COURT OF
APPEALS DECISION DATED AND
RELEASED September
5, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0193
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
JACK
REBER, AND SUZANNE REBER,
Plaintiffs-Appellants,
v.
WISCONSIN
POWER & LIGHT,
Defendant-Respondent.
APPEAL
from a judgment of the circuit court for Wood County: VIRGINIA WOLFE, Judge. Reversed.
Before
Eich, C.J., Vergeront and Roggensack, JJ.
VERGERONT,
J. Susan and Jack Reber appeal from the trial court's judgment
granting a directed verdict in favor of Wisconsin Power and Light Company. The Rebers' complaint alleged that
WP&L's negligence in the construction, operation and maintenance of its
electrical distribution system exposed their dairy herd to harmful levels of
stray voltage from at least the early 1980's to 1988 and that WP&L's
conduct constituted a nuisance. The
Rebers sought damages for loss of profitability in their farming operation and
for annoyance and inconvenience. On
appeal, the Rebers contend that the trial court erred in excluding the
testimony of their expert, Alfred Szews, Ph.D., with respect to the levels of
stray voltage on the Rebers' farm prior to 1985 and erred in striking their
claim for nuisance before trial. We
conclude that the trial court erroneously exercised its discretion in excluding
the expert testimony and we therefore reverse.
We also conclude that, in light of Vogel v. Grant-LaFayette
Electric Cooperative, 201 Wis.2d 416, 548 N.W.2d 829 (1996), the claim
for nuisance should be reinstated.
In
late 1978, the Rebers decided to reestablish a dairy herd on their farm. Jack Reber testified to problems they had
with the cows' behavior and milk production from that time for about a ten-year
period and their unsuccessful efforts to identify and eliminate the cause of
these problems. In late 1987, Jack
Reber learned from a neighbor about stray voltage and the effect it could have
on cows, and he asked WP&L to check his farm for stray voltage.[1] After various testings by WP&L and
negotiations between WP&L and the Rebers, WP&L installed an isolator on
the transformer pole at the Rebers' farm.
The purpose of the isolator was to remove the connection between the
primary neutral and the secondary neutral, in an effort to reduce the stray
voltage contributed by WP&L's system.
During
the winter and spring of 1988, WP&L installed copper grounding wire along a
one-quarter mile of its distribution system just north of the Reber farm and
replaced various hardware on the system, such as poles and transformers, in the
area of the Reber farm. According to
Reber's testimony and exhibits he introduced, milk production and cow behavior
improved after these changes were made by WP&L.
Professor
Szews, an electrical engineer, performed electrical testing at the Reber farm
in May 1994, both in the isolated and de-isolated condition and inspected the
line from the Rudolph substation to the Reber farm as well as the farm's
electrical system. Professor Szews
testified that his opinions and conclusions were based on: his tests and observations; the report and
tests conducted by a master electrician on the Reber farm in 1990; the
continuous voltage charts taken by WP&L at the Reber farm in 1987-88;
published studies; his own experience; a chronology of events prepared by the
Rebers; WP&L's report as a result of its first investigation at the farm in
late 1987 and early 1988; documents produced by WP&L during discovery,
including its distribution maps and service records; a report of the Wisconsin
Stray Voltage Analysis Team at the Brommelkamp farm which is on the same distribution
feeder as the Reber farm; and numerous depositions taken in this case of
witnesses for both parties.
Professor
Szews testified that substantially all of the cow contact voltage and currents
at the Reber farm were from the utility system, not the farm's electrical
system, and he explained how he arrived at this conclusion. Based on the results of testing conducted on
the Reber farm in 1990, with the farm de-isolated and actual milking loads
running, Professor Szews testified that currents accessing cows were above the
level of concern established by the Public Service Commission, that is, the
level above which corrective action should be taken.
When
Professor Szews was asked his opinion on whether levels of stray voltage
accessed the Reber farm in amounts sufficient to adversely affect the
productivity of the herd from 1978 to 1988, WP&L objected based on lack of
foundation. WP&L's argument was
that since no testing was conducted until late 1987, there was no foundation
for any testimony about stray voltage prior to that date. The trial court did not agree with WP&L
that the lack of testing prior to 1987 precluded Professor Szews from
testifying about the probable levels of stray voltage and the cause prior to
that date. However, the court ruled
that because the Rudolph substation did not begin serving the Reber farm in
1985, Professor Szews did not have an adequate foundation to testify concerning
the electrical system prior to 1985 when another substation, the Vesper
substation, served the farm.
The
court permitted voir dire of Professor Szews to allow the Rebers to lay a
foundation for his testimony prior to 1985.
At the end of the voir dire, the court repeated its ruling that there
was a lack of foundation for testimony on the electrical system prior to 1985.
As
a result of the court's ruling, Professor Szews's opinions on WP&L's
negligence in failing to provide reasonably adequate services to the Reber farm
was limited to the years 1985-1988. The
Rebers' experts on damages had been prepared to testify to the effects on the
herd for the full period of exposure from 1978-1988 and were not prepared to
testify to damages resulting from exposure only during 1985-1988.[2] Therefore, the Rebers' counsel made an offer
of proof on the rest of their case. The
trial court granted WP&L's motion for a directed verdict on the ground that
the Rebers had not met their burden of proof to support a jury verdict with
respect to damages occurring during and after 1985.
On
appeal, the Rebers argue that, in excluding Professor Szews's testimony for the
period prior to 1985, the trial court went beyond the trial court's proper role
and, in effect, ruled on the reliability of Professor Szews's testimony. WP&L responds that trial courts have
wide discretion to limit expert opinion and may do so when there is a lack of
foundation. We agree with the Rebers
that the trial court's basis for excluding Professor Szews's testimony was its
evaluation of the reliability of his opinions for the time period prior to
1985, and that this was not a proper basis for excluding his opinions.
Admission
of an expert witness's opinion testimony is a matter of trial court
discretion. Brain v. Mann,
129 Wis.2d 447, 458, 385 N.W.2d 227, 232 (Ct. App. 1986). A discretionary decision, to be sustained,
must be based on the facts of record and the applicable law. Id. A trial court misuses its discretion if it misapplies or
misinterprets the law. Id. The standards for admission of expert
testimony in Wisconsin are explained by the supreme court in State v.
Walstad, 119 Wis.2d 483, 351 N.W.2d 469 (1984), and, more recently, in State
v. Peters, 192 Wis.2d 674, 534 N.W.2d 867 (Ct. App. 1995).
Thus, the rule remains in Wisconsin that the
admissibility of scientific evidence is not conditioned upon its
reliability. Rather, scientific
evidence is admissible if: (1) it
is relevant, § 904.01, Stats.;[3]
(2) the witness is qualified as an expert, § 907.02, Stats.;[4]
and (3) the evidence will assist the trier of fact, § 907.02, [citing Walstad]
[footnotes added].
Moreover, scientific evidence is admissible
under the relevancy test even regardless of the scientific principle that
underlies the evidence. [Cite
omitted.] As our supreme court noted in
Walstad:
The fundamental
determination of admissibility comes at the time the witness is "qualified"
as an expert. In a state such as
Wisconsin, where substantially unlimited cross-examination is permitted, the
underlying theory or principle on which admissibility is based can be attacked
by cross-examination or by other types of impeachment. Whether a scientific witness whose testimony
is relevant is believed is a question of credibility for the finder of fact,
but it is clearly admissible. [Cite
omitted.]
Peters, 192 Wis.2d at 687-88, 534 N.W.2d at 872.
We
recognized in Peters that the trial court does have a
"limited and indirect gatekeeping role" in reviewing the
admissibility of scientific evidence. Peters,
192 Wis.2d at 688, 534 N.W.2d at 872.
We noted a number of grounds on which a trial court might properly
reject expert opinion testimony even if it is relevant: (1) the evidence is superfluous;
(2) the evidence will involve a waste of judicial time and resources;
(3) the probative value is outweighed by prejudice; (4) the jury is
able to draw its own conclusions without it;
(5) the evidence is inherently improbable; or (6) the subject
is not suitable for expert testimony. Id.
at 689, 534 N.W.2d at 873. We noted
that this list was not exhaustive. Id.
at 689-90, 534 N.W.2d at 873.
There
is no dispute over the qualifications of Professor Szews to testify as an
expert on stray voltage,[5]
nor is there any dispute that testimony on stray voltage levels on the Reber
farm from 1978 to 1985 is relevant.
WP&L
does not argue that any ground specifically listed in Peters for
excluding relevant testimony of a qualified expert applies. Rather, WP&L argues that an appropriate
unlisted ground is lack of foundation for the expert's testimony. A trial court has the discretion to exclude
expert testimony that lacks a foundation.
See, e.g., Schleiss v. State, 71 Wis.2d 733, 746,
239 N.W.2d 68, 76 (1976) (affirming exclusion of psychiatrist's testimony on
witness' mental state because psychiatrist relied solely on statements witness
made to police, did not examine or interview witness and conceded that absolute
diagnosis would require extensive interview and review of other material). The question here is whether the trial
court's reason for excluding Professor Szews's testimony was an appropriate
exercise of discretion because his testimony lacked foundation or was instead
an inappropriate evaluation of the reliability of his testimony.
WP&L
argues that § 907.05, Stats.,
is the controlling statute. Section
907.05 provides:
The expert may
testify in terms of opinion or inference and give the reasons therefore without
the prior disclosure of the underlying facts or data, unless the judge requires
otherwise. The expert may in any event
be required to disclose the underlying facts or data on cross-examination.
Section 907.05 is consistent with Rabata v. Dohner,
45 Wis.2d 111, 172 N.W.2d 409 (1969), which eliminated the requirement that
expert opinions be expressed only in response to a hypothetical question that
contains all the material premises for the opinions elicited in the question. Although eliminating this requirement, the
court in Rabata made clear the trial court still had the
discretion to require that a hypothesis be used or to insist that some
"foundation be put in the record if [the trial court] believes that the
elicitation of the opinions without a foundation is likely to confuse or
mislead the jury." Id.
at 134-35, 172 N.W.2d at 420-21.
There
is no question that the trial court could properly require Professor Szews to
disclose the foundation for his opinion on stray voltage levels for the years
prior to 1985. Professor Szews did
that, in testimony before the jury and in more detail during voir dire.
In
addition to his testimony about the sources of the facts and data he relied on,
which we have already described,[6]
Professor Szews testified as follows concerning the new substation and other
changes in WP&L's distribution system.
He was aware, based on the discovery responses of WP&L, that the
substation serving the Reber farm changed in 1985. The substation before 1985, the Vesper substation, was eleven
miles from the farm while the Rudolph substation, was three miles from the
Reber farm. Professor Szews explained
that the closer location of the Rudolph substation would decrease the amount of
stray voltage on the Reber farm contributed by WP&L's systems and he
explained the reasons for that. He
would expect a new substation to decrease the resistance to earth of the
grounding mat and he explained the reason for that and the effect that would
have on WP&L's electrical system and the cow contact voltage on the Reber
farm. The new three-phase feeder built
at the Rudolph substation in 1991 would lower stray voltage on the Reber farm
compared to the old single phase conductor.
Aside from the additional grounding and the improvement in connections
on the wiring of WP&L's system, which WP&L made beginning in 1988, the
distribution conductor Professor Szews personally observed was the same as that
existing in 1988 and was the same as that in 1978. Professor Szews also explained that the most significant portion
of the distribution system with respect to the contribution from WP&L's
system to stray voltage on the Reber farm is the portion of the system closest
to the farm, in particular, the one mile closest to the farm, and he explained
the reasons for that.
In
Professor Szews's opinion the information in his possession permitted him to
draw an inference to a reasonable degree of engineering probability concerning
whether the levels of stray voltage on the Reber farm were harmful to the
health, productivity and behavior of the herd between 1978 and 1988. His opinion to a reasonable degree of
engineering probability was that stray voltage on the Reber system decreased
with the building of the new substation.[7]
The
trial court's reason for excluding Professor Szews's testimony was that, in the
court's view, the new substation was a significant change in the distribution
system, and there was no testing with the old substation and no knowledge of
what else had changed besides the decrease in distance to the Reber farm. However, Professor Szews testified that he
had the information he needed to determine, to the requisite degree of
professional probability, the impact of the new substation. The court's comments indicate that it was
questioning Professor Szews's opinion that he did have sufficient
information. Exclusion of his testimony
for this reason, once expertise and relevancy have been established, is not
within the limited gatekeeping function described in Peters.
The
trial court, in effect, determined that Professor Szews's opinions were not
reliable because they were not based on sufficient information about the Vesper
substation. However, this is not the
proper role for the trial court. See
Brain, 129 Wis.2d at 448, 462, 385 N.W.2d at 234 (trial court
improperly excluded expert testimony on the ground that surveys expert relied
on were not sufficiently detailed to permit expert's conclusions). It is the role of opposing counsel to bring
out faulty or inadequate premises leading to an expert's conclusions. Id. at 462, 385 N.W.2d at
234. And it is for the fact-finder, in
this case, the jury, to decide whether the opinions, after being challenged on
cross-examination, are credible. Id.
WP&L
cites Kreyer v. Farmers' Co-operative Lumber Co., 18 Wis.2d 67,
117 N.W.2d 646 (1962), in support of its argument that the trial court properly
excluded Professor Szews's testimony based on lack of foundation. Kreyer was decided before Rabata,
when hypothetical questions were still the only approved method for presenting
certain types of expert opinions. Id.
at 76, 117 N.W.2d at 651. In Kreyer,
the appellant claimed the trial court erred in excluding his expert's opinion
testimony on the cause of a fire. In
sustaining the trial court's ruling on the ground that there was a lack of
foundation for the expert's testimony, the court noted that when the expert was
called to testify, there was not yet any testimony in the record indicating
where the fire started. Testimony of
certain burned areas observed after the fire "was introduced long after
this [expert] witness took the stand and therefore could not be considered in
any way as part of a proper foundation for the question." Id. at 81, 117 N.W.2d at
653-54.
Because
Kreyer was concerned with whether there were facts in evidence at
the time the expert testified to support his testimony--a requirement that no
longer exists--we do not find it persuasive.
The same is true of Jacobson v. Greyhound Corp., 29 Wis.2d
55, 138 N.W.2d. 133 (1965), also relied on by WP&L. In Jacobson, the court
sustained the trial court's exclusion of evidence, both because the subject of
testimony was not a proper field for expert knowledge and because significant
factors were not included in the hypothetical question. Id. at 63-64, 138 N.W.2d at
137.
WP&L
also argues that the trial court's ruling comes within its authority to
regulate a trial by limiting claims.
According to WP&L, having to defend against a claim of damages due
to stray voltage for years prior to 1985 places an unfair burden on
WP&L. WP&L relies on State
v. Halverson, 130 Wis.2d 300, 387 N.W.2d 124 (Ct. App. 1986), in which
the trial court limited trial to twelve of 706 alleged violations of water
pollution regulations and dismissed all the others with prejudice. We concluded it was not an erroneous
exercise of the trial court's discretion to limit trial to twelve claims to
avoid overwhelming the jury, but we also held that it was an erroneous
exercise of discretion to prevent any trial of the rest of the claims by
dismissing them with prejudice. Id.
at 303-06, 387 N.W.2d at 126-27.
Halverson has no application to this case. Halverson certainly does not
provide authority for a trial court to exclude otherwise admissible expert
testimony. Moreover, WP&L never
argued to the trial court that it would have difficulty defending against the
Rebers' assertion, contained in their complaint, that damages occurred for
years prior to 1985, and that was not the basis for the trial court's ruling.
WP&L
discusses the reasons that Professor Szews's testimony for the years between
1978 and 1985 is not reliable, noting changes in the distribution system,
including the substation, and in the Reber farm's electrical system. These are all proper bases for challenging
Professor Szews's testimony on cross-examination but they are not proper bases
for excluding his testimony. Because
Professor Szews's testimony on stray voltage for the years prior to 1985 was
central to the Rebers' proof of damages, the exclusion of that testimony
prejudiced substantial rights of the Rebers.
See § 805.18(2), Stats. They are entitled to a new trial on their
negligence claim.
The
second issue on this appeal is whether the trial court properly dismissed the
nuisance claim before trial. At the
time the trial court did so, the controlling case was Vogel v.
Grant-LaFayette Electric Cooperative, 195 Wis.2d 198, 536 N.W.2d 140
(Ct. App. 1995), in which we held that nuisance claims are not available to plaintiffs
in stray voltage cases. Our decion in Vogel
has since been reversed. Vogel v.
Grant-LaFayette Electric Cooperative, 201 Wis.2d 416, 548 N.W. 2d 829
(1996). The supreme court has decided
that nuisance law is applicable to stray voltage claims because excessive
levels of stray voltage may invade a person's private use and enjoyment of
land. Id. at 427, 548
N.W.2d at 834. On remand for a new
trial on the negligence claim, the court should reinstate the nuisance claim
and proceed on that claim consistent with the supreme courts opinion in Vogel.
By
the Court.—Judgment reversed.
Not recommended for
publication in the official reports.
[1] Electrical energy generated at the power
company travels through transmission lines to a substation, which distributes
the electrical energy in a particular neighborhood or area. The power company's distribution lines (the
primary system) consists of energized wires which carry power to the customer
and a neutral wire, which provides a path for a portion of the return current
back to the substation. (A portion of
the return current can also travel back to the substation through the
earth.) The farm's wiring system (the
secondary system) also consists of energized wires and a neutral wire. The neutral wires in both the primary and
secondary systems are connected to metal grounding rods driven into the
earth. The primary neutral wire and the
secondary neutral wire are typically connected, so that each system can benefit
from the other system's grounding.
For safety reasons, the
neutral wire in a typical farm's wiring system is connected to metal work in
the barn. Because of that attachment,
the neutral wire, which invariably carries some electrical current, will
transfer some of that current to the metal objects to which they are
connected. "Stray voltage,"
also called "cow contact voltage," occurs when a cow that contacts
metal objects in the barn provides a path for the electrical current from the
metal object to the earth. The amount
of stray voltage may be affected both by the power company's distribution
system and the farm's wiring system.
[2] The Rebers explain in their brief that
damages from stray voltage do not occur simultaneously with the exposure. The preparation of testimony on damages from
the period 1985-1988 would have required lengthy analysis and consultation with
other experts that could not be accomplished in the middle of trial, even with
a brief continuance.
[3] Section 904.01, Stats., provides:
"Relevant
evidence" means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.
[4] Section 907.02, Stats., provides:
Testimony by
experts. If scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
[5] Professor Szews holds a Ph.D in electrical
engineering and has taught various courses for many years in the electrical
engineering curriculum at Marquette University. He has consulted in a little over 100 cases involving stray
voltage and has done stray voltage investigations on 50 to 70 farms. He was appointed by the Wisconsin Secretary
of Agriculture to a committee to investigate stray voltage and was on the
original committee that set up a stray voltage task force and analysis
team. He has testified at two hearings
before the Wisconsin Public Service Commission held to determine the status of
stray voltage in Wisconsin and to issue orders to power companies and others
regarding stray voltage.
[6] Section 907.03, Stats., provides:
The facts or data
in the particular case on which an expert bases an opinion its inference may be
those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inference upon the subject, the
facts or data need not be admissible in evidence.
There is
no contention by WP&L that the facts and data on which Professor Szews
relied were not of the type reasonably relied on by experts in his field.
[7] After voir dire, the Rebers made an offer of
proof that, if permitted to testify further, Professor Szews would testify that
to a reasonable degree of engineering probability, the Reber herd suffered from
harmful levels of stray voltage between 1978 and 1988; that the source was the
distribution system of WP&L; that the primary neutral current from that
distribution system flowed into the Reber farm in unreasonable quantities
during these years; that WP&L failed to provide reasonably adequate
services to the Reber farm during those years; that WP&L was negligent in
its provision of services and facilities to the Reber farm during those years;
and that such negligence produced harmful levels of stray voltage on the Reber
farm.