Michael A. Alexander v. Dr. David Wolfe

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 21, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1394 Cir. Ct. No. 2022CV2456

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN EX REL. MICHAEL A. ALEXANDER,

PLAINTIFF-APPELLANT,

V.

DR. DAVID WOLFE,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County: NIA E.
TRAMMELL, Judge. Affirmed.

Before Kloppenburg, Nashold, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Michael Alexander appeals an order dismissing his
dental malpractice case. We affirm.
No. 2024AP1394

¶2 Alexander’s amended complaint alleged that defendant David Wolfe
was a dentist who treated him at a correctional facility. Alexander sought
compensatory and punitive damages for pain that he alleged he suffered because
Wolfe did not timely treat his dental condition. The circuit court dismissed the
complaint on Wolfe’s summary judgment motion.

¶3 Alexander first argues that the circuit court erred by denying his
motion for the appointment of an expert. Before the summary judgment portion of
the litigation, Alexander moved for the court to appoint an expert under WIS.
STAT. § 907.06(1) (2023-24).1 The ground for the motion was that Alexander was
unable to obtain the services of an expert from prison. The motion stated that
“[t]he purpose of this expert witness is to investigate whether Dr. Wolfe’s actions
fell below the professional standard of a dentist and if so to prosecute this case.”
The motion stated:

The arguments and these material facts within the amended
complaint suggest the claims against Dr. Wolfe has merit
but without expert support they are insufficient. To appoint
a dentist as an expert when evidence demonstrates the
claims have merit and that the Plaintiff is unable to contact
the dentist community would promote justice.

The motion asked the court to order Wolfe to compensate the expert, due to
Alexander’s indigency.

¶4 The circuit court denied the motion. It stated in part that the statute
Alexander relied on

is not a mechanism that allows the Court to appoint an
expert witness for the purpose of aiding Alexander in

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP1394

buttressing or preparing his claims in this litigation; it is a
tool to assist the Court. The Court has no basis at this time
to warrant the appointment of an expert.

¶5 On appeal, Alexander argues that the circuit court misinterpreted
WIS. STAT. § 907.06(1), which provides:

The judge may on the judge’s own motion or on the motion
of any party enter an order to show cause why expert
witnesses should not be appointed, and may request the
parties to submit nominations. The judge may appoint any
expert witnesses agreed upon by the parties, and may
appoint witnesses of the judge’s own selection. An expert
witness shall not be appointed by the judge unless the
expert witness consents to act. A witness so appointed
shall be informed of the witness’s duties by the judge in
writing, a copy of which shall be filed with the clerk, or at a
conference in which the parties shall have opportunity to
participate. A witness so appointed shall advise the parties
of the witness’s findings, if any; the witness’s deposition
may be taken by any party; and the witness may be called
to testify by the judge or any party. The witness shall be
subject to cross-examination by each party, including a
party calling the expert witness as a witness.

¶6 Alexander correctly observes that nothing in the text of the statute
limits such an expert’s role to that of assisting the circuit court, and nothing in the
statute prohibits the court from appointing an expert to potentially assist a party in
the manner that Alexander sought. He notes that the statute allows appointment of
an expert on either the court’s own motion or on the motion of a party, and argues
that the provision for a motion by a party would be unnecessary if the sole purpose
of the statute is for the court to appoint an expert to assist itself, and never to assist
a party. In the absence of language limiting the expert in that way, he argues that
the statute should be interpreted to allow for his motion, in accordance with the
statute directing that the rules of evidence be construed “to the end that the truth
may be ascertained and proceedings justly determined.” WIS. STAT. § 901.02.

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No. 2024AP1394

¶7 In response, Wolfe describes the statute as “providing” that the
circuit court may appoint “a neutral expert.” However, that language is not in the
statute. Wolfe relies on the note of the Judicial Council Committee that was
published along with the rule. It states in part:

Unless a substantial difference of opinion by experts of
adverse parties exists, other than a difference of opinion
resulting from accepted but differing schools of
professional thought, the power of the court to appoint
experts should not be used. In exercising that power the
court should give the parties a reasonable voice in the
selection of the expert to the end that they may be
reasonably assured of his impartiality.

WIS. R. EVID., 59 Wis. 2d R1, R216.

¶8 Wolfe also relies on a federal case applying the federal rule on
which the Wisconsin rule is based, Carranza v. Fraas, 471 F. Supp. 2d 8 (D.D.C.
2007). In that case, the court reviewed other federal decisions and concluded that
the federal rule “allows the court to appoint an expert witness to assist the court,
not to assist a party.” Id. at 9-11.

¶9 We conclude that Wolfe has the better argument. The Judicial
Council Committee note stating that the statute “should not” be used in the way
that Alexander requested supports an interpretation that the statute cannot be used
in that way. This interpretation is also supported by the Carranza decision.

¶10 Alexander also argues that the circuit court erred in dismissing his
complaint. The court dismissed Alexander’s claims of negligence and medical
malpractice in part on the ground that Alexander did not name an expert witness.
This court reviews a grant of summary judgment de novo, using the same
methodology used by the circuit court. Bank of New York Mellon v. Klomsten,

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No. 2024AP1394

2018 WI App 25, ¶31, 381 Wis. 2d 218, 911 N.W.2d 364. That methodology is
well established and need not be repeated in full here.

¶11 On appeal, Alexander acknowledges that in malpractice cases expert
testimony is generally required to establish a breach of the standard of care. He
attempts to overcome his lack of an expert by arguing that a jury could make
reasonable inferences from the actions of a later dentist who treated him with gum
desensitizer, and from Wolfe’s own statements about the taking of X-rays.
However, we conclude that these sources are not sufficient to replace the
requirement for expert testimony in Alexander’s favor.

¶12 Accordingly, we conclude that the circuit court properly granted
summary judgment to Wolfe and dismissed Alexander’s complaint.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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