Daubert: Applies to Bench Trials

The U.S. District Court of Appeals (3^rd Cir) dealt with a condemnation proceeding under the Natural Gas Act.

The court took this opportunity to clarify that Daubert does in fact apply in bench trials.

The court stated:

We start with a clarification about the role Rule 702 plays in bench trials. As we have explained, “a trial judge acts as a gatekeeper to ensure that any and all expert testimony or evidence is not only relevant, but also reliable.” Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (internal quotation marks omitted). As gatekeeper, a trial judge has three duties: (1) confirm the witness is a qualified expert; (2) check the proposed testimony is reliable and relates to matters requiring scientific, technical, or specialized knowledge; and (3) ensure the expert’s testimony is “sufficiently tied to the facts of the case,” so that it “fits” the dispute and will assist the trier of fact. Daubert, 509 U.S. at 591, 113 S.Ct. 2786 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). The text of Rule 702 contains no exception to these requirements, so if they are not satisfied, an expert cannot testify before the “trier of fact.” Fed. R. Evid. 702.

Rule 702 applies whether the trier of fact is a judge or a jury. By using the term “trier of fact,” rather than specifying judge or jury, Rule 702 does not distinguish between proceedings. Contrast that language with Federal Rule of Evidence 403, permitting a court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of … misleading the jury.” Fed. R. Evid. 403. Given that Rule 702 was “amended in response to Daubert … and to the many cases applying Daubert, including Kumho Tire,” and its text continues to employ the broad “trier of fact” instead of the more specific “jury,” district courts must apply Rule 702 to assess an expert’s qualifications, reliability, and fit before weighing the expert’s opinions to decide a triable issue. Fed. R. Evid. 702 advisory committee’s note to 2000 amendments (“The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted.”); see also Fed. R. Evid. 1101(a) (applying the Federal Rules of Evidence to proceedings before district courts).

Of course, district courts do retain “latitude” to decide “how” to apply those requirements in a bench trial. Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. So a district court has leeway about “whether or when special briefing or other proceedings are needed to investigate” the facts relevant to qualification and admissibility of expert testimony. Id. Or it may conditionally admit the expert testimony subject to a later Rule 702 determination. Cf. In re Unisys, 173 F.3d 145, 155-58 (3d Cir. 1999) (“When the role of the gatekeeper to admit or exclude evidence (the judge) and the role of the factfinder to assess and weigh the evidence that was admitted (the jury) are one and the same, the judge who becomes the factfinder as well as the gatekeeper must be given great deference by this Court[ ] and … should not be required to waste judicial time.”). But that “is not discretion to abandon the gatekeeping function” or “perform the function inadequately. Rather, it is discretion to choose among reasonable means of excluding expertise[.]” Kumho Tire, 526 U.S. at 158-59, 119 S.Ct. 1167 (Scalia, J., concurring). That is why the failure to conduct any form of “assessment” of an expert and the proposed testimony before admitting the testimony is an abuse of discretion. Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786; see Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir. 1999). Here, in sidestepping Rule 702 altogether and declining to perform any assessment of Shearer’s testimony before trial, the District Court ignored the rule’s clear mandate. Daubert, 509 U.S. at 592, 113 S.Ct. 2786.^[4]