Thursday, January 27, 2011

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 In Daubert, SCOTUS stated that the Frye "general acceptance" test was superseded by the adoption of the Federal Rules of Evidence and held that nothing in rule 702 establishes "general acceptance" as an absolute prerequisite to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.


  1. How would you assess the reliability of a qualified expert witness pursuant to ICWA/WICWA? There testimony is based on culture and norms that are not tested and reviewed.

  2. Not all expert testimony is "scientific" and subject to the Daubert factors. Training, experience, culture and norms can provide expertise. The proponent of the evidence must provide the Court with the "Big Picture" about the subject matter and the witness. Remember, Daubert is not meant keep expert testimony out of the record but to provide a reliability baseline.

  3. See


    A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule. Daubert did not work a ''seachange over federal evidence law,'' and ''the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system.'' United States v. 14.38 Acres of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996). As the Court in Daubert stated: ''Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'' 509 U.S. at 595. Likewise, this amendment is not intended to provide an excuse for an automatic challenge to the testimony of every expert. See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) (noting that the trial judge has the discretion ''both to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises.'').