907.02 Annotation Expert testimony is not generally required to prove a party's negligence, and requiring expert testimony before a claim can get to the jury is an extraordinary step that should be ordered only when unusually complex or esoteric issues are before the jury. This principal applies equally to a breach of contract action because it is a general rule that expert testimony is not necessary when the issue is within the realm of the ordinary experience of the average juror. Racine County v. Oracular Milwaukee, Inc., 2009 WI App 58, 317 Wis. 2d 790, 767 N.W.2d 280, 07-2861.
907.02 AnnotationAffirmed. 2010 WI 25, 323 Wis. 2d 682, 781 N.W.2d 88, 07-2861.
907.02 Annotation In an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on portable breath test results, applying the St. George test, the right to do so is outweighed by the state's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's forbidding of that evidence in OWI prosecutions under s. 343.303, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the state's compelling interest in public safety on its roads. State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629, 07-1898.
907.02 Annotation An electronic monitoring device (EMD) report did not present an issue that is particularly complex or unusually esoteric. Additionally, the EMD involves scientific principles that are indisputable and fully within the lay comprehension of the average juror. As such, expert testimony was not required to properly establish a foundation for the report's admissibility. State v. Kandutsch, 2011 WI 78, 336 Wis. 2d 478, 799 N.W.2d 865, 09-1351.
907.02 Note NOTE: The preceding cases apply to this section as it existed prior to 2011 Wis. Act 2, which added a new standard to sub. (1) and created sub. (2).
907.02 Annotation Expert testimony about retrograde extrapolation of the defendants' blood alcohol concentration was admissible. The court's gate-keeper function is to ensure that the expert's opinion is based on a reliable foundation and is relevant to material issues. The court is to focus on the principles and methodology the expert relies upon, not on the conclusion generated. The question is whether the scientific principles and methods that the expert relies upon have a reliable foundation in the knowledge and experience of the expert's discipline. State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687, 13-2009.
907.02 Annotation If experts are in disagreement, it is not for the court to decide which of several competing scientific theories has the best provenance. The accuracy of the facts upon which the expert relies and the ultimate determinations of credibility and accuracy are for the jury, not the court. As stated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687, 13-2009.
907.02 Annotation The evidentiary standard under sub. (1) made effective February 1, 2011, did not apply to expert testimony in the ch. 980 discharge petition trials in this case because the discharge petitions did not “commence" “actions" or “special proceedings" but were part of the underlying commitments. The original ch. 980 commitments in this case began several years before the standard was adopted, and the filings in this case did not constitute the “commencement" of an “action" or a “special proceeding." Because the legislature had a rational basis for not applying the evidentiary standards under sub. (1) to expert testimony in post-February 1, 2011, discharge petitions that seek relief from pre-February 1, 2011, commitments, no violation of equal protection or due process occurred. State v. Alger, 2015 WI 3, 360 Wis. 2d 193, 858 N.W.2d 346, 13-0225.
907.02 Annotation Sub. (1) adopts the reliability test established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubert itself acknowledges that its test for the admissibility of expert evidence is “flexible." In this case, the proposed expert testimony did not neatly fit the Daubert factors. This did not, however, require exclusion. The court appropriately considered other factors bearing upon the reliability of the testimony and found that she had “sufficient knowledge, skill, experience, and training" to qualify her as an expert. State v. Smith, 2016 WI App 8, 366 Wis. 2d 613, 874 N.W.2d 610, 14-2653.
907.02 Annotation The drug recognition evaluation (DRE) protocol is a nationally standardized protocol for identifying drug intoxication based on the well-established concept that drugs cause observable signs and symptoms, affecting vital signs and changing the physiology of the body, and testimony based on the DRE protocol is subject to sub. (1). State v. Chitwood, 2016 WI App 36, 369 Wis. 2d 132, 879 N.W.2d 786, 15-0097.
907.02 Annotation Daubert provided the following illustrative, non-exhaustive list of factors a court may consider in deciding whether expert testimony based upon scientific, technical, or other specialized knowledge is reliable: 1) whether the theory or technique employed by the expert is generally accepted in the relevant community; 2) whether it has been subject to peer review and publication; 3) whether it has been tested; and 4) whether the known or potential rate of error is acceptable. State v. Chitwood, 2016 WI App 36, 369 Wis. 2d 132, 879 N.W.2d 786, 15-0097.
907.02 Annotation A trial court's obligation to act as a gatekeeper under Daubert does not require it to conduct a Daubert admissibility analysis if there is no objection to the testimony, and the trial court's failure to sua sponte engage in such an analysis does not constitute plain error under s. 901.03 (4). State v. Cameron, 2016 WI App 54, 370 Wis. 2d 661, 885 N.W.2d 611, 15-1088.
907.02 Annotation To determine whether expert testimony is admissible under sub. (1), a court must engage in a 3-step analysis, considering whether: 1) the witness is qualified; 2) the witness's methodology is scientifically reliable; and 3) the testimony will assist the trier of fact to determine a fact in issue. Bayer v. Dobbins, 2016 WI App 65, 371 Wis. 2d 428, 885 N.W.2d 173, 15-1470.
907.02 Annotation A trial court should admit medical expert testimony if physicians would accept it as useful and reliable. Expert medical opinion testimony is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline. Instead of exclusion, the appropriate means of attacking shaky but admissible experience-based medical expert testimony is by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. Seifert v. Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816, 14-0195.
907.02 Annotation When the reliability of expert medical testimony is challenged under the reliability prong of sub. (1), the specific focus is on the reliability of the methods used by the expert. The trial court must be satisfied that the testimony is reliable by a preponderance of the evidence. In expert medical evidence, the methodology often relies on judgment based on the witness's knowledge and experience. Reliability concerns may focus on the personal knowledge and experience of the medical expert witness. A circuit court has discretion in determining the reliability of an expert's principles, methods, and the application of the principles and methods to the facts of the case. Seifert v. Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816, 14-0195.
907.02 Annotation Because the expert in question applied an accepted medical method relied upon by physicians and had extensive personal experiences and knowledge pertaining to the standard of reasonable care, the circuit court did not erroneously exercise its discretion in admitting his testimony. Failure to rely on literature is no bar to admissibility. Daubert supports the circuit court in the instant case: Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability. Seifert v. Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816, 14-0195.
907.02 Annotation A social worker's testimony about the absence of indications during a cognitive graphic interview of an alleged child sexual assault victim, either that the child had been coached or was being dishonest, did not violate the rule prohibiting a witness from giving an opinion that another mentally and physically competent witness is telling the truth, and was admissible for 3 reasons: 1) the testimony was limited to the social worker's observations of indications of coaching and dishonesty; 2) by limiting her testimony to indications of coaching and dishonesty, the social worker did not provide a subjective opinion as to the child's truthfulness; and 3) such testimony may assist the jury. State v. Maday, 2017 WI 28, 374 Wis. 2d 164, 892 N.W.2d 611, 15-0366.
907.02 Annotation The general principles of Daubert, 509 U.S. 579, are not limited to scientific knowledge. The analysis applies to all expert testimony. State v. Jones, 2018 WI 44, 381 Wis. 2d 284, 911 N.W.2d 97, 15-2665.
907.02 Annotation Sub. (1) requires that circuit courts make five determinations before admitting expert testimony: 1) whether the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue; 2) whether the expert is qualified as an expert by knowledge, skill, experience, training, or education; 3) whether the testimony is based upon sufficient facts or data; 4) whether the testimony is the product of reliable principles and methods; and 5) whether the witness has applied the principles and methods reliably to the facts of the case. State v. Jones, 2018 WI 44, 381 Wis. 2d 284, 911 N.W.2d 97, 15-2665.
907.02 Annotation The admissibility of expert testimony is governed by this section. The court's role with regard to the admissibility of evidence is often described as that of a gatekeeper. Before 2011 Wis. Act 2, the court's role was simply to determine whether the evidence made a fact of consequence more or less probable. The heightened standard under this amended section does not change this gatekeeping function. It does, however, require more of the gatekeeper. Instead of simply determining whether the evidence makes a fact of consequence more or less probable, courts must now also make a threshold determination as to whether the evidence is reliable enough to go to the factfinder. State v. Jones, 2018 WI 44, 381 Wis. 2d 284, 911 N.W.2d 97, 15-2665.
907.02 Annotation Expert testimony at a Machner, 92 Wis. 2d 797, hearing regarding the reasonableness of trial counsel's performance is admissible, but only to the extent the expert focuses on factual matters and does not offer his or her opinion on the reasonableness of trial counsel's conduct or strategy. Expert testimony is admissible to address questions of fact, not law. State v. Pico, 2018 WI 66, 382 Wis. 2d 273, 914 N.W.2d 95, 15-1799.
907.02 Annotation The admissibility of novel scientific evidence: The current state of the Frye test in Wisconsin. Van Domelen. 69 MLR 116 (1985)
907.02 Annotation Scientific Evidence in Wisconsin: Using Reliability to Regulate Expert Testimony. 74 MLR 261.
907.02 Annotation State v. Dean: A compulsory process analysis of the inadmissibility of polygraph evidence. 1984 WLR 237.
907.02 Annotation The psychologist as an expert witness. Gaines, 1973 WBB No. 2.
907.02 Annotation Scientific Evidence in Wisconsin after Daubert. Blinka. Wis. Law. Nov. 1993.
907.02 Annotation The Use and Abuse of Expert Witnesses. Brennan. Wis. Law. Oct. 1997.
907.02 Annotation The Daubert Standard in Wisconsin: A Primer. Blinka. Wis. Law. March 2011.
907.02 Annotation Guarding the Gate: Six Years of Daubert in Wisconsin Courts. Aprahamian. Wis. Law. March 2017.
907.03 907.03 Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion or inference substantially outweighs their prejudicial effect.
907.03 History History: Sup. Ct. Order, 59 Wis. 2d R1, R208 (1973); 1991 a. 32; 2011 a. 2.
907.03 Annotation The trial court properly admitted the opinion of a qualified electrical engineer although he relied on a pamphlet objected to as inadmissible hearsay. E. D. Wesley Co. v. City of New Berlin, 62 Wis. 2d 668, 215 N.W.2d 657 (1974).
907.03 Annotation A chiropractor could testify as to a patient's self-serving statements when those statements were used to form his medical opinion. Klingman v. Kruschke, 115 Wis. 2d 124, 339 N.W.2d 603 (Ct. App. 1983).
907.03 Annotation The trial court erred by barring expert testimony on impaired future earning capacity based on government surveys. Brain v. Mann, 129 Wis. 2d 447, 385 N.W.2d 227 (Ct. App. 1986).
907.03 Annotation While opinion evidence may be based upon hearsay, the underlying hearsay data may not be admitted unless it is otherwise admissible under a hearsay exception. State v. Weber, 174 Wis. 2d 98, 496 N.W.2d 762 (Ct. App. 1993).
907.03 Annotation Although this section allows an expert to base an opinion on hearsay, it does not transform the testimony into admissible evidence. The court must determine when the underlying hearsay may reach the trier of fact through examination of the expert, with cautioning instructions, and when it must be excluded altogether. State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), 95-1067.
907.03 Annotation For a defendant to establish a constitutional right to the admissibility of proffered expert testimony, the defendant must satisfy a two-part inquiry determining whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion undermines fundamental elements of the defendant's defense. State v. St. George, 2002 WI 50, 252 Wis. 2d 499, 643 N.W.2d 277, 00-2830.
907.03 Annotation This section implicitly recognizes that an expert's opinion may be based in part on the results of scientific tests or studies that are not his or her own. State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, 00-3065.
907.03 Annotation Medical experts may rely on the reports and medical records of others in forming opinions that are within the scope of their own expertise. Enea v. Linn, 2002 WI App 185, 256 Wis. 2d 714, 650 N.W.2d 315, 01-2781.
907.03 Annotation This section does not give license to the proponent of an expert to use the expert solely as a conduit for the hearsay opinions of others. As in a civil proceeding there is no independent right to confront and cross-examine expert witnesses under the state and federal constitutions. Procedures used to appoint a guardian and protectively place an individual must conform to the essentials of due process. Walworth County v. Therese B. 2003 WI App 223, 267 Wis. 2d 310, 671 N.W.2d 377, 03-0967.
907.03 Annotation This section is not a hearsay exception and does not make inadmissible hearsay admissible but makes expert's opinion admissible even if the expert has relied on inadmissible hearsay in arriving at the opinion, as long as the hearsay is the type of facts or data reasonably relied on by experts in the particular field in forming opinions on the subject. A circuit court must be given latitude to determine when the underlying hearsay may be permitted to reach the trier of fact through examination of the expert with cautioning instructions for the trier of fact to head off misunderstanding and when it must be rigorously excluded altogether. Staskal v. Symons Corporation, 2005 WI App 216, 287 Wis. 2d 511, 706 N.W.2d 311, 04-0663.
907.03 Annotation In an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on portable breath test results, applying the St. George test, the right to do so is outweighed by the state's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's forbidding of that evidence in OWI prosecutions under s. 343.303, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the state's compelling interest in public safety on its roads. State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629, 07-1898.
907.03 Annotation That part of this section that a properly qualified expert witness may rely on inadmissible material if that material is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject," rests on the commonsense reality that a testifying expert could not be required to replicate all of the experiments and personally make all of the observations either underlying the development of the expert's field or otherwise relevant to the expert's opinion. Permitting the expert to rely on inadmissible material in accordance with this section does not violate a defendant's right to confrontation. State v. Heine, 2014 WI App 32, 354 Wis. 2d 1, 844 N.W.2d 409, 13-1022.
907.03 Annotation An evaluation of drug testing procedures. Stein, Laessig, Indriksons, 1973 WLR 727.
907.04 907.04 Opinion on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
907.04 History History: Sup. Ct. Order, 59 Wis. 2d R1, R211 (1973).
907.05 907.05 Disclosure of facts or data underlying expert opinion. The expert may testify in terms of opinion or inference and give the reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
907.05 History History: Sup. Ct. Order, 59 Wis. 2d R1, R213 (1973); 1991 a. 32.
907.06 907.06 Court appointed experts.
907.06(1)(1)Appointment. The judge may on the judge's own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The judge may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of the judge's own selection. An expert witness shall not be appointed by the judge unless the expert witness consents to act. A witness so appointed shall be informed of the witness's duties by the judge in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness's findings, if any; the witness's deposition may be taken by any party; and the witness may be called to testify by the judge or any party. The witness shall be subject to cross-examination by each party, including a party calling the expert witness as a witness.
907.06(2) (2)Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the judge may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and cases involving just compensation under ch. 32. In civil cases the compensation shall be paid by the parties in such proportion and at such time as the judge directs, and thereafter charged in like manner as other costs but without the limitation upon expert witness fees prescribed by s. 814.04 (2).
907.06(3) (3)Disclosure of appointment. In the exercise of discretion, the judge may authorize disclosure to the jury of the fact that the court appointed the expert witness.
907.06(4) (4)Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.
907.06(5) (5)Appointment in criminal cases. This section shall not apply to the appointment of experts as provided by s. 971.16.
907.06 History History: Sup. Ct. Order, 59 Wis. 2d R1, R215 (1973); Sup. Ct. Order, 67 Wis. 2d 784; 1991 a. 32.
907.06 Annotation As sub. (1) prevents a court from compelling an expert to testify, it logically follows that a litigant should not be able to so compel an expert and a privilege to refuse to testify is implied. Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999), 96-3356.
907.06 Annotation Under Alt, a person asserting the privilege not to offer expert opinion testimony can be required to give that testimony only if: 1) there are compelling circumstances present; 2) there is a plan for reasonable compensation of the expert; and 3) the expert will not be required to do additional preparation for the testimony. An exact question requiring expert opinion testimony and a clear assertion of the privilege are required for a court to decide whether compelling circumstances exist. Alt does not apply to observations made by a person's treating physician relating to the care or treatment provided to the patient. Glenn v. Plante, 2004 WI 24, 269 Wis. 2d 575, 676 N.W.2d 413, 02-1426.
907.06 Annotation Under Alt and Glenn, a medical witness must testify about his or her own conduct relevant to the case, including observations and thought processes, treatment of the patient, why certain actions were taken, what institutional rules the witness believed applied, and the witness's training and education pertaining to the relevant subject. Subject to the compelling need exception recognized in Alt and Glenn, a medical witness who is unwilling to testify as an expert cannot be forced to give an opinion of the standard of care applicable to another person or of the treatment provided by another person. A medical witness who is alleged to have caused injury to the plaintiff by medical negligence may be required to give an opinion on the standard of care governing his or her own conduct. Carney-Hayes v. Northwest Wisconsin Home Care, Inc. 2005 WI 118, 284 Wis. 2d 56, 699 N.W.2d 524, 03-1801.
907.07 907.07 Reading of report by expert. An expert witness may at the trial read in evidence any report which the witness made or joined in making except matter therein which would not be admissible if offered as oral testimony by the witness. Before its use, a copy of the report shall be provided to the opponent.
907.07 History History: Sup. Ct. Order, 59 Wis. 2d R1, R219 (1973); 1991 a. 32.
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2017-18 Wisconsin Statutes updated by 2017 Wis. Acts 368 to 370 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on January 17, 2019. Published and certified under s. 35.18. Changes effective after January 17, 2019, are designated by NOTES. (Published 1-17-19)