County of Marathon v. Paul R. DeBuhr, District 3, 2011AP2959, 10/2/12
court of appeals decision (1-judge, ineligible for publication); case activity
¶13 At the outset, we observe that DeBuhr was given the opportunity to raise his concerns about Hackworthy’s testimony and retrograde extrapolation in the circuit court but failed to do so. DeBuhr never responded to the County’s brief in support of admitting the testimony and never offered any argument in support of his earlier assertion that he believed retrograde extrapolation was “not proper science.” As a result, the circuit court’s admissibility determination was made without any input from DeBuhr. The County, in its appellate brief, argues DeBuhr’s failure to raise his arguments before or during the admissibility hearing constituted a concession that the testimony was admissible. On appeal, DeBuhr failed to file a reply brief in response to this argument. Therefore, it is conceded. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are deemed conceded).
¶14 However, even on the merits, we conclude the circuit court properly exercised its discretion by admitting the testimony. As the County argued in the circuit court and on appeal, when determining the reliability of expert testimony, a court is permitted to take judicial notice of scientific methods, techniques, and theories that are firmly established. See Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 592 n.11 (1993). Here, the circuit court determined retrograde extrapolation was reliable, and therefore admissible, because it had been used by litigants in Wisconsin courtrooms for decades. See, e.g., Fonte, 281 Wis. 2d 654, ¶18. We conclude the circuit court offered a reasoned explanation as to why it determined retrograde extrapolation was reliable and admissible pursuant to Wis. Stat. § 907.02.[3]
