*1 lеased, court vacates unless the State merely replace guilty plea. We
Johnson’s inadequate light remedy, which was findings. The district court’s of the court’s remedy contrary to the was established remedying a Sixth
general principles of ineffective assis- Amendment violation during plea occurring counsel tance of furthermore, it stage, and negotiation fully to redress the constitutional failed case. particular error
IV. CONCLUSION grant AFFIRM the district court’s petition habeas but of Johnson’s VACATE remedy. The district writ of ha- grant court shall conditional subject corpus, beas to the state court vacating granting Johnson’s conviction and
him a new trial.
Henry BARABIN; Barabin, Geraldine
Plaintiffs-Appellees,
v. ASTENJOHNSON, INC., Defendant-
Appellant. Henry Barabin; Barabin, Geraldine
Plaintiffs-Appellees, AstеnJohnson, Inc., Defendant, Dryer Fabrics, Inc.,
Defendant-Appellant. 10-36142, Nos. 11-35020. of Appeals, United States Court Ninth Circuit. Argued and Submitted Jan. 2012. Filed Nov. *2 B. King (argued)
Michael and Emilia L. P.S., Sweeney, Carney Badley Spellman, Seattle, WA, AstenJohnson, Inc. Ferm, Mary Spillane H. and Daniel W. Williams, Gibbs, PLLC, Seattle, Kastner & WA, Fabrics, Dryer Scapa Inc. Carter, Purcell, Brayton Camerоn O. LLP, Portland, OR; Philip Talmadge A. Tribe, (argued), Sidney Tal- PLLC, Tukwila, WA; madge/Fitzpatrick, Purcell, LLP, Brayton, Brayton Alan No- vato, CA, Henry and Geraldine Bara- bin.
Before: A. WALLACE GRABER, P. SUSAN and JOHNNIE B. RAWLINSON, Judges. Circuit RAWLINSON; Opinion Judge TASHIMA; by Judge Concurrence by Judge GRABER. Concurrence
OPINION
RAWLINSON, Judge: (AstenJohnson) AstenJohnson, Inc. Fabrics, Scapa Dryer (Scapa), appeal Inc. entry Henry favor of and Geraldine Barabin fol- lowing jury resolving Henry Bara- bin’s claim that his mesothelioma was by occupational exposure caused to asbes- manufac- Scapa tos. AstenJohnson and dryer tured felts contained asbestos machines paper were installed paper Henry used in the mill where Bara- relevant, As now AstenJohn- bin worked. son and contend by improperly court abused its discretion admitting expert evidence. laboratory which are not the pursuant to 28 conditions jurisdiction have [Henry’s same as conditions at work- § the district court 1291. Because U.S.C. significantly place].” This limitation di- obligations its under Dau- failed to fulfill *3 strength minished the of Dr. Millette’s bert,1 and rеmand judgment we vacate prospective opinion. for a new trial.2 conference, During pre-trial the dis- I. BACKGROUND trict court decision to exclude reversed its Dr. Cohen’s The district court pro- and trial motions A. Pre-trial explained response that in the Barabins’ to ceedings limine, the motions in the Barabins clari- exposed to asbestos Henry Barabin was credentials, including fied Cohen’s that He em- through from 1964 1984. was he had testified in other cases. The dis- until his retirement ployed from 1968 hearing. trict court did not hold a Daubert mill, paper 2001 at the Crown-Zellerbach See U.S. S.Ct. containing dryer which used felts asbestos (setting judge’s gatek- forth the trial Scapa. and supplied AstеnJohnson eeping obligation to ensure that prospec- Henry During employment, worked his reliable). tive is jobs exposed dryer him to the various Scapa provid- felts AstenJohnson and history B. Procedural Henry dryer pieces ed. also took felt case, presentation After of Plaintiffs’ As- garden. to in his home use Scapа and tenJohnson filed motions for November, 2006, Henry diag- was law, judgment as a matter of which were pleural malignant epithelial nosed with closing arguments denied. After and be- undisputed mesothelioma.3 It is ex- verdict, fore the Scapa AstenJohnson and posure respirable asbestos causes meso- renewed their motions for as a thelioma. matter of again law. The district court denied the motions.
AstenJohnson filed a
motion
limine
to exclude Drs.
and
jury
Cohen4
Millette as
The
found in favor of the Barabins
$10,200,000.
witnesses. The district court
damages totaling
ex-
and awarded
cluded Dr. Cohen as an
because of
granted
The district court
AstenJohnson’s
his “dubious credentials and his lack of
Scapa’s
judg-
motions to vacate the
expertise
regard
dryer
with
felts and ment and scheduled a reasonableness
paper mills ...” Additionally,
hearing.
After the
rul-
hearing and after
court limited Dr. Millette’s
ing
damages
re-
that the
award was reason-
able,
quiring
jury
disclosure to the
that Dr.
applied
the district court
an оffset of
$836,114.61
“performed
settlements,5
Millette’s tests were
previous
under
ulti-
Pharm.,
Inc.,
dispute
1. Daubert v. Merrell Dow
4.
There was some
as to whether Dr.
U.S.
these two
(1)
theory
whether
the scientific
or
(and
been) tested,
technique can
has
be
II. STANDARDS OF REVIEW
(2)
theory or technique
whether the
Evidentiary rulings are reviewed
subjected to peer
publi-
been
review and
however,
discretion;
we re
for abuse of
(3)
cation,
whether there is a known or
of the
interpretation
court’s
view district
(4)
rate,
potential error
and whether the
Rules of Evidence de novo. See
Federal
theory
technique
generаlly accept-
or
Urena,
903, 908
States v.
659 F.3d
United
community.
in
relevant
ed
the
scientific
—
(9th
denied,
U.S. -,
Cir.2011), cert.
(2012).
214
182 L.Ed.2d
Univ.,
132 S.Ct.
Mukhtar v. Cal. State
299 F.3d
Cir.2002)
(citations
1053, 1064
omit-
court’s denial
We review a district
ted).
of
a motion for new trial for abuse
of
Montes,
States v.
discretion. See United
ruling
After the district court’s
re
(9th Cir.),
cert. de
1187
solving AstenJohnson’s motion in limine
—
nied,
-,
U.S.
by excluding
testifying
Dr. Cohen from
as
— U.S. -,
1229 and
S.Ct.
L.Ed.2d
witness, the Barabins filed a
an
52,
In federal
the admission of ex-
losing
(noting
case. See id. at 1067-68
testimony
governed by
is
Federal
that
challenged expert testimony
once the
702,
Rule of Evidence
as elucidated
the was
no
excluded
evidence of discrimination
Supreme Court in
At
Daubert.
the time of
remained). The potentially significant in-
case,
trial in
provided:
the
Rule 702
testimony
fluence of
underscores
sciеntific, technical,
spe-
or other
importance
the
“gatekeeping”
assiduous
knowledge
cialized
will assist the trier of by
judges.
fact to understand the evidence or to
presented
Once
with the additional in-
issue,
in
qual-
determine
fact
a witness
skill,
formation in the
expert by knowledge,
response
ified as an
Barabins’
education,
experience, training,
limine,
or
may motion in
at a minimum the dis-
testify
in
opinion
thereto
the form of an
trict
required
court was
to assess the sci-
(1)
otherwise,
if
testimony
the
is
proffered
entific
of the
(2)
upon
data,
based
sufficient facts or
Ellis,
testimony. See
657 F.3d
982
the
the product
is
of reliable
(“Under Daubert, the trial court must act
(3)
principles
methods,
the wit-
‘gatekeeper’
junk
as a
to exclude
science
ness
applied
principles
the
and that
not
does
meet Federal Rule of Evi-
reliably to
methods
the facts of the case.
”) (ci-
dence 702’s
...
standards
Fed.R.Evid. 702
omitted).
so,
tation
In failing to do
the
neglected
perform
district court
Compliance
ga-
with Rule
its
702 is
gauged by
the
tekeeping
district court’s assessment
role. See
299 F.3d at
unlikely
It
is
admissibility
the
state
used to determine the
of novel
courts where Dr.
evidence....”)
(citation
Cohen testified used the
omitted);
scientific
assessing
Daubert standard in
the admissibili
587,
see also
among both scientists testimony is rele- whether such respects majority I concur all cases. In the vant to asbestos-related opinion, Judge as well as Grаber’s con- party try each its allowing interest of I curring opinion. separately briefly write deems admis- jury, case to the the Court to address another issue raised in this every expo- sible appeal, majority which the does not ad- dis- sure can cause asbestos-related dress, likely again because it is to arise *6 ease. retrial. added).
(Emphases trial, Barabin, At the plaintiff Geraldine precedent, wife, the district court’s Henry Under our Barabin’s testified that she presentation health, to allow decision to be to maintain her wanted able testimony jury making any without caring Henry, for and continue be able to regarding determinations rele- gateway pay Henry’s necessаry for medications. an constituted abuse vance further testified that she did not She destitute,” a new trial. id. requiring of discretion See implying “want to be left ‘special the “trial court’s (noting recovery at 1063 left she would be so without cross-examination, to determine the relevance and obligation’ defendants. On from (cita- expеrt’s testimony”) sought impeach of to Mrs. Bara- defendants (re- omitted); see also id. at 1068 fi- credibility regarding tion bin’s her fear of manding expert’s for a new trial where the by nancial destitution reference to collat- testimony prop- “without the was admitted eral source evidence. The district and the error objection er dеtermination” line of plaintiffs’ sustained harmless).7 discussion, was not inquiry citing without extended rule, generally the collateral source which reversible The district court committed bars such evidence. proffered error when it failed to assess ap- reported Washington for relevance and relia- But no case pears question to have confronted the of bility. id. Our decision Mukhtar pay- in this whether evidence collateral source dictates that new trial be Accordingly, impeachment. id. the ments can be used Oth- circumstance. See argue any error in less. 7. The Barabins do not admitting was harm- Dr. Cohen's however, recognize an im- jurisdictions, Accordingly, judgment
er
harmless.
can-
peachment exception to the collateral
not stand.
See, e.g.,
source rule.
Corsetti v. Stone
however,
I
separately,
express
write
Co.,
396 Mass.
483 N.E.2d
that,
my disagreement
pursu-
with the rule
(1985) (“Our
long recognized
cases have
ant to Mukhtar v.
State Uni-
California
circumstances,
in some
evidence of
(9th Cir.2002),
versity,
App.4th Cal.Rptr.2d 855-56 is, indeed, that the expert testimony reli- (2002) (“There exceptions are to the [col- able, purpose what empanel- served exclusion, lateral rule of for exam- source] ing jury conducting new another ple, where the defendant is allowed to lengthy trial likely the outcome of which introduce оtherwise inadmissible evidence will be already identical to the one con- ... impeach self-serving testimo- query by cluded? Mukhtar answers that ny....”). Similarly, Supreme Court holding that we cannot trust a district recognized that even evidence excluda- “post-hoc court not to succumb to rational- ble under the Miranda rule is admissible ization.” 319 1074. But we rou- impeachment. See Harris v. New tinely trust district courts to reassess their York, 222, 224-25, 401 U.S. judgments earlier in matters of more con- L.Ed.2d 1 sequence See, disputes money. than over Ameline, e.g., United States v. The appears district court not to have (9th Cir.2005) (en banc). Regardless, considered whether Su- I do not share Mukhtar’s lack of faith in would, сonfronted, preme Court if so rec- *7 our district courts. ognize an impeachment exception to the rule, collateral source only but relied on Mukhtar, itWere not for I would condi- general “well-established” rule. Be- tionally vacate the and remand cause appear good grounds there to be to the distriсt court with instructions to recognize impeachment exception to the make a new Daubert determination. rule, Washington collateral source and be- reliable, the expert testimony is then the controlling cause of the lack of original judgment should be re-entered. law, case should the issue arise again оn reliable, If the testimony is not then retrial, it helpful appeal would be if the the court preside should over a new trial. district court would articulate the reasons (Reinhardt, ruling for its on this issue. J., dissenting from reh’g denial of en
banc). GRABER, Judge, Circuit with whom Judge, joins, concurring: fully
I concur majority opinion. The district court failed explain ade-
quately its reasons for admitting the ex- testimony, and the error was not