Schmidt, Sethi & Akmajian Blog

Evidence: Gatekeeping Standard for Admissibility of Expert Testimony

Posted by Ted A. Schmidt | Mar 04, 2022 | 0 Comments

Elosu v. Midddlefork Ranch Inc., No. 21-35309 (9th Cir. February 23, 2002) (J.Bennett)

Plaintiffs' vacation cabin in Idaho burned down. His expert was to testify how the fire was started which implicated an employee of defendant's.  The expert hypothesized that the fire was caused when an open flame pilot light caught the vapors of an excessive oil stain the employee had applied to the plaintiffs' deck.

Notably, the expert's methodology and qualifications were stipulated to and unquestioned by the court. Instead the trial court ruled his ultimate conclusions were “speculative” and contradicted by eyewitnesses. The District Court excluded the testimony based upon a lack of “sufficient facts or data” under rule 702 of Evidence. The exclusion of this evidence eliminated plaintiffs' causation evidence and  summary judgment was granted by the United States District Court for the District of Idaho. The United States Court of Appeals, Ninth Circuit reversed.

While the trial court serves as a “gatekeeper” she does not serve as a “fact-finder.” The trial court  may screen expert testimony for reliability and to assure it is not speculative but it is not to make factual determinations or weigh the evidence in so doing. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 586 (1993) places the focus of this inquiry on the expert's methodology not his or her conclusion or opinions.  

Ultimately, “the test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology.” Daubert II, 43 F.3d at 1318. The court is “a gatekeeper, not a fact finder.”  Accordingly, “[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.” Alaska Rent-A-Car, Inc., 738 F.3d at 969–70. If the proposed testimony meets the thresholds of relevance and reliability, its proponent is “entitled to have the jury decide upon [its] credibility, rather than the judge.”

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Our team works together - for you!

Our award-winning lawyers are backed by a talented, caring team of legal professionals, paralegals, bilingual assistants, notaries, and others - all dedicated to you, your case, and the compensation you deserve.

No fees and no costs until we win.

As such we always have your case and your best interest in mind. When you win, we win too by providing the best legal care possible.

Thorough investigation and preparation.

We tirelessly and thoughtfully prepare every case we represent as though it was going to trial. This lets insurance companies know that we are a force to be reckoned with. As such, we settle successfully 98% of the time.