The Fate of Daubert in Wisconsin

• Guarding the Gates: Admissibility of Expert Evidence in Federal and Wisconsin Courts

Wisconsin standards of expert admissibility are dramatically more flexible than those of federal courts and the states adopting Daubert ¹. The Wisconsin rules on expert admissibility are identical to those relied upon by the Supreme Court to impose Daubert gatekeeping rules.² Nonetheless, Daubert is not the law in Wisconsin.

The role of state trial courts in passing on the admissibility of expert testimony is worlds apart from the vigilant gatekeeping required of federal courts in methodology and conclusions. The largest gap is on the subject of reliability: Daubert requires a comprehensive assessment of the reliability of the expert's methodology; Wisconsin courts are precluded from evaluating reliability. In Wisconsin the only appropriate tests are relevance and helpfulness to the jury.³ Unlike the federal courts, Wisconsin requires no evidence that the expert's courtroom methodology or theories can be tested, that they have been successfully tested, that they are "generally accepted" by the scientific or technical community, or that they are the product of the "intellectual rigor" exercised in the expert's daily work (although these may be relevant in Wisconsin to the application of the "helpfulness to the jury" standard).⁴

One result of the fact that Daubert is not applied in Wisconsin courts is that an expert's methodology and foundation can be self-justified. Admissibility requires no more than an expert's own testimony that his or her methodology and foundation are normally relied upon by experts in the same field. No independent source of learning or standards is necessary. In short, unlike federal court practice, an expert in state court may testify that "it is so because I am an expert and I say it is so."⁵

Wisconsin courts have explicitly rejected the Daubert test in a variety of situations. For example, the Daubert test has been flatly rejected concerning expert testimony on alcohol metabolism to the effect that "all persons are physically impaired to some extent at a BAC level of .09%."⁶ And Daubert testing of the expert testimony from a police officer on the results of a field sobriety test has not been allowed.⁷

The "behavior profile" cases in Wisconsin further illustrate the difference between an analysis of expert testimony that is limited to relevance, and one that includes the Daubert tests of reliability. In Wisconsin, expert testimony about "character profile, which seeks to explain conduct or the absence of it," is generally admitted because it is relevant and helpful to the jury, without analysis of whether the "science" that supports it is reliable.⁸ The expert in Wisconsin can tell the jury that he or she has reached an expert conclusion on the subjects of child abuse syndrome, to explain a child victim's recantation of a claim of molestation. An expert in Wisconsin can also testify to the absence of a sexual disorder on the part of a defendant accused of a sex crime, to show that it was unlikely the defendant committed the crime.⁹ Unlike a Daubert analysis, the "behavior profile" cases contain no review of the testability or testing, empirical support, general acceptance, or objective support for the psychological methodology or technique underlying the conclusions.

One important result of the federal/Wisconsin dichotomy in the admissibility of expert testimony is that a state court jury hears "inadmissible" evidence in support of the expert's conclusion. Under section 907.03 of the Wisconsin Statutes the expert may rely upon otherwise inadmissible evidence so long as the expert testifies that it is of a type regularly used by experts in that field of expertise. For example, an expert may rely upon plainly inadmissible hearsay evidence, if it is of a kind he or she regularly relies upon. The court has the option to prevent the expert from testifying to that evidence but courts are naturally reluctant to allow a jury to hear an expert's conclusion without hearing the explanations for the conclusion, admissible or not. The only protection is a limiting instruction. No one could reasonably argue that this limiting instruction prevents juries from treating the inadmissible expert-basis testimony in the same way it treats all evidence.¹⁰

However, the door is not completely closed to the lawyer seeking to exclude expert evidence in Wisconsin. For a lawyer seeking to challenge that testimony in state court, the "helpfulness to the jury" requirement may provide an opening:

"Whether or not the scientific principles involved have been generally accepted by experts in the field may still have a bearing on reliability and consequent probative value of the evidence. The expert's qualification and stature, the use which has been made of the new technique, the potential rate of error, the existence of specialized literature, and the novelty of the new invention, may all enter into the court's assessment."¹¹

Where counsel can choose federal or state court, the gap between approaches to expert admissibility has an obvious impact. Plaintiffs generally will want to avoid the Daubert burdens of federal courts; defendants will want to take advantage of them. That is for two reasons: 1) plaintiffs bear the burden of proof; and 2) the most vulnerable expert testimony is generally that of plaintiffs.

The federal courts have used Daubert almost exclusively against plaintiff's experts. Some examples of the impact on plaintiff's burden of showing cause include: physicians or epidemiologists testifying that exposure to a particular chemical or failure to conduct a particular test was a substantial factor in injury; warnings experts testifying that if the manufacture had worded the warning differently, the plaintiff would have avoided injury; and fire origin experts testifying that a particular defect caused a car fire.

On damages, plaintiff's psychological experts would be particularly vulnerable. For example, in a child molestation case, a Wisconsin appellate court approved the use of the "child sex abuse accommodation syndrome" as an explanation of why a child recanted her testimony that she had been abused. The recantation of the original charge was a "well accepted" aspect of the syndrome. The "expert" who so testified was not a psychologist, but a high school guidance counselor, whose experience with molestation was limited to a few instances.

Another area in which defendants would choose federal court is economic testimony, on which several federal courts have excluded damage theories that were inconsistent with what the courts considered basic economic tenets. The Seventh Circuit is particularly skeptical of plaintiff economic theories.¹²

It is uncertain whether Wisconsin law will be modified in the wake of Kumho. However, it seems likely that Wisconsin will continue to resist the federal gatekeeping standards. Thus, practitioners should expect no substantial change in the generally open-door policy of our state's court toward expert testimony.

Endnotes

¹ Several states have adopted their own versions of the Federal Rules of Evidence. In those states that have adopted the Federal Rules, Rule 702 frequently is identical. Several states have adopted the use of Daubert: Arkansas, Kentucky, Louisiana, Maine, Massachusetts, Montana, New Jersey, New Mexico, North Carolina, Oklahoma, South Dakota, Oregon, Texas, West Virginia, and Wyoming. Others either have retained the Frye "general acceptance" test that was the predecessor of Daubert on federal questions of expert admissibility (for example, New York and Illinois) or simply rejected Daubert outright (for example, California). As noted, Wisconsin has explicitly rejected the Frye general acceptance test, and its successor, the Daubert test.

² Compare Wis. Stat. sections 907.02 and 907.03 to FRE 702 and 703.

³ State v. Walstad, 119 Wis. 2d 483, 486-87, 351 N.W. 2d 469, 471 (1984).

⁴ The Western District discusses the differences between federal and state expert admissibility standards in the context of a veterinary expert on soil contamination. Ramsden v. Agribank, FCB, 63 F. Supp. 2d 958, 960-61 (W.D. Wis. 1999).

⁵ Contrast General Elec. Co. v. Joiner, 522 U.S. 136 (1997).

⁶ State v. Donner, 192 Wis.2d 305, 315, 531 N.W.2d 369, 373 (Ct. App. 1995).

⁷ State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565 (Ct. App. 1999). In his excellent treatise on Wisconsin evidence law, Marquette Law School Professor Daniel Blinka defends the decision against application of Daubert in Wisconsin. It is worth reading. See 7 Daniel D. Blinka, Wisconsin Practice: Evidence § 702.35 (1991 & Supp. 1999).

⁸ See, e.g., State v. Richard, A.P., 223 Wis. 2d 777, 795, 589 N.W.2d 674, 682 (App. Ct. 1998).

⁹ Richard, 223 Wis. 2d at 795, 589 N.W.2d at 682 (citations omitted).

¹⁰ For a more complete analysis of the impact of section 907.03, see 7 Daniel D. Blinka, Wisconsin Practice: Evidence § 703.04 (1991).

¹¹ State v. Blair, 164 Wis. 2d 64, 78-79 n.9, 473 N.W.2d 566, 572 n.9 (Ct. App. 1991) (emphasis added), citing 3 Jack B. Weinstein and M. Berger, Weinstein's Federal Evidence 702-41 to 702-42 (1990).

¹² See Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 196-97 (7th Cir. 1993).

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