Expert Witness Qualification Process Is “Necessarily Different” In A Bench Trial Than A Jury Trial

In bench trial, application of gatekeeping role for expert evidence is different than in jury trial; bench court could admit expert testimony and later decide whether the Daubert requirements have been met, in In re Maurice J. Salem, 465 F.3d 767, 777 (7th Cir. 2006)

Is an expert witness called in a bench trial considered differently than at a jury trial? The Seventh Circuit noted it is “necessarily different.”

In Salem, a dispute arose concerning the ownership of a rental house between two brothers, the debtor Salem and creditor Neshewat. The creditor filed a state-court judgment for $166,884.86 which was recorded. The debtor filed a chapter 7 bankruptcy petition in New York. After the judgment was deemed nondischargeable, and the petition was terminated, the debtor filed a Chapter 13 petition in the Northern District of Illinois. The bankruptcy court declined the Chapter 13 plan after determining there was sufficient value to secure the creditor’s claim. During the bankruptcy court proceedings, the court allowed an expert appraiser to testify about the value of the property for the creditor. The bankruptcy court noted that the gatekeeping requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) applied “with less force in the context of a bench trial,” noting “I can accept the evidence. And if I find that it’s not well grounded by experience and expertise in the witness, I can ignore that. The gatekeeping function that Daubert talks about is most pointedly at issue in a jury trial where a jury might be misled by an expert who doesn’t have sufficient qualifications.” Salem, 465 F.3d at 777.

On appeal, the Seventh Circuit affirmed the admission of the expert appraiser’s testimony. The circuit agreed that “the court’s gatekeeping role is necessarily different” during a bench trial. In particular, “Where the gatekeeper and the factfinder are one and the same -- that is, the judge -- the need to make such decisions prior to hearing the testimony is lessened.” Salem, 465 F.3d at 777 (citing United States v. Brown, 415 F.3d 1257, 1268-69 (11th Cir. 2005) (“Those barriers are even more relaxed in a bench trial situation, where the judge is serving as factfinder and we are not concerned about ‘dumping a barrage of questionable scientific evidence on a jury.’ There is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself.”) (quoting Allison v. Mc-Ghan Med. Corp., 184 F.3d 1300, 1310 (11th Cir. 1999) (noting the jury “would likely be even less equipped than the judge to make reliability and relevance determinations and more likely than the judge to be awestruck by the expert’s mystique”)).

The circuit explained the differences in fulfilling the gatekeeping role under Daubert. In a jury trial, the gatekeeper must determine whether the expert testimony may be heard by the jury as factfinder. In a bench trial, “the court can hear the evidence and make its reliability determination during, rather than in advance of, trial. Thus, where the factfinder and the gatekeeper are the same, the court does not err in admitting the evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702.” Salem, 465 F.3d at 777.

The circuit also concluded the expert was qualified based as a state certified appraiser for 15 years, his specialization in residential appraisals, and more than 4,000 appraisals he had completed, with most in the same county as the subject property. The expert testified that the appraisal was based on two visits to the property and a quantitative sales comparison analysis using the Fannie Mae standard form.

The Salem case shows that while the same standards of admissibility to admit expert testimony under Daubert and FRE 702 apply, the manner in which they are considered are different in a bench trial.

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