Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (I)

Two recent cases show the discretion a trial court holds on whether to hold a formal Daubert hearing, in United States v. Lopez-Martinez, 543 F.3d 509 (9th Cir. Sept. 10, 2008) (No. 07-10174), and In re Scrap Metal Antitrust Litigation, 527 F.3d 517 (6th Cir. May 15, 2008) (No. 06-4511)

While the trial court has a well-recognized “gatekeeping” role in admitting expert testimony, what discretion does the court have on whether to hold a formal Daubert hearing? See, e.g., Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (noting “the trial judge’s general ‘gatekeeping’ obligation — applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge”). Two recent cases demonstrate the district the trial court has a substantial amount of discretion on whether to hold a formal hearing.

In the first case, the defendant Lopez-Martinez was charged with smuggling aliens into the United States after leaving one member of his party behind who died in the desert. During the trial, the government called a border patrol agent to testify as an expert concerning the “patterns and methods common among smugglers in the Yuma area.” Lopez-Martinez, 543 F.3d at 514. After his conviction, for the first time on appeal he claimed the trial court erred in admitting the expert testimony without holding a Daubert hearing to determine the reliability of the expert testimony under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

The Ninth Circuit reviewed the issue for plain error, since no trial objection was made, and no error was found. The circuit explained that under FRE 702 the trial court retained a “broad latitude” to decide “how to determine reliability.” Lopez-Martinez, 543 F.3d at 514 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42 (1999) (“[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.”). The circuit observed that the agent’s testimony about “patterns and methods common among smugglers” was “neither rocket science nor complex statistical modeling” and there was no need for the trial judge to conduct a formal Daubert hearing or to mandate that the agent provide a detailed description of each step in logical chain the agent used to reach his conclusions. The record showed that the trial court could determine the agent's reliability from the agent's explanation of his methods and his experience, which was sufficient under FRE 702.

In the second case, the issue was squarely presented before the trial court. The case involved a civil antitrust conspiracy concerning scrap metal. An expert economist testified about damages resulting from a restraint on competition during an eight year period alleged against a scrap metal generator and other brokers and dealers in scrap metal. The parties addressed the admissibility of the expert testimony in several “voluminous” filings. Before trial court decided to allow the expert to testify. No formal Daubert hearing was held. After the jury returned a judgment exceeding $20 million against the defense, on appeal the defendant challenged the trial court’s failure to hold a formal Daubert hearing. The Sixth Circuit found no error was committed by the failure to hold a formal Daubert hearing. The circuit noted that the trial court had an extensive “record on the expert testimony” and the Daubert issue had been “fully briefed by the parties” during the pre-trial hearing concerning the admissibility of the expert testimony: “We conclude that the court accurately considered the key issues, found the testimony to be sufficiently reliable by stating that [the expert’ ‘provided reasoned explanations’ and ‘presented viable arguments’ for his calculations, and concluded that Columbia’s attacks were most appropriate for cross-examination.” Scrap Metal, 527 F.3d at 532. The circuit also noted the deference a reviewing court gives to the trial court, which “applies to the way in which the court assesses admissibility as well as the court’s ultimate decision of admissibility.” Scrap Metal, 527 F.3d at 528 (citing Kumho Tire Co., 526 U.S. at 152-53).

These recent cases illustrate the discretion that the trial court holds on the manner in which it fulfills its gatekeeping role. In some cases, a formal Daubert hearing may be necessary. In many cases it will not as long as the record demonstrates that the trial court properly decided the issues concerning the admission of the expert testimony. Additionally, the proponent of the expert testimony holds the burden to show the expert foundational requirements are met and therefore has an interest in creating an appropriate record for review on appeal.

For other cases noting the discretion of the trial court on whether to hold a Daubert hearing, see Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (II), (III), (IV), and (V).

Federal Rules of Evidence