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[T] Clark v. McEnany12/23/2003
. Rose Mary Clark, individually and as special administrator for the estate of Alvin Clark, deceased, appeals a judgment entered upon a jury verdict dismissing her medical malpractice claim against M. Terry McEnany, M.D., and Physicians Insurance Company of Wisconsin. Clark asks us to exercise our discretionary power of reversal under Wis. Stat. § 752.35 because she claims that the real controversy was not fully tried. She argues that the trial court improperly limited evidence of restrictions imposed on McEnany's former surgery practice in California and his attempts to cover up those restrictions. Clark also argues the trial court allowed inadmissible testimony and committed other evidentiary errors. In addition, Clark contends that the court erroneously interpreted the law of causation, resulting in erroneous jury instructions and verdict form.
. Because the record reflects a rational basis for the trial court's evidentiary rulings, we conclude the real controversy was fully tried. Also, because the jury found no negligence and no breach of McEnany's informed consent duties, we do not reach the issue of the court's interpretation of the law of causation. Consequently, we decline to exercise our discretionary power of reversal and therefore affirm the judgment.
I. BACKGROUND
. On February 23, 1994, Dr. M. Terry McEnany was beginning a surgery to replace Alvin Clark's aortic valve, repair the mitral valve and insert a pacemaker. While on the operating table, Clark, age seventy-four, suffered cardiac arrest and died. His widow brought this action alleging negligence and a violation of McEnany's obligation to obtain Alvin's informed consent.
. Pretrial motions were considerable. In Clark's words, "approximately 75 Motions in Limine were filed. In addition, scores of hours were spent in hearing [on six days], which resulted in more than 450 pages of transcripts." Many of the motions dealt with evidence of McEnany's former surgery practice at Kaiser Permanente Medical Group in California. Following a nine-day trial, the jury returned a verdict finding no negligence. The jury also found that McEnany did not fail to disclose necessary information about the course of treatment in order to obtain Alvin's informed consent under Wis. Stat. § 448.30 (1993-94). The court denied motions after the verdict for a new trial. This appeal follows.
II. DISCUSSION
A. Interest of Justice
. Clark argues that under Wis. Stat. § 752.35, we should exercise our discretionary authority to grant a new trial in the interest of justice. We exercise our power of discretionary reversal only in extraordinary cases. Vollmer v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990). A claim that the jury had before it testimony or evidence which had been improperly admitted and that this material obscured a crucial issue may fall within the "real controversy not fully tried" category. See State v. Schumacher, 144 Wis. 2d 388, 400, 424 N.W.2d 672 (1988). Also, the real controversy has not been tried when the jury was not given an opportunity to hear significant testimony bearing on an important issue. Id. The trial court need not find a substantial likelihood of a different result on retrial when it orders a new trial on the grounds that the real controversy was not fully tried. Id. at 401. For the reasons that follow, we are persuaded that the real controversy was fully tried.
1. Restrictions on McEnany's California Practice
. Clark argues that the real controversy was not fully tried because the jury was not given an opportunity to hear testimony concerning the significance and context of the restriction on McEnany's operating p
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