Lawyers tracking how Wisconsin’s appellate courts are interpreting Wis. Stat. § 907.02(1), governing the admissibility of expert testimony, might be interested in this development. Seifert v. Balnik, the first Daubert case to reach SCOW was on track to be decided this term. It was twice listed for, and twice removed from, the oral argument schedule. According to the clerk’s office, SCOW has finished oral arguments for this term. The argument in Seifert has been pushed off to next term.
What does that mean for practitioners? Keep filing Daubert challenges at the trial court level. Until SCOW decides Seifert (which will then determine the fate of State v. Smith, click here for more on that) we don’t know whether, in Wisconsin, an expert opinion based on nothing more than longstanding personal experience or observations is admissible or not. Remember, businesses pushed for the Daubert standard order to curb the use of “junk science” in litigation. Who knows how SCOW will decide these cases.