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Wisconsin Civil Trial Journal Summer 2020 • Volume 18 • Number 2

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Wisconsin Civil Trial Journal Summer 2020 • Volume 18 • Number 2 Wisconsin Civil Trial Journal Summer 2020 • Volume 18 • Number 2 Also In This Issue President’s Message: Getting Past the Roadblock Christine M. Rice WDC Leaders Attorney Spotlight: Henry P. Twomey Avoiding the Pitfalls in Regulatory Flexibilities Successfully Excluding and Relief Funds Heather D. Mogden, Kathryn M. Costanza & Treating Physicians’ David B. Honig Opinions Under Daubert 2020 Advocate of the Year: David J. Pliner Andrew B. Hebl & 2020 Distinguished Professional Service Award: Kathryn A. Pfefferle Carmelo A. Puglisi 2020 Publication Award: Monte E. Weiss Are Plaintiffs Overcharging Wisconsin Wage-and- Hour Claims? Wisconsin Daniel Finerty & Peter Nowak Defense Counsel News from Around the State: Defending Individuals And Businesses In Civil Litigation Trials and Verdicts OFFICERS COLUMNISTS PRESIDENT Kathryn M. Costanza Peter Nowak Christine Rice Hall, Render, Killian, Heath Steinhilber Swanson LLP Simpson & Deardorff, S.C. & Lyman, P.C. [email protected] Kathryn A. Pfefferle PRESIDENT-ELECT Daniel Finerty Boardman & Clark LLP Andrew Hebl Lindner & Marsack, S.C. Boardman & Clark LLP [email protected] Christine M. Rice Andrew B. Hebl President, Wisconsin Defense Counsel SECRETARY/TREASURER Boardman & Clark LLP Christopher Bandt EDITOR Nash, Spindler, Grimstad & McCracken, LLP David B. Honig [email protected] Vincent J. Scipior Hall, Render, Killian, Heath Coyne, Schultz, Becker & Bauer, S.C. IMMEDIATE PAST PRESIDENT & Lyman, P.C. [email protected] Ariella Schreiber Rural Mutual Insurance Heather D. Mogden [email protected] Hall, Render, Killian, Heath PROGRAM CHAIR & Lyman, P.C. Nicole Marklein Cross, Jenks, Mercer & Maffei [email protected] Amicus Curiae Committee Wisconsin Civil Jury Instructions DIRECTORS Chair: Monte Weiss Committee Gina Budzinski American Family Insurance Co. Weiss Law Office, S.C. Representative: Chris Bandt [email protected] [email protected] Nash, Spindler, Grimstad & McCracken, LLP Kristine Burck Cyber Law and Technology Committee [email protected] Wisconsin Mutual Insurance Chair: Travis Rhoades [email protected] Crivello Carlson, S.C. Women in the Law Committee Jeremy Gill [email protected] Chair: Heather Nelson Nash, Spindler, Grimstad & McCracken, LLP Everson, Whitney, Everson & [email protected] Vice Chair: Randall Guse Brehm, S.C. Otjen, Gendelman, Zitzer, [email protected] Andrea Goode Johnson & Weir, S.C. Borgelt, Powell, Peterson & Frauen, S.C. [email protected] [email protected] Vice-Chair: Andrea Goode Borgelt, Powell, Peterson & Frauen, S.C. Randall Guse Employment Law Committee [email protected] Otjen, Gendelman, Zitzer, Johnson & Weir, S.C. Chair: Elizabeth Rowicki [email protected] SECURA Insurance Young Lawyer Committee Patrick Heaney [email protected] Chair: Nicole Radler Thrasher, Pelish, Franti & Heaney, Ltd Simpson & Deardorff, S.C. [email protected] Insurance Law Committee [email protected] Chair: Monte Weiss Grace Kulkoski Weiss Law Office, S.C. DRI Representative von Briesen & Roper, S.C. [email protected] [email protected] Sandy Hupfer SECURA Insurance Heather Nelson Vice-Chair: Joseph Sarmiento [email protected] Everson, Whitney, Everson & Brehm, S.C. Karbal, Cohen, Economou, Silk & Dunne [email protected] [email protected] Executive Director Jenni Kilpatrick, CAE David Ress Bell, Moore & Richter, S.C. Litigation Skills Committee [email protected] [email protected] Chair: Frederick Strampe Borgelt, Powell, Peterson & Frauen, S.C. Legislative Advisors Brent Smith [email protected] Rebecca Hogan Johns, Flaherty & Collins, S.C. Hamilton Consulting Group [email protected] Membership Committee [email protected] Monte Weiss Chair: Sandy Hupfer Weiss Law Office, S.C. SECURA Insurance Paige Scobee [email protected] [email protected] Hamilton Consulting Group [email protected] Brian Williams Davczyk & Varline, LLC Website and Social Media Committee [email protected] Chair: Nicole Radler Simpson & Deardorff, S.C. [email protected] 2 Wisconsin Defense Counsel Defending Individuals And Businesses In Civil Litigation In This Issue… President’s Message: Getting Past the Roadblock By: Christine M. Rice, President, Wisconsin Defense Counsel ...................................................4 Successfully Excluding Treating Physicians’ Opinions under Daubert by: Andrew B. Hebl and Kathryn A. Pfefferle, Boardman & Clark LLP. .........................................7 WDC Leaders Attorney Spotlight: Henry P. Twomey ...................................................................................20 Avoiding the Pitfalls in Regulatory Flexibilities and Relief Funds by: Heather D. Mogden, Kathryn M. Costanza, and David B. Honig, Hall, Render, Killian, Heath & Lyman, P.C. .......................................................................23 2020 Advocate of the Year: David J. Pliner ...........................................................................33 2020 Distinguished Professional Service Award: Carmelo A. Puglisi .................................39 2020 Publication Award: Monte E. Weiss ..............................................................................41 Are Plaintiffs Overcharging Wisconsin Wage-and-Hour Claims? by: Daniel Finerty, Lindner & Marsack, S.C. and Peter Nowak, Steinhilber Swanson LLP ..............................................................................42 News from Around the State: Trials and Verdicts ................................................................48 • William B. Heffern III, et al. v. GEICO Cas. Co., et al. • Marsha Tarney v. Am. Fam. Mut. Ins. Co., et al. • Alisyn A. Bell v. Jennifer R. Wolf, et al. • Georgina V. Brett, et al. v. Am. Fam. Mut. Ins. Co., et al. Journal Policy WDC Members and other readers are encouraged to submit articles for possible publication in the Civil Trial Journal, particularly articles of use to defense trial attorneys. No compensation is made for articles published and all articles may be subjected to editing. Statements and expression of opinions in this publication are those of the authors and not necessarily those of the WDC or Editor. Letters to the Editor are encouraged and should be sent to the WDC office at 6737 W. Washington St., Suite 4210, Milwaukee, WI 53214. The Editor reserves the right to publish and edit all such letters received and to reply to them. 3 President’s Message: Getting Past the Roadblock by: Christine M. Rice, President, Wisconsin Defense Counsel This was certainly not the “Presidential Year” I had with you, and I truly appreciate your support and anticipated. This was to be the year of strategic commitment to the organization and our profession. planning – setting the stage for a stronger, more Finally, I want to thank all of you. When we gather vibrant organization. It was to be the year to bring us for conferences and I look around the room, I together with discussion of goals, plans, and future see genuinely good people that I respect, admire, visions. Little did we know that this would be the and am proud to call colleagues and friends. I am year that kept us socially distanced, and that changed humbled to have had the opportunity to be at your and challenged us personally, professionally, and as service in the leadership of this organization. an organization. I want to leave you with the reassurance that Despite the setbacks, your executive committee strategic planning will happen as soon as we are and board members have kept working. Just able to safely get together. I do see us getting past before the pandemic hit, three of your leaders and the roadblock stronger and with a more defined our executive director attended DRI national and purpose. I hope that you will be with me in state and local defense organizational leadership embracing with excitement and support the efforts conferences to gain fresh perspectives and ideas for to rejuvenate our group toward our mission. We are strategic planning sessions. We have had phone and all in this together, WDC! videoconferences aimed at bringing you virtual CLE, at member retention and recruitment efforts with Author Biography: benefits that matter, at much-needed diversity and inclusion initiatives, and at ways we can encourage Attorney Christine Rice is a Shareholder and our newer professionals to become engaged. All the President of Simpson & Deardorff, S.C. She of these discussions are crucial for the long-term received her bachelor’s degree in nursing from stability, growth, and depth of our organization. The Carroll College, and after practicing for several excitement of the upcoming leadership and board is years as a registered nurse, she returned to law contagious. I am really looking forward to seeing school and graduated magna cum laude from WDC flourish and renew for years to come. Marquette University. Ms. Rice practices in all areas of insurance defense, specializing in I want to thank Jenni Kilpatrick, our executive insurance coverage. Ms. Rice has been recognized director and WDC’s true treasure. She has by her peers as a Wisconsin “Super Lawyer,” and been instrumental in minimizing impact to the was one of Wisconsin Law Journal’s “Leaders organization and in keeping us moving forward in the Law” in 2019. Ms. Rice also serves on the during these difficult times. I want to thank my Board of Directors at her alma mater, Dominican fellow board members. I have been honored to lead High School in Whitefish Bay, Wisconsin. 4 At von Briesen,
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