Ordinarily, “the third time’s a charm.” But here, with its third decision rejecting a Daubert challenge to expert testimony, the court of appeals triple underscores just how flexible the test really is. The decision also addresses a vouching issue.
The State charged Smith with repeated sexual assault of a child and notified him that it intended to call Paula Hocking, Director of Waukesha County’s Child Advocacy Center, to testify as an expert regarding reactive behaviors common among child abuse victims. Smith objected because the State did not provide an expert report and because the proposed testimony did not satisfy §907.02. The State agreed that the testimony was not amenable to Daubert’s five-factor test but argued that the trial court could look to other indicia of reliability such as: the testimony had been admitted in federal courts and in Wisconsin before it adopted Daubert. The court of appeals agreed the State:
¶8 In Seifert ex rel. Scoptur v. Balink, 2015 WI App 59, 364 Wis. 2d 692, 869 N.W.2d 493, we recently affirmed the trial court’s decision to permit testimony by a medical expert despite the fact that the testimony did not align with the Daubert factors. The medical expert in Seifert provided testimony that the care provided by the physician-defendant, Balink, fell below the requisite standard of care in ways that increased the risk of injury. Seifert, 364 Wis. 2d 692, ¶¶5-7. Balink argued that the expert’s opinions were not the product of reliable principles or methods as required by WIS. STAT. § 907.02(1) and Daubert, but rather were based on the expert’s own personal preferences from his experience practicing medicine. Seifert, 364 Wis. 2d 692, ¶¶16, 28. Because those experiences could not be “challenged in some objective sense,” Balink argued they were unreliable and therefore inadmissible. Id. (citation omitted). We rejected this argument, holding that the court did not erroneously exercise its discretion when it relied on the medical expert’s expertise and knowledge as a practicing physician in admitting his testimony under § 907.02(1). Seifert, 364 Wis. 2d 692, ¶29.
¶9 Similar to Seifert, Hocking’s 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, including Hocking’s qualifications as director of the Walworth County Child Advocacy Center and more than two decades of experience working with child victims, and found that she had “sufficient knowledge, skill, experience, [and] training” to qualify her as an expert in the area of behaviors exhibited by child sexual assault victims. Furthermore, the court noted that Hocking’s proposed testimony was similar to what had been allowed in federal courts already subject to the Daubert standard as well as pre-Daubert Wisconsin courts. Contrary to Smith’s assertion that the trial court relied on decisions by other courts faced with different facts and different standards, the trial court’s analysis simply acknowledged that Hocking’s testimony was generally accepted within her discipline and was not the product of ungrounded speculation.
The 3 court of appeals decisions applying Wisconsin’s new Daubert test are: State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687, which admitted expert testimony on retrograde extrapolation of BAC, On Point post here; Seifert ex rel Scoptur v. Balink, 2015 WI App 59, 364 Wis. 2d 692, 869 N.W.2d 493,which admitted medical testimony on delivery and pre-natal care, On Point post here; and now State v. Larry Smith, which admits social worker testimony re the behavior of child abuse victims based on her experience working with them. Supposedly, the Daubert standard “is flexible but has teeth.” Giese, ¶19. Thus far, it seems toothless. The practical effect is not too different from the old days. Experts don’t have to submit reports or satisfy the 5-part test. Seifert is now pending in SCOW so all of this may soon change. Stay tuned for more details.
Smith also claimed ineffective assistance of counsel because, in an attempt to discredit the investigating officer, his trial lawyer accidentally, but repeatedly, elicited the officer’s opinion that the victim was telling the truth. That sounds a lot like vouching in violation of State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984). But according to the court of appeals, while in hindsight this strategy proved “unwise”, it was at the time “valid.” So the lawyer’s performance was not deficient. Slip op. ¶14.