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State’s summary of expert testimony needn’t specify the subject matter of his testimony

State v. Jamie M. Srb, 2017AP307-CR, 11/9/17, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Srb objected to the admissibility of his BAC results at his OWI trial in part because the State submitted a summary of expert testimony that failed to indicate that its expert would testify about retrograde extrapolation. See §971.23(1)(e). The court of appeals agreed that the State’s summary contained no information regarding retrograde extrapolation, but held that this level of specificity was not required.

Section 971.23(1)(e) requires the State to disclose an expert’s report or statement or, instead,  “a written summary of the expert’s findings or the subject matter of his or her testimony.” The court of appeals held that these summaries need not be detailed:

¶13 The fact that the blood analysis report and other materials turned over to the defense did not mention retrograde extrapolation does not mean that the State failed to turn over “a written summary of … the subject matter of [Savage’s] testimony.” That language does not require that every detail be disclosed to the defense. See State v. Schroeder, 2000 WI App 128, ¶9, 237 Wis. 2d 575, 613 N.W.2d 911 (“The statute does not require than an expert make out a report reciting in detail the bases for his or her opinion. Rather, it requires that the defense be provided with the report if one has been prepared or, if the expert does not prepare a report, a written summary of findings.”). As observed by the circuit court, it should come as no surprise to Srb or his trial counsel that a determination of a defendant’s blood alcohol concentration for an OWI charge may involve estimating what the defendant’s alcohol content was at a specific time. Srb provides no case law to support the proposition that the absence of this detail in the pretrial discovery materials rises to the level of a discovery violation. See, e.g., State v. Gimino, No. 2012AP1498, unpublished slip op. (March 7, 2013) (concluding that lack of information regarding pain medication in medical report did not rise to the level of a discovery violation). Accordingly, I agree with the State that the fact that the blood analysis report did not contain any information regarding retrograde extrapolation is not a discovery violation, and I conclude that allowing expert testimony on that issue was not erroneous. Because admission of Savage’s expert testimony was not erroneous, I further conclude that the circuit court did not err in admitting into evidence the result of Srb’s blood analysis.

A quick search of §971.23(1)(e) suggests that no State’s summary of expert testimony has been held too vague for the statute. It would sure be helpful to know where the line is. Also, note that the court of appeals’ holding above is literally cut and pasted from Gimino. The court simply changed the names and type of report.

¶31 We agree with the State that the fact that medical reports and other materials turned over to the defense did not mention pain medication does not mean that the State failed to turn over a “written summary of [Dr. Saunders’] findings or the subject matter of … her testimony.” This language does not require that every detail be disclosed to the defense. See State v. Schroeder, 2000 WI App 128, ¶9, 237 Wis. 2d 575, 613 N.W.2d 911 (“The statute does not require that an expert make out a report reciting in detail the bases for his or her opinion. Rather, it requires that the defense be provided with the report if one has been prepared or, if the expert does not prepare a report, a written summary of It should have come as no surprise to Gimino or his trial attorney that the procedure and treatment of severe road rash involved pain medication. Gimino provides no case law support for the proposition that the absence of this detail in the pretrial discovery materials rises to the level of a discovery violation. In sum, we agree with the State that the fact that Dr. Saunders’ medical reports did not contain any information regarding the pain medication given to B.G. might be a means of impeaching Dr. Saunders, but it is not a discovery violation.

 

 

 

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