New Statute Adds Extra Hurdle to Admit Expert Testimony

By Attorney Gregg Herman
April 7, 2011

One of Gov. Scott Walker’s first accomplishments in office was to sign 2011 Wis. Act 2, adopting the Daubert rule for admission of expert testimony.

Wisconsin had long adhered to the “relevance” test for expert testimony: Whether the evidence would likely assist the finder of fact. As recently as a year ago, the Wisconsin Supreme Court refused to adopt Daubert in State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629.

Never shy, the Wisconsin Legislature has decided it knows evidentiary law better than the Wisconsin Supreme Court.

Daubert and Family Law

As summarized by Milwaukee County Circuit Court Judge John DiMotto in his terrific blog, “Bench and Bar Experience,” the U.S. Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), that before admitting expert testimony, the trial judge must decide whether the expert is purporting to testify as to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This will entail a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether it can properly be applied to the facts in issue. Later, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the high court held that the Daubert “reliability” rule applies to all expert testimony, not just scientific experts.

The wisdom of these decisions is debatable. As Marquette University Law School professor Daniel Blinka said,

“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?”

Family Law Experts

Expert testimony in family law typically falls within three categories.

First is financial, usually appraisals of real estate or businesses. Since these opinions uniformly apply time-tested principles and methods, such as comparable real estate values or capitalization of a business’ earnings, it seems likely that such opinion would continue to be admissible.

One important caveat. Frequently, parties testify about their opinion of the value of their property. See Arneson v. Arneson, 120 Wis. 2d 236, 252, 355 N.W.2d 16, 21-23 (Ct. App. 1984), and Wilberscheid v. Wilberscheid, 77 Wis. 2d 40, 252 N.W.2d 76 (1977). Although it’s difficult to see judges prohibiting such evidence, it may be necessary to lay a basis beyond, “I own it,” to include how the owner reached the opinion, such as considering similar sales or other knowledge of the market. (See Daniel Blinka, “The Daubert Standard in Wisconsin: A Primer,” Wisconsin Lawyer, March, 2011.)

A second category of expert witnesses is legal, typically regarding the enforceability of marital agreements. These opinions are in reality oral briefs, under the guise of expert opinions. In a footnote in Wisconsin Patients Comp. Fund v. Physicians Ins. Co., 2000 WI App 248, ¶8 n.3, 239 Wis. 2d 360, 620 N.W.2d 457, the Court of Appeals, citing numerous cases, noted that the only expert on domestic law is the court. Recently, however, in State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780, the Supreme Court held that the circuit court did not erroneously exercise its discretion in admitting expert testimony on a legal definition, even if the testimony embraced an ultimate issue, as the expert’s testimony encompassed specialized financial knowledge that would assist the jury in understanding the evidence presented.

It’s not clear how this will play out under Kumho Tire. Clearly, such expert testimony is not the type contemplated by the new law, but courts may still allow it when they feel they need assistance. After all, the court is the gatekeeper.

The third type of evidence, and the most troubling under the new law, is custody and placement opinions from psychologists and social workers. Especially in counties fortunate enough to have a family-court counseling service, courts rely heavily on these opinions. Since lawyers know that, many cases settle based on these recommendations, avoiding untold amounts of conflict, which harms children. Will these opinions still be admissible?

Other Jurisdictions

To attempt to answer that question, let’s look at the application of the Daubert rule in states that have had it for some time.

In Minter v. Minter, 29 So.3d 840 (Miss. Ct. App. 2009), the Court of Appeals rejected a Daubert challenge, finding the opinion of a professional counselor and social worker with a doctorate in sociology useful to the fact-finder. Likewise, in Smith v. Tierney, 906 So.2d 586 (La. Ct. App. 1 Cir., 2005), the court found no error by the lower court in allowing the expert testimony of a counselor with a degree in social work.

However, in Giannaris v. Giannaris, 960 So.2d 462 (Miss. 2007), the appellate court reversed a custody modification order, holding that the trial court erred by considering expert testimony from a clinical social worker with limited training. The appellate court held that there was no evidence that the social worker’s opinions were based on sufficient facts or data or the product of reliable principles and methods.

Similarly, in Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004), the appellate court, applying Daubert, disregarded the opinion of a licensed psychologist regarding custody because he had not applied accepted psychological methodology in formulating his opinion. The court did consider, however, the psychologist’s opinion regarding the children’s behavior as it was based on his clinical observation and impression of the parties and their children.

Finally, in In re K.L.R., 162 S.W.3d 291 (Tex. Ct. App., 2005), the appellate court held that the trial court erred in allowing the testimony of a licensed counselor with a doctorate in counseling and student personnel guidance. Although the court found the error to be harmless since the court did not rely on the expert’s opinion in reaching its custody determination, it held that she should not been allowed to testify.

Laying the Foundation

While assessing the application of these precedents in Wisconsin, certain assumptions can be made. First, judges care about, and want to protect, children. Second, of everyone in the courtroom, the person who knows the least about the parties and their children is that very judge. Third, judges are aware of point #2. Therefore, judges are very open to someone neutral, trained in the appropriate field and with more knowledge of the individuals involved, to recommend to them what to do.

Getting the evidence admitted may now take some additional steps. Based on the above cases, lawyers seeking to admit such testimony should elicit, in addition to the expert’s credentials, the following:

For further explanation of the necessary foundational questions, read Blinka’s previously cited article.

I anticipate that, given the proclivity of judges to want to hear advice from neutral, trained professionals on how to protect children, the new statute will merely add an extra hurdle to get the testimony admitted. Still, lawyers should be prepared — and prepare their witnesses — to address these issues by laying the appropriate foundation.

This article originally appeared in the Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.