Heather Isringhausen Gvillo Jan. 16, 2014, 4:52pm

SEATTLE (Legal Newsline) - An en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion on Wednesday in the Barabin asbestos case, reversing the district court's $10.2 million verdict and remanding the suit to the trial judge for an entirely new trial and analysis of the plaintiff's expert witnesses.

The opinion was given by Judge N. Randy Smith on Wednesday in favor of defendants AstenJohnson, Inc. and Scapa Dryer Fabrics, Inc., in a lawsuit filed by claimant Geraldine Barabin, personal representative of the Estate of Henry Barabin.

Henry Barabin worked at Crown-Zellerbach paper mill from 1968 until 2001, where dryer felts were used in the paper-making process. The defendants allegedly supplied the mill with the dryer felts. Barabin worked with and near the dryer felts, but he also took pieces of the felt home with him to use in his garden. He was diagnosed with mesothelioma in 2006.

The jury found in favor of the Barabins and awarded them a $10.2 million verdict.

Attorney Mark Behrens of Shook, Hardy & Bacon, said the Smith's ruling focused entirely on the lower court's erroneous decisions regarding expert testimony.

"The court did not comment one way or the other on any exposure," Behrens stated in an email, "so its primary value is to prevent federal/Daubert judges from doing a slipshod analysis of asbestos experts."

Smith wrote that the district case was to be a "battle of the experts" as to whether asbestos-containing dryer felts substantially contributed to Barabin's mesothelioma. Both parties delivered experts prepared to testify; however, the trial court abused its discretion regarding expert testimony, the opinion says.

The court determined that "the district court failed to make findings of relevancy and reliability before admitting into evidence certain expert testimony, and that this error resulted in prejudice to the defendant."

Further, Smith writes that the district court abused its discretion when it admitted expert testimony at trial by failing to perform a proper Daubert hearing and make determinations under Federal Rule of Evidence 702.

Daubert hearings are common but are not required. A Daubert hearing requires that a proponent of expert testimony provide a proper foundation, which calls for establishing relevancy and reliability rather than depending on general acceptance.

Federal Rule of Evidence 702 governs admission of expert testimony, specifically stating that "if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods and the witness has applied the principles and methods reliable to the facts of the case."

AstenJohnson and Scapa filed motions in limine to exclude Kenneth Cohen and Dr. James Millette as expert witnesses. They argued that Cohen was not qualified to testify because his theory was not a product of scientific methodology, and Millette's work with asbestos fiber release from dryer felts was unreliable because his methodology is generally not accepted in the scientific community. The motions also sought to exclude any expert testimony regarding the theory that "every asbestos fiber is causative."

The district court excluded Cohen without performing a Daubert hearing due to his "dubious credentials and lack of expertise with regard to dryer felts and paper mills."

The court also stated that it was troubled by the differences in Millette's tests and the actual conditions at the mill, but allowed him to testify on the condition that the jury be advised that the tests were done under laboratory conditions.

"Rather than making findings of relevancy and reliability," Smith wrote, "the district court passed its greatest concern about Dr. Millette's testimony to the jury to determine."

Despite defendant objections, the court later reversed its decision and allowed the experts to testify.

As to the "every exposure" theory, the trial court justified its decision to permit these expert testimonies "in the interest of allowing each party to try its case to the jury," stating that there is a "strong divide among both scientists and courts on whether such expert testimony is relevant to asbestos related cases."

Smith stated that the court delegated its role as gatekeeper to the jury "by giving each side leeway to present its expert testimony."

The only explanation as to why the district court reversed its decision was that the Barabins "did a better job" presenting their motion.

"Absent from the explanation is any indication that the district court assessed, or made findings regarding, the scientific validity or methodology of Mr. Cohen's proposed testimony. Therefore, the district court failed to assume its role as gatekeeper with respect to Cohen's testimony," Smith wrote.

Smith added that expert testimonies must be relevant and reliable to be permissible despite flexibility in the reliability inquiry.

"The issue here is reliability: whether an expert's testimony has 'a reliable basis in the knowledge and experience of the relevant discipline.'"

According to Daubert, evidentiary reliability is based on scientific validity.

"The duty calls squarely upon the district court to 'act as a 'gatekeeper' to exclude junk science that does not meet Federal Rule of Evidence 702's reliability standards," the opinion says.

The appellate court also considered the Harmless error review, which questions whether or not the jury would reach the same verdict if the expert testimonies had been different. It also burdens the beneficiary of the error to prove there was no injury.

"The Barabins fail to rebut the presumption of prejudice," Smith wrote.

"Indeed, they admit they cannot win without this expert testimony. Prejudice is at its apex when the district court erroneously admits evidence that is critical to the proponent's case. The improper admission of the expert testimony severely prejudiced AstenJohnson and Scapa because the Barabins' claim depended wholly upon the erroneously admitted evidence. Given these circumstances, there is no doubt the error was not harmless."



Behrens summarized the trial court's actions, saying the court rejected two key arguments the Barabins made in an attempt to save the case, starting with the plaintiffs' request for a Daubert hearing.

"Their first argument to support that approach was that the appellate court did not have the authority to exclude the experts on its own, given the inadequate job by the trial judge, and must remand that decision," Behrens stated.

The panel disagreed, saying it did have the authority and remanded a new trial.

"The second key argument the court rejected was that on remand, the trial judge should get another shot at a Daubert decision without necessarily holding a complete new trial," Behrens stated. "This issue is particularly important, because if plaintiffs were right the judge could simply hold a Daubert hearing, rule that the experts can testify, and then reinstate the $10.2 million verdict. Instead, the panel ruled that if expert admissibility error occurred and was prejudicial, the only recourse was an entire new trial. Thus, the plaintiffs now have to first get past a real Daubert analysis, and then win an entire new trial in front of a new jury."

Behrens praised the ruling as beneficial despite its narrow focus merely on expert testimonies.

"Although the court did not assess the 'any exposure' theory one way or the other, the court's insistence on a thorough Daubert review is beneficial for us in asbestos litigation, where some judges take short cuts and just let these plaintiff warhorse experts testify without scrutiny," Bahrens stated. "It clearly rejects the motion that an expert dispute over 'any exposure' is by itself enough to get to the jury. This opinion makes it clear that a federal/Daubert court cannot just accept plaintiff's or experts' say so and must inquire as to the reliability of their opinions."

AstenJohnson and Scapa moved for a new trial, which was denied by the district court, so they filed an appeal. Then the Barabins petitioned for the case to be re-heard en banc. A majority of non-recused active judges voted to rehear the case.

Circuit Judge Jacqueline H. Nguyen partially concurred and partially dissented. She agreed with the majority's opinion concluding that the trial court failed to fulfill its gatekeeping role regarding the expert testimony.

However, she dissented with the "majority's application of harmless error review, and would conditionally vacate the judgment and remand with instructions to conduct a Daubert analysis in the first instance.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbesetos@legalnewsline.com

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