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.

(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).

(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.

(4) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.

(5) Appointment in criminal cases. This section shall not apply to the appointment of experts as provided by s. 971.16.

History: Sup. Ct. Order, 59 Wis. 2d R1, R215 (1973); Sup. Ct. Order, 67 Wis. 2d 784; 1991 a. 32.

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.

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.

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.