In a decision that demonstrates the importance of challenging questionable expert testimony, the Ninth Circuit in an en banc decision has called for courts to more closely scrutinize the qualifications and theories of expert witnesses. See Estate of Barabin v. Asten Johnson, Inc., 740 F.3d 457 (9th Cir. 2014) (en banc).   

In Barabin, Plaintiff employee and his wife alleged that the employee had developed mesothelioma as a result of his exposure to asbestos fibers in dryer felts used in his employer’s paper mill. Defendants moved to have Plaintiffs’ experts excluded from testifying at trial under Federal Rule of Evidence 702. Defendants argued that one of Plaintiffs’ experts had unreliable credentials, and that one had performed tests in conditions that were so different from the conditions in the mill that the results were irrelevant. The trial court refused Plaintiffs’ request for a Daubert hearing, and ultimately allowed both experts to testify, and the jury found in favor of Plaintiffs. Barabin, slip op. at 5-9.

An en banc panel for the Ninth Circuit Court of Appeals held that the trial court had committed reversible error by not making explicit findings as to relevancy and reliability before admitting the expert witness testimony, and that this error was prejudicial, because the admitted expert testimony was essential to Plaintiffs’ case (as expert testimony so often is in toxic tort cases). Id. at 18-19. The Court of Appeals remanded the case for a new trial, in which admissibility could be determined before introduction of the expert testimony. Id.