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Mike Tobin Guest Posts: How Seifert might apply outside the delivery room

Three separate opinions in Seifert v. Balink result in a 5-2 majority upholding admission of expert medical testimony under the Daubert standard.  Because Seifert is the first Wisconsin Supreme Court case interpreting this standard for admission of expert testimony, it provides guidance to lower courts and to practitioners regarding the 2011 statutory changes.

The On Point summary concisely pulls eight rules or guidelines from the lead (Abrahamson, joined by A.W. Bradley) and concurring (Ziegler; Gableman, joined by Roggensack) opinions.  (A ninth rule is that the trial court has broad discretion regarding the ultimate determination of admissibility.)  These rules should inform arguments and offers of proof presented both for and against admission of expert testimony.  Also, attorneys should focus on the statutory aspects of reliability: principles and methods (recognizing the court’s flexibility in deciding which factors are most important in a given case).

An interesting footnote (¶58, n.16) quotes an example of a law enforcement officer translating code words in a drug transaction.  The example, from an advisory note to the federal Daubert rule, says that the applicable principle is that participants in drug sales use code words.  The method of applying the principle is the officer’s use of his/her experience to interpret the words.

This example, although cited in only the 2-justice lead opinion, suggests that the supreme court is likely to uphold admission of an expert opinion derived largely from personal, specialized experience.  Nonetheless, in objecting to this type of evidence, attorneys may argue that the field of medicine and the qualifications of the expert witness in Seifert were more reliable than opinions offered in fields lacking a similar base of knowledge.  For example, the witness in Seifert had supervised and observed many other doctors, and that experience informed his opinion on the applicable standard of care.  An opinion based solely upon personal experience (or upon experience and minimal training) might not be considered sufficiently reliable.

For attorneys seeking to have expert testimony admitted, the Seifert case is helpful to rebut any argument that rigid requirements, such as a need for quantifiable data to support an opinion, preclude admission of testimony.  An expert opinion can be based primarily on experience, rather than on scholarly literature or data, although the proponent should be prepared to show that the opinion is more than the say-so of the witness.  The reliability of an experience-based opinion can be enhanced by identifying factors underlying the opinion and proving that these factors are generally recognized as important in the subject area.  If the proponent can show that the methodology and factors considered in reaching the opinion were reasonable, the trial court may decide that potential challenges to the opinion are issues of weight, rather than admissibility.

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