Estate of Henry Barabin v. Astenjohnson Inc
700 F.3d 428
9th Cir.2012Background
- Barabin's asbestos exposure occurred 1964–1984; worked 1968–2001 at a Crown-Zellerbach paper mill using dryer felts with asbestos supplied by AstenJohnson and Scapa.
- Barabin was exposed to dryer felts in various jobs and even took felt pieces home; diagnosed with pleural malignant mesothelioma in November 2006, a disease caused by asbestos exposure.
- AstenJohnson and Scapa sought to exclude Dr. Cohen and limit Dr. Millette's testimony; district court initially excluded Dr. Cohen, then reversed and allowed him to testify, without a Daubert hearing.
- District court did hold a trial; jury awarded Barabins $10.2 million; court reduced via offsets for prior settlements and awarded $9.37 million in damages plus costs.
- Appeals challenged the admission of expert testimony as violating Daubert; the Ninth Circuit vacated judgment and remanded for a new trial to address gatekeeping reliability concerns.
- Concurrences discuss collateral-source impeachment and critique Mukhtar-remand approach, but the core holding is reversal for new trial on the Daubert gatekeeping issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion regarding Daubert gatekeeping. | Barabins: court failed to assess reliability/relevance of Cohen (and Millette) without a Daubert hearing. | AstenJohnson/Scapa: court should permit jury to assess expert testimony after limiting procedures. | Yes; district court abused discretion by not conducting a proper Daubert reliability/relevance determination. |
| Whether the error requires a new trial on remand. | A new trial should be held if gatekeeping error occurred and affected outcome. | Remittitur/appeal could suffice or judgment re-entry if experts deemed reliable. | A new trial is required for proper gatekeeping under Daubert/Mukhtar framework. |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (Supreme Court (1993)) (gatekeeping reliability and validity of expert testimony)
- Mukhtar v. California State Univ., 299 F.3d 1053 (9th Cir. 2002) (test for reliability; need gatekeeping by trial court; peers scrutiny)
- Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) (Daubert gatekeeping and reliability standards apply)
- Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010) (non-exhaustive Daubert factors; focus on sound methodology)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Supreme Court (1999)) (extends Daubert gatekeeping to all expert testimony)
- Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir. 2007) (remand for new trial when error affects substantial rights; abuse of discretion)
- United States v. Urena, 659 F.3d 903 (9th Cir. 2011) (ebid; evidentiary rulings reviewed for abuse of discretion)