Commercial Litigation and Arbitration

Experts — District Court’s Failure to Make Gateway Determinations of Relevance and Reliability Mandates Reversal — “The Decision To Admit Or Exclude Expert Testimony Is Often The Difference Between Winning And Losing A Case” (Good Quotes)

Barabin v. AstenJohnson, Inc., 2012 U.S. App. LEXIS 23528 (9th Cir. Nov. 16, 2012):

Compliance with Rule 702 is gauged by the district court's assessment of the reliability of the proffered expert testimony. See Daubert, 509 U.S. at 589. Specifically, the district court is charged with determining whether the proffered expert testimony is trustworthy. See id. at 590 n.9. "In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity." Id. (emphases in the original). Scientific validity is, in turn, assessed in large part by the degree to which the theories propounded by the expert have been subjected to and survived scrutiny in the relevant scientific community. See Mukhtar, 299 F.3d at 1063-64.

As we observed in Mukhtar, the decision to admit or exclude expert testimony is often the difference between winning and losing a case. See id. at 1067-68 (noting that once the challenged expert testimony was excluded no evidence of discrimination remained). The potentially significant influence of expert testimony underscores the importance of assiduous "gatekeeping" by trial judges. Once presented with the additional information in the Barabins' response to the motion in limine, at a minimum the district court was required to assess the scientific reliability of the proffered expert testimony. See Ellis, 657 F.3d at 982 ("Under Daubert, the trial court must act as a 'gatekeeper' to exclude junk science that does not meet Federal Rule of Evidence 702's reliability standards . . .") (citation omitted). In failing to do so, the district court neglected to perform its gatekeeping role. See Mukhtar, 299 F.3d at 1066 ("Kumho [Tire Co. v. Carmichael, 526 U.S. 137 (1999),] and Daubert make it clear that the court must, on the record, make some kind of reliability determination.") (citation omitted) (emphasis in the original).

Rather than making the required determinations, the district court left it to the jury to determine the relevance and reliability of the proffered expert testimony in the first instance. In its order, the district court wrote:

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.

(Emphases added).

Under our precedent, the district court's decision to allow presentation of the expert testimony to the jury without making any gateway determinations regarding relevance and reliability constituted an abuse of discretion requiring a new trial. See id. at 1063 (noting the "trial court's 'special obligation' to determine the relevance and reliability of an expert's testimony") (citation omitted); see also id. at 1068 (remanding for a new trial where the expert's testimony was admitted "without the proper reliability determination" and the error was not harmless).

The district court committed reversible error when it failed to assess the proferred expert testimony for relevance and reliability. See id. Our decision in Mukhtar dictates that a new trial be provided in this circumstance. See id. Accordingly, the district court abused its discretion when it denied AstenJohnson's and Scapa's motions for a new trial. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (explaining that we may reverse the denial of a motion for a new trial when the district court has "made a mistake of law") (citation omitted).

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