On January 27, 2011, Gov. Walker signed into law 2011 Wisconsin Act 2, which contained numerous civil liability reforms supported by the Wisconsin Civil Justice Council. One of the most important pieces of this legislation was the adoption of the Daubert standards for the admission of expert opinion evidence, bringing Wisconsin in line with the entire federal system and a majority of states.

Thanks to Act 2, Wis. Stat. § 907.02 now requires experts to be qualified by knowledge, skill, experience, training, or education. Testimony must 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.

While it is clear that Daubert is now the absolute standard for expert testimony going forward, a recent court of appeals decision highlights the fact that there are still a limited number of cases in which it may not be applied because those cases were ongoing before the new law (Act 2) went into effect.

In State v. Michael Alger, the District III Court of Appeals ruled that the Daubert standard need not be applied in Alger’s petition for discharge from commitment to a mental health facility as a sexually violent person under Wis. Stat. Ch. 980, because the current decision was a continuation of proceedings commenced prior to the effective date of Act 2.

Judge Stark, writing for the court held, “Although Alger’s discharge petitions were filed after [February 1, 2011], neither petition commenced a new action. Instead, the discharge proceedings were a continuation of the underlying commitment proceedings, which were commenced in 2004 when the original petition for commitment was filed. Consequently, § 907.02(1) does not apply to Alger’s discharge petitions.”

In analyzing whether the post-February 2011 petitions fell under the court’s “continuing authority” or were new actions, Stark examined the underlying statute. “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. Filing a discharge petition is merely another step in that existing lawsuit—it does not begin a new lawsuit or legal process.”

Alger also argued that failing to apply the Daubert standard to his discharge proceedings violated his right to equal protection by treating him differently from other petitioners. Applying a deferential rational basis standard, the court held that it was rational for the legislature to apply the new standard only prospectively, and thus treat parties in pending cases differently, because “the legislature had to choose some date for the enactment to take effect.” (Internal quotes omitted, emphasis in original.)

The court’s decision simply means that the Daubert standards were not in effect before this case began. The Legislature explicitly stated that the Daubert standards were only to apply to future cases when the law went into effect. Because this case had begun prior to Act 2 going into effect, the trial court was correct in not applying the Daubert standards to this particular case.