The Ninth Circuit Court of Appeals has determined that a district court abused its discretion by failing to conduct a Daubert hearing when asked to reconsider the credentials of plaintiffs’ expert witness and thus reversed a $9.37-million jury award for injury allegedly caused by occupational exposure to asbestos. Barabin v. AstenJohnson, Inc., Nos. 10-36142, 11-35020 (9th Cir., decided November 16, 2012). The court remanded the case for a new trial, despite the recommendation of a concurring judge who called for the remand to be limited to a Daubert hearing and to allow the original judgment to be re-entered if the expert testimony were found reliable.

The Ninth Circuit noted that under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), courts gauge whether expert testimony complies with Federal Rule of Evidence 702 by determining if the proffered testimony is reliable and trustworthy, that is, whether it is based on “scientific validity.” The district court initially excluded the testimony of one expert, explaining that his credentials were dubious and he lacked expertise with the specific asbestos-containing products at issue. But then during a pre-trial conference, the lower court reversed its decision without further assessing the reliability of the testimony, finding that the plaintiffs’ response to the motions in limine clarified his credentials, “including that he had testified in other cases.”

According to the Ninth Circuit, “[o]nce presented with the additional information in the [plaintiffs’] response to the motion in limine, at a minimum the district court was required to assess the scientific reliability of the proffered expert testimony.” Instead, the district court “left it to the jury to determine the relevance and reliability of the proffered expert testimony in the first instance.”