907.02 Annotation
Expert testimony is not generally required to prove a party's negligence, and requiring expert testimony before a claim can get to the jury is an extraordinary step that should be ordered only when unusually complex or esoteric issues are before the jury. This principal applies equally to a breach of contract action because it is a general rule that expert testimony is not necessary when the issue is within the realm of the ordinary experience of the average juror. Racine County v. Oracular Milwaukee, Inc.,
2009 WI App 58,
317 Wis. 2d 790,
767 N.W.2d 280,
07-2861. Affirmed.
2010 WI 25,
323 Wis. 2d 682,
781 N.W.2d 88,
07-2861.
907.02 Annotation
In an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on portable breath test results, applying the St. George test, the right to do so is outweighed by the state's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's forbidding of that evidence in OWI prosecutions under s. 343.303, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the state's compelling interest in public safety on its roads. State v. Fischer,
2010 WI 6,
322 Wis. 2d 265,
778 N.W.2d 629,
07-1898.
907.02 Annotation
An electronic monitoring device (EMD) report did not present an issue that is particularly complex or unusually esoteric. Additionally, the EMD involves scientific principles that are indisputable and fully within the lay comprehension of the average juror. As such, expert testimony was not required to properly establish a foundation for the report's admissibility. State v. Kandutsch,
2011 WI 78,
336 Wis. 2d 478,
799 N.W.2d 865,
09-1351.
907.02 Annotation
The admissibility of novel scientific evidence: The current state of the Frye test in Wisconsin. Van Domelen. 69 MLR 116 (1985)
907.02 Annotation
Scientific Evidence in Wisconsin: Using Reliability to Regulate Expert Testimony. 74 MLR 261.
907.02 Annotation
State v. Dean: A compulsory process analysis of the inadmissibility of polygraph evidence. 1984 WLR 237.
907.02 Annotation
The psychologist as an expert witness. Gaines, 1973 WBB No. 2.
907.02 Annotation
Scientific Evidence in Wisconsin after Daubert. Blinka. Wis. Law. Nov. 1993.
907.02 Annotation
The Use and Abuse of Expert Witnesses. Brennan. Wis. Law. Oct. 1997.
907.02 Annotation
The Daubert Standard in Wisconsin: A Primer. Blinka. Wis. Law. March 2011.
907.03
907.03
Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion or inference substantially outweighs their prejudicial effect.
907.03 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R208 (1973);
1991 a. 32;
2011 a. 2.
907.03 Annotation
The trial court properly admitted the opinion of a qualified electrical engineer although he relied on a pamphlet objected to as inadmissible hearsay. E. D. Wesley Co. v. City of New Berlin,
62 Wis. 2d 668,
215 N.W.2d 657 (1974).
907.03 Annotation
A chiropractor could testify as to a patient's self-serving statements when those statements were used to form his medical opinion under sub. (4). Klingman v. Kruschke,
115 Wis. 2d 124,
339 N.W.2d 603 (Ct. App. 1983).
907.03 Annotation
The trial court erred by barring expert testimony on impaired future earning capacity based on government surveys. Brain v. Mann,
129 Wis. 2d 447,
385 N.W.2d 227 (Ct. App. 1986).
907.03 Annotation
While opinion evidence may be based upon hearsay, the underlying hearsay data may not be admitted unless it is otherwise admissible under a hearsay exception. State v. Weber,
174 Wis. 2d 98,
496 N.W.2d 762 (Ct. App. 1993).
907.03 Annotation
Although this section allows an expert to base an opinion on hearsay, it does not transform the testimony into admissible evidence. The court must determine when the underlying hearsay may reach the trier of fact through examination of the expert, with cautioning instructions, and when it must be excluded altogether. State v. Watson,
227 Wis. 2d 167,
595 N.W.2d 403 (1999),
95-1067.
907.03 Annotation
For a defendant to establish a constitutional right to the admissibility of proffered expert testimony, the defendant must satisfy a two-part inquiry determining whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion undermines fundamental elements of the defendant's defense. State v. St. George,
2002 WI 50,
252 Wis. 2d 499,
643 N.W.2d 277,
00-2830.
907.03 Annotation
This section implicitly recognizes that an expert's opinion may be based in part on the results of scientific tests or studies that are not his or her own. State v. Williams,
2002 WI 58,
253 Wis. 2d 99,
644 N.W.2d 919,
00-3065.
907.03 Annotation
This section does not give license to the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others. As in a civil proceeding there is no independent right to confront and cross-examine expert witnesses under the state and federal constitutions. Procedures used to appoint a guardian and protectively place an individual must conform to the essentials of due process. Walworth County v. Therese B.
2003 WI App 223,
267 Wis. 2d 310,
671 N.W.2d 377,
03-0967.
907.03 Annotation
This section is not a hearsay exception and does not make inadmissible hearsay admissible but makes expert's opinion admissible even if the expert has relied on inadmissible hearsay in arriving at the opinion, as long as the hearsay is the type of facts or data reasonably relied on by experts in the particular field in forming opinions on the subject. A circuit court must be given latitude to determine when the underlying hearsay may be permitted to reach the trier of fact through examination of the expert with cautioning instructions for the trier of fact to head off misunderstanding and when it must be rigorously excluded altogether. Staskal v. Symons Corporation,
2005 WI App 216,
287 Wis. 2d 511,
706 N.W.2d 311,
04-0663.
907.03 Annotation
In an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on portable breath test results, applying the St. George test, the right to do so is outweighed by the state's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's forbidding of that evidence in OWI prosecutions under s. 343.303, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the state's compelling interest in public safety on its roads. State v. Fischer,
2010 WI 6,
322 Wis. 2d 265,
778 N.W.2d 629,
07-1898.
907.03 Annotation
An evaluation of drug testing procedures. Stein, Laessig, Indriksons, 1973 WLR 727.
907.04
907.04
Opinion on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
907.04 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R211 (1973).
907.05
907.05
Disclosure of facts or data underlying expert opinion. The expert may testify in terms of opinion or inference and give the reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
907.05 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R213 (1973);
1991 a. 32.
907.06
907.06
Court appointed experts. 907.06(1)
(1)
Appointment. The judge may on the judge's own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The judge may appoint any expert witnesses agreed 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. A witness so appointed shall be informed of the witness's duties by the judge in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness's findings, if any; the witness's deposition may be taken by any party; and the witness may be called to testify by the judge or any party. The witness shall be subject to cross-examination by each party, including a party calling the expert witness as a witness.
907.06(2)
(2) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the judge may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and cases involving just compensation under
ch. 32. In civil cases the compensation shall be paid by the parties in such proportion and at such time as the judge directs, and thereafter charged in like manner as other costs but without the limitation upon expert witness fees prescribed by
s. 814.04 (2).
907.06(3)
(3) Disclosure of appointment. In the exercise of discretion, the judge may authorize disclosure to the jury of the fact that the court appointed the expert witness.
907.06(4)
(4) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.
907.06(5)
(5) Appointment in criminal cases. This section shall not apply to the appointment of experts as provided by
s. 971.16.
907.06 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R215 (1973); Sup. Ct. Order, 67 Wis. 2d 784;
1991 a. 32.
907.06 Annotation
As sub. (1) prevents a court from compelling an expert to testify, it logically follows that a litigant should not be able to so compel an expert and a privilege to refuse to testify is implied. Burnett. v. Alt,
224 Wis. 2d 72,
589 N.W.2d 21 (1999),
96-3356.
907.06 Annotation
Under Alt, a person asserting the privilege not to offer expert opinion testimony can be required to give that testimony only if: 1) there are compelling circumstances present; 2) there is a plan for reasonable compensation of the expert; and 3) the expert will not be required to do additional preparation for the testimony. An exact question requiring expert opinion testimony and a clear assertion of the privilege are required for a court to decide whether compelling circumstances exist. Alt does not apply to observations made by a person's treating physician relating to the care or treatment provided to the patient. Glenn v. Plante,
2004 WI 24,
269 Wis. 2d 575,
676 N.W.2d 413,
02-1426.
907.06 Annotation
Under Alt and Glenn, a medical witness must testify about his or her own conduct relevant to the case, including observations and thought processes, treatment of the patient, why certain actions were taken, what institutional rules the witness believed applied, and the witness's training and education pertaining to the relevant subject. Subject to the compelling need exception recognized in Alt and Glenn, a medical witness who is unwilling to testify as an expert cannot be forced to give an opinion of the standard of care applicable to another person or of the treatment provided by another person. A medical witness who is alleged to have caused injury to the plaintiff by medical negligence may be required to give an opinion on the standard of care governing his or her own conduct. Carney-Hayes v. Northwest Wisconsin Home Care, Inc.
2005 WI 118,
284 Wis. 2d 56,
699 N.W.2d 524,
03-1801.
907.07
907.07
Reading of report by expert. An expert witness may at the trial read in evidence any report which the witness made or joined in making except matter therein which would not be admissible if offered as oral testimony by the witness. Before its use, a copy of the report shall be provided to the opponent.
907.07 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R219 (1973);
1991 a. 32.
