Photo of Steven Boranian

The Ninth Circuit’s en banc opinion in Estate of Barabin v. AstenJohnson, Inc., No. 10-36142, 2014 WL 129884 (9th Cir. Jan. 15, 2014), is a great reminder that district courts can abuse their discretion if they do not sufficiently consider and determine the admissibility of expert opinions under Daubert. Plaintiffs’ lawyers often complain that we file too many Daubert motions, and from time to time we encounter a court that is not thrilled with the prospect of reviewing and determining numerous motions dealing with complex scientific issues.

One thing is clear, however, after the Ninth Circuit’s Barabin opinion:  When properly presented with Daubert challenges, a district court cannot abdicate its role as the gatekeeper for scientific expert opinion and just leave it for the jury to decide.  In Barabin, the plaintiffs claimed that their decedent died from mesothelioma caused by exposure to the defendant’s asbestos-containing dryer felts, which apparently is a product that was used in the paper mill where the decedent worked.  (Yes, we know that it’s an asbestos case and that this is the Drug and Device Law Blog, but it’s about Daubert, so bear with us.)

The defendants challenged plaintiffs’ experts under Daubert, and apparently with substantial justification:  The district court excluded one expert because of his “dubious credentials and his lack of expertise with regard to dryer felt and papers mills.”  Id. at *2.  The district court allowed another expert, but because the court was “troubled by the marked differences between the conditions of [the expert’s] tests and the actual conditions at the [mill],” the court required that the jury be informed that his tests were performed in a laboratory under different conditions.  Id.  Finally the district court allowed expert opinion that “every exposure” to asbestos, no matter the intensity or duration, can cause mesothelioma.  The court noted the “strong divide among both scientists and the courts” on this point, but allowed the testimony anyway “[i]n the interest of allowing each party to try its case to the jury.”  Id.

But wait.  The district court then decided that the excluded expert could testify after all, based on a new brief from the plaintiffs that “did a much better job . . . of presenting the full factual basis behind [the expert’s] testifying and his testimony in other cases.”  Id. Basically, the district court “let it all in,” and the jury returned a $10 million verdict based on expert testimony that the district court had initially excluded and about which the court openly expressed reservations.

On appeal, the Ninth Circuit ordered a new trial because the district court had abused its discretion by delegating its Daubert gatekeeping role to the jury.  We pause to note the many parallels between the expert opinions at issue here and those we often see.  One expert had testified in other cases, but had “dubious credentials” and a “lack of expertise” in the particular field.  We see that all the time—for example, a certain pathologist who has not practiced medicine in decades and who spent a short time at FDA, yet now holds herself out as an expert on everything related to drugs and medical devices.  Another expert was extrapolating from laboratory tests in a “troubling” way.  We see that all the time too, such as where plaintiffs’ experts rely solely on laboratory research and animal studies to explain causation in humans, which does not work, whether the topic is asbestos, prescription drugs, or anything else. The district court allowed the “every exposure” theory, which sounds a lot to us like permitting expert opinion on causation without taking into account the critical factor of dose-response relationship—because that is precisely what it is.

The similarities are not difficult to detect, which is why we freely embrace the Ninth Circuit’s opinion.  The Court of Appeals set forth the Daubert standard, including that the key is whether the opinion has a “reliable basis in the knowledge and experience of the relevant discipline” and how the court is concerned “not [with] the correctness of the expert’s conclusions but with the soundness of the method.”  Id. at *4.

Fair enough. But the Court of Appeals also reaffirmed that the “duty falls squarely on the district court to ‘act as a “gatekeeper” to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards.’”  Id.

At the center of its holding, the Ninth Circuit noted that while the district court has broad latitude in determining “the appropriate form” of the inquiry, “Rule 702 clearly contemplates some degree of regulation of the subjects and theories about which the expert may testify.”  Id. (emphasis partially added)  Appling these principles, the Ninth Circuit held that district court had abused its discretion by failing to make appropriate Daubert determinationsId.  With regard to the expert who the district court initially excluded, the Ninth Circuit faulted the district court for allowing the testimony based only on the plaintiffs’ presentation of the “full factual basis” behind the expert’s proposed testimony and his testimony in other cases.  As the Ninth Circuit explained,

Absent from the explanation is any indication that the district court assessed, or made findings regarding, the scientific validity or methodology of [the expert’s] proposed testimony.  Therefore, the district court failed to assume its role as gatekeeper with respect to [the expert’s] testimony.

Id.  The Ninth Circuit likewise faulted the district court for admitting the second expert’s testimony based on laboratory testing:

The district court also failed to act as gatekeeper for [the other expert’s] testimony. After acknowledging various arguments as to whether the testimony was admissible, the district court concluded that it could be admitted, so long as the jury was informed of the “marked differences” between conditions of the tests and the actual conditions of the mill. Rather than making finding of relevancy and reliability, the district court passed its greatest concern about [the expert’s] testimony to the jury to determine.

Id. at *5 (emphasis added).  The Ninth Circuit found that the district court impermissibly passed the buck to the jury also on the “every exposure” theory, where the district court allowed the testimony “[i]n the interest of allowing each party to try its case to the jury.” Id. (emphasis in original).

We cannot summarize it any better than the Ninth Circuit’s own language, so here it is:

Just as the district court cannot abdicate its role as gatekeeper, so too must it avoid delegating that role to the jury.

Here, the district court delegated that role by giving each side leeway to present its expert testimony to the jury.  Before allowing the jury to hear the expert testimony, the district court should have first determined that the “expert meets the threshold established by Rule 702” . . . ; that is the entire purpose of Daubert.  The district court abused its discretion by admitting the expert testimony without first finding it to be relevant and reliable under Daubert.

Id. (citation omitted).

The defendant got the new trial to which it was entitled, but the lesson here is not that defendants will always win or that plaintiffs’ lame expert opinions will always be excluded. The takeaway from Barabin is that district courts cannot abdicate their Daubert gatekeeping function, nor can they delegate that role to juries.  Moreover, that particular message was delivered by a unanimous 11-judge en banc panel, which is unusual in the Ninth Circuit.  (The opinion was split 6 to 5 on whether the error warranted a new trial, but all 11 judges joined the part of the opinion finding an abuse of discretion.)

So we will keep filing our Daubert motions.  They may be long and they may be complicated, but the vast majority of judges take them seriously and give us our days in court. And plaintiffs will continue to complain, but that’s okay with us.  If plaintiffs want to continue to encourage judges to delegate their Daubert role and “leave it to the jury,” they run the risk of their verdicts following the same course as Barabin.  That’s okay with us, too.