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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
that there is a compelling need for a witness to provide an expert opinion because they have unique factual knowledge based on their personal observations. See, e.g., Justice Butler's concurrence/dissent, n.6. In my opinion, such assertions confuse the second prong of the Alt inquiry with the first prong.
As already discussed, the Alt privilege does not apply to questions that call for non-expert testimony, i.e., factual knowledge. "' nlike factual testimony, expert testimony is not unique and a litigant will not be usually deprived of critical evidence if he cannot have the expert of his choice.'" Alt, 224 Wis. 2d at 89 (quoting Mason v. Robinson, 340 N.W.2d 236, 242 (Iowa 1983)). When courts are analyzing whether compelling circumstances are present, they must have necessarily already determined that the question calls for expert testimony, not factual knowledge. As noted by this court in Alt: "An expert's testimony is generally based on applying the expert's specialized knowledge to a certain set of facts to then draw conclusions and render an opinion." Id. at 88-89.
Because witnesses are qualified on a question-by-question basis, the fact that an expert witness may also have unique factual knowledge due to his or her personal observations simply has no bearing on whether there is a compelling need for his or her answer to a question calling for an opinion based on those facts. This is so because regardless of whether there are compelling circumstances so as to force an expert to provide an opinion in response to a question, a witness is always required to provide factual testimony under Alt and Glenn. "Even if Koh is not required to give expert opinion testimony in this case, he may be compelled to testify as to his observations as Glenn's treating physician." Glenn, 269 Wis. 2d 575, (emphasis added). The pertinent question is whether there is a compelling need for a witness' expert opinion regarding a set of established facts.
This conclusion was explicitly recognized by the court in Alt:
Dr. Acosta may be unique with respect to the prenatal care provided to Dawn Alt and he must testify as to his observations in that role. However, he does not appear to be unique with respect to the question asked [whether it was abnormal for a patient with a history of term pregnancy to have a gush of blood]. Dr. Acosta's prenatal care of Dawn Alt and authoring her discharge summary make him no more and no less qualified than any other obstetrician to give an expert opinion about whether a gush of blood in a patient who has a history of term pregnancy is abnormal.
Alt, 224 Wis. 2d at 90 (emphasis added). Thus, the fact that a witness has crucial factual testimony regarding his or her own observations is irrelevant for purposes of determining whether there is a compelling need for his or her expert opinion regarding the significance of those facts.
The appropriate inquiry as to whether compelling circumstances are present focuses "on whether there is unique or irreplaceable opinion testimony sought from an expert . . . ." Glenn, 269 Wis. 2d 575, (emphasis added). As we stated in Alt, 224 Wis. 2d at 89: "As appears to be the case here, there can be a number of people within a field with similar specialized knowledge capable of rendering an expert opinion on the question or questions asked. In such instance, the opinion of one particular expert is not irreplaceable." (Emphasis added.)
In other words, under Alt and Glenn, a doctor or nurse is always required to answer questions relating to his or her personal observations or factual knowledge concerning the care of a particular patient. Alt and Glenn simply do not apply to que
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