The Court of Appeals for the Ninth Circuit held that it is error to fail to hold a “Daubert” hearing if requested by one of the parties. In Barabin v. Astenjohnson, Inc.700 F.3d 428 (9th Cir. 2012) (Westlaw citation) the district court excluded the testimony of plaintiff’s expert witness on the ground that he had dubious credentials and his lack of expertise with respect to a product manufactured by the defendants which contained asbestos. However during a subsequent pretrial conference the district court reversed its decision to exclude the testimony. The court did this on the basis that the expert’s credentials had been clarified and a response to the motion in limine which included the fact that the expert’s testimony had been admitted in other cases. The court did not hold a Daubert hearing.
The jury found in favor of the plaintiffs and awarded damages totaling $10,200,000.00. The court denied motions for a new trial and defendants appealed. The court of appeals pointed out that evidentiary rulings are reviewed for abusive discretion; however, a review of the district court’s interpretation of the Federal Rules of Evidence are reviewed de novo. The reviewing court said that the district court failed to act as a “gatekeeper” to insure that the testimony was reliable. In ordering a new trial the Court of Appeals said:
“A district court committed reversible error when it failed to assess the proper expert testimony for relevance and reliability (citation omitted). Our decision in Mukhtar dictates that a new trial be provided in this circumstance… we may reverse the denial of a motion for a new trial when the district court has ‘made a mistake of law’ (citation omitted).”
Thanks to TAA member John Wagener of Chicago for submitting this case.