The Wisconsin legislature enacted a comprehensive tort reform package in early 2011. Part of the legislation changed Wisconsin’s evidence rules governing the admissibility of witness testimony on scientific, technical or specialized subjects. Wisconsin law now aligns with federal standards, which means that Wisconsin practitioners will have to identify any expert opinions they may need in a particular case and ensure that a suitable witness has been selected to render that opinion.
Under the old rules, a witness could offer an expert opinion as long as the judge determined that the witness was an expert in a particular field based on the person’s knowledge, skills, experience, training, or education. The old rule allowed lay witnesses with extensive practical work experience to testify about scientific, technical or specialized subjects. This meant that such a witness did not need degrees or certifications to qualify as an expert witness, and the testimony need only be relevant to be presented to a jury.
The new rules subject the bases for expert opinions to greater scrutiny. In addition to determining whether a witness is qualified to give an opinion on technical matters, a judge must now determine whether the expert’s testimony is based on sound data and methods. This evaluation also entails an assessment of whether the witness’s opinion is based on adequate facts and that the facts were properly used in forming the opinion. Under the new rule, it is important that a witness have the ability to articulate the principles underlying her opinion and the process she went through in forming her opinion.
These new requirements may lead some recovery practitioners to more closely scrutinize a potential witness’s educational background. Most importantly, when an expert opinion is needed, one must now be certain that the expert can state and explain the principles, facts and methods behind the opinion.