April 6, 2010 – In Racine County v. Oracular Milwaukee, Inc. (2007AP2861, April 2, 2010), the Wisconsin Supreme Court affirmed a court of appeals decision that Racine County was not required to present expert testimony to prove its breach of contract claims against computer consultant Oracular at summary judgment.
Racine County submitted a Request for Proposal (RFP) to prospective vendors seeking a computer consultant to upgrade its PeopleSoft software. The project was to include software installation, data conversion, integration with other applications, final implementation, going live on the PeopleSoft One software, and training. The RFP also required vendors submit a detailed proposal that included a project task list and schedule.
Oracular submitted a proposal in response to the RFP, which indicated a go-live date in September 2004.
Racine County selected Oracular as the vendor for the project, and on Feb. 2, 2004, the parties entered into a “Consulting Services Agreement,” which incorporated by reference the RFP, the proposal, Addendum A to the proposal , and a Jan. 12, 2004, addendum to the proposal. The total amount of the project was not to exceed $389,250.
Oracular’s breach and Racine County’s suit
Racine County terminated the Agreement on Feb. 16, 2006, and commenced this suit against Oracular in Racine County Circuit Court on Sept. 26, 2006, alleging breach of contract. In particular, Racine County alleged that the Oracular staff was, “for all practical purposes, incompetent,” and that Oracular misrepresented a time table for completion and implementation of the project. See Id., ¶ 15. According to Racine County, even after several revisions to the original September 2004 go-live date, the project was still barely more than half completed by the time it filed suit in September 2006.
Oracular moved for summary judgment, asserting that Racine County failed to carry its burden of proving that Oracular breached the standard of care. Oracular argued that the agreement in this case was a contract for professional services and that, therefore, Racine County was required to prove negligence. To do so, Racine County needed expert testimony to demonstrate that Oracular’s performance fell below the standard of care in the computer consulting industry. See Id., ¶ 16.
Racine County challenged Oracular’s attempt to transform the breach of contract claim into a negligence claim, arguing that expert testimony is not necessary to prove that Oracular breached the agreement by not completing the project on time and by failing to provide competent training.
The circuit court granted Oracular’s motion for summary judgment and dismissed Racine County’s breach of contract claim. The court reasoned that if a contract is viewed as rendering professional services, the basis of liability is negligence in failing to perform the services with due care. The court continued to reason that due to the complexity of developing a functioning computer system, expert testimony is required in order for Racine County to prove that Oracular breached the agreement. Racine County appealed.
The court of appeals then reversed the circuit court’s order granting summary judgment to Oracular and remanded the case, concluding that computer consultants like Oracular don’t constitute “professionals” for the purposes of determining whether they are subject to professional standards of care. See Id., ¶ 21. As a result, the court of appeals held that Racine County is not required to present expert testimony to recover on its breach of contract claim because “the alleged breaches are within the realm of the ordinary experience of the average juror.” See Id., ¶ 22. Oracular sought review with the Wisconsin Supreme Court.
Expert testimony not required for summary judgment
According to the supreme court, the circuit court improperly granted summary judgment to Oracular, because based upon the pleadings and affidavits, Racine County was not required to name an expert witness as a matter of law. See Id., ¶ 27.
Expert testimony is required when “unusually complex or esoteric issues are before the jury because it serves to assist the trier of fact.” In contrast, expert testimony is not necessary to assist the trier of fact “concerning matters of common knowledge or those within the realm of ordinary experience.” In fact, the court continued, “if the court or jury is able to draw its own conclusions without the aid of expert testimony, the admission of such testimony is not only unnecessary but improper.” See Id., ¶ 28.
The issue in this case, according to the court, was not whether Racine County is required to present expert testimony in order to demonstrate that Oracular’s performance fell below the industry standard of care. Instead, the issue is whether, in order to survive summary judgment, Racine County was required to name an expert witness when the complaint alleged that Oracular breached the parties’ agreement.
The court reasoned that the alleged breaches in this case concern matters of common knowledge and are within the realm of ordinary experience. The court, therefore, concluded that in order to survive summary judgment, Racine County was not required to name an expert witness, although the court did not close the door to the possibility that expert testimony may later assist the trier of fact in evaluating the breach of contract claim. As a result, the decision of the court of appeals was affirmed, and the case was remanded to circuit court.
