COURT OF APPEALS
DATED AND FILED
August 13, 2008
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Alice L. Johannes,
Peter H. Baehr, D.C.,
NCMIC Insurance Company,
from an order of the circuit court for
¶2 Johannes commenced this action against Baehr alleging that
during treatment for a lower back injury Baehr unhooked her bra and touched and
massaged her breast for five minutes. Johannes
pled three causes of action:
(1) chiropractic negligence, (2) failure to obtain informed consent, and
(3) offensive bodily contact. She sought compensatory and punitive damages.
¶3 Approximately seven months after suit was commenced Baehr filed a motion for a protective order under Wis. Stat. § 804.01(3). The motion stated that the catalyst for the request was that
[a]t the recent telephone scheduling conference with the Court, plaintiff’s counsel suggested that he plans to discuss at depositions other acts where Dr. Baehr may have touched female patients inappropriately. During the telephone conference, Judge Weinke indicated that he normally does not admit “other acts” evidence in civil cases.
¶4 In the motion, Baehr asserted that Johannes was seeking to discover other acts evidence that would be inadmissible at trial; the evidence would be unfairly prejudicial; discovery would violate the privacy laws found in the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 201 (HIPAA); and the evidence would be annoying, embarrassing, unduly burdensome and expensive. Baehr did not file any evidentiary affidavit in support of his motion.
¶5 In a response brief, Johannes asserted, “It is public knowledge based on multiple newspaper reports that at least one dozen women have complained to local law enforcement about Dr. Baehr.” She relied on J.W. v. B.B., 2005 WI App 125, ¶¶20-26, 284 Wis. 2d 493, 700 N.W.2d 277, for the proposition that complaints against a doctor for inappropriate touching are discoverable, subject to a protective order. She also contended that Wis. Stat. § 804.01(2)(a), permits broad discovery as long as it might lead to the discovery of admissible evidence. She argued that other acts evidence is relevant to her claim for punitive damages. Finally, she contended that privacy issues under state and federal law can be addressed with a limited protective order.
¶6 The court granted Baehr’s motion in a brief order:
1. Dr. Baehr has a privilege under applicable state and federal law to not identify the names of other patients, the treatment provided to such other patients, and whether there have been any complaints made by any other patients in regard to the pending litigation.
2. The Court finds that the alleged other complaints involving other patients are inadmissible other acts evidence. Any minimal probative value of such evidence is outweighed by the danger of unfair prejudice, confusion of the issues, and the potential to mislead the jury.
We granted Johannes’ petition for leave to appeal challenging the circuit court’s issuance of the protective order.
¶7 Johannes maintains that under Wis. Stat. § 804.01 she is permitted to pursue information that is reasonably calculated to lead to the discovery of admissible information, and the protective order in this case runs afoul of liberal discovery. She argues that it was inappropriate for the court to rule near the beginning of this lawsuit that other acts evidence would be inadmissible and suggests the ruling should have been delayed until the nature of the other acts evidence had been learned through discovery. Johannes points out that the circuit court failed to undertake the analysis mandated by State v. Sullivan, 216 Wis. 2d 768, 576 N.W. 2d 30 (1998), when holding that other acts evidence would be inadmissible.
¶8 She asserts that the circuit court protective order ignores J.W.,
¶9 Circuit courts have broad discretion in determining whether
to limit discovery through a protective order. State v. Beloit Concrete Stone Co.,
A proper exercise of discretion requires a statement on the record of the trial court’s reasoned application of the appropriate legal standard to the relevant facts of the case. If there is no statement of the trial court’s reasoning, the reviewing court may examine the record to determine whether the facts support the trial court’s decision. The trial court misuses its discretion when it bases its decision on an error of law.
Earl v. Gulf & W. Mfg. Co.,
¶10 We conclude that the circuit court erroneously exercised its
discretion in a number of respects. First,
there is no statement in the record supporting the court’s conclusion that “Dr.
Baehr has a privilege under applicable state and federal law to not identify
the names of other patients.” The court
failed to apply the legal standards of HIPAA and Wis. Stat. § 146.82 to the sparse facts of the record. Second, the court held any other acts evidence
inadmissible without conducting the analysis required by Sullivan, 216
¶11 Turning first to privacy concerns raised by HIPAA and Wis. Stat. § 146.82. HIPAA, and the rules issued by the federal
government under it, “are intended to protect the privacy of a broad range of
health care information.” Timothy A.
Hartin, New Federal Privacy Rules for
Health Care Providers, 75
¶12 We need not discuss in depth the workings of HIPAA and Wis. Stat. § 146.82 because Baehr concedes state and federal medical privacy laws do not bar discovery of the identity of other complainants. Baehr does not respond in any manner to Johannes’ assertion that patient health care records are discoverable under state and federal law pursuant to an order of the court or her suggestion that a limited protective order could be drafted to protect the identity of other complainants. We take the absence of a reply as a concession, see Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (arguments ignored may be deemed conceded), and, therefore, we reverse that portion of the circuit court’s protective order based on state and federal privacy laws. Still, we make some observations before leaving this topic.
¶13 HIPAA preempts all state medical privacy laws except those that
are more stringent. Jay E. Grenig and
Jeffery S. Kinsler, 8
¶14 We note that “the HIPAA regulations [45 C.F.R. § 164.512(e)]
permit discovery of protected health information so long as a court order or
agreement of the parties prohibits disclosure of the information outside the
litigation and requires the return of the information once the proceedings are
concluded.” A Helping Hand, LLC v.
¶15 Of course, another means of obtaining protected health care information is the informed written consent of the patient. Grenig at § 16:4. A properly prepared written consent of the patient is probably synonymous with 45 C.F.R. § 164.508(c)(1) and (2) and Wis. Stat. § 146.82(1). Grenig at §§ 16:3 and 16:4.
¶16 We now turn to the portion of the protective order holding that
other acts evidence is inadmissible. We
begin by noting there are no facts in the record that establish who the complainants
are and what inappropriate touching may have occurred. All the record contains is Baehr’s assertion
that Johannes’ counsel “plans to discuss at depositions other acts where Dr.
Baehr may have touched female patients inappropriately.” Because there are no facts of record, the
circuit court’s conclusion that other acts evidence is inadmissible is an
erroneous exercise of discretion. Vincent
& Vincent, Inc. v. Spacek, 102
¶17 The court committed three errors in holding the other acts
evidence would be inadmissible.
First it failed to properly exercise its
discretion in analyzing the admissibility of other acts evidence. In exercising discretion regarding other acts
evidence, the circuit court must apply the three-step analytical framework set
forth by the supreme court in Sullivan: (1) The court must determine whether the other
acts evidence is offered for a permissible purpose under Wis. Stat. § 904.04(2), such as
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident; (2) The court must determine whether the other acts evidence
is relevant under Wis. Stat. § 904.01;
and (3) The court must determine whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, waste of time, or other similar concerns under Wis. Stat. § 904.03. Sullivan, 216
¶18 We “will sustain an evidentiary ruling if [we] find that the
circuit court examined the relevant facts; applied a proper standard of law;
and using a demonstrative rational process, reached a conclusion that a
reasonable judge could reach.”
¶19 Second, the circuit court ignored Johannes’ assertion that J.W.
stands for the proposition that “evidence of other complaints against a doctor
for inappropriate touching [is] discoverable, but subject to a protective order
to protect patient confidentiality.” J.W.,
¶20 In J.W., two men filed a joint complaint against a physician
alleging that he performed unnecessary digital-rectal examinations during
pre-employment physicals and asserting claims of negligence and failure to
obtain informed consent.
We emphasize that we do not determine here whether any information the physician provides in response to the appealed orders will necessarily be admissible at trial. The future evidentiary rulings are committed to the sound discretion of the circuit court, to be based on the testimony and other evidence adduced at trial and the specific nature of the proffered evidence and objections to it. Admissibility of any “other acts” evidence at trial may also turn on the circuit court’s discretionary weighing of its probative value versus the danger of unfair prejudice or other considerations. See Wis. Stat. § 904.03.
¶21 We reject Baehr’s assertion that this case is distinguishable from J.W. because he is claiming privilege but the physician in J.W. did not. Baehr does not claim physician-patient privilege under Wis. Stat. § 905.04; he is claiming privilege under state and federal medical privacy laws. Earlier we held that the medical privacy laws do not create a privilege but a means to obtain otherwise protected health information for use during litigation. Baehr’s distinction fails.
¶22 Third, the circuit court did not consider whether other acts
evidence is admissible in conjunction with Johannes’ claim for punitive
damages. We have considered this
question on prior occasions and have held that because punitive damages are
designed to punish and deter, the admission of other acts evidence is akin to
the listed permissible purposes under Wis.
Stat. § 904.04(2). Smith
v. Golde, 224
¶23 In summary, we reverse the protective order since the circuit
court erroneously exercised its discretion. First, the court failed to give a reasoned
explanation of why “Dr. Baehr has a privilege under applicable state and
federal law to not identify the names of other patients.” State and federal medical privacy laws do not
create a privilege that Baehr can assert; rather, they create a process to
obtain medical records for use in litigation while maintaining confidentiality.
Second, the court failed to properly
exercise its discretion in analyzing the admissibility of other acts evidence;
it failed to consider the applicability of J.W., 284
By the Court.—Order reversed.
Not recommended for publication in the official reports.
 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
 It is worthy of note that Baehr does not invoke physician-patient privilege under Wis. Stat. § 905.04.
the party seeking the protective order, Baehr had the burden to establish good
cause for an order protecting him “from discovery that would result in
annoyance, embarrassment, oppression, or undue burden or expense.” Vincent & Vincent, Inc. v. Spacek,
did not file any evidentiary affidavit supporting this assertion; therefore it
is not a fact of record and we will ignore this groundless assertion. There are certain basic requirements for form
and documentation with regard to motions.
Among those requirements are that a motion must be supported by
evidentiary support if alleging facts for the court to consider. See Wis. Stat. §§ 802.01(2) and
802.05(2)(c). Johannes included several
spurious documents in the appendix to her brief filed in this court, including
portions of interrogatories, a criminal complaint, a copy of a newspaper
article and the transcript of the deposition of Baehr. We will not consider these documents because
they were not part of the record before the circuit court, Nelson v. Schreiner, 161
 In J.W. v. B.B., 2005 WI App 125, ¶26, 284 Wis. 2d 493, 700 N.W.2d 277, we put our stamp of approval on a circuit court’s requirement that before disclosure of protected health information the parties agree to a protective order designed to ensure that any disclosures in response to the discovery order are not made public.
 Professor Grenig provides sample patient authorizations and motions to authorize disclosure of confidential medical information in Wisconsin Practice Series: Civil Discovery § 16:3. Appendix A (Thomson/West 2008).
assertion in his motion, “Judge Weinke indicated that he normally does not
admit ‘other acts’ evidence in civil cases,” gives us pause because it suggests
that the court approached the issue of other acts evidence with a made-up mind.
This is improper and could serve as one
of the reasons for our reversal.
plaintiffs also sought to compel discovery regarding the defendant’s sexual
orientation and employment history. J.W.,
 We do not address Baehr’s argument that his alleged criminal record does not include any conduct involving inappropriate touching and, therefore, other acts evidence is not relevant to punitive damages, because he relies upon facts that were not in the record before the trial court. Baehr argues, “Knowing the scope of any alleged complaints based on presiding over Fond du Lac County case No. 2006CM732 and from submissions in the pending civil case, Judge Weinke was in a position to do an ‘other acts’ evidence analysis.” He also refers to the criminal case in arguing why the other acts are not relevant to punitive damages. And he includes a partial transcript from the criminal case that was not in the record before the trial judge. We point out that Baehr chastises Johannes for including in her appendix facts that were not part of the record in the circuit court. He also notes that the trial judge also presided in a criminal case involving Baehr, and contends we should not consider what the judge learned, because it is not a part of the record in this appeal.
Baehr’s argument gives us pause for two reasons. First, Baehr castigates Johannes for introducing evidence that was not part of the trial record but he casually relies upon evidence that is not part of the record when it suits his argument. We will not consider the extraneous documents in Baehr’s appendix because they were not part of the record before the circuit court and we strike any references to these documents and facts not before the circuit court from Baehr’s brief. Second, if in fact he did so, the trial judge should not have used his knowledge of the evidence in the criminal case without properly taking judicial notice of the records of the court. See Wis. Stat. § 902.01.