In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-3943 & 01-1040

Lisa Cooper, Individually and as Independent
Administrator of the Estate of Matthew Patrick
Cooper, Deceased, and Gary Cooper, Individually,

Plaintiffs-Appellants,

v.

Eagle River Memorial Hospital, Inc., and
Wisconsin Patients Compensation Fund,

Defendants-Appellees.

Appeals from the United States District Court
for the Western District of Wisconsin.
No. 99-C-722-C--Barbara B. Crabb, Chief Judge.

Argued September 26, 2001--Decided October 25, 2001



  Before Flaum, Chief Judge, and Coffey and
Manion, Circuit Judges.

  Flaum, Chief Judge. Lisa Cooper sued
Eagle River Memorial Hospital ("Eagle
River") for medical malpractice on behalf
of her deceased son. A jury returned a
verdict in favor of Eagle River, and
Cooper appeals several alleged errors at
trial. For the reasons stated herein, we
affirm.

I.   Background

  On June 6, 1998, Cooper, who was
approximately 30 weeks pregnant, was
vacationing in Eagle River, Wisconsin.
Cooper experienced severe cramping in her
lower abdomen and visited Eagle River for
treatment. At the hospital, Diego Perez,
a nurse practitioner, administered an
internal examination and diagnosed Cooper
with mild dehydration and mild
hypoglycemia. Perez subsequently
discharged Cooper.

  Cooper’s pain worsened following her
discharge from Eagle River. Accordingly,
she visited the Howard Young Medical
Center ("Howard Young"), where treating
physicians performed an emergency
Cesarian section and delivered Cooper’s
son, Matthew. Matthew’s condition at
birth required an emergency transfer from
Howard Young to the Marshfield Clinic.
Eight days later, Matthew died.

  On November 15, 1999, Cooper filed a
medical malpractice lawsuit against Eagle
River and other defendants. Cooper
alleged that Eagle River was negligent
for failing to arrange for a physician
consultation, failing to conduct standard
medical monitoring procedures, and
failing to immediately transfer Cooper to
Howard Young. The case proceeded to a
jury trial. At trial, Cooper offered
testimony of several experts on the
issues of liability and causation. In
defense, Eagle River presented expert
testimony from Dr. Nancy Ness, a family
physician, regarding the appropriate
standard of care for nurse practitioners.
Eagle River also relied on expert
testimony from Dr. Janice Lage, who
examined a pathology slide containing
samples of Cooper’s placenta tissue and
testified as to the cause of Cooper’s
placental abruption./1

  After the close of evidence, Cooper
asked the court to instruct the jury that
Eagle River may be liable under a
negligence per se theory because Eagle
River allegedly violated two provisions
of the Wisconsin administrative code. The
first requires nurse practitioners to
consult with physicians via telephone;
the second requires hospitals to maintain
policies and procedures regarding
emergency care. The trial court declined
to issue the negligence per se
instruction and prohibited Cooper from
introducing the provisions into evidence.

  The jury returned a verdict in favor of
Eagle River, and Cooper filed a notice of
appeal. Subsequent to that filing, Eagle
River moved the clerk of the district
court to award costs pursuant to Federal
Rule of Civil Procedure 54 and 28 U.S.C.
sec. 1920. Magistrate Judge Joseph
Skupniewitz, who is also the clerk of the
court in the Western District of
Wisconsin, considered the matter and
awarded Eagle River $17,697.65 in costs.
Cooper filed a timely notice of appeal
from the cost award, and this court
consolidated the two appeals.

  Cooper raises five issues on appeal.
First, Cooper argues that the district
court should have allowed her to present
to the jury a liability theory based upon
negligence per se. Second, Cooper
maintains the district court should have
allowed her to offer into evidence Eagle
River’s operating procedures and policies
regarding emergency obstetrical care.
Third, Cooper claims the district court
erred in introducing the testimony of Dr.
Ness, a family physician who testified as
an expert regarding the appropriate
standard of care for nurse practitioners.
Fourth, Cooper contends that the district
court erroneously admitted a pathology
slide that Eagle River failed to
authenticate. Finally, Cooper appeals the
imposition of costs.

II.    Discussion

A.    Standard of Review and Choice of Law

  In each of the issues raised by Cooper,
we review the district court’s rulings
under the abuse of discretion standard.
See Stuart Park Assoc. Ltd. Partnership
v. Ameritech Pension Trust, 

,
1323 (7th Cir. 1995) (jury instructions);
United States v. Romero, 

, 570
(7th Cir. 1995) (admission of expert
testimony reviewed under a manifestly
erroneous standard). "The abuse of
discretion standard means something more
than our belief that we would have acted
differently if placed in the circumstance
confronting the district judge;" rather,
the district court’s decision must strike
us as fundamentally wrong. Ladien v.
Astrachan, 

, 1056 (7th Cir.
1997), quoting Anderson v. United Parcel
Serv., 

, 315 (7th Cir. 1990)
(internal citations and quotations
omitted). Furthermore, the parties
generally agree that Wisconsin law
governs all substantive issues in
thisdiversity suit, although federal law
applies to procedural matters. See Pro
Football Weekly, Inc. v. Gannett Co., 

, 727 (7th Cir. 1993).

B.    Negligence Per Se Instruction

  Cooper first argues that the district
court erred in refusing to provide the
jury with a negligence per se instruction
based upon Eagle River’s alleged
violation of two provisions of the
Wisconsin administrative code. The first
is Wisconsin Administrate Code N. 8.10
(2) ("Number 8.10 (2)"), which states:
Advanced practice nurse prescribers shall
facilitate collaboration with other
health care professionals, at least one
of whom shall be a physician, through the
use of modern communication techniques.

The second, Wisconsin Code HFS sec.
124.01 ("Section 124.01") requires
hospitals to maintain "written policies
for caring for emergency cases, including
policies for transferring a patient to an
appropriate facility when the patient’s
medical status indicates the need for
emergency care which the hospital cannot
provide." Because Nurse Practitioner
Perez failed to consult with a physician
during Cooper’s treatment, and because
Eagle River failed to maintain the
necessary written policies governing
emergency care, Cooper asserts that a
negligence per se instruction was
appropriate.

  Under Wisconsin law, negligence per se
instructions are appropriate in a
narrowly defined range of circumstances.
Specifically, a per se instruction is
warranted only when the defendant has
violated a "safety statute." To prove
that a legislative enactment is a safety
statute, a plaintiff seeking a negligence
per se instruction must establish three
facts:

(1) the harm inflicted was the type the
statute was designed to prevent; (2) the
person injured was within the class of
persons sought to be protected; and (3)
there is some expression of legislative
intent that the statute become a basis
for the imposition of civil liability.

Antwaun A. v. Heritage Mut. Ins. Co., 

, 466 (Wis. 1999); Betchkal v.
Willis, 

, 687 (Wis. 1985).
The Wisconsin courts have interpreted
this last requirement narrowly; only when
the legislature unambiguously
demonstrates an intent to alter the
common law standards will a negligence
per se instruction be appropriate. Walker
v. Bignell, 

, 454-55 (Wis.
1984); Leahy v. Kenosha Memorial
Hospital, 

, 612 (Wis. Ct.
App. 1984). In distinguishing "safety
statutes" from more general regulatory
measures, plaintiffs must do more than
baldly assert that the statute in
question protects a specific class of
individuals. All legislation promotes the
public welfare to some degree. Instead,
the legislation must evince a clear and
unambiguous legislative desire to
establish civil liability. 

.

  In Leahy, the plaintiff’s evidence
included a Wisconsin statute that defined
the practices of professional nursing and
practical nursing. Plaintiff argued that
the defendant-hospital violated the
statute because the individuals caring
for the plaintiff were not registered
nurses as defined by the law. Based on
this testimony, the trial court included
a negligence per se instruction, and the
jury found for the defendant liable of
medical malpractice. 

.

  In reversing the jury verdict, the
Wisconsin Court of Appeals held that a
statute regulating the nursing profession
and providing for the licensing of nurses
was not a safety statute and did not
evince a legislative intent to create new
standards for civil liability. 

Specifically, the court held that
the statute served three clear purposes:
regulation of the nursing profession;
licensure of nurses; and establishment of
penalties for violations. 

law ensured public safety generally,
nothing in the act revealed "a
legislative intent to grant a private
right of action for a violation of the
statute." 

court rejected the
appropriateness of the negligence per se
instruction because it improperly focused
the jury’s attention on whether "the
nurses’ conduct fell within the concept
of professional nursing or practical
nursing under the statute." 

. Accordingly, the
negligence per se instruction
"effectively prohibited consideration of
the quality and competency" of the
nurses’ conduct, which was the proper
inquiry in a negligence action. 

original).

  This case is fundamentally the same as
the situation presented in Leahy. The
administrative code provisions at issue
here are clearly regulatory in nature and
do not reveal the clear and unambiguous
language necessary to impose civil
liability. Number 8.10 (2) is part of a
larger chapter governing the
certification of advanced practice
nurses. Similarly, while Section 124.24
requires hospitals to maintain written
policies, failure to comply with the
provision allows the Wisconsin Department
of Health and Family Services to revoke
or suspend a hospital’s license. See Wis.
Admin. Code sec. HFS 124.03 (6) and (7).
This, too, supports the conclusion that
the relevant administrative code
provisions do not constitute "safety
statutes" as the Wisconsin Supreme Court
has defined that term. Cf. Antwaun A. v.
Heritage Mut. Ins. Co., 

(1999) (statute providing for alternative
regulatory penalties did not impose new
standard of civil liability).

  The problem associated with issuing a
negligence per se instruction based upon
alleged statutory violations is easy to
identify in this case, just as it was in
Leahy. A negligence per se instruction
would improperly focus the jury’s
attention on whether Perez complied with
the licensure statute governing nurse
practitioners. Instead, the appropriate
inquiry should have been, as the district
court instructed, whether Perez’s care
for Cooper fell within the appropriate
standards of care for nurse
practitioners./2 Because the two code
provisions upon which Cooper relies do
not reflect the clear and unambiguous
language required to warrant a negligence
per se instruction, we affirm the
district court’s refusal to issue one in
this case./3

B.   Hospital Policies and Procedures

  Cooper next argues that the district
court erred in excluding evidence of
Eagle River’s written operating
procedures and policies./4 In large
measure, Cooper’s second argument is
inconsistent with her first, in which she
claimed that the absence of any hospital
procedures constituted negligence as a
matter of law.

  As a general rule in Wisconsin, the
internal procedures of a private
organization do not set the standard of
care applicable in negligence cases. See
Johnson v. Misercordia Community
Hospital, 

, 510 (Wis. Ct.
App. 1980), citing Marolla v. American
Family Mut. Ins. Co., 

, 678
(Wis. 1968). However, the Marolla court
also recognized an exception to this
general rule, "if it could be shown that
an entire industry or substantially an
entire industry had essentially the same
safety regulations," or if Wisconsin law
required the regulations. 

.

  Even assuming the exception discussed in
Marolla applied in the present case,
Cooper’s argument must still fail. Cooper
presented no evidence that the policies
and procedures were in effect at the time
she received medical treatment at Eagle
River. Cooper was not entitled to
introduce policies that were not in
effect during the relevant time period.
As a result, the district court’s
decision to exclude them does not
constitute an abuse of discretion.

C.   Expert Testimony by Family Physician

  During trial, Dr. Nancy Ness, a family
physician testified as an expert on Eagle
River’s behalf regarding the appropriate
standard of care for nurse practitioners.
Cooper objects to Dr. Ness’s testimony in
two respects. First, she claims that
Eagle River should be "judicially
estopped" from presenting Dr. Ness’s
testimony because Eagle River objected in
a motion in limine to non-nurse
practitioners testifying as to the proper
standard of care. When the trial judge
overruled Eagle River’s objection, Eagle
River retained Dr. Ness as an expert.
Second, Cooper challenges Dr. Ness’s
qualifications to render an expert
opinion on the issue of standard of care.
Both arguments are without merit.

  Judicial estoppel is an equitable
doctrine, generally applied by circuit
courts, that "precludes a party from
asserting a position in a legal
proceeding and then subsequently
asserting an inconsistent position."
State v. Petty, 

, 820 (Wis.
1996). The purpose of judicial estoppel
is to "protect the judiciary as an
institution." 

v.
Fleming, 

, 841 (Wis. Ct.
App. 1993). In Wisconsin, the doctrine is
used to prevent litigants from playing
"fast and loose with the judicial system"
by "maintain[ing] inconsistent positions
during the course of the litigation." 

judicial estoppel, a court
must identify three elements: (1) the
later position must be clearly
inconsistent with the earlier position;
(2) the facts at issue should be the same
in both cases; and (3) the party to be
estopped must have convinced the first
court to adopt its position. Salveson v.
Douglas County and Wisconsin County Mut.
Ins. Corp., 

, 192 (Wis.
2001). Here, condition #3 is obviously
lacking because the district judge did
not adopt the position advanced by Eagle
River in its motion in limine. Once the
district judge overruled Eagle River’s
objection to non-nurse practitioners
testifying regarding the appropriate
standard of care, Eagle River was free to
adhere to the judge’s decision.

  Cooper’s objection to Dr. Ness’s
qualifications as an expert is similarly
flawed. Trial judges have broad
discretion in determining expert
qualifications and their determination
will be affirmed unless it is manifestly
erroneous. Bob Willow Motors, Inc. v.
General Motors Corp., 

, 797
(7th Cir. 1989); Jones v. Hamelman, 

, 1028 (7th Cir. 1989). While
Cooper’s assertion that Dr. Ness had only
limited experience with nurse
practitioners has some merit, the trial
court’s decision to admit her testimony
was not manifestly erroneous. Dr. Ness
served as the medical director of a large
multi-specialty clinic that employed two
nurse practitioners and several physician
assistants. Although Dr. Ness’s role is
administrative in nature, at least
twenty-five percent of her practice
concerns obstetrics. Cooper may quarrel
with the conclusions that Dr. Ness
reached (and that the jury obviously
credited), but her qualifications are not
so limited as to warrant a new trial. We
therefore affirm the decision of the
district court to admit Dr. Ness’s
testimony.

C.   Introduction of Pathology Slide

  During the presentation of its defense,
Eagle River called Dr. Janice Lage, who
interpreted a pathology slide containing
tissue samples from Cooper’s placenta and
offered certain conclusions regarding the
cause of Cooper’s placental abruption.
Cooper argues that the district court
erred in admitting the slide because
Eagle River never established a proper
foundation./5

  Federal Rule of Evidence 901 (a) states
that authentication is proper if the
proponent presents "evidence sufficient
to support a finding that the matter in
question is what its proponent claims." A
common requirement in authenticating
evidence is the "chain of custody;"
however, an uninterrupted chain of
custody is not a prerequisite to
admissibility. Instead, gaps in the chain
go to the weight of the evidence, not its
admissibility. United States v. Wheeler,

, 106 (7th Cir. 1986). "If
the trial judge is satisfied that in
reasonable probability the evidence has
not been altered in any material respect,
he may permit its introduction." United
States v. Aviles, 

, 1198
(7th Cir. 1980).

  The pathology slide in this case was
properly authenticated to a degree
sufficient to warrant its admissibility.
The reference number on the slide matched
the specimen number contained in Cooper’s
pathology report. Nowhere does Cooper
allege that Eagle River engaged in
misconduct,/6 nor does Cooper point to
anything in the record that suggests the
placental sample derived from a source
other than Cooper. Based on these facts,
the district court’s decision to admit
the pathology slide was proper. See
United States v. Dombrowski, 

, 525 (7th Cir. 1989); Mauldin v.
Upjohn Co., 

, 649 (5th Cir.
1983) (presenting analogous factual
circumstances).

D.   Imposition of Costs

  Finally, Cooper challenges the
imposition of costs. Following the jury
verdict, Eagle River petitioned the clerk
of the district court for costs pursuant
to Federal Rule of Civil Procedure 54 and
28 U.S.C. sec. 1920. Magistrate Judge
Skupniewitz, who also serves as clerk of
the court in the Western District of
Wisconsin, considered the matter,
accepted Cooper’s written objections, and
awarded costs totaling $17,697.65.

  As a general rule, Federal Rule of Civil
Procedure 54 (d)(1) allows the clerk of
the court to impose costs, and the action
of the clerk may be reviewed by the
district court within five days. In Rose
v. Maremont Corp., 

, 1255
(7th Cir. 1988), this court held that a
party who objected to the imposition of
costs, but did so after the five-day time
limit imposed by Rule 54 (d)(1) expired,
waived any challenge to the costs taxed.
While that case dealt with an untimely
objection, other circuits have held that
the courts of appeals may review costs
taxed only when the party first moves for
review in the district court. See Walker
v. California, 

, 626 (9th
Cir. 1999).

  This case, however, presents a unique
problem due to the "dual role" of
Magistrate Judge Skupniewitz, who serves
as both judicial officer and clerk of the
court. At oral argument, Cooper
maintained that her failure to seek
review in the district court pursuant to
Rule 54 (d)(1) stemmed from her belief
that Magistrate Judge Skupniewitz entered
the order as the presiding district
judge, and not pursuant to his
ministerial duties as the clerk of the
court. Cooper argues that by filing
written objections before Magistrate
Judge (Clerk) Skupniewitz, she
effectively complied with Rule 54
(d)(1)’s jurisdictional requirement.

  Cooper’s position does not excuse her
failure to comply with Rule 54 (d)(1)’s
five-day jurisdictional mandate. First,
the clerk entered his initial order on
November 13, 2000, but Cooper took no
action until at least November 22, 2000,
when she filed her objections to the Bill
of Costs. Thus, even if Magistrate Judge
Skupniewitz (as opposed to Clerk
Skupniewitz) entered the order, Cooper
filed her objections after the five days
allowed by Rule 54. Based upon this
circuit’s precedent in Rose, Cooper’s
failure to file within five days
constitutes a waiver. Second, the Bill of
Costs in this case is clearly signed by
Joseph W. Skupniewitz, Clerk of the
Western District of Wisconsin, and there
is nothing on the Order that suggests
otherwise. Third, and most importantly,
in seeking a stay of enforcement of the
Bill of Costs pending appeal, Cooper
properly brought her motion before the
district judge. Why Cooper would bring a
motion to stay before the appropriate
tribunal, but fail to do the same for a
motion to reconsider is without
explanation and undercuts Cooper’s claim
of confusion.

  We therefore hold that Cooper has failed
to comply with the timing requirement of
Rule 54 (d)(1), and she may not seek
review of the Bill of Costs in this
court.

III.   Conclusion

  For the foregoing reasons, we AFFIRM the
decision of the district court.

FOOTNOTES

/1 Cooper disputes the fact that the slide contained
tissue samples from her placenta.

/2 Cooper relies on Totsky v. Riteway Bus Service,
Inc., 

(Wis. 2000), as an example
of a statute where a negligence per se instruc-
tion was appropriate. Totsky involved the viola-
tion of a "stop sign" statute, which the Wiscon-
sin Supreme Court held constituted a safety
statute. The Wisconsin courts have routinely held
that traffic statutes constitute safety statutes,
the violation of which warrants a per se instruc-
tion. See Bethkal v. Willis, 

, 687
(Wis. 1985); Grana v. Summerford, 

(1961); American Fidelity & Casualty Co., 

(1958). However, that line of cases in
unavailing to Cooper’s claim. Traffic statutes
are not imbued with the regulatory aspects of the
licensing scheme at issue in the present case.
Moreover, each of the traffic statutes clearly
reflected a legislative intent to create a new
standard of civil liability applicable to vehicu-
lar traffic.

/3 Nothing in our opinion suggests that Cooper was
prohibited from introducing evidence of the
Wisconsin administrative code provisions to help
inform the jury’s negligence assessment. The only
issue presented on appeal, however, is whether
Cooper was entitled to a negligence per se in-
struction.
/4 The relevant hospital policies stated that nurse
practitioners must engage in "mandatory consulta-
tion with a physician, either in person or via
telephone," for certain cases, including obstet-
rical complaints.

/5 Cooper also claims that the prejudicial impact of
the slide was exacerbated by Eagle River’s use of
the district court’s "ELMO" system, which is a
common projection device used in courtrooms
across the country. This argument is without
merit and need not be addressed further.
/6 In fact, Cooper states the opposite. See Cooper
Br. at 18 ("Plaintiffs have never implied that
defendants engaged in any improper conduct.").