Experts — Gatekeeper Role Largely Disappears in Bench Trials

From United States v. Apex Oil Co., 2008 U.S. Dist. LEXIS 59964 (S.D. Ill. July 28, 2008):

In the previous orders, the Court noted that other courts have held that the Rule 702 inquiry may vary slightly in the case of a bench trial. As the Seventh Circuit has held:

It is not that evidence may be less reliable during a bench trial; it is that the court's gatekeeping role is necessarily different. 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.... That is not to say that the scientific reliability requirement is lessened in such situations; the point is only that 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.

In re Salem, 465 F.3d 767, 776-777 (7th Cir. 2006). See also In re Fedex Ground Package System, Inc., Employment Practices Litigation, 2007 WL 3027405 (N.D.Ind. 2007) (Miller, C.J.) (holding that there is "little reason to think a judge can dispassionately scrutinize an expert's opinion for reliability under Rule 702, only to be injudiciously affected by the same opinion. For that reason, '[t]he "gatekeeper" doctrine. . . is largely irrelevant in the context of a bench trial.'"). Id. quoting Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 852 (6th Cir. 2004). Although not binding, this Court finds the reasoning of Chief Judge Robert Miller persuasive. The purpose of Rule 702 is to protect juries from misleading or unreliable testimony. Daubert, 509 US at 589. In a bench trial, the judge applies essentially the same analysis with respect to what weight, if any, to give to an expert's testimony as it would in a Rule 702 analysis. The Court previously noted that any

question of whether the expert is credible or whether his or her theories are correct given the circumstances of a particular case is a factual one that is left for the [factfinder] to determine after opposing counsel has been provided the opportunity to cross-examine the expert regarding his conclusions and the facts on which they are based.

Smith v. Ford Motor Company, 215 F.3d 713, 719 (7th Cir. 2000).

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