Bungled Expert Testimony Voids $9 Million Asbestos Verdict

A $9 million verdict for a mesothelioma case was tossed out based on the mishandling of expert testimony during the trial.  An 11-judge panel of the 9th U.S. Circuit Court of Appeals held Wednesday that the family of a man who contracted a rare cancer in 2006, after 33 years of working around asbestos in a Crown-Zellerbach paper mill, must go back to court again.

Henry Barabin and his wife argued that he worked around dryer felts that contained asbestos, which causes mesothelioma, and even took the felts home to use in his garden.  He and his wife sued the plant suppliers AstenJohnson and Scapa Dryer Fabrics.

During the trial, the companies tried to exclude two of Barabins’ experts from testifying.  The firms claimed industrial health expert Kenneth Cohen lacked proper credentials, and the second expert, Dr. James Millette, conducted unreliable tests with flawed methodology.

Although the en banc decision was unanimous on the result, it was closely split 6-5 on the review it should make of the trial judge’s mishandling of the evidence.  The dissenters agreed with the companies that the trial judge should have conducted a Daubert hearing, named for the 1993 case Daubert v. Merrill Dow Pharm.  The dissent would send the case back, not for a new trial, but simply to conduct a hearing to determine if the expert testimony was admissible and if it was then reinstate the jury’s $9 million award.

But the majority said it “rejects the dissents’ effort to insert a new step” into our review of evidentiary errors.

Cohen had worked in the industrial hygiene field for decades and taught courses on industrial toxicology.  Millette has worked in asbestos-related research since 1974.

The companies sought to exclude Cohen arguing he was not qualified to testify about dryer felts and paper mills, and that his theory was not a product of scientific methodology.  They also asked to exclude Millette, arguing his tests were unreliable because they were not generally accepted in the scientific community.

The appeals court send the case back to U.S. District Judge Robert Lasnik in Seattle saying at a new trial he must make findings of relevancy and reliability before admitting expert testimony.

Lasnik expressed concerns about both during a pretrial hearing but allowed them to testify, provided jurors were told the tests were performed in laboratory conditions that were not the same as conditions in the mill.

The failure to make relevancy findings in the Barabin’s first trial resulted in prejudice to the asbestos firms.

In a partial dissent, five of the 11 judges, said they would have gone farther and required the trial judge to conduct a more detailed hearing into the expert testimony before allowing it.  But apart from that, all 11 judges agreed with the outcome.

The dissenters arguing for more stringent review of experts were Judges Jacqueline Nguyen, Margaret McKeown, William Fletcher, Jay Bybee and Paul Watford.

Case: Estate of Barabin v. AstenJohnson, No. 10-36142

 

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