Here’s an issue in search of a published decision. In 2011, Wisconsin amended Wis. Stat § 907.02 to require circuit courts to apply the Daubert test for the admissibility of expert testimony. Thus far, no Wisconsin appellate court has interpreted and applied the new § 907.02, so we don’t know the standard for reviewing circuit court decisions pursuant to the statute. The old test for the admission/exclusion of expert testimony wasn’t too complicated, and on appeal the question was simply whether the trial court had exercised its discretion erroneously. State v. Shomberg, 2006 WI 9, ¶10, 288 Wis. 2d 1, 709 N.W.2d 370.
Without getting bogged down in the nitty gritty, the new § 907.02, designed to fortify the trial court’s “gatekeeper” role, is more complex. According to a Wisconsin Lawyer article, one of the “daunting tasks” for the Wisconsin trial judge is that she must now select from a long, non-exclusive list of possible factors those that to determine whether the expert’s methods and principles are reliable. Then she must weigh the expert’s principles and methods against those factors. In addition, she must conduct the required analysis re relevance, qualifications, helpfulness and so forth.
The appellant in State v. William A. Johnson, Appeal No. 2013AP65, raised these issues and argued that Wisconsin should use the same two-step standard of review that the Seventh Circuit uses. That is, the court of appeals first reviews the circuit court’s understanding of the expert evidence rule–its choice of legal framework–de novo. Then it reviews the circuit court’s decision to admit or exclude evidence for an erroneous exercise of discretion. See e.g. Kunz v. DeFelice, 538 F.3d 667 (7th Cir. 2008); Goodpastor v. City of Indianapolis, 736 F.3d 1060 (7th Cir. 2013). Step one focuses on the trial court’s gatekeeper role–did it properly vet the expert. That is reviewed de novo. Step two is whether the trial court committed an abuse (or erroneous exercise) of discretion in admitting or barring the expert testimony. Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010).
Johnson’ appellate brief presents detailed research on these issues. The court of appeals’ summary disposition here notes that the standard of review for trial court decisions applying the new law is an issue of first impression for Wisconsin. Johnson has filed a petition for review. Advocates interested in this issue cannot cite the court of appeals’ decision as precedent. However, they may want to take a look at the extensive research presented in Johnson’s appellate brief.