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BENCH BLOG: Extending the reach of Daubert

Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

The Court of Appeals has once again extended the application of Daubert standards in Wisconsin, this time to a social worker’s testimony in a case involving the sexual assault of a child.

This decision follows on two previous ones that had also applied Daubert. The first came in State v. Giese, which involved a medical toxicologist’s testimony in a drunken driving case.

The second is Seifert ex rel. Scoptur v. Balink, which concerned a physician’s testimony in a medical malpractice case.

The expert

In the latest case, State v. Larry Smith, the state put forward the testimony of a social worker to establish the types of behavior that are commonly exhibited by child victims of sexual assault. The social worker had had no direct contact with the alleged victim in the case.

The prosecutor did not produce a report of the social worker’s opinions, but he did provide a summary of her expected testimony. The social worker would not testify about specifics involving the case; rather, her testimony would encompass “reactive behaviors common to child abuse victims.”

The topics would include child development, use of language, recall, delayed disclosure, progressive disclosure, recantation and minimization. She would also cover behavioral changes such as withdrawal, acting out, mood changes and academic struggles.

Daubert ruling

Smith brought a pretrial motion to exclude the social worker’s testimony on the grounds that it failed to meet the reliability standards set by sec. 907.02, the statute that had incorporated the reliability test established in Daubert.

The parties presented briefs on the dispute and Walworth County Circuit Judge David Reddy held a Daubert hearing. Reddy agreed with Smith that the social worker’s testimony “was not amenable to the five-factor test under Daubert.”

But after examining persuasive authority from other jurisdictions, Reddy concluded that he could look at other indicia of reliability. He noted that similar testimony had previously been admitted in Wisconsin, as well as in Daubert jurisdictions. He ruled that the social worker’s testimony was admissible.

Smith, meanwhile, also questioned whether the social worker was even qualified to be an expert.

The state noted that the social worker had a bachelor’s degree in social work, had spent 20 years working in child protective services while employed by Walworth County Department of Human Services and had spent five years as director of the Walworth County Child Advocacy Center.

Not only had she received extensive training concerning the maltreatment of children, but she also had training that dealt with child maltreatment, child interviews, sexualized behaviors and mandatory reporting.

Applying sec. 907.02, Judge Reddy concluded that she had “sufficient knowledge, skill, experience, training or education” to qualify as an expert.

After a jury trial, Smith was convicted of three counts of sexual assault of a child. He appealed.

Court of Appeals

District 2 Court of Appeals Judge Paul Reilly wrote for a unanimous court. The court noted that the goal of reliability analyses conducted by circuit courts “is to prevent the jury from being presented with speculation dressed up as an expert opinion.”

First, the court ruled that the state’s overview of the social worker’s testimony had provided a factual basis that was sufficient to allow Judge Reddy to decide whether to admit her testimony.

The test for determining admissibility is “flexible,” as even Daubert acknowledged. The Kumho Tire case teaches that courts have “considerable leeway” in determining reliability in light of the facts of each case. “Reliability may be based on the expert’s own observations from his is her ‘extensive and specialized experience.’”

Here the court turned for an example to the Seifert case, which had been decided just four months earlier by the District IV court of appeals. There the court had upheld the trial court’s decision to admit the testimony of the plaintiff’s expert even though he had not relied on learned treatises or national guidelines of obstetrical care but rather on his own preferences, which were formed in large part from his experience practicing medicine.

Noting that, as in Seifert, the social worker’s testimony “did not neatly fit the Daubert factors,” the court found that Judge Reddy had appropriately considered the social worker’s qualifications, including her extensive experience with child victims.

Reddy also considered testimony that had been similarly allowed in post-Daubert federal courts as well as in pre-Daubert Wisconsin. The latter analysis allowed Reddy to acknowledge that the social worker’s testimony was “generally accepted within her discipline and was not the product of ungrounded speculation.”


Considering this case with Giese and Seifert, we see an excellent example of how case law develops in Wisconsin.

Giese dealt with the general Daubert methodology in the context of the science of retrograde extrapolation.

Seifert expanded the application to expert opinions based not on the art and science of medicine as detailed in medical textbooks or treatises but as grounded in the experience of a practicing physician.

The Smith case applies Daubert to a “soft” science — social work — again grounding it in an expert’s experience.

This case law developed naturally as defense attorneys began challenging the admissibility of expert testimony following the enactment of sec. 907.02. Each of the three circuit court judges reached a decision concerning admissibility without having the benefit of any of these appellate decisions. This is a tribute to their judicial prowess.

The Court of Appeals has wisely chosen to publish each of its Daubert-related decisions. They now constitute a small but significant body of Daubert law in Wisconsin.

Our vibrant Court of Appeals thus continues to help circuit court judges and attorneys as it steadily develops the law.

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