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Laurna A. KinnelLitigation

When the Daubert Standard Does Not Apply

By October 15, 2015April 28th, 2020No Comments

Most everyone is aware that, in 2011, Wisconsin became a Daubert state – meaning that Wisconsin adopted the Daubert standard for determining whether expert testimony is admissible as evidence.

Earlier this year, the Wisconsin Supreme Court issued its 5-2 ruling in the consolidated cases State v. Alger and State v. Knipfer, 2015 WI 3, that “[t]he Daubert standard applies to ‘actions’ or ‘special proceedings’ commenced on or after February 1, 2011.”

This means that, where an underlying case commenced before February 1, 2011, the Daubert standard does not apply.

Wisconsin codified the Daubert standard in § 907.02, Wis. Stats., which states that experts can offer testimony

“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.”

The pre-Daubert standard, commonly known as the relevancy standard, allowed the admission of expert testimony if 1) it would assist the trier of fact, 2) it was based on “scientific, technical, or other knowledge” and 3) the expert was qualified “by knowledge, skill, experience, training, or education.” § 907.02, Wis. Stats. (2009-10).

In Alger, the Supreme Court provided specific guidance to litigants regarding what is considered an “action” or a “special proceeding”:

“The word ‘action’ in the Wisconsin statutes denotes the entire controversy at issue. For example, a motion to establish paternity is not an action. Similarly, a probate matter is not an action. A special proceeding, like an action, is a stand-alone proceeding that is not part of an existing case….Examples of special proceedings include a stand-alone proceeding for contempt or to condemn land, a non-party’s motion to intervene, a voluntary assignment for the benefit of creditors and a proceeding to obtain discovery of books.”

2015 WI 3, ¶ 29. (Internal citations omitted, emphasis supplied).

In short, special proceedings involve “a separate filing outside of an action.” Id. The Alger ruling has special application to litigators, especially those working in the context of criminal and family law, or those involved in especially lengthy litigation or appeals.