Magyar v. Wisconsin Health Care Liability Insurance Plan

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 23. (concurring). I join both the majority opinion reversing the court of appeals' affirmance of the order of the circuit court and Justice Geske's concurrence. I write separately to point out only what I believe are some troubling aspects of the circuit court's ruling in this case.

¶ 24. On the morning of trial, the circuit court agreed to a settlement between one defendant, NSM, and the plaintiff, Ms. Magyar. The settlement was contingent on the exclusion of Dr. Proctor as a witness for any party at trial. The result of the circuit court's accession to this settlement was that the remaining defendants were made to go to trial without an infectious disease expert, contrary to their expectations.

¶ 25. I believe that absent extraordinary circumstances not present in this case, a circuit court should not agree to a settlement without giving the remaining parties ample opportunity to meet any surprises caused by the settlement.

¶ 26. I also note that our cases (some of which I authored for the court) may injudiciously read unfair surprise into § 904.03 as an element against which probative value is to be measured for exclusion of *310evidence.1 The present case points out how unfair surprise arises preliminarily to questions of weighing the admissibility of evidence for purposes of submission to the fact finder. In an appropriate case we may wish to reconsider our analyses of unfair surprise as an element of § 904.03.

¶ 27. I am authorized to state the Justice Janine P. Geske joins this concurrence.

See Thomas H. Barland, Michael J. Brose & Susan R. Steingass, The Wisconsin Rules of Evidence: A Courtroom Handbook, pp. 8-1 to 8-10 (April 1997) (State Bar of Wisconsin) (discussing cases considering surprise in context of § 904.03). See also Judicial Council Committee's Note and Federal Advisory Committee's Note to § 904.03, 59 Wis. 2d R73-R75 (1973) (discussing surprise in context of Wisconsin and federal rules).