Asbestos Alert: Barabin v. AstenJohnson, Inc., et al. Ninth District Court of Appeals, Action #10-36142, 11-35020 (November 16, 2012) Rehearing Granted on March 25, 2013


On March 25, 2013, the Ninth Circuit ordered that this case be reheard en banc. The hearing is currently expected to go forward during the week of June 24, 2013 in Seattle, Washington. A decision is expected within three months of the hearing date. The three-judge panel opinion at 700 F.3d 428 (discussed below) may no longer be cited as precedent.  

Plaintiff/respondent Barabin’s Petition for Rehearing argues that (1) the issues raised on appeal relate solely to liability and not in any way to damages and therefore retrial should be as to liability only and if liability is found, the judgment should stand; (2) the failure to conduct a Daubert hearing regarding Mr. Cohen’s testimony was harmless error because the totality of the evidence rendered his testimony cumulative; and (3) the rule of Mukhtar v. California State University (9th Cir. 2002) 299 F.3d 1053, requiring a new trial where a violation of the Daubert rule cannot be said to be harmless, should be reversed or modified.  

The Barabin decision was good for toxic tort defendants in that it strengthened the growing line of cases which emphasize the trial court’s role as a gate keeper, particularly with regard to medical and scientific evidence and theories which are beyond the experience of most jurors. The grant of a rehearing request removes, for the time being, the Barabin case from the quiver of cases which defendants could point to when asking a trial court to preclude plaintiffs from presenting this kind of evidence.  

It remains to be seen what the Ninth Circuit will do with this case. Because the determination that a Daubert hearing should have been held is not challenged, we feel any further opinion in this case is likely to again emphasize the importance of the trial court’s gate keeper function and could even strengthen that emphasis or provide more detail regarding how a trial court should perform that role. However, if the case is resolved before an opinion following rehearing is issued or if the Ninth Circuit decides to reverse or substantially alter the original opinion of the three-judge panel, then this emphasis could be lost.  

For a copy of the Petition for Rehearing and related papers, click HERE.  

Our original discussion of the three-judge panel’s opinion follows, but as that opinion is no longer in effect, our discussion should be considered for academic and historical purposes only, and not as an analysis of legal precedent.

District Court Judgment Reversed for Failure to Conduct Daubert Hearing Prior to Admitting Testimony of Plaintiff Expert, Kenneth Cohen 

In this case, the Ninth Circuit reversed a $10.2 million jury award in favor of plaintiffs represented by the Brayton Purcell firm because the district court failed to conduct a Daubert hearing when defendants challenged their use of industrial hygienist Kenneth Cohen. 

Plaintiff Henry Barabin claimed to have contracted pleural mesothelioma as a result of long-term exposure to defendants’ products. Defendants tried to block plaintiffs’ presentation of expert testimony by Dr. Cohen, initially by an in limine motion, and subsequently by motions for judgment as a matter of law and motions for new trial. The district court (USDC Western District of Washington, Hon. Robert S. Lasnik) denied these motions and allowed Dr. Cohen to testify, noting that Dr. Cohen had been allowed to testify in other cases and stating that it was acting “in the interest of allowing each party to try its case to the jury” – in other words, that it would be acceptable to allow the jury to make all determinations regarding the credibility and weight of Dr. Cohen’s testimony. 

The Ninth Circuit held that the district court committed reversible error because it failed to uphold its role as a gatekeeper. In its role as gatekeeper, the district court is required to determine the relevance and reliability of expert testimony and its subsequent admission or exclusion. Admission or exclusion, under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), rests on the scientific reliability and relevance of the expert testimony. The expert’s opinion must be deduced from a “scientific method” to be admissible. The Daubert court provided a list of four non-exhaustive factors for consideration in assessing the reliability of proffered expert testimony:

1.     Whether the scientific theory or technique can be (and has been) tested;

2.     Whether the theory or technique has been subjected to peer review and publication;

3.     Whether there is a known or potential error rate; and

4.     Whether the theory or technique is generally accepted in the relevant scientific community.

The Ninth Circuit stated, “Unfortunately, because no Daubert hearing was conducted as requested, the district court failed to assess the scientific methodologies, reasoning, or principles Dr. Cohen applied.” It further noted that in federal courts, the admission of expert testimony is governed by Federal Rule of Evidence 702 (setting out circumstances under which expert testimony will be accepted) and that compliance with Rule 702 is gauged by the district court’s assessment of the reliability of the proffered expert testimony. Here, the district court’s admission of Dr. Cohen’s testimony without making any gateway determinations regarding the testimony’s relevance and reliability constituted an abuse of discretion requiring a new trial.


The Ninth Circuit did not comment upon whether it thought Dr. Cohen’s testimony had a reasonable scientific foundation, and did not even discuss the evidence or arguments for or against admission of his testimony, other than noting that his testimony had been accepted in other cases. Whether Dr. Cohen’s opinions are properly supported was not the point of this opinion – the point was that the district court must, upon request, investigate the foundation of expert testimony. 

Many plaintiffs have claimed to have cancers that have not been shown to be potentially related to asbestos exposure, including stomach cancer and colon cancer. Plaintiffs often fail to present reasonable dosage estimates and pursue theories espousing that even the smallest chrysotile asbestos exposures can substantially increase the risk of contracting mesothelioma, lung cancer and other diseases that have been shown to be potentially related to asbestos exposure, but only when very large dosages or amphibole asbestos exposure is shown. Perhaps due to the constant presentation of such scientifically questionable claims, there now appears to be a strong trend by courts to look more closely at the foundation of proffered expert testimony, and to exclude testimony that is not shown to have a solid scientific foundation.

While Barabin and Daubert are federal court decisions, many states apply Daubert as their standard for admission of expert evidence. Even in states that have not expressly adopted Daubert (such as California, which continues to apply the Kelley-Frye rule), well-written opinions based on Daubert can be persuasive, as there is a great deal of overlap between the Daubert and Kelley-Frye doctrines.

It is ever more important for defense counsel to be familiar with the scientific research and papers relating to asbestos-related diseases and, when a plaintiff expert appears to be straying from generally accepted science, to actively and aggressively challenge that expert and ask the court to preclude the expert from testifying or to strike the testimony, if it has already been presented. Low, Ball & Lynch has had great success in excluding the testimony of plaintiff experts, resulting in dismissal of cases.

For a complete copy of the Barabin opinion, click here.


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