Faulty Daubert Rulings No Longer Automatically Require A New Trial, Ninth Circuit Holds En Banc

In United States v. Bacon, No. 18-50120 (9th Cir. Nov. 5, 2020) (en banc), the Ninth Circuit overrules several prior decisions holding that the only remedy for an erroneous ruling on expert testimony under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Fed. R. Evid. 702 is a new trial.

Instead, the en banc court holds unanimously (in an opinion signed by Chief Judge Thomas) that when a Daubert ruling is erroneous, but a panel “cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds,” the court of appeals may “fashion a remedy ‘as may be just under the circumstances’” per 28 U.S.C. § 2106.” This may “include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial.”

In this prosecution, the court reviewed a district court ruling that excluded an defense expert witness on relevance grounds, while “the court did not evaluate the expert’s reliability …. On appeal, the three-judge panel held, in a per curiam opinion, that the district court had employed the incorrect legal standard for relevance under Daubert and Rule 702 when it excluded the testimony …. The panel further determined that the error was not harmless …. In ordering a remedy for the error, the panel concluded that it was bound by circuit precedent to vacate the conviction and remand for a new trial.” The Ninth Circuit then reset the matter for rehearing en banc.

“The panel correctly concluded that it was bound by circuit precedent in remanding for a new trial. However, our precedents also demonstrate an enduring disagreement within our Court over the mandatory-retrial rule.” After surveying two decades of Daubert case law, the Ninth Circuit concludes while “there is considerable force behind … the argument that requiring retrial promotes Daubert’s gatekeeping function,” at the same time “requiring retrial can waste judicial resources and unnecessarily treats Daubert errors differently from other evidentiary errors.”

“While some logic may support adopting a bright-line rule either requiring a new trial or requiring a limited remand, we are mindful that ‘[t]he life of the law has not been logic; it has been experience.’ Oliver Wendell Holmes, Jr., The Common Law 1 (1881). Different circumstances may require different remedies.”

Citing 28 U.S.C. § 2106 – which authorizes reviewing courts to “affirm, modify, vacate, set aside or reverse any judgment, decree, or order” or “remand the cause and direct the entry of such appropriate judgment, decree, or order … as may be just under the circumstances” – the en banc court holds 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 concludes: “Circumstances may require a new trial in some instances; circumstances may dictate a limited remand in others. Of course, the discretion of a panel is not unfettered. The normal rules of appellate review of evidentiary decisions still apply. And nothing in our decision removes Daubert’s important gatekeeping function. But our holding today restores Daubert errors to the usual realm of appellate review and remedy, rather than keeping them in a separate, special category.”

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