¶ 28. (concurring). I join the majority opinion. I write separately only to comment on why I believe the circuit court erroneously considered the "equity" of allowing the dismissal of NSM when deciding whether to exclude Dr. Proctor as a witness. When asked to give Ms. Magyar an advisory ruling on whether the other defendants might be allowed to call Dr. Proctor once NSM was no longer a party, the circuit court should have refused.
¶ 29. While NSM remained a party to this litigation, Dr. Proctor could have and would have been called as a witness. NSM had properly listed Dr. Proctor on its witness list. Ms. Magyar neither filed nor argued a motion in limine requesting that Dr. Proctor's testimony be limited to only those opinions he expressed in his earlier report. She never moved to strike Dr. Proctor as a witness for NSM based on prejudicial surprise of his new opinions.
*311¶ 30. Instead, Ms. Magyar and NSM worked out a dismissal agreement conditioned upon an advisory opinion by the trial court. At the time Ms. Magyar requested the court's ruling, there was no issue to decide. NSM was still a party and Dr. Proctor was a properly scheduled witness. If NSM had ceased to be a party to the lawsuit, then the issue of whether another defendant could call Dr. Proctor as a witness would have been ripe for determination.
¶ 31. Because the trial court did not wait until the issue was properly presented, it inappropriately became distracted by considering the equities of a dismissal of NSM rather than simply weighing the factors described in Fredrickson v. Louisville Ladder, 52 Wis. 2d 776, 783 (1971). As a result, the court "erroneously excluded evidence that was highly relevant to the issue of the defendant's liability" (Majority op. at 307-08).
¶ 32. I am authorized to state that Chief Justice Shirley S. Abrahamson, Justice Donald W. Steinmetz, Justice William A. Bablitch, Justice Jon P. Wilcox, Justice Ann Walsh Bradley and Justice N. Patrick Crooks join this concurring opinion.