here.      This, the circuit court said, made Dr. Wener's

opinion reliable, and I see no error in this conclusion.
                         7.   Dr. Balink's Arguments

      ¶238 Dr.    Balink      makes   two    main    arguments      as   to   the

unreliability of Dr. Wener's opinion.                First, she argues that

Dr.   Wener's    testimony    is    based   on    nothing   but   his    personal

preferences, and second, she argues that Dr. Wener's failure to

ground his testimony in any published medical literature makes

his testimony unreliable.          I address each argument in turn.

      i.   Dr. Wener's Opinion Is More than Personal Preference



                                       24
                                                                                No.   2014AP195.mjg


       ¶239 First, Dr. Balink argues Dr. Wener has nothing but his

personal       preferences         to     support       his    conclusion             as    to    the

standard of care and Dr. Balink's breach of that standard of

care.    Thus, his opinion is unreliable because it reflects only

what    Dr.    Wener       would    do    and    not    what    the    reasonable            family

practitioner practicing obstetrics in 2009 would do.                                       While it

may be true that Dr. Wener practices medicine in the manner he

set    forth       as    the   applicable         standard       of    care,          that       fact,

standing alone, does not transform his opinion into a statement

of    personal      preference.           Dr.     Wener       assisted      in        setting     the

quality of care required at Saint Alexius Medical Center while

he served there as Chairman of the Department of Obstetrics and

Gynecology.         Furthermore, Dr. Wener taught medical students and

was named "One of Chicago's Top Doctors" by his peers.                                     At least

one other court has reached a similar conclusion when presented

with the question of how to determine if a medical standard-of-

care expert's testimony is reliable based on his experience.                                       In

Ellison v. United States, 753 F. Supp. 2d 468, 480-81 (E.D. Pa.
2010), the court dismissed the United States' argument that the

standard-of-care            expert       based    his     opinion          on     his      personal

preferences because, "[t]aken as a whole, Dr. Super's testimony

is    that    he    has    formulated       an    opinion       as    to    the       general——as

opposed to simply his own, personal——standard of care and that,

based on his experience, he had a reliable basis for doing so."

              ii.       There Is No Medical Literature Requirement

       ¶240 Second, Dr. Balink argues that Dr. Wener's failure to
rely    on      published          medical       literature          makes        his       opinion

                                                 25
                                                                            No.    2014AP195.mjg


unreliable.       However,       as    the        Third       Circuit       noted     when    it

addressed     medical   literature           in    the    context        of       differential

diagnosis,

      [i]n the actual practice of medicine, physicians do
      not wait for conclusive, or even published and peer-
      reviewed, studies to make diagnoses to a reasonable
      degree of medical certainty.    Such studies of course
      help them to make various diagnoses or to rule out
      prior diagnoses that the studies call into question.
      However,   experience   with  hundreds   of   patients,
      discussions with peers, attendance at conferences and
      seminars, detailed review of a patient's family,
      personal, and medical histories, and thorough physical
      examinations are the tools of the trade, and should
      suffice for the making of a differential diagnosis
      even in those cases in which peer-reviewed studies do
      not exist to confirm the diagnosis of the physician.
Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999);

see   also    Dickenson,    388       F.3d    at        980       (calling    the     district

court's imposition of a medical literature requirement for a

medical expert "an erroneous statement of the law"); Schneider,

320 F.3d at 406 ("Where there are other factors that demonstrate

the reliability of the expert's methodology, an expert opinion

should not be excluded simply because there is no literature on

point."); Kudabeck v. Kroger Co., 338 F.3d 856, 862 (8th Cir.
2003)        ("[P]ublication          is          not         a       prerequisite           for

admissibility.").          The    Court       itself          noted    in     Daubert        that

"[p]ublication . . . is not a sine qua non of admissibility."

Daubert, 509 U.S. at 593.                  Thus, there simply is no medical

literature requirement of the kind Dr. Balink suggests, and an

expert's decision not to rely on literature does not render his

opinion unreliable provided the expert has something else, like
his experience, to make his opinion reliable.                                 Thus, because

                                            26
                                                                          No.    2014AP195.mjg


there is no requirement that an expert physician's testimony be

based in whole or in part on medical literature and Dr. Wener

showed     how     his    experience         makes    his    opinion       reliable,         the

circuit      court       did    not    err     when    it     admitted          Dr.     Wener's

testimony.

      ¶241 It is true that Dr. Balink produced medical literature

in this case that seemingly contradicted Dr. Wener's opinion,

particularly regarding the threshold to use for the one-hour

glucose tolerance test; however, Dr. Wener was able to meet that

literature and provide an explanation for why, based on his

experience, he did not agree with it.                         Thus, the presence of

this literature does not render Dr. Wener's testimony unreliable

as a matter of law, as Dr. Balink argues.                           Such a conflict of

evidence     boils       down    to    an    issue     of    credibility,             requiring

determination        by    the     trier      of     fact.         "Daubert       makes      the

[circuit] court a gatekeeper, not a fact finder."                           United States

v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006).

      8.     Determining the Reliable Application of Dr. Wener's
                                Principles and Methods

      ¶242 Last in the Daubert analysis, I determine that Dr.

Wener reliably applied his comprehensive method to the facts of

this case.

      ¶243 Under         the     Daubert      analysis,       we    are     to        look   for

reliable principles and methods and a conclusion that logically

follows from those reliable principles and methods.                              See Joiner,

522   U.S.    at     144-46.          If    the    expert's    conclusion             logically
follows       from        reliable           principles        and        methods,           any

                                              27
                                                                              No.    2014AP195.mjg


inconsistencies,6 or flaws, go to the weight, or credibility, of

the expert's testimony as opposed to its admissibility.                                          See

Lees, 714 F.3d at 525.

      ¶244 Such is the case here.                    As detailed above, Dr. Wener

had   a   reliable       method      of     determining           the     standard        of    care

applicable       to     this    case      because       of    his       experience.              His

conclusion       that    Dr.     Balink      breached         that        standard        of    care

logically follows from that method.                      Thus, the inconsistencies

Dr. Balink points to in her brief as examples of an unreliable

application       go    to     the   weight        to   be        given      to     Dr.   Wener's

testimony and not to the question of its admissibility.                                         When

assessing expert testimony, we are looking for good grounds, not

flawless grounds.            "Vigorous cross-examination, presentation of

contrary    evidence,          and   careful       instruction          on    the     burden      of

proof are the traditional and appropriate means of attacking

shaky but admissible evidence."                Daubert, 509 U.S. at 596.

      ¶245 "[W]hen        an    expert       purports        to    apply      principles         and

methods    in    accordance          with    professional            standards,           and    yet
reaches a conclusion that other experts in the field would not

reach,     the    [circuit]          court     may      fairly          suspect       that      the

principles and methods have not been faithfully applied."                                       Fed.

      6
       Dr. Balink complains of inconsistencies in Dr. Wener's
testimony.   As one example, Dr. Balink points to Dr. Wener's
testimony that he would not use a vacuum for a baby with an
estimated fetal weight greater than 4,500 grams by ultrasound
and that babies with an estimated fetal weight of greater than
4,500 grams are associated with an increased risk of shoulder
dystocia.    Dr. Balink argues that Dr. Wener's testimony is
inconsistent for the facts of this case because Braylon's actual
birth weight was only 4,370 grams.


                                              28
                                                                No.    2014AP195.mjg


R. Evid. 702 advisory committee notes (2000 amend.).                       This is

not the case here, and Dr. Wener's testimony may not be excluded

because, as the circuit court noted in the postverdict motion

hearing, Dr. Balink's experts agreed with Dr. Wener in some

respects.        Thus,   the   circuit     court   did    not   have    reason   to

exclude Dr. Wener's testimony because the record discloses no

reason to suspect that Dr. Wener's application of his principles

and methods to the facts of this case was unreliable.

       ¶246 In some cases the expert's conclusion bears on the

reliability analysis because "conclusions and methodology are

not entirely distinct from one another."                  Joiner, 522 U.S. at

146.    For example, "[a] court may conclude that there is simply

too great an analytical gap between the data and the opinion

proffered."       Id.     However,    provided      the   conclusions      of    the

respective expert physicians logically follow from their methods

and there is no analytical gap between the two, a court is not

to choose between the differing conclusions of two experts; such

a determination is left for the jury.              See id.      But this is not
the case with Dr. Wener's testimony despite the fact that Dr.

Balink presented contradictory medical literature and comes to a

different conclusion.           Thus, Dr. Wener's conclusion does not

render his testimony inadmissible because it differs from Dr.

Balink's conclusion.

       ¶247 In    sum,   I     conclude     that   Dr.    Wener's      opinion   is

admissible.       His comprehensive method is reliable and reliably

applied.      This is a result of his extensive experience that
supports his opinion, and the circuit court did not err when it

                                          29
                                                                  No.   2014AP195.mjg


found   Dr.    Wener's       testimony   admissible.        Thus,    Dr.   Balink's

request for a new trial based on the erroneous admission of Dr.

Wener's testimony was properly denied.

         B.     Counsel's Statements During Closing Arguments

    ¶248 Dr.       Balink       next     argues    that    the      circuit        court

erroneously denied her motion for a new trial because the effect

of Atty. Levine's improper statements during closing arguments

unfairly prejudiced the verdict.

    ¶249 Before addressing this argument, I first note that I

conclude that Dr. Balink waived this argument by failing to move

for a mistrial.         See Wagner, 65 Wis. 2d at 249.               However, like

the court of appeals, I choose to address this argument under

the court's discretionary jurisdiction.

    ¶250 A motion for a new trial based on unfairly prejudicial

statements by counsel "is addressed to the discretion of the

trial court."      Id. at 249-50; see also Rodriguez v. Slattery, 54

Wis. 2d 165, 170-71, 194 N.W.2d 817 (1972) ("The trial court is

in a particularly good 'on-the-spot' position to evaluate these
factors.").      Thus, we are bound to uphold the circuit court's

decision      unless   the     circuit    court   erroneously       exercised       its

discretion.       See    Klein     v.    State    Farm    Mut.   Auto.     Ins.,      19

Wis. 2d 507, 511, 120 N.W.2d 885 (1963).

    ¶251 Here,         the    circuit     court    gave    an    account      of    its

reasoning.      I see no reason to say the circuit court erroneously

exercised its discretion by denying Dr. Balink's motion for a

new trial.
                                 IV.     CONCLUSION

                                          30
                                                                  No.    2014AP195.mjg


    ¶252 In      this     instance,     I      conclude    that    experience       is

sufficient to satisfy Daubert's reliability requirement provided

the expert shows how his experience makes his opinion reliable.

No medical literature is required provided this is done.                         Thus,

Dr. Wener's opinion is admissible in this case because he showed

how his experience made his opinion reliable, and the circuit

court   did   not   err    when   it   admitted     his    testimony      at    trial.

Consequently, the circuit court did not err when it denied Dr.

Balink's motion for a new trial based on her argument that the

circuit court erroneously admitted Dr. Wener's testimony.

    ¶253 Further, I conclude the circuit court did not err when

it denied Dr. Balink's request for a new trial based on the

effect of counsel's statements during closing argument.

    ¶254 I do not reach Dr. Balink's request for a new trial in

the interests of justice as Dr. Balink bases the request on the

inadmissibility     of     Dr.    Wener's     testimony    and    the     effect    of

counsel's statements during closing arguments.                     I consider it

unnecessary to reach her request because I conclude that the
circuit court properly admitted Dr. Wener's testimony and the

verdict   was     not     unfairly     prejudiced     by     opposing      counsel's

statements.

    ¶255 Accordingly, I would affirm the decision of the court

of appeals, and I concur in the court's judgment.                              I write

separately, however, to express how I reach this result.

    ¶256 For the foregoing reasons I concur.

    ¶257 I am authorized to state that Chief Justice PATIENCE
DRAKE           ROGGENSACK             joins          this              concurrence.

                                         31
                                                                                   No.    2014AP195.dk


      ¶258 DANIEL           KELLY,         J.         (dissenting).                  I      dissent,

respectfully, because we missed an opportunity to clarify the

standards      for    admission       of        expert      testimony.             This     lack    of

clarity caused us to affirm the admission of testimony that does

not satisfy the requirements of Wis. Stat. § 907.02 (2013–14).1

      ¶259 I        agree    with      the       lead       opinion       that       an     expert's

personal experience can qualify him as an expert under Wis.

Stat. § 907.02, making his testimony sufficiently "reliable" for

admission to the jury.                But that just begs the question:                              In

light     of   that       personal    experience,            to    what       is    the     admitted

expert qualified to testify?                      Here, Dr. Wener's task was to

identify and describe the standard of medical care against which

to    measure       Dr.     Balink's       performance            of    her        duties.         His

testimony failed to satisfy Wis. Stat. § 907.02 because there

was     no     apparent       match        between          this       objective           and     his

qualification                as            an              undeniably                accomplished

obstetrician/gynecologist.                   As       it   turns       out,    we        focused    so

narrowly on Dr. Wener's sterling professional credentials that
we let him become the thing about which he was supposed to

testify.       That is, instead of determining whether Dr. Wener was

qualified      to     discover       and     describe         the      proper        standard       of

medical care, we found that he is the standard of medical care.

                                                  I

      ¶260 The primary question this case presents is whether the

plaintiffs identified a proper standard of medical care against

      1
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                                  1
                                                                No.   2014AP195.dk


which   a   jury   could   measure    Dr.     Balink's   performance     in   the

delivery of Braylon Seifert.2             Even though this case progressed

through a jury trial, an appeal, and review by this court, I

find that I still do not know what that standard might be, or

whether Dr. Wener was qualified to describe it.

    ¶261 Here      is   what    we   do   know.    We    know   young    Seifert

suffered a grievous injury at birth.               We know the injury was

caused by the manner in which he was delivered.                       We know he

could have been delivered differently.              We know that Dr. Wener

says that if young Seifert had been delivered according to the

practices and procedures he described, the injury very likely

would not have occurred.         And I believe he is right.

    ¶262 What I do not know is whether young Seifert's delivery

was done negligently.          The reason I do not know this is because

no one described what care we should expect from the reasonably

qualified family practitioner in the circumstances revealed by

this case.     That is, the jury never received a proper measuring

stick against which to compare Dr. Balink's performance of her
obligations.




    2
       Dr. Balink phrased the issue as whether "an expert
witness' qualifications and personal preferences [are] alone
sufficient to meet Wis. Stat. § 907.02(1)'s new reliability
standard?"    Although this framing conflates the statute's
subjective and objective criteria (as I discuss below), and so
obscures the gravamen of her concern, there is no doubt her
central complaint is that the plaintiffs' expert witness did not
identify a proper standard of medical care.


                                          2
                                                                                No.    2014AP195.dk


       ¶263 As we sketch out the contours of Wis. Stat. § 907.02,3

I think we should use a sharper pencil.                            As it is, we have not

made the necessary distinction between the thing about which an

expert is to testify, on the one hand, and on the other, the

qualification           to   so   testify.              Because   we     did   not     make    that

distinction,            it    almost         necessarily               followed       that      our

"qualification" inquiry focused on the wrong question.

       ¶264 The Seiferts tasked Dr. Wener with demonstrating that

Dr.    Balink      delivered         young   Seifert            negligently.           That    task

comprises         two    separate       responsibilities.                 First,       Dr.    Wener

needed to identify the proper standard of medical care under the

circumstances           of    this      case.            Francois       v.     Mokrohisky,       67

Wis. 2d 196, 200–01, 226 N.W.2d 470 (1975).                              And second, he had

to opine on whether Dr. Balink's performance fell short of that

standard.          Christianson         v.   Downs,         90    Wis. 2d 332,          338,    279

N.W.2d 918 (1979) ("Unless the situation is one where the common

knowledge         of    laymen     affords      a       basis    for    finding       negligence,

expert medical testimony is required to establish the degree of
care and skill required of a physician.").                              Competence in one of

these subjects does not automatically conclude competence in the

other.       The proper standard of medical care and the failure to

meet       that   standard        are   distinct          subjects      and    should     receive

       3
       The standard described in this statute was first
enunciated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993), and later formalized as Federal Rule of Evidence 702 (as
amended in 2000). Because § 907.02(1)'s wording mirrors that of
the Federal Rule, and other states have followed suit, I will
follow the lead opinion's example in consulting relevant cases
from other jurisdictions.


                                                    3
                                                                           No.    2014AP195.dk


distinct       treatment.           This    means       the    proffered     expert        must

satisfy the court he has the necessary qualifications to speak

on each one.

       ¶265 We did not, however, require this of Dr. Wener.                                That

is, we allowed the Seiferts to graft Dr. Wener's competence to

testify       with   respect        to   the   second         inquiry    (performance        in

relation to the standard) onto the first (identification of the

standard).           Perhaps        he   can   authoritatively            speak     on     both

subjects, but we do not know because no one asked.                               And he was

not asked because there was insufficient appreciation of the

need to conceptually separate the two inquiries.                           Here is what I

mean.

                                               A

       ¶266 I assume Dr. Wener is a very talented obstetrician.

Indeed, for the sake of illustration, I will assume he is the

gold    standard      when     it    comes     to   delivering          babies    under     the

circumstances this case presents.                       To what, then, shall we have

him testify?           Shall we learn from him the optimal means of
delivering babies in those circumstances?                        Or should he teach us

how the reasonably qualified family practitioner delivers babies

in     such    circumstances?              There    are       potentially        leagues     of

difference between the answers to these questions.                           If we select

the first, we will hear about the best possible practices that

could have been followed in young Seifert's delivery.                                    If we

select        the    second,        however,       we     will    hear     what      we     may

legitimately expect from any given family practitioner.                                     Put
another way, the first option informs us of the care we all

                                               4
                                                                            No.      2014AP195.dk


want, while the second describes the standard of medical care to

which we may hold all family practitioners accountable.

    ¶267 Qualifying               under       the        first     option           is     pretty

straightforward.              Having       established           himself       as    the       gold

standard,       it     necessarily            follows        that        Dr.        Wener        may

authoritatively        opine       on   how    he        would    deliver      a     baby      when

confronted      with       patients     like       the    Seiferts.         Thus         would   he

establish the standard of medical care for the case, a reference

point we might usefully call the "What Would Wener Do" standard

("WWWD").    This is a narrowly vertical inquiry——we explore the

depth, and precision, of his knowledge, experience, and practice

in relation to the circumstances at hand.

    ¶268 As I will explain at greater length below, qualifying

under the second option calls for something different.                                    It is a

broadly horizontal inquiry.                    It requires that the testifying

doctor   have       more    than    just    knowledge        of    the     best      method      of

delivering      a    baby    in    such     circumstances.            In       light      of     the

natural variability inherent in the practice of medicine, it
requires that he be familiar with what is generally expected of

reasonably qualified practitioners under similar circumstances.4

He must have a source of knowledge that informs him of what

other doctors do under similar circumstances, or describes what


    4
       Francois v. Mokrohisky, 67 Wis. 2d 196, 201–02, 226
N.W.2d 470 (1975) ("The standard to which [physicians] must
conform . . . is determined by the practices of neither the very
best nor the worst of the class. Like automobile drivers,
engineers, common laborers, and lawyers, they are obliged to
conform to reasonable care in the circumstances.").


                                               5
                                                                        No.    2014AP195.dk


they ought to do, or what they must do.                       His knowledge of such

things must be extensive enough that he can distill from it

certain    practices       and    procedures        of    sufficiently         widespread

implementation      that    one    may   conclude          that     they    represent    a

standard known to reasonably qualified doctors in the relevant

field of practice.

    ¶269 If he cannot do this, and yet he testifies, then we

allow him to collapse the medical field into himself, and we

appoint him the reference point against which we measure all

doctors    who    deliver    babies.          For    the      following       reasons,   I

believe    this    is   untenable,       and    it       is   not   what      Wis.   Stat.

§ 907.02 either requires or authorizes.

                                          1

    ¶270 I will begin by describing the nature of the standard

applicable to this case.           That is, I will explain why I believe

it is essential that the standard be external to the testifying

expert.     Afterwards, I will address Dr. Wener's qualification to

testify regarding that standard.
    ¶271 The       Seiferts       bore   the    burden         of   establishing       the

standard of medical care to which they wished to hold Dr. Balink

accountable.       Carney-Hayes v. Nw. Wis. Home Care, Inc., 2005 WI

118, ¶37, 284 Wis. 2d 56, 699 N.W.2d 524.                         Generally speaking,

expert testimony is necessary to meet that burden:                            "Unless the

situation is one where the common knowledge of laymen affords a

basis     for    finding    negligence,        expert         medical      testimony     is

required to establish the degree of care and skill required of a
physician."       Christianson, 90 Wis. 2d at 338.                      Negligence, in

                                          6
                                                                        No.   2014AP195.dk


this case, turns (at least in part) on recognizing circumstances

that call for a three-hour glucose diagnostic test (rather than

a one-hour screening test), when it is necessary to perform an

ultrasound examination of the baby immediately before delivery,

and when a vacuum assistance device may or may not be used to

assist the baby in making his exit from the birth canal.                           These

are     not   subjects      on     which    laypeople         would     commonly     find

themselves knowledgeable.

       ¶272 The expert's first task, therefore, is to identify the

relevant standard of medical care, which must "be established by

a   determination      of     what    it    is    reasonable       to    expect     of   a

professional given the state of medical knowledge at the time of

the treatment in issue."             Nowatske v. Osterloh, 198 Wis. 2d 419,

438-39, 543 N.W.2d 265 (1996), abrogated on other grounds by

Nommensen v. Am. Cont. Ins. Co., 2001 WI 112, 246 Wis. 2d 132,

629 N.W.2d 301.        This means one may not establish a standard

with    reference    to     what     one   doctor,       or   a   non-representative

sampling      of   doctors,       would    do    under    the     circumstances.         A
"standard" is not the same thing as the existence of alternative

procedures or more accomplished practitioners.

       ¶273 A standard is, instead, normative.                     It is a reference

point    external    to     the    testifying      doctor,        something     commonly

accessible by those practicing in the relevant field:

       True, there was evidence that other physicians might
       have acted differently and that there were alternate
       procedures available, but no physician testified that
       what was done did not comport with approved medical
       practice under the circumstances. As we said in Trogun
       v. Fruchtman, 58 Wis. 2d 569, 584, 207 N.W.2d 297
       (1973):
                                            7
                                                                         No.   2014AP195.dk

            '(A) plaintiff must prove the defendant failed to
            give him, not the highest degree of care, but
            merely the reasonable care and skill usually
            possessed    by    physicians   of    the    same
            school . . . .'
Francois,       67   Wis. 2d at      201     (emphasis      added).        A    physician

answers to this normalized reference point, not to the WWWD

standard of medical care:                  "He is obliged to conform to the

accepted standard of reasonable care, but he is not liable for

failing    to    exercise      an   extraordinary        degree     of    care."       Id.

(emphasis added).

    ¶274 Other          courts      reject       self-referential         standards     of

medical    care,       too.      Massachusetts       says    that     "[b]ecause       the

standard of care is based on the care that the average qualified

physician would provide in similar circumstances, the actions

that a particular physician, no matter how skilled, would have

taken     are    not    determinative."             Palandjian      v.     Foster,     842

N.E.2d 916, 920-21 (Mass. 2006).                    The Michigan Supreme Court

recently addressed this issue in Elher v. Misra, 878 N.W.2d 790

(Mich. 2016) (per curiam).                 It rejected the proffered expert's

testimony because "his opinion was based on his own beliefs,

there was no evidence that his opinion was generally accepted

within the relevant expert community, there was no peer-reviewed

medical literature supporting his opinion, plaintiff failed to

provide    any       other    support      for    [the   expert's]        opinion,     and

defendants       submitted      contradictory        peer-reviewed         literature."

Id. at 798 (emphasis added).                     California has long recognized

that "the fact that another physician or surgeon might have
elected to treat the case differently or use methods other than


                                             8
                                                                     No.     2014AP195.dk


those      employed    by    defendant      does    not      of    itself     establish

negligence."       Lawless v. Calaway, 147 P.2d 604, 607 (Cal. 1944).

The District of Columbia says that "[t]he personal opinion of

the    testifying      expert   as    to   what    he   or    she   would     do   in   a

particular case, without reference to a standard of care, is

insufficient to prove the applicable standard of care."                         Travers

v. District of Columbia, 672 A.2d 566, 568 (D.C. 1996).                            South

Carolina's court of appeals has similarly stated that if an

expert "merely testifies as to his own                       personal      standard of

care, rather than the generally recognized and accepted standard

of    care,     such   testimony     is    insufficient       to    survive     summary

judgment."        Melton v. Medtronic, Inc., 698 S.E.2d 886, 893 (S.C.

Ct. App. 2010).          In Wallbank v. Rothenberg, 74 P.3d 413, 416

(Colo. Ct. App. 2003), the Colorado Court of Appeals said that

"a standard of care may not be established by the testimony of

the    personal     practices    of    expert      witnesses."          Georgia     also

follows this rule:           A party "may not establish the applicable

standard of care with evidence of an expert witness's personal
practices, or evidence about the course of conduct the expert

would      have   followed   under     similar     circumstances."            Dendy     v.

Wells, 718 S.E.2d 140, 144 (Ga. Ct. App. 2011).                      Arizona's court

of    appeals     recognizes    that      testimony     regarding     a     physician's

personal practices can be useful to the jury, but only after the

standard of care is established.                  See Smethers v. Campion, 108

P.3d 946 (Ariz. Ct. App. 2005).5


       5
       Treatises reflect the same principles.     See, e.g., 29
Charles Alan Wright & Victor Gold, Federal Practice & Procedure:
                                                     (continued)
                               9
                                                                     No.   2014AP195.dk


    ¶275 Nor        may   physicians     smuggle      their    own    practices     or

preferences past the Daubert gatekeeper by box-checking expected

phrases.     Missouri's court of appeals provided the only logical

response to such an effort.            It reasoned that "[i]n articulating

the appropriate legal standard of care, it is insufficient for

an expert merely to use the terms 'accepted medical standards'

or 'standards of care.'"          Sheffler v. Arana, 950 S.W.2d 259, 267

(Mo. Ct. App. 1997).         Instead, the court said "an expert should

be properly oriented with the meaning of negligence in a health

care provider context and, in fact, employ the legal standards

in offering his opinion."         Id.     The court recognized that "[t]he

purpose of these requirements is to prevent experts from relying

upon their own views of acceptable practice rather than applying

the objective legal standards."           Id.

    ¶276 Our cases, and those across the country, teach us that

a proper standard of medical care is one that is "approved,"

"generally       recognized,"   "customary,"         "generally      accepted,"     or

"objective," and that describes skills "usually possessed" by a
physician    in    the    relevant     field    of   practice.         However     one

chooses     to    synthesize    this    into     a    single    descriptor,        the

manifest    import    is   that    a   standard      of   medical      care    exists


Evidence § 6268.1 (2d ed. 2016) ("In a non-scientific context,
the reliability of an expert's methodology often will be a
function of accepted practice in the area of expertise in
question."); 5 D.W. Louisell & H. Williams, Medical Malpractice
§ 29.01, at 29–7 (2005) ("The standard is measured against what
a reasonably prudent practitioner in the defendant's position
would do, not what any individual physician or physicians might
do.").


                                        10
                                                                    No.    2014AP195.dk


separately     and    apart   from    the         testifying       expert,     it     is

widespread within the relevant medical community, it has gained

at    least   some   acceptance,   and       it   is    legitimate    to     charge    a

reasonably qualified physician with its knowledge.

                                         2

       ¶277 Doctor Wener did not identify such a standard.                     One of

the consequences of not requiring the expert to focus on an

external,      generally-known     standard            is   that    the     resulting

testimony resolves into a self-portrait.                    As the circuit court

and    the    lead   opinion's     characterization           of    his     testimony

demonstrate, that is largely what happened here:

       •    "Dr. Wener formulated an opinion about the
       standard of reasonable care of family practice doctors
       practicing   obstetrics   on   the    basis   of   his
       experiences. . . ." Lead op., at ¶103.

       •    Dr.   Wener's   methodology  consisted   of   the
       "conscientious use of the thousands of instances in
       which he had delivered babies and made decisions about
       the care of individual patients and his teaching and
       hospital experiences relating to obstetrics."     Lead
       op., at ¶105.

       •    "[E]ssentially a comparison of the instant case
       to other deliveries . . . ." Lead op., at ¶106.

       •    "He used his many experiences to arrive at an
       opinion in the instant case that is sufficiently
       similar to his vast array of clinical experiences over
       decades of practice." Lead op., at ¶107.

       •    "The circuit court ruled that Dr. Wener's
       methodology   was  reliable   based  on  Dr.   Wener's
       extensive personal experiences." Lead op., at ¶109.
       ¶278 A review of the transcript confirms the accuracy of

these characterizations.         Here, for example, is the closest Dr.
Wener came to establishing any standard of medical care with

                                      11
                                                                            No.    2014AP195.dk


respect to use of a vacuum to assist in the delivery of young

Seifert:

      My opinion is that the standard of care required that
      a vacuum not be applied on this child at all. Because
      of the risk factors already established for shoulder
      dystocia, and knowing that the vacuum is the largest
      of the risk factors, you're adding a major risk factor
      on top of that. And in my opinion that's why the baby
      had a severe brachial plexus injury.
That may or may not be a proper standard of medical care, but

because he never described how he goes about discovering such

standards, this ends up as the type of ipse dixit that Sheffler

properly rejected.

      ¶279 With           respect     to    whether        Dr.   Balink       should      have

performed       an     ultrasound      immediately          before     young        Seifert's

birth, Dr. Wener said:              "I would have known that an ultrasound——

assuming it's done within the standard of care——would have been

within 10 to 15 percent off.                 And [with] a baby that's 9 pounds

12    ounces,        [an]    ultrasound      would     have      shown       a    macrosomic

infant."    This is two steps removed from establishing a standard

of medical care.             First, he is simply describing what he knows.
And    second,       he     says    nothing        about    whether      this       knowledge

necessarily          means     an     ultrasound           should     have        been    done

immediately      before       birth    to    meet     the    applicable          standard   of

medical care.          And if he believes this is what is required to

meet the standard, he has offered nothing to establish how he

knows this is, in fact, the standard.

      ¶280 Dr.        Wener's       testimony       reveals      he    is        impressively

qualified along the vertical axis; his experience and knowledge
are deep, deep.             Surely this is the physician one would want in
                                              12
                                                              No.   2014AP195.dk


attendance when faced with the Seiferts' situation.                   But his

testimony   along   the   horizontal    axis   was   almost    non-existent.

What he described was what he would have done had he been the

attending physician.       That is, he testified that the relevant

standard of medical care was WWWD; he told us little about what

a reasonably qualified family practitioner ought to have done

for the Seiferts.         Consequently, the jury received the case

without knowing the proper standard against which to compare Dr.

Balink's performance.       And that is why we still do not know

whether Dr. Balink negligently delivered young Seifert.

                                   B

     ¶281 So now I arrive at the subject that gave rise to our

consideration of this case:        Dr. Wener's qualification under

Wis. Stat. § 907.02 to testify about his opinions.              This statute

contains both subjective and objective criteria, both of which

he must satisfy before giving his thoughts to the jury:6

     If   scientific,   technical,   or  other   specialized
     knowledge will assist the trier of fact to understand
     the evidence or to determine a fact in issue, a
     witness qualified as an expert by knowledge, skill,
     experience,   training,   or  education,  may   testify
     thereto in the form of an opinion or otherwise, if the
     testimony is based upon sufficient facts or data, the
     testimony is the product of reliable principles and
     methods, and the witness has applied the principles
     and methods reliably to the facts of the case.
     6
       I use the terms "subjective" and "objective" in their
grammatical sense. These terms separate the one testifying (the
subject) from the thing about which the subject is testifying
(the object). So the subjective element of Wis. Stat. § 907.02
inquires into Dr. Wener's qualifications, while the objective
element concentrates on the thing about which he testifies (the
standard of medical care).


                                   13
                                                                        No.    2014AP195.dk


Wis. Stat. § 907.02(1).

      ¶282 On the objective criterion, Dr. Wener may testify if

his   opinions    are    "based      upon    sufficient         facts   or     data,       the

testimony is the product of reliable principles and methods, and

the witness has applied the principles and methods reliably to

the facts of the case."              Id.        With respect to the subjective

criterion, he must be "qualified as                     an expert by knowledge,

skill, experience, training, or education."                     Id.

                                            1

      ¶283 I have already addressed the objective criterion——it

is the standard of medical care.                  In the context of this case,

"facts   or   data"     are     situations       like     the    Seiferts'         and     how

reasonably qualified family practitioners respond to them.                                 The

"reliable     principles       and   methods"      are    the     means       by    which    a

qualified expert informs himself of those facts and data.                                   As

described above, Dr. Wener offered no such testimony.                                He did

not offer testimony about the skills usually possessed by family

practitioners who deliver babies.                  He did not tell us what the
"generally accepted" practices might be, what is "approved," or

"generally recognized," or "customary."                   Nor did he say anything

about the "principles and methods" he used to discover that

information.      Instead, he offered himself——a supremely qualified

obstetrician——as the standard of medical care.                        The result was a

conflation of the objective and subjective criteria.

      ¶284 This    was     a    mistake      for    two    reasons.            First,       by

allowing    Dr.   Wener    to    become      the    standard      against          which    to
measure Dr. Balink's performance, we eliminate the concept of a

                                            14
                                                                          No.    2014AP195.dk


consistent       and    knowable      standard    against       which     to     measure     a

physician's       performance.           It's     WWWD     this      time.           But    the

plaintiffs in the next malpractice case might employ a different

expert witness, thereby establishing a new standard.                                 So as a

practical matter, no one will know the "standard" of medical

care until the plaintiffs reveal their expert witness.

      ¶285 Second, even if it is appropriate to pick a specific

doctor and make his practices the touchstone, as opposed to an

objectively-verifiable              standard     external       to    the       expert,      we

allowed the plaintiffs in this case to pick the wrong doctor.

Dr.   Wener      is     an    obstetrician.          Dr.    Balink        is     a     family

practitioner.          The standard of medical care expected of each are

not the same.            We must assess a physician's conduct in the

context     of    the    field      in   which    she    practices.              Phelps      v.

Physicians       Ins.    Co.    of    Wis.,      Inc.,   2005        WI   85,     ¶40,      282

Wis. 2d 69, 698 N.W.2d 643.              This is such an embedded principle

in    our   law        that    it    even      appears     in     our     pattern          jury

instructions:

      In (treating) (diagnosing) (plaintiff)'s (injuries)
      (condition), (doctor) was required to use the degree
      of care, skill, and judgment which reasonable (doctors
      who are in the general practice) [or] (specialists who
      practice the specialty which (doctor) practices) would
      exercise in the same or similar circumstances, having
      due regard for the state of medical science at the
      time (plaintiff) was (treated) (diagnosed).   A doctor
      who fails to conform to this standard is negligent.
      The burden is on (plaintiff) to prove that (doctor)
      was negligent.




                                            15
                                                                       No.    2014AP195.dk


Wis. JI——Civil 1023 (emphasis added).                  So if the expert himself

is to be the standard, we should at least require that he is

from the same field of practice.7

     ¶286 Dr. Wener's testimony neither identified a standard

external to himself, nor did it describe what we should expect

of a family practitioner, as opposed to an obstetrician.                                 His

testimony should have been excluded because it did not satisfy

the objective criterion of Wis. Stat. § 907.02.                        Not because he

was unqualified to testify about what he would have done had he

been the attending physician (no one is better qualified to

offer    that   testimony),     but    because        in   the    main       he   did    not

describe    what   we     may   expect       of    reasonably     qualified        family

practitioners, and so failed to satisfy the objective criterion.

                                             2

     ¶287 I say Dr. Wener did not describe the required standard

"in the main" because there were a few pieces of testimony that

contained    the   seed    of   such     a       standard.       For   example,         with

respect to when a three-hour glucose test should be conducted
based on the results of the one-hour glucose screening, Dr.

Wener said the following:

     Q: You're also aware that some, as you mentioned some
     people use a 140?
     7
       If the expert offers proper testimony——that is, a standard
of medical care external to himself——then it is not necessary
that he come from the same field of medical practice as the
physician in question.    Thus, if Dr. Wener can demonstrate he
has the requisite knowledge to identify and describe the
standard of medical care applicable to family physicians in
these circumstances, there is no reason he could not qualify as
an expert.


                                         16
                                                               No.    2014AP195.dk

    A: Yes.

    Q: [O]f what significance was it that the                       glucose
    tolerance one hour testing revealed to be 131?

    A: Well 131 is abnormal.     By 2009, those providing
    obstetrical care were using 130. For many, many years
    prior to that it had been 140.       And then probably
    around the turn of the century . . . changed to 130.
    And by 2009 most everyone was using 130. . . . And to
    use 140 as a cut off is not the right number.
This, of course, is just one piece of information that goes into

describing what a reasonably qualified doctor would do for the

Seiferts     (although    whether   it    describes    the   "cut-off"      family

practitioners, as opposed to obstetricians, were using as of

2009 cannot be determined from the testimony).

    ¶288 If this seed had matured into a fully-formed objective

standard     applicable    to   family        practitioners,   we    would      ask

whether Dr. Wener satisfied the subjective criterion of Wis.

Stat. § 907.02.       We do so by looking to his "knowledge, skill,

experience, training, or education."             Id.

    ¶289 But we would not look at those qualities in a vacuum——

we would be interested in them insofar as they bear on the

objective criterion (the standard of medical care). That is, we

must allow the standard of medical care to focus our attention

on the type of background we should require of the proffered

expert witness.       In this case, we would ask not whether Dr.

Wener   is    a   well-qualified    obstetrician       (he   is).      We     would

instead ask whether he has the knowledge, experience, training,

or education necessary to search out and describe the standard

of medical care we may reasonably expect a family practitioner
to meet.

                                         17
                                                                               No.   2014AP195.dk


       ¶290 The background required by the subjective criterion

may not be as obvious as it might appear.                           As much as we wish

the    practice         of      medicine     to    be    a     scientific       endeavor,         it

inescapably encompasses a substantial amount of art.                                 And to the

extent it is a science, it is nonetheless constantly developing

and evolving.           All physicians learn the practice of medicine in

(presumably) the same general sense——they attend medical school.

But    the       United      States    has    147      medical    schools,8          and    it    is

reasonable         to     expect      that   each       will    offer     instruction         that

varies       in    technique,         emphasis,        expertise,       and    extent.           The

current       result       of    those     natural       variations       is    over       900,000

practicing physicians9 spread amongst 5,600 hospitals10 and many

additional smaller clinics and offices.

       ¶291 Theoretically, those initial variations could amplify

once       the    physician        begins     his      practice     and       encounters         new

methods, analyses, equipment, or experiences.                                 Or, conversely,

they could dampen as the hospitals and other centers of practice

       8
       About the AAMC, Assoc. of Am. Med. Colleges (last visited
Jan. 3, 2017), https://www.aamc.org/about.
       9
       Total Professionally Active Physicians, The Henry J.
Kaiser   Family   Found.   (last    accessed   Jan.   3,   2017),
http://kff.org/other/state-indicator/total-active-
physicians/?currentTimeframe=0&selectedRows=%7B%22nested%22:%7B%
22all%22:%7B%7D%7D,%22wrapups%22:%7B%22united-
states%22:%7B%7D%7D%7D&sortModel=%7B%22colId%22:%22Location%22,%
22sort%22:%22asc%22%7D (stating that in September 2016 there
were 926,119 practicing physicians in the United States).
       10
       Fast Facts on US Hospitals, Am. Hosp. Ass'n (Jan. 2016),
http://www.aha.org/research/rc/stat-studies/fast-facts.shtml
(stating that in January 2016 there were 5,627 U.S. hospitals
registered with the American Hospital Association).


                                                  18
                                                                          No.   2014AP195.dk


impose some measure of uniformity on practitioners.                              Whichever

it is, the result is the same——there is no obvious playbook to

which we, or a practitioner, may readily resort to determine

what    "ought"    to    be    done     in    every    given      circumstance.           The

"ought" is out there, but courts and juries are not equipped to

identify it on their own.                  That is why we need experts to sift

through all the different ways in which physicians treat their

patients, the extant literature on the subject at hand (if any),

and information from any other potentially instructive source,

to identify the common threads with which to stitch together a

standard of medical care.

       ¶292 The background required to do a competent job of such

sifting    and    identifying         is     not   necessarily      the    same    as     the

background that leads to successful, injury-free deliveries of

babies like young Seifert.                 This case calls for an expert who is

familiar with the type of training and experience typical of

family practitioners (not obstetricians), the type of equipment

available    to    them,      the   tests      and    diagnostic        procedures      they
commonly    employ,      and    their       practical      responses      to    situations

like that of the Seiferts.                 This is a background that reflects a

broadly    horizontal         outward       focus——what      do    others       know,     and

experience, and do?            It may be that Dr. Wener has that kind of

background and knowledge, but he did not speak of it in this

case.

       ¶293 This        division       between        subjective        and      objective

criteria    is    essential      to    the     rule   of    law    as    it     relates    to
negligence, especially in the context of medical malpractice.

                                              19
                                                                 No.    2014AP195.dk


When the Seiferts asserted their cause of action against Dr.

Balink,    the   import    of   their   claim    was   that    there     existed     a

knowable standard of medical care and that she failed to conform

to that standard when she delivered young Seifert.                      Dr. Balink

did not know that a court, sometime in the future, would decide

that the standard governing her conduct would be WWWD.                            And

there is no apparent reason why she should have known that.

    ¶294 To      the   extent     the   lead    opinion       concludes      that    a

person's    personal      experience    can     qualify   him     as    an   expert

witness    for   the   purpose    of    testifying     about     a     standard     of

medical care, I have no dispute.             But because our pencil was not

sharp enough in answering that question, the holding we announce

today is that an individual doctor's personal experience can be

the standard of medical care.

    ¶295 And for that reason, I respectfully dissent.

    ¶296 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this dissent.




                                        20
    No.   2014AP195.dk




1
