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February 14, 2014

Ninth Circuit Court of Appeals Vacates $9.3 Million Asbestos Verdict
Estate of Barabin v. AstenJohnson, Inc.



The Ninth Circuit Court of Appeals vacated a $9.3 million asbestos verdict, holding that the US District Court for the Western District of Washington erred in admitting expert testimony without undergoing a Daubert hearing and without making the necessary findings of relevancy and reliability under Federal Rule of Evidence 702.  It also held that a reviewing court can properly make findings related to expert testimony admissibility if it “decides the record is sufficient to determine whether expert testimony is relevant and reliable…”

Plaintiff Henry Barabin alleged that he was exposed to asbestos while working at a paper mill, which caused pleural mesothelioma, a rare cancer affecting the tissue sourrounding the lungs.  Prior to trial, Defendants moved to exclude the testimony of Plaintiffs’ industrial hygienist,  Kenneth Cohen, arguing that he was not qualified to testify and that his theory was not the product of scientific methodology.  Defendants also moved to exclude expert Dr. James Millette arguing that his tests were unreliable due to marked differences between testing conditions and actual conditions at the paper mill.  Defendants also sought to exclude any testimony regarding the theory that “every asbestos fiber is causative.”  The court initially excluded the testimony of Cohen but subsequently reversed its decision after Plaintiffs presented further information regarding the factual basis for the expert’s testimony and related testimony in other trials.  The court did not hold a Daubert hearing related to the testimony of any expert and all of the testimony was allowed at trial.  The disctrict court essentially passed to the jury its concerns with the reliability of the expert testimony.  
Why This Case Is Important
This case highlights the trial court’s function as a gatekeeper to exclude junk science that does not “logically advance a material aspect of the party’s case” and has no “reliable basis in the knowledge and experience of the relevant discipline.”  Reliability rests upon a number of non-exhaustive factors: (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.  It is an abuse of discretion for the trial court to relinquish its gatekeeper role and delegate the evaluation of expert testimony to the jury.




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