The Court of Appeals for the Ninth Circuit held that a reviewing court had the authority to make Daubert findings based on the record established by the district court. Further if the reviewing court determines that the evidence would be inadmissible at trial and that the remaining properly admitted evidence is insufficient to constitute a submissible case, it may direct entry of judgment as a matter of law. In Estate of Barabin v. AstenJohnson, Inc. 740 F.3d 457 (9th Cir. 2014) the court admitted expert testimony, over objection, and refused a request for a Daubert hearing. Holding that this was error and ordering a new trial the court said:
“AstenJohnson and Scapa contend that a reviewing court should have the authority to make Daubert findings based on the record established by the district court. We agree and overrule Mukhtar to the extent that it required that Daubert findings always be made by the district court. See Mukhtar, 299 F.3d at 1066 n.12. If the reviewing court decides the record is sufficient to determine whether expert testimony is relevant and reliable, it may make such findings. It it “determines that evidence [would be inadmissible] at trial and that the remaining, properly admitted evidence is insufficient to constitute a submissible case [,]” the reviewing court may direct entry of judgment as a matter of law. Weisgram v. Marley Co., 518 U.S. 440, 446-47 (2000). Citing Weisgram, AstenJohnson and Scapa argue we should enter judgment in this case. We decline their invitation. In Weisgram, the Eighth Circuit found, based on a fully developed record, that the expert testimony was not reliable. Weisgram v. Marley Co., 169 F.3d 514, 517-18 (8th Cir. 1999). We cannot speak to the admissibility of the expert testimony at issue here because the record before us is too sparse to determine whether the expert testimony is relevant and reliable. We can only say with certainty that the district court erred by failing to make that determination.”