"Does the plaintiff who relied on the erroneously admitted testimony get a new trial and a second chance to satisfy Daubert's demading standards? Or does the defedant obtain judgment from the appellate court because, shorn of the erroneously admitted testimony, the record is insufficient to justify a plaintiff's verdict?
In an important ruling, the Supreme Court held in February that no second chance is required. Weisgram v. Marley Co., 120 S. Ct. 1011 (2000). A court of appeals may enter judgment for the defendant if it concludues that expert testimony was improperly admitted at trial under Daubert and that the remaining, properly admitted evidence is insufficient to support the verdict.
In practice, appellate courts give greater scrutiny to Daubert claims than to other evidentiary issues governed by the abuse-of-discretion standard.
Regardless of whether the appellate court ultimately affirmed or reversed the trial court, and whether the trial court excluded or admitted the expert testimony, each of the circuits appears intent on ensuring that trial courts properly perform their gatekeeping functions under Daubert. See, e.g., Concord Boat Corp. v. Brunswick Corp., 2000 WL 303035 (8th Cir.); Black v. Food Lion Inc., 171 F.3d 308 (5th Cir. 1999); Ruiz-Trouche v. Pepsi Cola, 161 F.3d 77 (1st Cir. 1998); Ruffin v. Shaw Industries Inc., 149 F.3d 294 (4th Cir. 1998). In each of these cases, the courts extensively analyzed the experts' credentials, methodology, data and reasoning, as well as the trial court's rationale in admitting or excluding the testimony.
Weisgram was a wrongful-death action. At trial, the plaintiffs offered testimony from three expert witnesses -- two fire investigators and a metallurgist -- to prove that a defective heater had caused a deadly fire. The trial court admitted the testimony over objection and later denied the defendant's motion for judgment on the ground that the plaintiffs had failed to meet their burden of proof. When the jury returned a verdict for the plaintiffs, the defendant appealed, repeating its claim that the expert testimony did not satisfy Daubert and that without that testimony, the plaintiffs had not met their burden of proof.
Consistent with the higher level of scrutiny that appellate courts appear to be giving Daubert determinations, the 8th Circuit measured the expert testimony against Daubert's requirements and agreed with the defendant that the trial court should not have admitted the testimony. Having excised the expert testimony, the court had little difficulty finding that the remaining evidence did not satisfy the plaintiffs' burden of proof. The court granted judgment for the defendant.
The Supreme Court affirmed. The court held that Rule 50(d) does permit an appellate court to enter judgment when it concludes that evidence was erroneously admitted at trial and the remaining, competent evidence is insufficient.
While acknowledging that fairness to a verdict winner was 'surely key' to the exercise of an appellate court's 'informed discretion' to enter judgment, a new trial or remand, the court emphasized that since Daubert, 'parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet.' 120 S. Ct. at 1021. The court found it 'implausible to suggest' that post-Daubert parties would initially present less than their best expert evidence in the expectation of a second chance should their first effort fail. Id.
As the court warned, '[A] litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in the litigant's own risk.' Id. (internal quotation omitted).
Weisgram provides important lessons for plaintiffs and defendants. Weisgram and Daubert combine to offer defendants significant opportunities to attack a verdict on appeal and to obtain judgment there. Even if Daubert arguments fail at trial, the defendant can, and should, re-assert them on appeal, confident that the appellate court will likely review the expert testimony, and the trial court's decision to admit it, quite closely." [Kravitz MR. The National Law Journal, April 17, 2000]