In one of my first trials as a judge, involving a limo driver who backed into a post office truck, the defense called the local Michelin dealer as an expert to testify about the tires on the limo bus. From that evidence, the defense was going to calculate the circumference of the tire to show the distance the limo driver actually backed up. When the defense attorney asked the witness if the tire he had just rolled forward was identical to the tires on the limo bus at the time of the accident, I stood up, slapped my hands together and said, “I-DENTICAL!”
Crickets. Apparently no one in the courtroom had seen My Cousin Vinny. But when would I ever get the chance to do that again?
There had not been a challenge to the admission of the tire expert’s testimony, but that case and subsequent cases prompted me to consider the standards Wisconsin judges need to consider in their role as “gatekeeper” and the admissibility of expert opinion testimony.
In January 2011, the Wisconsin Legislature passed 2011 Wisconsin Act 2. Act 2 amended the Wisconsin Rules of Evidence to make admissibility of opinion testimony, and particularly expert opinion testimony, consistent with the Daubert reliability standard embodied in Federal Rule of Evidence 702, as enunciated in the seminal U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals Inc.1
Michael J. Aprahamian, Yale 1992, is a Waukesha County Circuit Court judge. Before taking the bench, he was a partner at Foley & Lardner LLP.
Before 2011 and Act 2, expert testimony was admissible under the Wisconsin Rules of Evidence “if the witness [was] qualified to testify and the testimony would help the trier of fact understand the evidence or determine a fact at issue.”2
In his 2011 primer on the Daubert standard, Professor Daniel Blinka discussed the Daubert standard as then applied in federal courts and questioned how Wisconsin courts would apply the new law in certain situations.3
In the six years since, Wisconsin courts have addressed the new standard in several published decisions. These cases suggest that courts have not aggressively applied the Daubert standard to exclude expert testimony and that Act 2 did not create a sea change in the admissibility of expert testimony in Wisconsin courts. This is confirmed by the recent Wisconsin Supreme Court case, Seifert v. Balink.4
This article addresses the Daubert reliability standard and its treatment in published decisions in Wisconsin since 2011. It posits that the standard is indeed “flexible, with teeth,” although in reality, the baby teeth applied in Wisconsin courts bear little resemblance to the choppers some had envisioned upon the enactment of Act 2. A majority of the supreme court, however, would appear to require circuit courts to sharpen their application to better reflect the change contemplated by the enactment of Act 2.
The Daubert Reliability Standard
The amendment of the Wisconsin Rules of Evidence to adopt the Daubert reliability standard anticipated that Wisconsin circuit courts would exercise heightened diligence in assessing the admissibility of opinion testimony. This gatekeeper function is to ensure that the expert’s opinion is based on a reliable foundation and is relevant to the material issues.5 Once the trial court has determined that the testimony at issue will be presented by an expert witness, a Wisconsin court after Act 2 must assess whether the reasoning or methodology underlying the testimony is scientifically valid, as well as whether the reasoning or methodology properly can be applied to the facts at issue.6
The Supreme Court in Daubert outlined the following factors to be used in making such an assessment. First is whether the theory or technique can be (and has been) tested. This factor incorporates the fundamental concept of scientific methodology, which is based on generating hypotheses and testing them.7
Second is whether the theory or technique has been subjected to peer review and publication.8 Publication, by itself, is not a requirement for admissibility because some innovative theories may not have reached the publication stage. Also, a theory may be too specific or new or of too limited interest that it has not been published. Generally, when a theory is submitted for scrutiny to the scientific community, the likelihood increases that major flaws in the methodology will be exposed.9 Peer review also ensures scrutiny over and testing of the theory.10
The word “gatekeeper” is often used to describe the role
of courts in applying the Daubert standard ... [but] the
cases applying Daubert suggest that courts tend to view
their role more appropriately as a “check point.”
Third is whether a particular scientific technique has a known or potential rate of error, as well as the existence and maintenance of standards controlling the technique’s operation.11
Fourth is whether there is “general acceptance” within the scientific community of the theory or technique. Widespread acceptance of a theory, methodology, or test generally suggests that such opinion evidence is admissible.12
The factors identified in Daubert were meant to be helpful but not definitive.13 The factors do not necessarily apply in every instance in which reliability of scientific testimony is challenged, and even if the factors apply, the circuit court need not weigh each factor equally. In fact, a court need not apply each factor in every case, and there may be additional factors that are more applicable in a particular case.14
The real focus for the trial court must be on the principles and methodology of the opinion testimony, not on the conclusions.15 Thus, trial courts have substantial discretion in determining the admissibility of expert evidence. The Federal Advisory Committee, which provides guidance on the Federal Rules of Evidence, explained that the factors are not meant to be codified, and they are neither dispositive nor exclusive.16
The Federal Advisory Committee outlined additional factors developed by other courts in addressing the Daubert reliability standard: 1) whether the expert testimony is born from research conducted independently of litigation or whether the opinions are developed for the express purpose of testifying;17 2) whether the expert has made a conclusion that requires too great of an analytical gap between the data and the opinion offered;18 3) whether the expert has adequately accounted for obvious alternative explanations;19 4) whether the expert is being as careful as one would expect from an expert in a particular field (that is, whether the expert uses in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field);20 and 5) whether the expert’s field is actually known to produce reliable results.21
As the U.S. Supreme Court stated in Kumho Tire, “the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”22
Application of Daubert Under Wis. Stat. Section 907.02
The court of appeals first addressed the application of the new Daubert admissibility standard in State v. Giese. Giese involved an interlocutory appeal of a nonfinal order denying a motion to exclude opinion testimony from an expert performing a retrograde extrapolation of a defendant’s purported blood alcohol concentration at the time of the alleged offense of operating a motor vehicle while intoxicated. In affirming the circuit court’s decision to admit the testimony, the court of appeals explained the new Daubert standard in Wis. Stat. section 907.02: “The standard is flexible but has teeth. The goal is to prevent the jury from hearing conjecture dressed up in the guise of expert opinion.”23
The court of appeals held that the opinion at issue was a product of reliable principles and methods and based on sufficient facts and data. It held that any objections to the expert opinions will be subject to rigorous cross-examination, and go to the weight, not the admissibility, of the testimony.
The application of Act 2 to cases pending before its effective date was addressed by the supreme court in State v. Alger.24 In Alger, the Wisconsin Supreme Court addressed a challenge to the application of the Daubert standard to Wis. Stat. chapter 980 discharge petitions filed after Feb. 1, 2011 – the effective date of Act 2.
The supreme court held that the Daubert standard applies only to “actions” or “special proceedings” commenced on or after Feb. 1, 2011. Because the original chapter 980 commitments addressed in Alger were filed before the Daubert standard was adopted (even though the discharge petitions were filed after Feb. 1, 2011), the court held that the Daubert standard did not apply to experts involved in the discharge petitions. It further held that neither equal protection nor due process was violated by application of Daubert to actions or special proceedings brought after Feb. 1, 2011, but not to those brought before that date.
The admissibility of medical experts opining on the standard of care was addressed in Seifert v. Balink.25 In Seifert, a medical expert offered testimony that the care provided by the physician-defendant fell below the requisite standard of care in ways that increased the risk of injury. Many of the factors discussed in Daubert relating to scientific reliability generally are not applicable in such matters.
The circuit court admitted the expert testimony, and the court of appeals affirmed. The court of appeals held that the circuit court did not erroneously exercise its discretion when it relied on the medical expert’s expertise and knowledge as a practicing physician in admitting his testimony under Wis. Stat. section 907.02(1). More on this later.
In some other decisions, courts sustained the admissibility of expert opinion testimony based on experience, despite the absence of factors establishing scientific reliability. In State v. Smith,26 the circuit court admitted testimony of the director of the Walworth County Child Advocacy Center “regarding reactive behaviors common among child abuse victims,” including “child development, use of language, recantation, delayed disclosure, progressive disclosure, disclosure to a trusted person, recall, and minimization by the victim.”27
The court of appeals held that the circuit court did not abuse its discretion in relying on the director’s qualifications and more than two decades of experience working with child victims.28 The court of appeals found that the director had “sufficient knowledge, skill, experience, [and] training” to qualify her as an expert in the area of behaviors exhibited by child sexual assault victims. Furthermore, the court of appeals noted that the circuit court considered the fact that the proposed testimony was similar to what had been allowed in federal courts already subject to the Daubert standard.29
Likewise, in State v. Chitwood,30 the defendant appealed a conviction for operating a motor vehicle while under the influence of drugs, specifically challenging the circuit court’s admission of a drug-recognition evaluator’s testimony that the defendant was impaired by a central nervous system depressant and narcotic analgesic, even though the evaluator rendered the opinion based on partial information. The evaluator admitted he did not conduct three steps of the 12-step drug-recognition protocol because of the defendant’s injuries at the time. The circuit court admitted the testimony, concluding that the drug evaluator’s testimony was not “expert scientific testimony” and thus Daubert did not apply.
The court of appeals affirmed the admission of the testimony, even though it held that the circuit court erred in holding that Daubert did not apply.31 The court of appeals held that the drug evaluator’s testimony was based on “specialized knowledge” and that it is difficult, if not impossible, to distinguish between scientific knowledge and specialized knowledge.32 The court of appeals held that such testimony was subject to Wis. Stat. section 907.02(1) and, to be admitted, must satisfy the Daubert reliability requirements.
The court of appeals noted that the defendant had not challenged the evaluator’s training, experience, and qualifications.33 The court then cited a litany of published studies and peer reviews confirming that the drug-recognition-evaluation protocol is sufficiently valid at identifying whether a person is impaired by drugs.34
Finally, the court of appeals held that the fact the evaluator did not complete all 12 steps of the protocol did not render his opinion inherently unreliable under the circumstances, and that the circuit court properly exercised its discretion in allowing the testimony. The evaluator testified that the failure to complete all 12 steps of the protocol did not preclude him from reaching a conclusion that the defendant was impaired by drugs under the circumstances.35 Any challenges to the reliability of the conclusions, the court of appeals concluded, were better left to cross-examination and the jury’s own consideration of the testimony and the weight to give it.
In Bayer v. Dobbins,36 the court of appeals for the first time reversed a circuit court’s discretionary decision to preclude expert testimony under the Daubert standard. In Bayer, the plaintiff sustained a permanent injury during birth, and her parents sued the physician and others for negligence. At trial, the physician sought to introduce expert testimony that the plaintiff’s injury – permanent brachial plexus, and the limitation of using her right arm and hand – was caused by maternal forces of labor rather than the physician’s conduct.
The plaintiff filed a motion in limine to preclude the experts from offering the maternal forces theory, contending that the medical literature on which the defense experts based their opinions was unreliable and did not support the conclusion that the maternal forces theory caused permanent, as opposed to temporary, brachial plexus injury.37 The physician, on the other hand, relied on more than 20 peer-reviewed publications supporting the maternal forces of labor theory and three Wisconsin circuit court cases in which the maternal forces theory was admitted under Wis. Stat. section 907.02(1).38
The circuit court excluded the testimony because it found that the articles regarding the causes of temporary brachial plexus injuries did not support the experts’ opinions regarding permanent brachial plexus injuries and because the defense could not specify the precise maternal forces that caused the injury in this particular case, as opposed to the forces that may in the general population cause injury.39 In its order, the circuit court precluded the defense experts from mentioning any of the proffered articles regarding the maternal forces theory and from offering any opinions relying on those articles. The parties stipulated that this ruling was tantamount to a directed verdict on the issue of causation.40
The court of appeals reversed the circuit court. It concluded that the circuit court abused its discretion in excluding the opinion testimony because, the appellate court found, there was no basis for the circuit court’s distinction, for purposes of causation, between temporary and permanent brachial plexus injuries. In addition, the court of appeals held that the circuit court failed to address the compendium of articles and other individual articles regarding the current state of scientific knowledge on the subject. The court of appeals also found that the circuit court failed to address a specific expert’s opinion and research regarding computer modeling and how maternal forces alone can cause permanent brachial plexus injuries.41
The court of appeals rejected the circuit court’s criticism of the defense expert’s inability to pinpoint the specific force causing the plaintiff’s injury in the case before the court because of the practical and ethical problems in studying directly the effect of maternal forces on the plaintiff or any particular child.42 Finally, the court of appeals relied on cases from other jurisdictions allowing the maternal forces theory under Daubert.
The court of appeals summarized its analysis by noting that here the relevant scientific field is divided regarding whether maternal forces of labor can cause permanent brachial plexus injuries. That disagreement, however, does not mean that the testimony for one side or the other violates Daubert. “If experts are in disagreement, it is not for the court to decide which of several competing scientific theories has the best provenance. To the contrary, the accuracy of the facts upon which the expert relies and the ultimate determinations of credibility and accuracy are for the jury, not the court.”43
Wisconsin Supreme Court, Act 2, and Daubert
The Wisconsin Supreme Court had an opportunity to address Act 2 and the proper application of the Daubert standard in Seifert v. Balink, a review of the published court of appeals decision affirming the circuit court’s admission of expert testimony discussed above. The supreme court by a vote of 5-2 affirmed the court of appeals, and the justices issued four separate opinions. The lead opinion, written by Justice Abrahamson, tracked through various Daubert decisions and focused principally on the cases admitting expert medical opinion testimony based on personal experience, suggesting that the rigor demanded by Daubert is not applicable in such cases.44 Justice Abrahamson concluded that the circuit court applied the correct Daubert standard and did not abuse its discretion in admitting the testimony.45
Justice Ziegler concurred in the judgment affirming the court of appeals’ decision. Justice Ziegler criticized the lead opinion for 1) not sufficiently addressing and giving credence to the changes demanded by Act 2, and 2) its failure to provide guidance to trial courts in how to apply the Daubert standard. Justice Ziegler agreed that the circuit court did not abuse its discretion in admitting the medical expert’s opinion and reached this conclusion in spite of the heightened standard demanded by Act 2.46 She wrote separately to emphasize that trial courts must be “much more piercing in their evaluation of proffered expert testimony” in the light of Act 2, and cautioned trial courts and litigants “to create a detailed, complete record regarding why any particular expert’s testimony meets [this] heightened scrutiny.”47
Justice Gableman, joined by Chief Justice Roggansack, concurred in the judgment. Justice Gableman concluded that an expert witness’s experience is sufficient to satisfy Daubert’s reliability requirement, even without literature to support the opinion, if the expert establishes how his or her experience makes the opinion reliable.48 Justice Gableman noted that Rule 702 contains five inquiries: 1) the witness must be qualified; 2) the witness’s testimony must be helpful, meaning it must assist the trier of fact (think relevant); 3) the witness’s testimony must be based on sufficient facts and data; 4) the witness must have reliable principles and methods; and 5) the expert must reliably apply those principles and methods to the facts of the case.49
Justice Gableman focused on the fourth and fifth elements and the nonexhaustive list of factors that courts apply to assess reliability and then particularly on determining the “good grounds” for a medical-standard-of-care expert. Justice Gableman identified the principles and methods the expert used and then assessed their reliability in the context of the case at hand.50 Finally, Justice Gableman concluded that the expert reliably applied the method to the facts of the case. Although Justice Gableman lauded the circuit court and ultimately concluded that the circuit court did not abuse its discretion in admitting the expert testimony,51 the concurrence suggests a far less deferential standard of review than what a review for abuse of discretion in admitting evidence generally entails.
Justice Kelly, joined by Justice Rebecca Bradley, dissented. Justice Kelly contended that the medical expert testimony admitted by the circuit court did not satisfy the requirements of Wis. Stat. section 907.02. In short, Justice Kelly argued that the medical expert simply opined, based on his extensive knowledge and experience, what that expert would have done under the circumstances but did not testify to a standard of care, that is, the care “that the average qualified physician would provide in similar circumstances.”52
Justice Kelly concluded that, although the expert was eminently qualified, his opinion of what he would do or would have done is not the applicable standard, and it is not clear from the record whether the expert could have testified to a standard applicable in the case. Accordingly, Justice Kelly did not specifically conclude that the expert opinion did not meet the Daubert reliability requirements – in fact, the dissent mentioned Daubert only once in a footnote explaining the dissent’s reliance on cases from other jurisdictions53 – but he did conclude that the opinion did not meet the requirements of Wis. Stat. section 907.02 – requirements existing before passage of Act 2. That is, the circuit court should have excluded the expert testimony as irrelevant, not because it was unreliable under Daubert. Nonetheless, the dissent, by its terms and effect, promised a more searching review of a circuit court’s admission of expert testimony.
In his 2011 article, Professor Blinka concluded that it was too early to know the effect Daubert will have on litigation in Wisconsin courts. He noted that, among states adopting the Daubert standard, “jurisdictions diverge between strict and lax scrutiny of expert testimony.”54
Initial returns suggest that the new Daubert standard has not created the sea change some expected from the enactment of Act 2, and the fractured supreme court in Seifert makes it difficult to predict how the supreme court will assess the admission of expert testimony. The sample of cases taken to the court of appeals (which, of course, might not be the best cases from which to draw broad conclusions) suggest that circuit courts are exercising their discretion and declining to exclude experts.55 It would be dangerous to conclude from this that Wisconsin, in Professor’s Blinka’s words, is a “lax” scrutiny jurisdiction. Indeed, it would appear that at least five justices would welcome a more searching assessment in the circuit courts and perhaps even a more searching appellate review of any alleged “abuse.”
As discussed by the court of appeals in Giese, the Daubert standard is flexible, but it has teeth. The relevant factors apply, in varying degrees, in every case involving expert testimony. Courts, not as factfinders, must look to the testimony and determine whether it has validity – not to the exclusion of other evidence or opinions but only as a threshold matter. Courts should have in mind the concerns protected by Wis. Stat. section 904.03, including unfair prejudice, waste of time, and juror confusion, when assessing the validity of the testimony. Nonetheless, as a general matter, if the witness is qualified, and the opinions are reliable and relevant to a fact in issue, the court should admit the testimony and rely on aggressive cross-examination and appropriate instructions to the jury to address any unfairness or confusion.
Daubert in Wisconsin, however, does have some teeth, even if, at first blush, they appear to be baby teeth. Otherwise, what was the purpose in passing Act 2? Under Daubert, when testimony is offered under the cloak of “science” – medicine, chemistry, physics, and so on – it must be supported by the scientific method. Circuit courts should be diligent in assessing the methodology, reliability, and validity of such opinions and readily exclude them when they are found lacking.
Testimony founded on experience should also be excluded when the expert’s qualifications do not support the offered opinion, or more likely, its breadth. The recent Seifert case suggests that a thorough analysis of methods and principles is required even when the expert testimony is based on experience.
The word “gatekeeper” is often used to describe the role of courts in applying the Daubert standard. The suggestion brings to mind a fortress, protected by immense walls, a moat, and a thick impenetrable gate, opened infrequently and only for the most trustworthy of guests.
Although I suspect some would welcome such a “medieval” approach in assessing expert testimony, the cases applying Daubert suggest that courts tend to view their role more appropriately as a “check point.” Does the applicant seeking admission – to litigation or for admission into evidence for consideration by the jury – have the proper credentials? Is the person whom he or she purports to be? Should the person be there? That is, does she have appropriate business inside, or is he a charlatan seeking admission to do mischief?
So long as the credentials check out, and the expert will not frustrate the work of the factfinder to find the truth, Wisconsin courts will likely admit the opinion testimony despite efforts from the opponent to exclude the testimony in the name of Daubert.
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What’s the most important advice you can give a new litigator?
Be the truthgiver! When I was a baby lawyer, I attended a CLE by Judge Ralph Adam Fine on trial advocacy. Judge Fine argued that juries believe that the lawyers know the truth of the case and believe, consciously or subconsciously, that one of the lawyers must be lying. Lawyers should strive to be the lawyer the jurors trust to help them find the truth. Credibility is equally important to judges when considering a lawyer’s written and oral advocacy. Accordingly, everything you do in the courtroom must enhance your personal credibility as the truthgiver.
To be the truthgiver, don’t mislead or exaggerate. Don’t be hostile, sarcastic, or angry. Stipulate to matters that can readily be resolved or don’t matter, and focus like a laser on the issues that need to be tried. Prosecute the truth with passion so that the decisionmaker inevitably concludes that justice demands your client’s victory.
Michael J. Aprahamian, Waukesha County Circuit Court, Waukesha.
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1 Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).
2 State v. Giese, 2014 WI App 92, ¶ 17, 356 Wis. 2d 796, 854 N.W.2d 687 (quoting State v. Kandutsch, 2011 WI 78, 26, 336 Wis. 2d 478).
3 See Daniel D. Blinka, The Daubert Standard in Wisconsin: A Primer, Wis. Law. (March 2011).
4 Seifert v. Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816.
5 Giese, 2014 WI App 92, ¶ 18, 356 Wis. 2d 796; Daubert, 509 U.S. at 597 n.7.
6 Daubert, 509 U.S. at 592-93.
10 Id. at 594.
13 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999).
15 Daubert, 509 U.S. at 595.
16 Fed. R. Evid. 702 advisory committee note (2000 amendment).
17 Id. (citing Daubert v. Merrell Dow Pharm. Inc., 43 F.3d 1311, 1317 (9th Cir. 1995)).
18 Id. (citing General Elec Co. v. Joinder, 522 U.S. 136, 146 (1997)).
19 Id. (citing Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996)).
20 Id. (citing Sheehan v. Daily Racing Form Inc., 104 F.3d 940, 942 (7th Cir. 1997), and Kumho Tire, 526 U.S. at 152).
21 Id. (citing Kumho Tire, 526 U.S. at 151).
22 Kumho Tire, 526 U.S. at 152.
23 Giese, 2014 WI App 92, ¶ 19, 356 Wis. 2d 796 (quotingTamraz v. Lincoln Elec. Co., 620 F.3d 665, 671 (6th Cir.2010) (“[N]o matter how good experts’ ‘credentials’ may be, they are ‘not permitted to speculate.’” (citation omitted)); Blinka, supra note 3, at 60 (“[c]oursing through Daubert lore is a palpable fear of ipse dixit (‘because I said so’) testimony” (citation omitted)); Ralph Adam Fine, Fine’s Wisconsin Evidence 34 (Supp.2012) (“Under Daubert, the testimony of the witness [is to be] ‘more than subjective belief or unsupported speculation.’” (quoting Daubert, 509 U.S. at 590))).
24 State v. Alger, 2015 WI 3, 360 Wis. 2d 193, 858 N.W.2d 346.
25 Seifert v. Balink, 2015 WI App 59, 364 Wis. 2d 692, 869 N.W.2d 493.
26 State v. Smith, 2016 WI App 8, 366 Wis. 2d 613, 874 N.W.2d 610.
27 Id. ¶ 6.
28 Id. ¶ 9.
30 State v. Chitwood, 2016 WI App 36, ¶ 17, 369 Wis. 2d 132, 879 N.W.2d 786.
31 Id. ¶¶ 32, 34.
32 Id. ¶ 32.
33 Id. ¶ 33.
34 Id. ¶¶ 36-44.
35 Id. ¶¶ 46, 49.
36 Bayer v. Dobbins, 2016 WI App 65, 371 Wis. 2d 428, 885 N.W.2d 173.
37 Id. ¶ 7.
38 Id. ¶¶ 8-13.
39 Id. ¶¶ 15-17.
40 Id. ¶¶ 17, 18.
41 Id. ¶¶ 23-25.
42 Id. ¶ 30.
43 Id. ¶ 36 (citation and quotation omitted).
44 Seifert, 2017 WI 2, ¶¶ 66-86, 121-122, 372 Wis. 2d 525.
45 Id. ¶¶ 96, 128, 136.
46 Id. ¶¶ 169, 170.
47 Id. ¶¶ 175, 189.
48 Id. ¶ 194.
49 Id. ¶ 224.
50 Id. ¶¶ 225-228, 242-234.
51 Id. ¶¶ 235-237.
52 Id. ¶¶ 272-274.
53 Id. ¶ 263 n.3.
54 Blinka, supra note 3.
55 An exception is a decision by the author excluding defense experts in an OWI matter involving an alleged problem in the testing of ethanol in blood at the state lab, a theory identified as the “jagged hump” problem. See Andrew Mishlove, Cause for Concern with State’s Blood Tests, Wis. Law J., Feb. 11, 2014. The author’s decision was affirmed in an unpublished decision. State v. Garba, No. 2013CT951 (Waukesha Cty. Cir. Ct. March 3, 2015), aff’d, No. 2015AP 1243-CR, 2016 WL 5794346 (Wis Ct. App. Oct. 5, 2016).