Bruce Martindale v. Bruce A. Ripp
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2001 WI 113 SUPREME COURT OF WISCONSIN Case No.: 99-0649 Complete Title of Case: Bruce Martindale, Plaintiff-Appellant-Petitioner, v. Bruce A. Ripp, City of Beloit, Pekin Insurance Company, and Cities and Villages Mutual Insurance Company, Defendants-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 231 Wis. 2d 239, 604 N.W.2d 305 (Ct. App. 1999-Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: July 12, 2001 November 1, 2000 Circuit Rock Edwin C. Dahlberg ABRAHAMSON, WILCOX, J., CROOKS, J., CROOKS, J., WILCOX, J., C.J., concurs (opinion filed). dissents (opinion filed). joins dissent. dissents (opinion filed). joins dissent. Not Participating: ATTORNEYS: For the plaintiff-appellant-petitioner there were briefs by Edward E. Grutzner and Grutzner, Holland & Vollmer, S.C., Beloit, and oral argument by Edward E. Grutzner. For the defendants-respondents there was a brief by Ted Waskowski, Laura Skilton Verhoff and Stafford Rosenbaum, LLP, Madison, and oral argument by Ted Waskowski. 2 2001 WI 113 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-0649 STATE OF WISCONSIN : IN SUPREME COURT Bruce Martindale, Plaintiff-Appellant-Petitioner, FILED v. JUL 12, 2001 Bruce A. Ripp, City of Beloit, Pekin Insurance Company, and Cities and Villages Mutual Insurance Company, Cornelia G. Clark Clerk of Supreme Court Madison, WI Defendants-Respondents. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. ¶1 DAVID T. PROSSER, J. Bruce Martindale seeks review of an unpublished decision of the court of appeals that affirmed certain rulings to exclude evidence by the Circuit Court for Rock County, Edwin C. Dahlberg, Judge.1 These evidentiary rulings are the focus of this appeal. ¶2 In this personal injury case, the first issue presented is whether an oral surgeon who has testified that, in his opinion, an injury to plaintiff's temporomandibular joints 1 Martindale v. Ripp, No. (Wis. Ct. App. Oct. 28, 1999). 99-0649, unpublished slip op. No. 99-0649 (TMJs) was caused by the whiplash motion of the plaintiff's head and neck after plaintiff's car was struck from behind by a garbage truck, may be prohibited from explaining and describing to the jury the manner in which he thought the whiplash caused injury to intended the as TMJs. part of The the surgeon's plaintiff's excluded testimony evidence was establishing a causal link between the accident-related whiplash and the TMJ condition. The jury ultimately decided that the accident did not cause the TMJ condition. ¶3 The testimony second about the issue presented plaintiff's is fears whether about certain the possible complications of possible future surgery on his TMJs should have been excluded. plaintiff's This claim for evidence past, was intended present, support the future and to damages for mental distress. ¶4 After examining the record, we conclude that the circuit court erroneously exercised its discretion in excluding the testimony plaintiff was explaining the probable injured. After manner conducting a in which harmless the error analysis of this erroneous exercise of discretion, we conclude that the substantial rights of the plaintiff have been affected. Accordingly, we reverse and remand court for a new trial. I 2 the case to the circuit No. 99-0649 ¶5 The facts surrounding the automobile accident in this case are not in dispute. On the morning of September 14, 1993, Martindale was driving his 1992 Pontiac Bonneville in the City of Janesville. feet seven Martindale was in his early 50s. inches tall. He was such a He stood six tall man that the headrest in his vehicle "[sat] too low in any position." ¶6 Martindale was driving in the left lane on Highway 51. He came to a complete stop at an intersection just north of the Rock River, behind a car that was waiting to turn left. He later testified that he stopped his car approximately 20 to 25 feet behind the car ahead of him. As he waited for the car to turn, Martindale looked into his rear view mirror and saw a garbage truck "bearing down on [him]." truck was going to hit him. pulled forward around the slightly right side Hoping to avoid the collision, he from of He said he knew the his the dead stop and in front of car tried him, to but go his maneuver was blocked by the traffic in the right lane. ¶7 Martindale testified that the fully loaded garbage truck, which was owned by the City of Beloit (the City) and driven by Bruce Ripp, was traveling at an estimated speed of 20 to 25 miles per hour before it slammed into his car. Martindale estimated the speed from the observation he made in his rear view mirror and the impact of the collision. The force of the garbage truck drove Martindale's car into the vehicle ahead of him. His Bonneville finally stopped between 100 and 150 feet from its original position. The car suffered more than $9000 in damages. 3 No. 99-0649 ¶8 when Martindale testified that his head "whipped" backwards the garbage truck collided with his car. "clashed" together when his head came forward. His teeth He chipped at least one tooth. ¶9 the Martindale testified accident, but after he he initially "shook" had the numbness numbness he from had "immediate pain" in his jaw and neck. He also had pain in his teeth. Martindale After talking with police, emergency room of a local hospital for pain. went to the He testified that he had a severe headache, a very sore neck, and pain in his teeth. ¶10 At trial, Martindale described the head and neck at the time of the collision. movement of his He said he thought his height and the type of headrest in the car contributed to his injuries. The "headrest was down" at the time of the crash, he said, facilitating the snapping back of his head as well as the clashing and chipping of his teeth. He claimed the whiplash movement of his head and jaw caused permanent injury to his TMJs the joints connecting both sides of his jaw to his skull. ¶11 In the years after the accident, Martindale allegedly experienced a variety of health problems, primarily related to pain and discomfort in his TMJs. He sought treatment for his injuries from a number of doctors, but his primary caregivers were Dr. Harry Clark, his general dentist, and Dr. Doran E. Ryan, an oral and maxillofacial surgeon and professor at the Medical College of Wisconsin, to whom Martindale was referred by Dr. Clark. 4 No. 99-0649 ¶12 The City admitted that Ripp was negligent in operating the garbage truck and that Ripp was acting on behalf of the City at the time of the accident. the City disputed The City was at fault. Martindale's claim that the However, accident had caused his alleged TMJ problem, and it challenged the extent of his injury claims. II ¶13 1996. Martindale filed suit against the City on April 30, His alleged damages included "severe personal injuries consisting primarily of permanent injury to his teeth," past and future hospital and medical expenses, loss of earnings future earning capacity, and $9000 in damage to his car. and By the time of trial, Martindale's claims for damages centered on the alleged injuries he suffered to his TMJs as a result of the accident. In addition, Martindale sought to recover for the alleged mental distress he had over potential future surgery on his jaw and the complications that might arise from the surgery. Martindale claimed all these damages resulted from the his TMJ negligence of Ripp in causing the accident. ¶14 The gist of Martindale's case was that injuries occurred as a result of (1) his head snapping back over his car's headrest in whiplash fashion when the garbage truck struck his car from behind, and (2) his head moving rapidly forward after his car struck the car in front of him. 5 No. 99-0649 ¶15 The circuit court set a trial date for the spring of 1998, but the jury trial was not actually held until the fall. In May, the City filed a motion in limine to exclude certain testimony from Dr. Ryan's deposition. The circuit court entertained the motion at a hearing in June and ruled in large part in the City's favor. court to reconsider its Later, Martindale moved the circuit rulings. In September, the circuit court affirmed its earlier determinations. ¶16 Counsel for Martindale planned to present videotaped deposition testimony of the two doctors at trial. This videotaped testimony was reduced to a written transcript, and the parties debated the admissibility of the testimony, in some instances on a line-by-line basis. The parties planned to edit the videotape after the circuit court's rulings to eliminate any inadmissible testimony for trial. ¶17 testify The City argued that Dr. Ryan should not be able to about injuries. qualified the "mechanism" Although to treat the and by City assess which conceded Martindale sustained that Ryan Martindale's jaw Dr. injuries, was it claimed he was not qualified to give an opinion about how the garbage truck hitting Martindale's car specifically caused Martindale's head and jaw to react. At the September hearing, the efforts City characterized Martindale's with Dr. Ryan's testimony as an inappropriate attempt to use Dr. Ryan as an "auto reconstruction accident expert." ¶18 The circuit court agreed with the City that certain portions of Dr. Ryan's deposition should not be admitted. 6 The No. 99-0649 court excluded statements of Dr. Ryan's opinion concerning the "mechanism" opinion that caused regarding TMJ surgery. Martindale's possible TMJ complications injuries from and possible his future In addition, the court ruled Martindale could not present three exhibits to the jury, all of which related to the excluded testimony. ¶19 The circuit court excluded several pages of testimony by Dr. Ryan relating to the "mechanism" by which Martindale was injured. Initially, the circuit court did not provide reasoning for its decision that approximately four pages of deposition testimony would be excluded. Later in the hearing, when the City sought to clarify which exhibits had been excluded, counsel for Martindale, Edward Grutzner, expressed surprise that the court had ruled earlier in the hearing to exclude the testimony concerning the "mechanism" or manner of injury. When the circuit court stated it had excluded that testimony, counsel said to the circuit court: "I didn't understand you to do so." The following exchange then occurred: The Court: [T]here is no foundation for the doctor's expertise in this particular thing, and he is not giving his opinion in this testimony to a reasonable standard of reasonable probability. What they are trying to do is to tie the issue in with some type of whiplash injury. I have thrown that out, and having thrown that out, [the diagram exhibit related to this testimony] is not admissible. We have resolved that. Mr. Grutzner: You say he doesn't have sufficient expertise in this area? Is that -- because I filed his curriculum vitae, which is 20 pages long. 7 No. 99-0649 The Court: I sustained . . . the objection to the testimony on that . . . there is a lack of foundation on the witness's qualifications that his opinions are not being given to a standard of a reasonable probability, and that there is -- what it is is an attempt to try to tie the problem the defendant has with some whiplash mechanism. And I don't think this witness is competent to do it, and you have exception to the Court's ruling. That takes care of that one. Mr. Grutzner: So your reasoning is the competency of the witness to testify as to the manner in which the The Court: The qualifications that he is not qualified to give an opinion in this field to a reasonable degree of professional probability. And that's my ruling. You are stuck with it, Counsel. Even an angel could give you no more. We have got that all covered then, now, as I understand it, gentlemen. ¶20 In September, when the court affirmed its ruling on Martindale's motion to reconsider, it said: There is no foundation on the witness's qualifications to give his expert opinion as to how the accident occurred and the testimony that's in the deposition. The witness is not giving his opinion to a standard of reasonable probability -- what you are trying to do is tie the defendant's injury to some whiplash problem, but -- and it may well be that a whiplash-type of thing caused it -- but the testimony, in the judgment of the Court, doesn't meet the standard necessary in order to allow it. So I will reaffirm my prior ruling, and you again have exception. I can give you no more, Counsel. ¶21 The City did not object to some testimony by Dr. Ryan concerning the videotaped deposition, cause of cause Martindale's of the Dr. injury Ryan injury to Martindale. testified when he In the about the reviewed the briefly verbally medical and dental records he had examined and then stated that 8 No. 99-0649 his "impression would be that the accident is what caused the displacement of the discs in his [temporomandibular] joint." This testimony was not excluded. ¶22 the On the other issue, the circuit court excluded most of contested Over testimony objection from relating the City, to fear however, of future the surgery. circuit court permitted Dr. Ryan to testify about the likelihood of success of TMJ surgery for Martindale. Martindale's counsel: "You In doing so, the circuit court told can get in the possibility of success, but not impossible complications if surgery is had." Thus, Dr. Ryan could not testify about complications that might result if Martindale had surgery. The circuit court also excluded two exhibits about the potential complications of TMJ surgery. ¶23 A two-day jury trial in the case began September 16, 1998, about five years after the accident. Martindale and his wife, Sandra Lee Martindale, testified on Martindale's behalf. Martindale also presented the videotaped deposition testimony of the two doctors. The City did not present any witnesses but it read into evidence a portion of Dr. Ryan's deposition. ¶24 The trial did not concentrate on the underlying auto accident because the City had admitted its negligence. Instead, the trial testimony centered on Martindale's alleged symptoms and injuries from the accident, as well as subsequent interaction with Drs. Ryan and Clark. Martindale's Martindale testified about visiting numerous other doctors but they were identified only by surname. 9 No. 99-0649 ¶25 The City's defense was that Martindale had not suffered serious injury from the accident, and to the extent he had dental or skeletal injuries, the injuries were caused in part by a pre-existing bruxism condition.2 ¶26 On a special verdict form the jury answered "no" to the question of whether Ripp's negligence caused Martindale's alleged injuries. The jury did find, however, that $6100 would compensate Martindale for his past and future pain, suffering, and disability. City's motion Nevertheless, the circuit court granted the for judgment on the verdict and dismissed Martindale's case. ¶27 To sum up, as a result of evidentiary rulings before trial, the circuit court excluded portions of the videotaped deposition testimony by Dr. Ryan regarding the "mechanism" or manner of Martindale's injury and possible complications from possible future surgery. excluded testimony by Then, during trial, the circuit court Martindale about his fear complications from possible future TMJ surgery. of possible After trial, Martindale appealed all these exclusions of evidence. III A. Standard of Review of Evidentiary Decisions 2 Bruxism is "a clenching of the teeth, associated with forceful lateral or protrusive jaw movements, resulting in rubbing, gritting, or grinding together of the teeth, usually during sleep; sometimes a pathologic condition." Stedman's Medical Dictionary 216 (25th ed. 1990). 10 No. 99-0649 ¶28 We exclude review evidence standard. a circuit under an court's erroneous decision exercise to of admit or discretion Morden v. Continental AG, 2000 WI 51, ¶81, 235 Wis. 2d 325, 611 N.W.2d 659; State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). In making evidentiary circuit court has broad discretion. Wis. 2d 132, 140, 438 N.W.2d 580 rulings, the State v. Oberlander, 149 (1989). This discretion includes whether a witness is qualified as an expert to offer opinion testimony pursuant to Wis. Stat. § 907.02 (1997-98).3 State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403 (1999); Farrell v. John Deere Co., 151 Wis. 2d 45, 70, 443 N.W.2d 50 (Ct. App. Practice: 1989), Evidence cited in § 702.4, 7 at Daniel 487 D. Blinka, (2001). As Wisconsin with other discretionary determinations, this court will uphold a decision to admit or exclude evidence if the circuit court examined the relevant facts, applied a proper legal standard, and, using a demonstrated rational process, reached a reasonable conclusion. Glassey v. Cont'l Ins. Co., 176 Wis. 2d 587, 608, 500 N.W.2d 295 (1993); N.W.2d 175 ¶29 exercised Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 (1982). Our its inquiry into discretion in whether making a an circuit court evidentiary properly ruling is highly deferential: 3 All subsequent statutory references are to the 1997-98 volumes unless noted otherwise. 11 No. 99-0649 The question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record. McCleary v. State, 49 Wis.2d 263, 182 N.W.2d 512 (1971). The test is not whether this court agrees with the ruling of the trial court, but whether appropriate discretion was in fact exercised. State v. Wollman, 86 Wis. 2d 459, 464, 273 N.W.2d 225 (1979), quoted with approval in Pharr, 115 Wis. 2d at 342; see also Morden, 235 Wis. 2d 325, ¶81. exercise of discretion if circuit court's decision. We will not find an erroneous there is a rational basis for a State v. Hammer, 2000 WI 92, ¶43, 236 Wis. 2d 686, 613 N.W.2d 629 (citing Boodry v. Byrne, 22 Wis. 2d 585, 589, 126 N.W.2d 503 (1964)). For a discretionary decision of this nature to be upheld, however, the basis for the court's decision should be set forth. Pharr, 115 Wis. 2d at 342. If the circuit court fails to provide reasoning for its evidentiary decision, this determine whether discretion. court the independently circuit court reviews the properly record exercised to its Id. at 343. B. Harmless Error Analysis of Evidentiary Decisions ¶30 An erroneous exercise of discretion in admitting or excluding evidence does not necessarily lead to a new trial. The appellate court must conduct a harmless error analysis to determine whether the error "affected the substantial rights of 12 No. 99-0649 the party." If the error did not affect the substantial rights of the party, the error is considered harmless. ¶31 Two § 901.03 statutes (Rulings (Mistakes and provides that on govern evidence) Omissions; error this may and Harmless not situation, be Wis. Wis. § 805.18(2) Stat. Error). predicated Section on a Stat. 901.03 ruling that admits or excludes evidence "unless a substantial right of the party is affected." § 805.18(2), which granted an for This statute must be read together with provides error that unless a the substantial rights of the party. new trial error has shall not affected be the This latter provision, which dates back to the early years of Wisconsin statehood,4 applies to both civil and criminal cases.5 Martindale contends he deserves a new trial pursuant to this rule. ¶32 For an error "to affect the substantial rights" of a party, there must be a reasonable possibility that the error contributed to the outcome of the action or proceeding at issue. State v. Dyess, 124 Wis. 2d 525, 543, 547, 370 N.W.2d 222 (1985); see also Town of Geneva v. Tills, 129 Wis. 2d 167, 18485, 384 N.W.2d 701 (1986) (noting that the standard set forth in 4 The prohibition against reversal for procedural error that does not affect "substantial rights" has existed since § 84, ch. 120, Laws of 1856, and is embodied in Wis. Stat. § 805.18(2). City of La Crosse v. Jiracek Cos., Inc., 108 Wis. 2d 684, 690, 329 N.W.2d 441 (Ct. App. 1982). 5 State v. Armstrong, 223 Wis. 2d 331, 368 n.36, 588 N.W.2d 606 (1999), mot. for recons. denied, State v. Armstrong, 225 Wis. 2d 121, 591 N.W.2d 604 (1999) (clarifying harmless error analysis). 13 No. 99-0649 Dyess applies in civil cases as well as criminal cases). A reasonable possibility of a different outcome is a possibility sufficient to "undermine confidence in the outcome." Wis. 2d at 544-45 (quotation omitted). Dyess, 124 Where the erroneously admitted or excluded evidence affects constitutional rights or where the outcome of the action or proceeding is weakly supported by the record, a reviewing court's confidence in the outcome may be more easily undermined than where the erroneously admitted or excluded evidence was peripheral or the outcome was strongly supported by evidence untainted by error. Id. at 545. IV ¶33 In a negligence case, the plaintiff must prove four elements: "(1) [a] duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury." Rockweit v. Senecal, 197 Wis. 2d 409, 418, 541 N.W.2d 742 (1995). ¶34 The pivotal issue in this case relates to causation. In the pretrial motion hearing, Martindale's attorney told the court that Martindale had suffered a "rather unusual injury. I never a have seen temporomandibular one joint before, and injury I have not of heard arising out a case causation. of whiplash occurrence." ¶35 The jury decided the on At the conclusion of the trial, the jury was asked: "Was the negligence 14 No. 99-0649 of Bruce E. Ripp on September 14, 1993, a cause of injury to Bruce Martindale?" Its answer was "No." suit and was dismissed Martindale Thus, Martindale's recovered nothing for his alleged personal injuries. ¶36 the This is the context in which Martindale contends that circuit court erred in excluding certain expert opinion testimony and an exhibit explaining the mechanism of whiplashrelated TMJ injury. ¶37 The expert witness was Dr. Ryan, an associate professor of oral and maxillofacial surgery and past chairman of the Department of Oral and Maxillofacial Surgery at the Medical College of Wisconsin. College since 1981. Dr. Ryan had served at the Medical He was board certified by the American Board of Oral and Maxillofacial Surgery in 1976 and had received advanced surgical training. He testified that at least half of his 34 publications dealt with TMJs. Dr. Ryan had an active practice He twice in this (March Martindale's 1997 specialized and personal field. November dentist, 1997); Dr. examined he Martindale corresponded Clark; and he with studied Martindale's medical and dental records,6 including the records of Dr. Clark made shortly after Martindale's accident. diagnosed Martindale's TMJ condition 6 and Dr. Ryan discussed the Dr. Ryan testified in cross-examination that he had to see Martindale's medical records before he testified. Dr. Ryan said that Martindale had asked him whether he thought the accident caused the TMJ injury and Dr. Ryan said: "I can't tell without knowing whether he had a problem before." 15 No. 99-0649 possibility of performing surgery. He observed a worsening of Martindale's condition between the two examinations. ¶38 During their first meeting, Dr. Ryan took Martindale's medical history and discussed the accident. He was told that Martindale had been driving a Pontiac Bonneville, that he had been hit by a fully loaded garbage truck from behind, that he was six foot seven inches tall, and that the headrest in his car was not high enough to brace the back of Martindale's head. He was told by Martindale that Martindale experienced whiplash in the accident and that the clicking in his jaw and the pain in his teeth and neck resulted from the accident. ¶39 In the deposition, Martindale's attorney asked: Mr. Grutzner: Did you form an -- do you have an opinion to a reasonable degree of probability in the field of oral and maxillofacial surgery as to the cause of this condition of his temporomandibular joint? Dr. Ryan: In this particular case, going by the history that I had from Mr. Martindale, he had been involved in a automobile accident in which he was hit from behind by, I think, a garbage truck and at that point he had a whiplash injury and not long after that he noted -- noticed a clicking in his jaw. And I've reviewed some of the records or at least the ones that were sent to me from his dentist, who has been his dentist for a long time, and he said he didn t have that problem before. And I've looked at some of the medical records and there doesn't seem to be any indication that he had problems with his temporomandibular joint discs before the accident. So for that reason, I would -- my -- my impression would be that the accident is what caused the displacement of the discs in his joint. 16 No. 99-0649 ¶40 This answer from Dr. Ryan was admitted into evidence and is part of the record.7 Dr. Ryan also testified that from what he understood, Martindale had never complained of pain in the temporomandibular joint, or had his teeth hurt when eating, or had any difficulty moving his jaw during the many years he was a patient of Dr. Clark until immediately after the accident. ¶41 This was the background leading up to the excluded testimony. In the middle of Dr. Ryan's deposition, Martindale's attorney produced a large diagram of a head in three different positions, purporting to depict the movement of the head and jaw during a whiplash injury. The following exchange and the exhibit were excluded by the court: Mr. Grutzner: Doctor [Ryan], I'm showing you what's been marked as Exhibit Number 11 and ask you if you have reviewed a this drawing before it was made so big? Dr. Ryan: Yes, I have. Mr. Grutzner: And did you review it to for accuracy to see whether or not it accurately reflected the mechanism of whiplash-related internal disc injury regarding Bruce Martindale? Dr. Ryan: Yes. Mr. Grutzner: And my first question is, in your opinion, is this an accurate representation of the mechanism of whiplash-related internal disc injury? Dr. Ryan: Yes, it is. 7 The court of appeals was mistaken when it wrote that this testimony was excluded. 17 No. 99-0649 Mr. Waskowski: I object to the extent that the witness is talking about this particular case. I don't think there's any foundation that the witness has any idea how this [accident] occurred. Mr. Grutzner: Well, you've already testified, have you not, Doctor, that you understood that Mr. Martindale was in his automobile when he was struck behind by a garbage truck owned by the City of Beloit? Dr. Ryan: Yes. Mr. Grutzner: And that he sustained a whiplash injury as a result of that collision? Dr. Ryan: Yes. Mr. Grutzner: And that he's a man of about six feet seven inches tall, is that correct? Mr. Waskowski: I -- I'm going to object to leading the witness and telling the witness what perhaps he should know, but he he -- this -- we -- we both realize that this witness knows nothing about the vehicle that Mr. Martindale was driving and on that basis alone there is no possibility that this witness or any other similarly situated witness could possibly testify that the chart that you are showing him is an accurate representation of what occurred in this accident. Mr. Grutzner: You may answer, Doctor. Dr. Ryan: Well, I do know which kind of automobile he was in. He was in a Bonneville. And I also know that he testified that his -- his headrest was too low for his head and that this would depict what could happen in a whiplash injury and I have no other reason to believe that he had an injury to his jaw other than the whiplash injury in this accident. And since I've already testified that I think the accident caused this problem, this is the mechanism of -- I believe -causes internal joint derangement. Mr. Grutzner: All right. 18 No. 99-0649 Mr. Waskowski: Excuse me. I object based on the witness' answer and move to strike. Mr. Grutzner: Doctor, the middle picture shows what's depicted there as normal. And what does that show, Doctor? Dr. Ryan: That shows the disc -- the disc sitting in between the jaw bones like it's supposed to be. Mr. Grutzner: All right. And -- Dr. Ryan: With it and at that point the patient's teeth are together. Mr. Grutzner: The -- on the hyperextension, what does that mean? right it says Dr. Ryan: That means the jaw is -- is swung forward and it moves out of where it normally is and it's slung forward and it's done very rapidly so that you get a separation of the disc from the lower jaw bone. Mr. Grutzner: First -- and do -- do you have an opinion as to whether or not that is what occurred in the injury that Bruce Martindale sustained? Dr. Ryan: I think it did, yes. . . . . Mr. Grutzner: Over on the left side hyperflexion. What does that mean, Doctor? it says Dr. Ryan: That means he's gone -- his head has gone forward this way. . . . . Dr. Ryan: And what happens then, the -- the lower jaw is thrown back at this point and it gets caught back in behind the disc. As we can see here, the disc is trapped in front. We now have stretching of this ligament or tearing of this ligament and that -that's the mechanism you end up with a disc being displaced. 19 No. 99-0649 Mr. Grutzner: And do you have an opinion as to whether or not that occurred to Bruce Martindale at the time of the -- when the garbage truck struck him from the rear? Dr. Ryan: ¶42 I think it is, yes. Martindale exclusion of this complains evidence that the disrupted his circuit ability court's to causation of injury the one decisive issue in his suit. prove In particular, Martindale contends the circuit court "committed an error of law" when it excluded this testimony by Dr. Ryan after having earlier admitted testimony by the doctor regarding causation. ¶43 The circuit court agreed with the City that Dr. Ryan not qualified was as an expert to give an opinion about Martindale's head and jaw movement as a result of the garbage truck striking his car from behind. The court of appeals summarized the circuit court's position as "believing that there was no evidence that Ryan had any knowledge as to what happened to Martindale in the collision no knowledge of the 'mechanics' of the accident or his actual injury, or that the impact in fact caused a 'whiplash.'" Martindale v. Ripp, No. 99-0649, unpublished slip op. at 5 (Wis. Ct. App. Oct. 28, 1999). court of appeals noted that Dr. Ryan never The inspected Martindale's car (or a similar model) "and knew nothing about Martindale's movements or what happened to him or the car at and after the moment of impact." ¶44 Wisconsin opinion testimony. Stat. Id. § 907.02 authorizes Section 907.02 provides: 20 experts to give No. 99-0649 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The general properly rule in admitted Wisconsin into is evidence if, that expert after the testimony circuit is court finds a witness is qualified to answer a particular question, the testimony might "assist the trier of fact." Wis. Stat. § 907.02; see also 7 Blinka, supra, §§ 702.1-702.202, at 472-78 (2001). ¶45 The qualification of an expert witness to testify on an issue is a preliminary question of fact for the circuit court to decide § 702.4, under at Wis. Stat. 487. § The 901.04(1). 7 determination Blinka, of a supra, witness's qualifications to offer an expert opinion is normally a decision left to the discretion of the circuit court. Watson, 227 Wis. 2d at 186; Simpsen v. Madison Gen. Hosp. Ass'n, 48 Wis. 2d 498, 509, 180 N.W.2d 586 (1970); Farrell, 151 Wis. 2d at 70, cited in 7 Blinka, supra, § 702.4, at 487. The circuit court's discretion in this determination is unquestionably entitled to substantial deference, and we will uphold a decision to admit or exclude evidence if the circuit facts, applied a proper court legal examined standard, the and, relevant using a demonstrated rational process, reached a reasonable conclusion. Nonetheless, our decisions speak of "sound discretion," Simpsen, 48 Wis. 2d at 509, "a reasonable conclusion," Farrell, 151 Wis. 2d at 70; and "the essential demands of fairness." 21 No. 99-0649 State v. Koch, 144 Wis. 2d 838, 847, 426 N.W.2d 586 (1988), signifying that even evidentiary rulings may be held to account. ¶46 Here the circuit court erred for several reasons. First, the circuit court excluded expert testimony that would have assisted the trier of fact in understanding the evidence and determining the issue of causation. After recognizing Dr. Ryan's credentials, permitting him to testify as an expert, and allowing him to give his opinion as to the cause of Martindale's medical condition, the court denied the expert the ability to explain the conclusion. "mechanism" that prompted him to reach his As a result, the trier of fact never received an explanation of how whiplash could lead to the stretching and tearing of ligament and the displacement of the discs that are part of the TMJs. In excluding this explanation, the circuit court jury deprived the of expert testimony that could have assisted it in sifting through the evidence and reaching its own conclusion. 7 Blinka, supra, § 702.2, at 473. It also seriously undermined the credibility of the expert's opinion. ¶47 Second, at least three times the court stated that Dr. Ryan was attempting to tie the TMJ problem in "with some kind of whiplash injury," but that "there is no foundation doctor's expertise in that particular thing." for the Dr. Ryan was not "competent" to describe "some whiplash mechanism" that would tie whiplash to "the problem the defendant has," the court declared. ¶48 Dr. Ryan was certainly an expert in matters concerning temporomandibular joints. Consequently, he should have been allowed to explain how he thought Martindale's TMJ condition was 22 No. 99-0649 created if he had a reasonable foundation for Martindale's whiplash. ¶49 Dr. Ryan's opinion was not the source of the fact that Martindale suffered whiplash. fact. Martindale was the source of that He told Dr. Ryan and others that he had experienced whiplash in the accident, and whiplash was also reflected in Martindale's occurred medical when headrest, his when records. head his car Martindale "whipped" was hit said backward, from his over behind; whiplash the then lowered his head snapped forward and his teeth clashed together, when his car was propelled into the vehicle in front of him. The City did not present any evidence that Martindale's whiplash was caused by anything other than a backward and forward movement. relied on this information in forming his opinion Dr. Ryan about the cause of the TMJ condition. ¶50 The facts upon which an expert bases an opinion or inference may be those perceived by or made known to the expert before the hearing. Wis. Stat. § 907.03. Both Dr. Ryan's admitted testimony and his excluded testimony were consistent with this rule. information he Because Dr. Ryan was basing his opinion on had received from Martindale, plus other information, he had a good foundation for offering the opinion, and the circuit court erred in denying it to the jury. ¶51 Third, the circuit court appears to have accepted the City's argument that Dr. Ryan was attempting to testify as an automobile accident reconstruction matters beyond his competence. expert, giving opinions on The court said bluntly: "There 23 No. 99-0649 is no foundation on the witness's qualifications to give his expert opinion as to how the accident occurred." ¶52 to him. A witness must be qualified to answer the question put As Professor Blinka explains it, "a witness eminently capable on one subject may not be sufficiently qualified to give helpful testimony on another, albeit related, issue in case." 7 Blinka, supra, § 702.4, at 489 (citing Lemberger v. Koehring Co., 63 Wis. 2d 210, 216 N.W.2d 542 (1974)). "No Id. at 490. expert has carte blanche." ¶53 the The Lemberger case, 63 Wis. 2d 210, is instructive of the principle at issue. Lemberger was a construction worker who suffered a depressed skull fracture when a 16-pound block of wood, supposedly secured to a crane, fell 70 to 80 feet from the crane and hit him on the head. "hard hat" when the injury manufacturer of the crane. 40 percent negligent. negligent and Lemberger was not wearing a occurred. Lemberger sued the At trial, the manufacturer was found Lemberger was found 60 percent During the course of the trial, the manufacturer presented testimony from a neurologist, Dr. Millen, who gave his opinion that if Lemberger had been wearing a hard hat, serious injury would have been prevented. Id. at 218. Lemberger appealed the admission of this testimony. ¶54 This court ruled the neurologist's testimony exceeded his expertise: [W]e see no basis for the admission of Dr. Millen's deposed testimony. Dr. Millen is a neurologist, who specializes in psychology and the physical disorders of the nervous system. He may well be an expert on 24 No. 99-0649 personal injuries, and it was agreed that he had some knowledge of the basic laws of physics involving the forces asserted by falling objects. He was permitted, however, to express the opinion that, had Lemberger been wearing a hard hat, serious injury would have been prevented. That opinion was not within the field of Dr. Millen's expertise. The only knowledge he had in that field was the very meager information that he had gleaned from the fact that his father-in-law ran a construction company, that his son had worked for that construction company, and that hard hats were used in the work. He had no expertise or special knowledge on the capacity of a hard hat to withstand impact and to prevent a skull injury. To the extent that Dr. Millen was permitted to testify as an expert on the protective capacity of the hard hat, his opinion was beyond his qualifications and should have been excluded by the trial judge. He did not have "'such skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.'" Id. at 217-18 (citation omitted). Nevertheless, the court ruled such an admission of testimony did not, standing alone, require a reversal of the verdict for the cumulative nature of the evidence.8 ¶55 defendant, based on the Id. at 218. The result in Lemberger is inapposite here because Dr. Ryan did not testify beyond his expertise. He did not present himself as an accident expert. The jury knew that he did not examine than Martindale until more three years after the accident, and he did not try to describe exactly what happened inside Martindale's car. Instead, he was given certain facts about the accident: a Pontiac Bonneville was hit from behind by 8 This court did reverse and remand in Lemberger v. Koehring Co., 63 Wis. 2d 210, 227, 216 N.W.2d 542 (1974), but did so on other grounds. 25 No. 99-0649 a fully loaded garbage truck, forcing the vehicle into the car ahead. The driver of the car was six feet seven inches tall. The headrest in his car was "too low for his head." suffered a whiplash injury in the accident. The driver Having and accepting this information, as well as the results of his own examinations, and having no plausible alternative for Martindale's TMJ condition, Dr. Ryan attempted to explain "what could happen in a whiplash injury." His testimony and the accompanying exhibit were intended to explain to the jury how Dr. Ryan believed Martindale's whiplash-related injuries occurred. ¶56 TMJ Dr. Ryan testified that the whiplash injury caused the problem, injury. not that the accident caused the whiplash The fact that Martindale had suffered a whiplash injury was not contested. Thus, Dr. Ryan, unlike Dr. Millen, did not stray outside his field of expertise. testify had about the speed of If Dr. Ryan had tried to the garbage truck, the distances required to brake a garbage truck at a particular speed, the physics of Martindale pulling his car forward when he noticed the garbage truck bearing down on him, the significance of the garbage truck being fully loaded, the importance of a particular 26 No. 99-0649 angle of collision, or how fast Martindale's head snapped backward and then forward, the issue would be different.9 ¶57 In the past, courts have permitted medical experts to testify when the testimony helped the trier of fact to analyze the causal link between an injury and negligent conduct. For instance, in Liles v. Employers Mutual Insurance of Wausau, 126 Wis. 2d 492, 497-99, 377 N.W.2d 214 (Ct. App. 1985), a woman was injured in an automobile accident. Her orthopedic surgeon later discovered a degenerative disc disease that required surgical treatment. disc At trial, Dr. Hagens testified that the cause of the disease was the automobile accident. "Dr. Hagens testified . . . that there was a causal relationship between the accident and the dis[c] disease." Id. at 499. The court upheld this testimony. ¶58 (1971), Pucci was testified v. another that "in Rausch, 51 automobile his opinion Wis. 2d accident Mrs. 513, 187 case. Pucci had N.W.2d Dr. a 138 Peterson previously existing back condition which was aggravated by the automobile accident." Id. at 518. His testimony, which would have been 9 The dissent's citation to Simpsen v. Madison General Hospital, 48 Wis. 2d 498, 510-11, 180 N.W.2d 586 (1970), is inapposite. Justice Wilcox s dissent at ¶111. Simpsen involved the question whether a podiatrist as opposed to a surgeon who was involved in the case was qualified to testify concerning the cause of post-operative complications. This court affirmed the circuit court's exclusion of the podiatrist's testimony. Simpsen, however, involved what type of medical witness was qualified to speak concerning causation, not whether a medical witness of some type could testify about a matter, as is the case here. 27 No. 99-0649 sufficient to sustain causation, was stricken by the circuit court. We reversed, concluding that "the trial court acted hastily in striking the doctor's testimony and it was error to do so." Id. at 520. ¶59 The Pucci court made the important observation that medical testimony is not always based upon absolute certitude. It is sometimes based upon "empirical knowledge and experience in the area of cause and effect. The term 'medical probability' more accurately expresses the standard. The standard requires a conviction of the mind or that degree of positiveness that the doctor has in his opinion, which is based upon his knowledge of medicine and the case facts." ¶60 Id. at 518-19. Dr. Ryan's testimony would have assisted the jury on the element of causation. In attempting to describe and explain the manner in which he thought the injuries probably occurred, Dr. Ryan did not go beyond his competence as an expert. ¶61 Ryan's Fourth, in effect the circuit court ruled that Dr. expertise in oral and maxillofacial surgery did not qualify him to give his opinion about what is known as the "occupant kinematics" of the accident. ¶62 Kinematics is "[t]he branch of mechanics that studies the motion of a body or a system of bodies without consideration given to its mass or the forces acting on it." 28 The American No. 99-0649 Heritage Dictionary of the English Language 992 (3d ed. 1992).10 In simpler terms, the term "occupant kinematics" relates to the movement of an occupant's body in a situation. In this case, the occupant kinematics of this accident concern Martindale's body movementparticularly his head, neck, and jaw motionas a result of this accident. ¶63 The dilemma herethat is, the permissible extent of physician testimony about the physical effects of an automobile accident on the bodyhas arisen in cases elsewhere. See Gorman v. Hunt, 19 S.W.3d 662, 670 (Ky. 2000) (ruling that trial court properly exercised its discretion in admitting testimony by physician concerning physical position of pedestrian plaintiff struck by a vehicle); see also Lind v. Slowinski, 450 N.W.2d 353, 358-59 (Minn. Ct. App. 1990) (affirming decision by trial court to exclude testimony by physician regarding positioning of automobile collision). "second occupant on another occupant's lap during a Occupant kinematics is commonly a major issue in collision" or "crashworthiness" cases.11 Sumnicht v. 10 This court has previously defined this term as "'a branch of dynamics that deals with aspects of motion (as acceleration and velocity) apart from considerations of mass and force.'" Sumnicht v. Toyota Motor Sales, 121 Wis. 2d 338, 364, 360 N.W.2d 2 (1984) (quoting Webster's Third New International Dictionary 1243 (1967)). 11 "The crashworthiness doctrine imposes liability upon a manufacturer in a vehicular collision case for design defects which do not cause the initial accident but which cause additional or more severe injuries when the driver or passenger subsequently impacts with the defective interior or exterior of the vehicle." Sumnicht, 121 Wis. 2d at 348-49. Most courts use the terms "crashworthy" and "second collision" interchangeably. Id. at 348 n.4. 29 No. 99-0649 Toyota Motor Sales, 121 Wis. 2d 338, 364, 360 N.W.2d 2 (1984); William Petrus, Injury Causation Experts Prevent Cases From Crashing, Trial, Aug. 2000, at 54. ¶64 The court of appeals appeared to extend the circuit court's determination, implying that a plaintiff must employ an expert in occupant kinematics in what is arguably a simple accident case that has not given rise to a "crashworthiness" claim. We disagree. ¶65 An kinematics accident is not reconstruction required for an expert or elementary an expert in discussion of whiplash, which is the abrupt jerking motion of the head, either backward or forward. Expert testimony on kinematics is not necessary to confirm the potential for whiplash when a fully loaded garbage truck smashes into a barely moving or stopped automobile, pushing it into another vehicle, sending it 100 to 150 feet from the point of origin, and causing $9000 in damages to the vehicle. medical expert Requiring specialized expert testimony beyond a in relatively simple automobile accident situations would escalate the cost of presenting personal injury cases without present a adequate serious issue justification. in the In short, administration of it would the legal system. ¶66 Testimony concerning the cause of an injury by a medical expert with experience in treating a particular injury can be vital for parties who suffer bodily injury. that certain accidents or certain causes of We recognize action, e.g., crashworthiness claims, may present facts that require expert 30 No. 99-0649 testimony by a witness reconstruction expert. such as an engineer or an accident However, this simple case is not one of those, based on our analysis of the proffered testimony. ¶67 "not Finally, the circuit court stated that Dr. Ryan was giving standard his of discussed opinion reasonable this this on appeal, Ryan was asked Dr. reasonable degree of surgery testimony probability." issue testimony, maxillofacial in probability as to the Although we to to note give in the cause [Martindale's] temporomandibular joint." early opinion field of reasonable neither that his a this of party in his "to oral condition a and of Much of the subsequent testimony excluded by the court was merely an explanation of the mechanism of whiplash and how Dr. Ryan thought that applied to Martindale. A fair reading of his testimony shows that Dr. Ryan was not giving his opinion on mere conjecture. ¶68 testimony The standard in this state for the admission of expert is not stringent. This court "has repeatedly emphasized that 'assistance,' 'aid,' and 'helpfulness' to the trier of facts are the touchstones of admissibility." 7 Blinka, supra extensive § 702.202, at 478. In light of Dr. Ryan's qualifications in treating TMJ injuries, we conclude that his testimony would have assisted the jury in analyzing whether the whiplash from the collision caused the alleged injuries. ¶69 Notwithstanding our conclusion that the circuit court erroneously exercised its discretion, we will not disturb the judgment entered rights" of on the Martindale jury's have verdict been 31 unless affected. "substantial Wis. Stat. No. 99-0649 § 805.18(2). We must therefore determine whether the error was harmless. ¶70 In a special verdict the jury found the impact from the City's garbage truck did not cause Martindale's injuries. The jury did find, however, that $6100 would compensate Martindale "for past and future pain, suffering, and disability sustained as a result of the accident." The circuit court entered judgment on the jury's verdict and Martindale did not recover any damages. ¶71 The standard for harmless error is whether there is a "reasonable possibility" that the error contributed outcome of the action or proceeding at issue. 2d at 543. to the Dyess, 124 Wis. A "reasonable possibility" of a different outcome is a possibility sufficient to undermine confidence in the outcome. Dyess, 124 Wis. 2d at 545. ¶72 We conclude that the erroneous exclusion of Dr. Ryan's testimony created a reasonable possibility that if the evidence had been admitted the verdict would have been different. decision is based upon several factors. In his Our cross- examination of Dr. Ryan, the City's attorney, Ted Waskowski, was very effective in suggesting an alternative cause for Martindale's TMJ condition, namely, that Martindale had been "a tooth grinder and a teeth clencher" before the accident. In short, there was evidence of bruxism that predated the accident. In his cross-examination, which was played to the jury, Waskowski skillfully used Dr. Ryan to imply that Martindale had 32 No. 99-0649 embellished his injury and misrepresented its source. The City built on this theory in closing argument: Let me just say a couple things more about whether this [the jaw injury] was caused by the accident. I really don t know. It seems to me that if I had to guess, Mr. Martindale has a minor problem that probably has been nagging him a bit off and on for years. And this accident really has nothing to do with it. But based on this evidence, I am guessing and we would all have to guess. The judge will instruct you if you have to guess what the answer will be, if you have to guess, then Mr. Martindale has not met his burden of proof. And under that circumstance he would be -- you would find that he has no damages because he hasn't proved any if you have to guess (emphasis added). ¶73 Then Waskowski delivered the coup de grace, by stressing the absence of causation evidence from Martindale's expert witnesses: Was this caused by the accident? One very interesting thing to me is we have a highly qualified doctor and we have a good, honest dentist, Dr. Clark. And neither of them made any attempt at all to describe how it is that this jaw problem resulted from the accident. How? I mean not, yes, he started complaining right after the accident and see it must be somehow but [nobody] tried to even explain to you how. Nobody tried to prove that. How? He had a slight chip on one tooth. But it's the bottom part of your jaw that moves. Not the top. The top is part of your head. Nobody even bothered to explain here what happened. . . . Here is what happened. What happened? How did getting hit from behind cause this accident? We could get -- we could say, well, maybe it was this, maybe it was that. But there is no evidence. You gotta guess. And I think since you have to guess, the answer to the first question that's gonna be put to you is . . . what injury was caused by Mr. Ripp to Mr. Martindale. The answer is, you don't know. And if you don't know, if you have to guess, the answer is no. And I think truthfully, if you truthfully 33 No. 99-0649 consider the evidence, that is the answer that you would have to give (emphasis added). This argument coupled with the prior exclusion of Dr. Ryan's deposition testimony explaining causation, confidence in the outcome of the trial. has undermined our The testimony by Dr. Ryan, as well as the accompanying exhibit, would have assisted the trier of fact to such a degree in understanding the cause of Martindale's alleged injuriesthe issue in the trialthat we conclude the error clouds the validity of the jury's verdict sufficiently described to meet above. the "reasonable Accordingly, we possibility" reverse the standard judgment and remand for a new trial. V ¶74 We turn now to Martindale's other claim, that the circuit court erroneously exercised its discretion in excluding testimony surgery. relating to Martindale's fear of possible future The circuit court excluded testimony by Martindale and Dr. Ryan regarding the specific possible complications that may arise from TMJ surgery. The circuit court did allow some testimony by Martindale expressing fear of surgery and testimony by Dr. Ryan rating the chances Martindale's jaw. A. Dr. Ryan's Testimony 34 of surgical success on No. 99-0649 ¶75 Mental distress damages caused by an accident in which the plaintiff suffers physical injury are compensable. v. Fruehauf (1978). of Corp., 82 Wis. 2d 793, 804-05, 264 Rennick N.W.2d 264 Damages for a specific species of mental distress, fear possible future surgery, are compensable. Jenson, 121 Wis. 2d 658, 360 N.W.2d 529 (1985). leading case on this subject. In Brantner, Brantner v. Brantner is the the defendant contended that the circuit court should not have allowed the plaintiff and his surgeon to testify regarding possible future back surgery because the plaintiff did not prove to a reasonable degree of surgery. ¶76 medical probability that his injury would require Id. at 665. In Brantner, the plaintiff suffered a back injury as a result of an automobile accident. Id. at 661. The plaintiff's physician prescribed back exercises and a back brace to minimize pain. Id. The physician also advised the plaintiff his injury might require surgery if these techniques did not relieve the pain and keep him working. Id. at 661-62. At subsequent visits with the physician the plaintiff continued to report pain; the physician advised the plaintiff that if pain continued and interrupted his ability to work or live comfortably, surgery might be required. ¶77 Id. at 662. At trial, the jury awarded the plaintiff damages for past, present, and future mental distress relating to possible future back surgery. Id. at 660. The plaintiff's surgeon testified he had discussed "the operation, recovery time, risks, chances of success and possible subsequent disability" with the 35 No. 99-0649 plaintiff on numerous occasions. Id. at 662. The plaintiff testified as to these conversations, as well as a conversation he had with his father concerning back surgery. Id. at 660. The defendant argued, however, that neither the physician nor the plaintiff properly testified because the plaintiff did not "prove to a reasonable degree of medical probability that he will require the back surgery in the future." ¶78 This court affirmed the decision appeals favoring the plaintiff, Brantner. Id. at 665. of the court of The court stated: We conclude that fear of surgery may be reasonably certain, even though there is no certainty that surgery will occur and even though the physician cannot testify to a reasonable degree of medical probability that the consequence feared will occur. . . . A doctor's realistic prediction as to the possibility of future surgery, illness or disability may give rise to reasonable fear and anxiety in the victim concerning his or her future health and wellbeing. . . . . . . . Although the surgeon was not able to testify that back surgery was reasonably probable in the future, the disclosure of the realistic possibility of back surgery as a natural consequence of the injuries under the facts of this case is sufficient to enable a jury to find to a reasonable certainty that the plaintiff has sustained, and will sustain, mental distress as a result of the defendant's negligent conduct. Id. at 666-67 (footnote omitted). a two-part test employed by the The Brantner court discussed court of appeals litigation, but it did not explicitly adopt the test. 36 in that Id. at No. 99-0649 668-69 (analyzing Brantner v. Jenson, 120 Wis. 2d 63, 66-67, 352 N.W.2d 671 (Ct. App. 1984)). ¶79 The Brantner court qualified its recognition of the relevance of a plaintiff's evidence regarding possible future consequences, however. That is, fear of future surgery is not reasonably certain and a defendant would not be liable for damages for mental distress when a medical witness describes to the victim or to the jury remotely conceivable complications which may develop from the physical injury caused by the defendant's negligence. Anxiety about a fictitious or imagined or highly unlikely consequence is not a recoverable element. Howard v. Mt. Sinai Hospital, Inc., 63 Wis. 2d 515, 217 N.W.2d 383 (1974). Liability ceases at a point dictated by public policy and common sense. Wilson v. Continental Ins. Co., 87 Wis. 2d 310, 325, 274 N.W.2d 679 (1979) (quoting Justice Hansen's concurrence in Howard v. Mt. Sinai Hospital, Inc.). Id. at 666-67. proffered by complications" Applying the Brantner test here, if the evidence Martindale from the describes possible "remotely surgery that conceivable he faced, he cannot recover for fear of those complications. ¶80 The circuit court allowed testimony by Dr. Ryan about the option of TMJ surgery on Martindale. Dr. Ryan first rated the chances of success at 85% for repair to the discs in his TMJ's and 75% for disc removal. In addition, moments after this assessment, Dr. Ryan rated the chances of success at 85% for Martindale's right side and 75% for his left side, although he did not indicate the procedure about which he was talking. The circuit court permitted this evidence over objections from the City based on Brantner. 37 No. 99-0649 ¶81 Martindale, however, complains of the exclusion of testimony and exhibits relating to his alleged fear of possible future surgery that the circuit court did exclude. The exclusions by the circuit court included testimony by Dr. Ryan that he "probably" discussed all the potential complications of TMJ surgery with Martindale. two exhibits testimony. that The Dr. Ryan first Complications." The The circuit court also excluded discussed exhibit second was exhibit during entitled also his deposition "Post-Operative related to post- operative complications. ¶82 At trial, the circuit court also ruled that Martindale himself could not testify regarding the possible complications of TMJ surgery. Martindale's counsel sought to elicit testimony from Martindale about the risks of surgery that he heard from Dr. Ryan and the risks of complications that he learned from the internet. ¶83 In Brantner, this court considered whether a plaintiff has to prove to a reasonable certainty that his or her injury would require surgery in the future. This court answered that inquiry negatively, indicating that a plaintiff must prove to a reasonable certainty that he or she has a fear of surgery; a plaintiff need not prove to a reasonable certainty that he or she will need surgery. The plaintiff must do two things, however, in order to advance a claim for fear of future surgery: (1) The plaintiff must establish a reasonable fear of the possibility of future surgery, which according to Brantner may be accomplished with a doctor's realistic prediction as to the 38 No. 99-0649 possibility of future surgery; and (2) the plaintiff may not present evidence of fear of future surgery if the evidence relates to "remotely conceivable complications" or "a fictitious or imagined or highly unlikely consequence." Brantner, 121 This case requires an additional analytical step. The Wis. 2d at 666-67. ¶84 dispute here requires us to decide if, after a circuit court decides that a plaintiff may testify concerning his or her fear of surgery, the court may thereafter exclude testimony by the plaintiff and a medical witness about the specific possible complications of surgery. ¶85 all Despite this extra analytical step, Brantner provides the guidance this court needs in analyzing whether circuit court made a sustainable use of discretion. the Brantner said that a plaintiff cannot recover for "damages for mental distress when a medical witness describes to the victim or to the jury remotely conceivable complications which may develop from the physical injury caused by the defendant's negligence." Brantner, 121 Wis. 2d at 666-67 (emphasis added). ¶86 We must be mindful that our inquiry does not rest on what we would have done in the circuit court's position, but instead on decision. ruled that whether reasonable judge Wollman, 86 Wis. 2d at 464. Dr. complications, possibility a of Ryan it could stated success not that [of could Martindale complications if surgery is had." 39 the same When the circuit court testify surgery], make regarding could but potential "get not in the impossible We read this statement by the No. 99-0649 circuit court to mean the plaintiff had not offered sufficient evidence to show such complications conceivable, if conceivable at all. were more than remotely This reading of the record is supported by the numerous references the circuit court made to the possibility of complications from the surgery. ¶87 Martindale, however, takes issue with the circuit court's seemingly interchangeable use of words to describe the standard required of Dr. Ryan's testimony complications of surgery. The circuit "reasonable "reasonable probability," court about used the the words possibility," "what complications might occur," "complications that might result," and "impossible complications," when it ruled that Dr. Ryan could not testify about the complications of potential future surgery. ¶88 Notwithstanding the inconsistent terminology used by the circuit court, it is apparent based on our reading of the record that the circuit court determined Martindale had not shown that the potential complications were anything more than remotely conceivable. We conclude the circuit court had a reasonable basis to make this decision because the record is devoid of any likelihood of evidence any from any complications qualified if surgery witness did about occur. the Dr. Ryan's statement in which he rated the chances of success of surgery is insufficient by itself to show that complications were not just remotely conceivable. Certainly, the could be deemed a success, but also entail complications. 40 surgery No. 99-0649 ¶89 Had prediction Martindale as to the presented Dr. possibility of Ryan's future "realistic surgery," and evidence that complications were more than remotely conceivable, we would be compelled to exercised its discretion. find the circuit court erroneously Brantner, 121 Wis. 2d at 666. This simply did not occur. ¶90 The circuit court properly exercised its discretion in excluding the testimony of the doctor on potential complications on the basis that remotely conceivable complications do not give rise to damages Accordingly, we for also fear of conclude possible the future surgery. court properly circuit exercised its discretion in excluding the exhibits relating to post-operative complications and this excluded testimony. B. Martindale's Testimony ¶91 We also find the circuit court properly exercised its discretion in excluding testimony by Martindale that revealed he had learned additional information on the possible complications of TMJ surgery initially from overruled internet objection sources. by the City The circuit during the court direct examination of Martindale concerning what he had learned from the internet. Based on our reading of the record, the circuit court anticipated the plaintiff might testify as to accounts or stories of persons who suffered complications from TMJ surgery. Apparently, testimony. the circuit court would have allowed such The City asked for argument outside the presence of 41 No. 99-0649 the jury. When the plaintiff began testifying during an offer of proof about the very specific medical effects of TMJ surgery, however, the circuit court sustained further objection by the City. ¶92 During the offer of proof, Martindale stated: [I] have learned that there are a lot of risks. That I can end up with some severe problems if the surgery does not go as planned. I could become -- I could have problems with degeneration of the bones, the jaw bones, and have to face the possibility of reconstructive surgery, and loss of motion -- those kinds of things. [W]hat I have really learned is that everything that I have, basically, that Dr. Ryan it's all been confirmed. That reading documentaries, case histories, studies, they are all medical records, medical papers, and basically, they are confirming everything that I have already heard. Basically, what has been confirmed by these papers that I have read is that I have a high risk of -- or a risk of degenerated bone disease, arthritic bone disease, which would mean they would have to do plastic reconstruction of the joint, a very dangerous and very high risk operation, something I don't want to get into. I have also learned that I can get scarring of the joints through surgery, and I can end up with loss of motion, and so forth (questions of counsel omitted). We agree with the circuit court's exclusion of this evidence. ¶93 Martindale did not establish that the complications of which he spoke were anything more than "remotely conceivable." Brantner, 121 Wis. 2d at 666. because his complications expert were witness more This was especially problematic did than 42 not establish remotely whether conceivable any either. No. 99-0649 Accordingly, we conclude the circuit court did not erroneously exercise its discretion in excluding this testimony. VI ¶94 We conclude that the circuit court erroneously exercised its discretion when it excluded the testimony of an oral surgeon, testifying as an expert, explaining and describing the probable plaintiff's manner head in and which neck the caused temporomandibular joints (TMJs). the plaintiff's circuit court indicating proof of admitted that the whiplash injury the of the plaintiff's This exclusion was critical to causation and testimony by injuries were TMJ to motion occurred the after expert caused by the witness whiplash suffered when the plaintiff's car was struck from behind by a garbage truck. On the facts of this case, the witness was not testifying beyond his expertise, and the evidence concerning the probable manner of injury should not have been excluded. Because the excluded testimony was critical to plaintiff's proof of causation and because the defendant stressed plaintiff's failure to establish causation, the exclusion of this evidence was not harmless error. Although we affirm the circuit court's exclusion testimony of proffered about remotely conceivable complications of possible future surgery to plaintiff's TMJs, we reverse the decision of the court of appeals and remand the cause for a new trial. 43 No. 99-0649 By the Court. The decision reversed and the cause is remanded. 44 of the court of appeals is No. 99-0649.ssa ¶95 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). join the majority opinion. I I wrote a concurrence on the issue of harmless error in In re the Termination of Parental Rights to Jayton S.: Evelyn C.R. v. Tykila S., 2001 WI 110 ¶¶37-42, ___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J. concurring). My views on harmless error expressed in that concurrence apply to the present case as well. Rather than repeat the concurrence verbatim in the present case, I refer the reader to the Evelyn C.R. case. 1 No. 99-0649.jpw ¶96 the JON P. WILCOX, J. (dissenting). majority proffered that the testimony circuit court regarding the While I agree with properly excluded remotely the conceivable complications that could occur if Martindale opted to undergo TMJ surgery, I do not join the majority's conclusion that the circuit court erroneously exercised its discretion by excluding Dr. Ryan's "mechanism" proffered by testimony which and Martindale diagram allegedly regarding was the injured. Accordingly, I dissent. I ¶97 As the majority explains, the question of whether a witness is qualified under Wis. Stat. § 907.02 (1997-98)12 to provide an expert opinion is a discretion of the circuit court. also State (1999). v. When Watson, 227 reviewing matter to the sound Majority op. at ¶¶44-45; see Wis. 2d a left 167, circuit 186, court's 595 N.W.2d decision on 403 a discretionary matter, this court should not examine whether we would have reached the same conclusion as the circuit court. State v. Wollman, 86 Wis. 2d 459, 464, 273 N.W.2d 225 (1979); see also majority op. at ¶86. Rather, the appropriate scope of our review is much more limited: "We review a discretionary decision only to determine whether the [circuit] court examined the facts of record, applied a proper legal standard, and, using a rational process, reached a reasonable conclusion. 12 This court All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated. 1 No. 99-0649.jpw will not reverse unless the circuit court's use of discretion is wholly unreasonable." Watson, 227 Wis. 2d at 186 (quotation and citation omitted); see also majority op. at ¶28. generally look determination on for reasons to discretionary sustain matters. a Indeed, we circuit Schauer v. court's DeNeveu Homeowners Ass'n, 194 Wis. 2d 62, 71, 533 N.W.2d 470 (1995). ¶98 Although the majority in this case professes to adhere to this standard of review, it nonetheless fails to explain on what legal basis the circuit court erred in excluding Dr. Ryan's proffered testimony. Instead, the majority simply reexamines the facts in the record and substitutes its own judgment for the sound discretion of the circuit court. ¶99 Had the majority reviewed this case in light of the standard of review that it ostensibly applies, it properly would have concluded that the circuit court reasonably exercised its discretion in excluding Dr. Ryan's proffered evidence regarding the possible injured. "mechanism" by which Martindale may have been The circuit court provided two bases for its decision, both of which are legally sound and either of which should have provided grounds for this court to uphold the circuit court's ruling. A ¶100 First, testimony explained, lacked a the circuit court foundation. judge may As insist ruled this that that court an supported by some foundation in the record. Dr. Ryan's previously expert opinion has be Rabata v. Dohner, 45 Wis. 2d 111, 134-35, 172 N.W.2d 409 (1969); see also Wis. 2 No. 99-0649.jpw Stat. § 904.03 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of . . . misleading the jury . . . ."). ¶101 In introduce: the case, Martindale attempted to (1) a diagram allegedly depicting how his head and jaw moved during explaining present the his accident; and diagram. Although (2) Dr. Ryan's Dr. Ryan testimony stated that he believed that the diagram accurately depicted Martindale's head and jaw movement, his extremely limited. factual foundation for his belief was As he testified: Well, I do know which kind of automobile [Martindale] was in. He was in a Bonneville. And I also know that he testified that his his headrest was too low for his head and that this would depict what could happen in a whiplash injury and I have no other reason to believe that he had an injury to his jaw other than the whiplash injury in this accident. And since I've already testified that I think the accident caused this problem, this is the mechanism of I believe causes internal joint derangement. Thus, in his own words, Dr. Ryan's belief was based on his opinion that the accident caused Martindale's TMJ injury and Martindale's statements regarding his automobile and whiplash injury. ¶102 Dr. Ryan's opinion about the cause of Martindale's TMJ injury does not provide an evidentiary basis for his hypothesis regarding how Martindale's head and jaw moved during the accident. To be sure, Dr. Ryan testified without objection that in his opinion, the accident caused Martindale's TMJ injury. This opinion, however, was not based on Dr. Ryan's firsthand 3 No. 99-0649.jpw knowledge of the accident or Dr. Ryan's understanding kinematics, physics, or accident reconstruction. of Rather, it was simply a matter of common sense deduction based on the facts available to Dr. Ryan. As his testimony indicates, Dr. Ryan began with the factual premises that Martindale had a TMJ injury and was involved in an accident; he then ruled out possible causes for the injury other than Martindale's accident. Syllogistically, Dr. Ryan's reasoning was as follows: (1) (2) Martindale was in whiplash injury. (3) Whiplash injuries are caused by head movement. (4) Head movement can cause TMJ injuries. (5) Thus, the head movement in the accident have caused Martindale's TMJ injury. (6) Dr. Ryan knew of no other Martindale's TMJ injury. (7) At Martindale had a TMJ injury. Therefore, Dr. Ryan opined that the head movement in the accident caused Martindale's TMJ injury. best, this Martindale's reasoning head moved an accident indicates in the that caused possible that Dr. accident. could cause Ryan But a for knew none of that this reasoning indicates that Dr. Ryan knew how Martindale's head and jaw moved in the accident. ¶103 Further, Dr. Ryan's knowledge of Martindale's testimony does not support a conclusion that Dr. Ryan knew how Martindale's head and jaw moved in the accident. Martindale testified about the type of car he was driving and the general 4 No. 99-0649.jpw facts surrounding his whiplash injury, but he did not explain how his head and jaw moved in the accident with enough precision to allow Dr. Ryan to create a diagram and use it to depict the exact head and jaw movements. ¶104 Because Dr. Ryan did not provide any other basis for his opinion, the circuit court reasonably concluded that his diagram and testimony allegedly explaining the exact nature of Martindale's head and jaw movements lacked foundation. Accordingly, the circuit court did not erroneously exercise its discretion in excluding this proffered evidence. B ¶105 Second, testimony was probability. the not circuit given to court a ruled reasonable that Dr. Ryan's degree of medical Medical opinions must be based on a reasonable degree of probability, not upon mere possibility, conjecture, or speculation. Pucci N.W.2d 138 (1971). v. Rausch, 51 Wis. 2d 513, 518-19, 187 Although there are "[n]o particular words of art" that a medical expert must employ in relating his or her opinion, Drexler v. All American Life & Cas. Co., 72 Wis. 2d 420, 432, 241 N.W.2d 401 (1976), this court has made it clear that "'might' or 'could' is not sufficient and does not reach the certitude required." Pucci, 51 Wis. 2d at 519. ¶106 In the case at hand, Dr. Ryan expressed his opinion regarding Martindale's head and jaw movements in terms of mere possibility, conjecture, or speculation: what could happen in a whiplash injury." "[T]his would depict (Emphasis added.) Dr. Ryan did not explain whether there are other types of whiplash 5 No. 99-0649.jpw injuries that involve different head and/or jaw movements, and, if so, whether those types of whiplash injuries can cause TMJ injuries. Nor did he attempt to explain with what frequency the type of movement depicted in his diagram actually causes TMJ injury. Rather, Dr. Ryan merely asserted in uncertain terms that the movements shown in his diagram could have occurred in the accident at issue and, if so, Martindale's TMJ injury could have resulted. This does not reach the required level of certitude necessary to form an admissible opinion. ¶107 The majority attempts to make an end-run around this shortcoming by scouring Dr. Ryan's deposition transcript for testimony that did reach the requisite degree of certitude. As a result of its efforts, the majority does manage to find such testimony: twenty-six pages and seventy-five questions earlier in the transcript, Dr. Ryan testified "to a reasonable degree of probability" caused the omitted). But as that TMJ in his injury. opinion, See Martindale's majority op. at accident ¶67 had (quotation As explained above, this testimony is not disputed. also explained above, it does not follow from this testimony that Dr. Ryan had knowledge about how Martindale's head and jaw allegedly moved during the accident sufficient to warrant introducing Dr. Ryan's "mechanism" diagram and testimony to the jury. ¶108 The fact remains that with regard to the testimony and diagram at issue (not another question at another point in Dr. Ryan's testimony), Dr. Ryan failed to testify with the requisite degree of certainty. He provided the opinion at issue only in 6 No. 99-0649.jpw terms of possibility, conjecture, and speculation as what could have happened. that Dr. As such, the circuit court reasonably concluded Ryan's diagram and testimony should be excluded. Accordingly, as with the foundation ruling discussed above, the circuit court did not erroneously exercise its discretion. II ¶109 Seemingly driven by a desired outcome rather than its professed adherence to the appropriate standard of review, the majority ignores engages in finding that the legal the circuit court's gymnastics. circuit reasoning First, court's rather ruling was and, than in instead, initially error, majority begins its analysis with a harmless error standard. the majority credentials, explains, permitting "[a]fter him to recognizing testify as an Dr. the As Ryan's expert, and allowing him to give his opinion as to the cause of Martindale's medical condition, the court denied [Dr. Ryan] the ability to explain the conclusion." majority 'mechanism' that prompted Majority op. at ¶46. suggests that Martindale him to reach his In light of these facts, the was prejudiced because the jury never received an explanation of how a whiplash injury can relate to a TMJ injury. the circuit court ruling Id. Thus, the majority suggests that affected the substantial rights of Martindale without first finding that the ruling was incorrect. ¶110 The majority's analysis is flawed. majority's analysis beg the questions of Not only does the whether Dr. Ryan's "mechanism" diagram and testimony lacked foundation and/or the requisite degree of certainty, 7 but it is based on circular No. 99-0649.jpw logic. In effect, the majority's logic is that the circuit court's ruling was in error because it was not harmless error (i.e., it affected Martindale's substantial rights). to this prejudice-first analysis, even if the Pursuant majority had concluded that the circuit court ruling was correct and was the only reasonable ruling in this case, so long as the ruling could cause Martindale to be compelled to reverse. prejudiced, the majority would be This is not our law. ¶111 There is no doubt that Dr. Ryan was an expert. But an expert qualified to testify on one subject is not necessarily qualified subject. to testify on another even a closely related See Lemberger v. Koehring Co., 63 Wis. 2d 210, 217-18, 216 N.W.2d 542 (1974). Simply because the circuit court ruled that Dr. Ryan was qualified to provide an opinion regarding the cause of Martindale's TMJ injury, it does not necessarily follow that the circuit court was in error when it concluded that Dr. Ryan was not qualified to opine about the physical mechanics surrounding Martindale's alleged head and jaw movement during the accident. record, the As explained above, based on the facts in the circuit proffered evidence. 510-11, court reasonably excluded this latter Accord Simpsen v. Madison Gen. Hosp., 48 Wis. 2d 498, 180 N.W.2d circuit court's decision to allow 8 586 a (1970) doctor to (affirming testify the about No. 99-0649.jpw injuries, but not about the possible causes of those injuries).13 Consequently, the circuit court's ruling was not in error and 13 In an attempt to undermine the precedential value of Simpsen v. Madison Gen. Hosp., 48 Wis. 2d 498, 180 N.W.2d 586 (1970), the majority asserts that Simpsen is inapposite to the present case because Simpsen involved a podiatrist while the present case involves an oral surgeon. See majority op. at ¶56 n.9. I cannot discern that this negligible factual distinction undermines the precedential value of Simpsen. Simpsen, like the present case, involved a licensed, well-seasoned doctor who had experience in diagnosing and treating the type of injury at issue, who had treated the plaintiff after (and before) she was injured, and who had consulted with another doctor who had treated the plaintiff. Simpsen, 48 Wis. 2d at 509-10. Nevertheless, the circuit court in Simpsen, like the circuit court in the present case, ruled that although the doctor was qualified to testify as an expert regarding some aspects of the plaintiff's injuries, he was not qualified to testify about all aspects of the plaintiff's injuries. Id. at 509. As this court should have done with regard to the circuit court's ruling in the present case, this court affirmed the circuit court's sound discretionary decision in Simpsen. Id. at 511. As noted above, the mere fact that a witness is qualified to testify as an expert on one issue does not mean that the witness is qualified to testify as an expert on another even a closely related issue. Lemberger v. Koehring Co., 63 Wis. 2d 210, 217-18, 216 N.W.2d 542 (1974). The circuit court in the present case, like the circuit court in Simpsen, recognized this rule of law. 9 No. 99-0649.jpw the majority should not have reached the harmless error analysis.14 ¶112 And second, the majority puts an irrational spin on the facts of this case. "did not try Martindale's exhibit describe car. . . . were believed to According to the majority, Dr. Ryan intended His to exactly what testimony and explain Martindale's [alleged] to the injuries happened the jury inside accompanying how occurred." Dr. Ryan Majority op. at ¶55. ¶113 I "facts." cannot discern how the majority harmonizes these On one hand, the majority suggests that Dr. Ryan did not intend to explain how Martindale's head and jaw moved during the accident. intended to On the other hand, it suggests that Dr. Ryan explain how he believed Martindale's injuries occurred i.e., how Martindale's head and jaw moved during the accident. I fail to understand this reasoning. 14 To explain how As the court of appeals noted, Martindale knew well in advance of the trial that the evidence at issue was not admissible. Martindale v. Ripp, No. 99-0649, unpublished slip op. at ¶8 (Wis. Ct. App. Oct. 28, 1999). The circuit court made its ruling on June 8, 1998, approximately three months prior to the September 11, 1998, commencement of the trial. With such advance notice that Dr. Ryan's diagram and deposition testimony would be partially excluded, Martindale could have sought to have Dr. Ryan testify at trial in order to bolster his opinion or asked the circuit court to permit another qualified expert to testify. Martindale did not pursue either option. Rather, he chose to try the case without the evidence that he now claims to have needed. In light of these facts and the facts discussed above, I would conclude that it was Martindale's inaction not the circuit court's ruling that hurt Martindale's case. 10 No. 99-0649.jpw Martindale's injury occurred by means of anything more than a generic statement that the accident caused Martindale's injury, Dr. Ryan necessarily would have to explain precisely Martindale's head and jaw moved during the accident. how He is not qualified to do so. ¶114 For these reasons, I not only am troubled by the fact that the majority has reversed a reasonable discretionary decision by the circuit court, but I also am troubled that the majority has replaced discretionary decision the with circuit specious court's logic and reasonable irreconcilable statements of "fact." III ¶115 The majority in this case has overstepped the bounds of the appropriate standard of review. cannot conclude omitted). concludes the circuit court's ruling was "wholly See Watson, 227 Wis. 2d at 186 (quotation and unreasonable." citation that This court does not and that Rather, the "reasonable" albeit circuit less at court best, the could majority have reasonable ruling. made Thus, simply another in the place of the circuit court's sound discretionary decision, the majority has injected as a matter of law its determination of how, were it the circuit court, it would have decided the question of whether to admit Dr. Ryan's testimony. ¶116 I will not join the majority's circuit court's discretionary authority. respectfully dissent. 11 usurpation of the For this reason, I No. 99-0649.jpw ¶117 I am authorized to state CROOKS joins this dissent. 12 that Justice N. PATRICK No.99-0649.npc ¶118 N. PATRICK CROOKS, J. (dissenting). While I join Justice Jon P. Wilcox's dissent, I write separately to express my concerns about the majority's standard for harmless error. See majority op. at ¶32. The majority's standard is whether there is "a reasonable possibility that the error contributed to the outcome," "sufficient and to that a 'undermine "reasonable confidence in possibility" the is outcome.'" one Id. (quoting State v. Dyess, 124 Wis. 2d 525, 544-45, 370 N.W.2d 222 (1985)). Since the standard for harmless error is the same for civil, as well as criminal, cases (Town of Geneva v. Tills, 129 Wis. 2d 167, 184-85, 384 N.W.2d 701 (1986)), it is imperative that the standard be accurately conveyed. ¶119 For at least the past 35 years, this court wrestled with formulating a standard for harmless error. has See, e.g., Pulaski v. State, 24 Wis. 2d 450, 456-57, 129 N.W.2d 204 (1964); State v. Spring, 48 Wis. 2d 333, 339-40, 179 N.W.2d 841 (1970); Wold v. State, 57 Wis. 2d 344, 356-57, 204 N.W.2d 482 (1973); State v. Grant, 139 Wis. 2d 45, 406 N.W.2d 744 (1987). In an attempt to formulate a single, uniform test for harmless error, Dyess "conclude[d] that the test of prejudice as formulated in Strickland subsumes the various statements of the harmless error test that this court has used over the years." 1 No.99-0649.npc Dyess, 124 Wis. 2d at 545.15 The Strickland case referred to is Strickland v. Washington, 466 U.S. 668, 693 (1984), and the test is whether "there is a reasonable probability" that "but for" the error, different. to "the of the proceeding would have been A reasonable probability is a probability sufficient undermine (emphasis result confidence added). in Dyess the outcome." obviously 466 adopted U.S. that at 694 test, but incorrectly assumed that there was no real difference between using "reasonable possibility" probability." 124 Wis. 2d at 544. instead of "reasonable Granted, Dyess applied its test by stating that "[i]n the present case, the probability to be weighed is whether the defendant would have been acquitted." Id. at 546 (emphasis added). However, as evident in the majority's opinion here today,16 Wisconsin courts have frequently 15 Dyess' single test for harmless error standard has not been without controversy. State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985). In addition to the majority opinion's discussion of Dyess' harmless error standard, authored by Justice Day, in State v. Grant, 139 Wis. 2d 45, 406 N.W.2d 744 (1987), Chief Justice Heffernan, Justice Day, Justice Abrahamson, and Justice Callow separately concurred on the Dyess issue. The controversy has continued. See State v. Dodson, 219 Wis. 2d 65, 92-98, 580 N.W.2d 181 (1998) (Crooks, J., concurring, joined by Justice Steinmetz and Justice Wilcox). 16 See also Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ___ Wis. 2d ___, ___ N.W.2d ___; Koffman v. Leichtfuss, 2001 WI 111, ___ Wis. 2d ___, ___ N.W.2d ___; Evelyn C.R. v. Tykila S., 2001 WI 110, ___ Wis. 2d ___, ___ N.W.2d ___; and Nommensen v. American Cont l Ins. Co., 2001 WI 112, ___ Wis. 2d ___, ___ N.W.2d ___. (I have written dissents or concurrences in these cases.) But see State v. Lindell, 2001 WI 81, ___ Wis. 2d ___, ___ N.W.2d ___ (Strickland's probability sufficient to undermine the confidence in the outcome test used to determine ineffective assistance of counsel claim). 2 No.99-0649.npc used the term "reasonable possibility," and have not indicated that, in the context of a harmless error standard, possibility means probability.17 ¶120 There can be no difference between what doubt is that there reasonably is a probable significant and what is reasonably possible. "A possibility test is the next thing to automatic reversal." Wold v. State, 57 Wis. 2d 344, 356-57, 204 N.W.2d 482 (1973).18 While I agree that the focus should be "on whether the error 'undermine[s] (Dyess, 124 Wis. 2d at 545 confidence (quoting in the Strickland, outcome,'" 466 U.S. at 694)), if that error need only possibly undermine the confidence in the outcome, circuit courts rather than considering probably, motions appellate after verdict courts, and and post- convictions motions, will find themselves invading the purview of the jury. A cornerstone of the common law is deference to the jury, which is diluted by determining whether the alleged error possibly, and only possibly, may have affected the jury's decision. 17 According to my research, on few occasions since Dyess has this court, in a majority opinion, noted that reasonable possibility means reasonable probability. See State v. Armstrong, 223 Wis. 2d 331, 372 n.40, 588 N.W.2d 606 (1999); see also State v. Huntington, 216 Wis. 2d 671, 695-96, 575 N.W.2d 268 (1998). However, several court of appeals opinions have applied the Dyess harmless error test using the correct "reasonable probability" standard. See, e.g., State v. A.H., 211 Wis. 2d 561, 569, 566 N.W.2d 858 (Ct. App. 1997); State v. Joseph P., 200 Wis. 2d 227, 237, 546 N.W.2d 494 (Ct. App. 1996). 18 Wold's "reasonable probability" test for harmless error was replaced by Dyess' "reasonable possibility" test. 3 No.99-0649.npc ¶121 I do not take issue with the term "reasonable possibility," so long as it is made clear that this term means reasonable probability, and probability is the standard to be applied. Accordingly, I offer the following test for harmless error, which makes clear that Dyess' use of the term "reasonable possibility" is intended to require "reasonable probability": Wisconsin Stat. § 805.18(2) provides that an error requires reversal only where it has "affected the substantial rights of the party" claiming error. We have long recognized that the focus of a court's analysis under this statute is whether, in light of the applicable burden of proof, the error is significant enough to "undermine confidence in the outcome" of the trial. Dyess, 124 Wis. 2d at 544-45. An error is significant enough to undermine confidence in the outcome if there is a reasonable probability of a different outcome without the error. made it clear that "probability" is Dyess substantially the same as "possibility" under Wisconsin law. Id. at 544. ¶122 That possibility" Wisconsin rather than courts have "reasonable often used probability" "reasonable should dissuade the court from correcting such missteps today. not See, e.g., State v. Sullivan 216 Wis. 2d 768, 792, 576 N.W.2d 30 (1998); State v. Alexander, 214 Wis. 2d 628, 653, 571 N.W.2d 662 (1997). There is no time like the present dum fervet opus19 when the court has before it five cases wherein it discusses the harmless error standard, to clarify Dyess. ¶123 For the reasons stated herein, I respectfully dissent. 19 "While the action is fresh; in the Black's Law Dictionary 518 (7th ed. 1999). 4 heat of action." No.99-0649.npc ¶124 I am authorized to state that Justice JON P. WILCOX joins this opinion. 5 No.99-0649.npc 1
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