explaining “[w]hen 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, as we note below, should not be required to waste judicial time”
How later courts described this case
- explaining “[w]hen 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, as we note below, should not be required to waste judicial time”
- explaining that “[w]e would be hard pressed to require a District Court judge sitting in a non-jury case who credibly and with reason found that [s]he could not believe a witness to nevertheless hear the witness’s direct examination, cross-examination, and rebuttal examination in an extended trial when [s]he knew that [s]he would only reject it as unbelievable”
- recognizing that the circuits are split on whether the plaintiff or defendant bears the burden of proof on causation and noting that the Second Circuit, under Silverman, places the "burden of proof on plaintiff”
- holding that a plaintiff seeking individual relief under ERISA § 502(a)(3), in contrast to § 502(a)(2), which allows relief on behalf of a plan, is required to prove an individual loss
Written by the judges who cited it.
The opinion
SUR PETITION FOR PANEL REHEARING WITH SUGGESTION FOR REHEARING EN BANC
April 30, 1999
The petition for rehearing filed by Appellants having been submitted to the judges who participated in the decision of this Court, and to all the other available circuit judges in activé service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court en banc, the petition for rehearing is DENIED. Chief Judge Becker would grant rehearing en banc.
OPINION SUR PETITION FOR REHEARING
GARTH, Circuit Judge:
One day after we filed the opinion in this appeal, on March 22, 1999, the Supreme Court rendered its decision in Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). Kumho directed that the DaubeH factors be applied equally to non-scientific expert testimony as well as to scientific expert testimony. Although the Petition for Rehearing urges that Kumho now requires a change in this court’s panel majority opinion, we are satisfied that if anything, Kum-ho strengthens our analysis. 1
It should be noted that this court’s majority opinion specifically emphasized that “measured by any standard, scientific or non-scientific, the District Court did not *175 abuse its discretion in excluding Dr. Got-theimer’s testimony.” Maj. Op. at 157. In so stating, we equated non-scientific expert testimony with scientific expert testimony insofar as the Daubert factors are concerned. Thus, with the emphasis on a district court’s discretion to exclude or to admit expert testimony under General Electric Co. v. Joiner, 522 U.S. 136 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997), and Kumho, we are not persuaded that the Supreme Court’s Kumho opinion, which reversed the Eleventh Circuit, requires any modification of our disposition as reflected in Part VI of the filed majority opinion. Judge Weis joins in this opinion.
. See, e.g. Kumho, 119 S.Ct. at 1175 ("Our emphasis on the word 'may' thus reflects Daubert's description of the Rule 702 inquiry as ‘a flexible one.’ Daubert makes clear that the factors it mentions do not constitute a 'definitive checklist or test.' And Daubert adds that the gatekeeping inquiry must be 'tied to the facts of a particular case.' ”) (quoting Daubert, 509 U.S. at 591-94, 113 S.Ct. 2786 ); id. ("[T]he factors identified in Dau-bert may or may not be pertintent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.”) (quoting the brief for the Solicitor General); id. ("[Dau-bert’s\ list of factors was meant to be helpful, not definitive.”); id. at 1176 ("Our opinion in Joiner makes clear that a court of appeals is to apply an abuse-of-discretion standard when it ‘reviews a trial court’s decision to admit or exclude expert testimony.’ That standard applies as much to the trial court’s decisions about how to determine reliablility as to its ultimate conclusion.”) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997)).