Those who outlast may perhaps have the last laugh. Or, vis-a-vis the Ninth Circuit, overrule en banc precedent.
Today's opinion is, I suspect, the opening skirmish of precisely such a fight.
The question is what you do when the trial court messes up a Daubert inquiry for an expert and either admits or excludes that expert's testimony (e.g., by applying the wrong legal standard), and we can't subsequently tell on appeal whether employing the correct standard the expert's testimony would have been admitted at trial.
There are two options. One option would just be to reverse the decision below and remand for a new trial -- a new trial in which the correct legal standard would be employed, which we'd then review on appeal. The alternative option would be to conditionally reverse the decision below, but to have the district court decide (now using the correct standard) whether it would have made the same decision that it made about the expert's testimony in the prior trial. If the decision would be different, then we would conduct a new trial; if the decision is the same, then decision of the previous trial is affirmed.
Both options have at least some merit. Just six years ago, the Ninth Circuit took a case en banc and decided that the correct option was simply to remand for a new trial. Period. A decision that's been followed (and expansively applied) since that time as a matter of circuit precedent.
So issue over, right? Unless the Supreme Court steps in. Which it hasn't.
Sort of.
The en banc decision was a close one. Very close. 6-5. With the five dissenters preferring the other option: conditional reversal.
Which brings us to the present time. Today's opinion is a per curiam one in which all the judges on the panel (1) agree that the trial court erred in the analysis that led to the exclusion of the expert testimony at issue, (2) agree that we can't decide for certain on appeal whether the correct analysis would have resulted in the expert's exclusion or not, and (3) agree that circuit precedent accordingly compels the reversal of the conviction and a remand for a new trial (at which the expert may or may not be admitted, depending on the outcome of the correctly-applied Daubert inquiry).
But all three judges on the panel also join a separate concurrence. Saying, essentially, that the five dissenters in that 2014 en banc opinion were right, and that the majority opinion was wrong.
In other words, throwing down the gauntlet. Saying, essentially, that the court should take the case en banc (again) and, this time, make the right call.
The reason why that's especially interesting is not just because the three-judge panel was unanimous in that regard. But rather because the composition of the court has changed even in the relatively short six year period since the 2014 en banc decision was rendered. Of the six judges in the majority in that opinion, only two remain active judges -- the remaining four are either now off the court or are senior (and thus ineligible for an en banc panel in this case). Conversely, four of the five dissenters remain active judges. Plus, on today's panel, you've got a new judge (Judge Bennett) who wasn't on the court back in 2014 and who's now indicated on which side of this dispute he lies.
So if you count the votes you now know (based on their votes today or in 2014), of the active judges eligible for en banc service, it's 5-2 in favor of the side that lost in 2014. Which, among other things, suggests that there's a very real chance that the issue gets taken en banc again and, this time, comes out the other way.
And I'm sure today's panel can count the votes in exactly the same way I can. Probably much better, even.
Now, admittedly, this ignores whatever effect that one might give to circuit stare decisis. Which, in my view, has a nontrivial role in a case like this. The court decided this issue just six years ago. No material differences (in precedent or otherwise) have changed since then. The only difference is that there are new judges on and off the active roster of the Ninth Circuit. As well as that a new draw for an en banc panel might result in a different mix of judges than transpired back in 2014. One could make a strong argument for stare decisis having strong force in a situation like that.
On the other than, it's not like there's much (if any) reliance interest on a decision that says that you get a retrial rather than a conditional reversal when the trial court employs the wrong legal standard in admitting or rejecting expert testimony and we can't tell on appeal what the result would have been if the correct standard was employed. So that's an argument that suggests that maybe the force of stare decisis is not as strong here as in some other cases. Plus there's the argument that the prior opinion was just flat out wrong and, as the panel here argues, wastes substantial judicial resources for no good reason. All of which might push a future en banc panel to reject the prior circuit precedent in order to do the "right" thing.
So my prediction is that there's an en banc vote in this case. One that may well be successful, and that may well end up with a new panel that overrules the decision of the 2014 en banc court.
Though not without some controversy. Because, yes, maybe the prior en banc court got it wrong. But maybe errors like that are something we just have to live with if we want a process that doesn't get 6-5 en banc decisions revisited every time judges come and go from the active roster.
