Reversal Based On "Abdication" Of Gatekeeping Role On Expert Testimony

Ninth Circuit en banc reverses jury verdict based on the trial court's failure to make findings concerning the reliability and relevance of expert testimony under Daubert and FRE 702; majority vacates the judgment and orders a new trial; dissent would remand to the trial court to determine the admissibility of the expert testimony before completing the harmless error analysis, in Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. Jan. 15, 2014) (Nos. 10-36142, 11-35020) (en banc)

Before expert testimony may be admitted, the trial court must determine that it is reliable and relevant under Daubert and FRE 702. The Ninth Circuit en banc recently considered the consequences and remedy when a trial court fails to fulfill this gatekeeping role.

Trial Court Proceedings: "Allowing Each Party To Try Its Case To The Jury"

In the case, five years after plaintiff Barabin retired from a paper mill, he “was diagnosed with pleural malignant epithelial mesothelioma, “a rare cancer that affects the tissue surrounding the lungs.” In a lawsuit, he claimed that the cancer was caused by his exposure to asbestos during his employment at the mill because asbestos was used in the process of drying paper slurry after it had been dried. The trial turned out to be “a battle of the experts.” Before trial, the company moved to exclude the plaintiff’s experts contended the first expert (Cohen) was unqualified and the second (Millette) used a methodology that was unreliable. Initially, the trial court excluded Cohen’s testimony based on “dubious credentials and his lack of expertise with regard to dryer felts and paper mills.” For expert witness Millette, notwithstanding concerns about “the marked differences between the conditions" of his tests and the "actual conditions" at the defendant's paper mill, the trial court allowed his testimony provided that the jury was informed his tests were “performed under laboratory conditions which are not the same as conditions" at the defendant's paper mill. Barabin, 740 F.3d at _. There was also a dispute on the application of an “every exposure” theory. The trial court concluded:

There is obviously a strong divide among both scientists and courts on whether such expert testimony is relevant to asbestos-related cases. In the interest of allowing each party to try its case to the jury, the Court deems admissible expert testimony that every exposure can cause an asbestos-related disease.

Barabin, 740 F.3d at _. The plaintiff requested a Daubert hearing concerning Cohen’s testimony. However, the trial court declined the request but decided to allow his testimony. The jury returned a verdict for the plaintiff, awarding damages of $10,200,000. At a reasonableness hearing, the trial court entered judgment for the plaintiff in the amount of $9,373,152.12. On appeal, a panel concluded that the trial court failed to make essential relevancy and reliability findings before admitting the testimony. Barabin v. AstenJohnson, Inc., 700 F.3d 428 (9th Cir. 2012). The Ninth Circuit decided to rehear the case en banc.

Ninth Circuit En Banc Review: Abdicated Trial Court Role

The en banc court concluded that the trial court "abdicated its gatekeeping responsibility" by "by failing to make appropriate determinations under Daubert and Federal Ruleof Evidence 702.

On the first expert witness, the trial court did not asses or make "findings regarding, the scientific validity or methodology of Mr. Cohen’s proposed testimony" and therefore "failed to assume its role as gatekeeper with respect to Mr. Cohen’s testimony." On the second witness, the trial court "delegate[ed]" its gatekeeping role to the jury "by giving each side leeway to present its expert testimony to the jury." Instead, the trial court should have determined whether the testimony was relevant and reliable under Daubert.

Majority Remedy: Order New Trial

While the en banc court agreed that trial court error had been committed, the court disagreed on the remedy. In the civil case, "the burden [is] on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.” Barabin, 740 F.3d at _ (quoting Obrey v. Johnson, 400 F.3d 691, 700 (9th Cir. 2005) (citation omitted)).

The majority concluded that the error was not harmless:

As the beneficiaries of the erroneously admitted evidence, the Barabins fail to rebut the presumption of prejudice. Indeed, they admit they cannot win without this expert testimony. Prejudice is at its apex when the district court erroneously admits evidence that is critical to the proponent’s case. The improper admission of the expert testimony severely prejudiced [defendants] AstenJohnson and Scapa because the Barabins’ claim depended wholly upon the erroneously admitted evidence. Given these circumstances, there is no doubt the error was not harmless.

Barabin, 740 F.3d at _ (footnote omitted). According to the majority, once the error was not harmless, a new trial was required. As the majority explained:

When the district court has erroneously admitted or excluded prejudicial evidence, we remand for a new trial. We do so even if the district court errs by failing to answer a threshold question of admissibility. We have no precedent for treating the erroneous admission of expert testimony any differently.... Due to the district court’s abdication of its role as gatekeeper and the severe prejudice that resulted from the error, the appropriate remedy is a new trial.

Barabin, 740 F.3d at _ (citations omitted). The majority also overruled prior precedent, if necessary, "to the extent that it required that Daubert findings always be made by the district court." Barabin, 740 F.3d at _ (overruling Mukhtar v. California State University, 299 F.3d 1053, 1066 n.12 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003)).

Dissent: Recommended Remanding For Admissibility Determination

Circuit Judge Jacqueline H. Nguyen concurred that the trial court erred in failing to make the Daubert findings of admissibility and that the record was insufficient to determine whether the expert testimony was admissible. She dissented, however, on the remedy. In her view, the majority

analysis [of harmless error review] is seriously flawed because it conflates a district court's gatekeeping error with a district court's erroneous determination of admissibility. Here, assuming inadmissibility—a question we cannot answer at this juncture—the majority applies harmless error review and concludes that a new trial is needed because the “improper admission of the expert testimony severely prejudiced [defendants].” The majority thus unnecessarily burdens both the parties and the judicial system by ordering a new trial without having a sufficient basis to determine whether the disputed expert testimony was admissible.... [Instead, the dissent] would conditionally vacate the judgment and remand with instructions to the district court to conduct a Daubert determination in the first instance.”

Barabin, 740 F.3d at _ (Nguyen, J., concurring and dissenting).


The Barabin case underscores the gatekeeping role that must be fulfilled before expert testimony may be admitted. By admitting the expert testimony without separately determining its reliability and relevance, the trial court failed to screen the expert testimony before it was considered by the jury. While the majority and dissent agreed that error was committed by the trial court, they disagreed on whether a new trial was required.


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