Six years after the Wisconsin legislature amended Wis. Stat. § 907.02(1) to adopt the federal Daubert standard for admission of expert testimony, the Wisconsin Supreme Court applied the standard for the first time in a civil case, Seifert v. Balink, 2017 WI 2 (Jan. 6, 2017). While all of the justices recognized that the statutory amendment significantly altered the test for admitting expert evidence and requires judges to act as “gatekeepers,” they struggled to reach a consensus on what this means in practice. The case produced a lead opinion joined by only two of the Court’s seven justices, two separate concurring opinions, and a respectful-but-strong dissent from two of the justices. So, while the decision stretches almost 300 paragraphs long, what can Wisconsin businesses take away from Seifert regarding the admissibility of expert testimony?
First, we know that the Daubert standard, which requires expert testimony to be based on reliable principles, methodologies, and data, is now the law in Wisconsin, and the old “relevancy” test is gone. Trial judges must act as gatekeepers in evaluating the reliability of the proffered expert testimony and not simply let juries sort things out.
Second, we see that Wisconsin courts will lean heavily on the Daubert opinion and its federal progeny as persuasive authority regarding the appropriate interpretation of § 907.02(1). All four opinions delivered by the Court cited federal case law extensively in order to flesh out their analyses. Furthermore, Justice Abrahamson’s lead opinion acknowledged the Advisory Committee Notes to Federal Rule of Evidence 702 as persuasive authority, as did Justice Gableman’s concurrence, and a number of other federal commentaries and secondary materials on Daubert issues were cited throughout the opinions.
Third, we learned that personal experience can be sufficient — standing alone — to serve as a reliable methodology undergirding an expert’s testimony. This conclusion was the main holding of the lead opinion, and even the dissent did not quarrel with it. The background of the case involved an obstetrician’s testimony regarding the standard of care for delivering a baby in light of certain medical risk factors. While the expert had practiced for decades, the defendants objected to his testimony because he based it entirely on his own personal experience and failed to cite even a single medical journal in support of his opinions. All of the justices rejected the notion that there was an implicit requirement to cite learned treatises or peer-reviewed publications in order to satisfy § 907.02’s reliability standard, and agreed that experience alone can be enough to provide an expert with a reliable foundation from which to give opinion testimony.
Finally, we saw the justices’ significantly different views regarding the standard of scrutiny that § 907.02 requires trial judges to apply to proffered experts. While each justice recognized that the amendment changed the analysis — abrogating Wisconsin’s old “relevancy” standard — the justices differed about how that played out in the context of a real-world trial. Justice Abrahamson’s lead opinion noted that Daubert does not convert the trial judge into a fact finder, emphasized the trial judge’s discretion, and appeared to endorse a standard whereby moving parties are required to prove that their opponent’s expert employs “junk science.” In contrast, Justice Ziegler’s concurrence stressed the impact of the legislature’s decision to intervene to raise the level of scrutiny, proclaiming that “[t]he days of relatively easy admission of expert testimony into Wisconsin courtrooms are over.” Slip opinion at ¶175. Justice Gableman opted for a more middle-of-the-road approach in his concurrence, focusing on the preponderance of the evidence standard for each of the five inquiries encapsulated by § 907.02. And Justice Kelly’s dissent expressed concern that imprecise experience-based testimony regarding standards of care might elevate the expert to personally embody the legal standard, cautioning that trial judges must meticulously examine the substance of an expert’s testimony in order to ensure that it properly addresses the ultimate inquiry before the jury.
Despite the cacophony from the Supreme Court, it is clear that Wisconsin trial judges cannot simply ignore their gatekeeping responsibilities and must analyze whether proffered expert testimony meets the reliability standard now set forth in § 907.02. Exactly what the trial judges must do in this respect is subject to further refinement. Like medicine, law “is not a science but a learned profession” and legal “decision-making relies on judgment and is difficult to quantify or even to assess qualitatively.” Slip opinion at ¶79.