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A New Standard for Expert Testimony in Wisconsin

Expert testimony can be an integral element of a legal case. Almost any type of case may involve an expert: criminal, civil, family and tort law claims all commonly rely on evidence provided by an experienced professional. But how is it determined whether or not a potential expert witness is going to provide reliable information?

Up until very recently, Wisconsin judges only had to evaluate the relevancy of an expert's opinion before allowing the jury to hear it. But, in a 2011 Special Legislative Session, Wisconsin lawmakers adopted new rules governing expert witness testimony that call for a more stringent judicial evaluation of an expert's qualifications and methods.

The Daubert Rule

For years, Wisconsin courts relied on a standard known as the Walstad Rule. It was named after the Wisconsin Supreme Court case State v. Walstad, and under this standard, all "relevant" expert witness evidence was admissible as long as it would assist the jury in their fact-finding duties. To be deemed relevant, evidence has to tend to make some fact material to a case more or less likely to be true.

Thus, a judge's role was only to ensure a witness had the proper credentials to qualify as an expert and that the evidence intended to be presented had a meaningful relationship to the case. Questions regarding the veracity of the expert testimony and the scientific merit of the expert's methodology were left entirely to the jury to decide. Since judges would not exclude expert testimony for lack of reliability, cross examination or the presentation of their own expert were the only ways for an opposing party to discredit scientifically questionable evidence.

However, in a special session called to address tort reform, the Wisconsin legislature replaced the Walstad Rule with a new standard that went into effect in February. In 1993, the U.S. Supreme Court addressed the reliability of expert testimony in the case Daubert v. Merrell Dow Pharmaceuticals, Inc. The Supreme Court decided that under the Federal Rules of Evidence, before admitting expert testimony, judges must determine whether the testimony is sufficiently reliable and whether it can be appropriately applied to the facts in question in a case. But, since this decision only pertained to the Federal Rules of Evidence, state courts were not bound by the novel reliability requirements. Nonetheless, a number of states adopted what became known as the Daubert "reliability" Rule: Wisconsin now joins 30 other states and the federal courts in applying the Daubert principles in admitting expert testimony.

So what, exactly, are the requirements imposed by the Daubert Rule? In addition to ruling on an expert's qualifications and the relevancy of his or her testimony, a judge now must also shoulder the responsibility of filtering out bad science. Expert evidence may only be admitted if the judge determines it is derived from adequate facts or data, was generated through reliable principles and methods, and will be based on applying the approved principles and methods to the issues of the case at hand. Judges may look at a number of indicators to gauge reliability, such as whether the expert's process has been independently tested, what rate of error is inherent in the expert's methodology, and whether the expert's theory has been developed solely for the purposes of providing paid testimony.

What Will Change in Court

By switching to the Daubert Rule, Wisconsin lawmakers hope to put in place better standards for ensuring that juries decide cases based on sound expert analysis. Under the old Walstad standard, a jury could be permitted to hear a credible expert testify about bogus science. Although juries were of course free to disregard such evidence, Wisconsin legislators felt that allowing this testimony to take place at all did not assist fact finders in coming to the truth and only obfuscated the real issues.

On the ground in court, the Daubert Rule will expand judges' roles as "gatekeepers." This new responsibility to evaluate the reliability of expert testimony means a judge can keep the jury from hearing certain evidence; while hopefully ensuring better science will be reaching the ears of jurors, the discretion involved in executing the Daubert Rule also means a new basis for objection by opposing parties and another potential grounds for appeal. As part of a tort reform initiative, the adoption of the Daubert Rule will be especially important in personal injury claims and related suits where an expert's technical or scientific expertise is commonly tapped to explain evidence to a jury.

Only time will tell how Wisconsin courts adapt to the new Daubert principles. But, considering the Daubert Rule has expended from a federal court standard to the law of the land in a majority of states, it is unlikely to be going away anytime soon.

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Appleton, WI
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Green Bay, WI
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  • Wisconsin Association for Justice
  • State Bar of Wisconsin
  • American Bar Association
  • American Association for Justice
Herrling Clark Law Firm Ltd. is located in Appleton, Wisconsin, and serves clients in Fox Valley, Outagamie County, Brown County, Door County, Kewaunee County, Manitowoc County, Sheboygan County, Fond du Lac County, Calumet County, Winnebago County, including Appleton, New London, Clintonville, Neenah, Oshkosh, DePere, Fond du Lac, Sheboygan, Manitowoc, Kewaunee, Sturgeon Bay, Marinette, Neenah, Chilton, Menasha, Shawano, Waupaca, Wausau, and Green Bay, Wisconsin.
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