COURT OF APPEALS

DECISION

DATED AND FILED

October 28, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2019AP1866 Cir. Ct. No. 2016CV70

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

MARK B. PATTINSON,

 PLAINTIFF-APPELLANT,

UNIVERSITY OF WISCONSIN HOSPITAL AND CLINICS,

 PLAINTIFF,

FORWARD HEALTH, DEAN HEALTH PLAN AND ARTISAN TRUCKERS 

CASUALTY COMPANY P/K/A PROGRESSIVE INSURANCE COMPANY,

 SUBROGATED-PLAINTIFFS,

 V.

RICHARD H. UBERSOX,

 DEFENDANT-RESPONDENT,

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY P/K/A STATE 

FARM INSURANCE,

 DEFENDANT.
No. 2019AP1866

2

APPEAL from a judgment of the circuit court for Lafayette County: 

JAMES R. BEER, Judge. Affirmed. 

Before Blanchard, P.J., Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Mark B. Pattinson appeals a final judgment, 

entered on a jury verdict, dismissing his personal injury suit against Richard H. 

Ubersox. At trial, each party argued that the other was negligent in causing a

vehicular accident, with Ubersox presenting evidence that Pattinson’s driving 

reaction time was delayed because of alcohol impairment. On appeal, Pattinson

argues that the circuit court erroneously exercised its discretion by: (1) giving a 

jury instruction setting forth the presumptive effect of chemical tests for 

intoxication resulting from alcohol consumption; (2) admitting the testimony of 

Ubersox’s toxicologist expert witness, who relied on the results of Ubersox’s

hospital blood test; and (3) prohibiting Pattinson from claiming future medical 

expenses. We affirm, concluding that Pattinson has not demonstrated error in 

connection with the jury instruction and that he has forfeited his challenge to the 

admissibility of Ubersox’s expert witness testimony. Because we uphold the 

judgment dismissing all claims against Ubersox, we do not reach Pattinson’s 

argument regarding medical expenses. 

BACKGROUND

¶2 On September 21, 2013, at approximately 8:25 p.m., a collision 

occurred on State Highway 23 near Darlington, Wisconsin, between Pattinson’s 
No. 2019AP1866

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motorcycle and Ubersox’s pick-up truck. Pattinson was injured and taken to the 

emergency department of Memorial Hospital in Darlington.

¶3 Pattinson sued Ubersox, claiming that Ubersox’s negligent failure to 

yield caused the crash. The case proceeded to a five-day jury trial. Pattinson 

testified to the following version of events. Pattinson was driving his motorcycle 

in the southbound lane of Highway 23, at or below the 55 mph speed limit. 

Pattinson saw Ubersox’s truck emerge from a driveway ahead of Pattinson and on 

his right. Ubersox, without stopping, turned left out of the driveway and into the 

northbound lane of Highway 23. Pattinson feared that he was going to hit 

Ubersox; he swerved left and right, but could not avoid Ubersox. Pattinson further 

testified to having consumed alcohol in the hours before the collision. 

¶4 Pattinson also presented the expert testimony of Jeffrey Peterson, an 

accident reconstructionist. Peterson’s testimony included the following. At the 

time of impact, Ubersox’s truck was “at an angle” and mainly in the northbound 

lane, but the “left rear corner [of the truck was] still in the southbound lane a little 

bit.” Pattinson’s motorcycle crossed the center line just prior to collision and 

Pattinson “would have avoided the impact” if he “had braked and simply stayed in 

his lane.” Pattinson started to skid his motorcycle just before the crash, at which

time Pattinson was traveling 54-62 miles per hour. 

¶5 Ubersox testified to the following version of events. Ubersox 

stopped at the end of his driveway, looked both ways, and saw Pattinson’s 

headlight to the left. It was not until Ubersox started turning left, however, that he 

realized that the motorcycle was traveling faster than he expected. Ubersox sped

up to try to get out of the way, at the same time realizing that Pattinson was 
No. 2019AP1866

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veering to the left to try to avoid his truck. Pattinson hit Ubersox once Ubersox 

was already in the northbound lane and driving north. 

¶6 A passenger in Ubersox’s truck also testified, and her testimony was 

consistent with Ubersox’s.

¶7 Ubersox called Laura Liddicoat, a toxicologist, to testify about 

Pattinson’s approximate blood alcohol concentration (BAC) at the time of the 

collision and its potential effect on his reaction time. Among other materials, 

Liddicoat reviewed Pattinson’s Memorial Hospital medical record and a transcript 

from his deposition, in which he testified about the details of his food and alcohol 

consumption before the crash. 

¶8 Liddicoat testified to the following. She based her analysis on the 

result of an alcohol test from a Memorial Hospital blood sample drawn at 

9:10 p.m., approximately 45 minutes after the collision. This was a medical and 

not a “legal” or forensic test (that is, the blood was not drawn and tested for a law 

enforcement purpose and according to that standard). Therefore, Liddicoat 

approximated the corresponding forensic test result using a three-step process. 

She first took the hospital test result and converted that measurement to grams per 

deciliter, the unit ratio used for BAC in the pertinent Wisconsin Statutes. See WIS.

STAT. § 885.235(1)(a) (2019-20).

1

 Second, because a forensic BAC measurement 

tests the “whole blood,” rather than the serum or plasma “routinely” tested in 

hospitals (including at Memorial Hospital), Liddicoat reduced her number by 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted. WISCONSIN STAT. § 885.235(1)(a) refers to “grams per 100 milliliter,” which is equivalent 

to grams per deciliter.
No. 2019AP1866

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approximately 15%, to convert the hospital serum/plasma measurement to the 

whole-blood BAC measurement, yielding a result of between .080 to .086 grams 

per deciliter at the time of the blood test. Third, Liddicoat accounted for the 

elimination of alcohol from Pattinson’s blood between the times of the collision

and the blood test. She also accounted for the possibility that, at the time of the 

collision, Pattinson may not have absorbed into his bloodstream all of the alcohol 

he had consumed. 

¶9 Liddicoat determined that Pattinson’s BAC at the time of the 

collision was between .08 and .094 grams per deciliter and “would have been 

about .09.” Based on her review of the medical literature on alcohol use and 

reaction times, Liddicoat concluded that this BAC would have caused Pattinson to 

“experience[] a delay in his complex reaction time” of at least .7 seconds. 

¶10 Ubersox also called Curtis Beloy, an accident reconstructionist, 

whose testimony included the following. Beloy attributed fault to Pattinson, 

drawing three conclusions about how Pattinson could have avoided the collision. 

First, Pattinson would have had enough time to brake and stop had he been 

traveling 55 mph, the speed limit, as opposed to what Beloy calculated to be at 

least 68.5 mph. Second, Beloy concluded that, at the time of impact, Ubersox was 

completely over the center line and in the northbound lane. Therefore, the 

collision would not have happened if Pattinson had remained in his lane. Third, 

Pattinson could have avoided the collision had he reacted .7 seconds sooner to his 

noticing Ubersox pulling out of the driveway. Therefore, accepting Liddicoat’s 

testimony that the alcohol delayed Pattinson’s reaction time, the collision would 

not have occurred if Pattinson had been sober. 
No. 2019AP1866

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¶11 Over Pattinson’s objection, the circuit court gave the jury pattern 

instruction WIS JI—CIVIL 1008, which sets forth the presumptive effect of 

chemical tests for intoxication. The jury returned a special verdict finding 

Pattinson 70% negligent and Ubersox 30% negligent, meaning that, under 

Wisconsin’s comparative negligence statute, Pattinson was not entitled to 

damages. See WIS. STAT. § 895.045(1). The circuit court entered judgment on the 

verdict in favor of Ubersox and dismissed the action. 

DISCUSSION

I. Pattinson Has Not Demonstrated that the Circuit Court Erred in Giving

WIS JI—CIVIL 1008 to the Jury.

¶12 Although a circuit court has “broad discretion” to give a jury 

instruction, the “[f]acts of record must support the instruction and the instruction 

must correctly state the law.” Kochanski v. Speedway SuperAmerica, LLC, 2014 

WI 72, ¶10, 356 Wis. 2d 1, 850 N.W.2d 160. “We independently review whether 

these two criteria are met.” Id. 

¶13 Pattinson argues that the circuit court erred in giving WIS JI—CIVIL 

1008 (Intoxication: Chemical Test Results). That instruction provides:

The results of a chemical test for intoxication have 

been received in evidence. 

If you find there was an alcohol concentration of 

0.[0]8 or more at the time of the test, you should find from

that fact alone that the person was under the influence of an 

intoxicant at the time in question, unless you are satisfied to 

the contrary from other evidence. 

Pattinson argues that this instruction does not apply here because it properly 

pertains only to samples drawn and tested according to WIS. STAT. § 343.305, 

which sets forth forensic testing procedures and provides for the use of forensic 
No. 2019AP1866

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test results at trial. Pattinson argues that the hospital blood test does not meet the 

forensic requirements of § 343.305, and that as a result, the jury should not have 

been instructed that it could presume that he was under the influence at the time of 

the collision based on the hospital test.

2 As we explain, Pattinson’s argument is 

based on a misinterpretation of the pertinent statutes.

¶14 WISCONSIN JI—CIVIL 1008 is the pattern jury instruction for WIS.

STAT. § 885.235, “Chemical tests for intoxication.” As pertinent here, 

§ 885.235(1g) provides:

In any action or proceeding in which it is material to 

prove that a person was under the influence of an intoxicant 

or had a prohibited alcohol concentration ... while 

operating or driving a motor vehicle ..., evidence of the 

amount of alcohol in the person’s blood at the time in 

question, as shown by chemical analysis of a sample of 

the person’s blood ... is admissible on the issue of 

whether he or she was under the influence of an intoxicant 

or had a prohibited alcohol concentration ... if the sample 

was taken within 3 hours after the event to be proved. The 

chemical analysis shall be given effect as follows without 

requiring any expert testimony as to its effect:

....

(c) The fact that the analysis shows that the person 

had an alcohol concentration of 0.08 or more is prima facie 

evidence that he or she was under the influence of an 

intoxicant and is prima facie evidence that he or she had an 

alcohol concentration of 0.08 or more.

(Emphasis added.). See also § 885.235(1)(a) (defining alcohol concentration). 

Thus, § 885.235(1g)(c) creates a presumption, based on a driver’s BAC as shown 

by chemical analysis of a sample of a driver’s blood, that the driver was under the 

influence of an intoxicant or operating with a BAC of .08 or more, “shift[ing] the 

 

2

 The hospital test results were received into evidence without objection. 
No. 2019AP1866

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burden to the opposing party to overcome or rebut the presumption.” WIS JI—

CIVIL 1008 (cmt.).3 

¶15 WISCONSIN STAT. § 885.235 does not define “chemical analysis” or 

“chemical test.” However, Pattinson directs us to WIS. STAT. § 343.305, “Tests 

for intoxication; administrative suspension and court-ordered revocation.” This 

statute sets forth testing and laboratory credentialing requirements for blood, 

breath, and urine alcohol and controlled substance testing. See § 343.305(6). The 

results of tests “administered in accordance with this section are admissible” at

the trial of any civil or criminal action or proceeding arising 

out of the acts committed by a person alleged to have been 

driving or operating a motor vehicle while under the 

influence of an intoxicant ... or having a prohibited alcohol 

concentration ... on the issue of whether the person was 

under the influence of an intoxicant ... or [on] any issue 

relating to the person’s alcohol concentration.

Sec. 343.305(5)(d). Paragraph 343.305(5)(d) specifies that “[t]est results shall be 

given the effect required under [WIS. STAT. §] 885.235.”

¶16 Pattinson argues that WIS. STAT. § 343.305(5)(d) provides the only 

statutory basis for treating certain blood alcohol measurements—the results of 

samples drawn and tested under § 343.305(6)—as “prima facie evidence [of 

being] under the influence of an intoxicant.” See WIS. STAT. § 885.235(1g)(c). In 

other words, Pattinson argues that the phrase “results of a chemical test” used in 

 

3

 The comment to WIS JI—CIVIL 1008 states that WIS. STAT. § 885.235(1g)(c) “makes a 

chemical test showing ... of [0.08] (the basic fact) ‘prima facie evidence’ of being under the 

influence of an intoxicant (the other fact).” WIS JI—CIVIL 1008 (cmt.). To be precise, it is WIS.

STAT. § 903.01 (“Presumptions in general”) that “makes this statutory provision a presumption.” 

WIS JI—CIVIL 1008 (cmt.). 
No. 2019AP1866

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WIS JI—CIVIL 1008 denotes only the results of a test performed under 

§ 343.305(6) and cannot cover the results of his Memorial Hospital test.

¶17 The problem with this reasoning is that WIS. STAT. § 885.235(1g) 

does not limit the “under the influence” presumption to a specified subset of tests 

results. By the statute’s terms, “prima facie evidence that [a person] was under the 

influence of an intoxicant” exists whenever a “chemical analysis of a sample of 

the person’s blood” “shows that the person had an alcohol concentration of 0.08 or 

more.” Sec. 885.235(1g)(c). The statute does not preclude the Memorial Hospital 

blood test at issue here from being treated as a “chemical test” or “chemical 

analysis.” This supports Ubersox’s position that the sole fact that “tests 

administered pursuant to WIS. STAT. § 343.305 receive the benefit of the statutory 

presumption in WIS. STAT. § 885.235” does not mean “that only tests administered 

pursuant to [§] 343.305 are entitled to the presumption.” We decline to read into 

§ 885.235(1g) a condition that the legislature did not include. See Brauneis v. 

LIRC, 2000 WI 69, ¶27, 236 Wis. 2d 27, 612 N.W.2d 635 (“We should not read 

into the statute language that the legislature did not put in.”). Accordingly, 

Pattinson has not shown that the court erred in giving WIS JI—CIVIL 1008.

4

 

 

4

 We also note that, in seeking to prove Pattinson’s BAC at the time of the collision,

Ubersox did not rely exclusively on the instruction’s presumptive effect. Importantly, the 

instruction—and WIS. STAT. § 885.235(1g)(c)—permit the results of blood tests taken “within 3 

hours after the event to be proved” to be given the prima facie effect of intoxication at the time of 

the event, without the need for expert testimony. See WIS. STAT. § 885.235(1g); see also WIS 

JI—CIVIL 1008 (cmt.). If, on the other hand, a sample was not taken within three hours, then 

“evidence of the amount of alcohol in the person’s blood or breath as shown by the chemical 

analysis is admissible only if expert testimony establishes its probative value and may be given 

prima facie effect only if the effect is established by expert testimony.” Sec. 885.235(3); see also

WIS JI—CIVIL 1008 (cmt.). Here, Ubersox did not ask the jury to accept the Memorial Hospital 

blood result as representing Pattinson’s blood alcohol level at the time of the collision. Rather, 

Ubersox presented expert testimony—Liddicoat’s extrapolations from the hospital test results—

purporting to show that Pattinson’s BAC was “about .09” at the time of the collision. This 

testimony was before the jury regardless of whether it received WIS JI—CIVIL 1008; with or 

(continued)
No. 2019AP1866

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II. Pattinson Has Forfeited His Challenge to the Admissibility of 

Liddicoat’s Testimony.

¶18 Pattinson argues that Liddicoat’s testimony was “without a 

foundation” and not “based on ‘sufficient facts and data’” because Ubersox did not 

establish whether “the Memorial [Hospital] analysis and result were accurate and 

reliable.” Pattinson points to numerous facts that the defense “did not establish” 

about the hospital test results, including the sample’s “chain of custody” and “the 

apparatus used” for testing.5

¶19 Although not framed as such, this argument is a Daubert6challenge. 

See WIS. STAT. § 907.02(1) (expert witness testimony must be “based upon 

sufficient facts or data,” must be “the product of reliable principles and methods,” 

and must result from the witness’s reliable application of these “principles and 

methods ... to the facts of the case”); State v. Hogan, 2021 WI App 24, ¶¶18-19, 

23, 397 Wis. 2d 171, 959 N.W.2d 658 (above-quoted portions of § 907.02(1) 

codify the Daubert “gatekeeping” standard for admitting expert witness 

testimony). This challenge, however, was not brought before trial or when the 

evidence was offered at trial. Pattinson did bring a pretrial motion in limine 

challenging Liddicoat’s testimony, but at that time he argued only that: 

(1) Liddicoat “does not know and cannot establish the time when the plaintiff’s 

drinking commenced and ... finished,” and (2) her conclusions did not account for 

 

without that instruction, the jury could have reasonably found that Pattinson’s BAC was .09 at the 

time of the collision based on its assessment of Liddicoat’s testimony.

5

 Pattinson also refers to the circuit court’s receiving Liddicoat’s report into evidence, 

but because he fails to make any argument regarding Liddicoat’s report separate from his 

argument with respect to her testimony, we do not separately address the report.

6

 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
No. 2019AP1866

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the “variable rates of absorption ... [and] elimination of alcohol.” It was not until 

Pattinson’s motion after the verdict that he first argued that the hospital’s blood 

collection and testing procedures could not ensure accurate results, potentially 

undermining the foundation for Liddicoat’s extrapolations and conclusions. 

¶20 Thus, Ubersox had no opportunity to demonstrate either pretrial or 

during trial (and the circuit court had no opportunity to rule on) the reliability of 

Liddicoat’s testimony. We agree with Ubersox that Pattinson has forfeited the 

distinct challenges he now raises. See State v. Cameron, 2016 WI App 54, ¶12, 

370 Wis. 2d 661, 885 N.W.2d 611 (the failure to raise a Daubert challenge before 

trial or when the evidence is offered forfeits the right to challenge the substance of 

the expert testimony post-trial); WIS. STAT. § 901.03(1)(a) (“Error may not be 

predicated upon a ruling which admits ... evidence unless a substantial right of the 

party is affected[] and ... a timely objection or motion to strike appears of record, 

stating the specific ground of objection[] if ... not apparent from the context.”).

CONCLUSION

¶21 For the reasons stated, we affirm the circuit court’s judgment on the 

verdict dismissing all of Pattinson’s claims against Ubersox. 

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.