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Winter 2013 • Volume 11 • Number 3
Wisconsin Civil Trial Journal
Also In This IssuePresident’s Message: Wis. Stat. § 343.15—“How About a Cap for the Silent Majority . . . Parents?” Arthur P. Simpson
Wisconsin Governmental Immunity Law: The Times They Are A-changin’ Catherine M. Rottier
Deposing a Suspected Malingerer: The Use of a Deposition “Opening Statement” Russell M. Ware
Unexplained Injuries and the “Arising Out Of” Condition of Liability Under the Wisconsin Worker’s Compensation Act Daniel L. Zitzer
Deposition Techniques: Get Your Ducks in a Row Kara M. Burgos Andrew B. Hebl Eric J. Ryberg
Reptilian Litigation: A Guide to the So-Called Plaintiff’s Revolution Timothy A. Weaver
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OFFICERS
PRESIDENTArthur Simpson
Simpson & Deardorff, S.C. [email protected]
PRESIDENT ELECTKara Burgos
Moen Sheehan Meyer, [email protected]
SECRETARY/TREASURERJeff Leavell
Jeff Leavell, [email protected]
IMMEDIATE PAST PRESIDENTRollin Krafft
West Bend Mutual Insurance [email protected]
PROGRAM CHAIR Laura Lyons
Bell, Moore & Richter, [email protected]
DIRECTORS
Mark BudzinskiCorneille Law Group, [email protected]
Spencer Davczyk Davczyk & Varline, [email protected]
Amy Goyette West Bend Mutual Insurance [email protected]
Michael Happe Weld, Riley, Prenn & Ricci, [email protected]
Mary RichardsAmerican Family Mutual Insurance [email protected]
Ariella SchreiberRural Mutual [email protected]
Todd SmithGodfrey & Kahn, [email protected]
Fred Strampe Borgelt, Powell, Peterson & Frauen, S.C. [email protected]
Michael VescioSmithAmundsen, [email protected]
Brian WeberJohns, Flaherty & [email protected]
Amicus Curiae Chair Beth Hanan
Gass Weber Mullins, LLC [email protected]
DRI Representative Todd Smith
Godfrey & Kahn, S.C. [email protected]
General Tort & Negligence Chair Catherine Rottier
Boardman & Clark LLP [email protected]
Insurance Coverage Chair Terry Booth
Piper & Schmidt [email protected]
Legislative Chair Bernard McCartan
American Family Mutual Insurance Co. [email protected]
Worker’s Compensation & Employment Law
Kurt Anderson Anderson Kramer, S.C.
Executive Director Jane Svinicki, CAE [email protected]
Account Executive Jenni Rodriguez
Account Coordinator Beth Riefe
Legislative Advisors Andy Cook
Hamilton Consulting [email protected]
Jim Hough Hamilton Consulting
Columnists
Editor
Andrew Hebl Boardman & Clark LLP
Kara M. Burgos Moen Sheehan Meyer, Ltd.
Andrew B. Hebl Boardman & Clark LLP
Eric J. Ryberg Habush Habush & Rottier S.C.
Catherine M. Rottier Boardman & Clark LLP
Arthur P. Simpson Wisconsin Defense Counsel
Russell M. Ware SmithAmundsen LLC
Timothy A. Weaver Pretzel & Stouffer, Chartered
Daniel L. Zitzer Otjen, Van Ert & Weir, S.C.
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In This Issue…
Journal PolicyWDC Members and other readers are encouraged to submit articles for possible publication in the Civil Trial Journal, particularly articles of use to defense trial attorneys. No compensation is made for articles published and all articles may be subjected to editing.
Statements or expression of opinions in this publication are those of the authors and not necessarily those of the WDC or Editor. Letters to the Editor are encouraged and should be sent to the WDC office at 6737 W. Washington St., Suite 1300, Milwaukee, WI 53214. The Editor reserves the right to publish and edit all such letters received and to reply to them.
President’s Message: Wis. Stat. § 343.15—“How About a Cap for the Silent Majority . . . Parents?” by: Arthur P. Simpson, President, Wisconsin Defense Counsel ..........................................4
Reptilian Litigation: A Guide to the So-Called Plaintiff’s Revolution by: Timothy A. Weaver, Pretzel & Stouffer, Chartered ........................................................6
Wisconsin Governmental Immunity Law: The Times They Are A-changin’ by: Catherine M. Rottier, Boardman & Clark LLP .........................................................18
Deposing a Suspected Malingerer: The Use of a Deposition “Opening Statement” by: Russell M. Ware, SmithAmundsen LLC ........................................................................ 26
Unexplained Injuries and the “Arising Out Of” Condition of Liability Under the Wisconsin Worker’s Compensation Act by: Daniel L. Zitzer, Otjen, Van Ert & Weir, S.C. .............................................................31
Deposition Techniques: Get Your Ducks in a Row by: Kara M. Burgos, Moen Sheehan Meyer, Ltd.
Andrew B. Hebl, Boardman & Clark LLP Eric J. Ryberg, Habush Habush & Rottier S.C. .........................................................39
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President’s Message: Wis. Stat. § 343.15—“How About a Cap for the Silent Majority . . . Parents?”by: Arthur P. Simpson, President, Wisconsin Defense Counsel
Wisconsin has a tradition of legislative action from both sides of the aisle. In recent years, we have seen longstanding
statutory provisions concerning uninsured and underinsured motorist coverage modified to prohibit reducing clauses, then within two years modified to allow reducing clauses. Both were a statement of Wisconsin public policy.
We have also seen a statutory cap with respect to punitive damages. There have been previous caps with respect to medical malpractice exposure. There are various caps protecting the government from liability.
Our state has granted immunity to motorcyclists who refuse to wear a helmet. The state has seen fit to limit the responsibility of those who elect not to wear a seatbelt to a maximum of 15% negligence. In short, there has been a crazy quilt of caps and limits with real implications for those involved in accident litigation.
One can debate at length the merits of legislative intervention into the common law regarding recovery for injuries. There are legitimate arguments that bona fide legislative policies justify limiting exposure. There are arguments that the chips should “fall where they may” with no special statutes. Various interests have secured legislative remedies to perceived inequity for years.
One statute that neither side of the aisle has addressed is Wis. Stat. § 343.15(2)(b), also known as “Sponsorship Liability.” The statute provides:
Any negligence or willful miscon-duct of a person under the age of 18 years when operating a motor vehi-cle upon the highways is imputed to the parents where both have custody and either parent signed as sponsor, otherwise, it is imputed to the adult sponsor who signed the application for such person’s license. The par-ents or the adult sponsor is jointly and severally liable with such opera-tor for any damages caused by such negligent or willful misconduct.
This law imposes unlimited liability upon parents or adult sponsors of a minor’s driver’s license. (We wonder how many parents are aware of this provision before an accident.) Strangely, Wisconsin has a $5,000.00 limit on damages “for personal injury attributable to a willful, malicious, or wanton act of the child.”1 On the other hand, if your child “negligently” causes a vehicular accident, the parent faces unlimited liability.
I propose that the legislature amend Wis. Stat. § 343.15(2)(b), adding one sentence—a sentence for parents. That sentence would provide:
The limit of liability for all parents or adult sponsors to all parties from any one accident shall be a maxi-mum of $300,000.00.
The current law imposes unlimited liability upon parents or adult sponsors of a driver’s license. However, parents cannot insure for any one large
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loss, and such a loss can lead to the financial ruin of the parent or sponsor. The amendment allows a parent or sponsor to secure insurance to $300,000.00 (multiple times the current minimum limit for a liability policy in Wisconsin). Parents would then be able to protect themselves from unlimited liability. This would eliminate the game of “Russian Roulette,” which all parents and sponsors play whenever a minor is given the keys to a vehicle. The statute would not impact drivers’ responsibility for all damages. However, it would allow parents who have responsibly secured insurance to limit their liability to a figure far beyond the minimum limit to obtain financial security.
The statutory provision would have the biggest effect on small business owners and professionals. These are the individuals with the greatest risk when their child is involved in an accident.
We are not rewriting the common law here, contrary to many caps and limits. The current statute is not the common law but rather a legislative carve-out of specific liability. We need to modify the statutory rule, not change the common law.
The legislature has seen fit to limit parental liability for willful, wanton, and malicious acts to $5,000.00. It makes no sense to create unlimited liability for parents with respect to driving.
One can imagine an intersection accident with debated negligence but large damages. This is a claim that can legitimately be defended but at the same time not necessarily won by a defendant. The parents are at risk for personal financial exposure simply because their child was involved in an accident. This type of accident is something that happens to adults routinely. The adults remain responsible for their own conduct, but family members are not also rendered liable for actions over which they have no control.
The other type of accident is a more aggrieved situation. The parent may think their child is at a friend’s house for the evening, but the child is involved with underage drinking or some other
wrongful activity that ultimately leads to a serious accident. The child is responsible for that conduct. However, the unknowing parent should not be punished with unlimited tort liability.
The basic goal of the statute is to make sure that someone is financially responsible in the event of wrongdoing by a teen driver who has limited assets. The $300,000.00 requirement would encourage parents to obtain insurance coverage far in excess of the current statutory minimums. This would provide protection to the public but at the same time provide a reasonable protection for parents.
The legislature has carved out a special rule for those who wish for their children to operate a vehicle. The rule is unduly harsh should the child become involved in a severe accident. It should be revised to cap the liability of the parent or sponsor at a figure that allows one to secure appropriate insurance when one allows a teenager to drive.
Arthur P. Simpson has been a practicing Wiscon-sin attorney for over 30 years, specializing in civil defense litigation as well as alternative dispute resolution. He is recognized for his handling of complex issues in high-profile cases. Art has had approximately 250 jury trials, over 50 appellate de-cisions, and has litigated thousands of cases. This experience has given him a unique ability to accu-rately evaluate risks and execute solid strategies in both litigation and negotiation. Art is a frequent speaker (not just on the Collateral Source Rule), the current President of the Wisconsin Defense Coun-sel, and has been selected as a Super Lawyer nine times. Art is a graduate of the University of Wis-consin Law School.
References1 See Wis. Stat. § 895.035(2)(a), (4). Section 895.035 is a
dazzling statute in and of itself, outlining the exposure of parents for acts of a minor child, but the general premise is a cap of $5,000.00 in liability for willful, malicious, or wanton personal injury.
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Reptilian Litigation: A Guide to the So-Called Plaintiff’s Revolutionby: Timothy A. Weaver, Pretzel & Stouffer, Chartered
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Members of the jury, we are gathered here today because the defendant chose to violate safety rules and caused the death
of Mrs. Jones. At the end of the trial I will ask you to return a verdict for the plaintiff and against the defendant. This is how you can send a message to the defendant and all the other people like him that here in Milwaukee County we won’t allow safety rules to be violated, needlessly putting all of us at risk.” If this opening statement sounds familiar, your opponent has adopted the Don Keenan reptilian approach to personal injury litigation. What is this so-called “Plaintiff’s Revolution” and how can we combat it?
The Reptile
Wisconsin and nearly all other jurisdictions bar efforts to have jurors put themselves in the position of the plaintiff and to feel his pain.1 This is known as the prohibition against the Golden Rule. Don Keenan and David Ball wrote a book entitled, Reptile: The 2009 Manual of the Plaintiff’s Revolution,2 in which they offer strategies to appeal to the primitive or reptilian brains of the jurors and to circumvent this prohibition.
Don Keenan is a plaintiff’s lawyer from Atlanta who was the youngest member (1987) and youngest president (1997) of the Inner Circle of Advocates. He boasts 145 verdicts/settlements over $1,000,000, eight over $10,000,000, and one over $100,000,000. David Ball, the self-described “most influential trial consultant” in America, was trained in engineering and professional theater direction and writing.3
Through their seminars, workshops, web site, and other books, they have helped spread the use of these techniques across the country. Their book begins with the “axiom”:
When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.4
Ball and Keenan explain that no life form is immortal so our existence presupposes the survival of our genes from one generation to the next. If our genes are threatened, the most primitive part of our brain will make us act to protect ourselves and our genes. Otherwise, the primitive brain sleeps or “fritters.” Ball and Keenan boldly assert that the plaintiff’s attorney must wake up the reptile in the jurors’ brains and perceive the events that caused injury as a threat to the jurors’ survival. “So in trial, your goal is to get the juror’s brain out of fritter mode and into survival mode. You do this by framing the case in terms of Reptilian survival.”5
The science behind this approach to trial work comes from Paul D. MacLean, a neuroscientist at Yale, who first posited the three-part or “triune” brain. In evolutionary terms, the R-complex is the oldest part of the human brain.6 Neuroscientist Joseph E. LeDoux at New York University added that “consciousness is a small part of what the brain does, and it’s a slave to everything that works beneath it.”7 Dr. MacLean called the R-complex the “Reptilian” brain because it is identical in function to the brains of reptiles. At that level, all human beings are nearly identical.8
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Ball and Keenan portray the reptile in all of us as having simple needs: her genes must survive, spread, and prosper. The reptile is the source of all important desires: sex to continue our genes, success or importance so mates will want us for reproduction, and altruism so society will protect us. The reptile has no interest in justice unless it helps her genes survive. She has no anger, intelligence, fear, love, morality, or emotions—she invented those things to get us to do what she wants.9
The authors claim that tort reform has been effective in portraying the plaintiff’s bar as a menace to the local economy, the development of new products, the sustaining of a reasonable consumer price index, and available, quality healthcare.10 By identifying these threats, tort reformers woke up the reptile and made her an ally of the defense. Keenan and Ball advocate that the plaintiff’s lawyer should likewise try to make the reptile an ally of the plaintiff by showing the jury the immediate danger of the kind of wrong the defendant committed and how compensation can diminish that danger in the community.
To determine whether the defendant’s act was negligent and thus represents a threat to the community, the jury needs to answer three questions:
1. How likely was the act or omission going to hurt SOMEONE?
The plaintiff needs to show that this was not a freak occurrence or accident and that there is a danger to the jurors if this kind of wrong is allowed to be repeated.
2. How much harm COULD it have caused?11
The plaintiff should emphasize just how much harm could have occurred from this wrongful act.12 This is especially important for small cases. “There are no small cases. Only small lawyers.”13 The proper measure of the danger created by the defendant is the maximum harm the act could have caused, not merely what harm it did cause.14
3. How much harm could it have caused in OTHER KINDS OF SIT-UATIONS?15
The plaintiff should point out that this type of neg-ligence could cause harm in a variety of situations, including situations that the jurors themselves might encounter, not just in the peculiar circumstance of the plaintiff.
The authors urge the plaintiff’s lawyer to use these questions to wake up the reptiles in the jury and frighten the jury so they will return a plaintiff’s verdict.16 As to the measure of damages, Ball and Keenan press the themes of “harms and losses.”
The only two things you will be al-lowed to take into account are the harms and losses the defendant caused. So during trial, we’ll show you those harms and losses.17
The authors thus present a clever way to circumvent the prohibition against the Golden Rule argument and also to violate the Wisconsin law of damages.
Safety Rules
Rather than showing an appreciation for the complexities of product design and medical practice, the reptilian approach is to oversimplify the facts and portray risk-benefit analyses as safety rules. These rules must prevent the danger shown in the case, protect us in a wide variety of situations, be clear and practical, and be impossible to reject.18 They are then broadened so that they prevent others from “needlessly endangering the community.”19
The authors advocate working from the most specific safety rule to the most general to wake up the reptile. For example, the “rule” of differential diagnosis in a birth trauma malpractice case will be described as applying to all doctor-patient encounters. That way, the juror who hates kids will see that it might apply to him in the ER! The plaintiff’s emphasis should be that the only allowable choice for the defendant to have made was the safest choice, not a
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reasonably prudent choice. The rule then becomes a theme transformed into a behavioral imperative for the jury.20
In opening statements, the plaintiff’s attorney will tell a story of what the defendant did wrong, and note that the lawyer is suing because the defendant chose to violate a safety rule. The plaintiff’s attorney will state that the violation injured the plaintiff and could injure anyone in the community, and that such violations needlessly endanger the community.21 Expert testimony will be framed in terms of violations of these safety rules.22
For example, the plaintiff in a missed-diagnosis case will claim that the defendant doctor violated the safety rule of a differential diagnosis requiring the physician to list all the conditions that the patient could have and then taking the steps necessary to rule out those conditions, focusing on the worst condition first. Another plaintiff will claim that the defendant manufacturer violated the safety rule of making brakes that allow a vehicle to stop in a safe distance.23 These defendants are portrayed in court as trying to escape responsibility for having chosen to violate public safety rules, thereby further endangering the community (the reptile) and showing others that they too can get away with such violations.24 We thus have the Golden Rule argument by the proverbial backdoor (endangering the community), a suggestion of willful and wanton behavior (choosing to violate a safety rule), and exemplary or punitive damages even when they are not allowed (by “sending a message” to others so that it does not happen again).
In a recent medical malpractice case this author tried to verdict, the plaintiff’s lawyer asked his expert, “Standard of care—those are medical safety rules, is that fair?” My objection was overruled. He then asked, “Can we agree that the standard of care is what a reasonably careful doctor would do—those are like safety rules?” The expert agreed. Later, the expert said that the rule requiring the physician to see patients in nursing homes 30 days and prepare progress notes for each visit “is there for safety reasons at a minimum.” The defendant was required to follow the rule “both because it’s
a regulation for Medicare but [also] for patient safety.” Later he said, “Yeah, it still would have been a breach because the patient really required it, standard of care wise and safety wise, a lot sooner.” Progress notes are essential because there are “safety measures behind that. It’s a safe way to practice….” Coming in sooner to the nursing home would have been “practicing medicine safely and providing a standard of care approach.”
The peroration was: Q: Does a reasonably careful internist
follow the safety rules? A: Oh, yeah. Q: Did Dr. ***? A: No, in the multiple ways that I have
outlined he simply didn’t in this case.
Ball and Keenan recommend that the reptilian approach begin with the depositions of the defendants and their experts. Have them agree that what is required is the safest approach. The defendants must not needlessly endanger the public. If the defense witnesses agree, the plaintiff’s lawyer can use those answers effectively at trial with his own experts, in opening statements, in cross examination, and in closing. If the defense witnesses disagree, they will be portrayed as hypocritical, dishonest, or stupid.25
Combatting the Reptile
The most important step defense counsel can take is to alert his witnesses to the semantic pitfalls of the reptilian approach to litigation. It is crucial that the defense witnesses not agree with the distortion and oversimplification inherent in the safety first, last, and always approach.26 At deposition the plaintiff herself will not likely speak in those terms, but the depositions of defense witnesses may be built on that platform. For many years plaintiff’s lawyers have asked standard of care questions in malpractice cases without using the phrase or by disguising the concept. Some of the questions this author has collected over the years are as follows:
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• Must a doctor do everything he thinks he should do for the patient to meet the stan-dard?
• Must the doctor err on the side of safety in caring for his patient?
• Should the nurse have acted as a patient ad-vocate under those clinical circumstances?
• Must the doctor take all reasonable steps necessary to protect the safety of the pa-tient?
• Would the better approach have been to ...?
• Must the doctor take steps to rule out every condition in the differential diagnosis?
• Would you have expected the defendant doctor to have known ... to have done ...?
• Was it appropriate for the doctor to have done ...?
Keenan and Ball add questions to seek agreement with the following platitudes that portray a distortion of the practice of medicine:
• Doctor’s job is to work with other doctors to get the best result.
• Doctor’s job is to seek advice from other doctors.
• Doctor’s job is to make the nurses feel secure in speaking up and going over the doctor’s head when necessary.
• Doctor’s job is to keep up with applicable rules and protocols.
• Doctor’s job is to be responsible for safe-ty.27
How does defense counsel combat this? We start with Wisconsin Jury Instructions-Civil 1023, which defines standard of care. The first two paragraphs read as follows:
In treating [plaintiff’s] condition, _________was required to use the
degree of care, skill, and judgment which reasonable _____________would exercise in the same or similar circumstances, having due regard for the state of medical science at the time plaintiff was treated. A doctor who fails to conform to this standard is negligent. The burden is on plaintiff to prove that defendant 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 care and treatment. The standard you must apply in determining if _______ was negligent is whether he failed to use the degree of care, skill, and judgment which reasonable ___________ would exercise given the state of medical knowledge at the time of the treatment in issue.28
Teach your defendant and the defense expert this standard, showing them the jury instruction and explaining that this, not safety first and always, is what the jury will be told. This understanding will fortify them in their resistance to distortion of the duty when they are cross examined.
What about the Keenan declaration, “If there’s more than one way to achieve the same benefit, a physician has to choose the one with the least risk”? Keenan also proclaims, “Because if there’s extra risk, that’s needless danger.” Finally, Keenan says, “The only allowable choice is the safest available choice.” Wisconsin Jury Instructions-Civil 1023 rebuts these distortions nicely:
If you find from the evidence that more than one method of treatment for the plaintiff’s condition was recognized as reasonable given the state of medical knowledge at that time, then the doctor was at liberty
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to select any of the recognized methods. A doctor was not negligent because he chose to use one of these recognized treatment methods rather than another recognized method if he used reasonable care, skill, and judgment in administering the method. 29
How do we overcome the plaintiff’s theme of safety-rules? Standard of care is not a set of safety rules, as the jury instruction demonstrates. General statements or guidelines are not iron-clad rules and are not always fact applicable. Throughout the case emphasize that the defendant did not choose to violate a safety rule. He chose a reasonable course of action based on available information. There are no sure fixes or cures or interventions that can be used with the same result in each case. Therefore, these ideas proffered by the plaintiff’s expert are not safety rules but merely his argument for a plaintiff’s verdict based on hindsight.
At trial, the defense opening statement must demonstrate the complexity of the circumstances the defendant was in at the time of the alleged negligence and how the defendant made reasonable choices consistent with the reasonable person standard. Point out the hindsight bias the plaintiff’s version reveals. Ordinary care to avoid unreasonably dangerous products and reasonable care do not require the safest alternative. Otherwise, cars would have to be made like tanks on the outside with race car protections on the inside and would cost more than $500,000. Doctors would almost never operate.
When deposing plaintiff’s expert, ask the witness to cite literature that characterizes the referenced guideline as a safety rule. She will not be able to do so. Use portions of the jury instructions to seek agreement with these statements of law. If she disagrees, consider a motion in limine to bar or limit the testimony. Alternatively, you may choose to rely on cross examination at trial with the expectation that her credibility will be damaged. Whether to file a motion to bar or rely on cross examination
is a trial strategy issue beyond the purview of this article. One must assess all the players to decide: plaintiff’s lawyer, expert, and most important of all, the judge. The point is to address the issue during discovery as well as during trial.
In the product liability field, Keenan advocates asking the following questions:
• Is a car-maker allowed to needlessly endanger the public? Even if the car-maker has met all federal regulations?
• Is a car-maker allowed to hide a danger? Even if the car-maker has met all federal regulations?
• Give us examples of how that can cause harm to people.
• Give us an example of a car that met all federal regulations that still had something dangerous on it that should have been made safer.
• Give us examples concerning other kinds of products for which violating safety-test results could cause harm to people.
• Does a car manufacturer have to make safety more important than profit?30
Defense counsel could use Wisconsin Jury Instructions-Civil 3200 to demonstrate to defense witnesses and at trial to the judge and jury that the above-delineated questions distort product liability law in Wisconsin. Instruction 3200 states in pertinent part as follows:
The duty of the manufacturer or supplier of a product is to exercise ordinary care to ensure that the product will not create an unreasonable risk of injury or
damage to the user or owner when used in its intended or foreseeable manner…. A manufacturer … is required to exercise ordinary care in the manufacture of its product in the following respects: (1) safe design of the product so that it will be fit for its intended or foreseeable purpose; (2) construction of the product so that the materials and workmanship furnished will render the product safe for its intended or foreseeable use; (3) adequate inspections and tests to determine the extent of defects both as to materials and workmanship; (4) adequate warnings of danger in the use of the product and adequate instructions as to the proper use of the product which is dangerous when used as intended.31
Wisconsin law thus recognizes that many products pose dangers to users and bystanders, but that those dangers do not prove the manufacturer negligent. Even cases relying upon strict liability in tort require proof that the product was “in a defective condition unreasonably dangerous.”32 A product is said to be defective
when it is in a condition not contemplated by the ordinary user or consumer which is unreasonably dangerous to the ordinary user or consumer, and the defect arose out of design, manufacture, or inspection while the article was in the control of the manufacturer. A defective product is unreasonably dangerous to the ordinary user or consumer when it is dangerous to an extent beyond that which would be contemplated by the ordinary user (consumer) possessing the knowledge of the product’s characteristics which were common to the community. A product is not defective if it is safe for normal use.33
Once defense witnesses (client engineers and retained experts) understand how negligence and defective condition are defined, they can avoid agreeing with the distortions set forth in the Keenan list of questions. “Unreasonably dangerous” is a standard much different from the requirement that the manufacturer consider safety first, last, always, and above profit. Furthermore, it is likely that the product in question is sufficiently complex that the notion of a safety rule violation will be seen by the jury as inadequate for their task.
It will be easier for the plaintiff to talk about safety rules in automobile accident cases. Still, a safety law will not apply unless the court determines that: (1) the harm inflicted was the type the statute was designed to prevent; (2) the person injured was within the class of persons sought to be protected; and (3) there is some expression of the legislative intent that the statute become a basis for the imposition of civil liability.34 If no traffic law was violated and the plaintiff is relying upon negligence, the plaintiff must prove that the defendant did “something or failed to do something that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.”35 There is a difference between unreasonable risk and any risk.
Finally, the Reptilian approach invites the jury to circumvent the law of damages. The authors maintain that the danger caused by the defendant’s act is measured by the maximum harm it could have caused. While this may seem like a breach of duty argument, it becomes a damages argument in the Reptilian approach. “The levels of all the harms and losses caused by the defendant are the only things jurors are allowed to use to decide money.”36 Defense counsel should prepare a motion in limine based on Wisconsin Jury Instructions-Civil 1700: “[Y]ou should award as damages amounts which will fairly compensate” the plaintiff.37 The standard is fairness, not “harms and losses.”38 Another motion in limine could be used to prevent the “send a message” argument, which is a thinly disguised request for exemplary or punitive damages and which is inappropriate in a negligence case involving only compensatory damages.39
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Conclusion
The plaintiff’s bar is not enamored of the reasonable person standard and therefore substitutes the notion of safety first, last, and always. The questions suggested by Ball and Keenan show intentional use of improper form and foundation, so object! Prepare defense witnesses to hear the descriptive words “needless” and “needlessly” when they are asked questions about “needless danger” and “needlessly exposing.” Make sure they understand the relevant definitions of negligence. Have the plaintiff’s experts accept at least portions of the jury instructions that are helpful to the defense. Show that the circumstances were complex, rendering the notion of safety rules inapplicable to the case and ineffective in court. Prepare motions in limine to alert the trial judge to these tactics. Even if the motions are denied, the judge will understand your objections during trial and be more likely to sustain them. Remember, a reptile is merely an animal that crawls on its belly.
Timothy A. Weaver is an equity partner at the Chi-cago law firm of Pretzel & Stouffer, Chartered, where he concentrates his practice in insurance de-fense litigation, including the defense of physicians and hospitals in malpractice jury trials. He is a graduate of Brown University, A.B., cum laude, and University of Illinois College of Law, J.D., where he was Notes Editor of the Illinois Bar Journal. He is licensed in Illinois and Wisconsin and has con-ducted more than 75 jury trials.
References1 Rodriguez v. Slattery, 54 Wis. 2d 165, 194 N.W.2d 817
(1972); Larson v. Hanson, 207 Wis. 485, 242 N.W. 184 (1932); Kellogg v. Viola, 73 Wis. 2d 96, 242 N.W.2d 251 (1975); see generally Ted M. Warshafsky and Frank T. Crivello, II, 11 Trial Handbook for Wisconsin Lawyers, § 34:07, at 339 (Wisconsin Practice Series, Thomson/West 2005); see also ILLINOIS: Leggett v. Kumar, 570 N.E.2d 1249 (Ill. App. 2d Dist. 1991); Chakos v. Ill. State Toll Hwy. Auth., 169 Ill. App. 3d 1018 (Ill. App. 1st Dist. 1988); Copeland v. Johnson, 211 N.E.2d 3887 (Ill. App. 2d Dist. 1965); IOWA: Russell v. Chicago, Rock Island & Pac. RR,
86 N.W.2d 843 (Iowa 1957); MINNESOTA: Mueller v. Sigmond, 486 N.W.2d 841 (Minn. App. 1992); Omlid v. Lee, 391 N.W.2d 62 (Minn. App. 1986).
2 David Ball and Donald Keenan, Reptile: The 2009 Manu-al of the Plaintiff’s Revolution (Balloon Press 2009).
3 Id., back cover.4 Id. at 17. Throughout the book the authors refer to the
reptile as “she.”5 Id. at 18.6 Id. at 13.7 Id. (citing Jonah Lehrer, How We Decide, at 23 (Houghton
Mifflin Harcourt 2009)).8 Id. at 13.9 Id. at 21-22.10 Id. at 25-26.11 Id. at 30-31.12 Id. at 31-33.13 Id. at 225-32.14 Id. at 33, 225-27.15 Id. at 30-31.16 Id. at 31-35.17 Id. at 108.18 Id. at 52-53.19 Id. at 55.20 Id. 55-66; see also Don Keenan, The Keenan Edge, at 99-
113 (Balloon Press 2012).21 Ball and Keenan, Reptile, at 129-38.22 Id. at 139-44.23 Id. 56-66.24 Id. at 55.25 Id. at 143-44, 209-24.26 Id. at 214.27 Id. at 224.28 WIS JI-Civil 1023 (emphasis added).29 Id. (emphasis added).30 Ball and Keenan, Reptile, at 209-10 (emphasis added).31 WIS JI-Civil 3200 (emphasis added).32 Id.33 WIS JI-Civil 3260 (emphasis added).34 Tatur v. Solsrud, 174 Wis. 2d 735, 743, 498 N.W.2d 232
(1993); Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis. 2d 44, 64-65, 596 N.W.2d 456 (1999) (cited in WIS JI-Civil 1005).
35 WIS JI-Civil 1005.36 Ball and Keenan, Reptile, at 33, 110 (emphasis added).37 (Emphasis added).38 WIS JI-Civil 1700.39 Wis JI-Civil 1707.1 (“The purpose of punitive damages is
to punish the wrongdoer or deter the wrongdoer and others from engaging in similar conduct in the future.”) (emphasis added).
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Wisconsin Governmental Immunity Law: The Times They Are A-changin’by: Catherine M. Rottier, Boardman & Clark LLP
If you thought you knew everything you needed to know about Wisconsin governmental immunity law, guess again. The times are definitely
changing.
During a Spring 2013 term that produced few opinions on tort-related topics, the Wisconsin Supreme Court did issue a trio of important decisions on governmental immunity from suit. Overall, the decisions lessen the broad scope of immunity and make negligence and nuisance claims against governmental entities more viable. The three new decisions are Bostco, LLC v. Milwaukee Metropolitan Sewerage Dist.,1 Showers Appraisals, LLC v. Musson Bros., Inc.,2 and Brown v. Acuity.3 All three of these decisions are significant. The one that generated the most heat and warrants the most analysis is Bostco.
A. The Bostco Decision
The slip opinion for this case features a 54-page majority opinion authored by Justice Roggensack, a 17-page concurrence by Justice Gableman, and a 60-page dissent by Chief Justice Abrahamson, joined by Justice Bradley. Justice Prosser did not participate. At issue were claims first brought in 2004 by the owners of the Boston Store against the Milwaukee Metropolitan Sewerage District (MMSD) for its alleged negligent operation and maintenance of a sewer system called the Deep Tunnel. Its operation allegedly resulted in excessive groundwater seepage and significant damage to the wood pilings that held up the five interconnected buildings that housed the Boston Store.
Pretrial motions weeded out a number of legal theories and left only two common law claims—negligence and private nuisance—for jury trial. The jury found MMSD causally negligent in its maintenance of the Deep Tunnel near Bostco’s buildings and awarded Bostco $3 million for past damages and $6 million for future damages. The jury also found Bostco to be 30% contributorily negligent. As a result, the $9 million damage award was reduced to $6.3 million.
With respect to the nuisance claim, the jury found that: (a) MMSD negligently interfered with Bostco’s use and enjoyment of its property; (b) MMSD could abate the interference by reasonable means and at a reasonable cost; but (c) the interference did not result in “significant harm” to Bostco. This meant the nuisance claim failed.
The circuit court declined, on post-verdict motions, to reverse the jury answer finding “no significant harm” for purposes of Bostco’s nuisance claim. Also, the court denied the request of MMSD for judgment notwithstanding the negligence verdict on the grounds of governmental immunity. However, the court agreed with MMSD that the $50,000 damage cap set forth in Wis. Stat. § 893.80(3) applied. Therefore, the court reduced the recoverable damages from $6.3 million to $100,000 ($50,000 each for Bostco and its co-plaintiff, Parisian).
In response to those determinations, Bostco reasserted its claim for equitable relief, arguing that a $100,000 damage award on $6.3 million of damages created an inadequate remedy at law. The trial court agreed. As a form of equitable relief, the court ordered MMSD
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to abate the nuisance caused by its maintenance of the Deep Tunnel.
Both sides appealed. In a published decision, the court of appeals reversed the trial court on the issue of “significant harm” and found that Bostco had proved its claim for private nuisance. However, while affirming the conclusion that MMSD was not entitled to immunity under Wis. Stat. § 893.80(4), the court of appeals reversed the order for abatement, concluding that Bostco’s recoverable damages were capped by statute at $50,000 per claimant and equitable relief was not authorized. The court of appeals further held that the $50,000 cap was constitutional and it applied to Bostco’s continuing nuisance claim.
After both sides successfully petitioned for review, the Wisconsin Supreme Court weighed in on the thorny issues of governmental immunity and the availability of equitable relief.
1. Issue #1: Was MMSD Entitled to Immunity?
The court’s answer: No.
By its decision, the court sought to reel in the expansion of governmental immunity by earlier case law that seemed to afford immunity to all acts of governmental employees or agents that required some discretion in the manner of performance. Finding that standard too open-ended, the court majority returned to the language of Wis. Stat. § 893.80(4), which disallows suits against governmental entities and employees for “acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.”
The court noted that this statutory language was intended to codify the decision in Holytz v. City of Milwaukee,4 a case which famously said that, with respect to claims against governmental entities, “the rule is liability—the exception is immunity.”5
In this case, the court acknowledged that the initial decision by MMSD to build and operate the Deep Tunnel was a quasi-legislative decision for which MMSD was immune from suit. However, that immunity did not extend to the manner in which
MMSD chose to maintain the Deep Tunnel. Once MMSD had notice that excessive siphoning of groundwater from around Bostco’s building supports was damaging the building foundation, MMSD had a duty to abate the private nuisance its manner of maintaining the Deep Tunnel had created. Having made the discretionary policy decision to install a sewerage system, the municipal entity is under a subsequent ministerial duty to maintain the system in a safe and working order that does not cause damage to the property of others.
In his concurrence, Justice Gableman added his voice to those of other justices in other cases (e.g., Justice Prosser in Umansky v. ABC Insurance Co.6) urging a reevaluation of municipal immunity guideposts. He called on the court to adopt a new test for determining whether governmental action is “legislative, quasi-legislative, judicial, or quasi-judicial” so as to warrant immunity. Under his formulation of the test, only upper level policy and planning decisions would be immunized and all other actions would not be shielded by governmental immunity.
In dissent, Chief Justice Abrahamson noted that the initial decision of MMSD to construct and operate the Deep Tunnel was exactly the kind of upper level policy and planning decision for which the legislature intended immunity. The dissent argued that the maintenance of the Deep Tunnel was in furtherance of the original policy decision to install the system in the first place, so its maintenance should be immunized as well.
The Take Away on Issue #1. The court is moving away from the discretionary/ministerial distinction in deciding questions of immunity. Going forward, fewer governmental actions will be found to be immune from tort claims.
2. Issue #2: Is the $50,000 Per Claim Cap Constitutional?
The court’s answer: Yes.
The jury found past and future damages of $9 million. Plaintiffs were 30% causally negligent, so damages would be reduced to $6.3 million. The question
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was whether an award of $50,000 per plaintiff, pursuant to the damage cap in Wis. Stat. § 893.80(3), violated equal protection of the law and, therefore, was unconstitutional. On this issue, there was no disagreement. The court held that the legislature had a rational basis for imposing a $50,000 damage cap. The purpose was to protect the public fisc.
Caveat. In footnote 35 of Bostco, the court offers the worrisome prospect that multiple sequential damage caps might be available for multiple sequential actions based on the same continuing nuisance. The court observes that a continuing nuisance constitutes multiple, constantly recurring actions, each giving rise to a new cause of action. Other than to note this issue, however, the court does not address it, as the case before it presented only a single nuisance action.
3. Issue #3: Does the Damage Cap in Wis. Stat. § 893.80 Preclude a Court From Ordering the Equitable Relief of Abatement?
The court’s answer: No.
After concluding that MMSD was not entitled to immunity and was subject to the $50,000 per claimant cap, the court of appeals further decided no equitable relief against MMSD was available because such a remedy would “render the damage cap set forth in Wis. Stat. § 893.80(3) superfluous.” On this key issue, the supreme court reversed. Over the strong dissent of Chief Justice Abrahamson and Justice Bradley, the court majority concluded that the equitable remedy of abatement, even one costing millions of dollars, was available because it was not specifically prohibited by the language of the governing statute. The court noted that § 893.80(3) limited “the amount recoverable by any person” and observed that an order for abatement does not entitle “any person” to “recover” any “amount.”7
The court acknowledged that the legislature provided in Wis. Stat. § 893.80(5) that the provisions and limitations set forth in the statute “shall be exclusive.” The court of appeals read that language to mean that equitable remedies, like injunctions and abatement orders, were not available. The supreme
court disagreed, holding that the failure of the statute to specifically mention equitable remedies meant that those remedies were not foreclosed. The court stated: “When a statute fails to address a particular situation, the remedy for the omission does not lie with the courts. It lies with the legislature.”8
The court did not address the likely costs of abatement or the ability of the sewerage district to fund corrective action, an omission the dissent emphasized. Also left unanswered was the effect of plaintiff’s 30% contributory negligence on the costs of the abatement remedy. Would Bostco end up having to pay 30% of an abatement remedy that might cost upwards of $10 million? The court does not say. The matter was remanded to the circuit court for a hearing on the proper means of abatement and, one suspects, its likely cost.
B. The Showers Decision
The issue here was the availability of immunity for a private business that contracted with a governmental entity to perform services in connection with a public works project. The overall impact of the court’s decision is to limit those occasions on which governmental immunity will extend to private contractors.
Mark Showers and his businesses brought suit to recover for flood damage to property they owned in the City of Oshkosh. Showers claimed his property was damaged by actions taken by defendant Musson Brothers, Inc., a private company that provided sewer removal and installation services under contract with the Wisconsin Department of Transportation (DOT). Both the circuit court and the court of appeals had concluded on summary judgment that Musson Brothers was a governmental contractor entitled to immunity under Wis. Stat. § 893.80(4), as applied in Estate of Lyons v. CNA Insurance Companies.9
In a unanimous decision, the Wisconsin Supreme Court reversed. In so doing, it announced a new framework for deciding cases of governmental contractor immunity. To obtain immunity, the governmental contractor henceforth must show two
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things: (1) that the contractor meets the definition of “agent” under Wis. Stat. § 893.80(4); and (2) that the contractor’s act is one for which immunity is available under the statute. A contractor is an “agent” for § 893.80(4) purposes only if the contractor is acting pursuant to “reasonably precise specifications” imposed by the governmental agency in charge of the project.
Even if the contractor gets past the requirement of showing reasonably precise specifications, the contractor is not home free. To benefit from immunity, the contractor must clearly allege in his pleadings why the injury-causing conduct falls within a legislative, quasi-legislative, judicial or quasi-judicial function for which immunity is available under the statute. An allegation of negligently performed work will almost never generate immunity unless the contractor is able to show that the alleged negligent performance was nothing more than the implementation of a policy decision on how the public works project would be built and operated.
In setting forth its new construct for evaluating claims of governmental contractor immunity, the supreme court was intent on limiting the circumstances in which immunity would lie. The court’s purpose was to “avoid extending blanket immunity for claims of negligently performed work against governmental contractors when the sole basis for immunity is that the work was performed pursuant to a contract with a governmental entity.”10
In this case, Showers’ property was damaged when two severe rainstorms in June 2008 inundated the street where Showers’ property was located, the same street where a sewer project was underway. During the course of the project, Musson had disconnected the storm sewers in the area and this allegedly compromised the City’s ability to manage storm water.
The contract DOT entered into with Musson made Musson, as contractor, “solely responsible for the means, methods, techniques, sequences, and procedures of construction.”11 Thus, Musson was not subject to reasonably precise specifications imposed
by DOT. As a result, Musson was not an “agent” of DOT for purposes of Wis. Stat. § 893.80(3).
Because Musson failed the first part of the test for immunity, the court could have ended its decision without discussing the second part of the test. That was definitely not what the court had in mind, however. The court went out of its way to make clear that there can be no immunity even for a contractor working pursuant to reasonably specific and government-imposed requirements unless the work itself is in furtherance of a governmental policy decision for which immunity is granted by the statute.
In an interesting paragraph, the court says it is not changing the standard for the immunity inquiry under Wis. Stat. § 893.80(4), but then goes ahead and changes the standard anyway. The court writes:
This immunity inquiry under § 893.80(4)—examining whether a governmental entity’s conduct was an exercise of a “legislative, quasi-legislative, judicial or quasi-judicial function”—gives effect to the legislature’s prerogative regarding the circumstances in which immunity may be available under § 893.80(4). Although some of our cases have equated § 893.80(4)’s “legislative, quasi-legislative, judicial or quasi-judicial” standard with the term “discretionary,” see, e.g., Olson, 143 Wis. 2d at 710, n. 5; Lifer, 80 Wis. 2d at 511-12, and although our decision is not intended in any way to alter that standard, we do emphasize that the legislatively selected policy decision regarding immunity under § 893.80(4) is best honored by applying the legislature’s chosen plain language, rather than a judicial distillation thereof.12
Justice Crooks wrote a concurrence in Showers in which Chief Justice Abrahamson and Justice Bradley joined. The concurring justices were concerned that
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the majority opinion not be read as endorsing the type of fundamental change in governmental immunity analysis that Justice Gableman had advocated in his Bostco concurrence. Even the concurring justices, however, agreed that some change in the case law was necessary. Justice Crooks wrote:
While I share Justice Gableman’s dismay with some aspects of this court’s immunity jurisprudence, I favor an incremental approach to correcting the problems. A good place to start would be to recognize that our prior cases have construed the ministerial duty exception to immunity too narrowly.13
C. The Brown v. Acuity Decision
The first of two issues in this case was whether Parnell Burditt, a volunteer fireman operating his own private car in responding to a fire call on June 8, 2008, was acting within the scope of his employment by the municipality when he caused an accident en route to the fire station. If so, the claims against him would be subject to the damage cap in Wis. Stat. § 893.80(3). Assuming he was subject to the statute, the second issue was whether he had immunity for his decision to enter an intersection on a red light when his vehicle had an emergency light but no audible signal activated.
The trial court and the court of appeals both held that: (1) the firefighter was acting within the scope of his employment when the collision occurred; and (2) he was shielded from liability by public officer immunity. The Wisconsin Supreme Court agreed on point one, but reversed on point two. The court held that the firefighter was not entitled to immunity because he had violated a ministerial duty to stop for a red light while operating an emergency vehicle that did not have both audible signal and emergency lights activated.
The court’s result was only partially helpful to the two plaintiffs who sued to recover for personal injuries from the intersection collision. They were
allowed to proceed with their claims against the firefighter, but the $50,000 per claimant damage cap of Wis. Stat. § 893.80(3) applied to preclude a more substantial recovery.
To reach the conclusion that Burditt was acting within the scope of his employment as he drove to the fire station in response to the emergency call, the supreme court had to distinguish those cases holding that a person in transit to a job site is generally not then acting within the scope of employment.14 The court noted that Burditt, as an on-call volunteer firefighter, could be called to any number of work locations at any time. Thus, he was not a typical commuter with a fixed place of employment as described in DeRuyter v. Wisconsin Electric Power Co.15 As a result, the “general maxim” of DeRuyter did not apply. Instead, the court’s focus was on whether Burditt was actuated by a purpose to serve his employer when the accident occurred. The court had no difficulty finding from the undisputed facts that he was.
On the second issue, the supreme court reversed the decision below and found no immunity available to Burditt under Wis. Stat. § 893.80. By entering an intersection on a red light without having both emergency lights and audible signal activated, Burditt violated a ministerial duty imposed by Wis. Stat. § 346.03, one of the rules of the road.
The ministerial duty in Burditt’s situation was easy to understand. The statute requires an emergency vehicle to have an audible signal activated before entering an intersection on a red light. Burditt had no audible signal, so he could not enter the intersection in compliance with the statute governing operation of authorized emergency vehicles.
A more difficult question arises when the operator of an authorized emergency vehicle gives both visible and audible signal before entering an intersection but nonetheless is involved in a collision there. To comply with Wis. Stat. § 346.03 and lawfully proceed through a red stop signal, an authorized emergency vehicle must slow down as may be necessary for safe operation, give both a visual and an audible signal, and
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proceed “with due regard under the circumstances for the safety of all persons.” So, is there a ministerial duty to proceed with due regard? Is immunity ever available to the operator of an authorized emergency vehicle involved in an intersection collision? That is an argument for another day. That said, the Wisconsin Court of Appeals certified precisely these issues to the Wisconsin Supreme Court on October 2, 2013, in Legue v. City of Racine, Case No. 12-AP-2499, so we may see appellate guidance very soon.
D. Legislative Changes
1. Effective April 12, 2012, the legislature amended § 893.80 to make clear that a “volunteer” subject to the control of a fire company or other governmental entity is an “agent” for purposes of governmental claim requirements.16 Thus, the first issue in Brown is unlikely to recur.
2. The recent amendment of Wis. Stat. § 893.80 has changed some of the statutory numbering, so be careful in citing the statute. For example, the notice of claim requirements are now found in § 893.80(1d), not § 893.80(1), which no longer exists.
3. 2011 Wisconsin Act 132In 2011, the Legislature enacted 2011 Wisconsin Act 132 to remove statutory language holding governmental entities liable for highway defects. The amended statute, Wis. Stat. § 893.83 (2011-12), now authorizes only an action against a municipality to recover damages for injuries sustained because of an accumulation of ice or snow that has existed for three weeks or more upon any bridge or highway.
The statute was likely amended to overrule legislatively the result in Morris v. Juneau County.17 Morris had construed the statute making municipalities liable for highway defects as an exception to the general grant of immunity in Wis. Stat. § 893.80(4). The former statute, then Wis. Stat. § 81.15 and later renumbered Wis. Stat. § 893.83, created a right to recover from a governmental entity for want of repairs of a highway.
By removing that statutory authorization entirely, the legislature probably intended to bring claims against municipalities for highway defects back within the general immunity analysis of Wis. Stat. § 893.80(4). What remains to be seen is how that analysis will now apply, given the court’s recent decisions in Bostco and Showers.
This article is based on an outline and CLE presentation the author provided at the State Bar of Wisconsin’s September 2013 PINNACLE Annual Torts Update seminar.
Cathy is a partner at Boardman & Clark LLP in Madison, where she has practiced for over 25 years. She graduated from the University of Wisconsin Law School with honors in 1986. Her practice involves all facets of civil litigation, primarily on the defense side, with a focus on torts and insurance law. Cathy is a member and past chair of the Litigation Section Board of Directors. She also moved up the ranks and served in all officer positions for the Western District Bar Association and Wisconsin Defense Counsel. She is a frequent contributor to State Bar publica-tions and CLE offerings on tort-related topics. In years past, she served as a director for Wisconsin Special Olympics and the Wisconsin Board of Bar Examiners.
References1 2013 WI 78, ___ Wis. 2d ___, ___ N.W.2d ___.2 2013 WI 79, ___ Wis. 2d ___, ___ N.W.2d ___.3 2013 WI 60, ___ Wis. 2d ___, ___ N.W.2d ___.4 17 Wis. 2d 26, 115 N.W.2d 618 (1962).5 Id. at 39.6 2009 WI 82, 319 Wis. 2d 622, 769 N.W.2d 1.7 Bostco, 2013 WI 78, ¶ 55. 8 Id., ¶ 61.9 207 Wis. 2d 446, 558 N.W.2d 658 (Ct. App. 1996).10 Showers, 2013 WI 79, ¶ 3.11 Id., ¶ 12.12 Id., ¶ 35 (emphasis added).13 Id., ¶ 63 (Crooks, J., concurring).14 See DeRuyter v. Wisconsin Electric Power Co., 200 Wis. 2d
349, 546 N.W.2d 534 (Ct. App. 1996). 15 200 Wis. 2d 349.16 See 2011 Wis. Act 162. 17 219 Wis. 2d 543, 579 N.W.2d 690 (1998).
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Deposing a Suspected Malingerer: The Use of a Deposition “Opening Statement”by: Russell M. Ware, SmithAmundsen LLC
I. Introduction
We generally think of a plaintiff’s deposition in a personal injury case as being divided into two sections, with one
devoted to liability questions and one devoted to damage questions. However, there is a third portion of the deposition which requires attention. This is what we can call the “opening statement” of the deposition. Correctly done, it can be an important part of the process, especially if the plaintiff is suspected of malingering.
Most questioners use the initial portion of the deposition questioning to elicit the questioning to greet the witness, to elicit basic background information, and to remind the witness to make audible, verbal responses. But the introductory portion of a deposition—an “opening statement,” if you will—deserves more preparation, especially in a case where any malingering on the part of the plaintiff is suspected. This article will offer ideas to use in crafting the introductory portion of a deposition so as to make the deposition more useful in the defense of questionable claims.
II. Why an “Opening Statement” Portion of a Deposition Is Important in a Suspected Malingering Case
Experience teaches that most plaintiffs are sincere and well-intentioned when giving their deposition testimony. Even if they are affected by the very normal desire to make sure their injuries are not overlooked or unfairly minimized, and if they therefore do tend to embellish or even overstate
injuries to some degree at a deposition, such conduct does not make the plaintiff dishonest or unworthy of compensation. In some rare cases, however, exaggerations at deposition arise not of the legitimate desire for adequate compensation, but of a desire to seriously deceive and mislead. A good deposition “opening statement” can help separate the great mass of well-meaning plaintiffs from the rare malingering plaintiffs, and also help the jury make the same distinction. This is done by employing preliminary questioning which elicits responses tying the plaintiff unequivocally and permanently to any deposition testimony which is later shown to be demonstrably false, and which therefore assures that the plaintiff’s attempts at trial to disavow, explain away, or “sugarcoat” untruthfulness in such deposition testimony will be unsuccessful.
III. The Contents of an Effective Deposition “Opening Statement”
An effective “opening statement”—actually, a series of questions seeking plaintiff’s affirmative responses—has a number of aspects. First, statements by defense counsel in question form concerning the role of the questioner and court reporter, and how plaintiff’s counsel will be there to protect the interest of the plaintiff, are important; they will document that the plaintiff had a full understanding of deposition procedures. Similarly, previewing for the witness the topics which will be covered—how the plaintiff came to be hurt, how the plaintiff is doing now, and what the plaintiff’s condition was before the accident—will confirm the witness’s understanding of the purpose of the deposition.
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The most important preliminary questions are those which cover and stress the importance of the testimony the plaintiff is about to provide, and which document right in the deposition transcript the plaintiff’s full appreciation of the significance of answers made at a deposition. Specifically, the plaintiff should be asked to acknowledge an understanding that the upcoming testimony is going to be the subject of a report by defense counsel to the defendant(s) so that the claim can be given fair evaluation. Even more importantly, the plaintiff should further be asked to confirm an understanding that a transcript of the deposition will likely be used by the judge and jury in this case to decide what compensation is owed to the plaintiff and what a fair resolution of the case should be. This acknowledgment by the plaintiff as to the impact of his or her deposition answers on the outcome of the claim can then be coupled with an assurance from defense counsel that the witness has a right to tell the questioner if he or she doesn’t understand the question or if the witness feels confused in any way. The “opening statement” can be concluded with questions seeking an agreement that everyone just needs the straight story about the plaintiff’s claim so that justice can be done.
Here is how such questions comprising an “opening statement” might look:
“Mr. Smith, you understand we are today going to talk about your accident and the injuries you sustained, don’t you?”. . . “As the lawyer for the folks you are suing, I’m going to write a long letter to my clients reporting what you tell us about the injuries you received, you understand that right?” . . . “You also understand my clients will use the information you give us about your injuries in deciding what the value of your case is, don’t you?” . . . “And you also understand that when the court reporter types up the transcript of your testimony today, your lawyer and I and ultimately a
court and jury will use what you tell us to reach a fair result in your case and decide how much compensation you have coming, right?” . . . “For those reasons, you understand that it’s important that we get the most accurate information possible about the accident and the effect it has had on you and your life, alright?” . . . “So, Mr. Smith, if you don’t understand a question or if you feel in any way confused in any way about the question, please tell me that so that I can make it clearer, will you do that?”
IV. Using the “Opening Statement” at Trial
If the plaintiff is one of those claimants who has been intent on outright deception, the defense may well be able to obtain evidence for use at trial showing that the plaintiff has testified falsely at the deposition. (A plaintiff’s flat denial at a deposition of any pre-accident symptoms may be contradicted by medical records, or an unequivocal claim at the deposition that the plaintiff is fully disabled from certain activities may be contradicted at trial by surveillance or other evidence.) In some cases, the unsuspecting plaintiff may repeat the deposition falsehoods on direct examination at trial. In many cases, however, the plaintiff must be “reminded” of the plaintiff’s deposition claims by defense counsel during cross examination at trial, such cross examination preceding and setting the stage for the defense’s dramatic disclosure of the contradictory evidence. In either type of case, when the plaintiff learns of the damaging defense evidence (such awareness occurring either before trial or at trial) and tries to claim that the deposition testimony now shown to be false was a product of inadvertence or mere confusion or lack of awareness of the importance of completeness and accuracy on the part of the witness at the pretrial deposition, the “opening statement” questions from the deposition can be used by the defense to pre-empt or overcome any such claim. The plaintiff can be directly confronted while on the stand at trial with the
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acknowledgement right on the deposition transcript of his or her full understanding of the deposition process, or the defense counsel can simply read the “opening statement” portions of the deposition to the jury at trial as part of the defense case.1
Then, during closing argument, defense counsel can pointedly remind the jurors that the plaintiff’s inaccurate answers at deposition were obviously given because the plaintiff realized money was on the line, and because the plaintiff made the decision to deceive everyone. Any attempt by the plaintiff to explain away the deceptive deposition testimony can be discredited. Reference to the “opening statement” during defense counsel’s closing at trial might look something like this:
I have to mention the testimony of the plaintiff at his deposition, which as you learned, is under oath just like the testimony given in court. You will remember that just about the first thing the plaintiff agreed to at the deposition was that he understood that whatever he said at the deposition was going to be used by the parties, the lawyers, the court, the jury and everyone to decide how much money he would receive in this lawsuit, and that it was therefore important that we have only the most accurate picture of his injuries. And what did he do when we asked him about [describe the injury or disability which is the subject of the impeachment evidence]? Did he tell
us the truth he knew we all needed and deserved? Did he just give us the straight story as he promised to do? No, he tried to mislead us and deceive all of us. I have no doubt he figured the truth would never come out and he’d really cash in on his lawsuit.
V. Conclusion
It is only in rare cases that defense counsel will be called on to depose a totally untruthful plaintiff. Indeed, defense counsel may well not know that such is the case until long after the deposition is completed, and until further investigation and discovery have been undertaken. However, if an effective “opening statement” becomes a routine part of the defense deposition of the plaintiff, attempts by ill-motivated plaintiffs to explain away untruthful deposition testimony at trial will be unsuccessful.
Russell M. Ware is a shareholder with the firm of SmithAmundsen LLC in Milwaukee, Wisconsin. He is a trial lawyer who devotes a substantial portion of his practice to the defense of Lawyers Profes-sional Liability Claims. He is a Past President of the Wisconsin Defense Counsel.
References1 The admissibility of the questions and answers from the
“opening statement” portion of the plaintiff’s deposition is not dependent on a showing that such preliminary portion of a deposition, in and of itself, contradicts or impeaches the testimony of the plaintiff. A deposition of the plaintiff may be used at trial by the defense for “any purpose.” Wis. Stat. § 804.07(1)(b).
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Unexplained Injuries and the “Arising Out Of” Condition of Liability Under the Wisconsin Worker’s Compensation Actby: Daniel L. Zitzer, Otjen, Van Ert & Weir, S.C.
I. Introduction
Section 102.03 of the Wisconsin Statutes sets forth the basic requirements for a compensable injury under the Wisconsin Worker’s Compensation
Act. The statute provides that liability shall exist only where five requirements “concur.”1 Those five requirements are as follows:
1. The employee must sustain an injury2;
2. At the time of the injury, both the employer and the employee must be “subject to the provisions of this chapter”3;
3. At the time the injury occurs, the employee must be “performing service growing out of and incidental to his or her employment”4;
4. The injury must not be intentionally self-inflicted5; and
5. The accident or disease causing injury must be one which “arises out of the employee’s employment.”6
While all five conditions of liability must be present, for purposes of determining whether or not a particular injury is “work related” under the Act, two of these conditions are particularly important. First, the employee must be performing service growing out of and incidental to the employment at the time the injury occurs. In other words, the employee must be within the “scope of the employment” at the time the
injury occurs. Second, the injury must “arise out of” the employment. The focus of this Article is on this second, “arising out of” requirement.
II. The “Arising Out Of” Requirement
The “arising out of” requirement refers to the causal origin of an injury, but it is not synonymous with “caused by the employment.”7 The Wisconsin Supreme Court has stated that “an accident arises out of the employment when by reason of the employment the employee is present at a place where he is injured through the agency of a third person, an outside force or the conditions of the location constituting a zone of special danger.”8
It is important to recognize that in a worker’s compensation case in Wisconsin, the employee has the burden of proving all the elements necessary to establish a compensable injury.9 Consequently, it is necessary for the employee to establish that the injury arises out of the employment. Even when an employee is performing services growing out of and incidental to employment at the time of an injury, the employee is still also required to prove that the injury arose out of the employment.10
In order to show that an injury arose out of the employment, the employee must introduce “evidence of a cause related to the employment.”11 In evaluating liability in a worker’s compensation case, it is essential that this consideration not be overlooked. If an injury is “idiopathic”—that is, one which arises from a condition solely personal to the employee—it is not compensable.12
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Given the fact that the burden of proof falls upon the employee to show that the injury arises out of the employment, if the employee cannot identify a cause, the injury is considered “idiopathic” and unexplained and is therefore not compensable under the Worker’s Compensation Act. The absence of a work-related explanation for an injury makes it just as likely that the injury arises out of the employment as that it does not.
III. Wisconsin Generally Does Not Recognize a Presumption That Injuries Taking Place During Employment “Arise Out Of” that Employment.
The Wisconsin Supreme Court has declined to recognize a presumption that an injury which occurs within the scope of the employment, but which otherwise is unexplained, arises out of the employment. In Nielsen v. Industrial Commission, the supreme court stated: “Human experience does not attest all accidents or a sufficient share of them, occurring on an employer’s premises, arise out of the employment as that term has been defined by this court.”13
However, although a broad “arising out of” presumption has been rejected by the appellate courts in Wisconsin, such a presumption does exist in certain circumstances. Wisconsin recognizes the “positional risk doctrine.” When an employee is required to work in a hazardous situation, an injury sustained by the employee is presumed to arise out of the employment.14 In Cutler-Hammer, Inc. v. Industrial Commission, the supreme court, applying the “positional risk doctrine,” recognized that a concrete stairway created a zone of special danger and an employee’s fall down those steps was an accident which arose out of the employment.15
IV. Recent Cases Involving the “Arising Out Of” Requirement
In 2011, 2012, and into 2013, the author of this Article had a string of very interesting cases involving the “arising out of” requirement and unexplained injuries: Balaeva v. Aurora Health Care,16 Pattengale v. West Allis Memorial Hospital,17 and Korrison v. Aurora Medical Center.18 All three cases were litigated and went to decision before both the Department of
Workforce Development and the Labor and Industry Review Commission.
A. Balaeva v. Aurora Health Care
In Balaeva, the employee was attending an instructional meeting at work. She was not feeling well and excused herself from the meeting to use the restroom. Shortly after she left the room, the other meeting attendees heard a crash. The employee was found on the floor near a short flight of stairs and near the reception desk in the area of the hospital where the meeting was being conducted. She had fallen and had sustained a very significant head injury. She claimed that she was permanently and totally disabled as a result of the claimed injury.
The employee had no recollection of the fall. The last thing she remembered was that she was in a hallway going toward the classroom. The employee claimed that she was on the stairs when she fell and consequently that she was in a zone of special danger at the time the injury occurred. However, there was no evidence that the employee was on the stairs when she fell.
The evidence produced at the hearing demonstrated that the employee did not necessarily have to use the stairs in order to reach the restroom. The department dismissed the application for hearing on the basis that the employee failed to meet her burden of proof, stating that it was “left as hypothetical conjecture that her injury was caused by her hitting her head on a desk or falling down the steps.” The department concluded that the employee’s fall “remain[ed] unexplained,” and dismissed the application for hearing on that basis.
The case was appealed to the Labor and Industry Review Commission. The commission affirmed the findings of fact and order of the department. In its decision, the commission discussed the concept of a zone of special danger. The commission stated that if a worker is present at a place where he or she is injured through the conditions of a location constituting a zone of special danger, the positional risk doctrine applies, and the injury is compensable. Quoting Cutler-Hammer, Inc., the commission stated:
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The core of the idea is that an accident arises out of the employment when the connection between the employment and the accident is such that the obligation or circumstances of the employment places the employee in the particular place at the particular time when he is injured by a force which is not solely personal to him.19
The commission pointed out that the Cutler-Hammer, Inc. case had involved a fall down a flight of three steps. However, in Cutler-Hammer, Inc., the record was clear that the worker had actually fallen on the steps. In Balaeva, the commission concluded that the record was “nowhere near as certain.” The commission observed that one inference that might have been drawn from the evidence was that the employee tripped or fell while coming down the stairs to return to the conference room. However, the commission noted that the evidence established that the employee had complained of gastric distress earlier in the day and that it was just as reasonable to infer that the employee did not use the stairs at all to go to the bathroom just prior to her fall.20
Accordingly, the commission concluded that the record was insufficient to support a conclusion that the employee fell or tripped as a result of the stairs themselves which would have placed her in a zone of special danger when the injury occurred. The commission also stated that there was insufficient evidence to conclude that the employee hit her head on the reception desk when she fell, thereby aggravating the effects of the fall. On this point, the commission cited Larson’s treatise on worker’s compensation law:
[T]he basic rule, on which there is now general agreement, is that the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.21
The commission stated that the situation described by the Larson treatise was distinguishable from a
person falling from a standing height to the bare floor or level ground, “which in Wisconsin would not be compensable under the idiopathic fall doctrine.”22
B. Pattengale v. West Allis Memorial Hospital
In Pattengale, the employee was an 85-year-old certified nursing assistant. She sustained a fall while exiting an elevator at work. The fall was unwitnessed. The employee described a mechanism of injury in which her “shoes stuck to the floor” and she then “pitched forward” as she was getting off of the elevator. There was also a suggestion in some of the treatment records that the employee tripped or slipped as she was getting out of the elevator.
At the hearing, the employee testified that she tripped on something and believed it was the lip of the elevator. Although she denied her shoes caused her to fall, there was evidence that she may have attributed her fall to the shoes she was wearing at the time the fall occurred. She was wearing open-heeled shoes with rubber soles, and there was disputed evidence that the employee’s daughter “threw out” those shoes after the fall occurred. In any event, the employee admitted that she never wore those shoes again because she was afraid that she would fall.
The employee’s testimony regarding the fall was summarized as follows:
[T]he applicant was uncertain if it was her right or left foot that got caught, speculating that it was her right. She testified that she was on the elevator, she was close to the door and tripped when she started out of the elevator. There was nothing sticking up from the floor and there was nothing about the flooring surface either inside or outside that she thought contributed to the fall. She did not know of anything sticky on the floor. In terms of the fall, she conceded, in cross, that all she remembered was “pitching forward.”23
34
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The employee was also “uncertain how high the lip was and, ultimately was not sure if she tripped on the lip or if her foot got stuck.”24
Following the hearing, an administrative law judge (ALJ) of the Department of Workforce Development denied the claim. In the decision, the ALJ stated: “[T]he problem with this claim is that the applicant really does not know how or why she fell. She has provided various explanations at different times and readily conceded at hearing that she really does not know what caused her to fall.” Interestingly, the ALJ observed: “It may well have been the applicant’s shoes that caused her to fall which is a condition personal to her.” The ALJ concluded that the employee failed to establish by sufficient credible evidence that her fall arose from the employment, and the application for hearing was dismissed.
The employee appealed the decision to the Labor and Industry Review Commission. The commission reversed the findings and order of the department and determined the employee had established a work-related cause for her fall. The commission remanded the case to the Worker’s Compensation Division for a determination regarding the extent of the benefits due the employee, and the case was subsequently settled on the basis of a full and final compromise. In its decision, the commission stated:
An idiopathic fall—one that is due to a personal condition not caused or aggravated by employment—is not compensable. Peterson v. Industrial Commission, 269 Wis. 44, 49 (1955). Similarly, a truly “unexplained fall”—one attributable to neither an idiopathic/personal cause nor a cause related to employment—is not compensable even if it occurs while a worker is performing services for an employer. Briggs and Stratton v. LIHR Department, 43 Wis. 2d 398, 404 (1969). In order to establish that she was not injured by a force solely personal to her, the applicant must prove that her fall was not solely idiopathic or unexplained in nature.
Kraynik v. Industrial Comm’n, 34 Wis. 2d 107, 111, 148 N.W.2d 668, 670 (1967).25
The commission concluded that the employee’s fall was not idiopathic. She was not suffering from a condition solely personal to her that would cause such a fall. The commission disagreed with the suggestion that the employee’s footwear caused the fall, noting the employee had worked for a period of three hours without falling and that the employee had testified that other workers wore such footwear. The commission disagreed with the ALJ’s conclusion that the fall was unexplained, and stated that all of the descriptions of the injury provided by the employee had involved an explanation that her foot stopped in an abrupt fashion and a she quickly pitched forward as she was crossing the elevator threshold.26
Two members of the commission joined in the majority opinion reversing the findings and order of the ALJ. Despite the fact that the employee specifically testified there was nothing sticking up from the floor and nothing about the flooring surface either inside or outside the elevator that contributed to the fall, the commission was “persuaded that the applicant’s foot stopped as she was exiting the elevator” and that the fall was “explained by a cause related to the employment, her foot catching on the elevator gap/lip threshold.”27 It is notable that the commission was “persuaded” in this fashion despite the employee’s admission at the hearing, as noted by the ALJ, that she did not know how the fall had occurred.
The third member of the commission wrote a dissenting opinion stating that she agreed with the department that the fall was unexplained and therefore not compensable. The dissenting commissioner noted that in the initial version of the events provided by the employee she had stated that her shoe stuck to the floor, but that the employee’s explanation “had morphed to the point where she was now saying that she had tripped over the lip of the elevator gap.” The dissenting commissioner noted that the employee had ultimately testified at the hearing that she was not sure if she tripped or her foot got stuck and was not even sure which foot was involved. The dissenting commissioner also pointed out that the evidence did
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not “establish that the surface between the elevator and main floor was not level or that the flooring and gap was slippery, sticky or that any other impediment existed resulting in the fall.”28
C. Korrison v. Aurora Medical Center
Korrison involved a nurse who was walking in a patient’s room and fell to the floor, sustaining injuries to her shoulder, neck, and back. At hearing, the employee testified that, immediately before the fall, her foot stuck to the ground and that this caused her to fall. She testified that she really did not know how she fell, and that the floor was clean, dry, level, and well-maintained. She testified that she did not see or feel any sticky substance on the floor. She testified that her shoes did not stick to the floor as she was walking before she fell, and she did not hear any sound suggesting that her shoes were sticking to the floor as she walked across the floor before she fell. She testified that there were no objects or obstacles on the floor that caused or contributed to her fall.
Following the hearing, the department denied the claim and dismissed the application for hearing. The administrative law judge who decided the case noted that the employee had the burden of proving all the facts necessary to recover worker’s compensation benefits and that a compensable work injury must arise out of the employment.
The case was appealed to the Labor and Industry Review Commission, and the commission affirmed the findings and order of the department. The commission began its analysis by considering whether or not the employee sustained an idiopathic injury. The commission concluded that the fall was not idiopathic, noting there was no evidence that the employee was wearing defective shoes or that she suffered from a disease, physical disability, or personal condition that caused the fall.29
The commission then turned to whether the employee had established that the fall arose from the employment, stating, “if the fall is unexplained, then the commission must decide whether there is sufficient evidence in the record to draw an inference of a hazard or zone
of special danger.”30 The commission noted that the employee must produce sufficient evidence for the commission’s decision not to rest on speculation and conjecture.31
The commission observed that the employee had not established a definite explanation of how or why she fell. It placed significant emphasis on a recorded statement the employee had provided to the insurance carrier to the effect that she really did not know what caused her to fall.32 It concluded that the injury was unexplained and that “any attempt to find otherwise would rest upon speculation and conjecture.”33
In its decision, the commission distinguished Pattengale and another recent commission decision, Denamur v. Larry’s Markets, Inc.,34 stating that in the case before it, the employee was not even sure if she was ambulating around or over anything at the time the fall occurred. The commission stated: “The applicant, while not incredible, seems to be grasping for an explanation herself,”35 and noted that its approach was consistent with its prior denials of compensation based on unexplained falls.36
The commission also found that there was not sufficient evidence to find that the injury occurred in a zone of special danger, commenting that a level surface is not an area of special danger. The commission took note of the employee’s assertion that she fell because the floor had been waxed but that no evidence had been presented that the wax created a dangerous surface. The commission stated: “Without more, the commission will not find a hazard or zone of special danger based upon the simple fact that the floor was waxed in the past.”37
One member of the commission dissented to the majority opinion. The dissenting commissioner indicated that he believed the evidence was sufficient to find that the injury was explained. The commissioner suggested that he would find the injury compensable because the employee was performing services for the employer at the time the injury occurred and because the fall was not idiopathic. Despite the dissenting commissioner’s recognition that the employee “was not able to identify what precisely stopped her foot,”
37
he stated the employee knew where she fell and knew what caused her to fall.38 He expressed concern that decisions addressing unexplained falls over-emphasize the requirement of a precise explanation of the cause of a fall, and he suggested this was detrimental to the purpose of the Worker’s Compensation Act because it could result in a denial of benefits “based upon honest confusion, limited recollection, or an incomplete investigation.” The dissenting commissioner indicated that if the employee had not been at work, the fall would not have occurred, and that this should be a sufficient explanation.
V. Conclusion
These three cases demonstrate the importance of the “arising out of” condition of liability in a worker’s compensation case. It is not sufficient that an injury occur during the course of employment in order to establish compensability under the Worker’s Compensation Act. An early, thorough investigation and statement of the employee can be critical in establishing an unexplained injury defense. In evaluating the compensability of a claimed work injury, it is essential to recognize that the employee has the burden of establishing that the injury is attributable to an accident or disease that arises out of the employment. The inability of an employee to establish a work-related factor or zone of special danger represents a failure of the employee’s burden of proof and should result in a dismissal of the claim.
Daniel L. Zitzer is partner in the law firm of Otjen, Van Ert & Weir, S.C., where he devotes his practice on an exclusive basis to defending insurance carri-ers and employers in worker’s compensation matters statewide. Mr. Zitzer also has extensive prior civil litigation experience and has tried a number of cases throughout Wisconsin in state and federal courts. Mr. Zitzer is a graduate of the Marquette University Col-lege of Arts and Sciences (1986) and Marquette Uni-versity Law School (1989) where he was a member of the Law Review. Before entering private practice he served as Law Clerk to the Honorable Michael T. Sul-livan of the Wisconsin Court of Appeals.
References1 Wis. Stat. § 102.03(1). 2 Wis. Stat. § 102.03(1)(a).3 Wis. Stat. § 102.03(1)(b).4 Wis. Stat. § 102.03(1)(c).5 Wis. Stat. § 102.03(1)(d).6 Wis. Stat. § 102.03(1)(e).7 Weiss v. City of Milwaukee, 208 Wis. 2d 95, 107, 559 N.W.2d 588
(1997).8 Id.; Cutler-Hammer, Inc. v. Industrial Commission, 5 Wis. 2d 247,
254, 92 N.W.2d 824 (1958).9 Kraynik v. Industrial Commission, 34 Wis. 2d 107, 110-11, 148
N.W.2d 668 (1967). In contrast, for example, the federal Longshore and Harbor Worker’s Compensation Act provides a presumption in favor of work causation. 33 U.S.C. § 920(a).
10 Kraynik, 34 Wis. 2d at 111.11 Briggs & Stratton Corp. v. ILHR Department, 43 Wis. 2d 398, 406,
168 N.W.2d 817 (1969).12 Peterson v. Industrial Commission, 269 Wis. 44, 48, 68 N.W.2d 538
(1955).13 Nielsen, 14 Wis. 2d at 118.14 Kraynik, 134 Wis. 2d at 112.15 Cutler-Hammer, Inc., 5 Wis. 2d at 254.16 Balaeva v. Aurora Health Care, WC Claim No.: 2007-031880
(LIRC, February 28, 2012).17 Pattengale v. West Allis Memorial Hospital, WC Claim No.: 2010-
021311 (LIRC, July 26, 2012).18 Korrison v. Aurora Medical Center, WC Claim No.: 2004-040437
(LIRC, June 6, 2013).19 Balaeva, WC Claim No.: 2007-031880, at 2 (citing Cutler-Hammer,
Inc., 5 Wis. 2d at 253).20 Id. at 3.21 Id. at 3 (citing 1 Larson Workers’ Compensation Law, § 9.01 (Lex-
isNexis 2011)).22 Id. at 3.23 Pattengale, WC Claim No.: 2010-021311, at 2.24 Id. at 2-3.25 Id. at 3.26 Id. at 4.27 Id. at 5.28 Id. at 7-8 (dissenting opinion).29 Korrison, WC Claim No.: 2004-040437, at 2.30 Id.31 Id. (citing R.T. Madden, Inc. v. Industrial Commission, 43 Wis. 2d
528, 548, 169 N.W.2d 73 (1969)).32 Id. at 2-3.33 Id. at 3.34 Denamur v. Larry’s Markets, Inc., WC Claim No.: 2010-028002
(LIRC, July 30, 2012), aff’d sub. nom., Larry’s Markets v. Denamur and LIRC, Case No. 12-CV-1198 (Wis. Cir. Ct. Outagamie County March 15, 2013)).
35 Korrison, WC Claim No.: 2004-040437, at 3.36 Id. (citing Nielsen, 14 Wis. 2d 112; Brickson v. ILHR Department, 40
Wis. 2d 694, 162 N.W.2d 600 (1968); Durkee v. Marathon County, WC Claim No.: 91-043764 (LIRC, April 16, 1992)).
37 Id. at 3-4.38 Id. at 5 (dissenting opinion).
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Not all lawyers come out of law school with
training and experience in conducting deposi-tions. Even seasoned litigators can speak to the frustration of going back to a deposition transcript when preparing motions or for trial and seeing that the question and an-swer were not quite as they hoped they would be. The litigator might inadvertently give the opposing party’s witness room to “explain away an answer,” because the lawyer did not quite make the witness com-
mit, or make a question almost useless at trial, because it reads confusingly and will not make sense to a jury. Because of the nature of the testimony and opinions, deposing experts presents additional challenges.
This article gives tips for conducting effective depo-sitions, of both lay witnesses and experts. Although aimed at new lawyers, the tips also will be useful re-freshers for more-experienced attorneys.
Tips for Deposing a Lay Witness
Start a deposition by explaining the process to the witness. Tell the witness that if he does not understand a question, he should tell you, and, if he does not, you
will assume that he understands the questions. This may not seem important during the deposition, but it is extremely important if you use the testimony in a brief or when you try the case. If you do not have this agreement from the witness at the beginning of the de-position and you attempt to impeach him at trial, he can say that he misunderstood the question or did not know what you meant by a certain word or otherwise try to distance himself from the previous answer. The opposition’s attorney might make the same claim if you make a motion in limine to exclude evidence or move for summary judgment.
Always be professional and courteous. Do not be drawn into emotional responses. As you respond, re-member that a jury and judge may review the tran-script or watch the video. Behave in a manner that will seem appropriate to both.
Use an outline so you do not forget anything, but do not tie yourself to it. Write your own outline. You can use a generic version to help generate your outline, but be specific. The process will help you understand the case and force you to prepare adequately. Think. What do you want to accomplish by taking the deposition? What information do you need from this witness?
Do not, however, handcuff yourself to your outline. Your outline should be your safety net, not your script. Often, attorneys are so anxious to follow their outlines they fail to pick up on good lines of inquiry. One way to avoid this is to segregate your outline into sections as opposed to a continuous document. Obviously, those sections will depend on the subject of the lawsuit. For a personal injury case, the sections might include ones pertaining to people to whom the witness has spoken,
Deposition Techniques: Get Your Ducks in a Rowby: Kara M. Burgos, Moen Sheehan Meyer, Ltd. Andrew B. Hebl, Boardman & Clark LLP Eric J. Ryberg, Habush Habush & Rottier S.C.
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what the witness was told and by whom, and so on. Each category should itself be a separate outline.
Be curious. The law allows you to seek information that is reasonably calculated to lead to the discovery of admissible evidence. You should take advantage of this broad standard by being curious and creative in your questions. If the case involves a job or indus-try with which you are not familiar, you should ask questions to educate yourself. In particular, be curious about background information. Even if an area does not seem likely to be a source of significant informa-tion, you often will be surprised at what you can learn.
Listen to the witness. This is a crucial aspect of tak-ing a deposition. You must always listen to the witness and ask follow-up questions based on what the witness says. Witnesses will sometimes give new or surprising information that you were not anticipating. You must be willing to be diverted from the next question on your outline so that you can, if necessary, follow the witness’s lead to a new subject or area of information. The deposition offers you the opportunity to learn new facts that may be good or bad for your case. It is much better to discover surprises at deposition than at trial.
Make sure you get the sound bite. Typically, a sig-nificant portion of a deposition will not be useful for trial. You should try to gain a few good admissions or concessions that you can use at trial. This is particu-larly true when deposing an adverse party. Ideally, you want to have a question and answer on the transcript that you can repeat at trial and use to impeach the wit-ness if necessary. If the witness muddies the answer with qualifying information, you should restate the question to get a clean and clear answer.
Leave well enough alone. If the witness gives the clean answer you want, move on. You may want to jump ahead to a different portion of your outline to distance yourself from the area you just covered. You should avoid giving the witness the opportunity to take back the answer or modify the answer and undo what you established on the record.
Do not save all your cards for trial. Cases are set-tling instead of going to trial at a much higher rate than in the past. The deposing lawyer must consider
whether the deposition should be used as a tool not only to determine what the witness intends to say at trial and how he will come off as a witness but also, in the case of a plaintiff’s deposition, to educate the plaintiff about weaknesses of his claim. This can tem-per the plaintiff’s expectations and encourage earlier settlement.
For example, you can confront a plaintiff with medi-cal or employment records that clearly demonstrate the case is not as strong as the plaintiff may think. Of-ten, the plaintiff is not even aware of these records. Further, it is frequently the case for defense counsel that the biggest obstacles to settlement are the plain-tiff’s unrealistic expectations. The sooner those ex-pectations can be blunted, such as by confronting the plaintiff at deposition, the sooner a case that is almost certainly going to settle anyway can be settled.
Admittedly, there is tension between using a deposi-tion only as a tool for trial and using a deposition as a tool to promote earlier settlement at less expense. Tipping off the plaintiff regarding defense strategy by confrontation with important records during deposi-tion may give the plaintiff an opportunity to be better prepared to explain at trial. However, given the rate at which cases settle, in most instances holding things back is more likely to prolong litigation unnecessarily.
Sometimes ask an adverse witness leading ques-tions. As a general matter, especially when deposing a party, the lawyer should ask open-ended questions to ensure that the universe of possible testimony at trial is being covered. That is, the lawyer wants to make sure that he or she knows everything that will or could be said at trial.
Sometimes, however, one is best served by asking leading questions. This is especially so when depos-ing a lay fact witness who may be hostile on liability but cannot dispute certain basic propositions. Use of self-serving, leading questions, to which the witness cannot respond except by answering yes or no, as op-posed to open-ended questions for which the answer is not known and might be harmful, can be helpful to get the sound bite you need to control the witness’s testimony at trial.
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Define the areas of the witness’s testimony. You can cover a lot at a deposition, but if you are not organized, you can miss a lot, too. Typically, you should have a game plan to break down the witness’s testimony by topics. Then, within each topic, begin with very broad questions and get progressively more and more spe-cific.
For example, in an injury case, the lawyer may be-gin a particular portion of the deposition by asking the plaintiff to identify all injuries related to the accident. Then, the lawyer should have the plaintiff identify on-going injuries versus those that have healed. The at-torney should ask the plaintiff to describe each injury in ever-increasing detail until all information has been exposed. Then the lawyer should move on to the next injury and repeat.
It is important to ensure that you have covered every-thing, by ending with a catchall question such as, “Is there anything about how this injury has affected your life that you have not already mentioned?” The same goes for liability questions. That way, you will avoid missing any important details and being blindsided at trial.
For a lay fact witness, it is important for the lawyer to define the areas of testimony to find out what the witness saw and did not see and to rule in the witness for use on certain topics and to rule out the witness for other topics. By defining the areas of testimony, the lawyer will be able to identify how to use the witness at trial and which topics to avoid discussing altogether.
Make the witness answer the question. You are the attorney in charge of the deposition. You have the power to ask the questions and, except in circumstanc-es in which an answer is privileged, the right to get an answer. Do not bully the witness, but be firm.
Tell your side of the story. Avoid the temptation to be so relieved when opposing counsel has finished that you blurt out “no questions.” There is nothing worse than sitting in trial and having the other side play a video deposition of a witness of whom you did not ask a single question.
Do not be afraid to object. You are taking or defend-ing a deposition to serve your client’s best interests. If it is required, then you should object, but do not mis-use objections to harass or intimidate the opposing at-torney or witness.
Do not be deterred by objections. With the exception of questions to which privilege objections are made, the witness still must answer. If the objection is to the form of the question and you are going for a sound bite, you should ask what is wrong with the form. You may be able to correct a problem with the question and preserve your sound bite. The opposing lawyer could also be objecting to deter you from an area with sensi-tive or useful information, so you should persist with your questions, and make the witness answer. Do not let opposing counsel coach the witness with speaking objections.
Be prepared to use exhibits. In addition to planning what areas to cover with a witness, you should plan what exhibits you can use and how to use them. When deposing a party who was involved in an accident, you may want to use photographs of the accident scene to explore any issues involving lighting, vehicle damage, or road and weather conditions. It is often useful to use a map to identify where a witness was at the time of an accident or to establish a witness’s path of travel. Many jurors appreciate seeing visual aids at trial, so you should practice for trial by using them at the de-position.
There is no such thing as a stupid question. You are taking a deposition to gather information and to learn. Do not let a witness anger or intimidate you into not asking questions. As clichéd as it sounds, it is true that the only stupid question is the one you do not ask.
Tips for Taking a Deposition of an Expert Witness
In many cases, expert depositions are crucial discov-ery events in the litigation. Often, a plaintiff’s case, or a portion of the case, cannot be established without expert testimony. Preparation and implementation of a well-thought-out plan to establish or rebut themes or evidence is key.
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Begin by asking yourself, “what am I trying to achieve in taking this witness’s deposition?” There can be many purposes in conducting a deposition, but the paramount focus should be on establishing facts to support your theory of the case, whether you’re rep-resenting the plaintiff or the defendant. Equally im-portant is the deposition’s role in executing pretrial strategy, particularly with respect to motions in limine, summary judgment motions, and Daubert challenges.
Start preparing early. Plan to spend a lot of time preparing for an expert deposition. A lot. Read the ex-pert’s report so much that you know it by heart.
Work with your expert. Set aside enough time to walk through an opposing expert’s report with your own expert.
Do not assume that a curriculum vitae is truthful. Use the Internet and other resources to confirm or dis-prove information in the expert’s resumé.
Get the expert’s prior deposition transcripts and ask others about the witness. Because many inde-pendent-medical-examination (IME) experts have tes-tified before, you might be able to obtain useful infor-mation concerning bias by looking at an expert’s prior deposition transcripts. The prior transcripts will also give you a sense of how the witness will likely testify in your case. You might decide not to depose the ex-pert if you have a significant amount of bias informa-tion from the prior depositions and you know from the expert’s report what he or she is going to say.
Know the medical records. When deposing a medi-cal expert, it is essential that you know everything in the medical records. It can be useful to create a time-line to help remember and understand the records. You may be able to undermine the opposing expert if that expert has not reviewed all the records.
Elicit all the expert’s opinions and bases of opin-ions. Even if you do nothing else while deposing an expert witness, at least make sure you confirm that the expert has told you all his or her opinions about the case. If he or she then tries to testify to additional opinions at trial and you had expressly confirmed at
the deposition that there were no other such opinions, the additional opinions later offered may be subject to exclusion. If you did not ask that catchall question at the deposition and cover all of the opinions the expert has, and the expert then renders at trial opinions you were not aware of, your case could be endangered.
Beyond that, with respect to each opinion the expert has, make sure you ask the expert to exhaustively identify all the bases for each. You must elicit that information so, among other things, your own expert will be able to identify points of criticism or disagree-ment. You also want to avoid being surprised. Ensure that you have covered all bases for each opinion by asking catchall questions such as “Are there any other bases for this opinion that you have not already men-tioned?” Make sure you keep asking that question un-til the answer is a definitive “no.” Then move on.
Put the expert into a box. Sometimes experts are ad-vocates for the parties that have retained them. These experts often are minimally credible, because they are unwilling to concede any point, even when the point is beyond dispute. These experts may be susceptible to being put “into a box” for purposes of cross-exam-ination.
For example, sometimes a medical expert will refuse to acknowledge that an injury could have been caused by a certain type of trauma. If the expert can be pinned down on this point at deposition, and it turns out that the literature is actually full of support for the injury having been caused by exactly the thing that the expert refused to acknowledge, the expert will be in trouble. If the expert realizes the mistake, he or she may try to back out of those opinions, but the testimony will nevertheless likely lose credibility.
Set up your cross-examination for trial, but do not give the expert a preview. In contrast to educating the plaintiff by showing him your cards, as discussed above, the deposing lawyer should generally hold back as much good trial material as possible with ex-perts. All the good smoking guns should be saved for trial. Get opposing experts to say as many things as possible that are contradicted by the records, but do not tip them off to the fact they have done so.
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At trial, experts will be less credible with the jury as they are explaining away their incorrect deposition testimony. If you preview your cross-examination at the deposition, you will give the expert notice of your plans, and he or she will have time to prepare and explain away at trial—exactly what you do not want to have happen. Generally, depositions of experts are purely for purposes of fact gathering (if you do not know what they are going to say) and to set up your trial cross-examination. Do not try for more than that.
Test areas as to which the expert might support your case. Often, an expert—such as a treating doc-tor—who is not an outright advocate for the other side will concede points when appropriate. You should use these concessions to the extent possible to sup-port your case. When an opposing expert is willing to render opinions favorable to your case, do not be afraid to make use of that testimony. Obviously, help-ful opinions given by an opposing expert will be more valuable than if those opinions are coming from your own expert.
Ask an expert who and what is considered authori-tative in the field. Find out which treatises or authors the expert considers to be authoritative in the field. You may be able to find information in the treatise or from one of the authors that contradicts the expert’s opinions. You may learn the expert considers your ex-pert’s work to be authoritative, or that the expert con-siders a treatise in which your expert is published to be authoritative. This allows you to bolster your expert’s credibility through the opposing expert.
Do not let an expert push you around. Retained ex-perts are notoriously difficult to control, particularly for a new lawyer. You must establish control early by making the expert answer your question. If the expert continues to offer an evasive nonanswer, you must re-direct the expert to your question and make him or her answer it. You may need to object and then move to strike portions of the expert’s answer. If the expert refuses to answer a question, establish that on the re-cord to set up a potential motion to strike the expert as a witness.
Be persistent. In addition to not letting an expert push you around, you must be persistent in follow-
ing through with your line of questions. Do not let the expert move from a topic if you think it has not been sufficiently addressed. You are paying a significant amount for the deposition, so get your money’s worth. Ignore the expert’s (possibly feigned) exasperation, and ask your questions.
Figure out what you need for a Daubert challenge. That means doing your research and figuring out what the applicable standards are for a Daubert challenge. Wisconsin Statutes section 907.02 adopts the U.S. Su-preme Court’s standards for the admissibility of expert testimony set out in Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).
Expose the bias of a hired expert. If both parties have retained experts on a certain topic, you might not want to spend time exploring bias information, because the same can be used against your expert. However, if you have a nonretained expert such as a treating doctor and the defense has hired an IME doc-tor, you must obtain bias information. You should find out how much the expert has billed on the case and how much income the expert derives from IME work. You should explore the expert’s volume of IME work. You also should find out how often the expert testifies for plaintiffs and how often for defendants and how much work the expert has done for the opposing law firm, the insurance company, and the IME intermedi-ary company.
Include a subpoena duces tecum. You need to know everything an expert reviewed and relied on for his opinions. You never know what you might find in the expert’s file materials.
Decide before the deposition how you will handle expert-related costs and commit the agreement to writing. The Wisconsin statutes are generally silent on allocation of costs, other than fees for subpoena-ing witnesses, for expert-witness depositions. Many attorneys operate under local custom for allocating expert-related costs (such as “you pay to depose mine and I’ll pay to depose yours”), but attorneys may be unwilling to consent if they are unfamiliar with the custom or for other reasons, especially if they are not promptly informed of the custom. That said, always make sure you and opposing counsel are on the same
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page regarding the allocation of expert-related costs before depositions get underway, not afterward. Do-ing so can ensure that court involvement to resolve fee disputes is avoided.
Conclusion
Depositions may be the most important pretrial tool in evaluating and preparing for trial. Although they typically are taken in informal circumstances, their importance cannot be overstated. Taking the time to prepare properly for depositions and making sure you are familiar with all relevant rules will go a long way in serving your clients’ best interests. In simplest terms, one must critically evaluate which questions to ask, how to structure and format the questions, and whether to use evidentiary materials at the deposition or save them for trial.
This Article originally appeared in the September 2013 Issue of Wisconsin Lawyer magazine, the offi-cial publication of the State Bar of Wisconsin. It is reprinted here with permission of Wisconsin Lawyer and the authors. The article is based on the authors’ presentation on deposition techniques that was given at the State Bar of Wisconsin’s May 2013 PINNACLE Litigation, Dispute Resolution, and Appellate Practice Institute.
Kara M. Burgos, a New York native, holds a Bach-elor of Arts, magna cum laude, from Saint Bonaven-ture University and a Juris Doctor, cum laude, from Marquette University. She is a member of the Wis-consin State Bar and both districts of the federal sys-tem. Kara, a partner with Moen Sheehan Meyer, Ltd., joined the firm in 1995. She is a member of the La Crosse County Bar Association, serving as secretary 1997-1998, and Wisconsin Defense Counsel serving as Secretary/Treasurer. She is the Secretary for Beth-any St. Joseph’s Corporation, La Crosse, Wisconsin, and a Rotarian.
In 2000, Kara was selected, by the Wisconsin Supreme Court, to serve on the Special Preliminary Review Panel for the Office of Lawyer Regulation. This panel investigates ethical complaints against lawyers. Kara was the Panel’s Chairperson in 2007 until her term expired. She is current Chair of District 5 of the Office
of Lawyer Regulation. Kara is Court Commissioner for La Crosse County Circuit Court Judge Ramona A. Gonzalez. Judge Gonzalez appointed her November, 2006. Previously, she was appointed Court Commis-sioner by Judge Dennis G. Montabon.
Kara works extensively with plaintiffs and defen-dants in many different areas including family, civil, and business law, as well as working with the men-tally ill, developmentally disabled and elderly popula-tions. She has authored several briefs published in the Wisconsin Court of Appeals and articles published in scholarly journals. She was voted by her peers across the State as a “Rising Star” in a national publication in 2006, 2008, 2010 and 2011.
Andrew Hebl is an Associate with the Madison firm of Boardman & Clark LLP. His litigation practice focuses on the representation of insurance companies and their insureds in the defense of liability claims. He also regularly litigates claims involving insurance coverage, insurance bad faith, and other business dis-putes. Andrew has his B.S. from the University of Wis-consin-Madison and his J.D., summa cum laude, from Michigan State University. Following law school, Andrew served as Law Clerk to Justice Patience D. Roggensack of the Wisconsin Supreme Court. Since 2010, he has been the Editor of the Wisconsin Civil Trial Journal. Andrew is listed as a Wisconsin Rising Star by Super Lawyers magazine.
Eric J. Ryberg is a shareholder at Habush Habush & Rottier S.C.®, Madison, where he represents plaintiffs in personal injury cases. He received his B.A. degree (summa cum laude) from the University of St. Thomas and his J.D. degree from the University of Wisconsin Law School (Order of the Coif, cum laude). Mr. Ry-berg is the Secretary and Judicial Selections Commit-tee Co-Chair of the Dane County Bar Association. He is also a member of the State Bar of Wisconsin, Ameri-can Bar Association, James E. Doyle Inns of Court, Wisconsin Association for Justice, and American As-sociation for Justice. He teaches trial advocacy and is a mock trial coach at the University of Wisconsin Law School. He is admitted to practice in Wisconsin and before the U.S. District Court for the Western District of Wisconsin.
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