[author: Eliot Harris]
The Ninth Circuit Court of Appeals recently vacated a $10 million jury verdict and remanded Barabin v. AstenJohnson, Inc, et. al. back to Washington federal district court for a new trial after concluding that the district court abused its discretion by not conducing a Daubert hearing before permitting an expert witness to offer his "any exposure" theory.
The case involved the plaintiff, a worker at Crown-Zellerbach paper mill in southwest Washington, who allegedly suffered from asbestos-related cancer caused by exposure to asbestos from various equipment and materials at the mill. Though there was evidence that the plaintiff was exposed to amphibole-containing insulation products, the case proceeded to trial against two defendants, both of which manufactured dryer felts that contained chrysotile and were used at the mill. Prior to trial, the defendants moved in limine to exclude testimony by the plaintiffs’ expert, Ken Cohen, regarding Dr. 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 Dr. 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 Dr. Cohen during a pretrial conference after the plaintiffs presented information describing Dr. Cohen’s use as an expert in the Washington state courts and in other courts. With little explanation, the district court also refused to hold a Daubert hearing regarding Dr. Cohen’s “any exposure” theory. The Ninth Circuit noted that “the extent of the [district] court’s explanation was: ‘I think 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 jury returned a $10.2 million verdict for the plaintiffs.
The Ninth Circuit vacated the jury verdict after concluding that the district court should have held a Daubert hearing to assess the scientific methodologies, reasoning or principles behind Dr. Cohen's "any exposure" theory. The Ninth Circuit noted that none of the Daubert factors was considered, and instead, “the court allowed the parties to submit the experts’ unfiltered testimony to the jury.” The Ninth Circuit pointed out that after the plaintiffs presented the district court with additional information to support Dr. Cohen’s testimony, the district court, at a minimum, was required to assess the scientific reliability of the proffered expert testimony, rather than leaving it to the jury to determine the relevance and reliability of the proffered expert testimony in the first instance.
The case was remanded to the district court for a new trial.