On October 6, 2014, the United States Supreme
Court denied a writ of certiorari
regarding the Ninth Circuit’s January 15, 2014, decision in Estate of Henry Barabin v. AstenJohnson,
Inc., 740 F.3d 457 (9th Cir. 2014). See Estate of Henry Barabin v. AstenJohnson,
Inc., 2014 WL 1496421 (2014). The
Ninth Circuit’s January 15, 2014, decision had reversed the district court’s
admission of expert testimony presented by the plaintiffs at trial, then
remanded for a new trial. The court held
that the district court had abused its discretion by admitting the expert
testimony without first finding it relevant and reliable under Rule 702 of the
Federal Rules of Evidence and Daubert.
But the Ninth Circuit did not stop with a
reversal and remand. Before remanding,
the Ninth Circuit opined that an appellate reviewing court should have the
authority to make Daubert findings
regarding relevance and reliability, as well as reverse a judgment based on
those findings, relying on the district court record:
If the reviewing court decides the record is
sufficient to determine whether expert testimony is relevant and reliable, it
may make such findings. If it
“determines that evidence [would be inadmissible] at the trial and that the
remaining, properly admitted evidence is insufficient to constitute a
submissible case[,]” the reviewing court may direct entry of judgment as a
nature of law.
Barabin, 740
F.3d at 467 (quoting Weisgram v. Marley
Co.,, 528 U.S. 440, 446-47 (2000)).
The court ultimately declined the appellants’ request
that the court enter judgment in their favor because the court found the record
before it to be too sparse to determine if the excluded expert testimony was
relevant and reliable. But one can
expect that the Ninth Circuit’s ruling and the Supreme Court’s writ refusal
might be argued as support for an appellate court’s ability to now provide
direct relief and avoid the time and expense of a new trial on remand when the
appellate court finds that the district court erroneously admitted expert
testimony. If followed by other
circuits, the Ninth Circuit and Barabin
might one day be cited for the start of a new era in admission of expert
testimony with appellate courts serving a role as an additional – or at least a
backup – Daubert gatekeeper.
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