Wisconsin’s Expert Witness Rules Join the 20th Century (Yes, I Know We’re In the 21st Century)
2011 Wisconsin Act 2, which became effective on February 1, 2011, brings (among other things) the Daubert reliability standard to Wisconsin’s consideration of expert witness evidence, replacing the Walstad relevancy rule. For civil actions, the new standard will be applicable to cases filed on or after the effective date (for criminal cases, applicability is not without question — see John DiMotto’s article in Bench and Bar Experiences). That’s too bad, because there are a couple of cases I’m working on now that have very questionable expert witnesses who might not survive a Daubert inquiry. But I digress.
New Wis. Stat. 907.02 reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, 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 rules are a little tighter under Daubert, I don’t expect that most expert evidence will be impacted. The change to the language of the statute isn’t drastic. More importantly, judges have been doing things a certain way for many years, so it’s reasonable to expect that change will come slowly.
