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Circuit court erred in excluding expert testimony on Daubert grounds

Unity Bayer v. Brian D. Dobbins, M.D., 2016 WI App 65; case activity (including briefs)

We note this decision in a civil case because it involves the application of the Daubert test, a still relatively undeveloped area of law, and may assist practitioners in making arguments for (or against) the admission of expert evidence.

The circuit court excluded as unreliable expert testimony proffered by a defendant doctor in a medical malpractice test. The circuit court relied on several mistaken grounds: First, the court read into the scientific literature on the topic at issue (brachial plexus injuries) a distinction that the literature didn’t in fact make. (¶¶8-9, 23). Second, the court failed to address most of the 20-plus peer-reviewed publications the defense experts cited in support of their opinions. (¶¶8-9, 24). Finally, the court didn’t address one of the defense experts, who’d actually performed research and published articles on her research. (¶¶11-12, 25). And, while the plaintiffs criticize the defense experts’ conclusions, those criticisms of course go to weight, not admissibility. (¶¶29-30).

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