Ninth Circuit En Banc Upholds Prior Ruling Vacating $10 Million Asbestos Verdict Over Failure to Conduct Daubert Hearing


The Ninth Circuit Court of Appeals en banc has affirmed a prior ruling vacating a $10 million jury verdict in an asbestos personal injury action, holding that the Washington federal district court abused its discretion by not conducting a Daubert hearing before permitting an expert witness to offer his "any exposure" theory at trial.  Estate of Barabin v. AstenJohnson, Inc., 2014 WL 129884.  The case is now remanded back to the district court for a new trial.

The plaintiff in Barabin worked for more than 40 years at the Crown-Zellerbach paper mill in southwest Washington.  The plaintiff allegedly suffered from asbestos-related cancer caused by exposure to asbestos from various equipment and materials at the mill.  The two remaining defendants at trial were AstenJohnson, Inc., and Scapa Dryer Fabrics, Inc., both of which allegedly manufactured asbestos-containing dryer felts used at Crown-Zellerbach during the plaintiff’s employment.  While the plaintiff alleged that he was exposed to chrysotile asbestos from the defendants’ products, the defendants introduced evidence that the plaintiff was also exposed to amphibole-containing insulation.  Prior to trial, the defendants moved in limine to exclude testimony by the plaintiffs’ expert, Ken Cohen, regarding Cohen’s theory – which is offered by other experts that commonly testify for plaintiffs in asbestos litigation – that “any exposure” to asbestos is sufficient to cause mesothelioma.  Under this theory of liability, the amount of exposure is essentially irrelevant to the causation analysis.

The district court originally excluded Cohen as an expert because of his “dubious credentials and his lack of expertise with regard to dryer felts and paper mills.”  However, the district court reversed its decision to exclude Cohen, and refused to conduct a Daubert hearing during a pretrial conference after the plaintiffs presented information describing Cohen’s prior admittance as an expert in Washington state courts and in other courts.  After hearing testimony from Cohen at trial, the jury returned a $10.2 million verdict for the plaintiffs.

In affirming its prior ruling in Estate of Barabin v. AstenJohnson, Inc., 710 F.3d 1074 (9th Cir. 2013), reversing the district court’s decision to not hold a Daubert hearing, the Ninth Circuit held that a reviewing court has the authority to make Daubert findings based on the record established by the district court, and overruled Mukhtar v. California State University, 299 F.3d 1053, 1066 n.12 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003), to the extent that it required that Daubert findings always be made by the district court.  The en banc court concluded that the record before the court was too sparse to determine whether the expert testimony was relevant and reliable, and remanded for a new trial.

The Ninth Circuit noted that the only explanation offered by the district court for allowing Cohen’s testimony – after noting his “dubious credentials and [a] lack of expertise” – was the district court’s belief that “the plaintiffs did a much better job of presenting to me the full factual basis behind Mr. Cohen testifying and his testimony in other cases.”  The Ninth Circuit noted that the district court did not present any indication that it had assessed, or made findings regarding, the scientific validity or methodology of Cohen’s proposed testimony.  Accordingly, the Ninth Circuit held that the district court failed to assume its role as gatekeeper with respect to Cohen’s expert testimony.  Expanding on its ruling, the Ninth Circuit noted that “[j]ust as the district court cannot abdicate its role as gatekeeper, so too must it avoid delegating that role to the jury.”

Barabin offers significant authority for defendants in asbestos and other toxic tort litigation to invoke the trial court’s gatekeeping role and seek Daubert hearings to challenge the scientific validity or methodology supporting the plaintiff’s experts’ proposed testimony at trial.

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