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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
espective proposed jury verdicts and proposed jury instructions with the court.
Two days before the scheduled jury trial, the Phelpses' lawyer contacted the court, having discovered that the jury fee was paid late in violation of the scheduling order and local rule. He argued that such action, coupled with PIC's failure to notify him of the late payment, resulted in a waiver of the right to a jury trial. In a telephone conference the next day, the trial court judge agreed, concluding that PIC had waived its right to a jury trial. The court explained:
This is a highly-complicated matter. I haven't been able to concentrate on anything else because of this issue now this afternoon, but that is neither here nor there. That is an aside, but the point of the matter is it's very clear in the scheduling order that if you don't pay the jury fee timely[,] which I did not know until now, the jury is waived. Gentlemen, the jury is waived. I'll see you tomorrow morning. We are trying this case to the court.
On December 4, 2002, the day of trial, counsel for PIC moved the circuit court to enlarge, nunc pro tunc, the time for them to pay the jury fee. In support of this request, counsel offered the testimony of Attorney Donald Peterson, whose firm was previously responsible for PIC's representation. Attorney Peterson explained that he became ill with kidney cancer in late August 2001, continued to do some work, but "stopped going into the office." He indicated that the file was shuffled between him and another attorney and that, as a result, the jury fee was not timely paid.
Despite this proffered argument of excusable neglect, the circuit court denied defense counsel's motion to enlarge the time and ordered the case to be tried to the court. The circuit court noted the complexity of the case and observed that there were several pending motions in limine. It appeared concerned that the case may not be able to be tried in the allotted time, requiring further delay. The court stated:
Well, you know, I suppose the argument goes that I could extend the time for the jury and I guess that is the argument that is made, but there is a huge number of issues in this case, okay, and a lot of issues about what evidence ought to be before the trier of fact and what won't go before the trier of fact, many of which, the majority of which, as a matter of fact, have been raised by the defense and Dr. Lindemann which have complicated this case tremendously, and in my opinion, it's not a suitable place for me to exercise my discretion for those reasons. That is largely it. It's a situation of the defense's making my position. This is a time of year it's going to be very difficult to get this case in as it is before the Christmas break and, you know, given the complications that have come up in the case because of claims of - requests by the defense for motions in limine, requests by the plaintiffs for motions in limine, additional discovery and all of this, these are things the court can handle in a court trial a lot more simply and keep the case moving so we get these parties their day in court, and I - sorry, but we are going to try this case to the court, folks.
During the course of the eight-day trial, the circuit court ordered the production of a letter from Dr. Dennis Worthington, the chairman of the Section of Maternal Fetal Medicine at St. Joseph's Hospital, to Dr. Dwight Cruikshank, the chairman of the Department of Obstetrics and Gynecology at the Medical College of Wisconsin. In the letter, Dr. Worthington complained that Dr. Lindemann had "failed in a number of areas" in connection with his treatment of Marlene.
At the completion of tria
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