Just The Facts, Ma'am: Glenn v. Plante and the Reluctant Expert

WDC Journal Edition: Fall 2004

A qualified privilege to withhold expert opinions was first enunciated in Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999). In that case, the Wisconsin Supreme Court concluded that, absent a showing of compelling circumstances, an expert cannot be compelled to give expert testimony whether the inquiry asks for the expert's existing opinions or would require further work. In addition to demonstrating a compelling need for the expert's testimony, the party seeking the expert's testimony must present a plan of reasonable compensation. Finally, if the party seeking an expert's opinion is able to show a compelling need for the expert's opinion, an expert can only be compelled to give existing opinions. Under no circumstances can an expert be required to do additional preparation.

In the Wisconsin Supreme Court's first review of the privilege, it not only survived but garnered further support. Glenn v. Plante, 2004 WI 24, --- Wis. 2d ---, 676 N.W.2d 413. By a six to zero margin, the court acknowledged the utility of the privilege and refined its scope.-1

Since its advent, the bounds of the privilege have been tested by litigants across the state. In addition to Glenn, two other cases analyzing the application of the privilege have been accepted by the Wisconsin Supreme Court.-2 While medical malpractice is the backdrop for these disputes, the privilege is applicable to all expert witnesses.

In Glenn, the expert privilege issue ripened when the Honorable Maxine White ordered a treating physician, Dr. Charles Koh, to give expert opinion testimony. The path taken by the parties, Dr. Koh and the court to reach that point, however, played a significant role in the trial and appellate courts' decisions. Like Frost's path in the wood, it was one which is less traveled, and it made all the difference.

The Lawsuit.
Ms. Glenn and her husband sued Michael T. Plante, M.D. and Family Health Plan alleging that Dr. Plante negligently and without Ms. Glenn's consent removed her right ovary and negligently advised her to have and performed a hysterectomy in treatment of chronic abdominal pain. After Dr. Plante's treatment, Ms. Glenn continued to have abdominal pain and sought care from Dr. Koh. Dr. Koh surgically released abdominal adhesions and Ms. Glenn's pain resolved. During his treatment, Dr. Koh suggested to Ms. Glenn that the surgeries performed by Dr. Plante were unnecessary. Ms. Glenn consulted with an attorney and filed suit.

The Road.
Subsequently, then Judge Diane Sykes entered a scheduling order providing deadlines for naming expert witnesses, among other responsibilities. Because of Justice Sykes' appointment to the Wisconsin Supreme Court, the case was transferred to another court, Judge Dominic Amato. During this time, the plaintiffs' deadline for naming expert and other witnesses passed without the plaintiffs identifying any witnesses. As a consequence, the defendants moved for summary judgment.

In response, the plaintiffs named three expert witnesses, Dr. Koh, Dr. Charles Nash and Dr. Sul Chung and moved the court to extend the deadline to name witnesses. Although he denied defendants' summary judgment motion, Judge Amato entered an alternate sanction of prohibiting the plaintiffs from calling any expert witness other than Dr. Koh at trial.-3 Judge Amato also ordered that the plaintiffs were to provide a report summarizing their expert's opinion within 30 days of the hearing or the case would be dismissed.

On the thirtieth day, Dr. Koh sent a letter to Judge Amato stating that Dr. Plante's surgeries were unwarranted. Dr. Koh also stated that he wrote the letter only after being told by the Glenns' counsel that Ms. Glenn would not be able to maintain her action without his letter. Dr. Koh explicitly stated that he did not want to be an expert witness against another local physician.

In a subsequent letter to plaintiffs' counsel, Dr. Koh re-iterated his position that he was not going to be an expert witness against a local physician. In this letter, he equivocated on his opinions about Dr. Plante, stating that Dr. Plante's treatment "may" have been substandard.

Dr. Koh was never deposed.

Judge Amato recused himself for reasons unassociated with this matter. The case was eventually reassigned to Judge White and scheduled for trial.

Five days before trial, the Glenns' counsel called the court and Dr. Plante's counsel requesting an adjournment because Dr. Koh was unavailable to testify; he was out of the country. Judge White adjourned the trial and directed the parties to file the appropriate motions.

The Glenns filed a motion to enlarge the time to name expert witnesses and for leave to name additional expert witnesses. Dr. Plante filed a motion to dismiss.

The Order.
Judge White denied both motions and ordered Dr. Koh to testify. Analyzing the present facts against the Alt -4 decision, the trial court felt that the compelling need exception to the privilege applied necessitating Dr. Koh's testimony. The order also required the Glenns to present a plan to fairly compensate Dr. Koh and limited his testimony to those opinions he previously stated.

The Appeal.
Dr. Plante appealed. The interlocutory petition was granted. In a published decision, a divided court of appeals affirmed the trial court's order. Writing for the majority, Judge Charles B. Schudson held that the circuit court reasonably exercised its discretion.-5 Judge Patricia S. Curley dissented. She saw no difference between Dr. Koh's situation and that of the treating physician in Alt, Dr. Acosta. Judge Curley believed the majority was protecting the viability of the claim and not properly analyzing the uniqueness of Dr. Koh.

The Wisconsin Supreme Court granted Dr. Plante's petition for review and reversed Judge White's order. Glenn, 2004 WI 24, ¶3. The Court agreed with Dr. Plante's argument that there really was no difference between Alt's Dr. Acosta and Dr. Koh. Id. at ¶¶27, 28. The Court further agreed that the procedural status of the case should not be considered when determining whether compelling circumstances require an expert's testimony. Id. at ¶¶29, 30.

The Court held that Dr. Koh has a right to invoke his privilege as to matters concerning the standard of care and treatment provided by others. Id. at ¶28. Dr. Koh, however, is obligated to testify about his own treatment. Id.

According to the Court, Dr. Koh's unique status as a treating physician was insufficient to compel Dr. Koh to provide expert testimony. Id. at ¶28. Without a specific question to consider or an actual invocation of the privilege, it was an erroneous exercise of discretion to order Dr. Koh to testify. Id. at ¶¶2, 3 & 19.

Using the principles set forth in Alt, we conclude that Koh should not have been required to provide expert opinion testimony. Simply because Koh was Glenn's treating physician, it does not necessarily follow that his expert opinion is unique or irreplaceable and must be required. Id. at ¶28.

Not surprisingly, the application of the privilege to treating physicians was discussed at length during oral argument. Several Justices were interested to know what boundaries could or should be placed on a treating physician's exercise of the privilege.

The Court rejected Dr. Plante's contention that the privilege was only slightly qualified or nearly absolute. In his view, if another qualified expert could review and analyze records, reports, depositions and/or other materials to reach the same conclusions as that of the treating physician, then the treating physician was not unique and should not be required to provide expert "opinion" testimony regarding any conclusions drawn by the treating physician, including those unrelated to standard of care. In other words, Dr. Plante contended that a treating physician should not be required to provide expert conclusions based upon observations unless those conclusions are not reproducible without the "eyewitness" experience of the treating physician.

Instead, the Court views a treating physician's obligation to testify about his or her observations more broadly.

Nevertheless, we conclude that a treating physician may still be required to testify regarding his or her observations relating to the care or treatment provided to his or her patient, as such compulsion is considerably different than forcing a physician to testify as to the standard of care and treatment provided by another physician. Id.

The Lesson.
After Glenn, some aspects of the testimonial obligation for treating physicians are clear, some are not. To illustrate, consider this example: Dr. Y surgically explores a patient for abdominal pain/complications following Dr. X's appendectomy. Dr. Y finds a perforated bowel and repairs the injury. Clearly, according to Alt and Glenn, Dr. Y as a treating physician is obligated to testify about his exploratory surgery, including finding the perforated bowel. Also clear is that Dr. Y has a privilege to withhold opinion testimony about whether perforating a bowel and/or not identifying the perforation during an appendectomy falls below the standard of care.-6

However, would Dr. Y be required to answer: What caused the perforation? What if Dr. Y was asked: Was the bowel perforated during the appendectomy? Or: Did Dr. X perforate the bowel during the appendectomy? Each question provokes a slightly different argument and analysis. Glenn establishes that the determination is factually dependent and discretionary with the trial court. Id. at ¶32.

The Court's statements about the obligations of treating physicians provide some guidance for trial courts in exercising that discretion.

Alt does not apply to observations made by a person's treating physician regarding the care and treatment provided to the patient, but rather applies to the expert testimony from such a physician as to the standard of care and treatment provided by another physician.

Id. at ¶2. (Emphasis added.) The Glenn Court also concluded that Dr. Koh is obligated to testify "regarding", "as to" and "relating to" his observations. Id. at ¶¶17, 28, 31 & 34.

Based upon these statements, testimony "regarding", "as to" or "relating to" observations by a treating physician likely includes some expert conclusions/opinions about the patient.-7 Whether an answer is required will be dependent upon the totality of the circumstances and the specific question asked.

Consider the following, if Dr. Y was first asked and responded yes to these questions: (1) would the cause of the perforation impact the manner in which the repair was done; (2) did you make specific observations during your surgery in an attempt to diagnose the cause of the perforation; and (3) did you consider the potential causes for the perforation before you began your repair; then the question "What caused the perforation" can be fairly argued to be related to Dr. Y's treatment and observations.

Asking Dr. Y directly, "Did Dr. X perforate the bowel during the appendectomy?" will likely allow Dr. Y to invoke his expert privilege. That question is related to the liability of another physician and the Glenn Court acknowledged the utility of the privilege under those circumstances.

As noted by Koh in his letter, forcing a physician to serve as the lead expert witness in a medical malpractice action against a fellow local physician would be, at the very least, uncomfortable for such expert. Thus, the standard set forth in Alt assures experts that their opinions will not be required barring circumstances that make their testimony uniquely necessary.

Id. at ¶31.

Because some other qualified surgeon could review the information available and provide an expert opinion regarding whether Dr. X perforated the bowel during the appendectomy, Dr. Y is not uniquely necessary. And, based upon the expressed concern regarding physicians being pitted against their colleagues, it is likely that such questions will be treated more like standard of care questions and less like questions "related to" observations.

The Conclusion.

16358463v1 7048395

Glenn established that procedural matters including the potential impact on the viability of a claim do not determine the uniqueness of a witness or create compelling circumstances so as to invoke the exception. Glenn affirmed the Court's commitment to the expert privilege. Further definition of the privilege will occur only as the privilege is asserted.

1- Justice Diane Sykes did not participate in the decision; while a Milwaukee County Circuit Court Judge she presided over the case and, as explained below, entered the pertinent scheduling order.
2- These other two cases ask whether medical malpractice defendants or a malpractice defendant's employee may invoke the expert privilege. While one of the cases was settled and the appeal dismissed without the issue being resolved, the other is scheduled for oral argument on November 9, 2004. See A. Carney-Hayes, et al v. Northwest Wis. Home Care, Ins., et al, Wisconsin Supreme Court Case No. 03-1801.
3- At the motion hearing, the plaintiffs withdrew Dr. Nash. Dr. Chung was not identified as a liability expert. Later, the plaintiffs also withdrew Dr. Chung as a witness.
4- Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999).
5- Judge Schudson was joined by Judge Ted E. Wedemeyer, Jr.
6- The pending A. Carney Hayes, et al v. Northwest Wis. Home Care, Ins., et al appeal will determine whether Dr. X has to answer the standard of care question. See fn. 3.
7- Clearly, standard of care opinions relating to another physician's care and treatment are privileged.



Randy Arnold of Hinshaw & Culbertson suggested the following as alternate titles for this article. These alternate titles are so good, I wanted to share them with you:

1. Alt Privilege, Like Muscle, Will Gain Definition Through Exercise:
The Wisconsin Supreme Court and Glenn v. Plante

2. Q. What Do the Alt Privilege and Your Abs Have in Common?
A: Both Gain Definition Through Exercise
The Wisconsin Supreme Court and Glenn v. Plante

3. Glenn v. Plante: The Wisconsin Supreme Court Refines the Alt Privilege

4. Can I Get A Witness? The Wisconsin Supreme Court Refines the Alt Privilege

5. Everybody's Not Entitled To My Opinion: Glenn v. Plante and the Reluctant Expert

6. If You Can't Say Anything Nice, You Might Not Have To: Glenn v. Plante and the Reluctant Expert

7. Doctor, Doctor Can You Give Me The News?
Compelling Treating Physicians To Be Expert Witnesses After Glenn v. Plante

Note: Most of the time Part 1 of a title can be matched with Part 2 of another title & it still makes sense. The Possibilities are endless!