Ninth Circuit says relevance of asbestos expert should have been tested

By Nathan Bass | Nov 21, 2012


SEATTLE (Legal Newsline) - A three-judge panel of the United States Court of Appeals for the Ninth Circuit has vacated a district court's judgment and remanded for a new trial in an asbestos case because the court failed to make relevance and reliability determinations regarding expert testimony.

The plaintiff, Henry Barabin, worked at the Crown-Zellerbach paper mill from 1968-1984, and he says he was exposed to dryer felts containing asbestos during part of his employment. The felts were provided by AstenJohnson, Inc. and Scapa Dryer Fabrics, Inc.

In November 2006, Barabin was diagnosed with mesothelioma.

During the trial in the U.S. District Court for the Western District of Washington, Judge Robert S. Lasnik allowed an expert for Barabin to testify without holding a Daubert hearing to determine whether the expert, Dr. Cohen, was reliable.

After a jury trial, Barabin and his wife were awarded more than $9 million dollars. The defendants filed a motion for a new trial on, among other things, the admission of expert testimony.

The district court declined to order a new trial and the defendants appealed to the Ninth Circuit.

"In its role as gatekeeper, the district court determines the relevance and reliability of expert testimony and its subsequent admission or exclusion," Judge Johnnie B. Rawlinson wrote for the Court.

"Daubert provided the... factors for consideration in assessing the reliability of proffered expert testimony," the Judge explained, referring to the test adopted by the federal court system and named after the case Daubert v. Merrell Dow Pharm., Inc. (1993).

"Unfortunately, because no Daubert hearing was conducted as requested, the district court failed to assess the scientific methodologies, reasoning, or principles Dr. Cohen applied. None of the Daubert factors was considered. Instead, the court allowed the parties to submit the experts' unfiltered testimony to the jury."

Having determined that the district court had committed error, the Court turned to the remedy - "Under our precedent, the district court's decision to allow presentation of the expert testimony to the jury without making any gateway determinations regarding relevance and reliability constituted an abuse of discretion requiring a new trial."

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