Daniel Thomas Orzech v. Wisconsin Veterinary Referral Center-Waukesha (WVRC)

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.
October 22, 2025
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. 2024AP676 Cir. Ct. No. 2022CV1366

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

DANIEL THOMAS ORZECH AND SUSAN DENISE ORZECH,

PLAINTIFFS-APPELLANTS,

V.

WISCONSIN VETERINARY REFERRAL CENTER-WAUKESHA (WVRC),
MEGHAN GLAZER, SARAH VUOLO, WHITNEY WITZEL, ANN MARIE
PICONE, JAY GLADDEN, CAROLYN JOCHMAN, DEBRA YORK-MILLER,
CHRISTINE MALLO, KERRI WIEDMEYER AND ALEXUS URBANIK,

DEFENDANTS-RESPONDENTS,

MOLLY HOPP DVM AND MIKE QUIGLEY DVM,

RESPONDENTS.

APPEAL from an order of the circuit court for Waukesha County:
BRAD SCHIMEL, Judge. Affirmed.

Before Gundrum, Grogan, and Lazar, JJ.
No. 2024AP676

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. By a series of orders, the circuit court narrowed
and then ultimately dismissed Daniel Thomas Orzech and Susan Denise Orzech’s
lawsuit against a veterinary hospital and twelve veterinarians. On appeal, the
Orzechs, pro se, raise more than a dozen issues related to the court’s dismissal of
certain parties and causes of action, evidentiary and declaratory determinations,
and grant of summary judgment. We affirm.

BACKGROUND

¶2 The Orzechs’ dog passed away following hospitalizations at Ethos
Veterinary Health LLC’s (“Ethos”) hospital. Ethos operates under the trade name
Wisconsin Veterinary Referral Center – Waukesha (“WVRC”). In
September 2022, the Orzechs brought suit against WVRC and twelve
veterinarians. The complaint included causes of action for professional
malpractice (against the veterinarians), fraudulent misrepresentation (against all
defendants), fraudulent concealment (against all defendants), negligence (against
all defendants), and negligent hiring and misrepresentation (against WVRC).

¶3 Ethos and the twelve veterinarians answered the complaint. In the
answer, Ethos advised the Orzechs, in part, that they had “improperly identified
[Ethos] as ‘Wisconsin Veterinary Referral Center Waukesha
(WVRC-Waukesha)’” in their complaint. Ethos alleged that it was the one that
operated the veterinary hospital. Ethos and the veterinarians then denied the
allegations, and raised various defenses, including, as relevant for appeal, lack of
proper service of process, failure to state a claim upon which relief may be

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granted, and failure to plead the fraud and misrepresentation causes of action with
particularity.

¶4 In March 2023, the Orzechs filed an amended and supplemental
complaint alleging that Ethos was the legal entity doing business as WVRC. They
also included an additional cause of action against Ethos/WVRC for violating
WIS. STAT. § 100.18 (2023-24).1 Ethos and the twelve veterinarians answered the
amended and supplemental complaint, denied the allegations relating to the new
cause of action, and again raised various defenses, including, as relevant for
appeal, lack of proper service of process.

¶5 In June 2023, Ethos and the twelve veterinarians filed a motion for
partial dismissal. First, they moved to dismiss Ethos and two of the veterinarians
(Molly Hopp and Mike Quigley) from the lawsuit based on lack of service, and the
Orzechs’ failure to timely amend their complaint to include Ethos as a party. They
also moved to dismiss the causes of action for fraudulent misrepresentation and
fraudulent concealment on the basis that these causes of action were not pled with
particularity as required by WIS. STAT. § 802.03(2).

¶6 Following briefing and a hearing, the circuit court largely granted
the dismissal motion. The court dismissed Ethos/WVRC, Hopp, and Quigley from
the lawsuit, in part, based on lack of service. The court also dismissed the causes
of action directed toward the dismissed parties.

¶7 As to the remaining ten veterinarians, the circuit court dismissed the
Orzechs’ causes of action for fraudulent misrepresentation and fraudulent

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

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concealment because they were not pled with particularity, but allowed a claim for
fraudulent concealment of veterinary records. At this point, the remaining causes
of action against the veterinarians included professional malpractice, negligence,
and fraudulent concealment of veterinary records.

¶8 The veterinarians then brought a motion seeking various forms of
relief, which, as relevant for appeal, included a motion for partial summary
judgment. Specifically, the veterinarians moved the circuit court to grant
summary judgment on the part of the Orzechs’ negligence cause of action that
alleged negligent supervision. The veterinarians argued the Orzechs had based
this cause of action on an alleged violation of the administrative code for which
there was no private right of action. Following briefing and argument, the court
agreed, and it dismissed the negligent supervision claim.

¶9 Then, pursuant to the circuit court’s scheduling order, the Orzechs
identified Dr. Bernadette Alisantosa as their sole expert in this case. Months later,
after the deadline for both parties to name experts and rebuttal experts had passed,
the Orzechs moved the court to allow additional expert testimony from a second
retained expert. The court denied the Orzechs’ request to name an additional
expert, reasoning the Orzechs had known about this expert for more than one year
and failed to timely disclose her.

¶10 The veterinarians then brought a motion for various forms of relief.
As relevant for appeal, the veterinarians moved to exclude Alisantosa’s testimony
on Daubert2 grounds. The veterinarians argued Alisantosa was not qualified and

2
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

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her expert opinion was not based on reliable methods or sufficient facts and data.
Additionally, the veterinarians moved for summary judgment on the Orzechs’
remaining causes of action. They argued they were entitled to judgment as a
matter of law because the Orzechs could not prove their professional malpractice
or remaining negligence claims without expert testimony. The veterinarians also
argued they were entitled to judgment on the fraudulent concealment of veterinary
medical records cause of action because the Orzechs had again based this cause of
action on an alleged violation of the administrative code and a statute for which
there was no private right of action.

¶11 At a motion hearing, the circuit court first granted judgment in favor
of the veterinarians on the fraudulent concealment of veterinary medical records
cause of action. The Orzechs had advised the court that they did not have
anything to refute the assertion that the regulations and statute did not create a
private right of action.

¶12 As for the veterinarians’ motion to exclude Alisantosa based on
Daubert, the circuit court advised the Orzechs that, based on Alisantosa’s
curriculum vitae and the excerpts of deposition testimony that had been provided
to the court, it had “serious concerns” regarding her ability to testify regarding a
standard of care. However, the court scheduled a Daubert hearing, and it advised
the Orzechs that Alisantosa would be required to testify.

¶13 Before the Daubert hearing, the circuit court entered a written
decision and order. It cancelled the hearing and explained:

[It] had originally set a Daubert hearing to take live
testimony from Dr. Alisantosa on the issue of her
qualifications to render opinions as to the standard of care
in this case, however, after further review of the record,
particularly the deposition transcript, the Court concludes

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that the undisputed facts already in the record provide
sufficient basis for this Court to make the determination
without an evidentiary hearing.

¶14 The circuit court then provided extensive details from Alisantosa’s
deposition testimony. It concluded Alisantosa had limited qualifications and her
opinions were not based on reliable methods or sufficient facts and data. The
court excluded Alisantosa from testifying as an expert.

¶15 Because the Orzechs no longer had an expert to testify, the circuit
court next determined whether the veterinarians were entitled to judgment as a
matter of law on the remaining negligence and professional malpractice causes of
action. Ultimately, the court determined that the Orzechs needed expert testimony
to establish the parameters of acceptable professional conduct. The court
determined that without an expert, the Orzechs could not prove their remaining
causes of action. It granted judgment in favor of the remaining ten veterinarians
and dismissed the Orzechs’ case. The Orzechs appeal. Additional facts will be
included below.

DISCUSSION

I. The dismissal of Ethos/WVRC and two veterinarians from the
lawsuit based on lack of service

¶16 “A circuit court obtains personal jurisdiction over a defendant when
the defendant is served with a summons in the manner prescribed by the statutes.”
Hagen v. City of Milwaukee Emps.’ Ret. Sys. Annuity & Pension Bd., 2003 WI
56, ¶12, 262 Wis. 2d 113, 663 N.W.2d 268. “The plaintiff has the burden to prove
… the defendant was properly served and is therefore subject to the court’s
jurisdiction.” Id. “Failure to obtain personal jurisdiction over the defendant by

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statutorily proper service of process is a fundamental defect fatal to the action,
regardless of prejudice.” Id., ¶13.

¶17 The Orzechs first argue that the circuit court erred by dismissing
Ethos/WVRC and two veterinarians for lack of service because they “failed to
raise [the] defense of lack of personal jurisdiction in their Answer and Affirmative
Defenses” and therefore waived the defense. (Emphasis omitted.) See WIS. STAT.
§ 802.06(2)(a) (defense of lack of jurisdiction or insufficiency of summons or
process “may … be made by motion” but “shall be asserted in the responsive
pleading.”). The Orzechs’ contention, however, is belied by the Record. The
Record reflects that Ethos/WVRC and the veterinarians raised lack of jurisdiction
and failure to obtain proper service in both their answer and their answer to the
amended and supplemental complaint. They have not waived the defense.

¶18 The Orzechs next argue the circuit court erred by determining as a
factual matter that Ethos and two of the veterinarians had not been properly
served. A process server’s “uncontradicted certificate of service is adequate proof
of service, but … it may be overcome with ‘clear and satisfactory proof’ to the
contrary.” Culver v. Kaza, 2021 WI App 57, ¶15, 399 Wis. 2d 131, 963 N.W.2d
865. “The [circuit] court has discretion concerning the nature of the proof it may
consider when it decides whether [a defendant] was served with the summons and
complaint.” Id., ¶11 (alteration in original). “We will sustain a discretionary
determination if the facts of record and correct legal standards are stated and
considered together to achieve a reasoned and reasonable decision.” Id.

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A. Ethos/WVRC

¶19 In the circuit court, the Orzechs argued they properly served
Ethos/WVRC. In support, they pointed to the affidavit from their process server,
Brad Klaus, who averred:

On September 24th, 2022 at 11:29 AM, I personally served
a summons and complaint # 2022CV001366 Waukesha
County upon the Wisconsin Veterinary Referral at 360
Bluemound Rd, Waukesha, WI 53188[.] Kari Severson
identified herself as the Medical Director and accepted the
paperwork.

¶20 However, before the circuit court, Ethos argued Severson was never
served.3 In support, Ethos provided two affidavits. The first was from Severson.
As relevant to this appeal, Severson averred she had never met or seen Klaus, she
has never accepted any paperwork from him, and she was never served with a
copy of the Orzechs’ summons and complaint. Severson explained her son plays
football for Michigan Technological University (“Michigan Tech”), and on
September 24, 2022, she was not in Waukesha but in Houghton, Michigan to
watch her son play a football game. Severson attached to her affidavit a copy of
Michigan Tech’s 2022-2023 football schedule, which reflected a game on
September 24 in Houghton, Michigan. Severson also attached copies of iPhone

3
In the circuit court, Ethos also argued that, alternatively, it should be dismissed from
the lawsuit because: (1) WVRC is not a legal entity and the Orzechs failed to timely name Ethos
as a party defendant; and (2) even assuming WVRC was properly identified (which it was not),
the Orzechs failed to establish that Severson was a person authorized to accept service on behalf
of WVRC. The court agreed with these alternative reasons as to why Ethos should be dismissed
from the lawsuit. However, because we determine that the court did not err by finding Severson
was never served, we do not address the Orzechs’ arguments on appeal related to whether they
timely amended their complaint to include Ethos as a party, or whether Severson was authorized
to accept service on behalf of Ethos. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d
514 (Ct. App. 1989) (cases decided on narrowest possible ground).

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No. 2024AP676

photographs taken by herself and others during and after the football game. Two
of the photographs depicted Severson with her son in his Michigan Tech football
uniform. The photographs included a date, time, and location stamp, indicating
they were taken on September 24, 2022, at 1:08 p.m., 3:48 p.m., and 3:54 p.m. at
Michigan Tech.

¶21 Ethos also provided the circuit court with an affidavit from
Dr. Whitney Witzel. Witzel averred that she is an employee of Ethos’ Waukesha
location and on September 24, 2022, she was working at the Waukesha location.
Witzel averred that Severson was not at work on September 24, 2022.

¶22 Based on this evidence, the circuit court found that Severson was
never served on September 24, 2022. Because the Orzechs had no other affidavit
establishing that Ethos/WVRC was properly served, it dismissed Ethos/WVRC
from the lawsuit.

¶23 On appeal, the Orzechs argue the circuit court erred by determining
Severson had not been served based on the evidence before it. They argue the
court was required to hold an evidentiary hearing. We disagree. As stated
previously, the court “has discretion concerning the nature of the proof it may
consider when it decides whether [a defendant] was served with the summons and
complaint.” Culver, 399 Wis. 2d 131, ¶11. Here, the court stated it was
persuaded by Severson’s detailed affidavit along with the corroborating evidence
that was provided, which included the photographs, a football game schedule, and
Witzel’s affidavit. Further, the Record reflects that the Orzechs asked for and
were given additional time to get further documentation from Klaus prior to the
scheduled motion hearing; however, the Orzechs ultimately failed to provide any
more evidence to the court. Given the circumstances, the court did not

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No. 2024AP676

erroneously exercise its discretion by failing to hold an evidentiary hearing or by
finding that Severson was not served.

B. Dr. Molly Hopp

¶24 In the circuit court, the Orzechs argued they properly served Hopp.
In support, they again pointed to Klaus’s affidavit. Klaus averred:

On October 19th, 2022 at 5:19 PM, I personally served a
summons and complaint # 2022CV001366 Waukesha
County upon Molly Hopp at the Wisconsin Veterinary
Referral at 360 Bluemound Rd, Waukesha, WI 53188[.]
Molly Hopp identified herself and accepted the paperwork.

¶25 Hopp, however, asserted she was never served. In her affidavit, she
averred that on October 19, 2022 she was working at Ethos’ Waukesha location.
While she was in the middle of an appointment, the receptionist, Olivia, entered
her examination room and said there was someone at the front desk who had
papers for her. Hopp told Olivia that she could not immediately come out to the
front desk because she was in the middle of an appointment. Hopp stated that
when her appointment finished, she went to the front desk. The receptionist
handed Hopp a copy of the summons and complaint, and advised Hopp that the
person who had been looking for her left the papers for her and was no longer in
the building. Hopp averred she has never met or even seen Klaus, she did not see
him on October 19, 2022, she never “identif[ied] [her]self” to Klaus, and she did
not accept any paperwork from him.

¶26 The circuit court observed the determination of whether Hopp was
served was a “closer call.” However, the court found persuasive the detail Hopp
included in her affidavit compared to Klaus’s single paragraph. The court also
stated that it did not need to hold an evidentiary hearing because it had already

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No. 2024AP676

provided the Orzechs with the opportunity to get additional affidavits from Klaus
or others relating to service; however, the Orzechs had not provided any more
evidence. The court found that “what tips the scales for me relative to this is that I
already concluded that the process server made a fundamental mistake relative to
service of Dr. Severson.” The court ultimately found Hopp was not served and
dismissed her from the lawsuit.

¶27 On appeal, the Orzechs argue the circuit court erred by determining
Hopp had not been served without holding an evidentiary hearing. We disagree.
The Record reflects that the Orzechs were given additional time to submit further
evidence or another affidavit from Klaus regarding service, but they did not
because as they advised the court, he would not provide another affidavit. Further,
the court’s reasoning reflects the court was already concerned with the mistake
Klaus made relative to Severson’s purported service of process. The court also
found Hopp’s detailed affidavit more persuasive than Klaus’s single paragraph.
Given the circumstances, we conclude the court did not erroneously exercise its
discretion by failing to hold an evidentiary hearing or by finding that Hopp was
not served. See id.

C. Dr. Mike Quigley

¶28 Quigley was never personally served. The Orzechs’ affidavit of
nonservice states that the process server went to Quigley’s last known apartment
address three times. The third time the current apartment resident advised that
Quigley did not reside there. The Orzechs then published notice of the lawsuit in
the Milwaukee Journal Sentinel.

¶29 As relevant to the Orzechs’ choice of service methods for Quigley,
WIS. STAT. § 801.11(1)(c) provides:

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No. 2024AP676

If with reasonable diligence the defendant cannot be served
under par. (a) [personally serving the summons on the
defendant] or (b) [left at the defendant’s place of abode in
the presence of a family member or an adult living with the
defendant], service may be made by publication of the
summons as a class 3 notice, under [WIS. STAT.] ch. 985,
and by mailing. If the defendant’s post-office address is
known or can with reasonable diligence be ascertained,
there shall be mailed to the defendant, at or immediately
prior to the first publication, a copy of the summons and a
copy of the complaint. The mailing may be omitted if the
post-office address cannot be ascertained with reasonable
diligence.

¶30 In the circuit court, Quigley argued service by publication was
improper because the Orzechs failed to establish they exercised “reasonable
diligence” in attempting personal service. Quigley observed that the Orzechs
discussed alleged search efforts in their brief but failed to aver or authenticate the
allegations or exhibits. Quigley also argued the Orzechs failed to establish that the
Milwaukee Journal Sentinel was likely to give notice to Quigley because they
knew he no longer lived at the Milwaukee address. See WIS. STAT. § 985.02(1)
(“[A] legal notice shall be published in a newspaper likely to give notice in the
area or to the person affected.”).

¶31 Ultimately, the circuit court determined it “c[ould ]not conclude that
reasonable diligence has been demonstrated by way of any affidavit or any other
means that I may consider as evidence in these proceedings.” The court dismissed
Quigley from the lawsuit.

¶32 On appeal, the Orzechs argue the circuit court erred by determining
the affidavit of nonservice was insufficient to demonstrate that reasonable
diligence was made in attempting personal service. They argue that no additional
affidavit demonstrating efforts to locate Quigley was required, and he was
properly served by publication. We disagree. “Reasonable diligence is a question

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of what is reasonable under the facts of a particular case.” Culver, 399 Wis. 2d
131, ¶29. We have previously stated:

The diligence to be pursued and shown by the affidavit is
that which is reasonable under the circumstances and not
all possible diligence which may be conceived. Nor is it
that diligence which stops just short of the place where if it
were continued might reasonably be expected to uncover an
address ... of the person on whom service is sought.

Id. (ellipsis in original; citation omitted).

¶33 In this case, the Orzechs’ affidavit of nonservice established only
that the process server went to Quigley’s last known address (an apartment in
Milwaukee) three times. On the first two attempts the process server was unable
to get into the apartment building. On the third attempt, the process server stated:
“Current resident states that defendant no longer lives here. Incorrect address.”
We conclude this affidavit is insufficient to establish the Orzechs exercised
reasonable diligence in attempting to personally serve Quigley such that service by
publication was appropriate. The circuit court did not err and properly dismissed
Quigley from the lawsuit.

II. The dismissal of the fraudulent misrepresentation and
fraudulent concealment causes of action

¶34 The Orzechs argue the circuit court erred by dismissing their
fraudulent misrepresentation and fraudulent concealment causes of action on the
basis that these causes of action were not pled with particularity. See WIS. STAT.
§ 802.03(2). Particularity requires “specification of the time, place, and content of
an alleged false misrepresentation.” Friends of Kenwood v. Green, 2000 WI App
217, ¶14, 239 Wis. 2d 78, 619 N.W.2d 271 (citation omitted). In other words, the
“who, what, when, where and how” of the false statements must be pled. Id.

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(citation omitted). Reference to generic entities or the “defendants” or “plaintiffs”
broadly does not suffice. See id., ¶¶14-16.

¶35 On appeal, the Orzechs assert they pled their fraudulent
misrepresentation and concealment claims with particularity. In support, they
simply direct this court to their complaint and assert the complaint establishes the
who, what, when, where, and how.

¶36 We disagree. The Orzechs’ complaint only vaguely avers that the
“defendants” misrepresented information to the Orzechs and concealed they were
failing to render proper care for the Orzechs’ dog. These allegations do not say
which defendant made the representation or what exactly was stated. We agree
with the circuit court that the Orzechs’ complaint includes “just very general
averments,” which do not satisfy the particularity pleading requirements. See id.,
¶16 (concluding misrepresentation allegations were insufficiently pled “because
they fail[ed] to specify the particular individuals who made the representations,
and fail[ed] to specify the details of where and when the misrepresentations were
made, and who the misrepresentations were made to.”). Accordingly, the court
properly dismissed these causes of action.

III. The dismissal of the negligent supervision and fraudulent
concealment of veterinary medical records causes of action

¶37 The Orzechs next argue the circuit court erred by granting summary
judgment in favor of the veterinarians and dismissing their negligent supervision
and fraudulent concealment of veterinary medical records causes of action. These
claims were based on the veterinarians’ purported violations of WIS. ADMIN.

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No. 2024AP676

CODE § VE 1.44 (through Nov. 2024)4 (as relating to supervision) as well as WIS.
STAT. § 89.075 and WIS. ADMIN. CODE §§ VE 1.52 and 1.58 (through Nov. 2024)
(as relating to veterinary medical records). In court, the veterinarians argued, in
part, that they were entitled to judgment on these causes of action because there
was no language within the code or statute that evinced legislative intent to create
a private right of action for these purported violations.

¶38 At the motion hearings (one regarding the negligent supervision
cause of action and one regarding the fraudulent concealment of veterinary
medical records cause of action), the circuit court asked the Orzechs for argument
as to how these code provisions and statute created a private right of action under
the circumstances. The Orzechs stated they did not know and they did not have
anything to refute the assertion that these regulations and statute did not create a
private right of action. The court dismissed the causes of action.

¶39 On appeal, the Orzechs assert these regulations and statute create a
private right of action. They explain these provisions are designed to protect pet
owners, assert the Orzechs were harmed by the veterinarians’ violations of these
provisions, and contend that, as a result, they should be permitted to bring these
causes of action.

¶40 We disagree. “‘[A] private right of action is only created when
(1) the language or the form of the statute evinces the legislature’s intent to create
a private right of action, and (2) the statute establishes private civil liability rather

4
At the time the Orzechs’ dog passed away, this regulation was found in WIS. ADMIN.
CODE § VE 7.02 (through March 2020),
https://docs.legis.wisconsin.gov/code/register/2020/771B/insert/ve7.

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No. 2024AP676

than merely providing for protection of the public.’” Farr v. Alternative Living
Servs., Inc., 2002 WI App 88, ¶14, 253 Wis. 2d 790, 643 N.W.2d 841 (citation
omitted). Here, the Orzechs have not pointed to any language in the challenged
regulations or statute that evinces “a clear indication of the legislature’s intent” to
create a private right of action. See Grube v. Daun, 210 Wis. 2d 681, 689, 563
N.W.2d 523 (1997) (“A determination of whether a statute creates a private right
of action is dependent on whether there is a clear indication of the legislature’s
intent to create such a right.”). That the Orzechs were purportedly harmed by the
veterinarians’ failure to properly supervise or provide their dog’s medical records
is not enough to create a private right of action. We conclude that, given the
circumstances, the circuit court did not err by dismissing the Orzechs’ negligent
supervision and fraudulent concealment of veterinary medical records causes of
action.

IV. The denial of the motion to allow additional expert testimony

¶41 The Orzechs next argue the circuit court erred by denying their
motion to allow additional expert testimony. In making its determination, the
court observed that the Orzechs had retained their second expert and received this
expert’s report in September 2022. Yet, the Orzechs only disclosed Alisantosa on
their April 2023 witness list. The court also observed that in September 2023, the
Orzechs advised the veterinarians in their sworn interrogatory response that they
still did not have another expert. The veterinarians learned of this second expert in
December 2023, when the Orzechs filed their motion to allow additional expert
testimony. The court stated:

for you to wait then until December [2023] to disclose [the
second expert] … is unacceptable. And therefore as to
Interrogatory No. 1 … I am going to conclude that the
answer is completed and that the expert [you] intend to call

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No. 2024AP676

is Dr. Alisantosa, and I am going to deny the motion to
extend the time to identify an additional expert.

¶42 On appeal, the Orzechs argue the circuit court erred by excluding
their second expert. They assert that, pursuant to the court’s scheduling order,
they had until December 15, 2023 to disclose a second expert, and therefore, they
timely disclosed their second expert. The Orzechs also assert that the court’s
decision to prohibit an additional expert based on how they answered their
interrogatory was too drastic.

¶43 We disagree. A circuit court has statutory and inherent authority to
control its docket through a scheduling order, “including the identification and
disclosures of expert witnesses[.]” 260 N. 12th St., LLC v. DOT, 2011 WI 103,
¶57, 338 Wis. 2d 34, 808 N.W.2d 372 (quoting WIS. STAT. § 802.10(3)(f)). “A
party’s failure to follow a scheduling order is grounds for sanctions at the circuit
court’s discretion.” Id., ¶58. Such sanctions may include prohibiting a party
“from introducing designated matters in evidence[.]” Id. (quoting WIS. STAT.
§ 804.12(2)(a)2.).

¶44 Here, contrary to the Orzechs’ assertion, they did not have until
December 15, 2023 to name a second expert. Rather, the circuit court’s amended
scheduling order provided that the Orzechs were required to name their expert(s)
by April 10, 2023, the veterinarians needed to name their expert(s) by
September 11, 2023, and any rebuttal expert was to be identified by November 8,
2023. The order provided, “Witnesses not timely named and described will be
precluded from testifying as witnesses at trial, except for good cause shown.” The
December 11, 2023 deadline, extended to December 15, 2023, was the deadline to

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bring a motion under “WIS. STAT. § 901.04[5] to allow (out of the ordinary experts)
or to challenge the admission of expert testimony.” The Orzechs did not timely
name this second expert pursuant to the court’s amended scheduling order.

¶45 Additionally, given the Record, the Orzechs did not establish good
cause to permit their second expert from testifying. The circuit court observed that
the Orzechs had known about this expert for more than one year and had a report
from this expert dated September 24, 2022. Nevertheless, the Orzechs advised the
veterinarians in their sworn September 2023 interrogatory response that they were
“presently searching for an additional expert witness.”6 The Orzechs then did not
disclose this witness until they filed their motion in December 2023. We conclude
the circuit court did not erroneously exercise its discretion by excluding this expert
witness from testifying.

V. The exclusion of Alisantosa as an expert witness

¶46 The Orzechs next argue the circuit court erred by excluding
Alisantosa as an expert witness. A court’s decision to admit or exclude expert
testimony is governed by WIS. STAT. § 907.02(1). That subsection adopts the
federal “reliability” standard developed in Daubert. State v. Giese, 2014 WI App
92, ¶17, 356 Wis. 2d 796, 854 N.W.2d 687. Under § 907.02(1), there are three
“threshold requirements” for the admission of expert testimony:

5
WISCONSIN STAT. § 901.04 is titled, “Preliminary questions,” and provides, for
example, that “[p]reliminary questions concerning the qualification of a person to be a witness, ...
or the admissibility of evidence shall be determined by the judge ….” Sec. 901.04(1).
6
The interrogatory asked, in part: “Identify by name, address, and telephone number
every person you expect to call as an expert witness at trial other than Bernadette T. Alisantosa.”
The Orzechs responded, “We will supplement discovery at a later date since we are presently
searching for an additional expert witness.”

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No. 2024AP676

the witness must be qualified (“a witness qualified as an
expert by knowledge, skill, experience, training, or
education”); the witness’s testimony must be relevant (“[i]f
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue”); and … the witness’s testimony
must be reliable (“if the testimony is based upon sufficient
facts or data, the testimony is the product of reliable
principles and methods, and the witness has applied the
principles and methods reliably to the facts of the case”).

State v. Hogan, 2021 WI App 24, ¶19, 397 Wis. 2d 171, 959 N.W.2d 658 (quoting
§ 907.02(1); first alteration in original). “We review a circuit court’s decision to
admit or exclude evidence under an erroneous exercise of discretion standard.”
Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698.

¶47 In its written decision, the circuit court determined Alisantosa had
limited qualifications and her expert opinion was not sufficiently reliable. In
support of its determination, the court provided extensive details of Alisantosa’s
deposition testimony. The court observed that Alisantosa earned her doctor of
veterinary medicine degree at a school in Indonesia. Alisantosa was not licensed
as a veterinarian in any state because her career focused on biomedical research.
Alisantosa last worked in a clinical veterinary setting in Indonesia in the late
1980s/early 1990s. The court observed Alisantosa had never treated various
medical conditions from this case in a clinical setting, that her testimony
established she was unfamiliar with the Orzechs’ dog’s medical records, that,
although she claimed to be an expert in emergency and critical care veterinary
medicine, she needed her report to refresh her recollection about a particular
condition and admitted she should have known about this condition without
reliance on her report, and that her recommended treatments were based on her
professed style rather than any standard of care. The court also observed that there

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No. 2024AP676

were numerous self-contradictions in Alisantosa’s testimony such as the criteria to
look for to recognize a medical condition and recommended treatments.

¶48 Ultimately, the circuit court determined Alisantosa

was persistently unable to recall the basis for her opinions,
nor could she recall the details of the treatment of
[Orzechs’] dog with much accuracy.

… She offered very little that demonstrated that putting
her on the stand before the jury would be anything more
than the speculation, “conjecture dressed up in the guise of
expert opinion,” or ipse dixit testimony that is prohibited by
the statutes and case law.

When those problems are coupled with the extremely
limited professional qualifications that Dr. Alisantosa has
to testify on standards of care for a 21st century American
veterinary hospital practitioner, this Court has no choice
but to exercise the “gate-keeper” function under the
statutory framework.

The court excluded Alisantosa’s expert testimony.

¶49 On appeal, the Orzechs argue the circuit court erred by excluding
Alisantosa’s testimony. We disagree. The Record reflects that the court was
concerned with Alisantosa’s lack of clinical experience, her self-contradictory
testimony, her lack of recall of information—both case specific and medical
information in general, and that her standard of care was based on her style of
treatment. The court’s decision was appropriately based on the facts before it and
application of those facts to WIS. STAT. § 907.02(1). We conclude the court
properly exercised its discretion by excluding Alisantosa’s testimony.

VI. The determination that expert testimony was required and the
grant of summary judgment

¶50 Finally, the Orzechs argue the circuit court erred by determining that
expert testimony was required in order for them to maintain their negligence and

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No. 2024AP676

professional malpractice causes of action against the remaining veterinarians.
“The requirement of expert testimony is an extraordinary one, and is to [be]
applied by the [circuit] court only when unusually complex or esoteric issues are
before the jury.” White v. Leeder, 149 Wis. 2d 948, 960, 440 N.W.2d 557 (1989).
“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.” Id.

¶51 Here, the circuit court determined that the Orzechs needed expert
testimony to “explain the standard of care expected of a reasonable veterinarian.”
The court observed that this case

involves multiple disease diagnoses and complex
life-saving or life-extending procedures. One need look no
further than the pleadings in the present case to see that
there were treatments that were applied that require
specialized skills far beyond the knowledge of a lay person.
A review of the veterinary records relating to the care of
the [Orzechs’] dog demonstrates that a complex course of
treatment was implemented to address a number of
different veterinary medical concerns. … Further, several
of [the Orzechs’] original claims directly challenge whether
staff at WVRC had the necessary training, licenses,
qualifications, etc., to provide services to their dog.
Clearly, the most critical aspects of the care of
[the Orzechs’] dog required considerable training and
experience.

¶52 On appeal, the Orzechs assert “[t]he malpractice and negligence
committed by the [veterinarians] ‘speaks for itself’ and, thus, does not require
expert testimony since it can be easily recognized as such by a reasonable jury.”
We disagree. As the circuit court observed, the Record reveals this case involves
complex and technical knowledge of veterinary medicine, and appropriate
standards of care that are not within the common knowledge and ordinary
experience of an average juror. The court did not err by determining that expert

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No. 2024AP676

testimony was required in order for them to maintain their negligence and
professional malpractice causes of action.

¶53 Because expert testimony was required in this case and the Orzechs’
expert was properly excluded from testifying, the circuit court properly granted
summary judgment on the remaining causes of action in favor of the veterinarians.
See Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 381, 541 N.W.2d 753
(1995) (“The lack of expert testimony in cases which are so complex or technical
that a jury would be speculating without the assistance of expert testimony
constitutes an insufficiency of proof.”); see also WIS. STAT. § 802.08(2).

VII. Remaining appellate arguments

¶54 Finally, the Orzechs argue the circuit court erred by making various
declaratory determinations that limited their claimed damages. However, because
we concluded the court properly dismissed their lawsuit, we need not determine
what damages are available to the Orzechs. See State v. Blalock, 150 Wis. 2d 688,
703, 442 N.W.2d 514 (Ct. App. 1989) (cases decided on narrowest possible
ground).

By the Court.—Order affirmed.

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

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