Readers may recall we posted about a Ninth Circuit case involving a worker at a paper mill who claimed asbestos exposure from various products used there.  The trial court admitted testimony from three experts over defendants’ objections, without conducting an adequate Daubert review, resulting in a trial verdict of $10.2 million. The Ninth Circuit reversed the trial verdict, and the panel remanded the case to the trial judge for a new hearing and trial. See Henry Barabin. et al. v. AstenJohnson Inc., No. 10-36142 (9th Cir.) The Ninth Circuit then agreed to hear the case en banc, and our guess was that the court was thinking more about the fact that the panel remanded the case for a new trial in light of the court’s 2003 decision in Mukhtar v. California State University, 299 F.3d 1053 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003).

The court has now issued its en banc opinion, upholding the reversal of the verdict; agreeing with the original panel that the trial court had conducted an improper Daubert review; and rejecting two key arguments that plaintiffs made in trying to save the case. Plaintiffs, first, wanted a remand for purposes of the Daubert hearing only. They argued that an appeals court did not have the authority to exclude the experts on its own (even after the inadequate job by the trial judge) and must remand that decision. The en banc court disagreed, said that it did have such authority, although here the record was insufficient to allow the panel to make that decision. The en banc court thus held that a reviewing court has the authority to make Daubert findings based on the record established by the district court, and overruled Mukhtar v.California State University, 299 F.3d 1053, 1066 n.12 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003), to the extent that it required that Daubert findings always be made by the district court.

Second, plaintiffs argued that on remand the trial judge should get another shot at a Daubert decision without necessarily holding a complete new trial. But, the court held that if expert admissibility error occurred and was prejudicial, the only recourse was an entire new trial. Thus, the plaintiffs now have to first get past a real Daubert analysis, and if they do, then win an entire new trial in front of a new jury.

We have argued here that to remand for an evidentiary hearing post-jury verdict undermines Daubert's requirement that a reliability determination must be made by the trial court before the jury is permitted to hear the evidence. Otherwise, instead of fulfilling its mandatory role as a gatekeeper, the district court clouds its duty to ensure that only reliable evidence is presented. A post-verdict analysis does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the Supreme Court envisioned in Daubert and its progeny. The rule recognized here gives trial courts a real and important incentive to be proper, active gatekeepers.

(Note that my partner Mark Behrens was asked to submit an amicus brief on behalf of the Coalition For Litigation Justice, Inc., Chamber Of Commerce Of The United States Of America, NFIB Small Business Legal Center, American Insurance Association, Property Casualty Insurers Association Of America, American Chemistry Council, And National Association Of Manufacturers.)