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From Products Liability Law Daily, October 6, 2014

High Court declines to review “automatic reversal rule” for trial court’s gatekeeping error

By Susan Lasser, J.D.

The U.S. Supreme Court declined to hear an appeal by the estate of a paper mill worker, who died of mesothelioma, of a decision by the U.S. Court of Appeals for the Ninth Circuit that reversed a $9.4 judgment and ordered a new trial against two suppliers of asbestos-containing dryer products. The Ninth Circuit had determined that the trial court improperly admitted expert testimony for the worker without first determining whether it was reliable and relevant under Daubert. The Ninth Circuit had found that because the worker’s claim was dependent on the expert’s testimony, the error was not harmless and a new trial was, therefore, required (Estate of Henry Barabin v. AstenJohnson, Inc., Dkt. No. 13-1252; petition filed, April 15, 2014, cert. denied October 6, 2014).

Background. After the worker, Henry Barabin, was diagnosed with mesothelioma, he and his wife brought suit against AstenJohnson and Scapa Dryer fabrics alleging that his exposure to their products caused his mesothelioma. The defendants moved to exclude the testimony of Barabin’s experts, Kenneth Cohen and Dr. James Millette. Without holding a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), a federal district court in Washington excluded Cohen’s testimony and allowed Millette’s testimony in the interest of allowing every party to present its case. Later, however, the trial court allowed Cohen’s testimony after the Barabins requested a Daubert hearing. The jury found in favor of the Barabins and awarded them damages, but a three-judge panel of the Ninth Circuit ruled that the district court had abused its discretion by not making findings on relevance and reliability. The panel remanded for a new trial under Mukhtar v. California State University, 299 F.3d 1053 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003), and the Ninth Circuit then granted the Barabins’ petition to hear the case en banc.

Ninth Circuit’s opinion. The Ninth Circuit agreed that the district court had abused its discretion in refusing to act as a “gatekeeper” under Daubert—it had not determined the scientific validity or methodology of either Cohen’s or Millette’s testimony, instead giving its duty of assessing their validity to the jury. The Ninth Circuit further found that a reviewing court should have the authority to make Daubert findings based upon the record in the district court, and overruled its decision in Mukhtar to the extent that it required these findings always to be made by a district court. However, because record was too sparse to determine whether the testimony was relevant and reliable, it ordered a new trial. The Barabins filed a petition for writ of certiorari (see Products Liability Law Daily’s analysis (April 21, 2014)).

Question presented. The question presented to the U.S. Supreme Court by the estate of the worker and his wife was: Whether, in a federal jury case, a district judge’s procedural failure to make detailed Daubert findings regarding important expert testimony requires the appellate court to order a new trial, regardless of whether there was actually any substantive error in the expert testimony heard or not heard by the jury.

The docket number is 13-1252.

Attorneys: Kenneth Chesebro for Estate of Henry Barabin. Clifton S. Elgarten (Crowell & Moring LLC) for AstenJohnson, Inc. Robert B. Gilbreath (Hawkins Parnell Thackston & Young, LLP) for Scapa Dryer Fabrics, Inc.

Companies: AstenJohnson, Inc.; Scapa Dryer Fabrics, Inc.

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