![Wisconsin Lawyer](/AM/Images/headers/2005/wllogo.gif)
Vol. 73, No. 3, March
2000
Guarding
the Gates: Admissibility of Expert Evidence in Federal and Wisconsin
Courts
The Fate of Daubert in Wisconsin
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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