SUPREME
COURT OF WISCONSIN
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Case
No.: 98-2710 |
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Complete
Title of
Case: |
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Audrey Guzman, Nicanor Guzman, Jessica Guzman, a minor, and Steven Guzman, a Minor, by their Guardian ad Litem, Plaintiffs-Respondents v. St. Francis Hospital, Inc., American Continental Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Appellants, St. Francis Hospital, Defendant-Third-Party Plaintiff, James Sullivan, M.D., Physicians Insurance Company of Wisconsin, Richard Fitzpatrick, M.D., and Southeastern Emergency Medical Services, S.C., Third-Party Defendants-Appellants, XY & Z Insurance Company, Third-Party
Defendant. |
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ON BYPASS FROM THE COURT OF APPEALS |
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Opinion
Filed: May 2, 2000 Oral
Argument: April 5, 2000 |
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Source
of APPEAL COURT: Circuit COUNTY: Milwaukee JUDGE: Patricia D. McMahon |
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JUSTICES: |
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ATTORNEYS: For defendants-appellants, St. Francis Hospital, Inc. and
American Continental Insurance Company, there were briefs (in the court of
appeals) by John A. Nelson, Timothy W. Feeley and von Briesen,
Purtell & Roper, S.C., Milwaukee. For
defendant-appellant, Wisconsin Patients Compensation Fund, there were briefs
(in the court of appeals) by Steven J. Caulum and Bell, Gierhart
& Moore, S.C., Madison, and William H. Levit, Jr., Michael B.
Apfeld, and Godfrey & Kahn, S.C., Milwaukee, and oral argument
by Michael B. Apfeld. For the
third-party defendant-appellant, James Sullivan, M.D., there were briefs (in
the court of appeals) by Paul Kelly, Amy Doyle and Schellinger
& Doyle, S.C., Waukesha. For the
third-party defendant-appellant, Richard Fitzpatrick, M.D., there were briefs
(in the court of appeals) by Lori Gendelman, Jeffrey J.P. Conta and Otjen,
Van Ert, Lieb & Weir, S.C., Milwaukee. For the
third-party defendant-appellant, Southeastern Emergency Medical Services,
S.C., there were briefs (in the court of appeals) by Mary Lee Ratzel,
Peter F. Mullaney and Peterson, Johnson & Murray, S.C.,
Milwaukee. For the
third-party defendants-appellants there was oral argument by John S.
Skilton and Foley and Lardner, Madison. For the
plaintiffs-respondents there was a brief (in the court of appeals) by Ted
M. Warshafsky and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch,
S.C., Milwaukee, and Edward E. Robinson and Cannon &
Dunphy, S.C., of counsel, Brookfield, and oral argument by Ted M. Warshafsky. An amicus
curiae brief was filed by David M. Skoglind, and Aiken &
Scoptur, S.C., Milwaukee, on behalf of the Wisconsin Academy of Trial
Lawyers. An amicus
curiae brief was filed by Richard H. Middleton, Jr., Ned Miltenberg,
and the Association of Trial Lawyers of America, Washington, D.C., and
Merrick R. Domnitz and Domnitz, Mawicke & Goisman, S.C.,
Milwaukee, on behalf of the Association of Trial Lawyers of America. |
NOTICE
This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports.
STATE OF WISCONSIN : IN SUPREME COURT
FILED MAY 2, 2000 Cornelia G. Clark Clerk of Supreme
Court Madison, WI
Audrey Guzman, Nicanor
Guzman, Jessica
Guzman, a minor, and
Steven Guzman, a
minor, by their
Guardian ad Litem,
Plaintiffs-Respondents,
v.
St. Francis Hospital,
Inc., American
Continental Insurance
Company and
Wisconsin Patients
Compensation Fund,
Defendants-Appellants,
St. Francis Hospital,
Defendant-Third-Party Plaintiff,
James Sullivan, M.D.,
Physicians
Insurance Company of
Wisconsin, Richard
Fitzpatrick, M.D., and
Southeastern
Emergency Medical
Services, S.C.,
Third-Party Defendants-
Appellants,
XY & Z Insurance
Company,
Third-Party Defendant.
APPEAL from an order of the Circuit Court for Milwaukee
County, Patricia D. McMahon, Judge. Order
granting bypass vacated and cause remanded to the Court of Appeals.
¶1 PER CURIAM. The court is equally divided on whether to affirm or reverse the order of the circuit court for Milwaukee County. Chief Justice Abrahamson, Justices Bablitch and Bradley would affirm. Justices Wilcox, Crooks and Sykes would reverse. Justice Prosser did not participate.
When a certification or bypass results in a tie vote by this court, the better course of action is to vacate our decision to accept certification or bypass and remand the cause to the court of appeals. State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995) (remanding to court of appeals on a tie vote on certification); State v. Elam, 195 Wis. 2d 683, 684-85, 538 N.W.2d 249 (1995) (restating rule but declining to remand to court of appeals on a tie vote on bypass because court of appeals had previously decided issue).
Accordingly, we vacate our order granting bypass and remand to the court of appeals.
By the Court.— Order granting bypass vacated and cause remanded to the court of appeals.