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Ninth Circuit Announces Panels of Court of Appeals May Fashion Remedy When District Court Commits Daubert Error

In Patrick John Bacon’s appeal, he argued the U.S. District Court for the Central District of California erred when it found irrelevant the testimony of Bacon’s proposed expert witness and excluded it. A panel of the Ninth Circuit agreed, ruling that the district court had employed the incorrect legal standard for determining relevance under Daubert and Rule 702. The panel further ruled that the error wasn’t harmless. However, the record was insufficient for the panel to determine if the disputed evidence could also have been excluded on other grounds, namely reliability.

Circuit precedent prohibited the panel from conditionally remanding to the district court for a hearing to determine if the evidence could be excluded on reliability grounds and, if not, then retry the case. Precedent required the panel to vacate and remand for a new trial. United States v. Christian, 749 F.3d 806 (9th Cir. 2014). But in a concurring opinion, it was urged that the Court, sitting en banc, reconsider the precedent. The reason is that if it is found that the evidence may properly be excluded on grounds of reliability, then why should the district court be required to retry the case on the exact same evidence that was presented at the first trial? The Ninth Circuit agreed to rehear the case en banc.

The Court observed that in Mukhtar v. California State University, Hayward, 319 F.3d 1073 (9th Cir. 2003) (en banc), the Ninth Circuit rejected the proposal that, following a determination on appeal that a district court had committed a non-harmless error of admitting expert witness testimony without a proper Daubert reliability determination, the panel should remand for an evidentiary hearing. The Mukhtar Court reasoned, “[t]o remand for an evidentiary hearing post-jury verdict undermines Daubert’s requirement that some reliability determination must be made by the trial court BEFORE the jury is permitted to hear the evidence. Otherwise, instead of fulfilling its mandatory role as gatekeeper, the district court clouds its duty to ensure that only reliable evidence is presented with impunity. A post-verdict analysis does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the [Supreme] Court envisioned in Daubert and its progeny.” Id. (Emphasis original.)

The reasoning of Mukhtar was followed in Barabin v. AstenJohnson, Inc., 700 F.3d 428 (9th Cir. 2012), and the same proposed change was rejected again, en banc, in Estate of Barabin v. AstenJohnson, Inc. (“Barabin II”), 740 F.3d 457 (9th Cir. 2014). But in Barabin II, the Ninth Circuit also instructed that “[i]f the reviewing court decides the record is sufficient to determine whether expert testimony is relevant and reliable, it may make such findings,” and if such a finding leaves insufficient evidence, the court “may direct entry of judgment as a matter of law.”

Then the Christian Court applied the same reasoning where the district court had excluded evidence without properly determining reliability. The Christian Court vacated and remanded for a new trial regardless of whether a subsequent Daubert hearing would again result in the evidence being properly excluded. Christian.

In the instant case, the Court opined that in some cases district courts err by permitting evidence that should have been excluded. In others, the error is excluding evidence that should have been allowed. Sometimes the district court stops its Daubert analysis after improperly excluding on grounds of relevance, and it’s unknown if the evidence could have also been properly excluded on other grounds. Sometimes the record enables the appellate panel to make an appropriate finding, and sometimes the record is insufficient.

The Court observed that 28 U.S.C § 2106 permits appellate courts to remand for “further proceedings to be had as may be just under the circumstances.” Applying § 2106, the Court held “that when a panel of this Court concludes that the district court has committed a non-harmless Daubert error, the panel has discretion to impose a remedy ‘as may be just under the circumstances.’” The Court instructed: “Circumstances may require a new trial in some instances; circumstances may dictate a limited remand in others.”

The Court cautioned that the normal rules of appellate review of evidentiary decisions still applied. The Court also explicitly overruled its earlier decisions to the extent those decisions conflict with this opinion.

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Related legal case

United States v. Bacon



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