Is Limited Remand Required If the District Court Admitted or Excluded Evidence without a Daubert Analysis?

How a federal court of appeals disposes of a case after ruling on the merits depends on two federal statutes. Under 28 U.S.C. § 2111, a federal court of appeals may not reverse in the absence of harmful error.¹ Under 28 U.S.C. § 2106, once the court has determined that harmful error occurred, it may dispose of the appeal by directing the trial court to hold any further proceedings that may be appropriate.²

This article discusses the interplay between those statutes when the trial court has admitted or excluded evidence without first making the proper threshold finding on admissibility.³ In that situation, the question arises whether an appellate court must, instead of ordering a new trial, remand with instructions to the trial court to (i) determine whether the evidence was inadmissible, or if the court originally excluded the evidence, [*38] whether the evidence was instead admissible, and (ii) order a new trial if admitted evidence should have been excluded or excluded evidence should have been admitted. This article takes the position that the federal courts of appeals should retain the power to decide this question on a case-by-case basis.