The Ninth Circuit recently reiterated the critical importance of a district court’s gatekeeper function with regard to the admissibility of expert testimony under Daubert.  In Barabin v. AstenJohnson (pdf), the court concluded that the district court abused its discretion in admitting expert testimony regarding causation (whether Barabin’s mesothelioma was caused by occupational exposure to asbestos) largely because the district court did not conduct a Daubert hearing as the defendants’ requested.  Having done so, the Ninth Circuit concluded that it was bound by precedent to remand the matter for a new trial.  Two panel members wrote a concurring opinion on that latter point, expressing disagreement with Ninth Circuit precedent requiring a new trial in cases where expert testimony is improperly admitted.  Were it not for that precedent, these judges would have conditionally vacated the district court’s judgment and remanded the matter to the district court to conduct a hearing to properly determine if the expert testimony was admissible under Daubert.  If so, then the concurring judges would permit the district court to re-enter the judgment rather than conduct another lengthy trial.  That approach is patently logical:  no purpose is served by requiring a new trial if, after a proper Daubert hearing, the expert testimony at issue is deemed reliable and therefore admissible.  

BACKGROUND

Henry Barabin was exposed to asbestos while working at the Crown-Zellerbach paper mill, which used dryer felts containing asbestos supplied by AstenJohnson and Scapa Dryer Fabrics (Defendants).  In November 2006, Barabin was diagnosed with pleural malignant epithelial mesothelioma, which is caused by respirable asbestos.  Barabin sued the defendants and the matter proceeded to trial.  Prior to trial, Defendants filed a motion in limine to exclude expert testimony that Barabin’s mesothelioma was caused by occupational exposure to asbestos based on the expert’s alleged lack of expertise and required credentials.  The district court initially granted the motion, but then reversed its ruling after Barabin filed a motion for reconsideration in which he purportedly “did a much better job of presenting” the factual basis for the expert’s proposed testimony.  Following deliberations, the jury awarded in excess of $10 million.   Defendants appealed, asserting that the district court abused its discretion in admitting the expert testimony.

The Ninth Circuit vacated the judgment and remanded for a new trial.

ANALYSIS

The Ninth Circuit reviews evidentiary rulings and a district court’s denial of a motion for a new trial for abuse of discretion.

  • In its role as gatekeeper, the district court determines the relevance and reliability of expert testimony and its subsequent admission or exclusion.
  • In deciding whether to admit expert testimony, district courts are to consider whether the scientific theory has been tested, whether the theory has been subjected to peer-review, whether there is known or potential error, and whether the theory is generally accepted in the relevant scientific community.
  • Here, rather than making the required determinations, the district court (according to the Ninth Circuit) abused its discretion by leaving it to the jury to determine the relevance and scientific reliability of the testimony in the first instance.
  • Under Ninth Circuit precedent (Mukhtar v. Cal. State Univ., 299 F.3d 1053 (9th Cir. 2002), the Ninth Circuit in this instance was required to vacate the district court’s judgment and remand for a new trial.

Ninth Circuit Judges Graber and Tashima wrote a concurring opinion expressing disagreement with the Ninth Circuit’s holding in Mukhtar that the panel must vacate and remand for a new trial in these circumstances.  But for Mukhtar, Judges Graber and Tashima would have conditionally vacated the district court’s judgment and remanded the matter to the district court to conduct a hearing to properly determine if the expert testimony was admissible under Daubert.  If so, then the concurring judges would permit the district court to re-enter the judgment.  That approach is not permitted by Mukhtar, which instead holds that district court judges cannot be permitted to engage in such a post-trial analysis because they may succumb to “post-hoc rationalization.”  Judges Graber and Tashima “do not share Mukhtar’s lack of faith in our district courts