The Daubert "Expert Testimony" Rule: Coming to Wisconsin

By Judge John DiMotto

By the passage of Senate Bill 1 during the recent 2011 Special Legislative Session called for the purpose of addressing tort reform, Wisconsin is poised to join the federal courts and the majority of states by adopting the Daubert "reliability" Rule for the admission of expert testimony. No longer will Wisconsin rely on the Walstad "relevancy" rule, rather Wisconsin judges will now take a more active "gatekeeper" role in the first instance. Does this mean that seismic changes are on the horizon or will the change be subtle at best? To answer this question requires a brief look at the differences between the Walstad "relevancy" rule and the Daubert "reliability" rule.

But first, a little history.

In Frye v. U.S., 293 F.2d 1013 (D.C. CA 1923), the D.C. Court of Appeals adopted the Frye test or "general acceptance." Under this test, expert opinion based on a scientific technique is inadmissible unless the technique is generally accepted as reliable in the relevant scientific community.

In Watson v. State, 64 Wis.2d 264 (1974), the Wisconsin Supreme Court rejected an argument by defense counsel that the "general acceptance" standard of Frye governs the admissibility of expert opinion in Wisconsin. The Court cited to McCormick, Evidence, which is critical of the Frye rule, and stated that in Wisconsin, we follow the wide-open rule of cross-examination to test credibility.

In State v. Walstad, 119 Wis.2d 483 (1984), the Wisconsin Supreme Court reiterated that the Frye test is foreign to the Wisconsin Rules of Evidence section 904.02 which sets forth that all relevant evidence [evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence] is admissible. Thus, for over 47 years, Wisconsin has opted to use a "relevancy" standard with respect to the admission of expert testimony.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court addressed the viability of the Frye test. In Daubert, SCOTUS stated that the Frye "general acceptance" test was superseded by the adoption of the Federal Rules of Evidence and held that nothing in rule 702 establishes "general acceptance" as an absolute prerequisite to admissibility nor did it incorporate the "general acceptance" standard. SCOTUS held that before admitting expert testimony the trial judge must decide under Rule 104(a) whether the expert is purporting to testify as to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue and that this entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether it can properly be applied to the facts in issues. SCOTUS further set forth factors to consider in making the determination. SCOTUS made it clear that this is a flexible inquiry and that this rule will not create a "free for all" and that vigorous cross examination, presentation of contrary evidence and careful instructions on burden of proof are traditional and appropriate means of attacking shaky but admissible evidence. (In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), SCOTUS made it clear that the Daubert "reliability" Rule applies to all expert testimony, not just scientific expert testimony.)

In State v. Peters, 192 Wis.2d 674 (Ct. App. 1995), the Wisconsin Court of Appeals considered whether the Daubert "reliability" Rule affected the Walstad "relevancy" Rule and held that it did not. The Court did stat that while Wisconsin confines itself to determination of relevancy, that Wisconsin trial judges do serve a limited and indirect "gatekeeping" role, albeit, oblique. The court stated that scientific evidence can be rejected, though relevant, if it is superfluous, a waste of time, other 904.03 reasons, the jury does not need it, evidence is inherently improbable, or the area is not suitable for expert opinion [ie. public policy reasons such as polygraph tests]. The Court further stated that this list is not an exhaustive inventory of grounds to refuse to admit relevant evidence and indicated that although Wisconsin trial judges do not evaluate the reliability of scientific evidence, they may restrict it through a limited gatekeeping function.

Today, by virtue of the amendments to 907.02 and 907.03, the Walstad "relevancy" Rule has been superseded by the Daubert "reliability" Rule (as amended by changes in 2000).

As a result, Wisconsin trial judges now must be "gatekeepers" as to all expert testimony as to both relevancy and reliability. Absent a stipulation, Wisconsin trial judges should conduct a 901.04 hearing outside the presence of the jury to determine whether expert testimony will or will not be admitted. In that hearing the trial judge will be guided by Daubert factors and others from cases subsequent to Daubert.

The Committee Note on Rules - 2000 Amendment discusses the fact that Daubert sets forth a non-exclusive "checklist" for trial courts to use in assessing reliability of expert testimony and further discusses that other courts have added to the checklist. The checklist discussion in the Committee Notes includes:

1) Whether the expert's technique or theory has been tested.

2) Whether the technique or theory has been subjected to peer review and publication.

3) The known or potential rate of error.

4) The existence and maintenance of standards and controls.

5) Whether the technique or theory has been generally accepted in the scientific community.

6) Whether experts are proposing to testify about matters flowing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed it for purposes of testifying.

7) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion.

8) Whether the expert has adequately accounted for obvious alternative explanations.

9) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting.

10) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Under 907.02, before expert testimony will be admitted, the trial court must be satisfied that:

1) The testimony is based upon sufficient facts or data.

2) The testimony is the product of reliable principles and methods. and,

3) The witness has applied the principles and methods reliably to the facts of the case.

The "$64,000 Question" that I posed in my first paragraph and that remains to be answered is still: Is this a seismic change or a subtle change?

I am not sure we will have an answer in the near future, but in the meantime and in the final analysis, what it will "boil down to" is for every trial judge to properly exercise his or her discretion in terms of both relevancy and reliability via a flexible inquiry conducted under 901.04.

Immigration Law - The Fiance Visa

By John DiMotto

Another visa that is immediately available for review and processing by the USCIS is the K-1 "fiance visa."

A fiance of a US citizen who will travel to the US to marry and take up indefinite residence after marriage maybe eligible for a fiance visa. There are four criteria that must be met:

1) One party is a US citizen.

2) Both parties are legally free to marry.

3) The parties have met in person at least once in the two years prior to filing the petition absent a waiver of the requirement.

4) The marriage will take place within 90 days of the fiance entering the US on the fiance visa.

If the four criteria are met, then:

1) The US citizen must file an I-129F (Petition for Alien Fiance) with USCIS. It can only be filed in the US. If the petition is approved,

2) It is then forwarded to NVC for additional processing. After it is processed and approved,

3) The petition is then sent to the Embassy having jurisdiction over the alien fiance where an interview of the alien fiance will take place. If the interview goes well and is approved by Embassy staff,

4) The K-1 visa will be issued and the alien fiance may immigrate to the US.

5) If the marriage takes place in a timely fashion, the now alien spouse must file an I-485 to adjust status to a conditional permanent resident. This conditional permanent residency is granted to ensure the marriage is not a sham. The alien spouse may not leave the US or work until the I485 is granted. If granted, the alien spouse can work. The "condition" is reviewed in approximately two years. If the "condition" is removed then regular permanent residency is granted which is good for ten years until the next review.

The timeline from when the I-129F is filed until it is granted by USCIS is approximately 5 - 6 months. Further, from the time the I-129F is forwarded to the Embassy until a final decision is made can be an additional 3 - 6 months.

The I-129F petitions are reviewed in the order they are received by USCIS. There is no quota on these petitions since the US recognizes the importance of expeditious processing of visas for a US citizen and his/her fiance. The US wants to spare long separations between fiances but it also wants to ensure that there truly is a relationship and bond between the fiances.

Immigration Law -- Immediate Relative Visa Options

By John DiMotto

If an individual seeking a visa and permanent residency in the United States is an "immediate relative," (IR) such as a spouse, there are two possible ways to obtain an immediate relative visa. First, the US citizen spouse (USCS) can file an I-130 with USCIS in the United States. Second, if the US citizen is a resident of the country where the IR lives, the US citizen may be able to file the I-130 with the US embassy in that country.

Filing the I-130 in the US:

If the USCS files the I-130 in the United States, the USCS may also concurrently file an I-485 Petition to Adjust the Status of the IR. The granting of the I-130 Petition will get the IR a visa to enter the country. The subsequent granting of the I-485 Petition will get the IR his/her "green card" -- permanent residency. Filing in the United States is a two step process. It ordinarily takes 5 - 6 months to get approval of each Petition.

Filing the I-130 with the US Embassy in the country of the IR:

If the USCS is eligible to file the I-130 with the US Embassy in the country where the IR lives, a process known as "Consular Processing" (CP), the IR can become a permanent resident directly through CP. Everything is done through the US Embassy which is a much quicker process. USCIS via the embassy works with the State Department to issue an IR visa on an approved I-130 Petition. If the State Department issues the visa, the IR spouse may then travel to the United States and will officially become a permanent resident when admitted at a US port of entry. If CP can be used it can potentially reduce the total time to obtain permanent residency by half.

In order to be able to file the I-130 with the US Embassy in the country of the IR, the USCS must meet filing requirements. The key filing requirement is that the USCS must be a resident in the country of the IR. They must show they have permission to reside in the consular district and have been doing so for at least six months before filing the petition.

Regardless of whether the I-130 is filed in the United States or in the US Embassy in the country where the IR lives, an important component in the process is the consular interview. Once the I-130 has passed a review by USCIS and the National Visa Center, the last step before a final decision is made is the consular interview. This takes place at the US Embassy. The interviewer wants to make sure that the request is appropriate. If the IR is a spouse, the interviewer will want to be satisfied that the marriage is legitimate and not merely a sham to get the IR into the United States. The IR will oftentimes present documentary evidence and photographs, etc that establish a "true" marital relationship. If the interviewer is satisfied that the relationship is genuine and that the IR will not be a burden or threat to the United States, final approval is given, the IR visa issued and the IR may immigrate to the United States.

In my next blog, I will look at the K-1 "Fiance" visa process.

Immigration Law -- The Visa Process

By John DiMotto

As we begin 2011 and as I move into my second year as a blogger, I have decided to leave my "comfort zone" -- Wisconsin law -- and look at a more national issue: Immigration Law. My focus in this upcoming series will NOT be on whether the law and procedures are good or bad rather the focus will be on what the law requires and what what must be done to comply with the law. Additionally, I want to look at the law as it pertains to "Alien Relative" immigration as well as "Fiance" immigration. Today, I will discuss "Alien Relative" immigration.

Alien Relative Immigration:

U.S. citizens who want a relative to immigrate to the U.S. and obtain status as a permanent resident have a number of options to pursue. Also, depending on the nature of the relative "relationship," the time it will take to obtain the appropriate visa will be different.

Immediate Relative Immigration:

If the relative seeking a visa to immigrate is an "immediate relative", he/she does not have to wait for a visa number. There are an unlimited number of visa numbers is immediately available to an "immediate relative." An "immediate relative" is a spouse, unmarried children under the age of 21 and parents. The fact that there are an unlimited number of visa numbers for "immediate relatives" does not mean that there is no wait time for the issuance of the "immediate relative" visa. More on this later.

Family Preference Category Immigration:

If the relative seeking a visa to immigrate does not qualify as an "immediate relative" then that relative is placed in the "family preference" category. This relative must wait in line for a visa number to become available for him/her to immigrate because there are a limited number of these visas available each year. Those persons in the "family preference" category include unmarried sons or daughters over the age of 21, married children of any age, brothers and sisters if the U.S. citizen petitioner is over the age of 21.

From the time the Petition for Alien Relative (I-130) is filed in the case of an "immediate relative" or starting from the time a visa number becomes available in the case of a family preference category relative, until the time the visa is actually issued can take between 6 to 10 months. This process entails the U.S. Citizenship and Immigration Services (USCIS) to review the I-130 (4 - 5 months). If approved it is sent to the State Department National Visa Center (NVC) for its review (1 - 3 months). If approved the documents are sent to the U.S. Embassy in the country where the alien relative lives where the staff will review the documents and call the alien relative in for an interview (1 - 2 months) after which it makes a final decision.

Once the alien relative is admitted to the U.S., in order to be granted permanent residence status (issued a green card) another petition (I-485) must ordinarily be filed, reviewed and approved. (There is an exception which I will not discuss today.) Once the "green card" is issued, then the alien relative may obtain employment. (There is a provision in the law whereby the alien resident, while waiting for the "green card" can petition for an employment authorization document [EAD]. I will not discuss this today.) The timeline for approval of the I-485 can be 5 months.

As you can tell by the process, from the time the I-130 is filed and a visa number is available (immediately for an "immediate relative" but with a time delay for those in the "family preference" category) until the "green card" is issued can take up to 15 months. The wheels of government do rotate slowly.

More on these immigration issues in my next blog.

Merry Christmas and Happy New Year

By John DiMotto

Today, I want to wish all those persons who have followed this blog a Merry Christmas and a Happy New Year. I have enjoyed sharing my thoughts on various points of law and look forward to continuing to do so in 2011.

With the end of the year in full swing and with a number of things "on my plate" this will be my last post for 2010. I will be back "with fervor" after the first of the year.

"See you all next year."

The Wisconsin Rules of Evidence -- The "Business Records" Hearsay Exception

By John DiMotto

Wisconsin Statutes section 908.03(6) sets forth the "Business Records" exception to the general prohibition on the admissibility of hearsay. It encompasses:

1) a memorandum, report, record, or data compilation;

2) in any form;

3) of acts, events, conditions, opinions, or diagnoses;

4) made at or near the time by, or from information transmitted by;

5) a person with knowledge;

6) all in the course of a regularly conducted activity;

7) as shown by the testimony of the custodian or other qualified witness, or by certification that complies with 909.02(12) or (13), or a statute permitting certification;

8) unless the sources of information or other circumstances indicate lack of trustworthiness.

In my experience, this is one of the most misunderstood hearsay exceptions by trial attorneys. Many lawyers believe that any entry in a business record is admissible. Nothing could be farther from the truth.

In order for an entry in a business record to be admissible, all declarants involved in making the specific entry record must be part of the organization which prepared it. If one of the declarants is not part of the organization, an additional level of hearsay is present which must fall into an exception. see State v. Gilles, 173 Wis.2d 101 (Ct. App. 1992); 908.05; 7 D. BLINKA, WISCONSIN PRACTICE, EVIDENCE sec. 803.06, at 481 (1991). In the scenario of a corporation, if an employee of the corporation sets forth in a document made in the course of regularly conducted activity what he saw and did at a meeting, the "Business Records" exception would allow for the introduction of that information. However, if that same employee sets forth what a person, who is not a member of the corporation, said at that same meeting, the statement of that person is not admissible unless some other hearsay exception applies. The "Business Records" exception does not allow admission of a second level of hearsay. The reports cannot establish more than their maker could if he was testifying in court on their subject. see State v. Mitchell, 84 Wis.2d 325, 330 (1978).

It is also important to note that while the custodian, or other qualified witness, who is utilized to introduce the record need not be the author of the records or have personal knowledge of the events recorded in order to be qualified to testify to the requirements of 908.03(6), the witness must have personal knowledge of how the records are made so the witness can say they were made "at or near the time of the event by or form information transmitted by a person with knowledge" and in the ordinary course of regularly conducted activity. see Palisades Collection LLC v. Kalel, 324 Wis.2d 180 (Ct. App. 2010). In the context of collections actions, where a plaintiff buys a debt from a credit card company, the plaintiff, not being a member of the credit card company, could not be the conduit for the introduction of the credit card company's "business records." Personal knowledge as to how the records are kept is foundational.

An interesting issue that I have faced in Termination of Parental Rights (TPR) cases, is whether records that are prepared by a social service agency under contract with the Bureau of Milwaukee Child Welfare (BMCW) to provide services to the subject child and parents and which must be provided to BMCW come under the umbrella of 908.03(6) and are admissible. I have held that if the State can establish that there is an agency relationship between the service providers and BMCW and if the State can establish that the records are kept according to standards set by BMCW, that 908.03(6) applies.

The "Business Records" exception is an important and necessary exception but it can be subject to abuse. A trial court must ensure that the conditions precedent to introduction of evidence under it are met.

In my next blog, I will look at the Public Records exception.

The Wisconsin Rules of Evidence - The "Statements for Purposes of Medical Diagnosis or Treatment" Hearsay Exception

By John DiMotto

Wisconsin Statutes section 908.03(4) sets forth the "Statements for Purposes of Medical Diagnosis or Treatment" exception to the general prohibition on the admissibility of hearsay. It encompasses:

"Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

In order for the exception to apply, not only must the statements be made for purposes of medical diagnosis or treatment but they must describe:

1) medical history, or

2) past or present symptoms, or

3) pain or sensations, or

4) inception of the cause or external source, or

5) general character of the cause or external source

insofar as the statements are reasonably pertinent to the diagnosis or treatment.

It is critical that what is being said is "reasonably pertinent to the diagnosis or treatment. The fact that statements are made, in and of themselves, does not make them admissible. For example if a patient is seeing his/her doctor for a sprained ankle and the doctor asks the patient how it happened and the patient says that he/she tripped and fell on a bump in the sidewalk and then adds, "oh by the way, one year ago I was sexually assaulted while on a date by John Doe", the report of the sexual assault would not be admissible under 908.03(4) because it could not be successfully argued that it was reasonably pertinent to the diagnosis or treatment of a sprained ankle. There must be a link between the statement and the diagnosis or treatment.

The reason for admissibility under 908.03(4) is that the declarant's motive is for obtaining improved health. This guarantees trustworthiness since a physician relies on what a person says to diagnose and treat. In fact, in a child abuse case, the identity of the perpetrator is deemed reasonably necessary to provide treatment to the child. see State v. Nelson, 138 Wis.2d 418 (1987). For this reason, the statement may come from the patient himself/herself (first party) or from the mother of a child (third party). see State v. Huntington, 216 Wis.2d 671 (1998). This exception is a firmly rooted one. This exception, however, does have limits. For example, while it applies to physicians and psychologists it does not extend to counselors or social workers. see Huntington.

It is believed that when people speak with their doctor that they will be honest and candid since their health, their life is at stake. The law recognizes this as a fact and as such endows these statements with sufficient reliability that they can be admitted regardless of the presence or even availability of the declarant.

In my next post, I will address the Business and Public Records exceptions.