What to Make of Wisconsin’s Pleading Standard After Hubbard v. Neuman

The word “plausibility” is conspicuously absent from SCOW's recent ruling that patient's complaint stated a viable informed-consent claim against physician.

By: Caleb Gerbitz, Meissner, Tierney, Fisher & Nichols, S.C. 

Crack open any civil procedure textbook, and odds are you won’t get too far before seeing references to the U.S. Supreme Court’s Twombly (2007) and Iqbal (2009) decisions. In those two cases, the Court held that, to survive a motion to dismiss, a complaint must allege facts which would “plausibly” entitle the plaintiff to relief—jettisoning Conley v. Gibson’s(1957) more liberal “no set of facts” standard.

Though lesser known, Wisconsin has its own “Twiqbal” decision. In Data Key Partners v. Permira Advisers LLC,[1] the Wisconsin Supreme Court declared that “a party challenging the decision of a director must plead facts sufficient to plausiblyshow that he or she is entitled to relief.” In reaching this conclusion, the court remarked, “The Supreme Court’s decision in Twombly is consistent with our precedent.” Since Data Key, the standard governing motions to dismiss in Wisconsin has generally mirrored the federal courts’ plausibility standard.

Enter the Wisconsin Supreme Court’s 2025 decision in Hubbard v. Neuman,[2] which might be read to cast some doubt on the continued viability of the plausibility standard in Wisconsin. Not only does the court’s five-justice majority opinion not utter the word “plausibility,” it cites pre-Data Key case law for the proposition that courts “are required to liberally construe the complaint and dismiss only if it is clear that under no circumstances can the claimant recover.” That articulation of the motion-to-dismiss standard sounds a lot more like Conley v. Gibson’s “no set of facts” standard than Twiqbal/Data Key’s plausibility standard.

Hubbard involved an alleged violation of Wisconsin’s informed consent statute, Wis. Stat. § 448.30. That statute provides, “Any physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments.” The fight in this case was about who qualifies as a “physician who treats a patient.”

The patient’s complaint alleged that her OB/GYN diagnosed her with endometriosis and advised her to consider removal of her ovaries—though the patient did not consent to that procedure. The OB/GYN then referred the patient to a surgeon and recommended that the surgeon remove the patient’s ovaries, which the surgeon did. The patient then sued the OB/GYN who made the referral, alleging that the OB/GYN violated Wisconsin’s informed consent statute by failing to obtain the patient’s consent for the removal of her ovaries. 

The OB/GYN filed a motion to dismiss the complaint, arguing that because she did not actually perform the surgery and remove the patient’s ovaries, she was not a “physician who treats a patient” under the informed consent statute. In the OB/GYN’s view, the informed consent statute only reached the physician who actually performed the surgery. 

In a 5-2 decision authored by Chief Justice Ann Walsh Bradley, the Wisconsin Supreme Court disagreed. The court held that the complaint included sufficient allegations that the OB/GYN’s referral to the surgeon and involvement with the planning of the surgery sufficed to allege that the OB/GYN was a “physician who treats a patient” in this context. The court explained:

Taking Hubbard’s allegations as true and drawing all reasonable inferences from a required liberal construction of those allegations leads us to conclude that Dr. Neuman could be a ‘physician who treated’ Hubbard, even though she did not actually remove Hubbard’s ovaries herself.

. . . 

We need not determine whether any of Hubbard’s allegations standing alone would be sufficient to state an informed consent claim. Instead, we conclude only that the sum of Hubbard’s allegations is sufficient to survive Dr. Neuman’s motion to dismiss. Therefore, we conclude that Hubbard could be entitled to relief under § 448.30.[3] 

Justice Ziegler dissented in an opinion joined by Justice Rebecca Grassl Bradley. The dissent offered an interpretation of the informed consent statute that would have warranted a dismissal of the complaint. It explained:

To be a treating physician under § 448.30, the physician needs to either provide the treatment at issue himself or formally order the treatment at issue. This follows from the text of the statute, its history, and the decisions of courts across the country that have addressed who qualifies as a treating physician. Hubbard does not make such allegations, so her complaint fails to state a claim upon which relief may be granted.[4]

No doubt this decision has significant implications for medical malpractice law in Wisconsin. As the dissent points out, it leaves unresolved questions about how much involvement a physician must have in a patient’s care before triggering the informed consent statute. For example, if a physician consults with a colleague before recommending a particular treatment, is there a degree of involvement after which the colleague could face liability under the informed consent statute? 

However, setting those questions to the side, it is the handling of the motion-to-dismiss standard that intrigues the author most about this case. The majority did not overrule Data Key, suggesting that Data Key’s articulation of the plausibility standard remains in effect. However, the language it employed—”dismiss only if it is clear that under no circumstances can the claimant recover”—sounds a lot more like Conley v. Gibson’s pre-Twiqbal (and pre-Data Key) “no set of facts” standard. 

Still, it seems unlikely the court intended to silently overrule Data Key. When Data Key was decided in 2014, Justice Ann Walsh Bradley joined then-Chief Justice Abrahamson’s dissent, which argued, “No Wisconsin case has adopted the rule as stated in Twombly and Iqbal.” Perhaps as the majority author in this case, Chief Justice Ann Walsh Bradley simply did not want Hubbard to be read as reaffirming Data Key’s embrace of Twiqbal and therefore declined to repeat the plausibility standard.

Author Biography: 

Caleb Gerbitz is an attorney in Meissner, Tierney, Fisher & Nichols, S.C.’s litigation practice group. He focuses on assisting clients in complex commercial, insurance, employment, and appellate matters. Caleb brings to his work a dedication to client service and a focus on providing skillful representation throughout a dispute—from pre-litigation, to trial, and through appeal if necessary. 

In addition to his legal practice, Caleb makes a point of closely monitoring Wisconsin’s appellate courts. He authors a Substack column, Appellate Approach, which features regular updates on civil cases before the Wisconsin Supreme Court and Court of Appeals. Caleb also co-hosts a monthly “Up for Review” segment on the MTFN Podcast in which he and a colleague discuss the latest developments in Wisconsin’s appellate system. In practice, Caleb leverages his expertise in Wisconsin’s appellate system to secure successful outcomes for his clients, both at the trial court level and on appeal. 

Before joining Meissner Tierney, Caleb clerked for Justice Brian Hagedorn of the Wisconsin Supreme Court from 2020 to 2022. He graduated summa cum laude from Mitchell Hamline School of Law, where he also earned a certificate in conflict resolution and served as head managing editor of the Mitchell Hamline Law Review. Caleb previously served as a policy advisor in the Wisconsin State Senate and as a master-at-arms in the United States Navy Reserve.