author: CURLEY, J. FINE, J.

text:
    In re the Marriage of: Cynthia M. Kettner, n/k/a Cynthia M. Stelzl, Petitioner-Respondent, v. Jeffrey S. Kettner, Respondent-Appellant.

    Court of Appeals

      No. 01-1881.

      Submitted on briefs March 5, 2002.

    Decided April 9, 2002.

    2002 WI App 173
    (Also reported in 649 N.W.2d 317.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Christopher D. Walther of Walther Law Offices, S.C., of Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Richard E. Reilly and Kathryn A. Keppel of Gimhel, Reilly, Guerin & Brown of Milwaukee.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review denied.

   CURLEY, J.

¶ 1. Jeffrey Kettner appeals the order dismissing his motion for modification of the physical placement of his son, Scott Kettner. He argues that the trial court erroneously exercised its discretion when it denied his request for an update of the psychological examinations completed several years earlier on him, his former wife, and son, and when it refused to permit him to introduce evidence of his son's placement preference. He also submits that the trial court erred when it permitted the guardian ad litem to introduce non-evidentiary matters. We affirm.

I. Background.

¶ 2. Kettner and his wife, Cynthia Kettner, k/n/a Cynthia Stelzl, were divorced on July 11, 1990. At the time of the divorce, Kettner was thirty-four years old and Stelzl was thirty-two. They had one child, Scott, who was a little over one year old at the time of the divorce. The divorce judgment awarded Scott's future care to his parents jointly, with Scott living primarily with Stelzl, and Kettner having physical placement with Scott at all reasonable times upon reasonable notice. After the divorce, Kettner and Stelzl resumed living together. However, in February 1993, Stelzl filed a motion seeking a modification of the order, which permitted Kettner physical placement at all reasonable times upon reasonable notice. An assistant family court commissioner granted Stelzl's motion, entering a fixed physical placement schedule. Kettner requested a de novo review in the circuit court. While the appeal was pending, the guardian ad litem hired Dr. Michael Cichy to evaluate Kettner, Stelzl, and Scott.

¶ 3. Ultimately, the parties entered into a stipulation resolving all the outstanding issues on February 22, 1996, and Dr. Cichy's testimony was not needed. Several months later, Kettner filed a motion asking that Stelzl contribute to the costs of Dr. Cichy. This motion led to Stelzl filing a counter motion requesting that Kettner be found in contempt. Approximately one year later, in July 1997, a new trial judge entered an order following a hearing on the motions.

¶ 4. In May 2000, Kettner filed a motion requesting modification of Scott's physical placement. Kettner sought to have Scott live with him during the school year. He claimed that a substantial change of circumstances had occurred since the last order had been entered. Because his allegations were disputed, the trial court appointed a new guardian ad litem. Shortly thereafter, Kettner filed a motion seeking an update of the psychological examinations done by Dr. Cichy on Kettner, Stelzl, and Scott. After a hearing, the trial court took the matter under advisement. In a written decision, the trial court denied the motion. Ultimately, a hearing was held on Kettner's motion for a change in the physical placement order. At the hearing, Dr. Cichy was one of several witnesses who testified. Based upon the information he garnered and the examinations he had conducted years earlier, he related his opinion and discussed his earlier report. The trial court denied Kettner's request to modify the custody and placement order and dismissed his motion.

II. Analysis.

A. The trial court properly exercised its discretion in denying Kettner's motion for updated psychological examinations.

¶ 5. Kettner complains that the trial court should have granted his request to update the psychological reports prepared by Dr. Cichy in 1997. In his brief, he argues that his motion to modify the existing placement order was based on allegations that Scott was having psychological difficulties. Consequently, the trial court's failure to order a new psychological examination was an erroneous exercise of discretion. We disagree.

¶ 6. In custody disputes, trial courts often appoint a psychologist to assist the court in determining the mental health of the parties and the children, one of the factors the trial court may consider in determining custody and placement issues. See Wis. Stat. § 767.24(5)(e) (1999-2000). Wisconsin Stat. § 804.10(1) authorizes the trial court to order the parties to undergo psychological examinations.

Physical and mental examination of parties; inspection of medical documents. (1) When the mental or physical condition, including the blood group or the ability to pursue a vocation, of a party is in issue, the court in which the action is pending may order the party to submit to a physical, mental or vocational examination. The order may be made on motion for cause shown and upon notice to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

However, a trial court is not required to appoint expert witnesses on an issue unless it is one that is beyond the knowledge and experience of the average trier of fact. See State v. Whitaker, 167 Wis. 2d 247, 255-56, 481 N.W.2d 649 (Ct. App. 1992). Because the trial court has the discretion to order an expert witness examination, we review a trial court's order denying a request for psychological testing under the erroneous exercise of discretion test. See id. at 252.

¶ 7. We note that both Stelzl and the guardian ad litem opposed Kettner's request. Stelzl argued that Kettner alleged only a school problem, not a psychological problem. She also was opposed to Dr. Cichy being reappointed because she felt he was biased. The guardian ad litem's objection was based on his concern that a psychological examination would require Scott to reveal his preference for where he wanted to live, and due to the pressure being applied on Scott by Kettner and Stelzl to state their respective home as his preference, the guardian ad litem felt it was not in Scott's best interest to have him examined. Initially the trial court also voiced some concern over the re-examination, commenting that the report would be costly, and noting that the parties had been involved in litigation for some time. Ultimately, the trial court issued a written decision denying the motion.

¶ 8. Despite Kettner's contention that his request was grounded on his concern that his son was experiencing psychological problems, Kettner's three affidavits submitted to the court in support of his motion requesting an update of the psychological examinations center on factual disputes between Kettner and Stelzl regarding their son's best interests. He failed to challenge either the mental or physical health of the parties pursuant to Wis. Stat. § 767.24(5)(e). For example, in his third affidavit filed with the court shortly before the motion was heard, Kettner stated:

4. There are factual disputes between Cynthia and I regarding the following issues in Scott's life:
a. That Scott is struggling socially at school;
b. That Scott has lost respect for Cynthia, and Cynthia has been unable to discipline him;
c. That Scott is struggling socially at school because of conflict in Cynthia's home;
d. That Scott is unhappy with his present school and present living arrangements and would like to reside with me full-time during the school year; and
e. That Scott has experienced substantial stress at Cynthia's home because of her recent remarriage.
The only way to resolve the factual disputes between Cynthia and I one way or the other is either through Scott's testimony in court, or through a psychological examination which can address the above issues.

¶ 9. The allegations do not claim that Scott suffers from any psychological problems requiring psychological evaluation or treatment; rather, they center on Scott's alleged problems with his adjustment at school and his relationship with his mother. Scott had a voice in the proceedings - his guardian ad litem. Kettner's disagreement with the guardian ad litem's recommendation does not justify testimony from a psychologist when Scott's mental health was not at issue. Under Kettner's rationale, every time a parent alleges that his or her child is having a difficult time adjusting to school or adjusting socially after a divorce, that child would be subject to psychological testing. This is not the test under Wis. Stat. § 767.24.

¶ 10. This same theme was repeated in Kettner's oral argument to the court at the time of the hearing. Kettner's attorney stated that the primary reason for the request was to resolve factual disputes between the parties.

[Kettner's Attorney]: The only way to move this along is to have the parties undergo psychological examination and see whether dad's view is accurate or whether mom's view of how this kid is doing is accurate. Otherwise we're going to have a trial where the Court is going to have two separate views. We don't know where the truth is.

Thus, the record belies Kettner's assertions that he requested the examination to explore Scott's psychological problems. Rather, it would appear the purpose of Kettner's request for psychological examinations was to assist the trial court in determining whose version of the facts was correct. Trial courts are capable of deciding factual disputes without the aid of a psychologist. Given Kettner's stated purposes, we cannot fault the trial court for denying the motion. The trial court properly exercised its discretion by refusing to order a costly and time-consuming report to assist in deciding what were factual disputes.

¶ 11. Kettner has also criticized the trial court's decision, claiming that the trial court decided the issue on grounds never raised by him. The trial court wrote:

The Court after reviewing the file cannot help but agree with the guardian ad litem that I cannot permit a psychologist to make the determination of placement. While [a] Court can take the testimony of the psychologist under advisement, it's up to the Court to make the ultimate determination in this matter ....
• The guardian ad litem in a letter to the Court says as follows, quote, children do not decide where they are going to live; children should not be forced to make a choice between their parents; children should not be asked to report on the other's parent's activities; children should not be put in the middle of these types of actions, end quote. This capsulizes the issue in this case.

¶ 12. The trial court's written decision was in response to issues raised by the guardian ad litem. In its written decision, the trial court was merely explaining that its role was to decide factual disputes, and the court should not abdicate this responsibility to a psychologist. The trial court stated it did not need a psychologist to assist it in deciding which version of the facts to accept. The trial court's statement concerning its view of the limited role that a child should have in deciding placement was also directed at the guardian ad litem's concern that a psychological examination could lead Scott to believe that he was required to decide between his parents. Thus, we are satisfied that the trial court properly addressed the issues raised by the parties in denying the motion.

B. The trial court properly exercised its discretion.

¶ 13. Kettner next submits that the trial court erroneously exercised its discretion when it refused to permit him to introduce evidence that his son voiced a preference for living with him. Because Wis. Stat. § 767.24(5) (b) fists the wishes of a child as a factor to be considered by the trial court when determining custody and placement issues, Kettner claims the trial court improperly prevented him from eliciting the child's wishes from Dr. Cichy and erroneously exercised its discretion in sustaining objections to questions posed to him concerning Scott's preference as to his placement. He is wrong on both counts.

¶ 14. The trial court's determination to admit or exclude evidence is a discretionary decision that will not be upset on appeal absent an erroneous exercise of discretion. State v. Jenkins, 168 Wis. 2d 175, 186, 483 N.W.2d 262 (Ct. App. 1992).

¶ 15. First, Dr. Cichy did testify about Scott's preference stated to the doctor four years previously.

[Kettner's Attorney]: There's an occasion later on in your report that prior to May 2, 1997, Scott had expressed his desire during psychotherapy to spend more time with his father?
[Stelzl's Attorney]: Objection. Irrelevant. There's no relevance before the Court today. We're talking about something that may have been expressed prior to 1997 which was dealt with in a hearing where Mr. Kettner had very competent counsel, and the issues were litigated, resolved, and resulted in an order.
The Court: You may proceed.
[Kettner's Attorney] : Do you remember the question? Would you repeat it, please.
The Court: We'll have the reporter read it back.
(Question read.)
Dr Cichy: That's correct, he did.
[Kettner's Attorney]: How exactly did he express that? Was that in the form of testing or was that in the form of -
Dr CiChy: It was in the form of a conference that I had with him individually. That was not in his father's or mother's presence.

Thus, the trial court was aware of the fact that Scott had previously indicated a preference for living with his father.

¶ 16. Second, the trial court properly sustained the objection to Kettner's attorney's questions asking for hearsay testimony. Kettner points to the following exchange to illustrate the trial court's erroneous exercise of discretion.

[KettneR's AttoRney]: How do you think the circumstances have changed?
MR Kettner: Scotty's attitude towards people, life, sports, his - the difference in how his grades were going and all of a sudden now they're up since we got court papers going, his attitude that he has living with his mom these days, things that he tells me about in the house he's not suppose to -
[Stelzl's Attorney]: I'm going to object to any testimony of the child through the father.
The CouRt: I think that the guardian ad litem can address that. Mr. Mulligan?
[Guardian ad Litem]: From -
The Court: You've had conversations with the child?
[Guaedian ad Litem]: I have, yes.
The Court: Do you have any objection to this?
[GuaRdian ad Litem]: Well, I -1 don't know -1 do have an objection, I guess, because I think coming from either parent, it's a self-serving statement.
The CouRt: Objection sustained. Proceed.

Although a statement that is "self-serving" is not prohibited under our rules of evidence, nevertheless, Kettner's answer was objectionable on hearsay grounds. This court may sustain a trial court's discretionary determination on a basis independent of that invoked by the trial court. State v. Ralph, 156 Wis. 2d 433, 438, 456 N.W.2d 657 (Ct. App. 1990). The record reflects that the witness was about to recite hearsay testimony gleaned from his son. Indeed, no hearsay exception was offered by Kettner's attorney when an objection was made by the guardian ad litem.

¶ 17. Moreover, Kettner's suggestion in his brief that the only other person who could testify to Scott's wishes was the guardian ad litem is incorrect. Kettner could have requested that his son testify. Kettner chose not to do so.

C. Because no objection was raised to the guardian ad litem's letter, or the guardian ad litem's questioning by the trial court, the issues have been waived.

¶ 18. Finally, Kettner argues that the trial court erred when it permitted the guardian ad litem to "introduce non evidentiary matters." Specifically, Kett-ner complains that a letter authored by the guardian ad litem sent to the attorneys for Kettner and Stelzl was made part of the file and considered by the trial court in reaching its decision, and that the trial court delegated the decision making in this case to the guardian ad litem.

¶ 19. Citing Hollister v. Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992), Kettner states that the guardian ad litem should not have submitted information to the court that contained any new factual information. Further, Kettner points to the trial court's questioning of the guardian ad litem at the close of the hearing as an indication that the trial court delegated to the guardian ad litem the role of fact finder and decision maker.

¶ 20. Kettner has waived his right to address these issues because he failed to object to the trial court's consideration of the contents of the guardian ad litem's letter written, as noted, not to the court, but to opposing counsel. Nor did Kettner object to the court's questioning of the guardian ad litem at the close of testimony. Failure to raise specific challenges in the trial court waives the right to raise them on appeal. State v. Rogers, 196 Wis. 2d 817, 828-29, 539 N.W.2d 897 (Ct. App. 1995).

¶ 21. Moreover, the letter was not an exhibit at the hearing and there is no indication that the guardian ad litem sent the letter in question, written while the matter was pending, to the trial court. It is addressed to the attorneys for both Kettner and Stelzl, and the letter indicates that the only copy was sent to Stelzl. Further, the letter merely sets out the disputes and conflicts as seen by the guardian ad litem and invites responses and assistance from the parties in defusing the animosity between the parties.

¶ 22. For the reasons stated, the trial court's decision is affirmed.

By the Court. — Order affirmed.

FINE, J.

¶ 23. (dissenting). Although I agree with much that the Majority has written, I believe that the trial court did erroneously exercise its discretion in refusing the father's request for an updated psychological evaluation. Accordingly, I respectfully dissent.

¶ 24. First, although the father's affidavit, which is quoted in paragraph 8 of the Majority Opinion, talks of "factual disputes," all of the subparts implicate, to some degree or another, psychological stresses in the boy's life and his ability to cope with those stresses. Second, the initial evaluation was four years old; the boy was eleven and one-half years old when the trial court entered its written order denying the father's request for the updated evaluation. The intervening years are times of stress and turmoil even for children in relatively non-stressful environments. Indeed, even the trial court recognized that the old psychological evaluation was "somewhat stale."

¶ 25. It is true, as the Majority opines, that the trial courts are vested with the initial discretionary determination of contested placement issues. But discretion can only be exercised against a full exposition of the relevant facts. In my view, a four-year-old psychological evaluation of an eleven-year-old child is less than the required full exposition. Simply put, the father was entitled to have the trial court consider all material information. The trial court decided to consider only some of that information, and I would reverse for that reason.

       Both parties wrote the trial court complaining of the delay in scheduling this and other matters. It is unclear from the record who was responsible for the delay. We caution the trial court and attorneys that parties should not have to wait three years to resolve a motion de novo dealing with custody and placement issues, and unreasonable delays, such as those that occurred here, should be avoided.

       It should be noted that other arguments and difficulties arose between the parties, including Kettner's accusations that his wife had failed to disclose an interest she had in her father's business, and fights between the two which led to Kettner's being convicted of battery and disorderly conduct. Kettner also brought a motion for change of placement in 1998 that was dismissed by the assistant family court commissioner.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Stelzl's attorney argued to the trial court that Dr. Cichy did not wish to be involved in this case because a complaint was made about him to the overseeing board by Kettner. This was untrue. The complaint was made on behalf of Stelzl; a fact that her attorney surely should have known, as he wrote the letter. Stelzl's attorney is reminded that, as an officer of the court, he has an obligation to be truthful in his representations made to the court. See SCR 20:3.3(a)(1).

       The trial court was probably referring to a letter in the record from Stelzl claiming she had already spent $20,000 in attorney fees.

       The letter referred to by the trial court was not addressed to the trial court. As will be noted later, it was written to the attorneys.

       Although this testimony came in as an offer of proof pursuant to Wis. Stat. § 901.03, it appears that everyone, including the trial court, treated it as substantive evidence.

       We do agree with Kettner that the trial court's questioning of the guardian ad litem was inappropriate. The dialogue between the trial court and the guardian ad litem appears to ask the guardian ad litem for his opinion of the facts and solicited from him additional information not in the record.
      [Kettner's Attorney]: Your Honor, I have nothing further of this witness, subject to -
      The Court: All right. I've heard your case now, and I got [Stelzl's attorney's] motion.
      [T]here have been several allegations made today. There have been fights at school. The grades aren't good, and he has been taken out of school a number of times. What's [the guardian ad litem's] opinion in this area?
      [Guardian ad Litem]: Your Honor, with regard to the being taken out of school, he was taken on a vacation. He made up the work, and everything got back to normal.
      I think it would be setting a terrible precedent if we allowed custody to be transferred - placement to be transferred if, in fact, there were - the child came out of school.
      The Court: What about the fights?

        [Guardian ad Litem]: Well, that's a matter of debate whether they took place or if they did and what the seriousness of them was. There's a real question. My checking with the school there was no record of it, so -
      The Court: What about the grades?
      [Guardian ad Litem]: Well, again, the grades - If he missed, these papers surely would be incomplete or his progress would be inconsistent. He made up the work, and he's doing much better.
      There's a whole nother' [sic] side to this, Judge. These people have fought like cats and dogs, which could attribute to the reason this young boy wasn't doing well, and Scott as set forth in the letter -1 heard Mr. Kettner in messages, and he's also indicated that his son has the right to hate her new husband, not to be nice to him, not to talk to him, not to do anything for that man because he hates him so much, and Scott's own knowledge of that boy was the hatred that was given to him from his father - tremendous hatred of this man.
      I think Scott if he talked to him -
      The Court: I -1 don't know really. The parties -
      [Guardian ad Litem]: I think maybe that caused the grade downfall.
      The Court: Let me tell you, I have allowed [Kettner's attorney] latitude today because I think that I've got to be concerned about the child. These allegations do not in my mind rise to the cause for changing custody.
      While the guardian ad litem is free to comment on the submitted evidence and make legal arguments, the guardian ad litem is not the final arbiter of the truth. Nevertheless, we are satisfied from our reading of the record that the trial court reached its own independent decision that, based upon the evidence presented, there was insufficient evidence to find a substantial change of circumstances.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    Hoey Outdoor Advertising, Inc., Plaintiff-Respondent, v. Ted Ricci, Defendant-Appellant.
    Court of Appeals

      No. 01-2186.

      Submitted on briefs March 4, 2002.

    Decided April 9, 2002.

    2002 WI App 231
    (Also reported in 653 N.W.2d 763.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jason W. Whitley of Novitzke, Gust, Sempf & Whitley of Amery.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas S. Hornig and Marc T. McCrory of Brennan, Steil, Basting & MacDougall, S.C. of Janesville.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

¶ 1. Ted Ricci appeals from a judgment in favor of Hoey Outdoor Advertising, Inc., that determined Hoey's lease of a billboard on Ricci's property is valid and enforceable. The judgment also requires Ricci to pay Hoey damages for cutting down the billboard and interfering with Hoey's relationship with the company that advertises on the billboard. Finally, the judgment requires Ricci to pay Hoey's costs and reasonable attorney fees because Ricci maintained a frivolous defense.

¶ 2. We affirm the trial court's conclusion that the lease is enforceable and that Ricci is liable for intentional interference with a contractual relationship. We also affirm the court's finding that Ricci offered frivolous defenses to Hoey's claims for declaratory judgment and intentional interference with a contractual relationship. However, we conclude that Ricci's defenses of both the breach of contract claim and Hoey's request for compensatory and punitive damages were not frivolous. We reverse that portion of the judgment requiring Ricci to pay all of Hoey's attorney fees and remand for a determination of the amount of fees solely attributable to Ricci's frivolous defenses. Because we affirm in part and reverse in part, we conclude that Ricci's appeal was not frivolous and therefore deny Hoey's motion for costs and attorney fees associated with this appeal.

Statement of Facts

¶ 3. Hoey is an outdoor advertising business. It owns billboards that are installed on land that Hoey owns or leases from private landowners. In 1996, Hoey entered into a lease with one such landowner, Ida Mesecher, for a term of ten years with an option to renew. The lease was never recorded with the register of deeds.

¶ 4. In March 1998, Mesecher sold her land to Carly Carlson. Carlson sold the land to Ricci in May 1999. At the time of the sale, Hoey's billboard contained an advertisement for non-party Amoco.

¶ 5. Ricci testified that he purchased the land so that he could operate a small used car lot adjacent to the county highway. He said that he learned the land was for sale after talking to a man who lived next to the property. Ricci called Carlson, and the two agreed on a sale price of $1,500. The two arranged for Ricci to close on the property two days later. Ricci and Carlson never toured the property together, and Ricci did not have the land surveyed or seek a title opinion. The day before the closing, Ricci started clearing brush from the property.

¶ 6. The closing took place on May 24. Ricci testified that he was surprised when the deed described three separate parcels of land. Ricci estimated that based on the description in the deed, the property was approximately three times larger than he had anticipated. He returned to the property and measured the land using a tape measure. He noticed the billboard and asked a neighbor whether the billboard was on the neighbor's property. The neighbor indicated that he thought the billboard was on Ricci's land.

¶ 7. Noting that Amoco was advertised on the billboard, Ricci proceeded to the local Amoco station. He learned from two managers that they were paying to rent the sign. He asked if they wanted to sign a lease to rent the sign and they indicated that they already had a lease with Hoey. They directed Ricci to Diane Hoey, who works at Hoey Outdoor Advertising.

¶ 8. Ricci said he called Hoey "to make a lease agreement with her." She told Ricci that she already had a lease. Ricci then contacted an attorney who wrote Hoey a letter stating that because Hoey's lease was not recorded, it did not bind Ricci. Hoey's counsel responded with a letter asserting that the lease was binding, citing Wis. Stat. § 706.09(2)(a), which governs when a conveyance can be taken free of a prior adverse claim. Hoey's counsel asserted that the lease was enforceable against Ricci because even though the lease was not recorded, the billboard gave Ricci constructive notice of the lease.

¶ 9. Hoey subsequently mailed Ricci the annual lease payment. Ricci refused to cash the check, arguing that the lease was not enforceable. Ricci hired another attorney who advised Ricci that he could remove the billboard. In early September, Ricci used a truck to pull the billboard out of the ground. He laid the sign on the ground and left it there.

¶ 10. Hoey filed suit against Ricci alleging breach of contract and intentional interference with a contractual relationship. Hoey also sought a declaration of its right to enforce the lease and both compensatory and punitive damages.

¶ 11. The matter was tried to the court. The trial court found that Ricci had intentionally interfered with Hoey's and Amoco's contractual relationship. The court also declared that the lease was enforceable against Ricci because he had constructive notice of the lease. The court dismissed the breach of contract claim. Finally, the court ordered that the sign be repaired.

¶ 12. With respect to damages, the trial court concluded that Hoey was not entitled to punitive damages. The court awarded Hoey compensatory damages of $1,560 in past and future revenue losses for rental of the sign and $836 in repair costs. The court also concluded that Ricci's defense was frivolous under Wis. Stat. § 814.025(3)(b). Accordingly, the court awarded Hoey costs and reasonable attorney fees. Ricci appealed.

¶ 13. Ricci raises two issues on appeal: (1) whether the lease is binding on Ricci even though the deed did not reveal the lease and he had no knowledge of the lease when he bought the property; and (2) whether his defense was frivolous, given that Hoey sought over $43,000 in compensatory and punitive damages and was ultimately awarded only $2,396 in actual damages at trial.

Discussion

I. Enforceability of the lease

¶ 14. Ricci challenges the lease's enforceability on grounds that he is a good faith purchaser not subject to the unrecorded lease. It is undisputed that because Hoey did not record the lease, it is enforceable against Ricci only if he had affirmative notice of the lease at the time of purchase. The applicable statute is Wis. Stat. § 706.09, which provides in part:

(1) When conveyance is FREE of PRIOR adverse claim. A purchaser for a valuable consideration, without notice as defined in sub. (2), and the purchaser's successors in interest, shall take and hold the estate or interest purported to be conveyed to such purchaser free of any claim adverse to or inconsistent with such estate or interest, if such adverse claim is dependent for its validity or priority upon:
(b) Conveyance outside chain of title not identified by definite reference. Any conveyance, transaction or event not appearing of record in the chain of title to the real estate affected, unless such conveyance, transaction or event is identified by definite reference in an instrument of record in such chain.. ..
(2) Notice of PRIOR claim. A purchaser has notice of a prior outstanding claim or interest, within the meaning of this section wherever, at the time such purchaser's interest arises in law or equity:
(a) Affirmative notice. Such purchaser has affirmative notice apart from the record of the existence of such prior outstanding claim, including notice, actual or constructive, arising from use or occupancy of the real estate by any person at the time such purchaser's interest therein arises, whether or not such use or occupancy is exclusive; but no constructive notice shall he deemed to arise from use or occupancy unless due and diligent inquiry of persons using or occupying such real estate would, under the circumstances, reasonably have disclosed such prior outstanding interest; nor unless such use or occupancy is actual, visible, open and notorious.

¶ 15. Pursuant to Wis. Stat. § 706.09(2)(a), Ricci had affirmative notice of Hoey's prior outstanding claim if (1) Hoey's occupancy was actual, visible, open and notorious; and (2) due and diligent inquiry, under the circumstances, reasonably would have disclosed Hoey's prior outstanding interest. See id. The trial court findings with respect to these issues will be affirmed unless they are clearly erroneous. See Wis. Stat. § 805.17(2).

¶ 16. Ricci does not challenge the trial court's finding that the billboard itself was open and notorious. Rather, he contends that the billboard was not openly and visibly located on Ricci's property. He explains:

The advertising sign was located on the southernmost border of Mr. Ricci's property and the northernmost border of his neighbor's property. ...
The ambiguous location of the outdoor advertising sign gave no reason for Mr. Ricci to believe that Hoey had a possessive interest in his property prior to May 24, 1999, the day he acquired ownership. Mr. Ricci did not have a duty to inquire because the sign was not visibly and openly located on his property, the location was ambiguous and could be misunderstood or misconstrued by any purchaser.

¶ 17. We reject Ricci's argument. Both the billboard and its location were open and obvious. The sign is immobile and was not moved at any time during Ricci's ownership. The only information that was not openly available to passersby was the boundaries of the realty to which the billboard was affixed. Yet Ricci, as the purchaser, had that information. The fact that he chose not to survey the property or investigate the precise location of his boundaries does not negate his affirmative notice under Wis. Stat. § 706.09(2)(a).

¶ 18. In effect, Ricci contends that because the billboard was located near the actual property line, he could not have constructive notice of Hoey's interest in the property. We disagree because due and diligent inquiry, under the circumstances, would reasonably have disclosed Hoey's prior outstanding interest. See § 706.09(2)(a).

¶ 19. A purchaser of land has three sources of information that the purchaser should consult to learn of rights to the land: (1) the records in the office of the register of deeds where the basic rights involved are recorded; (2) other public records to discover rights that usually are not recorded in the office of the register of deeds, i.e., judgments and liens; and (3) the land itself, to discover by observation the rights that arise outside the recording system by virtue of possession or use. Bump v. Dahl, 26 Wis. 2d 607, 614-15, 134 N.W.2d 665 (1965). The purchaser is chargeable with knowledge of the location of the land's boundaries as against third persons. Id. at 615.

¶ 20. Consistent with Bump, Ricci is chargeable with knowledge of the property's boundaries. See id. He chose not to have the property surveyed, and did not attempt to determine the size of the property he was purchasing before closing on the property. We affirm the trial court's findings that Ricci had affirmative notice of Hoey's interest and that the lease is enforceable against Ricci.

II. Ricci's frivolous defense

¶ 21. Ricci appeals the trial court's decision to award Hoey costs and attorney fees pursuant to Wis. Stat. § 814.025(3)(b). An analysis of frivolousness under Wis. Stat. § 814.025(3)(b) presents a mixed question of fact and law. Rabideau v. City of Racine, 2001 WI 57, ¶ 46, 243 Wis. 2d 486, 627 N.W.2d 795. A determination of what the party knew or should have known is a question of fact. Id. A conclusion as to whether what was known or should have been known warrants a finding of frivolousness is a question of law that we review de novo. Id. All doubts on this issue are resolved in favor of the party. Id.

¶ 22. In a written decision, the trial court made the following findings with respect to frivolousness:

After Hoey's attorney set forth the applicable law [in a letter to Ricci], Ricci took it upon himself after consulting with his attorney to remove the sign. As a defense Ricci alleges he was only following the advice of counsel. The Court finds that it is not a defense to plaintiffs claim that Ricci did not know the sign was within the boundaries of the land he purchased. He should have known and he should have determined those boundaries prior to removing the sign. At trial Ricci and his lawyer were unable to advise the Court where the boundary line was. This is not a reasonable basis in law or equity nor is it a good faith argument for an extension, modification or reversal of existing law that would enable Ricci to remove Hoey's sign without affirmatively knowing whether the property was on his land or not. Ricci's attorney should not have authorized the removal of the sign in the face of Wisconsin law. No Wisconsin case stands for the proposition that once visible notice is given by placing a structure on the land, the purchaser can be considered a [bona fide] purchaser for value because he believes the sign is on someone else's land. The defense was frivolous at the time it was filed and got considerably worse through the discovery process and trial.

¶ 23. On appeal, Ricci argues that his defense was not frivolous because he successfully defended the case, reducing his potential liability from $33,000 to under $3,000. He explains:

Mr. Ricci was a defendant to a lawsuit in which the plaintiff was demanding not less than$25,000 in punitive damages. He is entitled to defend himself. During the course of trial the plaintiff asserted that they suffered damages in excess of $18,000. After the conclusion of trial, the plaintiff was awarded less than $3,000 in actual damages. Any defense which defeats a claim of more than $43,000 and reduces the amount of the actual judgment to under $3,000 [cannot] be frivolous.

¶ 24. Ricci also asserts that his defense was not frivolous because there was a legitimate dispute whether he had actual notice pursuant to Wis. Stat. § 706.09. He states:

The trial court concluded that the location of the sign on the property was ambiguous and subject to misunderstanding. This finding is in Mr. Ricci's favor and actually supports Mr. Ricci's defense. A defense in which the fact finder decides the facts in accordance with the defendant's own version of facts [cannot] be frivolous.

¶ 25. In response, Hoey argues that Ricci's defense was frivolous because he "knew of Hoey's rights and its leasehold [interest] prior to removing the sign, removed it nonetheless, and then wanted to fall back on his own ignorance as a defense. Such a position is patently frivolous." Hoey continues:

On appeal, Ricci convolutes logic further by arguing that since he did not lose even more on damages, his defense was therefore not frivolous. One is always free to argue on damages and concede on liability. Mr. Ricci concedéd nothing. Rather, he frivolously defended liability and lost. That the court awarded less in damages does not somehow make his frivolous liability defense less frivolous.

¶ 26. We conclude that Ricci offered frivolous defenses to Hoey's claims for declaratory judgment and intentional interference with a contractual relationship. First, as discussed earlier, Ricci's defense to the enforceability of the lease was that although the sign itself was open and obvious, the lot to which it was affixed was not obvious because the sign was located near the lot line. We agree with the trial court that Ricci's defense of the declaratory judgment claim was frivolous. Ricci still does not claim to know whether the sign is on his land. Moreover, he cites no authority for the proposition that affirmative notice provided by an open and obvious occupancy is negated by the purchaser's ignorance of the property's boundaries.

¶ 27. Ricci's defense of Hoey's claim for intentional interference was also frivolous. The elements of tortious interference with a contractual relationship are: (1) the plaintiff had a contract or prospective contractual relationship with a third party; (2) the defendant interfered with the relationship; (3) the interference was intentional; (4) a causal connection exists between the interference and the damages; and (5) the defendant was not justified or privileged to interfere. Dorr v. Sacred Heart Hosp., 228 Wis. 2d 425, 456-57, 597 N.W.2d 462 (Ct. App. 1999). Ricci offered no defense to the first four elements; it is undisputed that he knew Amoco was leasing the billboard, that he intentionally took down the billboard and that Hoey lost revenue as a result of the billboard's dismantling. Ricci's defense was that he was privileged to interfere because he was not subject to the unrecorded lease.

¶ 28. Ricci's theory, both at trial and on appeal, is that when he removed the sign, he believed his interest in the property was superior to that of Hoey's. Even if Ricci would be entitled to simply remove the billboard if he were not subject to the lease (an issue we decline to address), his argument fails because he admitted at trial that he did not know whether the billboard was on his property at the time he removed the sign, and still did not know as of the time of trial whether the billboard was on his land. Ricci's failure to determine this fact makes his defense of the intentional interference claim frivolous.

¶ 29. Although we agree that two of Ricci's defenses were frivolous, we disagree with Hoey that all of Ricci's defenses were frivolous. First, although neither party discusses it, the trial court dismissed Hoey's breach of contract claim. Hoey has not appealed that decision. Thus, Ricci successfully litigated his liability for one of the three claims presented.

¶ 30. Second, we agree that Ricci was entitled to defend on the damages issue. He successfully contested his liability for punitive damages and was found liable for only a fraction of the compensatory damages that Hoey sought. Ricci's defense on the damages issue was not frivolous.

¶ 31. Our decision that only two of Ricci's defenses were frivolous does not preclude an award of costs and attorney fees. In Stoll v. Adriansen, 122 Wis. 2d 503, 511, 362 N.W.2d 182 (Ct. App. 1984), we concluded that a reasonable and sensible reading of Wis. Stat. § 814.025 (1983-84), requires courts to separately consider the frivolousness of various claims that constitute an action or a defense. Applying Stoll, we have determined that where a circuit court erroneously concludes that one of two claims is frivolous, it is appropriate to remand to the circuit court with directions to determine and enter judgment for defendant's fees and costs solely attributable to the frivolous claim. See Blakenship v. Computers & Training, Inc., 158 Wis. 2d 702, 710, 462 N.W.2d 918 (Ct. App. 1990).

¶ 32. We conclude that the same approach is appropriate here. Because Ricci's defenses of the declaratory judgment and intentional interference claim were frivolous, Hoey is entitled to costs and reasonable attorney fees solely attributable to Ricci's frivolous defenses. See id.; see also Wis. Stat. § 814.025(1).

Conclusion

¶ 33. We reverse that portion of the judgment concluding that Ricci's entire defense was frivolous and remand for a determination of the costs and attorney fees solely attributable to Ricci's frivolous defenses. We affirm the judgment in all other respects. Because we affirm in part and reverse in part, we conclude that Ricci's appeal was not frivolous and therefore deny Hoey's motion for costs and attorney fees on appeal. See Lenhardt v. Lenhardt, 2000 WI App 201, ¶ 16, 238 Wis. 2d 535, 618 N.W.2d 218 (We may not award fees under Wis. Stat. Rule 809.25(3) unless the entire appeal is frivolous.).

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions. No costs to either party.

       All statutory references are to the 1999-2000 version unless otherwise indicated.

       It appears undisputed that following this communication, Ricci's attorney told him that he should not remove the sign. Ricci subsequently discharged this attorney and ultimately hired another attorney, who represented him at trial.

       At trial, counsel for Ricci acknowledged that one of the attorneys in his firm had advised Ricci that he could take the billboard down.

       Ricci does not challenge the trial court's finding that he intentionally interfered with the contractual relationship between Hoey and Amoco. He also does not challenge the amount of the compensatory damages award. Accordingly, those portions of the judgment are affirmed. ,

       Ricci does not challenge the lease on other grounds. Because we conclude that Ricci had affirmative notice of the lease, we affirm the trial court's conclusion that the lease is enforceable.

       Wisconsin Stat. § 814.025 provides in relevant part:
      Costs upon frivolous claims and counterclaims. (1) If an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense or cross complaint commenced, used or continued by a defendant is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees.

        (3) In order to find arf action, special proceeding, counterclaim, defense or cross complaint to be frivolous under sub. (1), the court must find one or more of the following:
      (b) The party or the party's attorney knew, or should have known, that the action, special proceeding, counterclaim, defense or cross complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

       We will not decide issues based on hypothetical or future facts. State v. Simonetto, 2000 WI App 17, 232 Wis.2d 315, ¶ 4 n.1, 606 N.W.2d 275.

       In Stoll v. Adriansen, 122 Wis. 2d 503, 362 N.W.2d 182 (Ct. App. 1984), the court also held that although the plaintiffs' claim was brought primarily to harass the defendant, the fact that they also sought monetary damages precluded a finding of frivolousness. Id. at 514 n.5. Subsequently, the supreme court implicitly overruled this holding, recognizing that "a claim of frivolousness under sec. 814.025(3)(a), Stats., does not fail merely because a party happens to seek a monetary judgment." Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 240 n.6, 517 N.W.2d 658 (1994). However, Stern did not address Stoll's holding that courts should separately consider the frivolousness of various claims that constitute an action or defense. See Stoll, 122 Wis. 2d at 511.

       Unlike claims at the trial court level, this court does not consider whether an appeal may be partially frivolous.


author: ROGGENSACK, J.

text:
    Linda A. Ande, Charles Ande, C.E.A., a minor, and C.L.A., a minor, Plaintiffs-Appellants, v. Michael Rock, Norman C. Fost, Philip M. Farrell, Elaine H. Mischler, Richard A. Aronson, and Anita Laxova, Defendants-Respondents, UW Hospital and Clinics, UW Medical School, Wisconsin Department of Health & Social Services, Medical College of Wisconsin-Milwaukee, Wisconsin State Laboratory of Hygiene, State of Wisconsin, Ronald Laessig, Karen Keil, M. Cotler, C. Kelly, S. Allard, Ellen Connor, David B. Allen, E. Connor, Tom Murwin, L. Reimann, Gordon Tuffli, Gurbax Sekhom, Michael R. Kosorok, Rebecca E. Koscik, Mark Splaingard, C. Green, M. Palta, A. Tluczek, M. Block, L. A. Davis, B. S. Wilfond, W. Gershan, L. Rusakow, G. Hoffman, D. J. Hassemer, John Doe, Jane Doe, XYZ Funding Agency, Connecticut General Life Insurance Company, ABC Insurance Company, and Unity Health Plans, Defendants.
    Court of Appeals

      No. 01-1009.

      Submitted on briefs October 5, 2001.

    Decided May 16, 2002.

    2002 WI App 136

      (Also reported in 647 N.W.2d 265.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Paul A. Kinne and Michael J. Luebke of Gingras, Cates & Luebke, S.C. of Madison.
    On behalf of the defendant-respondent Richard A. Aronson, the cause was submitted on the brief of Kristine A. Edwards and Marie A. Stanton of Hurley, Burish & Milliken, S.C. of Madison.
    On behalf of the defendants-respondents Michael Rock, Norman C. Fost, Philip M. Farrell, Elaine H. Mischler, and Anita Laxova, the cause was submitted on the brief of James E. Doyle, attorney general and John J. Glinski, assistant attorney general.
    Before Dykman, Roggensack and Deininger, JJ.

       Petition to review denied 7-26-02.

   ROGGENSACK, J.

¶ 1. Linda A. Ande, Charles Ande and their minor children, C.E.A. and C.L.A. who suffer from cystic fibrosis, brought suit against individual defendants, all of whom are state employees, and certain institutions alleging numerous state and federal claims related to the children's cystic fibrosis. The circuit court dismissed all of the state claims, except those for medical malpractice, after concluding that notice pursuant to Wis. Stat. § 893.82(3) (1995-96) for those state claims had not been timely given. In regard to the medical malpractice claims, the circuit court dismissed them because there was no showing of a physician-patient relationship between the remaining physician-defendants and any plaintiff. The circuit court also dismissed the federal claims, doing so on the basis of qualified immunity because the plaintiffs had not shown that any plaintiff had a clearly established right that any defendant's conduct violated. On appeal, the plaintiffs do not contest the circuit court's decision on the lack of timely notice under § 893.82(3). Plaintiffs bring before us for review only their claims for medical malpractice and their federal claims. Because we conclude that plaintiffs have made no showing of a physician-patient relationship with any remaining defendant, which relationship is necessary to support a medical malpractice claim, and that plaintiffs have made no showing of a clearly established state property right or a clearly established state or federal liberty interest that any named defendant's conduct violated, we affirm the judgment and order of the circuit court.

BACKGROUND

¶ 2. C.E.A. was born to Linda and Charles Ande on July 13, 1993. There was then ongoing a cystic fibrosis research project which had begun in 1985. Philip Farrell and Norman Fost were the co-investigators. To test for the presence of factors indicative of cystic fibrosis, the study used excess blood that had been drawn from all newborns to conduct statutorily required tests for the presence of other congenital and metabolic disorders. The research protocol required that the parents of half of the newborns in the study were told if their child tested positive for cystic fibrosis. A nutritional plan was made available to them immediately, as it was the researchers' theory that treating the nutritional needs of children with cystic fibrosis before they became symptomatic would result in a less vigorous development of the disease with fewer impairments to overall health. The other half of the children who were tested were placed in the "blinded control" group. Their parents and their treating physicians were not. told if they had tested positive for factors indicative of cystic fibrosis. C.E.A. was placed in the blinded group, and therefore, her parents and her primary physician, Dr. Amy Plumb, were not told that she had tested positive.

¶ 3. Prior to testing the blood of newborns for cystic fibrosis, a pamphlet was prepared that told about the different tests that were required to be completed on newborns' blood. It also told of the cystic fibrosis test that would be run as part of a research project. It described the dangers of cystic fibrosis and stated that cystic fibrosis was an inherited disorder. The pamphlet also arguably implied that positive test results would be reported to the infant's physician, and a phone number was listed for parents who wanted additional information about the test. There is no assertion that the Andes were asked for or gave specific, written consent to have the cystic fibrosis test run on C.E.A. or to have the results of that test go unreported to them.

¶ 4. Subsequent to birth, C.E.A. had difficulties thriving. On June 23, 1995, when C.E.A. was almost two years old, she was diagnosed with cystic fibrosis. At the time that the Andes learned that C.E.A. had cystic fibrosis, Linda Ande was pregnant with a second child. The Andes' second child, C.L.A., is also afflicted with cystic fibrosis.

¶ 5. In this lawsuit, the Andes' allegations may be summarized into the assertion that the defendants committed three wrongful acts that give rise to the Andes' various claims: (1) The cystic fibrosis test was run without their informed consent; (2) treatment was withheld from C.E.A. when the investigators had knowledge that nutritional treatment would reduce the severity of her cystic fibrosis; and (3) C.E.A.'s test results were withheld from them. They allege to have been harmed by these acts in two ways: (1) If they had been given the test results, they would have accepted treatment for C.E.A. to lessen the severity of the progression of her illness; and (2) if they had been given the test results, they would not have conceived C.L.A. They do not identify any harm they suffered from the alleged lack of informed consent to run the test in the first instance.

¶ 6. In response, the defendants assert that they did not test C.E.A.'s blood without the Andes' knowledge and consent. They also contend that although all the children in the blinded control group were tested as newborns, no one reviewed the test results for the control group, some of which were negative and some of which were positive for factors indicative of cystic fibrosis. Therefore, the defendants contend they did not withhold information from the Andes. The defendants also raised many affirmative defenses, including failure to state a claim and qualified immunity.

¶ 7. After some discovery had been completed, the defendants moved for summary judgment, which the circuit court granted. It concluded that the plaintiffs gave Wis. Stat. § 893.82(3) notice too late to preserve their state claims, except for medical malpractice, and that the Andes' medical malpractice claims could not proceed because none of the remaining defendants had a physician-patient relationship with any plaintiff. The circuit court also dismissed plaintiffs' federal claims on the basis of qualified immunity. The plaintiffs moved for reconsideration and the circuit court denied their motion. The plaintiffs appeal only the dismissal of their medical malpractice claims and their federal claims.

Standard of Review.

¶ 8. It is well established that we apply the same summary judgment methodology as the circuit court. Smith v. DodgevilleMut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. Id. If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute which entitle the opposing party to a trial. Id.

¶ 9. Whether the Andes have shown the existence and deprivation of a clearly established right by citing "closely analogous" cases that would give a reasonable public official notice that his or her actions clearly violated a right protected by the United States Constitution or by a federal statute is also a question of law. See Hunter v. Bryant, 502 U.S. 224, 227-28 (1991) (per curiam); Burkes v. Klauser, 185 Wis. 2d 308, 327-32, 338-39, 517 N.W.2d 503, 511-13, 516 (1994).

Medical Malpractice.

¶ 10. Medical malpractice arises when a physician fails to exercise that degree of care and skill usually employed by the average practitioner under similar circumstances. See Johnson v. Misericordia Cmty. Hosp., 97 Wis. 2d 521, 543-44, 294 N.W.2d 501, 513 (Ct. App. 1980), aff'd, 99 Wis. 2d 708, 301 N.W.2d 156 (1981). Whether a suit for malpractice will lie against a specific physician depends upon whether there is a physician-patient relationship between that physician and the complainant. See, e.g., Froh v. Milwaukee Med. Clinic, S.C., 85 Wis. 2d 308, 311, 270 N.W.2d 83, 84 (Ct. App. 1978). A physician-patient relationship is a trust relationship, created when professional services are provided by a physician and accepted by a patient. See Brown v. Dibbell, 227 Wis. 2d 28, 46-47, 595 N.W.2d 358, 368 (1999). Only a physician "who treats a patient" is charged with a statutory duty to inform the patient about treatment modalities and the benefits and risks of those treatments. Wis. Stat. § 448.30.

¶ 11. Our summary judgment review starts with an examination of the Second Amended Complaint relative to the physicians against whom the Andes maintain claims in this appeal. While the first claim for relief is styled "MEDICAL MALPRACTICE," the substantive allegations of wrongdoing focus only generally on "the defendants." Paragraph 41 alleges "negligence" due to the "failure to obtain informed consent from the Andes before proceeding with the study and [the] failure to timely diagnosfe] and inform the Andes that C.E.A. had cystic fibrosis." (Footnote added.) Paragraph 40 also incorporates all allegations made in paragraphs 1-39, none of which describes the provision or receipt of medical services or the request for services that were not provided. The general tenor of those paragraphs is that defendants had information that they had a duty to disclose to plaintiffs. In sum, the medical malpractice claim is based on the alleged failure to obtain informed consent to run the test in the first instance and the failure to provide information after it was run. However, even if we were to assume arguendo that the researchers had a duty to obtain informed consent from the Andes, that the pamphlet that was provided was insufficient to do so, and that the researchers had a duty to share what information was available to them with the Andes, there is no allegation in the complaint of any relationships between the Andes and any of the researchers from which one could conclude that such duties arose from a physician-patient relationship, rather than from ordinary negligence principles.

¶ 12. Additionally, uncontradicted materials submitted in the circuit court by the respondents during the summary judgment proceedings show that Aronson is the Chief Medical Officer for Family and Community Health for the Wisconsin Division of Public Health within the Wisconsin Department of Health and Family Services. He was not engaged in the practice of medicine, did not render primary care to any patients and had no authority or responsibility to direct or control the cystic fibrosis research study which is central to this lawsuit. All of the remaining defendants appear to have been connected with the cystic fibrosis research project in some manner, but they had no relationship with the Andes. For example, Farrell was the Dean of the University of Wisconsin Medical School and, together with Fost, was a co-investigator for the cystic fibrosis study. Plaintiffs have provided no affidavit or other eviden-tiary proof to show any physician-patient relationship between the Andes and any defendant who is subject to this appeal. Accordingly, we conclude that the circuit court correctly dismissed plaintiffs' claims for medical malpractice.

Federal Claims.

¶ 13. The Andes' federal claims invoke 42 U.S.C. § 1983 (1994). They claim a due process violation because the defendants deprived them of their liberty and property interests by arbitrarily placing C.E.A. in the blinded control group of the cystic fibrosis study and by withholding her test results from them for almost two years, during which time beneficial treatment was withheld from C.E.A. and the Andes conceived another child who also has cystic fibrosis. The respondents contend that the Andes' claims may not proceed because they are protected by qualified immunity.

1. 42 U.S.C. § 1983 overview.

¶ 14. Section 1983, in and of itself, does not create substantive rights; rather, it provides a remedy for the deprivation of rights that are established elsewhere. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979). In a § 1983 claim that alleges a violation of either procedural or substantive due process, a plaintiff must show a deprivation of an interest in life, liberty or property that is protected by the Constitution. Penterman v. Wisconsin Elec. Power Co., 211 Wis. 2d 458, 473, 565 N.W.2d 521, 533 (1997). Although the Andes allege the deprivation of substantive rights, based on what they characterize as the withholding of medical information about C.E.A., they are not clear about whether their due process claims implicate a property interest or a liberty interest. We will examine each interest in turn.

2. Qualified immunity overview.

¶ 15. Qualified immunity may preclude claims against a government official for the performance of discretionary functions if the official's conduct does not violate a clearly established federal statutory or constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Penterman, 211 Wis. 2d at 469, 565 N.W.2d at 528. Additionally, even though qualified immunity is an affirmative defense, a plaintiff must be able to demonstrate by closely analogous case law that the defendant's alleged conduct constituted a violation of a federal statutory or constitutional right that was clearly established at the time the acts occurred. Penterman, 211 Wis. 2d at 469, 565 N.W.2d at 528. Accordingly, if a reasonable person in the position of the defendants could have believed that the manner in which he or she conducted the cystic fibrosis study did not violate the plaintiffs' rights at the time the test on C.E.A. was conducted and that not informing the Andes of the test results until 1995 did not violate the Andes' liberty or property interests, qualified immunity protects the defendants from liability arising from the Andes' claims brought under federal law. See Hunter, 502 U.S. at 227-28. "The qualified immunity standard 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law." Id. at 229 (quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986)).

3. Violation of a clearly established right,

a. Property interest.

¶ 16. The first step in our analysis is to determine whether the Andes had a substantive property right to receive the results of C.E.A.'s cystic fibrosis test at or near the time it was performed. See Arneson v. Jezwinski, 225 Wis. 2d 371, 386, 592 N.W.2d 606, 613 (1999). Substantive property interests are created exclusively under state law. Id. Therefore, in order to determine whether the Andes had a substantive property interest in the test results, we look to Wisconsin law. However, federal constitutional law determines whether a state-created property interest rises to a "legitimate claim of entitlement" under the Due Process Clause of the United States Constitution. Id. (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978)). Federal law also determines how much procedural due process must be provided before one may be deprived of a protected property right. Arneson, 225 Wis. 2d at 386, 592 N.W.2d at 614.

¶ 17. Because a qualified immunity analysis examines the status of the right asserted at the time it was allegedly denied, we must determine whether prior to June 26, 1995, the Andes had a property right under Wisconsin law, that was then clearly established, to have received the test results. The Andes have cited no Wisconsin case to us which holds that they had a property interest in the test results of the cystic fibrosis study, nor have they cited any cases which are closely analogous. Additionally, our research has uncovered no such Wisconsin case that predates the disclosure of the information to the Andes in 1995. Accordingly, we conclude there was no such property right under Wisconsin law that was clearly established prior to June 26, 1995 when the test results were disclosed. Accordingly, the Andes have failed to establish the first step necessary to a due process claim based on the deprivation of a clearly established property right and therefore, their claim in this regard was properly dismissed.

b. Liberty interest.

¶ 18. The Andes also allege a constitutional violation of a liberty interest based on the failure to obtain informed consent for the testing that was done, as well as on the alleged failure to disclose information. Liberty interests may arise under either state or federal law. For example, the Fourteenth Amendment of the United States Constitution protects an "individual interest in avoiding disclosure of personal matters." Hillman v. Columbia County, 164 Wis. 2d 376, 400, 474 N.W.2d 913, 922 (Ct. App. 1991) (quoting Whalen v. Roe, 429 U.S. 589, 599-600 (1977)). This personal liberty interest arises from a "guarantee" under federal law of certain zones of privacy. Roe, 429 U.S. at 598-600 & n.23. The Supreme Court has also recognized that there is a constitutionally protected liberty interest in bodily integrity and in the right to determine what medical treatment shall be accepted or refused, see Washington v. Glucksberg, 521 U.S. 702, 777 (1997) (Souter, J., concurring), and that parents have a constitutionally protected right to obtain needed medical treatment for their child so long as the child's rights are protected by the process employed. See Parham v. J.R., 442 U.S. 584, 602 (1979). While neither the Wisconsin Supreme Court nor the United States Supreme Court has yet addressed whether there is a constitutionally protected liberty interest in receiving information from a research project relative to one's genetic predisposition to give birth to a child with a genetically transmitted disorder or in receiving information from a research project that would assist a parent in making informed health care choices for his or her child, we cannot say with certainty that the withholding of the results of C.E.A.'s test did not implicate a liberty interest in either the parents or C.E.A. Therefore, for purposes of our discussion we shall assume, without deciding, that a liberty interest could be established if this case were to go to trial.

¶ 19. Once a liberty interest has been established, it may not be denied without a constitutionally acceptable amount of procedural due process. Arneson, 225 Wis. 2d at 399, 592 N.W.2d at 619. In regard to the alleged failure to obtain informed consent before the cystic fibrosis test was run in the first instance, the Andes base none of their claimed injuries on an unauthorized disclosure of private information, as they might if the researchers had disclosed C.E.A.'s condition to third parties. And they identify no harm that they suffered by not giving consent to the test in the first instance. For example, they do not allege that they would not have permitted the test if they had known it was being conducted. Instead, all of their alleged injuries flow from not having the results of the test at or near the time it was conducted. Therefore, we will not address their claims in regard to an alleged lack of informed consent further.

¶ 20. We now turn to the alleged failure to timely disclose the results of C.E.A.'s cystic fibrosis test. The closest the Andes come in making an argument that the alleged failure to disclose was a clear violation of their rights is to contend that one of the defendants, Richard Aronson, as the Medical Director for the Wisconsin Newborn Screening Program conducted under the direction of the Wisconsin Department of Health and Family Services, had a statutory duty under Wis. Stat. § 253.13(5) to disclose the results of the testing for congenital disorders. Section 253.13(5) stated in relevant part:

The department shall disseminate information to families whose children suffer from congenital disorders and to women of child-bearing age with a history of congenital disorders concerning the need for and availability of follow-up counseling and special dietary treatment and the necessity for testing infants. The department shall also refer families of children who suffer from congenital disorders to available health and family services programs and shall coordinate the provision of these programs. The department shall periodically consult appropriate experts in reviewing and evaluating the state's infant screening programs.

In 1993, the year C.E.A. was born, Wis. Admin. Code § HSS 115.04 (1993) set out the tests to be done and for which information was required to be provided under § 253.13. Cystic fibrosis was not then a required test under § HSS 115.04. By emergency rule, effective January 31, 1995, cystic fibrosis was added to the list of tests that were required to be performed on newborns, see § HSS 115.04 (1995), and the Andes were not given C.E.A.'s test results until mid-1995. However, even if we were to conclude that § 253.13 could be construed to implicate a liberty interest in receiving the results of a cystic fibrosis test conducted a year before the testing and reporting of the results became mandatory, the failure to disclose cannot be said to rise to the level of a violation of a "clearly established" right because there is no closely analogous case law which interprets § 253.13 to require the disclosure of tests run before the statute and applicable administrative rules required them.

¶ 21. The Andes also allege a "general" violation of substantive due process, claiming that the actions of the defendants were arbitrary and capricious in the way in which they selected C.E.A for the control group and failed to disseminate the information they had about her. Substantive due process protects individuals from arbitrary, wrongful, governmental actions regardless of the process afforded prior to the deprivation. Penterman, 211 Wis. 2d at 480, 565 N.W.2d at 533. The Supreme Court has repeatedly explained that the touchstone of substantive due process is the protection of the individual against arbitrary action of government. County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). Substantive due process protects against governmental actors who engage in conduct that "shocks the conscience" or conduct that interferes with rights "implicit in the concept of ordered liberty." Id. at 846-47 (quoting Rochin v. California, 342 U.S. 165, 172 (1952)). However, even so generalized a claim of protection still requires the identification of a clearly protected interest that the actor's conduct violates. Due process claims are not a substitute for general tort claims. Lewis, 523 U.S. at 846 n.8. The Andes have failed to identify any . Wisconsin or federal case law clearly establishing such an interest. Therefore, we conclude that qualified immunity bars all their federal claims.

CONCLUSION

¶ 22. Because we conclude that plaintiffs have made no showing of a physician-patient relationship with any remaining defendant, which relationship is necessary to support a medical malpractice claim, and that plaintiffs have made no showing of a clearly established state property right or a clearly established state or federal liberty interest that any named defendant's conduct violated, we affirm the judgment and order of the circuit court.

By the Court. — Judgment and order affirmed.

       All references to. the Wisconsin Statutes are to the 1995-96 version unless otherwise noted.

       Numerous defendants were voluntarily dismissed by stipulation both before and after the circuit court's decision on defendants' summary judgment motion. Additionally, appellants have chosen not to appeal the circuit court's decision as to many other defendants. Consequently, this appeal involves the appeal of claims against only the following defendants: Michael Rock, Norman C. Fost, Philip M. Farrell, Elaine H. Mischler, Richard A. Aronson and Anita Laxova.

       The brochure was revised numerous times, with differing disclosures listed in each version. The edition that plaintiffs' attorneys aver was presented to the Andes states:
      One-half of the blood samples are tested for CF before the babies are one month old. The remaining blood samples are partially tested at this time. Testing on these blood samples is completed when the children are 4 years old. Positive test results are reported to your child's doctor.
      If the CF research test is done, you may contact your doctor, certified nurse-midwife, or the CF specialist at (608) 263-8555 for the result.

       There is a clear factual dispute on what defendants knew and when they knew it, but it relates only to the plaintiffs' state claims such as the alleged breach of the researchers' duty to warn. Because the plaintiffs have not appealed the circuit court's decision that notice of claim was given more than 120 days after these state claims arose, this factual dispute is not material to the disposition of the appeal.

       A notice of claim for medical malpractice against these defendants could have been filed up to 180 days after it arose. Wis. Stat. § 893.82(5m). A notice of claim for other types of negligence must have been filed within 120 days. Section 893.82(3). This longer period for filing a notice of claim under subsection (5m) was the basis for the circuit court's conclusion that the notice of claim for medical malpractice was timely.

       For example, whether the allegations in the complaint are sufficient to give rise to a physician-patient relationship supportive of a malpractice claim is a question of law we review de novo.

       This part of the claim was initially focused on Dr. Amy Plumb and others who treated C.E.A. However, Dr. Plumb was dismissed by stipulation prior to the circuit court's decision on summary judgment, and the Andes have accepted the dismissal of all of the other physicians who were involved in C.E.A.'s treatment.

       42 U.S.C. § 1983 (1994) provides in relevant part:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

       Paragraph 34 of the Second Amended Complaint alleges that "[t]he Andes had a property and/or liberty interest in knowing that C.E.A. was being placed in the study at the time she was placed in it; in knowing the nature of the study and the ramifications of participation before C.E.A. was placed in the study; and in knowing that she had cystic fibrosis at or near the time that diagnosis was made." In paragraph 75, the Andes allege that they were denied "their property right to information about C.E.A.'s medical condition (cystic fibrosis)." And paragraph 76 alleges that the defendants denied the Andes' children their "respective liberty interests in maintaining their health and their bodily integrity."

       The Andes learned the results of C.E.A.'s initial cystic fibrosis test on June 26, 1995; however, she was diagnosed with cystic fibrosis on June 23, 1995, through tests run on that date.

        See State ex rel. Gendrich v. Litscher, 2001 WI App 163, ¶ 6, 246 Wis. 2d 826, 632 N.W.2d 878 (state liberty interests are decided on a case-by-case basis).

        See Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 278 (1990) (a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment); Harris v. McRae, 448 U.S. 297, 311-12 (1980) (liberty interests protected by the Due Process Clause include a freedom of personal choice in certain matters of marriage and family life).

       We note that developing appropriate recommendations for obtaining adequate informed consent when gathering tissue samples that may later be used for genetic studies and determining when additional consent should be required for tissue samples already collected have been the subject of some debate. See Ellen Wright Clayton et al., Informed Consent for Genetic Research on Stored Tissue Samples, 274 JAMA 1786 (1995). Additionally, at the time relevant to the Andes' claims, federal law permitted certain research on some types of tissue samples without informed consent, if the tissue samples had already been collected and the subjects from whom the samples had been obtained could not be identified. See 45 C.F.R. § 46.101(b)(4) (1994).

       In 1993, Wisconsin law required screening of all newborns in the state for biotinidase deficiency, congenital adrenal hyperplasia, congenital hypothyroidism, galactosemia, phe-nylketonuria and sickle cell disease. See Wis. Stat. § 253.13 (1993-94); Wis. AdmiN. Code § HSS 115.04 (1993).

       According to Aronson's deposition testimony and affidavit, routine screening for cystic fibrosis actually commenced in April 1994, which was several months prior to the effective date of the emergency rule.

       The Andes do not address the circuit court's denial of their motion for reconsideration as a separate argument. Therefore, we conclude that there was no erroneous exercise of discretion in denying the motion, for the reasons stated above.


author: FINE, J.

text:
    Mary B. Anderson, individually and as special administrator of the estate of Jerold W. Anderson, Plaintiff-Respondent, v. Combustion Engineering, Inc., Defendant-Appellant.
    Court of Appeals

      No. 01-1518.

      Oral argument May 7, 2002.

    Decided May 21, 2002.

    2002 WI App 143
    (Also reported in 647 N.W.2d 460.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph A. Weber and Colleen D. Ball of Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee, and Steven J. Kirsch of Murnane, Conlin, White & Brandt, BA., St. Paul, Minnesota. There was oral argument by Steven J. Kirsch.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jill A. Rakauski of Cascino Vaughan Law Offices, Ltd., Chicago, Illinois. There was oral argument by Kevin McHargue of Baron & Budd, Dallas, Texas.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.
   FINE, J.

¶ 1. Combustion Engineering, Inc., appeals from a judgment entered on a jury verdict finding it twenty-nine percent responsible for Jerold Anderson's lung-cancer death. It also appeals from the trial court's related orders. The crux of Combustion Engineering's argument on this appeal is that there was insufficient expert-evidence linking asbestos in its boilers to Mr. Anderson's mesothelioma to support the jury's verdict. We affirm.

I.

¶ 2. Jerold Anderson worked for many years as a machinist for the Wisconsin Electric Power Company at its Oak Creek power plant. There were eight coal-fired boilers at the plant during this time. The boilers were very large — some seven stories tall. Six of the eight boilers were made by Combustion Engineering or its predecessor. Combustion Engineering's boilers were insulated with asbestos. There were many sources of asbestos at the Oak Creek plant when Mr. Anderson worked there. He died of malignant mesothelioma in 1998. The parties agree that asbestos can cause me-sothelioma.

¶ 3. Mary Anderson, Jerold Anderson's wife, individually and as special administrator of his estate, sued Combustion Engineering and many other companies that she contended were responsible for asbestos contamination at the Oak Creek plant and, therefore, her husband's death. She settled with all but Combustion Engineering. Including Combustion Engineering, there were eleven defendants on the special verdict form submitted to the jury. As noted, Combustion Engineering claims that there was insufficient expert-evidence linking asbestos in its boilers to Mr. Anderson's me-sothelioma to support the jury's verdict.

II.

¶ 4. When assessing a contention that a jury's verdict is not supported by the evidence, our scope of review is limited.

If there is any credible evidence that will support the jury's verdict, the verdict must be affirmed. We must review a jury's verdict with great deference and indulge in every presumption in support of the verdict. This presumption is even more true when the verdict has the trial court's approval.

Anderson v. Alfa-Laval Agri, Inc., 209 Wis. 2d 337, 352, 564 N.W.2d 788, 795 (Ct. App. 1997) (internal citations omitted). Additionally, in Wisconsin, unlike some other jurisdictions including the federal courts, see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590-595 (1993) (trial judges must scrutinize scientific expert testimony to ensure that it has evidentiary reliability); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-149 (1999) (Daubert applies to all expert opinion offered under Rule 702 of the Federal Rules of Evidence); Fed. R. Evid. 702 (requiring that proffered expert testimony must be: (1) "based upon sufficient facts or data"; (2) "the product of reliable principles and methods"; and (3) based on the witness's application of those "principles and methods reliably to the facts of the case"), Wis. Stat. Rule § 907.02 sets a fairly low threshold for the admissibility of opinion evidence that is beyond the presumed ken of ordinary jurors. Martindale v. Ripp, 2001 WI 113, ¶ 68, 246 Wis. 2d 67, 105, 629 N.W.2d 698, 715 ("The standard in this state for the admission of expert testimony is not stringent."). Moreover, a jury is entitled to draw reasonable inferences from expert testimony even if, at first blush, it may appear that the jury's conclusions based on those inferences require proof by specialized expert testimony. Id., 2001 WI 113 at ¶ 65.

¶ 5. Martindale held that the trial court erroneously exercised its discretion in excluding testimony by an oral and maxillofacial surgeon that an automobile accident was a cause of Martindale's temporomandibular-joint injuries. Id., 2001 WI 113 at ¶ 4. Holding that the oral surgeon should have been permitted to give this opinion, Martindale disagreed with the view, as expressed by the unpublished court of appeals decision affirming the trial court's exclusion of the evidence, that there " 'was no evidence'" that the physician " '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."" Id., 2001 WI 113 at ¶ 43. Martindale explained:

An accident reconstruction expert or an expert in kinematics is not required for an elementary 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. Requiring specialized expert testimony beyond a medical expert in relatively simple automobile accident situations would escalate the cost of presenting personal injury cases without adequate justification. In short, it would present a serious issue in the administration of the legal system.

Id., 2001 WI 113 at ¶ 65. Thus Martindale's rationale applies with equal force here and we examine the evidence in support of the jury's verdict against this background.

¶ 6. The following evidence and the reasonable inferences the jury could draw from it support the jury's verdict:

Victor Roggli, M.D., a board certified pathologist, the lead author of the textbook Pathology of Asbestos Associated Diseases, and a specialist in mesothelioma, testified that Mr. Anderson died of mesothelioma as a result of Mr. Anderson's "prior exposure to asbestos";
Dr. Roggli testified that he found that Mr. Anderson had 3,040 "asbestos bodies per gram of wet lung tissue," and that the "normal range is 0 to 20," with one or two such bodies "in people from the general population";
Dr. Roggli testified that the most common type of asbestos found in the lungs of workers exposed to asbestos found in boilers was amosite;
Dr. Roggli testified that a specific test to determine the type of fibers in Mr. Anderson's lungs revealed that twenty-five of the twenty-nine examined were amosite fibers;
Much of the asbestos in the Oak Creek plant coming from Combustion Engineering or its predecessor was amosite;
A co-worker of Mr. Anderson, Thomas Mlinar, testified that frequent repair of Combustion Engineering's boilers at the Oak Creek plant resulted in dusty clouds of asbestos insulation material that were so thick that Mlinar could not see another worker one foot away;
Mr. Anderson worked near Combustion Engineering's boilers at the Oak Creek plant;
Mlinar testified that he frequently worked with Mr. Anderson when the conditions were dusty from asbestos insulation coming from Combustion Engineering's boilers;
Donald Hakes, another of Mr. Anderson's coworkers, also testified that the area around the boilers being worked on was very dusty; and
Machinists who, like Mr. Anderson, worked around boilers had an occupational risk of asbestos exposure.

¶ 7. Combustion Engineering claims that although its boilers at the Oak Creek plant had asbestos insulation, there were, as phrased in its main brief on this appeal, "numerous other companies who manufactured, supplied or installed asbestos-containing products that were used or located at a variety of other locations within the plant." It also points to testimony by one of its expert witnesses that, agáin as phrased by its main brief on this appeal, Mr. Anderson "did not receive a substantial exposure from any asbestos-containing product made by Combustion Engineering."

¶ 8. The witness's testimony that Mr. Anderson did not have "substantial exposure" to Combustion Engineering's asbestos centered around his contention that Mr. Anderson did not have, during his tenure at Wisconsin Electric, exposure to asbestos in any boiler made by Combustion Engineering in excess of the "threshold limit value." He told the jury that "threshold limit value" was a hypothetical exposure below which a worker would "end up in their lifetime without the disease" caused by the substance to which the value applied. The jury also heard evidence from an expert witness called by Mrs. Anderson that the "threshold limit, value" originated in 1935 when several hundred companies "got together to deal with the problem they were having related to over a hundred million dollars in lawsuits filed in silicosis and asbestosis suits."

¶ 9. jury the goal behind the "threshold limit value," as phrased by those who helped develop it: " 'Authoritative and improved standards for the control of industrial dust should be developed which, if complied with [by] industries or by industrial companies, will act as a defense against personal injury suits.'" Combustion Engineering's own expert witness conceded that the "threshold limit value was never meant to protect against cancer," and Combustion Engineering admits in its reply brief on this appeal that mesothelioma "can 'be caused by relatively low exposure to asbestos.'" (Quoting from Mrs. Anderson's brief.) Indeed, Combustion Engineering conceded in oral argument that there is no safe threshold for exposure to asbestos in connection with mesothelioma. The jury was free to disregard Combustion Engineering's contention that Mr. Anderson's exposure to its asbestos was too low to cause his cancer.

¶ 10. Combustion Engineering also contends that Mrs. Anderson did not adduce expert-witness testimony that the specific fibers in Mr. Anderson's lungs came from Combustion Engineering asbestos, and faults Mrs. Anderson's trial lawyer for arguing during summation that although there were other sources of amosite fibers in the Oak Creek plant, "the vast majority of it came from Combustion Engineering." But, as we have seen, there was evidence that there were clouds of asbestos-laden dust in the areas where Mr. Anderson worked, and that the type of fiber, amosite, found in Combustion Engineering's boilers was also found in astounding numbers in Mr. Anderson's lungs. The jury was entitled to believe this evidence and draw reasonable inferences from it. Under our standard of review, we are bound by the jury's choice.

¶ 11. Combustion Engineering also argues that Mrs. Anderson never presented to the jury a day-by-day account of Mr. Anderson's exposure to Combustion Engineering asbestos: "Crediting Hakes' and Mlinar's testimony as absolutely true, the very most that the jury could reasonably conclude is that Anderson breathed some unknown quantity of 'dust' emanating from Combustion Engineering boilers on four occasions for a few hours over his 40 year career." But, here again, the jury was entitled to extrapolate from Hakes's and Mlinar's testimony about the specific instances to the conditions under which Mr. Anderson worked during his career at the Oak Creek plant, especially given the extremely high levels of amosite asbestos fibers found in his lungs. Requiring a daily log of activities and exposures would be impossible and, therefore, an intolerable burden on those claiming injuries similar to those claimed here. Cf. Martindale, 2001 WI 113 at ¶ 65 (law must be sensitive to not place unrealistic burdens on those seeking legal redress).

¶ 12. Finally, Combustion Engineering faults the jury for fixing Combustion Engineering's contribution to Mr. Anderson's cancer at twenty-nine percent. But, apportionment of negligence is within the jury's province, Huss v. Yale Materials Handling Corp., 196 Wis. 2d 515, 534-535, 538 N.W.2d 630, 637 (Ct. App. 1995), and an appellant seeking to overturn that apportionment has a most difficult burden, Sabinasz v. Milwaukee & Suburban Transp. Corp., 71 Wis. 2d 218, 223, 238 N.W.2d 99, 101-102 (1976). Indeed, as applicable here, a jury's apportionment of negligence will not be set aside unless either "the percentages attributed to the parties (in light of the facts) are grossly disproportionate" or "there was such a complete failure of proof that the verdict could only be based upon speculation." Lautenschlager v. Hamburg, 41 Wis. 2d 623, 628, 165 N.W.2d 129, 131 (1969).

¶ 13. As we have seen, a jury may draw reasonable inferences from the evidence even though there is no "expert" testimony directly on point. Martindale, 2001 WI 113 at ¶ 65. Thus, a jury's apportionment of fault in a comparative negligence case is akin to a jury's fixing an appropriate award in an eminent-domain taking case; in each, the jury is asked to reach a conclusion that is not capable of mathematical certainty. Accordingly, both here and in the cases where a jury has to set a fair-market value, the jury may "consider factors underlying an expert's opinion," and may "weigh all evidence in reaching its verdict." Milwaukee Rescue Mission, Inc. v. Redevelopment Auth. of the City of Milwaukee, 161 Wis. 2d 472, 485-486, 468 N.W.2d 663, 669 (1991) (jury's discretion to set fair-market value); Martindale, 2001 WI 113 at ¶ 65. Combustion Engineering offers us nothing other than rhetoric to support its argument that the jury's fixing its responsibility for Mr. Anderson's cancer at twenty-nine percent was an erroneous exercise of the jury's discretion.

By the Court. — Judgment and orders affirmed.