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COA: Pharmacologist properly barred from testifying about stomach condition

State v. Paul E. Ayala, 2017AP1510, 7/3/18, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Ayala was charged with OWI. A blood test showed a high level of Ambien in his system. He sought to defend on the ground of involuntary intoxication by presenting a pharmacologist’s testimony that he had a stomach condition that caused the drug to build up in his system. 

The circuit court refused to allow this testimony, concluding it didn’t pass Daubert:

In its ruling, the court took issue with the fact that Dr. Dajani’s opinion was based on the assumption that Ayala’s doctor must have diagnosed him with that particular stomach condition because of another prescription medication that Ayala was taking at the time. However, the court pointed out that this diagnosis was not in Ayala’s medical records. Furthermore, the court noted that even if that assumption were correct, there was no proof offered to show that the doctor who prescribed the other medication—an oncologist—was qualified to make that diagnosis. Therefore, the court held that because Dr. Dajani was not qualified to make the diagnosis about Ayala’s purported stomach condition, he was precluded from testifying with regard to any opinion “that would flow from that proposed diagnosis.

The court of appeals affirms, saying

the trial court effectively utilized its gatekeeper function, explaining very thoroughly the reasoning for its determination that Dr. Dajani was not qualified to testify regarding a purported medical diagnosis that was not included in Ayala’s medical records. In sum, the trial court found that there was no foundation for this assumed diagnosis, and therefore precluded any testimony by Dr. Dajani relating to that issue. See Giese, 356 Wis. 2d 796, ¶18; see alsoSeifert, 372 Wis. 2d 525, ¶64. This determination was based on the relevant facts of the case and the proper standard of law for allowing expert testimony. It was therefore not an erroneous exercise of the trial court’s discretion. See Hefty, 312 Wis. 2d 530, ¶28. Accordingly, we affirm.


Thus ends the Wisconsin appellate courts’ perfect record of always approving the admission of expert testimony under Daubert. Given that the call is discretionary for the circuit court, it matters that the court here below excluded the evidence–so Ayala had to overcome the deference inherent in the erroneous exercise of discretion standard. Nevertheless, looking at the briefs, it seems the courts here took a far closer and more critical look at Ayala’s proffer than they have in previous cases. The court of appeals’ summary of his testimony is also quite general–again, looking to the briefs, the expert’s bases for his testimony are a bit more substantial than the opinion lets on.

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