In related cases that could have implications for intellectual property, consumer safety and complex litigation where resolution of the dispute relies on factually intensive medical or scientific expert testimony, the Ninth Circuit Court of Appeals has decided to rehear an asbestos injury case en banc to consider whether trial court error in admitting expert testimony without a Daubert hearing requires the case to be retried in its entirety or a new trial only if the Daubert determination on remand shows that the testimony was unreliable. Barabin v. AstenJohnson Inc., No. 10-36142 and No. 11-35020 (9th Cir., rehearing order March 25, 2013).

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), imposes on trial courts a “gatekeeping” function whereby they must conduct a hearing to consider whether the challenged testimony of a party’s expert witness is relevant and reliable and therefore admissible at trial.

A Ninth Circuit panel decided in November 2012 that the district court abused its discretion by admitting expert testimony without conducting a Daubert hearing or making relevance and reliability determinations. The court remanded the matter for a new trial, thus reversing a $9.4-million award to the widow of the asbestos-exposed defendant. Two of the three panel judges concurred to explain that they disagree with the rule in Mukhtar v. California State University, 299 F.3d 1053 (9th Cir. 2002), amended by 319 F.2d 1073 (9th Cir. 2003), requiring that the judgment be vacated and the case be remanded for a new trial in this instance. Without Mukhtar as controlling precedent, the concurring judges would have conditionally vacated the judgment and remanded with instructions to make a new Daubert determination. And only if the court finds the testimony unreliable, would a new trial be required. Additional information about the panel’s disposition of the case appears in the November 29, 2012, issue of Shook, Hardy & Bacon’s Product Liability Litigation Report.