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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
ulings with respect to Kathy Avery and Cheryl Fontaine. We reverse the circuit court's evidentiary ruling with respect to Jodene Verbracken. By misapplying our holdings in Alt and Glenn with respect to Verbracken, the circuit court erroneously exercised its discretion. We remand the cause for further proceedings consistent with this opinion.
By the Court.--The orders of the circuit court are affirmed in part and reversed in part and the cause is remanded.
JON P. WILCOX, J. (concurrence).
Although I agree with the result the majority opinion reaches, I write separately because I believe the majority opinion and concurrence/dissent, in their attempt to explore the boundaries of the expert privilege recognized by this court in Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), and reaffirmed last term in Glenn v. Plante, 2004 WI 24, 269 Wis. 2d 575, 676 N.W.2d 413, may be losing sight of the forest through the trees. Thus, I write separately to set forth some clear rules regarding the analysis to be employed in applying the expert privilege, in hopes of providing guidance to litigants and judges dealing with this seemingly difficult area of the law.
I begin by restating a basic proposition recognized by Justice Butler's concurrence/dissent: experts in Wisconsin are qualified on a question-by-question basis. Justice Butler's concurrence/dissent, (quoting 7 Daniel D. Blinka Wisconsin Practice: Wisconsin Evidence § 702.4, at 490 (2d ed. 2001)). The first step in the Alt analysis is thus whether the question posed to the witness calls for an expert opinion. Alt, 224 Wis. 2d at 82. "A question asks for expert testimony if it requires 'scientific, technical, or other specialized knowledge,' Wis. Stat. § 907.02 (1993-94), to answer the question." Id. at 83 (footnote omitted).
If the question does not call for an expert opinion, but rather asks a witness to testify as to his or her personal observations----i.e., calls for a witness to testify as to facts----the Alt privilege does not apply. Id. at 87 (noting that even under the absolute privilege the court ultimately rejected, "the witness is only required to testify regarding his or her observations, just as any other witness"); id. at 87 (noting that under the qualified privilege the court adopted, a witness cannot, absent compelling circumstances, be forced "to give expert testimony")(emphasis added); id. at 90 (ruling that Dr. Acosta must testify "as to his observations" regarding the prenatal care he provided to Dawn Alt). See also, Glenn, 269 Wis. 2d 575, (clarifying that "Alt does not apply to observations made by a person's treating physician . . . but rather applies to expert testimony . . . "); id., (" treating physician may still be required to testify regarding his or her observations relating to the care or treatment provided to his or her patient[.]").
If, on the other hand, the question calls for expert testimony, then the witness has a qualified privilege to refuse to answer the question. Alt, 224 Wis. 2d at 89 (" e hold that absent a showing of compelling circumstances, an expert cannot be compelled to give expert testimony whether the inquiry asks for the expert's existing opinions or would require further work."). See also Glenn, 269 Wis. 2d 575, (reaffirming the qualified privilege set forth in Alt).
The difficulty in applying Alt and Glenn is apparently determining of what constitutes "compelling circumstances." In Glenn, we clarified that " he compelling circumstances should focus on whether there is unique or irreplaceable opinion testimony sought from an expert . . . ." Glenn, 269 Wis. 2d 575, (emphasis added). However, it is often asserted
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