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Carney-Hayes v. Northwest Wisconsin Home Care7/12/2005
held that this sentence in § 907.06(1) implied a broader privilege inherent in the statute:
We conclude that this express grant implies a privilege to refuse to testify if the expert is called by a litigant. If a court cannot compel an expert witness to testify, it logically follows that a litigant should not be able to so compel an expert. It makes little if any sense to conclude that a litigant has greater rights than a court with respect to obtaining testimony from experts.
We conclude that a witness's privilege to refuse to provide expert testimony is inherent in Wis. Stat. § 907.06. Any other result would be inconsistent and fly in the face of logic.
Alt, 224 Wis. 2d at 86.
Having recognized a privilege inherent in the statute, the court sought to define its scope. After considering the alternatives, the court adopted the test the Iowa Supreme Court articulated in Mason v. Robinson, 340 N.W.2d 236 (Iowa 1983). Under that test, absent a showing of compelling circumstances by the party seeking the testimony, a witness cannot be compelled to testify as an expert. Alt, 224 Wis. 2d at 89. If there are a number of people in a given field of expertise with similar knowledge, each capable of rendering an expert opinion on a particular question, then any one expert's opinion is not unique or "irreplaceable," and there is no compelling need for a particular expert's testimony. Id. at 89.
To compel an expert to testify involuntarily, a party must not only show a compelling need for the testimony but also present a plan of reasonable compensation . Id. The unwilling expert may only be compelled to give existing opinions and may not be asked to undertake additional preparation. Id.; Glenn, 269 Wis. 2d 575, .
In Glenn we refined the privilege recognized in Alt. We reiterated that "there must be a link between a finding of compelling circumstances and the uniquely necessary or irreplaceable opinion testimony that the expert could provide." Glenn, 269 Wis. 2d 575, . In Glenn, the expert, Dr. Charles Koh, was a gynecologist who treated the patient, Glenn, and based on his observations, recommended that she sue one of her former providers for negligent and unnecessary treatments. Id., , 17. However, Dr. Koh refused to provide expert testimony at trial, and even wrote a letter to the court noting that few doctors would want to serve as an expert witness against another local physician. Id., . This court refused to compel Dr. Koh's testimony, holding that other gynecologists could provide testimony as to the applicable standard of care. Id., , 30.
However, the court was careful to note that Dr. Koh might still have to testify at trial:
Even if Koh is not required to give expert opinion testimony in this case, he may 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. . . . e emphasize that a physician can be required to testify as to his or her own observations regarding his or her care and treatment provided to the patient while serving as the patient's treating physician.
Glenn, 269 Wis. 2d 575, .
The decision in Alt has generated some confusion and controversy. Some of that confusion was addressed last term in Glenn, where we emphasized the duty of any medical witness to testify as to the facts. A medical witness may be asked about her own conduct relevant to the case, including her observations and thought processes, her treatment of the patient, why she took or did not take certain actions, what instit
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