Asserting the Alt Privilege: Putting the Privilege into Practice

WDC Journal Edition: Spring 2007
By: Robert D. Ebbe, Esq. - Corneille Law Group

Under Wisconsin law, a witness has the privilege to refuse to provide expert testimony. This privilege is inherent in Wis. Stat. § 907.06, but was acknowledged by the Wisconsin Supreme Court in Burnett v. Alt.[1] Hence the privilege is typically referred to as the “Alt privilege.” Subsequent cases evaluated the limits of the privilege[2] and confirmed that it applies to both party and non-party witnesses, albeit somewhat differently.[3]

In practice, however, assertions of the Alt privilege still appear to lead to some confusion by opposing counsel that in turn leads to objections and motions. Counsel may face objections that the question at issue does not call for an “expert opinion”. Opposing counsel may try clever rewording of questions in an attempt to make an end run around Alt or to try to sneak through its exceptions. Some take the position that the Alt privilege is limited to health care providers in medical malpractice lawsuits and cannot be used by, for example, an architect in a residential contract dispute. In order to best prepare for asserting the Alt privilege on behalf of your client, it is helpful to understand the nature and true holding of the Altdecision and its progeny.

I. Foundation of the Privilege.

The plaintiffs in the Alt case brought suit against several health care providers, including the employer of Dr. Ernesto Acosta, alleging injuries incurred due to negligent medical care during Dawn Alt’s labor.[4] During the course of proceedings the plaintiffs named Dr. Acosta as an “expert” because he had provided prenatal care to Ms. Alt. Dr. Acosta was deposed; several questions were objected to, and Dr. Acosta was instructed not to answer them. The Alt court was asked to consider whether Dr. Acosta could be forced to answer questions calling for an expert opinion, including:

"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?"[5]

The Alt court held that a witness had the broad, qualified privilege to refuse to provide expert testimony. The court found the privilege in Wis. Stat. § 907.06, which states in part:

907.06. Court appointed experts

(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.[6]

The Alt court reasoned that 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”.[7]

The Alt court set limits to the privilege, holding that it could be overcome if certain factors were met. These include: (1) a showing of compelling circumstances is necessary to compel an expert to give expert testimony, whether the inquiry asks for the expert's existing opinions or whether it would require further work; and (2) the party seeking the expert's testimony must present a plan of reasonable compensation. Even then an expert can only be compelled to give existing opinions. “Under no circumstances can an expert be required to do additional preparation.”[8] Subsequent appellate decisions have held that “compelling circumstances” in Alt are not measured by an outcome-determinative approach. Rather counsel seeking such opinions must demonstrate “compelling circumstances” by showing that the particular witness would somehow be unique or irreplaceable.[9]

II. Application: What is an “Expert Opinion”?

One of the frequent responses faced by defense counsel after invoking the Alt privilege is the claim: “My question did not call for an expert opinion – just facts.” The Alt court discussed the nature of the “expert opinion” which the privilege protected:

A question asks for expert testimony if it requires “scientific, technical, or other specialized knowledge,” to answer the question. Such specialized knowledge is that which is not within the range of ordinary training or intelligence. Asking for expert testimony “call[s] upon [persons] of exceptional experience and qualifications to give their opinion....”[10]

However a witness, expert or lay, can be compelled to testify as to facts known to them including observations they made and the thought process behind their conduct.[11]

Accordingly, questions limited to what the witness sensed (saw, heard, and so on) or their thought process or reasons why they took or did not take certain actions, do not seek an “opinion” and would not be covered by the Alt privilege. To the extent the question asks the witness to call upon his or her knowledge, training, or expertise in a particular field to answer a question beyond their actual factual involvement in the controversy at issue, the questions calls for an expert opinion.

Opposing counsel may seek to acquire an indirect opinion by asking the witness to describe their knowledge of, training in, or thoughts about a subject. The theory of this approach is that what a witness was taught about, for example, the industrial uses of iron, is merely asking for a historical fact. The intent is still to make use of the witness’ expertise against the witness’ will. In response, counsel should consider that questions calling for information – whether acquired by the witness through study or by independent analysis – not within the knowledge of the “ordinary person” is still calling for an expert’s opinion. Try asking the average person to “describe the recognized industrial uses of iron” and you will see this to be true. Counsel should be careful to look past the carefully reworded question and apply the same analysis identified by the Alt court.

III. Party and Non-party Use of the Privilege.

The Carney-Hayes decision further evaluated the extent of the Alt privilege, holding that both party and non-party witnesses can assert the privilege.[12] The Carney-Hayes court, however, applied one further limit; holding that while the Alt privilege can be invoked by a party witness, the court also held:

A medical witness who is alleged to have caused injury to the plaintiff by her medical negligence may be required to give her opinion on the standard of care governing her own conduct. A witness in this category may be a party defendant. However, no medical witness may be named a party defendant for the purpose of eliciting the witness's expert opinion. The circuit court may assess whether there is a reasonable basis for naming a medical witness as a party defendant. The court should assure that any medical witness from whom expert opinion is required is qualified to testify as an expert, pursuant to Wis. Stat. § 907.02. The court may employ evidentiary rules, including §§ 904.02, 904.03, and 906.11 to maintain the focus of a medical malpractice trial on whether the defendant conformed to the standard of care, not whether the defendant performed well as an expert witness.[13]

It should be noted that the Carney-Hayes decision involved claims of medical malpractice, and thus the court’s holding is phrased in those terms.

IV. Application: Proper inquiries into a party’s standard of care.

The limited exception carved out by the Carney-Hayes decision is not meant to be a loophole which subverts the larger privilege. Counsel should be wary of attempts by opposing counsel to misuse Carney-Hayes’ exception.

First, the Carney-Hayes exception is not to be applied in a blanket fashion. It is not enough that a witness, or their employer, was named as a party to apply the Carney-Hayes exception. Rather opposing counsel must be able to meet an initial burden of “reasonableness and good faith,” which the Carney-Hayes court described as follows:

[W]e understand that a plaintiff may be motivated to name a medical witness as a defendant or otherwise accuse the medical witness of causal negligence in order to transform the person from an Alt witness (who is not required to give expert opinions) to a Shurpit witness who is so required. It is improper to name a person a party defendant for the purpose of eliciting an expert opinion from the person, because such a person will not be compensated as an expert, will have to spend time preparing for testimony as an expert, and will normally have to retain counsel. Courts should not permit litigants to make end runs around Alt and Glenn by using this tactic. Accordingly, the circuit court may assess the reasonableness and good faith of a decision to make a person a Shurpit witness by naming the person as a defendant or otherwise accusing the witness of causal negligence.[14]

Defense counsel should give careful advance thought as to whether opposing counsel has met, or could meet, the “reasonableness and good faith” threshold before conceding that the Carney-Hayes exception applies to that witness. It may be appropriate to assert the Alt privilege on all opinion questions until sufficient discovery has occurred to establish that the particular witness’ causal negligence will actually be at issue in the case.

Second, witnesses should be prepare to distinguish questions asking about the standard of care for their involvement from questions that ask opinions about overly general subjects that are broader than the witness’ involvement in the particular case. In other words, the Carney-Hayes exception should not be used as a cover to acquire general expert testimony that goes beyond the issue of whether the particular witness met the standard of care in what they did in the particular case. The Carney-Hayes court acknowledged this issue when it observed:

An Alt witness who is unwilling to testify as an expert may not be compelled to answer a hypothetical question aimed at establishing the witness's perception of her own standard of care or a general standard of care. Such a question would be akin to the question we held impermissible in Alt: whether a gush of blood is abnormal under any circumstances in an expectant mother with a history of term pregnancy. It can often be transposed into the standard of care applicable to another person, pitting one against the other.

We note that impermissible questions about the standard of care, phrased hypothetically or otherwise, may easily be transformed into permissible questions about the specific conduct of the medical witness.[15]

Assuming the threshold of “reasonableness and good faith” in naming the witness as a party is met, the Carney-Hayes exception to Alt should be kept limited to questions that are directed solely to the conduct of the particular party witness and not in terms that can be expanded or transformed into an opinion applicable to any other person.

V. Protecting the Assertion of the Privilege.

Opposing counsel should not be allowed to use an assertion of the Alt privilege to argue or imply to the jury that the witness is “hiding” something. Wisconsin statutes do not permit the proper assertion of a privilege to be used against the party asserting the privilege. Consider the following statute:

905.13. Comment upon or inference from claim of privilege; instruction.

(1) Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.

(2) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.[16]

Accordingly, it is the appropriate subject of a motion in limine to ask the trial court to bar reference to prior assertions of the Alt privilege before the jury. Counsel may also consider a motion in limineasking the court to bar questions intended to force the witness to assert the Alt privilege in front of the jury.

VI. The Privilege Beyond Medical Malpractice.

The Alt privilege arose out of a medical malpractice lawsuit, as have the published cases further refining the privilege. The central foundation of the Alt privilege, however, is not limited to or based on the nature of medical malpractice claims. Indeed Wis. Stat. § 907.06, deals with the limits of the court’s ability to appoint experts in any civil case.[17] The privilege recognizes that a person should not be forced to be an expert witness merely because they have expended the time and resources to become an expert in a particular field.[18] The Alt court reasoned that “a person who has expended resources to attain specialized knowledge should not be forced to part with that knowledge upon demand, absent compelling circumstances”. [19] This is also consistent with the fact that Wisconsin follows the “American Rule” where civil parties generally pay their own attorney fees and own costs of litigation such as expert witnesses.[20]

In other words, the Alt privilege should be available to any witness who qualifies as an “expert” and from whom opposing counsel seeks to elicit an expert opinion. While cases such as Carney-Hayes do reference concepts like physician-to-physician relations as part of the justification for its holding, the primary foundation of and reason for the Alt privilege has nothing to do with medical malpractice law or the practice of medicine. Counsel should consider asserting the Alt privilege for their witnesses, if otherwise applicable, regardless of the specific type of expertise their witness and assuming the witness wishes to assert the privilege.[21]

VII. Conclusion.

The Alt privilege does not somehow improperly or impermissibly hide discoverable evidence. Parties are entitled to the factual testimony of a witness, and the Alt privilege does not apply to or prevent such an inquiry. The Alt privilege, and the statute on which it is based, recognizes that nobody should be forced to give up something of value to them – in this case their knowledge, expertise, and their time and resources – against their will or absent compelling circumstances. Like any recognized privilege, there is nothing “wrong” with its valid assertion, and the assertion of a privilege cannot be used against the witness at trial. Similarly, the privilege is not merely a technicality that frivolous pleadings or artful phrasing can get around. Counsel who assert the Alt privilege on their witness’s behalf should and ought to defend the right to and implementation of that privilege when it is properly asserted.

[1] Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999).

[2] Glenn v. Plante, 2004 WI 24, 269 Wis. 2d 575, 676 N.W.2d 413.

[3] Carney-Hayes v. Northwest Wis. Home Care, 2005 WI 118, 284 Wis. 2d 56, 699 N.W.2d 524.

[4] Alt, 224 Wis. 2d at 78-80, 589 N.W.2d at 22-23.

[5] Id. at 81, 589 N.W.2d at 24 (alterations in original).

[6] Wis. Stat. § 907.06(1)(2005-06)(emphasis added).

[7] Alt, 224 Wis. 2d at 86, 589 N.W.2d at 26.

[8] Id. at 89, 589 N.W.2d at 27.

[9] Glenn, 2004 WI 24, ¶ 30.

[10] Alt, 224 Wis.2d at 83, 589 N.W.2d at 25 (citations omitted).

[11] Carney-Hayes, 2005 WI 118, ¶¶ 27-29.

[12] Id., ¶¶ 35-44.

[13] Id., ¶ 61.

[14] Id., ¶ 42.

[15] Id., ¶¶ 55-56.

[16] Wis. Stat. § 905.13(1)-(2)(2005-06).

[17] Wisconsin Statute Section 907.06(5), states that the statute does not apply to appointment of experts in criminal cases as provided by Wis. Stat. § 971.16 (2005-06).

[18] Carney-Hayes, 2005 WI 118, ¶ 32(citing Ex parte Roelker, 20 F.Cas 1092 (D.Mass 1854)).

[19] Alt, 224 Wis.2d at 88, 589 N.W.2d at 32.

[20] Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis.2d 722, 744-745, 351 N.W.2d 156, 167-68 (1984).

[21] In Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673, the defendant in a defamation action refused to identify certain members or a group and claimed that the Alt privilege should apply where a defendant in a defamation action asserts a privilege against disclosure based on the First Amendment. Lassa, 2006 WI 105, ¶¶ 2-3. While the Lassa court held that the Alt privilege did not apply, it based that holding on the nature of the defendant’s refusal, not upon any distinction of medical/nonmedical testimony. Lassa, 2006 WI 105, ¶¶ 74-76.