 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
plies a privilege to refuse to testify if the expert is called by a litigant." Id. Because a court cannot compel an expert witness to testify, this court determined that "it logically follows that a litigant should not be able to so compel an expert." Id.
This "unearthed and hitherto unknown privilege permitting expert witnesses to decline to give opinions against their will," 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence, ยง 702.7, at 514 (2d ed. 2001), was not limitless, however. Striking a balance "between the right of expert witnesses to be free from testifying against their will and the needs of the court and litigants for testimony," Alt, 224 Wis. 2d at 88, this court outlined the parameters of this newly created broad qualified expert privilege as follows:
bsent 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. In addition to demonstrating a compelling need for the expert's testimony, the party seeking the expert's testimony must present a plan of reasonable compensation . Finally, if the party seeking an expert's opinion is able to show a compelling need for the expert's opinion, an expert can only be compelled to give existing opinions. Under no circumstances can an expert be required to do additional preparation.
Id. at 89 (footnote omitted).
Applying this privilege to Acosta, this court concluded that Acosta did not have to answer the question presented because he was no more or less qualified than any other obstetrician to give an expert opinion regarding the question asked. Id. at 90. However, Acosta did have to testify as to his observations regarding Dawn's prenatal care. Id.
This court revisited Alt last term in Glenn. In that case, Glenn's gynecologist, Plante, performed various surgical procedures to treat abdominal pain. Glenn, 269 Wis. 2d 575, . Glenn visited another physician, Koh, after the procedures. Id. Koh told Glenn that the procedures were unnecessary, and Glenn then sued Plante for negligence. Id., -5. However, Glenn failed to timely name her expert witnesses, so Glenn named Koh. Id., . Koh objected, stating that he did not want to be part of a malpractice action against a fellow local physician. Id., .
At issue in Glenn was whether there were "compelling circumstances" to justify requiring Koh to give expert opinion testimony regarding the standard of care and treatment provided by another physician. Id., , 22. This court concluded that there were not, as compelling circumstances are linked to "the uniquely necessary or irreplaceable opinion testimony that the expert could provide." Id., . Koh's testimony on another physician's standard of care was not uniquely necessary since other experts could likely testify as to this issue. Id. However, this court concluded that Koh could be "compelled to testify as to his observations as Glenn's treating physician. Such compulsion is considerably different than forcing a physician to testify as to the standard of care and treatment provided by another physician." Id., .
In sum, both Alt and Glenn involved questions that required the treating physicians to offer opinions about another physician's treatment. This court in Glenn characterized Alt as concluding that "Acosta was not so unique as to be required to answer a deposition question that required his expert opinion about another physician's treatment." Id., (citing Alt, 224 Wis. 2d at 90). And in Glenn, this court concluded that "a treating physician may still be required to testify regarding his or her observations relating to the care or
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|