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From Products Liability Law Daily, January 16, 2014

District court failed to assess reliability, relevancy of expert testimony in asbestos case; new trial ordered

By John W. Scanlan, J.D.

A federal district court abused its discretion when it failed to assess the reliability and relevancy of proposed expert testimony under Daubert and admitted the testimony at trial, the U.S. Court of Appeals for the Ninth Circuit held. Because the testimony was essential to the defendants’ case, the error was prejudicial. The case was remanded for a new trial because the record was too sparse for the Ninth Circuit to make a determination of whether the testimony was relevant and reliable (Barabin v. AstenJohnson, Inc., January 15, 2014, Smith, N.).

Background. Henry Barabin worked at a paper mill from 1968 to 2001. AstenJohnson, Inc. and Scapa Dryer Fabrics, Inc. supplied the mill with dryer fabrics containing asbestos. In 2006, Barabin was diagnosed with mesothelioma. He and his wife filed suit against AstenJohnson and Scapa, alleging that exposure to the dryer felts caused his mesothelioma. The companies filed motions in limine to exclude two of the Barabins’ experts. AstenJohnson asserted that Kenneth Cohen was unqualified to testify as an expert and that his theory was not the product of scientific methodology, and the companies argued that Dr. James Millette’s tests were unreliable because his methodology was not generally accepted in the scientific community and that the disparity between conditions of the mill and his tests was too great to help the jury. AstenJohnson and Scapa also sought to exclude the testimony of any expert regarding the theory that every asbestos fiber is causative.

The district court excluded Cohen as an expert witness because of his “dubious credentials and his lack of expertise with regard to dryer felts and paper mills.” The court did not exclude Millette’s testimony, even though it was “troubled” by the difference between the conditions in the mill and the conditions of the test, but stated that the jury needed to be informed that the tests were performed under different conditions. The court also allowed testimony regarding the “every exposure theory,” even though it noted that there was a divide among scientists and courts regarding this theory, in the interest of “allowing each party to try its case to the jury.” However, after the Barabins requested a Daubert hearing regarding Cohen, the district court reversed itself and allowed him to testify, stating that they had done a much better job in presenting the factual basis behind his testimony and his testimony in other cases.

Numerous experts testified at trial, including Cohen and Millette. The court denied the defendants’ motions for judgment as a matter of law, and the jury awarded the Barabins $10.2 million, which was offset in part by $836.114.61 to reflect settlements with third parties. The defendants moved for a new trial or a remittur, but these motions also were denied. They appealed, and a three judge panel of the Ninth Circuit held that the district court abused its discretion by not making relevancy and reliability findings. The panel remanded for a new trial under Mukhtar v. California State University, and the Ninth Circuit then granted the Barabins’ petition to hear the case en banc.

Expert testimony/Daubert. The district court abused its discretion because it admitted the expert testimony without first determining whether it was relevant and reliable under Daubert, the Ninth Circuit ruled. The district court’s only explanation for excluding Cohen’s testimony based on “his dubious credentials and lack of expertise” was that it thought that the plaintiff did a better job of presenting the full factual basis behind his testimony in this and in other cases; because the court did not assess the scientific validity or methodology of his testimony, it failed to assume its role of gatekeeper under Daubert. Regarding Millette’s testimony, the Ninth Circuit found that the district court’s determination that it could be admitted as long as the jury was informed of the differences between the test conditions and the actual mill conditions was also a failure of its gatekeeping function. Rather than assessing the scientific validity of his testimony, the district court gave that task to the jury.

Harmless error. The erroneous admission of expert testimony was not harmless error because it severely prejudiced the defendant companies, according to the court. The plaintiffs’ claim was completely dependent on the mistakenly admitted testimony; therefore, there was no doubt that it was not harmless error. The Ninth Circuit stated that it was overruling Mukhtar v. California State University, 299 F.3d 1053, 1066 n.12 (9thCir. 2002), amended by 319 F.3d 1073 (9thCir. 2003), to the extent Mukhtar required anything more than a non-harmless erroneous admission of expert testimony to order a new trial. Furthermore, the Ninth Circuit agreed with the defendants that a reviewing court should have the authority to make Daubert findings based upon the record in the district court, and overruled Mukhtar to the extent that it required these findings always to be made by a district court. However, the Ninth Circuit declined to do so in this case, stating that the record was too sparse to determine whether the testimony was relevant and reliable. Therefore, a new trial was ordered.

Dissent. In a partial concurrence and partial dissent joined by four other judges, Judge Nguyen agreed that the district court failed in its gatekeeping function regarding the testimony, that the record was too limited for the court of appeals to make Daubert findings itself, and that overruling Mukhtar was proper because there was no reason to require a new trial whenever a district court failed to conduct a Daubert analysis. However, she found the majority opinion’s analysis of the harmless error issue to be “seriously flawed” because it first did not consider admissibility. Under the majority’s ruling, parties and the judicial system will be burdened by the ordering of new trials before determining whether the disputed expert testimony was admissible. If it was admissible, then “no harm, no foul.” The Ninth Circuit should have remanded the case to the district court for a Daubert analysis, she argued. If inadmissible, the district court could then determine whether the admission of that testimony prejudiced the defendants.

The case number is 10-36142.

Attorneys: Lloyd F. LeRoy (Brayton Purcell, LLP) for the Estate of Henry Barabin. Michael Barr King (Carney Badley Spellman, P.S.), George William Shaw (K&L Gates LLP) and Forrest Ren Wilkes (Forman Perry Watkins Krutz & Tardy) for AstenJohnson, Inc.

Companies: AstenJohnson, Inc.

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