Thursday, January 29, 2015


Hon. John J. DiMotto

     It has been almost three years since Wisconsin became a "Daubert" state.  When the amendments to 907.02 took effect in February, 2011, the Wisconsin legal community was divided as to the impact "Daubert" would have on litigation in Wisconsin.  There were those skeptics who believed that: 

1)  It would be more difficult to introduce expert testimony
2)  Trial judges would become "uber- gatekeepers" who would manipulate the outcome of a case based on "reliability rulings.
3)  Introduction into evidence of advances in technology would be stifled.
4)  Litigation dependent on expert testimony would suffer.
5)  "Daubert" would have a seismic impact on litigation requiring expert testimony.

On the other hand, there were those who believed that:

1)  It would not be more difficult to introduce expert testimony.
2)  Trial judges would exercise their gatekeeper function moderately.
3)  Advances in technology would not be deemed inadmissible because of their "newness."
4)  Litigation dependent on expert testimony would not be negatively impacted.
5)  "Daubert" would have a subtle impact on litigation requiring expert testimony.

     In a blog entry that I wrote and posted on February 16, 2011, I rendered the opinion that the effect of "Daubert" in Wisconsin would be subtle:

1)  That the interplay between "relevancy" and "reliability" was compatible not incompatible. 
2)  That to be "relevant" evidence needed to be "reliable."
3)   That a reasonable reading of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) revealed that SCOTUS:

     a)  Stepped back from the rigid "general acceptance" rule of Frye.
     b)  Made it clear that the "Daubert" inquiry is a flexible inquiry.
     c)   Rule 702 will not create a "free for all."
     d)   Vigorous cross examination; presentation of contrary evidence; careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.

4)  That SCOTUS intended to make the introduction of expert testimony easier.
5)  That SCOTUS intended the degree of reliability necessary for the introduction of expert testimony to be low.

    I believe that Wisconsin appellate decisions addressing "Daubert" issues  has shown my prediction to be true.

     In the almost three years since "Daubert"  has been the "law of the land" in Wisconsin, there have been two decisions that address "Daubert" substantively:  State v. Giese, 2014 WI App 92, 356 Wis.2d 796 and State v. Alger, 2015 WI 3,  ____Wis.2d ____.

State v. Giese

     In Giese, the trial court denied Giese's motion to exclude expert testimony concerning retrograde extrapolation of his Blood Alcohol Concentration (BAC).  The Court of Appeals affirmed the trial court's decision.  The court found that the trial court properly admitted the expert's testimony under 907.02 because:

1)  It was the product of reliable principles and methods.
2)  It was based upon sufficient facts and data.
3)  The defendant's objections went to the weight of the expert's opinions and validity of the expert's underlying assumptions.

The court indicated that the trial court's gatekeeper function under "Daubert" is: 

1)   To ensure that the expert's opinion is based on a reliable foundation and is relevant to material issues.

The court further indicated:

1)   That the trial court is to focus on principles and methodology that the expert relies upon, not the conclusion generated.
2)   That the question is whether scientific principles and methods that the expert relies upon have a reliable foundation in the knowledge and experience of the expert's discipline.
3)   That relevant factors include:whether the scientific approach can be objectively tested; whether it has been subject to peer review and publication' whether it is generally accepted in the scientific community.

The court made it abundantly clear that this standard is flexible but has teeth.  The goal is to prevent the jury from hearing conjecture dressed up in the guise of expert opinion.  The trial court is not required to admit opinion evidence connected to existing data only by ipse dixit of the expert.

The court went on to say that the mere fact that experts disagree about reliability of a principle does not mean it violates "Daubert."  Assumptions of the expert go to weight not admissibility.  If experts are in disagreement, it is not for the court to decide which of several competing scientific theories has the best provenance.  Accuracy of facts upon which the expert relies and the ultimate determinations of credibility and accuracy are for the jury,

What we take away from Giese is that "Daubert" is flexible not rigid.

State v. Alger

     In Alger, the defendant sought discharge from his Chapter 980 Sex Offender Commitment.  He wanted the trial court to apply the "Daubert" standard to the State's expert opinions.  He believed that the "science" is ever changing and while perhaps relevant, not reliable enough to be considered by the jury.  The trial court refused to apply the "Daubert" standard because the case began before "Daubert"  went into effect in Wisconsin.  The Court of Appeals affirmed the decision of the trial court and the Wisconsin Supreme Court affirmed the Court of Appeals.

     While the ultimate decision is that "Daubert" does not apply in the case, it is significant that the court indicated that the expert testimony of the kind offered in a Chapter 980 case may be admissible regardless of which standard applies. The court indicated:

1)  Rejection of expert testimony, post-Daubert, is the exception not the rule.
2)  "Daubert" adds a 4th prong:  a reliability component to Wisconsin's 3 prong "relevancy components.
2)  A hearing is not always required for expert testimony under "Daubert."
3)  The expert testimony offered by the State in Chapter 980 cases is not "junk science" that is rejected by the "Daubert" standard.


     When it comes to "Daubert" in Wisconsin, I am convinced by Giese and Alger of four things:

1)   It is a FLEXIBLE standard.
2)   Rejection of expert testimony IS THE EXCEPTION NOT THE RULE.
3)   It is a doctrine/standard of INCLUSION NOT EXCLUSION.
4)   It's effect in Wisconsin is SUBTLE not seismic.