Well, that didn’t take long. In its first week of political life, the new legislature has proposed sweeping “tort reform” legislation. The compass of the 30-plus page bill is manifold, embracing punitive damages, fee shifting, product liability claims, and damages caps. What interests me more, however, are proposed changes to the Wisconsin Rules of Evidence governing expert opinion testimony. For years, some have bemoaned Wisconsin’s failure to adopt the so-called Daubert rule (see below), an often restrictive, ad hoc standard that ostensibly identifies those “reliable” expert methodologies worthy of consideration by the courts. Unreliable methods, of course, are excluded. And while courts and commentators still debate how one goes about reliably identifying reliable methodologies, Wisconsin will apparently make up for lost time by not only adopting Daubert, but also go it one better by requiring that expert methodologies be “true” as well as reliable.
True in what sense you ask? Well, it’s unclear, although I concede it has a nice Old Testament ring to it and the idea that courts should use “true” evidence is appealing in all senses of that word. While you’re pondering what “true” might mean (and I still am), let me offer some background.
Predictably, the tort reform package embraces the approach found in the current Federal Rules of Evidence on expert testimony, the so-called Daubert rule, which emerged from the Supreme Court’s 1994 decision in Daubert v. Merrell Dow Pharmaceutics. Daubert promoted federal judges to the rank of “gatekeeper” and charged them with divining the divide that separates reliable from unreliable expert testimony. After all, who is better qualified for such a task than a liberal arts major with a law degree? In 2000 the Court amended Federal Rule of Evidence 702 to reflect Daubert and its progeny: expert opinion testimony must be predicated upon reliable principles and methods that are reliably applied to sufficient facts and data. Moreover, the gatekeeper-judge determines the criteria of reliability and whether it has been met. The Daubert standard has been adopted by nearly 40 states, but Wisconsin has thus far chastely resisted its siren song despite numerous entreaties by litigants and legislative sallies.
My purpose here is not to debate the relative merits of the current Wisconsin rule and the Daubert rule. (For the record, I’m no fan of the Daubert rule and my encomium to the Wisconsin rule is set out in an article in the Marquette Law Review.) Do I think the change justified? No. What is mystifying, though, is that in belatedly embracing the majority rule (Daubert) the proposed legislation adds the terse, quirky requirement that the expert’s methodology must be true as well as reliable.
The proposed rule, however, provides no criteria for determining the truth of an expert’s principles or methods or, for that matter, what exactly must be “true.” The problem is especially acute in dynamic fields like psychology or genetics which are fluid and continuously evolving. And what happens when we look to accounting or even economics? Might a method be “reliable” enough under the federal rule yet fail the test of truth in Wisconsin courts? Does “true” mean that the judge’s admissibility determination is higher than the traditional preponderance standard found in § 904.01(1)? More precisely, does it mean that a science must be both “true” and reliable, or does it mean only that it must be true that the method is reliable? Only time (and lots of money spent in litigation) will tell.
A few closing thoughts. First, the legislature should immediately rethink its gloss on the Daubert rule. If you want Daubert, adopt Daubert, not some ill-conceived mutation that purportedly places Wisconsin in the category of a super-duper Daubert jurisdiction. This may be good politics but it is bad law and poor public policy. The revision also carries the cost of trashing not only the current Wisconsin rule, but also marginalizing (if not rendering useless) the federal case law that has applied the Daubert rule since 1994. Second, the new rules will apply with equal force in criminal as well as civil cases. No one is advocating (I hope) separate rules for criminal and civil cases, so some thought should be given to how the change might impact a wide variety of trials. For criminal cases, added time, cost, and complexity are only the most obvious starting points. Clearly too little thought was given to this point or the evidence revisions would not have been dumped into the tort reform package. Finally, what public policy justifies the change? Will someone please point out the case law that illustrates the inadequacy of the current rule? I don’t see it. But I do foresee a great deal of litigation in the wake of these ill-starred revisions.
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Oh, the possibilities in Chapter 980 commitment law….
What does true mean within nascent “science?”
I don’t think the proposed rule requires that the methodology or conclusions be “true.” What must be “true” is that the “a)The testimony is based upon sufficient facts or data;(b) The testimony is the product of reliable principles and method; and c)the witness has applied the principles and methods reliably to the facts of the case.”
This tees up the Daubert issue, i.e., to what extent should a judicial officer police expert opinion? In fact, that language seems to track formulations of Daubert pretty closely.
Reasonable people will disagree on Daubert. But the rule merely seems to ask courts to decide is whether it is “true” that the Daubert predicates of admissability are present. I’m not sure that it asks courts to engage in some additional epistemological inquiry about truth or falsity.
Again, reasonable people will differ on whether Daubert is a good idea. On the one hand, in thirty years of litigation, I’ve seen plenty of parapsychology (particularly in the social sciences) pitched at judges and jurors. The latter, of course, don’t generally have the benefit even of a substantial liberal arts or technical education and are generally chosen in a way that rigorously excludes anyone who has a clue about the subject matter of the case.
On the other hand, I am not persuaded that the distinctions between Daubert and Frye and other potential standards mean much with respect to what actually gets admitted and excluded. They are certainly capable of being read to make a huge difference and can certainly be used by judges as a shorthand for being “tough” or “easy” on experts, but I wonder if the key variable isn’t the judge and not what standard a reviewing court has pronounced.
Leaving aside practicality, you have to admit it would be pretty awesome if courts and juries could only consider true evidence!
Litigating the admissibility of expert opinions will now require an additional level of expert testimony about the truth of proposed methodologies. It’s really just awkward language. “Reliability” depends on a level of accepted methodology and the geniuses writing bills just wanted to hammer home the point that it’s gotta be “true” as well. As an aside what kind of republican tort reform bill “embraces” punitive damages?
Am I misreading?
Truth and science. I remember this one famous scientist. No one would believe him. So they had him locked up for expressing his opinions which almost everybody believed were definitely wrong. His name was Galileo. Funny how he turned out to be right after all.
Some areas of supposed expertise in criminal litigation — handwriting expertise for one example and DNA evidence as another — would come under much greater scrutiny under a Daubert approach.
Ironically, greater focus on the reliability of expertise might actually lead to the increased use of expert witnesses in some situation. One that comes to mind is antidiscrimiataion law where, at least under the new Iqbal standards in federal court pleading, plaintiffs’ attorneys will have an increased incentive to put right into the pleadings claims based on what expert witnesses will testify on such topics as implicit bias/unconscious bias, etc., to satisfy the plausibility standard.