Senate considers adopting Daubert

Listen to this article

“Jurors are like computers; garbage in, garbage out.” J. Ric Gass

The Wisconsin Senate’s Committee on Judiciary, Corrections and Privacy held a public hearing on April 9 on a bill that would amend Wisconsin’s rules of evidence to make expert testimony subject to the same requirements as in federal court.

2003 Senate Bill 49, proposed by Sen. Robert Welch, would amend secs. 907.01, 907.02, and 907.03 to mirror the federal rules, most significantly, amending sec. 907.02, to require that expert testimony meet the following criteria: (a) it must be based upon sufficient facts or data; (b) it must be the product of reliable principles and methods; and (c) it must be established that the witness has applied the principles and methods reliably to the facts of the case.

Numerous attorneys spoke both for and against the amendment. First to speak, supporting the bill, was attorney Paul E. Benson, of Michael, Best & Friedrich, LLP, in Milwaukee.

History

Benson detailed the history of admissibility of expert testimony in Wisconsin and the federal system. In federal courts, prior to 1993, the Frye test was applied, permitting expert testimony if it was generally accepted in the scientific community.

In 1993, the U.S. Supreme Court decided the case of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Under Daubert, trial courts have a “gatekeeping function” of keeping unreliable evidence away from the jury. If the evidence is reliable, then it is admissible. Daubert also established factors to be used as guideposts by courts in determining reliability. In 2000, the Daubert test was codified into the Federal Rules of Evidence.

Thirty-three of the 50 states have adopted the Daubert standard. Wisconsin, however, never adopted the Frye test, nor has it yet adopted Daubert. Instead, evidence need only meet three criteria: (1) it must be relevant; (2) it must be presented by a witness qualified as an expert; and (3) it must be helpful to the trier of fact.

Courts do not inquire as to the reliability of the evidence, however, leaving reliability to be tested through cross-examination, and determined by the jury.

Criticizing the current rule, Benson stated that, as long it was relevant to the case, an impressively credentialled expert from the Flat Earth Society could testify in a Wisconsin court that the world is flat.

“If Daubert is adopted, prosecution experts will spend far more time in court and less investigating crime.” R. George Burnett

Benson listed five benefits that would accrue from adopting Daubert in Wisconsin. First, he stated, it would introduce a mechanism to keep out junk science. Benson said that jurors should decide factual questions based only on reliable evidence, stating nothing is gained by having juries decide cases based on unreliable testimony.

Second, adopting Daubert would eliminate the “professional expert witness,” who is an expert at nothing except being an expert witness. Benson likened such witnesses to jukeboxes that will sing whatever song is picked if money is plugged in.

Third, it would eliminate forum shopping. Benson cited as an example the Mautz Paint Company, which, he maintained, was a client named as a defendant by the City of Milwaukee in its recent lead paint litigation solely to defeat federal jurisdiction, and enable the city to present the unreliable testimony of “so-called experts.”

As a result, because it could not afford to fight the lawsuit, Benson stated that Mautz had to sell out to Sherwin-Williams.

Fourth, Benson said that adopting Daubert would result in a decrease of frivolous lawsuits. And finally, Benson said it would give Wisconsin judges a wealth of information on which to rely in deciding admissibility. By not adopting Daubert, Wisconsin loses a wealth of persuasive authority from other jurisdictions on various evidence.

Also speaking in favor of adopting Daubert was J. Ric Gass, of Kravit, Gass, Hovel & Leitner SC, in Milwaukee. Gass said that “Wisconsin is out of sync with the law of evidence across the country, and is being left behind by accepting scientific evidence of the lowest common denomination.”

Citing annual surveys in which 50 percent of Americans fail to correctly answer a basic scientific question — whether the Earth orbits the Sun or the Sun orbits the Earth — and only 21 percent can define DNA, and only 5 percent acid rain, Gass called jurors “scientifically challenged people,” who must be given the “highest quality science during trials, not the lowest.”

“Jurors are like computers,” Gass added. “Garbage in, garbage out.”

Speaking against the proposal was State Bar President-Elect R. George Burn-ett, of Liebman, Conway, Olejniczak & Jerry, in Green Bay, who stated that the Litigation Section of the Bar was unanimously opposed to the bill.

The problem with Daubert, Burnett said, is that it introduces small trials within trials, the effect of which is to make litigation longer and more expensive.

Burnett also noted the difference in the case load between the federal and state courts. While federal courts hear long, complex matters, state courts predominantly hear divorces, juvenile matters, and criminal cases.

Adopting Daubert would increase the time and expense of divorce and custody cases, according to Burnett. Burnett further predicted that if Daubert was applied to criminal cases, which routinely use psychologists, accident reconstructionists, pathologists, and fire and arson experts, “prosecution experts will spend far more time in court and less investigating crime.”

Disputing the contention that Wisconsin’s lax evidence rules result in the introduction of junk science, Burnett stated that, in all his years as a trial attorney, he had never seen junk science in Wisconsin courts.

Wisconsin Association of Trial Law-yers President Lynn Laufenberg, of Lau-fenberg & Hoefle, S.C., in Milwaukee, also spoke against the bill.

Laufenberg stated that, if there is to be a change in the rules, the Wisconsin Supreme Court, through its rule-making authority, is the best-equipped branch of government to make that change. A change in the rules of evidence, “should not be a politicized decision,” Laufenberg said. “It should be made by the courts.”

Laufenberg also noted that the Attorney General had expressed serious concern about the proposal, and that the change would seriously impact the ability of the State to meet its burden of proof in criminal cases.

According to Laufenberg, adopting Daubert would shift decision-making from the jury to the trial judge, most of whom feel no more equipped than a jury to decide the reliability of scientific evidence.

Finally, Senator Robert T. Welch spoke in favor of the bill, stating that the purpose of the bill is to ensure that, just as “experts already must be qualified in order to testify, what they testify to must be qualified as well.”

Towards the end of the hearing, suggestions were raised of a compromise that would adopt Daubert in civil, but not criminal cases.

David Ziemer can be reached by email.