WisBar News: Newer Standard for Expert Testimony Does Not Apply in Commitment Case:

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  • Newer Standard for Expert Testimony Does Not Apply in Commitment Case

    Joe Forward

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    Nov. 19, 2013 – The heightened standard for the admissibility of expert testimony, which took effect in 2011, does not apply to a commitment case that was a mere continuation of the underlying action that began in 2004, a state appeals has clarified.

    In 2004, the state petitioned to commit Michael Alger as a sexually violent person and he was soon committed to a mental health facility. The court denied his 2006 and 2007 petitions for discharge, but he petitioned for discharge again in April 2011.

    By this time, Wisconsin had amended its expert witness statute, Wis. Stat. section 907.02, adopting the Daubert standard to test the admissibility of expert testimony.

    The statute requires experts to be qualified by knowledge, skill, experience, training, or education. The Daubert amendment additionally requires testimony to be based upon sufficient facts or data, it must be the product of reliable principles and methods, and the witness must apply the principles and methods reliably to the facts of the case.

    The court ruled that Alger was entitled to a full discharge hearing. Alger then moved to preclude the state’s expert witness, who would testify to his risk of reoffending. Alger said the expert did not meet the new reliability standard under section 907.02. However, the court ruled that the new standard did not apply, because Alger’s discharge action was not a new civil action commenced after Feb. 1, 2011.

    In State v. Alger, 2013AP225 (Nov. 19, 2013), a three-judge panel for the District III Court of Appeals affirmed, noting that Alger’s action was not a new action commenced after the Daubert amendment for purposes of applying the new reliability standard.

    “The structure and language of Wis. Stat. ch. 980 demonstrate that discharge petitions are part of the committing court’s continuing administrative authority over the existing lawsuit that began when the original commitment petition was filed,” wrote Judge Lisa Stark, explaining the framework that gives committing court’s “continuing authority.”

    “Filing a discharge petition is merely another step in that existing lawsuit – it does not begin a new lawsuit or legal process,” Judge Stark wrote.

    The panel also rejected Alger’s argument that failing to apply the Daubert standard to his current discharge proceedings violates his equal protection rights. Alger argued that failing to apply the Daubert standard in his case treats him differently than others.

    Applying a rational basis standard, the court ruled that the Wisconsin Legislature had a reasonable ground for treating Alger differently than others similarly situated – allowing “pending” cases to fall under the new standard would complicate those pending matters.