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Expert testimony not needed in contract case

By: dmc-admin//April 13, 2009//

Expert testimony not needed in contract case

By: dmc-admin//April 13, 2009//

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Expert testimony is unnecessary to prove breach of a computer consulting agreement. But according to attorney Jeffrey P. Aiken, who represented the computer consultants, that April 8 holding by the Wisconsin Court of Appeals will not only upend the law in computer litigation, but will extend to other complex litigation, such as construction law, as well.

According to the decision, Racine County contracted with Oracular Milwaukee Inc. for assistance in upgrading its software system, and for training of its employees in using it.

The county later sued Oracular for breach of the agreement, alleging that the software was not timely installed, and that the training was incomplete. Oracular counterclaimed for breach of contract, quantum meruit and promissory estoppel.

The circuit court granted summary judgment in favor of Oracular, concluding that, because computer programming is so complex and esoteric, the county was required to present expert testimony as a matter of law.

The court relied on the Court of Appeals’ opinion in Micro-Managers, Inc., v. Gregory, 147 Wis.2d 500, 434 N.W.2d 97 (Ct.App.1988), in which the court held that computer programmers were “professionals.”

The county appealed, and in an opinion by Judge Daniel Anderson, the Court of Appeals reversed.

The court began by stating that whether or not a computer consultant is a “professional” is not relevant, because the case is a contract action.

Nevertheless, the court then devoted four pages to the issue, ultimately concluding that a computer consultant is not a “professional.”

Because computer consultants are not licensed by states, lack a code of ethics or system of discipline, and owe no fiduciary duties to their clients, the court held that they’re not “professionals” subject to a malpractice action.

Expert Unnecessary

Turning to the merits, the court held that expert testimony was unnecessary to the contract claim, because the issues were not complex or esoteric, as the circuit court found.

“Whether Oracular provided competent training is neither complex nor esoteric,” Anderson wrote. “And, similarly, whether a contract is performed in a timely manner is simple and obvious to the average juror. A jury would not need ‘special knowledge or skill or experience’ to properly understand and analyze Oracular’s conduct.”

Accordingly, the court reversed the grant of summary judgment in favor of Oracular and remanded for trial on whether Oracular breached its contract with the county by not timely completing the project and providing employee training.

In an interview, Aiken dismissed the court’s discussion of whether a computer consultant is a “professional” as simply dicta, noting that the court began the discussion by saying that the issue “begs the question” and ended it by stating that it is not dispositive, because it does not answer whether or not expert testimony is necessary (expert testimony may be needed in a negligence or contract action, if the jury will be presented with complex and esoteric issues).

Need for Expert

On that issue, Aiken said that the issues were sufficiently complex and esoteric to warrant an expert, analogizing the contract at issue to construction law.

When there is a delay in a construction project, Aiken noted, the question is why — whether the owner changed the plans, or whether excavation resulted in unexpected discoveries that nullified an implicit condition to the contract.

An entire industry of experts exists, he noted, to do nothing but analyze why construction projects are not completed on time.

Similarly, with computer consulting, if a project is not completed on time, expert testimony is necessary to determine what caused the delay, Aiken said.

“The court’s decision says it will let lay people decide cases on non-completion, even though the reason for non-completion is an extremely complex issue.”

Aiken stated that it was too early to decide whether he would petition the Wisconsin Supreme Court for review.

Counsel for Racine County could not be reached before deadline.

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