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    Westriches

    Review of: Westriches

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    Westriches

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    Schneller , Wis. On appeal, our supreme court concluded the circuit court properly exercised its discretion in denying the plaintiffs' motion.

    In particular, the court concluded the circuit court "applied the proper standard of law by expressly finding that there was no cause for the [plaintiffs'] failure to comply with the scheduling order.

    The Hospital contends there was no scheduling order in place following our remand in Westrich I , and it therefore moved the circuit court to enter a new scheduling order.

    The Hospital further argues that, even if the circuit court's pre-existing scheduling order remained in place following our remand in Westrich I , Schneller 's "cause" standard is no longer good law because it was based on a statutory provision that was subsequently repealed.

    See Schneller , Wis. ORDER , Wis. Accordingly, the Hospital argues the circuit court should have applied the balancing test articulated in Alexander —a pre- Schneller case—when analyzing the Hospital's motion for deadlines to name new experts.

    Mary's Hospital Medical Center , Wis. In this opinion, all future references to the Wisconsin Statutes are to the version unless otherwise noted.

    Under either standard, we conclude the court did not erroneously exercise its discretion. At the time the circuit court denied the Hospital's motion, a full trial on the Westriches' claims had already taken place.

    Nine years had elapsed since Westrich's fall, and the Westriches' lawsuit had been pending for six years. Both parties had the opportunity to—and did—name expert witnesses prior to the first trial.

    The only reason the Hospital provided to support its claimed need to name new experts is that it had retained different counsel on remand.

    However, the circuit court could reasonably conclude the mere fact that the Hospital's new attorneys wanted to pursue a different strategy during the second trial was not a good reason to permit the Hospital to name new experts, which would have resulted in added expense for the Westriches and would have further delayed the resolution of their claims.

    Although the Hospital asserts on appeal that it had a "right to alter its defense strategy for the new trial," it does not provide any authority in support of that assertion.

    Moreover, the circuit court's order did not prevent the Hospital's new counsel from pursuing a different strategy during the second trial; it merely prevented counsel from naming new experts in support of that strategy change.

    In Alexander v. However, Alexander is distinguishable because the plaintiffs' first attorney in that case had been ordered to withdraw based on a conflict of interest—namely, that his firm had previously represented one of the defendants.

    The Alexander court emphasized that the first attorney's failure to name appropriate experts may have been influenced by his conflict of interest.

    As this court later observed, "[T]he holding in Alexander protects the client from the adverse effects of a conflict of interest, not from incompetency of counsel.

    Mitropoulos , Wis. There is no allegation in this case that the Hospital's prior attorneys were in any way influenced by a conflict of interest.

    There, our supreme court stated that, in assessing the plaintiffs' request to modify a scheduling order to permit them to name new experts, the circuit court was required to balance "the integrity of the scheduling order reflecting the court's calendar and the defendant's apparent completion of trial preparation," see Alexander , Wis.

    Under this standard, the Hospital argues it should have been allowed to name new experts because: 1 no trial date had been set at the time it filed its motion; 2 it had recently retained new counsel for the retrial; 3 its request to name two new experts was narrow in scope and would not have resulted in repetitive discovery; and 4 the additional experts would have allowed the Hospital "to fairly present its case" and would have "aid[ed] the jury in its assessment of the controversy at trial.

    However, on the other side of the scale, we must consider that, at the time the circuit court denied the Hospital's motion, the Westriches' claims had been pending for an extended period of time.

    A full trial on those claims had already taken place. Permitting the Hospital to name different or additional experts would have resulted in added cost and delay.

    The court could reasonably conclude the Hospital's interest in naming those experts did not outweigh these countervailing factors.

    Under these circumstances, we cannot conclude the circuit court erroneously exercised its discretion by denying the Hospital's motion.

    Our analysis should sound a cautionary note for the parties and court on remand. If the Westriches again seek to use the statistics at trial, they must offer an expert with the requisite personal knowledge, offer the statistics for a purpose other than the truth of the matter asserted, or make use of an available exception to the hearsay rule.

    Westrich I , No. Based on this passage, the Hospital argues Westrich I "expressly contemplated further pretrial activities after remand. In that excerpt, we merely suggested that, on remand, if the Westriches chose to offer certain statistical evidence, they might be afforded the opportunity to designate an expert as to that specific, limited issue.

    We did not, however, indicate that the circuit court on remand would be required to allow the Westriches to name such an expert.

    Moreover, the Westriches did not seek leave to name an expert regarding the statistical evidence on remand; instead, the Hospital sought to name different or additional experts regarding taste and smell and nursing standards of care.

    Under these circumstances, the cited excerpt from Westrich I does not contradict the circuit court's reasonable conclusion that, as a general matter, this court "did not envision starting over with a new scheduling order with new deadlines, new experts, new discovery.

    However, those reasons were set forth in the Hospital's circuit court brief, and the court expressly stated during its oral ruling that it had reviewed the parties' briefs before issuing its decision.

    While the court did not expressly address the Hospital's reasons for seeking to name new experts, that failure does not require reversal of the court's decision.

    Here, for all of the reasons stated above, we conclude the circuit court did not erroneously exercise its discretion by refusing to set deadlines for the parties to name new experts.

    Only two prospective jurors responded to that question. Juror 35 indicated he had gone to school with James but had not seen him since graduating in Juror 44 reported that he and Ciara worked for the same employer and had previously worked on the same shift.

    In the trial transcript, the Westriches' daughter's name is spelled "Sierra. According to defense investigator Laura Minerva, when asked after trial about his "overall impression" of Kim Westrich, Juror 77 responded, "I don't know.

    I know his daughter. One of my friend's [sic] dated her. I asked when it was he realized it and he said it was when Kim was on the stand, he mentioned his daughter's name and then [Juror 77] put two and two together!

    The Hospital argues it is entitled to a new trial because Juror 77 was objectively biased, in that he knew the Westriches' daughter but failed to disclose that fact during voir dire.

    State v. Here, in order to establish that it was entitled to a new trial based on juror bias, the Hospital was required to prove that: 1 Juror 77 incorrectly or incompletely responded to a material question during voir dire; and 2 it is more probable than not that, under the circumstances of this case, Juror 77 was biased against the Hospital.

    See id. It appears undisputed that the Hospital has met its burden of proof as to the first of these elements.

    The operative question is therefore whether the Hospital has proven it is more probable than not that Juror 77 was biased against it.

    Only objective bias is at issue here. When assessing objective bias, we are not concerned with the challenged juror's actual state of mind—that is, whether he or she was, in fact, impartial.

    Instead, we ask "whether [a] reasonable person in the individual prospective juror's position could be impartial. Faucher , Wis.

    Funk , Wis. Although we do not defer to a circuit court's decision on a question of law, where the factual and legal determinations are intertwined, as they are in determining objective bias, we give weight to the circuit court's legal conclusion.

    We have said that we will reverse a circuit court's determination in regard to objective bias "only if as a matter of law a reasonable judge could not have reached such a conclusion.

    We cannot say, as a matter of law, that a reasonable judge could not have reached that conclusion. There is no evidence Juror 77 had a close relationship with Ciara Westrich.

    He merely indicated he that "kn[e]w" Ciara because one of his friends had dated her at some point in the past.

    There is nothing in the record to indicate when Juror 77's friend dated Ciara, or how frequently Juror 77 came into contact with Ciara during that time period.

    Under these circumstances, the circuit court appropriately characterized Juror 77's relationship with Ciara as "distant. If Juror 77 had an even moderately close relationship with Ciara, one would expect he would have immediately realized Kim's relationship to Ciara during voir dire.

    On these facts, the circuit court reasonably concluded the Hospital had not met its burden to prove it was more probable than not that Juror 77 was objectively biased—that is, that a reasonable juror in his position could not have been impartial.

    There, our supreme court stated:. In cases involving a juror who was not forthcoming during voir dire and subsequently sat on the jury, a circuit court is to consider the following three, non-exclusive factors to determine objective bias: 1 did the question asked sufficiently inquire into the subject matter to be disclosed by the juror; 2 were the responses of other jurors to the same question sufficient to put a reasonable person on notice that an answer was required; 3 did the juror become aware of his or her false or misleading answers at anytime during the trial and fail to notify the trial court?

    The Hospital argues all three of the Funk factors are "clearly present" in this case. It contends the circuit court erred by failing to rely on these factors and instead basing its decision on "immaterial" considerations.

    Funk expressly states that the three factors listed therein are "non-exclusive. The circuit court acknowledged the existence of those factors, but it correctly stated they were "just three of a number of factors that the Court could consider making a decision regarding [objective] bias.

    Again, we cannot say, as a matter of law, that a reasonable judge could not have reached that conclusion.

    However, because the Hospital is the party seeking a new trial based on Juror 77's alleged bias, it has the burden to prove it is more probable than not Juror 77 was biased.

    Following trial, the Hospital could have asked Juror 77 additional questions regarding the nature of his relationship with Ciara. The Hospital either failed to do so or failed to submit Juror 77's responses in support of its postverdict motion.

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    Also, use a sticky rice such as sushi rice. After it is cooked, coat a skillet with oil and let the rice sit and get crispy for 5 minutes.

    The kids loved assembling their own plates from all of the different ingredients. Stay tuned for season II of the Hearne Family Cooking Show, coming soon to a kitchen near you.

    Up to this point in our lives, Mike and I have had a vague idea at the beginning of each week of about two homecooked dinners to make that would last our family for four nights.

    The other three nights we would go out, get takeout or just wing it at home. The simple act of obtaining groceries has become an event we must plan days in advance.

    Today is Tuesday, and we put in an order for Costco groceries through Instacart that will not be delivered to our house until Sunday — the first available time.

    Gone are the days of our children demanding snacks of their choosing at any time. The daycare closed on Friday and now that our kids are home full time, we are attempting to recreate the structure and simplicity of meals at school in our home.

    Rather than feeling confined by this meal plan, I feel freed by it. We have already done the thinking and shopping ahead of time, which takes a big burden off of my shoulders.

    And, when we typically would have gotten our Saturday night kicks at a local sushi restaurant or ordering pizza with friends, this Saturday, Mike and I made a Bavarian feast.

    Mike ground 15 pounds of pork shoulder in our kitchen and made them into homemade sausages with our new sausage attachment for the KitchenAid.

    Sausage making — the perfect quarantine hobby! We supplemented with a homemade pretzel mix and beer cheese soup. The process of making this meal and the end result were very gratifying.

    First, planning our meals in advance. Second, cooking more food at home. And third, slowing down enough to enjoy both the process and the result of our cooking.

    I was a senior in high school on September 11, , and that event undoubtedly played a role in my decision to pursue journalism as my undergraduate major.

    In times of crisis, information is nearly as vital as food, water and shelter. I had a lovely email exchange with Riham Feshir about her article covering the childcare angle of this crisis.

    At this point our daycare is open and we have chosen to keep sending our kids. Her article provided great balanced coverage of the issue. They have an excellent app with maps and up to the minute information.

    CBS has a free hour streaming news channel for Smart TVs. They are currently broadcasting out of Boston because their New York headquarters was shut down when several employees tested positive for COVID In addition to staying informed, I plan to use my time at home over the next unknown number of weeks to bake.

    Today I baked six loaves of my favorite challah recipe. In the coming weeks, I hope to tackle sandwich bread, a French country loaf, pretzels, and who knows what else.

    Over the past three days, we, along with most others in the country, have totally changed our lifestyle to protect against the COVID virus.

    It escalated quickly, as historical events often do. A week or two ago, there were signs and gentle reminders about hand washing and restrictions on non-essential travel.

    Then, General Mills planned a company-wide work-from-home test for March That day would never come — on Friday March 14, it was announced that General Mills employees would work from home beginning March 16 until at least April 1.

    Day by day and hour by hour, the number of cases and deaths worldwide rise and the number of stores, restaurants and institutions that are open continues to dwindle.

    The stock market is plummeting. There is mass chaos at airports. No one knows how long it will last. There is nowhere to go, but there is so much to do: Stay informed.

    Check in on friends, family and coworkers. Entertain my kids. Spend time with Mike. Tackle 1, house projects, books and creative endeavors that I never have time to do.

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