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Wisconsin Adopts the Daubert Standard Regarding Expert Witnesses

Expert witness testimony - whether from a physician, engineer or other educated expert - almost always plays a key role in personal injury litigation. In fact, it is absolutely essential in malpractice cases. Such testimony is usually admitted at trial without incident. However, in some cases involving less mainstream scientific evidence, whether such testimony is admitted or excluded can ultimately decide the case.

In 1923, the federal appeals court for the District of Columbia circuit announced an analytical framework for the evaluation of expert witnesses that quickly became the standard throughout both state and federal trial courts. That case, Frye v. United States, stood for 70 years before the federal courts abandoned it in favor of a rule more favorable to cutting-edge scientific evidence-the Daubert standard. However, many states were slow to adopt this change and many continue to adhere to Frye. In fact, the state of Wisconsin held fast to the old standard until the legislature amended the rules of evidence to adopt Daubert in 2011.

Whereas the Frye standard required expert testimony to be based on methods that had general acceptance in the relevant scientific community, the Daubert standard is arguably more amenable to testimony involving emerging fields and cutting-edge methods. Now, the trial judge must independently weigh the reliability of an expert's methodology based on the following factors:

  • Whether the methodology can be verified through testing
  • Whether it has been subjected to peer review in the relevant community
  • Whether it has an established error rate
  • Whether it is controlled by established standards
  • Whether it has received widespread acceptance in the relevant professional community

Adopting Daubert in Wisconsin represented a fundamental shift for plaintiffs' attorneys in the area.Wisconsin personal injury lawyers now have more freedom when presenting complex theories of negligence and when establishing the connection between the defendant's negligence and their clients' injuries.

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