IMS Expert Services is reporting an interesting 9th Circuit case where the lack of a Daubert hearing was grounds for vacating a $10M award. (IMS)
Here's the basics:
The decision is one that merits attention by plaintiff and defense counsel in the 9th Circuit (and potentially other regional circuits), as it underscores the importance that a relevancy and reliability determination be sufficiently made on the record before expert testimony can be presented to a jury. Failure to do so can jeopardize a verdict, as well as be potentially costly in both time and possible future legal fees.
The case involved a claim that plaintiff developed mesothelioma caused by occupational exposure to asbestos. Following a motion in limine filed by one of the defendants, the district court excluded one of plaintiffs’ experts based upon his alleged “dubious credentials and his lack of expertise . . .” That, however, wasn’t the end of the case.
At a pretrial conference, upon plaintiffs’ motion seeking reconsideration of the district court’s initial ruling excluding the expert, the district court changed its mind and reversed its decision to exclude, allowing the expert testimony based upon additional information supplied in plaintiffs’ motion.
A jury trial ensued (together with various motions by defendants) and the district court ultimately entered a judgment affirming a jury award of almost $10 million in favor of plaintiffs.
No Daubert Hearing Equals Reversible Error
However, the district court made a mistake that the 9th Circuit would later find fatal on appeal – although it considered additional information about the expert contained in the plaintiffs’ motion for reconsideration, the district court never actually held a Daubert hearing.
As a result, the 9th Circuit was unsatisfied with the lack of reliability or relevance determinations on the record at the district court level. The panel implied that the explanation given by the district court for failure to hold aDaubert hearing was insufficient, stating, “The extent of the court’s explanation was: ‘I think plaintiffs did a much better job of presenting to me the full factual basis behind [plaintiffs’ expert] testifying and his testimony in other cases. . . . ‘”
The circuit panel rejected this approach, stating, “Unfortunately, because no Daubert hearing was conducted as requested, the district court failed to assess the scientific methodologies, reasoning, or principles [plaintiffs’ expert] applied. None of the Daubert factors was considered. Instead, the court allowed the parties to submit the experts’ unfiltered testimony to the jury.”
I wonder if there was no voir dere conducted before the expert testified?