Is limited remand required if the district court admitted or excluded evidence without a Daubert analysis?

• Author: Gilbreath, Robert B.

1. INTRODUCTION

   How a federal court of appeals disposes of a case after ruling on the merits depends on two federal statutes. Under 28 U.S.C. [section] 2111, a federal court of appeals may not reverse in the absence of harmful error. (1) Under 28 U.S.C. [section] 2106, once the court has determined that harmful error occurred, it may dispose of the appeal by directing the trial court to hold any further proceedings that may be appropriate. (2)

   This article discusses the interplay between those statutes when the trial court has admitted or excluded evidence without first making the proper threshold finding on admissibility. In that situation, the question arises whether an appellate court must, instead of ordering a new trial, remand with instructions to the trial court to (i) determine whether the evidence was inadmissible, or if the court originally excluded the evidence, whether the evidence was instead admissible, and (ii) order a new trial if admitted evidence should have been excluded or excluded evidence should have been admitted. This article takes the position that the federal courts of appeals should retain the power to decide this question on a case-by-case basis.

2. DAUBERT GATEKEEPING ERRORS ARE NOT ALWAYS GROUNDS FOR REVERSAL

   Recently, an en banc panel of the Ninth Circuit considered the question of how to dispose of an appeal after determining that the trial court erred by admitting expert testimony without performing its gatekeeping role. In Estate of Barabin v. AstenJohnson, Inc., the court found the admission of the testimony to have been harmful error, reversed the trial court's judgment, and remanded for a new trial. (4) The Barabin court recognized the necessity of finding harmful error before a mistake in ruling on admissibility is deemed to require reversal, (5) and it implicitly acknowledged that reversal would be unnecessary if the record demonstrated that the expert testimony was in fact admissible. (6) But the court nonetheless concluded that the error was harmful because the appellees' claim depended wholly on the erroneously admitted evidence, and held that a new trial was required because the record was too sparse to determine whether the expert testimony satisfied the Daubert requirements. (7)

   The appellees sought review in the Supreme Court, asserting that remand for new trial was improper because without a ruling on whether the evidence was indeed admissible under Daubert, the court of appeals could not have properly found harmful error. (8) They also argued that, in contrast to other circuits, both the Ninth and Tenth Circuits were applying an automatic-new-trial rule in cases in which a district court failed to perform its Daubert gatekeeping role. (9) They urged the Supreme Court to create a limited-remand rule for this situation.

   The rule that they proposed would require remand for the limited purpose of the trial court's undertaking the Daubert analysis that it neglected to perform in the first instance, rather than remanding for a new trial. If, and only if, the district court concludes that it erred in admitting (or excluding) the expert testimony would a new trial be required.

   This limited-remand rule would come into play when a district court erred in failing to perform its Daubert gatekeeping duty, and the court of appeals could not deem the error harmless. Thus, the rule would apply only if it was not readily apparent from the appellate record that (i) the expert testimony was either admissible or inadmissible, and (ii) other competent evidence was not sufficiently strong to permit the conclusion that the improper admission or exclusion of the evidence had no effect on the decision.

3. REQUIRING REMAND FOR GATEKEEPING ERRORS WOULD FRUSTRATE CONGRESSIONAL INTENT

   1. An Analysis of 28 U.S.C. [section] 2106

      A limited-remand rule would run afoul of Congress's expressed intent in 28 U.S.C. [section] 2106. When a district court fails to comply with its Daubert gatekeeping duty, it commits error. What to do about that error is a matter committed to the appellate court's sound discretion under [section] 2106. (10) Exercise of that discretion by the court of appeals, and its choice of remedies, is informed by the character and degree of harm resulting from the district court's error.

      Under [section] 2106, it is left to the courts of appeals to determine, after concluding that error has been committed, what further proceedings are "just under the circumstances." (11) The Fifth Circuit has, for example, explained that "[o]nce jurisdiction attaches, Courts of Appeals have broad authority to dispose of district court judgments as they see fit." (12) This includes the authority to, among other things, grant a new trial in the interest of justice. (13)

      The First Circuit has explained the difference between the [section] 2111 issue (whether there is harmful error) and the [section] 2106 issue (the remedy for trial-court error) in a case where the district court excluded an expert's testimony under Daubert:

      [W]hen a trial court erroneously excludes evidence, and the exclusion meets the standard criteria of harmfulness, the harm is not cured by a mere possibility that other appropriate grounds for exclusion of the same evidence may later be found to exist. The question is one of degree and the choice of remedies (including whether to require a new trial or merely remand for further findings) is ours. (14) This observation applies equally when the district court's admission of evidence ran afoul of Daubert. The resulting harm is not cured by a mere possibility that appropriate grounds for admitting the evidence may later be found to exist. That...