In Estate of Henry Barabin v. AstenJohnson, Inc., – F.3d -, 2014 U.S. App. LEXIS 774, 2014 WL 129884 (9th Cir., Jan. 15, 2014) en banc, the Ninth U.S. Circuit Court of Appeals vacated a $10.2 million judgment in the Plaintiffs’ favor in a case where Plaintiff alleged that occupational exposure to asbestos from dryer felts caused his mesothelioma. The Ninth Circuit held that the district court abused its discretion by neglecting its duty as a “gatekeeper” under Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Federal Rule of Evidence 702, by improperly admitting expert testimony at trial without first determining its reliability. The en banc court held that admitting the testimony on the debated theory that “each asbestos fiber causes mesothelioma” was prejudicial error and the court remanded the case for a new trial. The court also held that a reviewing court has the authority to make Daubert findings based on the record established by the district court, but in the instant case, the record was “too sparse” to determine whether the expert testimony was relevant and reliable or not.
This ruling is a victory for the defense in that it reaffirms the federal court’s exclusive gatekeeper role and holds that the role may not be ignored or shifted to a jury. Unfortunately, the court did not go so far as to evaluate the inherent reliability of expert opinions based on the theory that “each asbestos exposure causes mesothelioma.” As such, it did not provide guidance as to what specific foundational requirements are required to admit, or exclude, these types of opinions under a Daubert analysis.
In Barabin, Plaintiff alleged he was exposed to asbestos while working at a paper mill with dryer felts manufactured and supplied by Defendants. The issue was whether the dryer felts substantially contributed to Barabin’s development of mesothelioma, a determination that required expert testimony.
Defendants sought to exclude Plaintiff’s experts, Kenneth Cohen and Dr. James Millette, on the grounds that they were unqualified, their theories were not the product of scientific methodology, and the tests relied upon were unreliable because they were not generally accepted in the scientific community. The district court initially excluded Cohen’s testimony, but allowed Millette to testify without holding a hearing under Daubert. Before the trial, the district court reversed its ruling and allowed Cohen to testify, again without a Daubert hearing. At the conclusion of the case, the jury found in favor of Barabin after hearing both experts testify and hearing the theory that “every asbestos fiber is causative.”
The Ninth Circuit held that as to the “every exposure” theory that Plaintiff’s experts testified about, the district court failed to act as gatekeeper and “rather than make findings of relevancy and reliability, the district court passed its greatest concern . . . to the jury to determine.” Although this is a federal case and not controlling in California state courts, it could certainly be persuasive if cited in conjunction with the California Supreme Court case of Sargon v. University of Southern California (2012) 55 Cal. 4th 747, that the trial court has the duty under California Evidence Code 801 and 802 to act as a “gatekeeper” to exclude speculative expert testimony since Barabin’s focus is directly on one of plaintiff’s favorite ploys of using the “every exposure is causative” approach.
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