Holsen v. Heritage Mutual Insurance

SCHUDSON, J.

(dissenting). The majority concludes:

it is outside the realm of the assumed ordinary experience of jurors for them to be able to determine without expert testimony which, if any, of these alleged symptoms, either physical or emotional, were caused by the conduct of the funeral home rather than as the natural consequence of the trauma that generally results from the loss of a loved one, and the other circumstances in the plaintiffs' lives.

Majority op. at 463-464. Although that assertion is offered with certainty, it is not supported by any authority — legal or psychological — related to the circumstances of this case. Although tenable, the majority's assertion is far from certain and, I think, it *468produces a dependency on expert testimony beyond that required under White v. Leeder, 149 Wis. 2d 948, 440 N.W.2d 557 (1989).

Citing White, the majority states that "[e]xpert testimony is required to prove causation when 'the matter is not within the realm of ordinary experience and lay comprehension.'" Id., op. at 463. Although accurate as far as it goes, the majority's reference is an incomplete quotation that fails to carry White's context and theme. The supreme court stated:

Before expert testimony is held to be a prerequisite, it must be found that the matter is not within the realm of ordinary experience and lay comprehension. The requirement of expert testimony is an extraordinary one, and is to [be] applied by the trial court only when unusually complex or esoteric issues are before the jury.

White, 149 Wis. 2d at 960, 440 N.W.2d at 562 (emphasis added).

The thrust of White, therefore, really is quite different than that implied by the majority. White emphasizes not that expert testimony is required when, but rather, that expert testimony is not required unless. Deciding in that case "that technical expert testimony was not required to establish causal negligence," White concluded that for expert testimony to be a prerequisite, the matter "must be found" to be outside "the realm of ordinary experience and lay comprehension." Id.

Thus, understanding the context and complete standard stated in White, we can consider what the rule must be when, in a case like the instant one, certain aspects of the matter "might" — not "must" — be *469found to fall outside "the realm of ordinary experience and lay comprehension."

I acknowledge that, arguably, one might conclude, as the majority does, that an expert's testimony will assist a jury's evaluation of whether the funeral home's actions were causative of the plaintiffs' alleged emotional harm above and beyond that resulting from the death. I think it equally plausible, however, to conclude that no expert could ever demarcate the line at which the plaintiffs' emotional damage crossed from the "natural consequence of the trauma that generally results from the loss of a loved one," see majority op. at 464, to the unnatural consequence of the trauma that results when the corpse of a loved one is mishandled.

To cast the issue in crass but revealing terms, we should ponder the subjects of an expert's possible opinions. The jury would have the chance to consider questions such as:

So, Dr., is it your opinion then, to a reasonable degree of medical certainty, that the plaintiffs bout of diarrhea on that particular evening was the result of aggravated stress caused by the funeral home, above and beyond any normal stress the plaintiff was suffering as a result of the death?

Would an expert's response be helpful to the jury's evaluation? Perhaps. Without an expert, however, would a jury really be incapable of assessing the credibility of witnesses and weighing the evidence in order to demarcate the line between death-stress and corpse-mishandling-stress?

Thus, if the issue is whether negligent mishandling of a corpse causes emotional harm, I conclude that the issue is not "unusually complex or esoteric." If the issue is whether and to what extent one's emotional *470harm can be divided, I conclude that expert testimony is so unlikely to define where death-stress stops and corpse-mishandling-stress begins, that expert testimony is not a prerequisite under the White standard. Therefore, in this case I conclude that the matter is not one that mandates the "extraordinary" requirement of expert testimony. See White, 149 Wis. 2d at 960, 440 N.W.2d at 562.

Concluding that it was inappropriate to apply the drastic remedy of summary judgment for failure to present expert evidence in this case, I would determine whether a plaintiff may recover damages for emotional harm, without physical injury, for the negligent mishandling of a corpse.

In La Fleur v. Mosher, 109 Wis. 2d 112, 325 N.W.2d 314 (1982), the supreme court held that a plaintiff may claim emotional harm, without accompanying physical injury, for the tort of negligent confinement because the tort, "by its very nature has a special likelihood of causing real and severe emotional distress." Id. at 119, 325 N.W.2d at 317. Then, in a footnote, the court cited Dean Prosser's identification of the only torts representing " 'two groups of special cases'" allowing recovery for emotional harm without physical injury, one of which " 'involved the negligent mishandling of corpses.'" Id., at 119 n.2, 325 N.W.2d at 317 n.2. Immediately thereafter, La Fleur explained, "The guarantee that the claim is probably genuine is in the nature of the tort itself." Id. at 119, 325 N.W.2d at 317.

With a common sense appraisal of "the nature of the tort itself," and, as a logical extension of La Fleur flowing from its favorable, footnoted reference to the tort of negligent mishandling of a corpse, I would conclude that even without any allegation of physical *471injury, one can recover for emotional harm resulting from the negligent mishandling of a corpse.

Accordingly, I respectfully dissent.