There is a new gatekeeper in town. Or perhaps 179 of them.

Earlier this month, the U.S. Supreme Court refused to grant certiorari and hear an appeal challenging a federal court’s ruling with regard to Daubert motions, effectively permitting the expansion of the power to decide expert witness admissibility to the Circuit Court.

The effects of this case (or rather, the lack thereof with respect to the U.S. Supreme Court’s involvement) could impact overall litigation strategy when attorneys are engaged in Daubert disputes and increase the overall scrutiny of expert witness qualifications and methodologies. 

In the long-lasting asbestos wrongful-death case of Estate of Henry Barabin v. AstenJohnson, Inc., the 9th U.S. Circuit Court of Appeals found that a Washington District Court erred by failing to conduct a proper Daubert hearing to determine the admissibility of two of plaintiff’s experts. This decision and rationale have been well documented over the years, including earlier posts in BullsEye:  No Daubert Hearing Equals $10 Million Error in 9th Circuit  and Lack of Daubert Hearing Cancels $9.4 Million Verdict.

The determination that the District Court failed to fulfill its gatekeeper role in permitting or preventing the experts’ testimony at trial was simple enough. A three-judge 9th Circuit panel came to this conclusion in 2012, and then an en banc (or “full court”) 9th Circuit Court made the same decision this January, basically saying that the District Court judge erroneously punted the court’s procedural responsibilities to the jury by not conducting a full Daubert inquiry and by allowing both experts to testify, albeit with restrictions.

The January decision by the en banc Circuit Court also made a significant reversal of itself with regard to its own abilities to make Daubert decisions. With Judge N. Randy Smith authoring the 27-page decision, the 9th Circuit Court now says that it, too, can examine the credentials of an expert witness to determine his or her admissibility, so long as the District Court’s record is sufficient for the Circuit Court to do so.

“After the dust of Daubert had settled, we held that an erroneous admission of expert testimony, absent a showing the error was harmless, requires a new trial. See Mukhtar, 299 F. 3d at 1066- 67. To the extent Mukhtar requires anything more, it is overruled,” Judge Smith writes.

“[The Defendants/Appellants] 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.”   

To support its decision, the Circuit Court cites a U.S. Supreme Court case from 2000 that grants “reviewing courts” the power to direct judgment as a matter of law if the court “determines that evidence (would be inadmissible) at trial and that the remaining, properly admitted evidence is insufficient to constitute a submissible case.” Weisgram v. Marley Co., 528 U.S. 440, 446-47 (2000).

However, this is not synonymous with saying that Circuit Courts can now be Daubert gatekeepers – perhaps guarding “the gate” after the first gate was either unlocked improperly or left open entirely. Furthermore, and completely out of the realm of Weisgram, would also be the case when the gate was unduly locked when it should perhaps been left open.

In the hypothetical case of a District Court judge erring in his or her prohibition of an expert witness from testifying at trial, then it is conceivable that the record could still be sufficient to allow the Circuit Court to declare such expert to have passed the Daubert test and therefore be admissible. In this situation, the case would be sent back down for retrial, one would presume – with the District Court being bound by the 9th Circuit’s so-called Daubert “hearing.” 

Until Barabin, the Daubert test, at least as it applies federally, was for the exclusive use of the District Court. Post-Barbin, it became a test and tool for the 9th Circuit Court to use as well. This month, perhaps most importantly, the U.S. Supreme Court has basically consented to such expansion of power by its denial of cert to such appeal.

The 9th Circuit Court is largely considered to be one of the most powerful and most influential courts in America. Its jurisdiction includes California, Oregon, Washington, Idaho, Montana, Arizona, Alaska, and Hawaii. Now, in the federal District Courts of all these states, lawyers and litigants beware – especially plaintiffs, for there is now a second gatekeeper holding a Daubert key to expert admissibility.

It is seemingly another step to fortify the gate against junk science, bunk experts, and pataphysicians. It is yet another reason why more and more litigants and lawyers are treading cautiously in the expert realm, being certain that their proposed experts truly possess the expertise that the courts are now insisting upon.

Will the 9th Circuit’s decision to expand its Daubert capabilities spread a trend through the nation, effectively turning the 179 U.S. Circuit Court judges into second-level gatekeepers of expert witness testimony?