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UPDATED: Complex Litigation – Expert Testimony Needed? MAYBE

April 17, 2009

UPDATED: On April 2, 2010, the Wisconsin Supreme Court in Racine County v. Oracular Milwaukee, Inc., et al., 2010 WI 25 decided not to address the significant issue of whether computer consultants are considered “professionals” in Wisconsin. An affirmative ruling would have required that those suing a computer consultant would have had to prove they performed below industry standards similar to claims against other professionals.

As noted below, the Appeals Court had ruled that computer consultants were not professionals. The Supreme Court felt that it did not need to decide the issue because the breach of contract allegation alleged was a breach of the agreement by “not completing the project by the date agreed to and by failing to provide competent training.” The Supreme Court found that this was a case of breach of contract and not a case where the defendant fell below the underlying standard of care. For the issues involved, the Court believed that the fact-finder is capable of drawing upon common knowledge and ordinary experience to determine if there was a failure. Perhaps because the case before the Supreme Court arose due to summary judgment and not after a trial, the Court left open “the door to the possibility that expert testimony may later assist the trier of fact in evaluating the breach of contract claim.” What does this all mean? Same law as before?

First, genuine issues of material fact preclude granting summary judgment. Second, if the claim is for breach of contact, one should carefully review the exact nature of the breach in that some allegations may very well require expert testimony. But since there is no bright line rule it is important in any contract case involving some form of professional service to carefully review the Racine County decision so as to properly frame the breach and determine if perhaps an expert witness is needed at time of trial.

On April 8, 2009, the Wisconsin Court of Appeals in Racine County v. Oracular Milwaukee, Inc., et al., No. 2007 AP2861, 2009 WL 929046 (Wis. Ct. App. April 8, 2009), held that expert testimony is unnecessary to prove breach of a computer consulting agreement. The basis of the case was that Racine County had contracted with Oracular Milwaukee, Inc., to help upgrade its software system and to train its employees to use the software. Racine County sued claiming a breach of the agreement; it alleged that the software was not timely installed and that the training was incomplete. Oracular counterclaimed for breach of contract alleging quantum merit and promissory estoppel. The trial court granted Oracular summary judgment because computer programming is so complex and esoteric that Racine County was required to produce expert testimony.

The trial court stated: “This is not something that an ordinary person off the street would have any way of knowing one way or the other. It demands a level of expertise that is beyond what normally people would know.” The trial court, relying on Micro-Managers, Inc. v. Gregory, 147 Wis. 2d 500, 513, 434 N.W.2d 97 (Ct. App. 1988), did hold that computer programmers were “professionals.” However, the Court of Appeals stated that whether a computer consultant is a “professional” is irrelevant because the case is a contract action. The Court of Appeals held that a computer consultant is not a professional. In part, this was because the Court of Appeals found that computer consultants are not licensed by the state, lack a code of ethics or system of discipline, owe no fiduciary duties to their clients and are not subject to a malpractice action.

The Court then turned to the substance of the suit and found, in the exact opposite of the trial court, that the issues were not complex or esoteric. The Court of Appeals felt that whether competent training or deadlines were met did not need any “special knowledge or skill or experience to properly understand and analyze Oracular’s conduct.” The Court of Appeals sent the case back to the trial court.

Although the rational of the appellate court can be understood, where does that take us in complex litigation? When is an expert needed? Is it only in a negligence suit and somehow a contract action is treated differently, assuming the jury can understand the contract terms and conduct involved? What does it take to be considered a “professional” under Wisconsin law — only if you have a license of some type? In a construction case if there is a delay or change in the plans, is an expert not needed? Or in order to determine the “reason” for the change or the “cause” for delay, expert testimony is still not needed because the issues are not that “complex”?

In Wisconsin, are we now back to judgment and experience of the jury and no need for expert testimony? Are there no more professional standards if the simple test is whether the matter is “complex”?

In the past, civil cases have been evaluated, settled, and tried by taking into account “expert opinion.” It would now seem that the process of evaluating, settling, and trying civil cases where the issue may be boiled down to “common sense” is far more important under the law now than it was before the Racine County case, or has that always been true?

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