Admission of Testimony in Prior Cases Cannot Substitute for a Daubert Review

The Ninth Circuit held that a district judge erred in admitting expert testimony by relying solely on evidence of prior admissions of the expert’s theory in other courts. Plaintiffs filed suit claiming that the husband’s mesothelioma was caused by workplace exposure to asbestos. They then sought to admit expert testimony on the common Plaintiff theory that any exposure to asbestos is sufficient to cause mesothelioma.

The district court initially excluded Plaintiffs’ expert testimony due to his “dubious” credentials and lack of familiarity with the workplace and product in question. The Plaintiffs requested that the Court reconsider its decision to exclude the testimony and presented the Court with evidence that their expert’s testimony had been admitted in several state court proceedings. Without conducting a Daubert hearing, the district court admitted the testimony. The jury ultimately returned a $10.2 million verdict for the Plaintiffs.

On appeal, the Ninth Circuit held that the district court could not merely rely on evidence that other courts had admitted the expert testimony. Instead, Federal Rule of Evidence 702 required that the district court conduct a Daubert hearing to test the relevance and reliability of the testimony. The Ninth Circuit vacated the judgment below and remanded the case for a new trial.

The defense bar is well acquainted with the protections that Rule 702 provides. This Ninth Circuit decision confirms that a Daubert hearing requires a meaningful review of an expert’s reliability, including examination of the methodologies employed, and that admission of the expert’s testimony in past cases is no substitute for a rigorous Daubert review.  Barabin v. AstenJohnson, Inc., Nos. 10–36142, 11–35020, 2012 WL 5669685 (9th Cir. Nov. 16, 2012).