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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
treatment provided to his or her patient, as such compulsion is considerably different than forcing a physician to testify as to the standard of care and treatment provided by another physician." Glenn, 269 Wis. 2d 575, .
Outside of these types of questions, I would conclude that the rules of evidence govern the scope of questioning. I begin with the general proposition that, subject to other rules, all relevant evidence is admissible. Wis. Stat. § 904.02. If a witness is qualified as an expert under Wis. Stat. § 907.02, that witness can testify to scientific, technical, or other specialized knowledge if it will assist the trier of fact to understand the evidence or determine a fact in issue. In addition, testimony in the form of an opinion or inference that is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Wis. Stat. § 907.04.
I recognize that Alt found an implicit privilege under Wis. Stat. § 907.06. Under that section, an expert witness "shall not be appointed by the judge unless the expert witness consents to act," Wis. Stat. § 907.06(1), and is compensated, Wis. Stat. § 907.06(2). While I may not have reached the same conclusion Alt did based on this particular statute, I accept the holdings of Alt and Glenn under principles of stare decisis. Because privileges are the exception and not the rule, however, see Wis. Stat. § 905.01, I would not extend this implicit privilege beyond the circumstances of Alt and Glenn. Under those cases, an expert witness cannot be compelled to testify as to another's standard of care.
An expansive reading of this privilege undermines many rules of evidence (discussed above) and disregards the parties' right and ability to effectively cross-examine witnesses. As we recently stated, "Cross-examination has been described as the greatest legal engine ever invented for the discovery of truth." State v. Stuart, 2005 WI 47, n.7, __ Wis. 2d __, 695 N.W.2d 259 (quoting California v. Green, 399 U.S. 149 (1970) (citation and quotations omitted).
Consistent with these principles, and beginning with the proposition that evidentiary privileges are to be narrowly construed, see Glenn, 269 Wis. 2d 575, , I would conclude that under Alt and Glenn, Avery and Verbracken do not have a privilege to refuse to answer questions regarding their own standard of care. In contrast to the circumstances presented in Alt and Glenn, we are confronted with persons who are already testifying material fact witnesses, who may also be experts. To the extent that Carney-Hayes wants to ask them about their own standard of care as it relates to the treatment that that particular witness provided to Carney-Hayes, she should be allowed to do so. As the Glenn court suggested, this compulsion "is considerably different than forcing a physician to testify as to the standard of care and treatment provided by another physician." Id., . It is one thing to force an expert to take the stand and render an opinion about what someone else did, it is quite another to ask a fact witness on the stand questions that relate to his or her own conduct. I would not extend the Alt privilege beyond that which was identified in Glenn.
That said, before Carney-Hayes can ask the questions, she bears the burden, as the proponent of the evidence, of qualifying each witness to answer the questions. See Wis. Stat. § 907.02. Whether an expert is qualified to offer an opinion is a discretionary determination that rests with the trial court. Simpsen v. Madison Gen. Hosp. Ass'n, 48 Wis. 2d 498, 509, 180 N.W.2d 586 (1970). Although the witnesses here may have various sorts of expertise, "the witness must be quali
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