Daubert’s teeth still missing

State v. Anthony Jones, 2018 WI 44, 5/4/2018, affirming an unpublished summary order, 2015AP2665, case activity

We noted in our post on the grant of Jones’s PFR that at the time there were “exactly zero Wisconsin appellate cases holding expert testimony inadmissible under Daubert.” That’s still true.

Jones sought to exclude from his ch. 980 commitment trial testimony about two actuarial instruments: the RRASOR and the MnSOST-R. He argued they were unreliable under Daubert because they are outdated, were constructed using questionable means, and have been largely abandoned by experts in the field. After two days of testimony the circuit court admitted the instruments, and the court of appeals affirmed.

Now, the supreme court also affirms. The four-justice majority opinion demonstrates pretty well what sort of scrutiny our courts are willing to give evidence offered by experts: after summarizing the facts and reciting uncontroversial quotations about the Daubert test, the court devotes three paragraphs to analyzing the circuit court’s decision. That analysis consists of essentially reciting the Daubert standard and saying the facts here meet it–with no reference to the parties’ arguments and no real explanation of how the instruments demonstrate their purported reliability. (¶¶34-36).

The three-justice concurrence takes no issue with the substance of the majority opinion, but instead criticizes its author for citing her own past concurring opinions–a practice it charges “raises concerns over the soundness and scholarship of this opinion” that it nevertheless joins.