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.