The question of whether an expert’s testimony meets standards for reliability is generally considered to be the province of the trial court. Accordingly, if a trial court fails to conduct a reliability inquiry, appeals courts will remand for further evidentiary proceedings.
In Estate of Barabin v. AstenJohnson, No. 10-36142 (9th Cir. Jan. 14, 2014), however, the Ninth Circuit, in an en banc decision, held that the appeals court can make a reliability finding in the first instance. Although the court found that the record in the case before it was insufficient for the court to make such a determination, the ruling puts pressure on parties to ensure that a proper reliability analysis is performed in the trial court. If the trial court does not conduct the appropriate inquiry, the unsuccessful party may get a second bite at the apple on appeal.