En Banc Ninth Circuit Adds Teeth To Daubert Gatekeeping Obligation

Keywords: Daubert, gatekeeping obligation, trial, appellate courts, Federal Rule of Evidence 702

On January 15, the en banc US Court of Appeals for the Ninth Circuit issued a decision in Barabin v. AstenJohnson, Inc. that significantly strengthened and expanded the gatekeeper role of both trial and appellate courts in determining whether to admit expert testimony.¹

Under Federal Rule of Evidence 702, before admitting expert testimony, a trial court must determine that the expert is qualified in the relevant field, that the testimony is relevant, and that the expert's methodology is reliable.² As the procedural history of Barabin demonstrates, however, trial courts have not always followed through on their gatekeeper role, and, instead, have left difficult or controversial questions about the reliability of expert testimony for juries.