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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
stions calling for factual testimony. The same witness may be forced to answer a question calling for the witness to render an expert opinion based on those facts, if there is a compelling need for such testimony. A compelling need is present if such testimony is irreplaceable, such as when there are not other individuals in the relevant field qualified to answer the question. Conversely, if there are "a number of people within a field with similar specialized knowledge capable of rendering an expert opinion on the question or questions asked[,] . . . the opinion of one particular expert is not irreplaceable[,]" Alt, 224 Wis. 2d at 89, and compelling circumstances are not present. Further, the fact that a witness qualified as an expert may have unique factual knowledge in the form of personal observations regarding the care and treatment of a patient "make him [or her] no more and no less qualified than any [expert in the relevant field] to give an expert opinion about [those facts]." Id. at 90. Finally, the "procedural aspects of the case" have no bearing on whether compelling circumstances are present. Glenn, 269 Wis. 2d 575, .
If such compelling circumstances are present, then the witness may be forced to render an expert opinion if two additional requirements are met. First, the party seeking testimony must present a plan for reasonable compensation for the expert. Id., ; Alt, 224 Wis. 2d at 89. Second, the expert can be compelled only to provide existing opinions and cannot be required to do additional preparation. Glenn, 269 Wis. 2d 575, ; Alt, 224 Wis. 2d at 89. Thus, if the witness has not formed the opinion necessary to answer the question and would be required to perform additional work to render such an opinion, his or her testimony as to that opinion may not be compelled.
In sum, a proper Alt/Glenn analysis is as follows: 1) Does the question call for the witness to render expert testimony or simply answer a factual question based on personal knowledge and/or observation?; 2) If the question calls for the witness to render an expert opinion, are there compelling circumstances for such testimony independent of the procedural posture of the case or any factual testimony the witness may have provided, such as where there are no other individuals qualified to render the opinion for which the question asks?; 3) Has the party requesting the testimony provided a reasonable plan of compensation ?; and 4) Will the witness be required to perform additional work in order to develop an opinion he or she has not yet formed?
ANN WALSH BRADLEY, J. (concurring in part, dissenting in part).
This court's decision in Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999) left much uncertainty in its wake. Seminars were conducted to explore its meaning, committees were established to curb the abuses proliferating from its application, and articles from both the defense bar and plaintiffs' bar appeared decrying the confusion.
We attempted to clarify the nature and extent of the Alt privilege in Glenn v. Plante, 2004 WI 24, 269 Wis. 2d 575, 676 N.W.2d 413. There, we announced that "Alt does not apply to observations made by a person's treating physician regarding the care and treatment provided to the patient, but rather applies to expert testimony from such a physician as to the standard of care and treatment provided by another physician." Glenn, 269 Wis. 2d 575, .
Now the instant case is before us, again requiring clarification of the Alt doctrine. Unfortunately, rather than clarify, the majority has added to the confusion. With this opinion, lower courts and practicing attorneys are left with something just short of a Byzantine maze. Ac
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