Evidence – Expert Testimony – Professional Services
In Racine County v. Oracular Milwaukee, Inc., 2010 WI 25
(2007AP2861), the defendant contracted with the plaintiff to
supply off-the-shelf computer software and provide plaintiff's
employees with training on its usage. After the defendant
allegedly failed to complete the project in a timely manner or
provide training, the plaintiff filed suit for breach of
contract and statutory misrepresentation under Wis. Stat.
§100.18. The plaintiff did not retain an expert to testify as
to the standard of care owed by computer consultants, and the
defendant moved for summary judgment, arguing that the contract
was one for professional services and that the plaintiff was
required to prove professional negligence in order to recover.
The plaintiff asserted that the contract was not one for
professional services, but rather an ordinary contract for
services. It had retained an expert to testify that the
software did not properly function on the specified contract
completion date, and argued that whether the plaintiff received
what it contracted for was not beyond the experience of the
ordinary juror. The circuit court agreed with the defendants
and granted summary judgment, and the plaintiff appealed. The
court of appeals reversed, defining for the first time in
Wisconsin the criteria for determining whether someone is a
"professional," and holding that computer consultants are not
"professionals," that a contract for the provision of software
and training is not one for professional services, and that
whether software properly functions by the specified contract
completion date is not beyond the ordinary experience of an
average juror.
The supreme court affirmed on different grounds, holding that
the plaintiff did not need to name an expert witness to survive
summary judgment because the breach of contract claim did not
present issues so unusually complex as to require expert
testimony as a matter of law. The supreme court did not address
the court of appeals' analysis, which defined for the first time
in a Wisconsin case, the criteria for determining whether
someone is a "professional" for purposes of whether an expert
who can opine as to the duties of a professional is necessary in
a given civil case.
