 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
answer questions about the appropriate standard of care and whether she believed that Avery complied with that standard.
At the same hearing, the court adopted a middle ground with Verbracken, essentially holding that she had to provide answers to some standard of care questions but not others. The court directed Verbracken to answer questions about the standard of care "with respect to the plan of care, its preparation, its maintenance, and how it should be followed." The court cautioned, though, that Verbracken could not be questioned about her opinion as to the standard of care applicable to Avery's direct care to the plaintiff.
ANALYSIS
We must decide whether the circuit court's rulings on the permissibility of the standard of care questions were correct. We review a circuit court's evidentiary rulings under the erroneous exercise of discretion standard. Martindale v. Ripp, 2001 WI 113, , 246 Wis. 2d 67, 629 N.W.2d 698. We "will uphold a decision to admit or exclude evidence if the circuit court examined the relevant facts, applied a proper legal standard, and, using a demonstrated rational process, reached a reasonable conclusion." Id. However, " hether a witness has a legal privilege to refuse to provide expert opinion testimony is a question of law, which we review de novo." Glenn, 269 Wis. 2d 575, (citing Alt, 224 Wis. 2d at 84).
We begin with the well-accepted general rule that litigants have a right to every person's evidence. Alt, 224 Wis. 2d at 88. However, this right is not absolute; it is "tempered by constitutional, common law, or statutory privileges." Glenn, 269 Wis. 2d 575, (citing United States v. Nixon, 418 U.S. 683, 709-10 (1974); State v. Gilbert, 109 Wis. 2d 501, 505, 326 N.W.2d 744 (1982)). In Wisconsin, this common law rule is now statutory:
Except as provided by or inherent or implicit in statute or in rules adopted by the supreme court or required by the constitution of the United States or Wisconsin, no person has a privilege to:
(1) Refuse to be a witness; or
(2) Refuse to disclose any matter; or
(3) Refuse to produce any object or writing or
(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.
Wis. Stat. § 905.01.
This statute, along with our common law tradition, led us to the unremarkable declaration that "Privileges are the exception, not the rule." Alt, 224 Wis. 2d at 85.
In Alt, the plaintiff alleged that the defendant's negligent performance during a cesarean section caused her baby to be born with "catastrophic injuries." Alt, 224 Wis. 2d at 79-80. The plaintiffs named a number of experts, including Dr. Acosta, who had provided prenatal care to Dawn Alt but was not present at the time of her baby's injury. Id. at 80. During discovery, Acosta's attorney directed him not to answer the following two questions:
Q: And if you were the OB that was treating this woman at the time knowing that there had been an ultrasound done and wanting to see that report, what would you have done?
Q: No matter what the cause, a patient with a history of term pregnancy and a gush of blood, that's abnormal?
Alt, 224 Wis. 2d at 81.
The Alt court held that Acosta did not have to answer these questions, recognizing a privilege inherent in Wis. Stat. § 907.06. That statute, entitled "Court Appointed Experts," allows a circuit judge to appoint an expert, but provides that "An expert witness shall not be appointed by the judge unless the expert witness consents to act." Wis. Stat. § 907.06(1).
The Alt court
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.
|
|