Dawn Alt v. Richard S. Cline, M.D.
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SUPREME COURT OF WISCONSIN Case No.: 96-3356, 96-3588, 98-0029-W Complete Title of Case: 96-3356: In re the Imposition of Sanctions in Dawn Alt et al v. Richard S. Cline et al: George Burnett, Appellant-Petitioner, v. Dawn Alt, Mark Alt and Cody Alt, Respondents. 96-3588: Dawn Alt, Mark Alt and Cody Alt, a minor, by his guardian ad litem, James A. Johnson, Plaintiffs-Respondents, Dr. Ernesto L. Acosta, Appellant-Petitioner, v. Richard S. Cline, M.D., Charles J. Green, M.D., Women's Health Specialists, S.C., Appleton Medical Center, Physicians Insurance Company of Wisconsin, Sentry Insurance Company, Outagamie County Department of Human Services, State of Wisconsin Department of Health and Social Services, and Wisconsin Patients Compensation Fund, Defendants. 98-0029-W State of Wisconsin ex rel Dawn Alt, Mark Alt and Cody Alt, a minor, by his guardian ad litem, James A. Johnson, Petitioners, v. Dr. Ernesto L. Acosta, Richard S. Cline, M.D., Charles J. Green, M.D., Women's Health Specialists, S.C., Appleton Medical Center, Physicians Insurance Company of Wisconsin, Sentry Insurance Company, Outagamie County Department of Human Services, State of Wisconsin Department of Health and Social Services, and Wisconsin Patients Compensation Fund, Respondents. 96-3356 and 96-3588: ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 215 Wis. 2d 203, 572 N.W.2d 895 (Ct. App. 1997-Published) 98-0029-W:PETITION FOR SUPERVISORY WRIT Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: February 18, 1999 October 13, 1998 Outagamie Circuit Dee R. Dyer Bradley, J., dissents (Opinion filed) Abrahamson, C.J., joins Not Participating: ATTORNEYS: For the appellant-petitioner-respondent, Dr. Ernesto L. Acosta, there was briefs by George Burnett and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay and oral argument by George Burnett. For the plaintiffs-respondents-petitioners there were briefs by Thomas Kent Guelzow, Michael L. Laufenberg, and Guelzow & Laufenberg, LTD, Eau Claire and James A. Johnson and Johnson & Houlihan, S.C., Rhinelander and oral argument by Thomas Kent Guelzow. For the defendants-respondents, Richards S. Cline, M.D., Women s Health Specialists, S.C., Physicians Insurance Company of Wisconsin and Wisconsin Patients Compensation Fund, there was a brief by Paul H. Grimstad, John F. Mayer and Nash, Spindler, Dean & Grimstad, Manitowoc, and oral argument by Paul Grimstad. For the defendant-respondent, Appleton Medical Center, there was a brief by Jonathan M. Menn and Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., Appleton and oral argument by Jonathan M. Menn. Amicus curiae brief was filed by Mark L. Thomsen and Cannon & Dunphy, Brookfield for the Wisconsin Academy of Trial Lawyers. Amicus curiae brief was filed by Mark L. Adams and State Medical Society of Wisconsin, and Jeffrey J. Kassel and LaFollette & Sinykin, all of Madison for the State Medical Society of Wisconsin. NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 96-3356, 96-3588, 98-0029-W STATE OF WISCONSIN : In re the Imposition of Sanctions in Dawn Alt et al v. Richard S. Cline et al: IN SUPREME COURT FILED FEB 18, 1999 George Burnett, Appellant-Petitioner, v. Dawn Alt, Mark Alt and Cody Alt, Respondents. Dawn Alt, Mark Alt and Cody Alt, a minor, by his guardian ad litem, James A. Johnson, Plaintiffs-Respondents, Dr. Ernesto L. Acosta, Appellant-Petitioner, v. Richard S. Cline, M.D., Charles J. Green, M.D., Women's Health Specialists, S.C., Appleton Medical Center, Physicians Insurance Company of Wisconsin, Sentry Insurance Company, Outagamie County Department of Human Services, State of Wisconsin Department of Health and Social Services, and Wisconsin Patients Compensation Fund, Defendants. State of Wisconsin ex rel Dawn Alt, Mark Alt and Cody Alt, a minor, by his Marilyn L. Graves Clerk of Supreme Court Madison, WI guardian ad litem, James A. Johnson, Petitioners, v. Dr. Ernesto L. Acosta, Richard S. Cline, M.D., Charles J. Green, M.D., Women's Health Specialists, S.C., Appleton Medical Center, Physicians Insurance Company of Wisconsin, Sentry Insurance Company, Outagamie County Department of Human Services, State of Wisconsin Department of Health and Social Services, and Wisconsin Patients Compensation Fund, Respondents. REVIEW of a decision of the Court of Appeals and PETITION for supervisory writ. ¶1 Reversed; supervisory writ denied. WILLIAM A. BABLITCH, J. Ernesto L. Acosta, M.D. and his attorney, George Burnett, appeal a decision of the court of appeals requiring Dr. Acosta to answer a certain question posed to him at a deposition and affirming sanctions on Burnett for instructing Dr. Acosta not to answer it. Burnett claims that the question posed required the expert opinion of Dr. Acosta and that Dr. Acosta, although an expert, was not required to answer it. He argues that the sanctions were an erroneous exercise of the circuit court s discretion because he was substantially justified in directing his client not to answer. We agree. Accordingly, the decision of the court of appeals is reversed. ¶2 The plaintiffs, Dawn and Mark Alt and their son, Cody Alt, for the first time on appeal have requested that this court issue a supervisory writ ordering the circuit court to enter a default judgment against defendants as a sanction for alleged No. 96-3356, 96-3588, 98-0029-W discovery abuses. in addition plaintiffs to We deny granting a supervisory writ because failing have not made to a follow the sufficient proper showing procedure, to justify a supervisory writ. ¶3 The issues in this case arise from a deposition taken of Dr. Acosta by the plaintiffs when, at the direction of his attorney Mr. Burnett, Dr. Acosta refused to answer the question, No matter what the cause, a patient with a history of term pregnancy and a gush of blood[,] that s abnormal? The refusal presents three issues: 1) Did the question require the expert opinion of Dr. Acosta? 2) If so, did Dr. Acosta have a legal privilege to refuse to answer it? 3) Were the sanctions imposed by the circuit court on attorney Burnett for directing Dr. Acosta to refuse These issues to answer an erroneous exercise of discretion? ¶4 history. generate from a case with a complex On October 2, 1989, plaintiff Dawn Alt went into labor and by a cesarean section performed by Dr. Richard S. Cline, gave birth to Cody Alt. Cody was born with catastrophic injuries including brain injury and other severe temporary and permanent injuries. Cody, his by plaintiffs ), Cody s guardian sued ad various parents, litem Dawn and (collectively parties including Mark Alt, and the Alts or Dr. Cline who performed the cesarean section delivery, and the medical clinic at which Dawn Alt delivered the baby. The Alts alleged that the defendants were negligent in their duties in the delivery of Cody. 2 No. 96-3356, 96-3588, 98-0029-W ¶5 During discovery, the plaintiffs named a number of medical doctors as expert witnesses, including Dr. Acosta. Dr. Acosta her had provided prenatal care to Dawn discharge summary after Cody Alt s birth. and wrote Dr. Acosta was not present at Cody s delivery, and he was not named as a defendant in the case. ¶6 At his first deposition on September 20, 1993, Dr. Acosta appeared with attorney Paul Grimstad who represented Dr. Cline and the medical clinic. The deposition ended when plaintiffs and defendants attorneys disagreed regarding a line of questioning which Grimstad characterized as requesting Dr. Acosta s expert opinion rather than a recounting of his personal observations. ¶7 The plaintiffs then filed a motion to compel discovery and to remove Grimstad as counsel for Dr. Acosta. The Outagamie County Circuit Court, Judge Dee R. Dyer, presiding, granted the motion, determining that the line of questioning in dispute was proper and disqualifying Grimstad as Dr. Acosta s counsel. The circuit The court also imposed sanctions against Grimstad. court of appeals affirmed.1 ¶8 Burnett. Dr. Acosta then hired his own counsel, attorney George In a series of correspondence between Burnett and plaintiffs counsel, Burnett attempted to clarify the scope of questions that would be posed 1 to Dr. Acosta at a second Alt v. Cline, No. 94-2076, unpublished slip op. (Wis. Ct. App. June 6, 1995). 3 No. 96-3356, 96-3588, 98-0029-W deposition. Plaintiffs counsel, attorney Thomas K. Guelzow and guardian ad litem, attorney James A. Johnson, indicated that absent a protective order, they would question Dr. Acosta to the full extent allowed by Wisconsin s liberal discovery rules. Attorney Burnett did not request a protective order. ¶9 Dr. Acosta s second deposition on July 23, 1996, again ended when attorney Burnett directed Dr. Acosta to not answer questions that he asserted asked for information based on Dr. Acosta s expert opinion rather than his personal observations. Specifically, Burnett objected to the following 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? . . . [and] . . . Q. No matter what the cause, a patient with a history of term pregnancy and a gush of blood[,] that s abnormal? ¶10 Plaintiffs counsel again filed a motion, requesting an order to compel discovery and for sanctions. The circuit court made its decision orally from the bench during the motion hearing. The court determined that the first question regarding what Dr. Acosta would have done need not be answered. determination is not the subject of this appeal. second question that is before us. the second question regarding 4 It is the The court determined that whether abnormal should have been answered. That a gush of blood was No. 96-3356, 96-3588, 98-0029-W ¶11 The circuit court also granted plaintiffs motion for an order imposing sanctions pursuant to Wis. Stat. § 804.12(2) and imposed sanctions of $2,335 against Burnett. ¶12 Dr. Acosta and Burnett appealed, appeals affirmed both circuit court orders. and the court of Burnett v. Alt, 215 Wis. 2d 203, 214, 216, 572 N.W.2d 895 (Ct. App. 1997). ¶13 review. writ Burnett and Dr. Acosta petitioned this court for Plaintiffs also petitioned this court for a supervisory pursuant to Wis. Stat. §§ (Rule) 809.51 and 809.71, ordering the circuit court to enter a default judgment against defendants on the grounds of discovery abuse. This court granted both petitions. ¶14 In addition to the issue regarding the supervisory writ, which we do not grant, three issues are presented: 1) Did the question posed to Dr. Acosta require his expert opinion? We hold that it did. 2) Did Dr. Acosta, a non-party physician, have a legal privilege to refuse to answer it? the circumstances presented he did. erroneously against exercise Burnett for its Dr. allegedly objectionable question? required to substantially answer justified the in 3) Did the circuit court discretion directing We hold that under in Acosta imposing to not sanctions answer the Because Dr. Acosta was not question, directing attorney him not Burnett to answer was it. Therefore, we hold that the circuit court erroneously exercised its discretion in imposing sanctions. the court of appeals decision. I. 5 Accordingly, we reverse No. 96-3356, 96-3588, 98-0029-W ¶15 Dr. We must first determine whether the question posed to Acosta asked for his expert opinion. At the second deposition of Dr. Acosta on July 23, 1996, he was asked the following question: No matter what the cause, a patient with a history of term abnormal? pregnancy and a gush of blood[,] that s Stated another way, the question in essence was: Is a gush of blood occurring to a patient with a history of term pregnancy an abnormal condition? ¶16 A circuit court discovery. Borgwardt N.W.2d (Ct. 581 discretionary App. decision v. has discretion 196 Wis. 2d This court will reviewed the Redlin, 1995). if whether the court applied the proper standard of law. Id. to 342, compel 350, 538 uphold facts a and However, to determine whether the circuit court applied the proper standard of law in this case, we must determine whether the question asked for Dr. Acosta s expert opinion. ¶17 A question asks for expert testimony if it requires scientific, technical, Stat. § 907.02 or (1993-94),2 other specialized to answer the knowledge, question. Wis. Such specialized knowledge is that which is not within the range of ordinary training or intelligence. State v. Johnson, 54 Wis. 2d 561, 564, 196 N.W.2d 717 (1972) (citing Pollock v. Pollock, 273 Wis. 233, 77 N.W.2d 485 (1956) and Cramer v. Theda Clark Mem. Hosp., 45 Wis. 2d 147, 172 N.W.2d 2 427 (1969)). Asking for All references to the Wisconsin Statutes are to the 199394 version unless otherwise noted. 6 No. 96-3356, 96-3588, 98-0029-W expert testimony call[s] upon [persons] of exceptional experience and qualifications to give their opinion . . . . Philler v. Waukesha County, 139 Wis. 211, 214, 120 N.W. 829 (1909). ¶18 There can be no doubt that the question posed called for an expert opinion. Whether a gush of blood in a person with a history of term pregnancy is normal or abnormal can only be answered in physician. any meaningful What is normal? and relevant way What is abnormal? by a trained Certainly a lay person, medically untrained and uneducated, is in no position to answer such a question with anything other than a speculative guess. ¶19 opinion The question which could called only for be Dr. based Acosta s upon his opinion, an specialized knowledge, knowledge not within the range of ordinary training and intelligence. Accordingly, it was a question asking for an expert opinion. II. ¶20 Having determined that the question at issue asked for Dr. Acosta s expert opinion, we now turn to the second issue presented by this case: whether Dr. Acosta has a legal privilege to refuse to provide his expert opinion. We conclude that under the circumstances presented the answer is yes. ¶21 Whether a witness has a legal privilege to refuse to provide expert testimony is a question of law which this court reviews de novo. See Vultaggio v. Yasko, 215 Wis. 2d 326, 329, 572 N.W.2d 450 (1998). 7 No. 96-3356, 96-3588, 98-0029-W ¶22 As a general rule, no person has a privilege to refuse to give evidence. Wisconsin Stat. § 905.01 provides: 905.01 Privileges recognized only as provided. 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. ¶23 Privileges [P]arties in are litigation the exception, are entitled not to the every rule. person s evidence, except when a person from whom evidence is sought has a privilege not to give evidence that is inherent or implicit in statute or in rules adopted by the supreme court or required by the constitution of the United States or Wisconsin. Borgwardt, 196 Wis. 2d at 350-51 (quoting Wis. Stat. § 905.01). See also Wis. Stat. § 804.01(2)(a) (reprinted in part below).3 ¶24 Having a right to refuse to provide certain testimony is a privilege. 3 To determine whether an expert has a legal Wisconsin Stat. § 804.01(2)(a) provides in pertinent part: (2) SCOPE OF DISCOVERY. Unless otherwise limited by order of the court in accordance with the provisions of this chapter, the scope of discovery is as follows: (a) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . . (b) 8 No. 96-3356, 96-3588, 98-0029-W privilege to refuse to provide an expert opinion we must determine whether a statute, supreme court rule or the federal or state constitutions expressly or implicitly provides for a testimonial privilege for experts. Although we find no express provision in the statutes, supreme court rules or constitutions granting a privilege in all cases for expert testimony, there is an express statement in the statutes regarding court-appointed experts. ¶25 Wisconsin Stat. § 907.06 regarding court-appointed experts provides in pertinent part: (1) APPOINTMENT. judge may appoint any expert witnesses agreed . . . The upon by the parties, and may appoint witnesses of the judge s own selection. An expert witness shall not be appointed by the judge unless the expert witness consents to act. (emphasis supplied) This provision was included in § 907.06 as originally Wisconsin Rules of Evidence, 59 Wis. 2d R1, R215. of this rule is clear and unambiguous. enacted. The language Reasonable people could not differ regarding the meaning of this rule. A judge may not appoint an expert unless the expert consents to so act. ¶26 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. 9 No. 96-3356, 96-3588, 98-0029-W ¶27 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.4 ¶28 Having determined that a witness has a legal privilege to refuse to provide expert testimony, we must determine the extent of such privilege. Dr. Acosta argues that an expert has an absolute privilege not to testify or, in the alternative, a qualified privilege. ¶29 Cases across the compelling experts to country testify. absolute privilege for experts. vary Some in the states approach have to adopted an Under the absolute privilege the witness is only required to testify regarding his or her observations, just as any other witness. compelled to give expert testimony even The witness is not if the witness had formed opinions prior to the deposition and without additional See Ondis v. study, experimentation, thought or reflection. Pion, 497 A.2d 13 (R.I. 1985); People v. Thorpe, 72 N.E.2d 165 (N.Y. 1947); Stanton v. Rushmore, 169 A. 721 (N.J. 1934). ¶30 ago, have Other courts, adopted a including narrow this qualified 4 court nearly privilege for 90 years experts. We note that the circuit court implicitly recognized an expert witness privilege when it determined that attorney Burnett appropriately made an objection to the first question posed to Dr. Acosta, regarding what he would have done. The Alts did not challenge this circuit court determination. Because we determine that the question regarding whether a gush of blood is abnormal also asks for Dr. Acosta s expert opinion, Dr. Acosta also did not have to answer that question. 10 No. 96-3356, 96-3588, 98-0029-W Under the narrow compelled amount to of qualified give expert study, testimony 1352, already 1353 (E.D. has an opinion, a if experimentation, Philler, 139 Wis. at 215. Supp. privilege, witness doing thought so may not be requires any or reflection. See also Reed v. Fetherston, 785 F. Wis. 1992). If, formed without however, the need a witness for further study, experimentation, thought or reflection, that opinion is a fact to which the witness must testify. Philler, 139 Wis. at 215. ¶31 Some courts have adopted a broader qualified privilege for experts. may be Under this broader qualified privilege, an expert forced to provide expert testimony but only if the compelling party affirmatively demonstrate[s] some compelling necessity for an expert s testimony that overcomes the expert s and the public s need for protection. Additionally, an adequate Mason v. Robinson, 340 plan of compensation must be presented. N.W.2d 236, 242 (Iowa 1983). See also, Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 560-61 (7th Cir. 1984). an expert only can be compelled to give Furthermore previously formed opinions and cannot be required to engage in any out-of-court preparation. ¶32 Mason, 340 N.W.2d at 242-43. The appropriate scope of expert privilege requires 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. A person who has expended resources to attain specialized knowledge should not be forced to part with that knowledge upon demand, absent compelling circumstances. 11 We No. 96-3356, 96-3588, 98-0029-W do not force lawyers to provide services to anyone who walks in the door. We do not force other professionals to provide their services absent compelling circumstances. We see no reason to treat experts in a court of law any differently. ¶33 On the other hand, the general maxim that everyone has a right to every person s evidence, is premised on the need of the judicial system to have access to all information needed to reach the truth. State v. Migliorino, 170 Wis. 2d 576, 587, 489 N.W.2d 678 (Ct. App. 1992) (citing United States v. Nixon, 418 U.S. 683, 710 (1974)). See also Mason, 340 N.W.2d at 242. In some situations, it is conceivable that a particular expert s testimony is uniquely necessary. Although the duty to testify requires sacrifices from a citizen, the inconvenience to the witness may be overborne by the need of the court and litigant for the testimony. Mason, Deitchman, 740 F.2d at 563. 340 N.W.2d at 242. See also The cornerstone of expert testimony is the need for such testimony to assist the trier of fact. Wis. Stat. § 907.02. An expert s testimony is generally based on applying the expert s specialized knowledge to a certain set of facts to then draw conclusions and render an opinion. Mason, 340 N.W.2d at 242. ¶34 of As appears to be the case here, there can be a number people capable of questions particular within a field with an expert rendering asked. expert In is such not similar specialized opinion instance, on the irreplaceable. the knowledge question opinion [U]nlike of or one factual testimony, expert testimony is not unique and a litigant will 12 No. 96-3356, 96-3588, 98-0029-W not be usually deprived of critical evidence if he cannot have the expert of his choice. ¶35 We believe Id. that the broad qualified privilege for experts, adopted by the Iowa Supreme Court in Mason, properly strikes the balance between the competing interests of the needs of the court and litigants for testimony and the implied privilege of expert witnesses to be free from testifying against their will. Accordingly, we hold that absent a showing of compelling circumstances, an expert cannot be compelled to give expert testimony whether the inquiry asks for existing opinions or would require further work.5 the expert s In addition to demonstrating a compelling need for the expert s testimony, the party seeking the expert s reasonable compensation. expert s opinion is expert s opinion, existing opinions. an able testimony Finally, to expert Under no show can must if a the strikes a balance only be circumstances between a plan of party seeking an compelling required to do additional preparation. approach present need compelled can an for to the give expert be We believe that this a litigant s need for irreplaceable or unique testimony, and the expert s right to be free from compulsion. 5 Our holding does not affect the circuit court s ability to order further discovery [of an opposing expert expected to testify at trial] by other means, subject to such restrictions as to scope and such provisions . . . concerning fees and expenses as the court may deem appropriate. Wis. Stat. § 804.01(2)(d)1. 13 No. 96-3356, 96-3588, 98-0029-W ¶36 In the present case, the Alts did not show a compelling need for Dr. Acosta s testimony with respect to the particular question asked. They argue that he is a unique witness because he provided prenatal care to Dawn Alt and wrote her discharge summary. We disagree. Dr. Acosta may be unique with respect to the prenatal care provided to Dawn Alt and he must testify as to his observations in that role. However, he does not appear to be unique with respect to the question asked. Dr. Acosta s prenatal care of Dawn Alt and authoring her discharge summary make him no more and no less qualified than any other obstetrician to give an expert opinion about whether a gush of blood in a patient who has a history of term pregnancy is abnormal. ¶37 The Alts argue that the testimony to which an expert can be compelled to testify was established nearly 90 years ago in Philler. They assert that according to Philler an expert must regarding testify existing opinions although he or she cannot be compelled to engage in further study, experimentation, thought or reflection. Philler, 139 Wis. at 215. We agree that this of to is the directive Philler but contrary the Alts assertion, Philler is no longer the law in Wisconsin. ¶38 a With the adoption of the Wisconsin Rules of Evidence, privilege which existed at common law is no longer valid unless adopted by the legislature or a supreme court rule, or required by the state or federal constitution. Davison v. St. Paul Fire & Marine Ins. Co., 75 Wis. 2d 190, 202, 248 N.W.2d 433 (1977); Wis. Stat. § 905.01. 14 No. 96-3356, 96-3588, 98-0029-W [I]f there existed a prior common law privilege . . . , unless such privilege was provided by or was inherent or implicit in statutes, or in the rules of the supreme court, or was required by the United States or Wisconsin constitution at the time the appellant asserted the privilege, this court could not, after the enactment of sec. 905.01, recognize such a privilege. Id. The common law rule as expressed in Philler that an expert may be compelled to testify to an opinion he or she has already formed, Philler, 139 Wis. at 215, was not provided by, or inherent or implicit in the statutes, supreme court rules, nor required by the state or federal constitution. Therefore, after the enactment of Wis. Stat. § 905.01, the court cannot recognize the common law privilege as expressed in Philler.6 As discussed above, the concepts of Philler were modified and recreated when the legislature enacted Wis. Stat. § 907.06, prohibiting courts from appointing experts without their consent. Unlike Philler which required experts to testify regarding existing opinions, § 907.06 makes no such requirement. III. 6 As support for its determination that the narrow privilege for expert witnesses recognized in Philler should not be overruled, the dissent asserts that Philler has been cited with approval several times since the Wisconsin Rules of Evidence were enacted. Dissent at 9. However, our opinion regarding the narrow privilege recognized for expert witnesses does not overrule the provisions of Philler regarding county payment of subpoenaed witnesses, Payment of Witness Fees in State v. Huisman, 167 Wis. 2d 168, 172-73 n.2, 482 N.W.2d 665 (Ct. App. 1992), or that employment of experts is governed by contract law, Secura Ins. Co. v. Wisconsin Public Service Corp., 156 Wis. 2d 730, 735, 457 N.W.2d 549 (Ct. App. 1990). 15 No. 96-3356, 96-3588, 98-0029-W ¶39 At this point, we have determined that the question posed to Dr. Acosta about whether a gush of blood was abnormal asked for his expert opinion. We have also determined that absent Dr. compelling circumstances Acosta privilege to refuse to answer the question. has a qualified We now turn to the third issue presented by this case: whether the circuit court erroneously against exercised Burnett for its discretion directing Dr. in Acosta imposing not to sanctions answer the question. ¶40 A circuit court has discretion to impose sanctions for Paytes v. Kost, 167 Wis. 2d 387, 393, 482 discovery abuses. N.W.2d 130 (Ct. App. 1992) (citing Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 273, 470 N.W.2d 859 (1991)). A discretionary decision will be sustained if the circuit court has examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, conclusion that a reasonable judge could reach. Wis. 2d at 393. reached a Paytes, 167 Because we concluded above, as a matter of law, that absent compelling circumstances a witness has a qualified privilege to refuse to provide expert testimony, we conclude that the circuit court did not apply the proper standard of law. Accordingly, the circuit court erroneously exercised its discretion in imposing sanctions. ¶41 In response to Burnett and Dr. Acosta s conduct at the second deposition, plaintiffs counsel filed a motion to compel discovery pursuant to Wis. Stat. §§ 804.12(1) and (2) and for 16 No. 96-3356, 96-3588, 98-0029-W sanctions pursuant to § 804.12(2). Section 804.12(2) provides in pertinent part: (2) FAILURE TO COMPLY WITH ORDER. (a) If a party or an officer, director, or managing agent of a party or a person designated under s. 804.05(2)(e) or 804.06(1) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under sub. (1) or s. 804.10, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . . (b) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. In other words, if the deponent fails to comply with an order to provide or permit discovery, e.g., fails to answer a deposition question, the court may impose various sanctions including the imposition of reasonable expenses. ¶42 court It is imposed not clear sanctions in on the record whether Burnett only under the Wis. circuit Stat. § 804.12(2) as a sanction for failing to comply with the court s prior order to compel discovery or if it also imposed expenses under Wis. Stat. § 804.12(1) (reprinted below)7 as a sanction for 7 Wisconsin Stat. § 804.12(1) provides in pertinent part: (1) MOTION FOR ORDER COMPELLING DISCOVERY. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery . . . . . . 17 No. 96-3356, 96-3588, 98-0029-W granting plaintiffs second motion to compel discovery. However, regardless of the basis for the court s imposition of sanctions, our determination is the same because both §§ 804.12(1) and (2) allow the court to deny a motion to impose sanctions if the non-compliant party was substantially justified. ¶43 matter Parties can obtain that is not discovery privileged. Wis. regarding Stat. any relevant § 804.01(2)(a). Although the circuit court should not rely on the judgment of the attorneys involved for their self-interested determination that a privilege exists, Franzen v. Children s Hospital, 169 Wis. 2d 366, 386-87, substantiated 485 assertion N.W.2d of 603 (Ct. privilege App. is 1992), a substantial justification for failing to comply with an order to provide or permit discovery. ¶44 At Dr. Acosta s second deposition, the Alts attorney asked Dr. Acosta whether a gush of blood was abnormal for a patient with a history of term pregnancy. Contrary to the dissent s assertion that there was no substantiated assertion of an expert witness privilege, dissent at 15, the record shows (c) Award of expenses of motion. 1. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. 18 No. 96-3356, 96-3588, 98-0029-W that Dr. Acosta s attorney, Burnett, specifically objected on the grounds that the question asked for an expert opinion: Let me object to the form of the question. Again, that asks the doctor for expert opinion and I m going to direct him not to answer that question. Attorney Burnett explained that he was unwilling to allow Dr. testimony regarding the Acosta care to and give wide-open treatment provided physician and others present at the child s birth. expert by the For this, the circuit court imposed sanctions. ¶45 forcing Were we to uphold sanctions in this case, we would be Burnett and Dr. Acosta to make a choice protecting a privilege and avoiding sanctions. answered the question regarding whether a between Had Dr. Acosta gush of blood was abnormal, his privilege to refuse to provide expert testimony would have been violated. been avoided, and even strike the answer, this Although sanctions would then have though a might reviewing be little court might consolation later to the expert who for whatever reason was forced to testify against his or her will. We cannot put attorneys and deponents in this untenable situation. ¶46 not a We caution attorneys that our holding in this case is license to unsubstantiated and assert unsubstantiated unfounded not privilege imposing sanctions is privileges. not substantial justification for § 804.12(2). See B&B Investments v. Mirro Corp., 147 Wis. 2d 675, 687-88, 434 N.W.2d 104 (Ct. App. 1988). 19 under An Wis. Stat. No. 96-3356, 96-3588, 98-0029-W ¶47 In sum, because we have concluded, as a matter of law, that Dr. Acosta was not required to answer the question, we determine that Burnett was substantially justified in objecting to the question Accordingly, and the directing circuit Dr. court Acosta to not erroneously answer exercised it. its discretion in imposing sanctions because it did not apply the proper standard of law. We reverse the court of appeals decision. IV. ¶48 We now reach the fourth issue presented by this case: whether granting a supervisory writ ordering the circuit court to enter a default judgment against the defendants in this case is appropriate. We conclude that a supervisory writ is not appropriate for two reasons. First, plaintiffs failed to follow the proper procedure by first petitioning the court of appeals for a supervisory 809.71. writ as required by Wis. Stat. § (Rule) Second, plaintiffs have not made a sufficient showing to justify a supervisory writ. ¶49 The plain language of Wis. Stat. § (Rule) 809.71 requires that before this court can grant a supervisory writ, the moving party must first file a petition for a supervisory writ in the court of appeals under s. 809.51 unless impractical to seek the writ in the court of appeals. 809.71. See also Judicial Council § (Rule) 809.71 (West Stat. Ann. 1994). Notes1981, it is § (Rule) Wis. Stat. There is nothing in the record, the briefs filed with the court of appeals, or the court of appeals decision, Alt, 215 20 Wis. 2d 203, that indicates No. 96-3356, 96-3588, 98-0029-W plaintiffs ever supervisory writ. petitioned the court of appeals for a The plaintiffs also have not demonstrated that it was impractical to first seek a supervisory writ in the court of appeals. ¶50 Even if the plaintiffs had followed the proper procedure, the plaintiffs have not made a sufficient showing to justify a supervisory writ ordering the circuit court to enter a default judgment against defendants. A petition for a supervisory writ will not be granted unless: (1) an appeal is an inadequate remedy; (2) grave hardship or irreparable harm will result; (3) the duty of the trial court is plain and it must have acted or intends to act in violation of that duty, and (4) the request for relief is made promptly and speedily. State ex rel. Oman v. Hunkins, 120 Wis. 2d 86, 91, 352 N.W.2d 220 (Ct. App. 1984) (citing State ex rel. Beaudry v. Panosian, 35 Wis. 2d 418, 426, 151 N.W.2d 48 (1967)). ¶51 Regarding the first criterion for a supervisory writ, that an appeal is an inadequate remedy, the plaintiffs argue that the circuit court and court of appeals have recognized the discovery abuses occurring in this case. They assert, however, that neither court has imposed adequate sanctions. We disagree. As discussed above, imposing sanctions is a decision within the circuit court s discretion. Paytes, 167 Wis. 2d at 393. A discretionary decision will not be overturned by an appellate court if the circuit court examined the relevant facts, applied the proper demonstrated standard in the of law record, and, using reaches 21 a a rational conclusion process that a No. 96-3356, 96-3588, 98-0029-W reasonable judge could reach. is one of many sanctions enforce discovery orders. Id. Imposing monetary sanctions available to the circuit Wis. Stat. § 804.12(2). court to Because it is within the circuit court s discretion to determine which of the available sanctions appropriately addresses the non- compliance, we cannot determine that an appeal is an inadequate remedy. ¶52 Regarding the second criterion in Oman that grave or irreparable harm will result, plaintiffs argue that Dr. Acosta s testimony is irreparably tainted by the discovery abuses of his attorney and the defendants attorneys. understand plaintiffs insistence testimony of Dr. Acosta. We disagree. on obtaining We do not the We recognize that he was Dawn Alt s treating physician and wrote her discharge summary. Dr. Acosta has not disputed observations as a witness. record shows experts. that that the he must However, testify to his Regarding his expert testimony, the plaintiffs Although expert have record is named not many clear other about medical the exact nature of the testimony of each of these named expert witnesses, there are undoubtedly other experts in testify regarding obstetrical procedures. the world who could While plaintiffs may not attain the testimony they hoped for from Dr. Acosta, there are countless other experts on whom they could call. ¶53 Turning plaintiffs have to not the third shown that criterion the circuit intends to act in violation of a plain duty. listed court in Oman, acted or Dismissal as a sanction for discovery abuses, as the plaintiffs request, is 22 No. 96-3356, 96-3588, 98-0029-W proper only when the moving party shows that the non-compliant party acted in bad faith or engaged in egregious Johnson, 162 Wis. 2d at 275 (citations omitted). doubt that the attorneys in this case developed a contentious relationship. have conduct. There is no unfortunately However, we find nothing in the record that indicates Burnett s actions rose to the level of egregious conduct. Furthermore, Burnett was correct in asserting that the question posed by plaintiff s counsel during deposition asked for Dr. Acosta s expert opinion. ¶54 There is also nothing in the record to indicate that the action of the attorneys for the defendants in this case rose to the level of egregious conduct or actions made in bad faith. Rather the attorney for defendants, Dr. Cline and the Women s Health Specialists, ceased all communications with Dr. Acosta in compliance with the circuit court order following Dr. Acosta s first deposition. plain duty to Accordingly, the circuit court did not have a impose sanctions beyond what it, in its discretion, determined was appropriate in this case, monetary sanctions. ¶55 Finally, the fourth Oman criterion for a supervisory writ is if the request for relief is made promptly and speedily. Plaintiffs made a request for sanctions pursuant to Wis. Stat. § 804.12(2), along with their motion to compel discovery. Although dismissal of the action is an available sanction under § 804.12(2)(a)3, plaintiffs dismissal as a sanction. never specifically requested While plaintiffs made the request for 23 No. 96-3356, 96-3588, 98-0029-W sanctions promptly and speedily, this factor standing alone is not enough to convince us that a supervisory writ is warranted. ¶56 In sum, showing that a against the the plaintiffs supervisory defendants is have writ not made entering appropriate. We a sufficient default judgment accordingly deny plaintiffs request for a supervisory writ. By the Court. The decision of the court of appeals reversed; the petition for a supervisory writ is denied. 24 is 96-3356, 96-3588, 98-0029-W.awb ¶57 majority ANN WALSH announces BRADLEY, the J. discovery (Dissenting). of an previously unheard of in this state. Today evidentiary the privilege Although unrecognized to date by the bench, bar, or legal scholars, the majority claims that this privilege really has been in existence for the last 25 years. legal Because the majority ignores the requirement for express authority needlessly to discards create such precedent, and an evidentiary wastes an privilege, opportunity to meaningfully address the continuing problem of incivility in the discovery process, I respectfully dissent. I. A. ¶58 The requirement majority for first definite evidentiary privilege. missteps legal because authority it ignores the to create an Prior to 1973 a court was reluctant to adopt or expand privileges unless such action was a transcendent public good. See, e.g., State v. Driscoll, 53 Wis. 2d 699, 706, 193 N.W.2d 851 (1972); see also Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). After 1973, pursuant to Wis. Stat. § 905.01 this court lost that ability in its entirety. Davison v. St. Paul Fire & Marine Ins. Co., 75 Wis. 2d 190, 204, 248 N.W.2d 433 (1977). prohibited from creating new privileges. It is statutorily Davison, 75 Wis. 2d at 202-04; State v. Beno, 110 Wis. 2d 40, 46-47, 327 N.W.2d 712 (Ct. App. 1982), rev'd on other grounds, 116 Wis. 2d 122, 341 N.W.2d 668 (1983). 1 96-3356, 96-3588, 98-0029-W.awb ¶59 As the majority correctly notes, Wis. Stat. § 905.01 recognizes three types of privileges: (1) those explicitly created by statute; (2) those "inherent or implicit" in explicit statutes; and constitutions. (3) those Most required certainly, by the there is federal no or express state "expert witness privilege" in the statutes of this state, or in any constitutional However, the provision.8 majority The contends majority that a recognizes solitary as much. sentence in § 907.06(1) preventing a court from appointing an expert witness to a case unless that witness consents to act is an explicit statute which implicitly or inherently creates a broad expert privilege under § 905.01. Majority op. at 9.9 That sentence 8 Even if Wis. Stat. § 905.01 recognized privileges "available at common law" the majority's action today would have been no less contrary to the statute. An expert witness privilege did not exist at common law. 23 C. Wright & K. Graham, Federal Practice and Procedure: Evidence, § 5431, p. 825-26 (1980). 9 The majority fails to offer any discussion, let alone rationale, for its interpretation of the phrase "inherent or implicit." According to the Judicial Council's notes on Wis. Stat. § 905.01, the phrase "inherent or implicit" was inserted, not to give a court some device with which to "interpret" additional privileges. Rather, the notes strongly suggest that the phrase was inserted solely to protect the "work-product privilege"a privilege the court created prior to 1973 in State ex rel. Dudek v. Circuit Court, 34 Wis. 2d 559, 150 N.W.2d 387 (1967). Judicial Council Committee Notes, Wisconsin Rules of Evidence, 59 Wis. 2d R1, R101 (1973). 2 96-3356, 96-3588, 98-0029-W.awb provides as follows: "An expert witness shall not be appointed by the judge unless the expert witness consents to act." ¶60 weight. This is a slender reed on which to place such great I am unconvinced that a rather tangential sentence in a statute discussing the relationship between an expert and the court can be extrapolated to also regulate conduct between a party and an expert. Read in its entirety Wis. Stat. § 907.06 says little about a court compelling an expert to testify and absolutely nothing about a party compelling an expert to testify. ¶61 Yet, without citation to any authority and with only two sentences of analysis to justify its result, the majority leaps from the solitary sentence in Wis. Stat. § 907.06(1) to the conclusion that a witness has a legal privilege to refuse to provide expert testimony. What the majority opinion lacks in legal authority and analysis, it attempts to make up with the bald assertion that "[a]ny other result would . . . fly in the face of logic." Majority op. at 10. I submit that such a result "fl[ies] in the face" of the rule of law that privileges are to be strictly construed. This latter interpretation is consistent with the tenor of the rule: new privileges are not to be created except by legislation or Supreme Court rule. Davison v. St. Paul Fire & Marine Ins. Co., 75 Wis. 2d 190, 205-06, 248 N.W.2d 433 (1977). Wisconsin Stat. § 905.01 is not a license for courts to create, modify, or expand privileges; that task must be accomplished by legislative or rule-making action. 3 96-3356, 96-3588, 98-0029-W.awb ¶62 Moreover, to reach its conclusion the majority necessarily rides roughshod over a basic presumption in this area of law: In the face of silence or confusion regarding the existence of a privilege, the party must testify. Jeep Corp., 547 administration unless reasons conflict F. of testimony. 871, justice are between Supp. requires established testimony As the 874 and majority (E.D. Mich. testimony to the a all "tie" ("The persons In goes succinctly "Privileges are the exception, not the rule." 8. 1982) contrary."). privilege, itself of Wright v. a to states, Majority op. at There is no statute that duplicates the restrictions Wis. Stat. § 907.06 places on a court to a party. The exercise of such creative license in this area defies the statutory and case law prohibition from creating new evidentiary privileges. ¶63 Undeterred by this prohibition, the majority advances its discovery of this evidentiary privilege based on a rationale heretofore country. unrelied upon by any other jurisdiction in this I can find no other court that has bought the argument 4 96-3356, 96-3588, 98-0029-W.awb the majority today advances.10 For example, the court in Kaufman v. Edelstein, 539 F.2d 811, 818 (2d. Cir. 1976), concluded that Federal Rule sentence as 706(a), Wis. which Stat. contains § 907.06, essentially applied only the to same court compulsion and not to party compulsion of an expert witness. The court stated [t]he situation of the court appointed expert who is expected to delve deeply into the problem and arrive at an informed and unbiased opinion differs utterly from that of an expert called by a party to state what facts he may know and what opinion he may know and what opinion he may have formed without being asked to make any further investigation. If any inference is to be drawn from the Federal Rules of Evidence, it is thus against the claim of privilege by an expert, not for it. Id. a Similarly the court in Wright, 547 F. Supp. at 874-75, drew sharp distinction between expert 10 testimony compelled by a While some courts have adopted an expert witness privilege, I can find none that have done so on the statutory basis articulated by the majority. Two of the three cases the majority cites as recognizing "absolute" expert privileges were decided prior to any codification akin to Wis. Stat. § 907.06. See People v. Thorpe, 72 N.E.2d 165 (N.Y. 1947); Stanton v. Rushmore, 169 A. 721 (N.J. 1934). Thus, these opinions did not attempt to tie the expert privilege to some statutory provision, but rather looked to the common law to ascertain the "better rule." See, e.g., Thorpe, 72 N.E.2d at 166. The court in the third absolute privilege case, Ondis v. Pion, 497 A.2d 13 (R.I. 1985), also did not attempt to tie its decision to any statutory provision. Instead it noted that it would not "lightly depart" from a 1959 decision in which it adopted the absolute privilege. Id. at 18. Additionally, in Mason v. Robinson, 340 N.W.2d 236 (Iowa 1983), the Iowa case the majority finds so persuasive, the court did not explicitly indicate where the "qualified" privilege emanated from, only saying that it was reviewing a trial court's discretionary act. Id. at 241-43. 5 96-3356, 96-3588, 98-0029-W.awb court and that compelled by a partynamely that Rule 706(a) prohibited the former but, in its silence, allowed the latter. Id. at 874. F.R.D. See also Snyder v. American Motors Corp., 115 211, 213 (Ariz. 1987) (noting that expert's claim of privilege is incorrect).11 ¶64 The contrast between the majority's opinion and the decisions from these other jurisdictions is striking. No other jurisdiction supports the majority's rationale for discovery of this privilege. Equally striking is the contrast between today's announced discovery of an evidentiary privilege and the legal pedigree of other evidentiary privileges in this state. No other privilege in this state has as obscure an origin as the stealthy expert witness privilege of the majority that lay dormant for the past 25 years. ¶65 The privileges creation spans the and course modification of centuries. of the "great" Privileges are glaciers movinginching, bit by bitalong the surface of the 11 While no court, aside from the majority, has concluded that a rule prohibiting a court from compelling expert testimony also by implication prohibits a party from compelling expert testimony, some courts have been willing to quash a subpoena duces tecum as being overly burdensome on the expert. See, e.g., Snyder v. American Motors Corp., 115 F.R.D. 211, 214-16 (Ariz. 1987); Buchanan v. American Motors Corp., 697 F.2d 151, 152 (6th Cir. 1983) (upholding district court's quashing of the subpoena). However, as will be seen shortly, in the overwhelming number of cases where an expert was relieved of his or her duty to testify for any reason, that expert was not intimately involved with the facts precipitating the litigation. See Janet Fairchild, Right of Independent Expert to Refuse to Testify as to Expert Opinion, 50 A.L.R.4th 680, § 6(d), p. 69395. 6 96-3356, 96-3588, 98-0029-W.awb Anglo-American legal tradition. For example, the attorney- client privilege dates back almost to the time of Shakespeare when testimony at trial first came into practice. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); 8 Wigmore on Evidence, § 2290. The "modern" spousal privilege came into existence in the middle part of the nineteenth century. Trammel v. United States, 445 U.S. 40, 45 (1980); 8 Wigmore on Evidence, § 2333. Where the common law was silent, legislatures acted to create See 3 Weinstein's the privileges we commonly recognize today. Federal Evidence, § 514.11 (noting that three-fourths of states adopted physician-patient privilege since New York passed such legislation in 1828); 8 Wigmore on Evidence, § 2394 (noting that priest-penitent privilege is largely a legislative creature of the early twentieth century). But see Michael J. Mazza, Comment, Should Clergy Hold the Priest Penitent Privilege?, 82 Marq. L. Rev. 171, 175-82 (1998) (discussing commentators arguing that priest-penitent privilege extends perhaps to the sixteenth century). ¶66 Such privileges have evolved in our Anglo-American legal tradition and have been expressly codified in our rules of evidence. Likewise, evidentiary privileges of a more recent vintage come with express statutory codification.12 the majority's expert witness privilege. majority's reasoning, this privilege 12 has Not so with If I understand the existed since the See, e.g., 1987 Act 355, § 68 (creating "mediation" privilege at Wis. Stat. § 905.035); § 8, ch. 319, Laws of 1979 (creating "polygraph" privilege at Wis. Stat. § 905.065). 7 96-3356, 96-3588, 98-0029-W.awb Wisconsin Rules of Evidence were adopted in 1973 as both Wis. Stat. § 905.01 and § 907.06 were enacted at that time. unusual circumstances surrounding the recognition The of this privilege, when compared with every other privilege ever known in this state, assures me that the majority is mistaken in its new discovery. B. ¶67 the For the sake of argument, however, I will assume that majority § 905.01 is correct and privilege. § 907.06 that somehow the has alchemy created between an Wis. expert Stat. witness If this were so, I still would most certainly not conclude that somehow this alchemy overruled Philler v. Waukesha County, 139 Wis. 211, 120 N.W. 829 (1909).13 ¶68 While there is nothing remarkable about this court's overruling of its prior case law, at least we normally explain why we are doing so. See, e.g., State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997) (overruling Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980)); 13 State v. Harris, 206 Because the majority treats Philler as creating a qualified privilege, for the sake of refuting its argument I will treat Philler likewise. However, I do not consider Philler's holding to constitute a privilege. First, the word "privilege" is not used at all in the opinion, a sharp contrast from other privilege cases. Second, Philler stands for the simple proposition that "every [person] owes a duty to attend and testify to the material facts that he [or she] knows." Philler v. Waukesha County, 139 Wis. 211, 214, 120 N.W. 829 (1909). Philler treats all testimony alike. If a witness has information, he or she must testify. Philler's holding that an expert witness cannot be compelled to do additional work is the same as saying that he or she need not obtain additional information so as to make themselves knowledgeable. 8 96-3356, 96-3588, 98-0029-W.awb Wis. 2d 243, 257, 557 N.W.2d 245 (1996) (overruling State v. Howard, 176 Wis. 2d 921, 501 N.W.2d 9 (1993)). Here, the majority claims that it did not overrule Philler for, lo and behold, the legislature's enactment of the Wisconsin Rules of Evidence overruled Philler. Thus, the majority asserts that both the overruling of Philler and the creation of an expert privilege were results occasioned by legislative enactments of 1973. ¶69 Until today's announcement by the majority of the overruling of Philler, neither the bench nor the bar have been aware of Philler's demise. cite it with approval. Since 1973, courts have continued to See, e.g., Payment of Witness Fees in State v. Huisman, 167 Wis. 2d 168, 172-73 n.2, 482 N.W.2d 665 (Ct. App. 1992); Secura Ins. Co. v. Wisconsin Public Service Corp., 156 Wis. 2d 730, 735, 457 N.W.2d 549 (Ct. App. 1990). ¶70 This continued reference subsequent to 1973 undermines the majority's assertion that the enactment of the Wisconsin Rules of Evidence overruled Philler. As I noted above, it is the majority's prerogative to overrule cases, but it ought to at least admit Wisconsin its Rules actions of and Evidence explain did not its rationale. overrule The Philler; the majority did. ¶71 Likewise, the existence of the evidentiary witness privilege has gone unnoticed by legal scholars. review of the treatises on Wisconsin evidence, there expert In a is no reference to the existence of such an expert privilege in this state. See Thomas H. Barland & Thomas D. Bell, The Wisconsin 9 96-3356, 96-3588, 98-0029-W.awb Rules of Evidence (State Bar of Wisconsin Daniel Blinka, Wisconsin Practice: CLE Books, 1998); Evidence (West 1998); Ralph Adam Fine, Fine's Wisconsin Evidence (Butterworth, 1997). The alchemy between Wis. Stat. § 905.01 and 907.06 did not create an evidentiary expert privilege; the majority did. C. ¶72 an Assuming that the Wisconsin Rules of Evidence created expert overruled witness in the privilege process, assuming still I and cannot that Philler understand was why the majority, faced with the choice of two qualified privileges, chose the qualified privilege outlined in Mason v. Robinson, 340 N.W.2d 236 (Iowa 1983), over Philler. Rather, faced with such a choice I believe that Philler is the far superior rule. ¶73 Philler's premise is simple: The administration of justice requires witnessesbe they "expert" or "lay"to testify as to what they know. However, Philler makes equally clear that this duty does not extend so far as to require a witness to affirmatively undertake any additional preparation, for "study, reflection, etc., is not the function of the ordinary witness." Id. at 215. information The that duty they requires already witnesses possess and only does to provide not require witnesses to supplement their existing knowledge. ¶74 In contrast to the Philler rule's articulated and identified basis in law, the Mason rule appears to have been the result of Solomonic wisdom unconcerned with ascertaining the basis in either statutory enactments or common law traditions. Mason, 340 N.W.2d at 242 (stating that the court chose to "take 10 96-3356, 96-3588, 98-0029-W.awb a middle ground" between an absolute privilege and no privilege); id. at 243 (Larson, J., dissenting) ("[The Mason] result does not proceed from a recognition of an established 'expert witness' privilege, because there is none."). the Mason rule's legal foundation was more Even if recognizable, it nonetheless creates considerable difficulties in practice that serve to protract and increase the costs of litigation. ¶75 This case reflects that concern. As I read the majority opinion, the Alts would not be completely prevented from deposing Dr. Acosta. Because Acosta was Dawn Alt's treating physician and wrote her discharge summary, the majority opinion allows the Alts to compel him to testify about observations and the facts surrounding those events. majority opinion does not allow the Alts to do his What the is compel Acosta's expert opinion as a physician. ¶76 While "transaction" on paper testimony the and majority's "expert" distinction testimony, see between Reed v. Fetherston, 785 F. Supp. 1352, 1353 (E.D. Wis. 1992), appears clear, in practice I think that it is not so clear. In many cases, the two types of testimony will inevitably spill one into the other and in the process create an inseparable mixture. Under the rule of the majority, courts and parties will be asked to unmix the mixturea task that may be difficult and inexact. ¶77 In contrast, the Philler rule is far easier for courts and parties to follow and therefore has the result of reducing the expense and delay of litigation to parties and reducing the burden of oversight on courts. 11 Under Philler a witness must 96-3356, 96-3588, 98-0029-W.awb answer a question if he or she has the knowledge to do so. There is no gamesmanship of trying to categorize a question as either transaction or expert testimony so as to either compel or protect an answer. Rather, if a witness has an answer to a question, he or she must give it.14 D. ¶78 Finally, assuming that the Wisconsin Rules of Evidence created an expert witness privilege, assuming that Philler was overruled in the process, and even assuming that I could adopt the Mason rule, I still could not join the majority's mandate in this case reversing the court of appeals. In comparing the facts of this case with those in Mason I conclude that the court of appeals must be affirmed. ¶79 For all the abstract talk about compelling expert witnesses to testify, we cannot lose sight of one simple fact: Acosta was significantly involved Alts' attempt to depose him. Alts' attempt to compel an in this case prior to the This appeal is not based on the uninvolved expert to testify but rather is about the Alts' attempt to obtain the full testimony of a witness substantially involved in the events both leading up to and following after the alleged negligence. 14 As Philler recognized, this rule may well be of limited benefit to a party seeking to compel testimony from an expert witness because in many situations, an expert will not be able to give an answer absent review and study. Philler v. Waukesha County, 139 Wis. 211, 215-16, 120 N.W. 829 (1909). Nevertheless, Philler is in theory and in practice superior to Mason. 12 96-3356, 96-3588, 98-0029-W.awb ¶80 Acosta's involvement in Dawn Alt's care distinguishes this case from Mason and, even under Mason's rule, necessitates an affirmance of the court of appeals. In Mason, the plaintiffs attempted to compel the testimony of a professor whose entire connection with the case consisted of a solitary conversation with one of the defendant doctors. ¶81 Mason, 340 N.W.2d at 238. In deciding that the plaintiffs could not compel Mason to testify, the Iowa Supreme Court stated that "generally an expert witness, litigation, is absent free to some other decide connection whether provide opinion testimony for a party." added). or not with he [the] wished to Id. at 242 (emphasis This "unrelatedness requirement" was hardly an after- thought on the part of the Mason court. Id. at 240 (citing Kaufman v. Edelstein, 539 F.2d 811, 823 (2d Cir. 1976) (Gurfein, J., concurring)); id. at 242 ("In contrast to factual witnesses who possess knowledge which is unique and many times irreplaceable, expert testimony is not based on any singular personal knowledge of the disputed events."). Based on my reading of the emphasis the Mason court placed on the facts of that case, I conclude that were the Mason court faced with these facts, it would have reached a different result than today's majority. ¶82 Moreover, even the jurisdictions that have adopted an absolute privilege have overwhelmingly done so in cases where the expert was wholly unrelated to the litigation. See, e.g., Gilly v. City of New York, 508 N.E.2d 901, 902 (N.Y. 1987); Commonwealth v. Vitello, 327 N.E.2d 13 819, 827 (Mass. 1975); 96-3356, 96-3588, 98-0029-W.awb Kraushaar Bros. & Co. v. Thorpe, 72 N.E.2d 165, 166 (N.Y. 1947); Agnew v. Parks, 343 P.2d 118, 123 (Cal. App. 1959). See also Shurpit v. Brah, 30 Wis. 2d 388, 397-98, 141 N.W.2d 266 (1966). ¶83 In contrast, the relatively uncharted waters. majority opinion takes us into Under its opinion expert witnesses are not only given a nearly impenetrable shield of protection against unwillingly unrelated to the rendering litigation, their but opinions are also when given they that are same protection when they are deeply involved with factual details that lie at the heart of the litigation. This sets neither the correct nor proper course. II. ¶84 Finally, continuing problem especially as it I address of the issue of in the in the incivility manifests itself sanctions legal and the profession, discovery process. This court has commented recently on the perceived decline in civility and how this decline increases costs to the parties, adds to the burdens of already burdened courts, and depreciates the opinion of the legal profession in the eyes of the general public. Chevron Chemical Co. v. Deloitte & Touche, 176 Wis. 2d 935, 945-46, 501 N.W.2d 15 (1993); Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 281-82, 470 N.W.2d 859 (1991). ¶85 To the extent that perception meets reality this court must find itself on the front lines of this struggle, doing what it can to fashion zealous but civil advocacy. See State ex rel. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 103, 454 N.W.2d 770 (1990) (opinion of Bablitch, J.). 14 Yet the majority wastes this 96-3356, 96-3588, 98-0029-W.awb opportunity to meaningfully address the continuing problem of incivility. ¶86 I note at the outset that although the majority opinion says much about the evidentiary "privilege" of expert witnesses and the extent of that privilege, it incorrectly assumes that privilege was ever asserted in the circuit court. The majority opinion announces that "a substantiated assertion of privilege is substantial justification for failing to comply with an order to provide or permit discovery." 18. Majority op. at Here there was no substantiated assertion of an evidentiary expert witness privilege. ¶87 This case already having gone to trial. has a case has yet to go to trial. disputes history without ever The alleged negligence underlying this case occurred in October of 1989. discovery long between Over nine years later, the In the intervening years, the the Alts and the defendantsand between the Alts and Acostahave taken on a life of their own. This case has generated a score of circuit court rulings, two occasions of sanctions, two appeals to the court of appeals, and now a supreme court opinion all before any evidence has been put before a finder of fact. ¶88 the Yet no mention of the word "privilege" can be found in transcripts of Acosta's depositions, or at hearings, or in the memoranda to the circuit court. that the majority has failed its own "substantiated assertion" of privilege. test of the motion It appears requiring a Because the word is nowhere to be found in the voluminous record on the issues of 15 96-3356, 96-3588, 98-0029-W.awb discovery and sanctions in the circuit court, it can hardly be maintained that there evidentiary privilege. was a "substantiated assertion" of an The majority's conclusion that there was substantial justification for failing to comply with a discovery order is based on a foundation not "substantiated" by this circuit court record. ¶89 Our concern on this appeal, of course, only focuses on Acosta's second deposition and its aftermath. Even with this narrow focus, the tenor of the entire litigation is apparent. ¶90 At his second deposition, Acosta's new attorney, George Burnett, objected and instructed his client not to answer the questions when the Alts' attorney probed issues relating to statements Acosta made essentially the same deposition, court was concluded on discharge issue essentially should the that the have same been summary. halted issue This Acosta's that answered the at the was first circuit first deposition, and was essentially the same issue that played a part in the circuit court's award of sanctions after Acosta's first deposition. Moreover, at the time that Burnett objected during the second deposition, one of the plaintiffs' attorneys specifically read aloud the circuit court's decision indicating that this line of questioning was permissible.15 Nevertheless, 15 The Alt's attorney read the following from the circuit court's order: Therefore [the discharge summary] is an entirely appropriate area of inquiry. Dr. Acosta's deposition shows that Attorney Grimstad effectively precluded Plaintiffs' counsel from exploring the basis of the 16 96-3356, 96-3588, 98-0029-W.awb Burnett persisted in his refusal to allow Acosta to testify about these matters. ¶91 We have on numerous occasions reiterated that a circuit court is given substantial discretion to award sanctions in part because that court is in a significantly position to appreciate the conduct of the parties. superior See Standard Theatres, Inc. v. Department of Transportation, 118 Wis. 2d 730, 747, 349 N.W.2d 661 (1984). That is especially evident in a convoluted case such as this one. Yet, though the path was littered with motions, affidavits, briefs, orders, and opinions, the circuit court was able to succinctly state what occurredor more accurately, deposition: once. what "Dr. did Acosta not occurduring should have Acosta's answered the second questions He now should have answered the questions twice." ¶92 We have in the past said that "[t]he authority to impose sanctions is essential if circuit courts are to enforce their orders and ensure prompt Chevron, 176 Wis. 2d at 946. disposition of lawsuits." See also Aspen Services, Inc. v. IT Corp., 220 Wis. 2d 491, 497-99, 583 N.W.2d 849 (Ct. App. 1998). Apparently, the circuit court believed that we meant what we wrote. undermines that It is unfortunate that the majority opinion belief. The majority "caution[s] attorneys" doctor's opinion relating to a material issue in this action. Evidence objected to at a deposition shall be taken subject to objections. . . . The opinion of Dawn Alt's primary treating physician during her pregnancy and during her hospitalization following Cody's birth, which is contained in the discharge summary, is highly relevant. 17 96-3356, 96-3588, 98-0029-W.awb that its "holding . . . is unsubstantiated privileges." not a license to Majority op. at 19. assert Considering that the majority rewards just such action in this case where the record reflects no substantiated assertion of privilege, its warning rings hollow. III. ¶93 In sum, the majority's attempt to mask its creation of an evidentiary expert witness privilege as merely a construction of the Wisconsin Rules of Evidence is unpersuasive. no evidentiary expert nothing in fact. Moreover, witness the Wisconsin the Rules majority privilege of at Evidence needlessly There was common has law altered discards and that applicable precedent, asserting that its overruling is the handiwork of the legislature. Unfortunately, the discarded precedent is both in principle and practice superior to the rule the majority instead adopts. Finally, the majority wastes an opportunity to meaningfully address the continuing problem of incivility in the discovery process. ¶94 Accordingly, I respectfully dissent. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this opinion. 18 1 2 1
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