Expert Testimony Case Analysis

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For all of the ample reasons stated by Judge Curley in her dissent, this decision was clearly decided incorrectly, and it should be expected that, if published or reviewed by the Supreme Court, it will ultimately be overruled.

An additional ground for reversal is the majority’s failure to appreciate the difference between direct and collateral consequences.

The court repeatedly referred to the motion for dismissal of Glenn’s case as a “sanction” — a direct consequence — and states that such a remedy is appropriate only for egregious conduct, which is not present here.

However, there is no “sanction” involved here. Even if the trial court did not have the easy option of just extending the deadline for naming expert witnesses, it is incorrect to treat the options as limited to: (1) ordering Dr. Koh to testify; or (2) dismissing the case as a “sanction.”

Those aren’t the choices. The choices are either ordering Dr. Koh to testify, or recognizing his privilege not to. The latter option is not a “sanction,” but a routine evidentiary decision.

It is true that, if Dr. Koh can’t be compelled to testify, and the deadline for naming expert witnesses won’t be extended, then Glenn will have no expert witnesses. It follows that, as the majority acknowledged in its first paragraph of discussion, without an expert, a medical malpractice action must necessarily fail for insufficient evidence on the standard of care and causation.

If that happens, summary judgment must be granted to the defendant, and the case must be dismissed. However, the fact that the inevitable result of honoring Dr. Koh’s privilege is that the case will ultimately be dismissed does not convert the decision to honor the privilege into a “sanction.”

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If the plaintiff lacks sufficient evidence to meet her burden of proof, then the dismissal of the case is merely an inevitable, but entirely collateral, consequence of recognizing the privilege, not a “harsh sanction.”

The court’s citation to Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 470 N.W.2d 859 (1991), is entirely inapposite. In Johnson, over the course of more than two years, the plaintiff failed to specify special damages, and failed to name experts and provide dates they would be available for deposition. The trial court had also tried less severe sanctions, to no avail. Johnson, 162 Wis.2d at 277-278.

The trial court dismissed the action as a sanction, and the Supreme Court affirmed, because the plaintiff’s actions were egregious. That is an example of dismissal as a direct consequence, for which a party’s conduct must be egregious.

In Glenn’s case, however, the dismissal is merely a collateral consequence of the trial court’s refusal to extend the deadline for naming expert witnesses, and the fact that Dr. Koh has a privilege not to testify, which Alt requires be recognized under these circumstances.

– David Ziemer

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David Ziemer can be reached by email.