No Expert Witness Needed to Discern IT Contract Issues
On May 18, 2009, I wrote about Racine County v. Oracular, and I said that it didn’t appear that the case had been appealed. I was wrong. The Supreme Court just released its decision on April 2, 2010, in which it confirmed the court of appeal’s ruling that the issues in the case did not require expert witness testimony to assist the jury. The court of appeals reversed Racine County Judge Steve Simanek’s dismissal of Racine County’s case because of its failure name an expert.
Contrary to the circuit court’s conclusion, the court of appeals held that for purposes of this case, computer consultants are not “professionals” and thereby not subject to professional standards of care. Instead, the court concluded that the Agreement between Racine County and Oracular was a simple contract for services.
The Supreme Court, through Justice Ziegler, agreed:
In this case, in order to survive summary judgment, Racine County was not required to name an expert witness. As a preliminary point, Racine County alleged breach of contract, not negligence. There is no allegation that Oracular’s performance failed to meet the standards of the computer consulting industry——whatever those may or may not be. Accordingly, the issue is not whether Racine County is required to present expert testimony in order to demonstrate that Oracular’s performance fell below the industry standard of care. Instead, the issue is whether in order to survive summary judgment, Racine County was required to name an expert witness when the complaint alleged that Oracular breached the parties’ Agreement.
Two things cause a little concern. First, the Supreme Court claims that it decided the appeal on “different grounds” 
than the appellate court. The grounds, if different, appear only minimally so. Second, the Supreme Court went to great pains to repeatedly point out that Racine County did not have to name an expert witness to “survive summary judgment.” This begs the question whether Racine County is required to name an expert at some other point in the process.
For practical purposes, this case falls into the category of one to cite when your opponent takes a shot at your case because you didn’t name an expert in discovery.
Permission to speak freely image courtesy jurvetson flickr gallery via this creative commons license.
