In an En Banc opinion, the 9th Circuit Court of Appeals decided that the appropriate remedy for a trial court’s failure to make findings of relevancy and reliability before admitting expert testimony was reversing the judgment and a remanding for a new trial. The minority strong dissent would have ordered a remand for a Daubert and Rule 702 hearing. In Estate of Barabin v. Astenjohnson, Inc., 740 F.3d at 457 (9th Cir. 1-15-2014), plaintiff was employed by a paper mill and defendant allegedly supplied the mill with dryer felts that contained asbestos. Plaintiff had worked at the mill from 1968 until he retired in 2001. In 2006, he was diagnosed with cancer and alleged that this occupational exposure to asbestos from the dryer felts was the cause of his mesothelioma. Defendant filed a motion to exclude testimony of two expert witnesses. Without a Daubert hearing, the district court excluded the testimony of one witness and then reversed his decision and permitted the experts to testify. He decided that the other expert could testify as long as the jury was informed that the tests were “performed under laboratory conditions which are not the same as conditions at the mill.” The jury awarded damages to plaintiff which the court reduced to approximately $9.4 million.
On appeal, a three-judge panel unanimously held that the district court abused its discretion by failing to make the necessary relevancy and reliability findings under Daubert and remanded the case for a new trial. Plaintiff petitioned the court to review the case En Banc and a majority voted to rehear the case.
Both the majority of the En Banc court and the dissenting members of the court agreed that the district court failed to make findings of relevancy and reliability before admitting into evidence the expert testimony. Both agreed that it was an abuse of discretion with the majority holding that the error was prejudicial because the erroneously admitted evidence was essential to plaintiff’s case. Due to the district court’s abdication of its role as a gatekeeper and the severe prejudice that resulted from the error, the court decided that the appropriate remedy was a new trial.
The minority said that it would initially vacate the judgment and remand with instructions to determine whether the disputed expert testimony was admissible. If it is, the district court could reinstate the verdict, but if it is inadmissible, the district court should then determine if the expert testimony prejudiced the defendant and, if so, order a new trial.
Plaintiff then sought a petition for certiorari from the Supreme Court of the United States urging that the opinion of the dissent was the correct one. On October 6, 2014, the Supreme Court declined to hear the suit.