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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
fied for each and every question." 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence, ยง 702.4 at 490 (2d ed. 2001).
If Carney-Hayes qualifies Avery and Verbracken to answer the standard of care questions with respect to their own conduct, I would also conclude that the responses to those questions are relevant. An ultimate issue of fact in a negligence case is whether the jury believes that the defendants (one of which includes the home care provider that employed Avery and Verbracken) acted according to the standard of care. See Nowatske v. Osterloh, 198 Wis. 2d 419, 433-34, 438-39, 543 N.W.2d 265 (1996); Ceplina v. South Milwaukee Sch. Bd., 73 Wis. 2d 338, 342, 243 N.W.2d 183 (1976). The jury will first have to resolve what the standard of care is. If Avery and Verbracken have opinions on what the standard of care is with respect to their own conduct, and whether their own actions conformed to that standard of care, that is all evidence that cuts to the heart of Carney-Hayes' claims.
Thus, because Alt does not apply to questions posed to already testifying material fact witnesses regarding their own standard of care, I would conclude that Carney-Hayes should be allowed to ask both Avery and Verbracken about their own standards of care, provided Carney-Hayes can qualify them as experts. Assuming they can be qualified, I would conclude that the witnesses can be compelled to answer as those questions are relevant to an ultimate issue of fact. I would also conclude that neither Verbracken nor Avery could be compelled to answer questions about any other person's standard of care, as these questions fall precisely within the holdings of Alt and Glenn.
Accordingly, I would affirm the decision and order of the trial court in all respects. For the foregoing reasons, I therefore respectfully dissent from that portion of the majority opinion with respect to Verbracken. I concur with the result reached by the majority opinion with respect to Avery and Fontaine.
I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this opinion.
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