While Madison, WI captured the nation's attention this spring during the legislature's highly-charged budget battle, a dramatic change in Wisconsin's standards for the admission of expert testimony received little notice. In late January, Governor Scott Walker signed into Law Wisconsin Act 2 (Senate Bill 1, Special Session Jan. 2011), a tort reform bill that also changed the requirements for the admissibility of expert testimony in Wisconsin state courts. Prior to the law's enactment, Wisconsin had clung to an extremely permissive pre-Daubert judicial "gatekeeping" standard for the admission of expert testimony.
Before its amendment, Wis. Stat. § 907.02 simply provided that "if scientific or other specialized knowledge will assist the trier of fact to determine a fact in issue, a qualified expert may testify." State v. Walstad, 351 N.W.2d 469, 516 (Wis. 1984). The Walstad court went on to explicitly distinguish its test as more indulgent than the Supreme Court's old Frye test, holding that Wisconsin courts would allow all relevant expert testimony "unless it is excluded for some special reason, such as prejudicial effect or jury confusion." Id.
Under Act 2, the familiar Daubert language is finally present and some semblance of order once again graces Wisconsin law. Wis. Stat. § 907.02 now reads in part:
[A] witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.
While the Wisconsin Supreme Court recently took up a case posing expert testimony issues, the majority concluded that proof of the state's case did not require expert testimony and therefore the court declined to use the case as an opportunity to recognize Act 2's new Daubert standard. In State v. Kandutsch, the defendant challenged the admissibility of an electronic home monitoring anklet report that provided circumstantial evidence of his intoxicated driving. ___ N.W.2d ___, 2011 WL 2820791 (Wis. Jul. 19, 2011). The court restated the familiar lenient standard endorsed in Walstad, but took note of the legislature's recent action:
"In Wisconsin, expert testimony is generally admissible in the circuit court's discretion if the witness is qualified to testify and the testimony would help the trier of fact understand the evidence or determine a fact at issue…This statement is consistent with the state of the law of Wisconsin at the time of Kandutsch's trial and the circuit court's evidentiary rulings at issue in this case…Because we do not find expert testimony to be required, it is not necessary to consider the applicability of newly-amended § 907.02 to the facts of this case."
Kandutsch, slip op at *11, fn. 7. Despite the court's inaction on the Daubert standard, the legislature has acted and it's safe to say that Daubert is now the law of the land in Wisconsin state courts.
A slip copy of the electronic monitoring opinion is available here, and be sure to check back with Daubert Uncensored for a Wisconsin Supreme Court decision finally reconciling Act 2's Daubert standard with the court's prior holdings.