"Shall" -- Mandatory or Directory?

By

Hon. John J. DiMotto

Legal Definition of "Shall"

     According to Black's Law Dictionary, the term "shall" is defined as follows:

"As used in statutes, contracts, or the like, this word is generally imperative or mandatory.  In common or ordinary parlance, and in its ordinary signification, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning:  denoting obligation.  It has a peremptory meaning, and it is generally imperative or mandatory.  It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears."

     If the reader stops reading at this point, the reader might think that "shall" must always mean "shall."  However, one must read on.  The definition goes on to say:

"But it may be construed as merely permissive or directory (as equivalent to "may"), to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense."

     

     So, "shall" does not always mean "shall."  "Shall sometimes means "may."

     In Wisconsin, the meaning of the word "shall" has been the subject of litigation.

Case Law Construction of "Shall"

     In Karow v. Milwaukee County Civil Service Commission, 82 Wis.2d 565 (1978), the Milwaukee County Sheriff filed a complaint against the plaintiff, a Milwaukee County Deputy Sheriff.  On the date the complaint was filed the plaintiff was suspended without pay.  A hearing was set before the Civil Service Commission within three weeks of the date of suspension to comply with sec. 63.10(2) which set forth that "The Commission shall appoint a time and place for the hearing of said charges, the time to be within 3 weeks after the filing of the same..."  Due to an illness suffered by the assistant corporation counsel representing the defendant, the County asked that the hearing be postponed beyond the three week time frame.  Over objection of the plaintiff, the hearing was adjourned beyond the three week time frame.  After the plaintiff filed for a writ of mandamus, the case was dismissed.  On appeal the defendant argued that the three week time limit on holding the hearing was merely directory because pursuant to its rule making power, the Commission had promulgated a rule which provided that for cause shown, the hearing could be beyond the three week statutory time limit.  The Wisconsin Supreme Court did not agree.  In its decision, the Court stated: 

1)   The general rule is that the word "shall' is presumed mandatory when it appears in a statute.

2)   When the words "shall" and "may" are used in the same section of a statute, one can infer that the legislature was aware of the different denotations and intended the words to have their precise meanings.

3)   The word "shall" can be construed as directory if necessary to carry out the legislature's clear intent.

4)   Statutes setting time limits on various activities have often been held to be directory despite the use of the mandatory "shall," where such a construction is intended by the legislature.

5)   A statute prescribing the time within which public officers are required to perform an official act is merely directory, unless it denies the exercise of power after such time, or the nature of the act, or the statutory language, shows that the time was intended to be a limitation.  

6)  A time limit may be construed as directory when allowing something to be done after the time prescribed would not result in an injury.  But where the failure to act within the statutory time limit does work an injury or wrong, this court has construed the time limit as mandatory.

In addition to the above, the Court went on to address a number of other factors to be considered in determining the legislature's intent when presented with the word "shall" in the context of time limits. They include:

1)   Omission of a prohibition or penalty.

2)   Consequences resulting from one construction or another.

3)   The nature of the statute, the evil to be remedied and the general object sought to be accomplished by the legislature.

Conclusion

     When an issue arises as to the statutory construction of the word "shall," it is necessary to determine what the legislature intended.  In order to determine the clear intent of the legislature, one must resort to an application of the principles and factors set forth in Karow to the facts of the case in light of the language of the statute.  

The Preclusion Doctrine

By

Hon. John J. DiMotto

     The Preclusion Doctrine is a legal principle that precludes or estops a party from pursuing a lawsuit against another party based on a prior lawsuit.  The Preclusion Doctrine exists in two fields: 

Claim Preclusion and Issue Preclusion.

CLAIM PRECLUSION

     Under claim preclusion, also referred to as res judicata, a final judgment is conclusive in all subsequent actions between the same parties or their privies as to all matters which were litigated or which might have been litigated in the former proceedings.  To apply, this Doctrine requires: 

1)  An identity of parties or their privies;

2)  An identity of causes of action in the two cases; and

3)  A final judgment on the merits in a court of competent jurisdiction in the first action.

Town of Delafield v. Winkelman, 269 Wis.2d 109 (2004).

ISSUE PRECLUSION

     Issue preclusion, also referred to as collateral estoppel, is designed to limit the relitigation of issues that have been actually litigated in a previous action.

     Issue preclusion is much narrower than claim preclusion: 

1)  Identity of parties is not required;

2)  It can be used offensively -- to bring a suit or defensively -- to stop a suit.

3)  The threshold prerequisite in order to be precluded from relitigating an issue is that a party must have "actually litigated" it previously.

4)  It must comport with principles of fundamental fairness.

Paige K.B. v. Steven G.B., 226 Wis.2d 210 (1999).

     In undertaking its "fundamental fairness" analysis, there are five factors that the court can consider:

1)  Could the party against whom preclusion is sought have obtained review of the judgment?

2)  Is the question one of law that involves two distinct claims?

3)  Do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue?

4)  Have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second? or

5)  Are matters of public policy and individual circumstances involved that would render application of issue preclusion fundamentally unfair?

Factors 1, 2 and 4 present questions of law for the Court.

Factors 3 and 5 fall within the trial courts discretion.

Estate of Rille v. Physicians Ins. Co., 300 Wis.2d 1 (2007)

CASE LAW

     Let's look at how courts have construed the application of the Preclusion Doctrine in a few real life scenarios.

     In Masko v. City of Madison, 265 Wis.2d 442 (Ct. App. 2003), the plaintiff tried a traffic matter in municipal court and lost.  Plaintiff then brought a civil action for damages in circuit court.  The trial court dismissed the case based on issue preclusion.  The Court of Appeals affirmed the trial court holding that the issue of liability was fully litigated in the municipal court traffic ticket case and therefore it could not be relitigated in a civil tort action for damages.  The Court indicated that preclusion derives from the assumption that, in fairness to the defendant, there is a point at which litigation involving the particular controversy must end.  The doctrine may apply even if the cause of action in the second suit is different than the first suit.  However, the issue must actually have been litigated and the party seeking preclusion bears the burden of proof in that regard.  Here, there was sufficient identity of interest and preclusion comports with fundamental fairness.

     In Randall v. Felt, 256 Wis.2d 563 (Ct. App. 2002), the plaintiff, filed an inventory in the Estate of Felt, but did not include two accounts that plaintiff contended were joint accounts with right of survivorship.  These accounts were set up while the decedent was under a guardianship.  The defendant objected.  The probate court conducted a hearing but took no testimony and ruled that the guardianship precluded any argument about the competency of a ward to give joint tenancy in property. The issue in the case was whether the issue regarding the accounts had actually been litigated in the guardianship proceeding.  Here, the Court of Appeals stated that the threshold prerequisite in order to be precluded from relitigating an issue is that a party must have "actually litigated" it previously.  The court further stated that an issue is "actually litigated" when it is properly raised by pleadings or otherwise and is submitted for determination and is determined.  In this case, the Court of Appeals held that there never was actual litigation of the account issue in the guardianship case and thus issue preclusion dictates were not met and did not apply to bar litigation over the accounts.

     In Paige K.B., supra, the plaintiff sued her father for battery and intentional infliction of emotional distress for sexually assaulting plaintiff.  Plaintiff sued her paternal grandparents for negligence in failing to properly supervise their son and alleging that they negligently inflicted emotional distress upon plaintiff.  The father was convicted of sexual assault in his criminal case.  The trial court precluded the grandparents from litigating the sexual assault issue.  Here, the Supreme Court reversed the trial court's decision.  The Court determined that the grandparents were not so closely aligned with their son that they represent the same legal interest and that there was not sufficient identity of interest to comport with due process citing to Restatement (Second) Judgments sec 85.

     In Mrozek v. Intra Financial Corp., 281 Wis.2d 448 (2005), in determining whether an issue was "actually litigated", the Court held that a guilty plea does not constitute issue preclusion.  A guilty plea is not the same as a fully litigated trial between adversarial parties resulting in the fact finder determining that the facts prove the defendant committed the crime.

     In City of Sheboygan v. Nytsch, 296 Wis.2d 73 (Ct. App. 2006), the Court of Appeals  held that the City was not precluded from litigating a probable cause to arrest issue finding that the proceedings at a Department of Transportation Administrative Hearing on the suspension of the defendant's license did not constitute actual litigation.  In a footnote, the Court cites to Restatement (Second), Judgments sec 27 that holds that an issue is not actually litigated if it is the subject of a stipulation.

     In Wisconsin Public Service Corp. v. Arby Construction, 342 Wis.2d 544 (2012),  the Court set forth that claim preclusion exists to prevent endless litigation and that under claim preclusion a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were or might have been litigated in the former proceeding.  Further, that in the claim preclusion scenario, the court looks beyond form of the pleading to the substance of the pleading.  The Court also indicated that claim preclusion is a rule of public policy and of private benefit to individual litigants and that the protection from the annoyance of repeated litigation which the individual sector is afforded is an incident of the first principle that the best interest of society demands that litigation be concluded.

     In Kruckenberg v. Harvey, 279 Wis.2d 520 (2005), the Court set forth that Wisconsin uses a "transactional approach" to determine if there is identity of causes of action in the two suits.  The Court further stated that under claim preclusion, a valid final judgment extinguishes all rights to remedies against a defendant with respect to all or any part of the transaction or series of connected transactions out of which the action arose.  The Court also proferred that although fairness is an element in the Doctrine of Issue Preclusion, the Court has not adopted fairness as a factor in the Doctrine of Claim Preclusion.  However, the concept of fairness does underlie both.

     In Northern States Power Co. v. Bugher, 189 Wis.2d 541 (1995), the Court set forth that claim preclusion is designated to draw the line between meritorious claims and vexatious, repetitious and needless claims.

CONCLUSION

     The Preclusion Doctrine stands for the proposition that once litigation is commenced that all causes of action that relate to the transaction should be pursued so that at the end of the case all issues are resolved and finality achieved.  One might say:  "Do It Once:  Do It Right."

     

Determining Credibility of Witnesses and the Weight of Evidence

By

Hon. John J. DiMotto

     In every trial, in order to arrive at a verdict, the trier of fact - the judge in a court trial and the jurors in a jury trial - must assess the credibility of the witnesses and determine the weight of the evidence.   It requires the trier of fact to determine what the truth is and who is telling the truth.  

     In the typical trial, there may be a huge discrepancy in what the victim of a crime says happened  and in what the defendant says happened.  For example, in a sexual assault case the victim may testify that the defendant engaged in sexual intercourse by the use of threats and without consent while the defendant may testify that what occurred was completely consensual.  Both versions can not be true, yet the trier of fact must make a credibility determination.  This can be particularly difficult in a case where there is no physical evidence and no outside witnesses.  So how does the trier of fact arrive at is conclusion?  In Wisconsin, we get guidance from case law and jury instructions.

Jury Instruction on Credibility

     In Wisconsin, there is a judicial criminal jury instruction committee and a judicial civil jury instruction committee who have addressed the issue of credibility and they have adopted the same language for criminal and civil cases.  

The instructions set forth that:

1)  It is the duty of the jury to scrutinize and to weigh the testimony of witnesses and

2)  To determine the effect of the evidence as a whole.

The instruction tells the jury to do this it should consider the following factors:

1)  Whether the witness has an interest or lack of interest in the result of the trial.

2)  The witness' conduct, appearance and demeanor  on the witness stand.

3)  The clearness or lack of clearness or the witness' recollections.

4)  The opportunity the witness had for observing and for knowing the matters the witness testifies about.

5)  The reasonableness of the witness's testimony.

6)  The apparent intelligence of the witness.

7)  Bias or prejudice if any has been shown.

8)  Possible motives for falsifying testimony.

9)  All other facts and circumstances during the trial which tend either to support or discredit the testimony.

The jury is further instructed that:

1)  The weight given to the evidence is not to be decided merely according to the number or witnesses on each side.
2)  The jury may find that one witness' testimony is entitled to greater weight than that of another witness or even several other witnesses.
3)  The jury may take into account matters of common knowledge, observations and experiences  in the affairs of life.

The jury is also told to give to the testimony of each witness the weight the jury believes it should receive.

Finally, the jury is told that:

1)  There is no magic way to evaluate testimony, rather

2)  The jury should use its common sense and experience.

3)  In everyday affairs jurors determine for themselves the reliability of things people say and that they should do the same thing as jurors.

    This instruction is an excellent tool to be used in assessing credibility.  This instruction is based on case law.

Case Law on Credibility

     In Geise v. American Transmission Co.,355 Wis.2d 454 (Ct. App. 2014), the court set forth that it is the jury who determines the credibility of witnesses, resolves conflicts in testimony, weighs the evidence and draws reasonable inferences from the evidence.

     In Jezeski v. Jezeski, 316 Wis.2d 178 (Ct. App. 2008), the court stated that it is the fact finder who:

1)   Gauges the credibility of witnesses and the persuasiveness of their testimony.
2)   Resolves conflicts and inconsistency in evidence.
3)   May believe some testimony of one witness and some testimony of another witness even though their testimonies, read as a whole, may be inconsistent.

Furthermore, on appeal, unless testimony is inherently incredible, an appellate court may not substitute its judgment for the judgment of the fact finder.

     In Dickman v. Vollmer, 303 Wis.2d 241(Ct. App. 2007), the court stated that an appellate court will not second guess the trial court's reasonable factual inferences.  It must give deference to the fact finder's conclusions.

     In Pries v. McMillon, 314 Wis.2d 706 (Ct. App. 2008), the court reiterated that the fact finder is "the ultimate arbiter of both the credibility of witnesses and the weight to be given to each witness' testimony.

     In State v. Marinez, 331 Wis.2d 568 (2011), the court set forth that a witness' testimony is always consequential within the meaning of 904.01 [the concept of relevancy].

      In Teubel v. Prime Development Inc., 249 Wis.2d 743 (Ct. App. 2002), the court indicated the the reason the fact finder is the final arbiter of credibility of witnesses and the weight to be given to each witness' testimony is because the fact finder has had the opportunity to observe the witnesses and assess their demeanor.

     In Covelli v. Covelli, 293 Wis.2d 707 (Ct. App. 2006), the court stated that the credibility and weight determination is uniquely in the province of the fact finder because it is in a better position than an appellate court to make such determinations.  The fact finder has a superior view of the total circumstances of the witness' testimony.

     In State v. Kimbrough, 246 Wis.2d 648 (Ct. App. 2001), the court set forth that the fact finder, in determining the credibility of each witness:

1)   Can properly reject even uncontroverted testimony if it find the facts underpinning the testimony untrue.
2)   Even when a single witness testifies, the fact finder may choose to believe some assertions of the witness and disbelieve other assertions.

The court further stated that this is especially true when the witness is the sole possessor of relevant facts.

     In Bretl v. LIRC, 204 Wis.2d 93 (Ct. App. 1996), the court indicated that credible evidence is that which excludes speculation and conjecture..

     In State v. Perkins, 277 Wis.2d 243 (Ct. App. 2004), in addressing the credibility of witnesses and weight of evidence, the court set forth that only if the evidence is inherently or patently incredible will a court substitute its judgment for that of the fact finder.

     In State v. Kienitz, 227 Wis.2d 423 (1999), in addressing the credibility of an expert, the court set forth that the trier of fact:

1)   Has the ability to accept so much of testimony of an expert that it finds credible.  
2)   Is not bound by the opinion of an expert and can accept or reject the expert's opinion.
3)   May accept certain portions of an expert's testimony while disregarding other portions.

     In State v. Turner, 186 Wis.2d 277 (Ct. App. 1994), the court indicated that the credibility of witnesses is determined by:

1)   Words
2)   Tonal quality
3)   Volume and speech patterns

all of which give clues as to whether a witness is telling the truth.  The court went on to say that is is critical that jurors hear the witness' testimony and relate the testimony to the demeanor of the witness.

     In State v. Anson, 275 Wis.2d 832 (Ct. App. 2004), the court reiterated that the fact finder has no obligation to believe everything a witness says.

     In Cogswell v. Robert Shaw Controls Co., 87 Wis.2d 243 (1979), the court set forth that when more than one reasonable inference can be drawn from credible evidence, the reviewing court must accept the inference drawn by the trier of fact.

     In  State v. Kimberly B., 283 Wis.2d 731 (Ct. App. 2005), the court stated that it is the fact finder's task to sift and winnow the credibility of witnesses.

Conclusion

     The determination of credibility and weight of evidence is not a scientific determination. It is made by a fact finder (judge or jury) through the use of common sense and long experiences in life.  It takes into account:

1)   What is said.

2)   How it was said.

3)   Who said it.

Evidence that is credible and worthy of belief is evidence that has a common sense "ring of truth." The statement of the late Justice Potter Stewart in an obscenity case is very applicable when it comes to determining credibility and weight of evidence:  "You know it when you see it."

The Entrapment Defense in Wisconsin

By

Hon. John J. DiMotto

     Entrapment is an affirmative defense bearing upon the guilt or innocence of a defendant.  It is the inducement of a person to commit a crime not contemplated by the person for the mere purpose of instituting a criminal prosecution against the person.  It is a question to be decided by the trier of fact -- a judge after a court trial or a jury.  It pertains to the merits of the cause and is not raised in a pretrial motion.  It is not a ground for excluding evidence.  State v. Hochman, 2 Wis.2d 410, 413 - 414, 418 - 419 (1957).

     Entrapment is a positive defense, the invocation of which necessarily assumes that the act charged was committed.  22 C.J.S., Criminal Law, pp.99, 100, sec. 45a.  

     An examination of case law, gives one a clear understanding of the parameters of this defense.

Case Law

     In Hawthorne v. State, 43 Wis.2d 82 (1969), the Court set forth:

     1)  If criminal intent or the willing disposition to commit the crime originates in the mind of the accused and the criminal offense is completed, the fact that the opportunity is furnished or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute the accused for it, constitutes no defense.

     2)  However, if the evil intent and the criminal design originate in the mind of the government agent and the accused is lured into the commission of the offense charged in order to prosecute the accused for it when he would not have committed an offense of that character except for the urging of the agent, no conviction may be had.

     3)  Entrapment, as a matter of law, is not established where there is any substantial evidence from which it may be inferred that the criminal intent to commit a particular offense originated in the mind of the accused.

    

     In Fletcher v. State, 68 Wis.2d 381 (1975), the Court set forth that the defense of entrapment is inapplicable where the state shows that the defendant's prior disposition to commit the crime; that the intent to violate the law originated in the mind of the defendant.

     In State v. Amundson, 69 Wis.2d 554 (1975), the Court set forth that entrapment involves two elements:  First, the defendant must show "inducement" by a preponderance of the evidence.  Second, the State must show "predisposition" by the defendant beyond a reasonable doubt.  The Court further indicated that entrapment encompasses inducements and other activities by police removing the element of volition by the defendant.  It stated that entrapment is involved where police have instigated, induced, lured or incited the commission of the crime and where police tactics offend common concepts of decency.

     In State v. Saternus, 127 Wis.2d 460 (1986), the Court set forth that entrapment is a common law defense. It is only a dispositive issue when all elements of the crime are proved.  It is not available when the intent to commit the crime originates in the mind of  the defendant.  If the defendant had a willing disposition to commit the crime, the fact that the opportunity is furnished by police to secure the evidence constitutes no defense.  However, if the evil intent and criminal design originated in the mind of the government agent and the accused is lured into the commission which he otherwise would not have done, no conviction can be had. The Court said that the entrapment defense is not to be resolved solely by consideration of outrageousness of the government agent but  rather the trier of fact must look to where the intent originates.  A subjective test is applied to whether police conduct affected or changed the defendant's state of mind as contrasted with the objective test which focuses on how reprehensible police action would affect intent of a person in the circumstances whether predisposed or not.

     In  State v. Steadman, 152 Wis.2d 293 (Ct. App. 1989), the Court indicated that government providing a defendant with opportunity but not instigated crime is not entrapment.

    In State v. Bjerkaas, 163 Wis.2d 949 (Ct. App. 1991), the Court set forth that the trial court may deny an entrapment instruction if not reasonably required by the evidence.  Mere offering to buy drugs is not entrapment.  Befriending a defendant is not inducement.

     In State v. Hilleshiem, 172 Wis.2d 1, Ct. App. 1992), the Court set forth that a government agent furnishing a defendant with the opportunity to commit a crime is not entrapment..  A government agent hay engage in some inducement, encouragement or solicitation in order to detect criminals.  Entrapment is only established if a government agent uses "excessive" incitement, urging, persuasion or temptation and prior to inducement the defendant was not already disposed to commit the crime.

     In State v. Schumann, 226 Wis.2d 398 (Ct. App. 1999),  the Court indicated that only "slight evidence" is required to create a factual issue and put the defense before the jury.  Evidence may be weak, insufficient, inconsistent or of doubtful credibility but a defendant is entitled to an entrapment instruction unless the evidence is rebutted by the state to the extent that no rational jury could entertain a reasonable doubt as to inducement and lack of predisposition.

 Conclusion

     While the entrapment defense is an available defense, it is very rarely pursued because the defendant must concede the elements of the offense -- concede the commission of the crime -- and hope that the jury will accept the defendant's explanation that intent to commit the crime did not originate with the defendant but was the result of excessive government incitement, urging, persuasion or temptation.  A defendant needs to come before the jury with "clean hands" if he or she hopes to prevail.

INFORMED CONSENT IN WISCONSIN: PAST AND PRESENT

By

Hon. John J. DiMotto

     Section 448.30 of the Wisconsin Statutes sets forth the requirement that a physician obtain the informed consent of his/her patient before performing a medical procedure.  It addresses what a reasonable patient would want/need to know in order to make an intelligent decision with respect to treatment or diagnosis as well as the obligations of the physician in providing the information.  In this blog, I will first look at case law which first addressed the concept of informed consent at common law.  Next, I will look at the informed consent statute that was enacted in 1982 and then look at it the informed consent statute as revised in 2013.

PRE-1982 CASE LAW

        In Wisconsin, common law has long recognized the need for the consent of a patient to a medical procedure.

In Throne v. Wandell, (1922), 176 Wis. 97, the Court held that a person in possession of his faculties and in sufficient physical health to be consulted about his condition, must be so consulted in nonemergency situations.

In Paulsen v. Gundersen, (1935), 218 Wis. 578, the Court held that the plaintiff had the burden of proving that that the operation performed was done without his consent.

In Trogun v. Fruchtman, (1973), 58 Wis.2d 569, the Court recognized that a patient had a right to know of significant potential risks involved in proposed treatment or surgery so that he could make a rational and informed decision of whether he would undergo the proposed procedures. 

In Scaria v. St. Paul Fire and Marine Ins. Co., 68 Wis.2d 1 (1975), the Court stated that the duty of a doctor is to make such disclosures as appear reasonably necessary under circumstances then existing to enable a reasonable person under the same or similar circumstances confronting the patient at the time of the disclosure to intelligently exercise his right to consent or refuse treatment or procedure proposed.  The Court further stated that a doctor need not disclose technical information that a patient will not likely understand or extremely remote risks that might only cause alarm.

CHAPTER 375, LAWS OF 1981

     On May 6, 1982, the Wisconsin legislature enacted the first "Informed Consent" law in Section 448.30.  It was entitled: "Information on alternate modes of treatment."  In essence, it codified what had been discussed in case law.  It set forth:

"Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments.  The physician's duty to inform the patient under this section does not require disclosure of:

(1)  Information beyond what a reasonably well-qualified physician in a similar medical classification would know.
(2)  Detailed technical information that in all probability a patient would not understand.
(3)  Risks apparent or known to the patient.
(4)  Extremely remote possibilities that might falsely or detrimentally alarm the patient.
(5)  Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.
(6)  Information in cases where the patient is incapable of consenting.

     Over the years, appellate courts have had numerous opportunities to address the issue of informed consent in 448.30.

In Staudt v. Froedert Memorial Lutheran Hospital, 217 Wis.2d 773 (Ct. App. 1998), the Court held that the duty to get informed consent rests with the physician not the hospital.  Medical decisions on how to treat patients rests with physicians who are subject to liability for their malpractice.

In Mathias v. St. Catherine's Hospital Inc., 212 Wis.2d 540 (Ct. App. 1997), the Court stated that the duty of a doctor to ensure a patient gives informed consent to any medical treatment is codified in 448.30 and that the legislature limited the application to treating physicians.

In Schreiber v. PICWIS, 223 Wis.2d 417 (1999), The Court held that: 

(1)  A patient does not have the right to demand any treatment she desires.  

(2)  A doctor is not required to perform procedures that he/she does not consider medically viable; procedure for which he/she lacks appropriate expertise or procedures he/she is morally opposed to do.

(3)  Consent, once given, is not immutable.  It can be withdrawn.

(4)  The onset of the procedure does not foreclose a patient's withdrawal of consent though at some point in time in virtually every medical procedure a patient reaches a point of no return but this point need not be arbitrarily created at the commencement of the procedure.  It varies with the nature of the individual procedure and continues so long as there are alternative viable modes of medical treatment.

(5)  An objective test applies to whether the failure to again conduct an informed consent discussion was a cause of injuries.  (Objective test -- would a reasonable patient want to know the information and would a reasonable patient have acted differently than they did without the information.)

(6)  Where informed consent is withdrawn, a subjective test is applied to another informed consent discussion.

In Montalvo v. Barkovec 256 Wis.2d 472 (Ct. App. 2002), the Court indicated that what a physician must disclose is what a reasonable person in the patient's position would need to know in order to make an intelligent and informed decision.

In Martin v. Richards, 192 Wis.2d 156 (1995), the Court indicated that: 

(1) The doctrine of informed consent comes from common law and stems from the fundamental notion of the right to bodily integrity.  

(2) 448.30 requires a physician who treats a patient to inform the patient of availability of "all alternate, viable" modes of treatment and benefits and risks of them except in six circumstances.

(3) The standard for informed consent cannot be defined by the medical profession.  It is not a medical decision, it is a patient's decision.

(4) Diagnostic procedures as well as medical procedures are included in 448.30.

(5) Informed consent applies to noninvasive procedures as well invasive procedures.

In Johnson v. Kokemoor, 199 Wis.2d 614 (1996), the Court indicated that in order to insure that a patient gives informed consent: 

(1) A physician has the duty to provide the patient with such information as may be necessary under the circumstances then existing to assess significant potential risks the patient confronts.  

(2) The information must be material to the decision.

(3) The patient cannot make an informed consent unless the physician gives the patient all of the viable alternatives and risks information.

(4)  There is no bright line rule as to what a patient needs to know.  It varies case by case.

(5) Disclosures that would be made by doctors in good standing, under the same or similar circumstances, are certainly material and relevant.

In Brown v. Dibbell, 227 Wis.2d 28 (1999), the Court indicated that:

(1)  A patient's duty to exercise ordinary care in an informed consent case includes a patient's duty to tell the truth and give complete and accurate information about personal family and medical histories to a doctor's request for such information.

(2) A patient's duty to exercise ordinary care in an informed consent case generally does not impose on a patient an affirmative duty to ascertain the truth or completeness of the doctor's information, to ask the doctor questions or independently seek information when a reasonable person would want such information.  Usually a patient has to rely on the professional skills and knowledge of the doctor.

(3) Informed consent doctrine focuses on the reasonableness of the doctor's disclosure. 

(4) The standard of what a doctor must disclose is described as "the prudent patient's standard."

In Hageny v. Bodensteiner, 316 Wis.2d 240 (Ct. App. 2008), the Court indicated that a physician need not disclose absolutely every fact or remote possibility that could theoretically accompany a procedure.  What must be disclosed is what a reasonable person in the patient's position would want to know.

In Bubb v. Brusky, 321 Wis.2d 1 (2009), the Court indicated that:

(1) Any physician who treats a patient must inform the patient about the availability of all alternate, viable medical modes of treatment, including diagnosis, as well as benefits and risks of such treatments.

(2) The patient's right of self decision is the measure of the physician's duty to reveal.

(3) A physician's duty to inform is not boundless but must give information of risks, known to a reasonably well qualified practitioner or specialist commensurate with his/her classification in the medical profession.  This is a reasonableness standard.

In Jandre v. PICWIS, 340 Wis.2d 31 (2012), the Court held:

(1) A physician's duty is to inform the patient about diagnostic procedures about which a reasonable patient would want to know to make an informed, voluntary decision about his or her medial care, even if those diagnostic procedures are aimed at conditions that are unrelated to the condition that was the final diagnosis.

(2) Though the final diagnosis in this case was non negligent one of Bell's Palsey, the earlier differential diagnosis involving stroke required the physician to inform the patient of the test for stroke.

(3) Martin and Bubb did not hold that a physician has duty to inform a patient only of information about the final diagnosis and related condition.

(4) The physician must make disclosures as appear reasonably necessary under the circumstances then existing to enable a reasonable person under the same or similar circumstances confronting the patient at the time of the disclosure to intelligently exercise informed consent regarding the treatment or procedure proposed.

2013 WISCONSIN ACT 111

     In response to the Jandre decision, on December 12, 2013 the Wisconsin Legislature enacted 2013 Wisconsin Act 111 which effectively limits the scope of 448.30. The legislation revised 448.30 as follows: 

(1) Eliminating the requirement that a physician inform the patient of "all alternate, viable medical medical modes of treatment" and replacing it with "reasonable medical modes of treatment."

(2) Setting forth a "reasonable physician standard" for informing a patient.  This standard requires disclosure only of information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances.

(3)  Setting forth that disclosure is not required about alternate medical modes of treatment for any condition that physician has not included in his/her diagnosis at the time the physician informs the patient.

     448.30 has been retitled:  Informed consent.  It sets forth:

"Any physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments.  The reasonable physician standard is the standard for informing a patient under this section.  The reasonable physician standard requires disclosure only of information that a reasonable physician in the same or similar medical specialty would know and disclose under the circumstances.  The physician's duty to inform the patient under this section does not require disclosure of:

(2)  Detailed technical information that in all probability a patient would not understand.

(3)  Risks apparent or known to the patient.
(4)  Extremely remote possibilities that might falsely or detrimentally alarm the patient.
(5)  Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.
(6)  Information in cases where the patient is incapable of consenting.
(7)  Information about alternate medical modes of treatment for any condition the physician has not included in his or her diagnosis at the time the physician informs the patient.

CONCLUSION

     The revisions to 448.30 limit the disclosure obligations of a physician. The questions to be answered in future cases are: 

(1) Does the "reasonable physician standard" of 448.30 that requires disclosure only of information that a reasonable physician in the same or similar medical specialty would know and disclose under the circumstances trump the "reasonable patient standard" in Wisconsin law that requires a physician disclose information necessary for a reasonable person to make an intelligent decision with respect to choices of treatment or diagnosis? 

(2) Does the "reasonable physician standard" of 448.30 run contrary to the "fundamental notion of the right to bodily integrity?

DAUBERT IN WISCONSIN -- THREE YEARS DOWN THE ROAD

By 

Hon. John J. DiMotto

     It has been almost three years since Wisconsin became a "Daubert" state.  When the amendments to 907.02 took effect in February, 2011, the Wisconsin legal community was divided as to the impact "Daubert" would have on litigation in Wisconsin.  There were those skeptics who believed that: 

1)  It would be more difficult to introduce expert testimony

2)  Trial judges would become "uber- gatekeepers" who would manipulate the outcome of a case based on "reliability rulings.

3)  Introduction into evidence of advances in technology would be stifled.

4)  Litigation dependent on expert testimony would suffer.

5)  "Daubert" would have a seismic impact on litigation requiring expert testimony.

On the other hand, there were those who believed that:

1)  It would not be more difficult to introduce expert testimony.

2)  Trial judges would exercise their gatekeeper function moderately.

3)  Advances in technology would not be deemed inadmissible because of their "newness."

4)  Litigation dependent on expert testimony would not be negatively impacted.

5)  "Daubert" would have a subtle impact on litigation requiring expert testimony.

     In a blog entry that I wrote and posted on February 16, 2011, I rendered the opinion that the effect of "Daubert" in Wisconsin would be subtle:

1)  That the interplay between "relevancy" and "reliability" was compatible not incompatible. 

2)  That to be "relevant" evidence needed to be "reliable."

3)   That a reasonable reading of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) revealed that SCOTUS:

     a)  Stepped back from the rigid "general acceptance" rule of Frye.

     b)  Made it clear that the "Daubert" inquiry is a flexible inquiry.

     c)   Rule 702 will not create a "free for all."

     d)   Vigorous cross examination; presentation of contrary evidence; careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.

4)  That SCOTUS intended to make the introduction of expert testimony easier.

5)  That SCOTUS intended the degree of reliability necessary for the introduction of expert testimony to be low.

    I believe that Wisconsin appellate decisions addressing "Daubert" issues  has shown my prediction to be true.

     In the almost three years since "Daubert"  has been the "law of the land" in Wisconsin, there have been two decisions that address "Daubert" substantively:  State v. Giese, 2014 WI App 92, 356 Wis.2d 796 and State v. Alger, 2015 WI 3,  ____Wis.2d ____.

State v. Giese

     In Giese, the trial court denied Giese's motion to exclude expert testimony concerning retrograde extrapolation of his Blood Alcohol Concentration (BAC).  The Court of Appeals affirmed the trial court's decision.  The court found that the trial court properly admitted the expert's testimony under 907.02 because:

1)  It was the product of reliable principles and methods.

2)  It was based upon sufficient facts and data.

3)  The defendant's objections went to the weight of the expert's opinions and validity of the expert's underlying assumptions.

The court indicated that the trial court's gatekeeper function under "Daubert" is: 

1)   To ensure that the expert's opinion is based on a reliable foundation and is relevant to material issues.

The court further indicated:

1)   That the trial court is to focus on principles and methodology that the expert relies upon, not the conclusion generated.

2)   That the question is whether scientific principles and methods that the expert relies upon have a reliable foundation in the knowledge and experience of the expert's discipline.

3)   That relevant factors include:whether the scientific approach can be objectively tested; whether it has been subject to peer review and publication' whether it is generally accepted in the scientific community.

The court made it abundantly clear that this standard is flexible but has teeth.  The goal is to prevent the jury from hearing conjecture dressed up in the guise of expert opinion.  The trial court is not required to admit opinion evidence connected to existing data only by ipse dixit of the expert.

The court went on to say that the mere fact that experts disagree about reliability of a principle does not mean it violates "Daubert."  Assumptions of the expert go to weight not admissibility.  If experts are in disagreement, it is not for the court to decide which of several competing scientific theories has the best provenance.  Accuracy of facts upon which the expert relies and the ultimate determinations of credibility and accuracy are for the jury,

What we take away from Giese is that "Daubert" is flexible not rigid.

State v. Alger

     In Alger, the defendant sought discharge from his Chapter 980 Sex Offender Commitment.  He wanted the trial court to apply the "Daubert" standard to the State's expert opinions.  He believed that the "science" is ever changing and while perhaps relevant, not reliable enough to be considered by the jury.  The trial court refused to apply the "Daubert" standard because the case began before "Daubert"  went into effect in Wisconsin.  The Court of Appeals affirmed the decision of the trial court and the Wisconsin Supreme Court affirmed the Court of Appeals.

     While the ultimate decision is that "Daubert" does not apply in the case, it is significant that the court indicated that the expert testimony of the kind offered in a Chapter 980 case may be admissible regardless of which standard applies. The court indicated:

1)  Rejection of expert testimony, post-Daubert, is the exception not the rule.

2)  "Daubert" adds a 4th prong:  a reliability component to Wisconsin's 3 prong "relevancy components.

2)  A hearing is not always required for expert testimony under "Daubert."

3)  The expert testimony offered by the State in Chapter 980 cases is not "junk science" that is rejected by the "Daubert" standard.

Conclusion

     When it comes to "Daubert" in Wisconsin, I am convinced by Giese and Alger of four things:

1)   It is a FLEXIBLE standard.

2)   Rejection of expert testimony IS THE EXCEPTION NOT THE RULE.

3)   It is a doctrine/standard of INCLUSION NOT EXCLUSION.

4)   It's effect in Wisconsin is SUBTLE not seismic.

  

ELECTRONIC SURVEILLANCE AND ONE PARTY CONSENT IN WISCONSIN

BY

HON. JOHN J. DIMOTTO

     With the disclosures by Edward Snowden regarding activities of the NSA, people are much more attuned today about their personal privacy and their right, under the Fourth Amendment, "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."  In this blog entry, I want to look at Wisconsin's Electronics Surveillance Control Law (WESCL) and One Party Consent.

STATUTORY LAW

968.27 - 968.37

     WESCL was created by ch. 427, Laws of 1969.  It replaced Wisconsin's Wiretapping Law, sec. 885.36.  This WESCL prohibited the admission into evidence of tape-recorded interceptions of telephonic conversations.  In essence, while "interception" via one party consent may be lawful and used by law enforcement in the proper performance of official duties, "admission" into evidence is not, absent interception by authorized means in accordance with the state act.  State ex rel Arnold v. County Court, 51 Wis.2d 434 (1971).  The WESCL has undergone revision multiple times since 1969 and has been construed by case law over the years.  

     Currently, one party consent is addressed in 968.29(3)(b), 968.31(2)(b) and (c) which read:

968.29(3)(b):  Any person who has received, in the manner described under 968.31(2)(b), any information concerning a wire, electronic or oral communication or evidence derived therefrom, may disclose the contents of that communication or that derivative evidence while giving testimony under oath or affirmation in any proceeding ... in which a person is accused of any act constituting a felony, and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording

968.31(2)(b):  It is not unlawful under 968.28 - 968.37: for a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.

968.31(2)(c):  It is not unlawful under 968.28 - 968.37 for a person not acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act.

     Under 968.27(12), an oral communication "means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation.  Oral communication does not include any electronic communication.

CASE LAW

     In State v. Waste Management of Wisconsin Inc., 81 Wis.2d 555 (1978), The Court held that: 

1)  Evidence obtained by the State by means of illegal electronic surveillance violates the 4th Amendment and must be suppressed.  

2)  One party consent tapes are not searches within the 4th Amendment. 

3)  Taping conversations for one's own protection is legitimate.

4)  One party consent tapes are lawful but not authorized under the WESCL and therefore the tapes cannot be used as evidence in the case in chief.

5)  Though the tapes may not be admissible, a witness's testimony regarding the conversation is admissible.  State v. Smith, 72 Wis.2d 711 (1976).

NB.  This case was subsequently overruled by revisions to WESCL.

     In State v. Gil, 208 Wis.2d 531 (Ct. App. 1997), the Court held that:

1)  Where one party consent was being used in accordance with the WESCL re: offenses delineated in the law, that where during the surveillance law enforcement inadvertently heard information regarding crimes not covered by WESCL, this "plain hearing" allows admission of the surveillance statements.

2)  Plain hearing is an outgrowth of plain view.

3)  Inadvertence or fortuity is a key factor which the court must resolve before employing the "plain hearing" exception to the WESCL.

     In State v. Curtis, 218 Wis.2d 550 (Ct. App. 1998), The Court held that:

1)  While the law in Wisconsin used to be that one party consent tapes were legal only for investigative purposes and not admissible as evidence, they are admissible in drug prosecutions like this case.

2)  Subsequent amendments have further broadened this authorization to all felonies.  1993 Wis. Act 98 and 1995 Wis. Act 30.

     In State v. Riley, 287 Wis.2d 244 (Ct. App. 2005) the Court held that:

1)  The State could use a defendant's outgoing jail calls where the inmate is given meaningful notice that such calls are subject to recording because under these circumstances the defendant's decision to engage in conversations over these phones constituted implied consent.

2)  Interception of such jail calls is lawful and results of interception are admissible in evidence so long as they are authenticated in accordance with 968.29(3)(b).

3)  Jail inmates have no expectation of privacy in calls to non attorneys placed on jail phones.  Their right to privacy is outweighed by the institution's need for safety and security.

     In State v. Christensen, 304 Wis.2d 147 (Ct. App. 2007), the Court held that:

1)  Recording jail calls did not violate WESCL because the defendant was warned about recording and monitoring and implicitly consented by continuing to converse.

2)  A person acting under color of law can intercept calls where prior consent is given to the interception.

3)  The fact that all calls are recorded, including calls to attorneys, does not require suppression of calls with non attorneys.

4)  The general rule of suppression:   items seized within the search warrant scope need not be suppressed simply because items outside the scope of warrant were also seized.  State v. Petrone, 161 Wis.2d 530 (1991).

     In  State v. House, 302 Wis.2d 1 (2007),  the Court held that:

1)  It is error for a trial court to authorize a wiretap for offenses not enumerated in the wiretap statute - 968.28,

2)  However, suppression not warranted where the wiretap did also include enumerated offenses; there was probable cause for enumerated offenses; charges only brought for enumerated offenses.

     In State v. Duchow, 310 Wis.2d 1 (2008):

     In this case, the defendant was charged with Child Abuse.  A tape recorder had been secreted in the child's backpack by parents.  The trial court found that the taped statements were not "oral communications" within the WESCL and admitted them.  The Court of Appeals reversed holding they were lawfully intercepted but not under color of law.  Here, the Supreme Court held that:

1)  Under WESCL, an "oral communication" means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation.  Oral communication does not include any electronic communication,

2)  Reasonable expectation of privacy is incorporated into the statute.

3)  Reasonable expectation of noninterception is not the standard.

4)  Here, the factors do not support that the defendant's subjective expectation of privacy is objectively reasonable. Individuals do not retain an expectation of privacy in threats to harm the person to whom the threat is made.

     In State v. Sveum, 319 Wis.2d 498 (Ct. App. 2009), the Court held that GPS is not an electronic communication.  It is a tracking device which is excluded from WESCL.

     In State v. Ohlinger, 317 Wis.2d 445 (Ct. App. 2009), the Court held that:

1)  One party consent exception to WESCL [968.31(2)(b)] applies when the intercepting person is a police officer and the party to the communication who consents to the intercept is also a police officer.

2)  WESCL governs the lawfulness and use of electronic intercepts of communications.

3)  Under one party consent, contents of interception may be disclosed in a felony proceeding.

4)  One party consent requires that the intercepting person must be acting under color of law.  A police officer can be that person.

5)  Intercepting person and consenting person can both be police officers.

6)  Consent of one person provides a basis for not imposing the warrant requirement.

     In State v. Turner, 356 Wis.2d 759 (Ct. App. 2014), the Court held that:

1)  The ability of a minor to give one party consent to interception of conversations is a question of voluntariness.

2)  In considering the voluntariness of a minor to give one party consent, the court should consider the totality of the circumstances including but not limited to age, intelligence, knowledge and maturity.

3)  A minor's consent must be the product of an essentially free and unconstrained choice.

4)  It is not unlawful for a person "acting under color of law" to intercept a wire, electronic or oral communication where the person is a part to the communication and one of the parties to the communication has given prior consent.

5)  Though a 15 year old cannot consent to sexual acts, a 15 year old can give one party consent to interception.

CONCLUSION

     WESCL puts limitations on electronic surveillance.  However, when there is compliance with the law -- including one party consent -- such surveillance can be both lawful and admissible in a court of law.