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The state Legislature is considering a bill that would create stricter standards for the admission of expert testimony. Senate Bill 49 (SB49) would adopt standards based on the federal rules of evidence 701, 702 and 703. Those rules grew out of the U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Currently, Wisconsin follows the “relevancy test” established by the state Supreme Court in Watson v. State, 64 Wis. 2d 264, 219 N.W.2d 398 (1974). According to that standard, expert testimony is admissible if it is relevant; it is offered by a witness qualified as an expert; and it will assist the trier of fact in deciding the case.

SB49, introduced Feb. 26, 2003, by Sen. Robert Welch, states that it would “limit the testimony of an expert witness to testimony that is based on sufficient facts or data, that is the product of reliable principals and methods, and that is based on the witness applying those principals and methods to the facts of the case.”

The bill would establish trial court judges as the gatekeepers to determine whether or not expert testimony would meet those criteria.

So far, 33 states have adopted the Daubert standard. Prior to Daubert, the applicable federal standard was established in Frye v. United States (Ct. App. D.C. 1923), 293 Fed. 1013. The Frye test, commonly referred to as the “general acceptance” test, dictates that expert testimony is only admissible at trial if the methodology or scientific principle upon which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.

A public hearing on SB49 was held April 9. For the most part, support and opposition have fallen along party lines with the civil defense bar generally supporting the bill and the civil plaintiff bar generally opposing it.

On Oct. 8, the Senate Judiciary, Corrections and Privacy Committee approved the bill with a 3-2 vote.

Both the Civil Trial Counsel of Wisconsin and the Wisconsin Academy of Trial Lawyers have held presentations on the proposed legislation. Paul E. Benson of Michael Best & Friedrich, LLP, in Milwaukee spoke in support of the bill at a CTCW conference this fall. Benson, a business defense lawyer, was involved in drafting the bill.

Darryl J. Lee, of Slattery & Lee, Ltd., in Waukesha gave a presentation opposing SB49 at a WATL conference in Madison. Although he is a personal injury lawyer now, Lee was involved in the Daubert case as a defense lawyer, working on the case at the trial level.

What follows is a summary of the arguments they have offered on the proposed legislation — pro and con.


By Tony Anderson
Wisconsin Law Journal


Paul E. Benson
Michael Best & Friedrich LLP

Paul E. Benson was very straightforward in his support of a Daubert standard in Wisconsin.

“I think it is absolutely the right thing for expert testimony,” Benson told a group of defense lawyers.

He steadfastly maintained that the current standard for admitting expert testimony has no teeth, that judges are the appropriate ones to determine the admissibility of evidence, that adopting Daubert would not lead to longer trials and that it would help weed out junk science.

“I don’t see good arguments against adopting Daubert in our state,” Benson said. “I think the case was correctly decided. I think it is the appropriate way to deal with experts in the judicial system.”

Arguing that Wisconsin state courts have some of the most lax rules regarding the admissibility of expert testimony, Benson said the time has come for a change to a standard that goes beyond looking at relevance to one that establishes reliability before the jury hears the testimony.

The reliability issue is the crux of what Daubert is all about,” he said. “The fit between what the expert concludes and the data upon which the expert’s opinion rests must be a logical one.”

Under Wisconsin’s current standard, he theorized that the founder of the Flat Earth Society could potentially serve as an expert witness in a case. He offered the example of an airplane crash, where the discussion focuses on the appropriate trajectory of an airliner given the curvature of the Earth. The Flat Earth expert could testify to the lack of curvature.

He acknowledged that some judges would exclude that testimony.

“If it gets excluded, it’s not because of the Wisconsin relevancy test,” Benson said. “It’s because the judge is willing to exercise some judgment.”

Benson challenged the idea that adopting Daubert would place additional stress on an overburdened court system. He pointed to studies from some Daubert states showing that judges have not complained about their workloads increasing.

“In certain instances, you are able to weed out unreliable and inappropriate expert testimony,” Benson explained. “The effect will be that you will have shorter trials in many instances and in some instances you will have no trial at all.”

Another point of contention regarding the Daubert standard is asking the judge to determine the admissibility of expert testimony rather than letting the jurors simply decide how much weight to give it. Benson does not view that as a significant
problem either.

Under Daubert, he said, the jury still gets to determine the validity of evidence. However, the jury does not get to decide the issue of admissibility. Instead that gets left to judges who are better equipped to deal with that question. He points out that judges do not have to be scientists to make those determinations.

“Judges have procedural and substantive mechanisms to evaluate expert testimony that jurors simply do not have,” Benson said.

Regarding the issue of junk science and whether it’s entry into the courts is bad enough to require this type of legislative change, Benson responds with a resounding, “Yes.”

“Expert witnesses are hugely persuasive to the jury,” he said. “I would contend that if the expert witness is not spouting scientifically appropriate theories, that’s junk science and that’s a problem.”

Responding to the idea that vigorous cross-examination is sufficient to weed out junk science, Benson said, “It’s not enough.” He pointed to a study in the Marquette Law Review, which indicated that once an expert was allowed to testify, jurors tended to go beyond the weight of the evidence and side with the expert they liked the best.

Adopting the Daubert standard is not likely to lead to the exclusion of new, groundbreaking scientific evidence, Benson maintained. He noted that Daubert would not constrict expert testimony as long as it were given by a genuine expert.

“The Daubert standard contains the flexibility needed to admit evidence based on reliable and newly-developed scientific principles,” he said. “The only testimony that will be excluded under Daubert is testimony based on junk science.”

Benson also does not see a need to wait for further development of the law under Daubert. Although the federal rules were only amended to incorporate the Daubert standard three years ago, he said there has been plenty of time to look at how it is working. He also noted that with 33 states following Daubert in addition to the federal courts, there is sufficient law to review.

Acknowledging that Wisconsin should not simply adopt the Daubert standard because so many other states have, Benson said, he did not see a benefit to being different.

“What do we in Wisconsin gain by not following Daubert?” Benson asked.

As for leaving it up to the Supreme Court to decide, Benson said, he does not believe the state’s high court wants to address the issue. He bases part of that assessment on the Supreme Court’s July decision in Conley Publishing v. Journal Communications.

“The Court of Appeals teed it up for them in Conley Publishing,” Benson said. “They said one of the issues that we would like you to give us your opinion on is whether or not the Daubert standard applies. The Supreme Court chose to take a pass.”

Benson also speculated that attorneys seeking to benefit from Wisconsin’s relevancy test rather than the stricter Daubert standard in the federal court system have engaged in forum shopping. He offered the case of City of Milwaukee v. Mautz and TiNLO2 as one possible example of that. In that situation, he suspects that Mautz was brought into the case to keep it in state court rather than ending up in federal court, thus avoiding the Daubert standard.

Given all of that, Benson said, adopting the Daubert standard makes sense for Wisconsin.


By Tony Anderson
Wisconsin Law Journal


Darryl J. Lee,
Slattery & Lee, Waukesha

Although he was a defense attorney in the Daubert case, Darryl J. Lee does not see a need to adopt the federal standard for admission of expert testimony in Wisconsin’s state courts.

Lee noted that Daubert was an example of the axiom that “bad facts lead to bad law.” The case never should have been appealed, he explained. There was no sound scientific basis for the plaintiff expert’s opinion, who was essentially unqualified, he observed. Yet the plaintiff appealed and the result was a U.S. Supreme Court decision, which Lee described as going too far.

“I would not have argued for the position that the Supreme Court adopted,” Lee said. “I never would have said the trial court needs to be the gatekeeper of all scientific expert evidence or all technical expert evidence.”

During a presentation to the plaintiff’s bar and during a discussion at this office, Lee outlined his opposition to the adoption of SB49. His reasons include the belief that there isn’t a problem needing to be fixed, the right to have a jury evaluate the credibility of expert testimony and the desire to see Wisconsin’s Supreme Court develop the rules of evidence rather than the state Legislature.

“I think there has to be a problem before you try to fix it,” Lee said.

He does not believe that the decisions as a whole coming down now are unfair, biased or wrong. He also does not see junk science appearing in the courtroom.

“I don’t think there has been any showing by anyone that there has been crisis or some dilemma that we need to redo 30 years of jurisprudence and come up with a new system,” Lee said. “If it’s not broken, don’t fix it.”

Lee remains unpersuaded by the actions of 33 other states, which have adopted Daubert. He noted that Wisconsin was independent in its earlier decision
not to follow Frye. Going back to the 1970s when the federal rules of evidence were being developed, he observed that the state Supreme Court chose not to follow those rules exactly. Instead, the high court modified those rules when developing them for the state courts.

“We’ve never followed the pack in that regard,” Lee said. “Should we do it because everybody else is doing it? I don’t think so. I think there needs to be a more compelling reason.”

When it comes to determining the reliability of expert testimony, Lee said, that should be left in the hands of the jurors. The issue of whether a judge or jury should make that determination is a critical issue in this debate, he noted.

His position springs from a couple of points. First, the state and federal constitutions guarantee the right to a trial by jury, therefore, it is reasonable to allow them to decide the issue of reliability when it comes to expert testimony. Second, judges are not in any better position to determine the merits of expert testimony than juror would be.

“I’ve seen some very educated juries lately where I’ve had engineers on the jury and they are as qualified, if not more qualified than the judge in some instances to make those rulings.”

Lee sees that position as further strengthened by the use of cross-examination as a litmus test for expert testimony. He also points to several problems that arise from setting up judges as gatekeepers for expert testimony.

Court resources are already limited, he noted. Establishing a mini-trial at the beginning to determine whether expert testimony meets the Daubert standard would tax the judicial system further, lengthen the litigation process, thereby adding to the cost of litigation.

“It’s just an inordinate amount of time and judicial resources that are being spent on the Daubert issues when the statistics show us not that much more is being kept out now than before Daubert,” Lee said.


U.S. Supreme Court

One of the other problems arising from Daubert is the potential for blocking evidence, which might be new or novel, but still might eventually be recognized as legitimate, Lee said. He noted that new science cannot always be accounted for under Daubert.

“I think there is a greater likelihood that it is going to be excluded under Daubert and certainly under Frye than would be without those restrictions,” Lee said.

Soft sciences such as psychiatry or psychology also potentially face an uphill battle under the Daubert standards, he said, noting that psychiatrists and psychologists are often rendering opinions about character and behavior, which is not an exact science.

Finally, Lee does not believe that the rules regarding the admissibility of expert testimony should be left in the hands of a partisan Legislature. Given that legislators face pressures from special-interest groups when making these decisions, he would rather see the matter left in the hands of a neutral body.

“Who better than the (Supreme) Court … to make decisions that will affect both sides equally,” Lee said. “I think the court is much better prepared to fulfill that role than the legislature, which some people might argue is affected by special interests, money and lobbying efforts. You don’t get that with the court system.”

Tony Anderson can be reached by email.

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