Lack of Daubert Hearing Cancels $9.4M Verdict

By Robert Ambrogi Esq

Trial judges are expected to act as “gatekeepers” to keep junk science out of their courtrooms. While judges generally have broad leeway in how they assess the relevance and reliability of expert testimony, they must assess it somehow – they cannot delegate the task to the jury.

But that is exactly what happened in an asbestos-exposure trial that ended with a $9.4 million verdict for the plaintiffs. An en banc panel of the 9th U.S. Circuit Court of Appeals found that the trial judge failed to make any findings about the relevance and reliability of expert testimony, instead leaving those issues for the jury to decide. Concluding that this was an abuse of discretion that prejudiced the trial’s outcome, the court vacated the verdict and ordered a new trial.

Efforts to Exclude Experts

In the lawsuit, brought by a paper mill worker, Henry Barabin, diagnosed with pleural malignant epithelial mesothelioma believed to have been caused by the dryer felt being used in the paper production process, AstenJohnson, Inc. and Scapa Dryer Fabrics, the dryer felt manufacturers, were sued for damages.

It was undisputed that asbestos exposure can cause mesothelioma, but the parties disagreed over whether exposure to the dryer felts could have contributed to Barabin’s disease.

To prove the connection, Barabin was prepared to call two experts on his behalf. One, Kenneth Cohen, had been employed in the industrial hygiene field for several decades and had taught industrial toxicology courses at a university. The other, Dr. James Millette, had been involved in asbestos related research since 1974. He had published a number of articles dealing with asbestos, including an article dealing with asbestos fiber release from dryer felts.

Prior to trial, AstenJohnson and Scapa filed motions in limine to exclude Cohen and Millette as expert witnesses. AstenJohnson argued that Cohen was not qualified to testify as an expert and that his theory was not the product of scientific methodology. AstenJohnson and Scapa argued that Millette’s tests were unreliable, because his methodology was not generally accepted in the scientific community.
They also argued that the disparity between his tests and the conditions at the mill was so great that his testimony would not help the jury. The motions also sought to exclude testimony from any expert regarding the theory that “every asbestos fiber is causative.”

Without holding a Daubert hearing, the trial judge ordered that Cohen be excluded as a witness because of his “dubious credentials and his lack of expertise with regard to dryer felts and paper mills.” The trial judge also expressed concerns about Millette’s testimony, saying he was “troubled by the marked differences between the conditions of Dr. Millette’s tests and the actual conditions at the [mill].” Nonetheless, the judge ruled that Millette could testify provided the jury was informed his tests were “performed under laboratory conditions which are not the same as conditions at the [mill].”

As to the “every exposure” theory, the trial judge found “a strong divide among both scientists and courts” on whether it is relevant in asbestos cases. However, “[i]n the interest of allowing each party to try its case to the jury,” the judge allowed the testimony.

Barabin then filed a motion asking the judge to hold a Daubert hearing with regard to Cohen. During a pretrial conference, the judge denied the motion for a Daubert hearing but reversed his decision to exclude Cohen’s testimony. At trial, both experts were allowed to testify, as was a third expert for the plaintiffs, who testified about the “every exposure” theory.

Gatekeeping Cannot Be Delegated

A jury awarded Barabin $10.2 million, which the judge reduced to $9.4 million. Both Scapa and AstenJohnson filed motions seeking a new trial or to overturn the verdict, in part based on the improper admission of expert testimony. The judge denied the motions.

The companies appealed to the 9th Circuit, where a three-judge panel held that the trial judge abused his discretion by failing to make the necessary relevancy and reliability findings under Daubert. Barabin sought review by the full en banc circuit, which was granted.

The court began its analysis by noting that Rule 702 and Daubert require the trial judge to act as a gatekeeper to exclude junk science that is not reliable. Although the trial judge has broad latitude in determining how to perform this inquiry, the judge must perform some degree of inquiry.

As to Cohen, the judge failed to perform this gatekeeping function, the court concluded. Absent from the record was “any indication that the district court assessed, or made findings regarding, the scientific validity or methodology of Mr. Cohen’s proposed testimony.”

The same was true as to Millette, the court found. The judge failed to act as a gatekeeper, instead passing that duty on to the jury. “Rather than making findings of relevancy and reliability, the district court passed its greatest concern about Dr. Millette’s testimony to the jury to determine,” the court explained.

The court reached the same conclusion about the trial judge’s decision to allow the jury to hear the conflicting evidence regarding the “every exposure” theory. “Just as the district court cannot abdicate its role as gatekeeper, so too must it avoid delegating that role to the jury,” it said.

Thus, the court concluded, the trial judge abused his discretion by admitting the expert testimony without first finding it to be relevant and reliable under Daubert. The court further concluded that the failure to hold a Daubert hearing prejudiced the outcome of the trial.

“The improper admission of the expert testimony severely prejudiced AstenJohnson and Scapa because Barabin’s claim depended wholly upon the erroneously admitted evidence,” the court said. “Given these circumstances, there is no doubt the error was not harmless.”

For that reason, the court vacated the verdict and sent the case back to the lower court to conduct a new trial.

Five judges dissented in part from the opinion. Rather than vacate the judgment, they would have conditionally vacated it with instructions to the trial judge to first hold a Daubert hearing and determine whether the disputed testimony was admissible. If so, then the judge could reinstate the verdict without the need for another trial.

The case is Estate of Barabin v. AstenJohnson, Nos. 10-36142, 11-35020 (9th Cir. Jan. 15, 2014).

It’s your turn to weigh in.  Should the verdict be reinstated without another trial?

Robert Ambrogi Esq

Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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