In Re: Tmi Litigationlori Dolan; Joseph Gaughan; Ronald Ward; Estate of Pearl Hickernell; Kenneth Putt; Estate of Ethelda Hilt; Paula Obercash; Jolene Peterson; Estate of Gary Villella; Estate of Leo Beam, Appellants No. 96-7623in Re: Tmi Litigationall Plaintiffs Except Lori Dolan, Joseph Gaughan, Ronald Ward, Estate of Pearl Hickernell, Kenneth Putt, Estate of Ethelda Hilt, Paula Obercash, Jolene Peterson, Estate of Gary Villella and Estate of Leo Beam, Appellants No. 96-7624in Re: Tmi Litigationall Plaintiffs; Arnold Levin; Laurence Berman; Lee Swartz, Appellants No. 96-7625, 199 F.3d 158 (3d Cir. 2000)

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US Court of Appeals for the Third Circuit - 199 F.3d 158 (3d Cir. 2000)

January 4, 2000


Before: GREENBERG and McKEE, Circuit Judges, and GREENAWAY, District Judge.* 


IT IS HEREBY ORDERED, that the Slip Opinion filed in this case on November 2, 1999 (193 F.3d 613), be amended as follows:

On page 85 (193 F.3d at 665), at the conclusion of the sentence, "With the parameters of our inquiry in mind of our review in mind, the teachings of Daubert and the aforementioned scientific principles as our guideposts, we can now proceed to apply yardstick of Daubert to the expert opinions at issue here and determine if they were properly excluded under the Rules of Evidence.." insert as footnote number 93 the following text:

Our recent holding in Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999), does not assist our inquiry. In Padillas, the defendant moved for summary judgment, arguing that the plaintiff's expert's report did not meet Daubert standards for admissibility. The District Court excluded the expert's report and granted summary judgment to the defendant without an in limine hearing. We reversed and remanded for an in limine hearing.

We were concerned with the process the District Court must generally use in exercising its gatekeeping role under Daubert. We noted that " [w]e have long stressed the importance of in limine hearings under Rule 104(a) in making the reliability determination required under Rule 702 and Daubert." Id. at 417 (quoting United States v. Downing, 753 F.2d 1224, 1241 (3d Cir. 1985); In Re Paoli Railroad yard PCB Litigation, 916 F.2d 829, 854 (3d Cir. 1990) ("Paoli I"); and Hines v. Consolidated Rail Corp., 926 F.2d 262, 272 (3d Cir. 1991)), especially when a Daubert challenge is made in the context of a summary judgment motion or where summary judgment will inevitably be granted if the proffered evidence is excluded. Thus, we expressed our belief that an in limine hearing is important, even in the absence of a request for such a hearing by the proponent of the expert testimony, because the plaintiff "need [s] an opportunity to be heard" on the critical issues of scientific reliability and validity. Id. When afforded such an "opportunity to be heard," a plaintiff has a chance to have his or her expert demonstrate and explain the "good grounds" upon which the expert evidence rests. Id. at 418. Moreover, an opportunity to demonstrate the expert's "good grounds" is particularly important when the court's ruling on admissibility turns, in large part, upon "the factual dimensions of the expert evidence." Id. We did not intend to suggest that an in limine hearing is always required for Daubert gatekeeping. Rather, we held that "when the ruling on admissibility turns on factual issues, . . ., at least in the summary judgment context, failure to hold [an in limine] hearing may be an abuse of discretion." Id. at 418.

Padillas does not apply to our current inquiry because here, the District Court held extensive in limine hearings -- lasting almost five full weeks -- during which the trial plaintiffs were certainly given the "opportunity to be heard" in defense of their experts' submissions. Padillas certainly does not establish that a District court must provide a plaintiff with an open-ended and never-ending opportunity to meet a Daubert challenge until plaintiff "gets it right" and it certainly does not establish that a plaintiff must be given the opportunity to meet a Daubert challenge with an expert's submission that is based on a new methodology completely different from the one the expert originally engaged in.

Further, increase each footnote following added footnote 93 by one numeral.



The Honorable Joseph A. Greenaway, Jr., United States District Court Judge for the District of New Jersey, sitting by designation.