Monthly Archives: December 2012
From 1968 to 2001, Henry Barabin worked at the Crown-Zellerbach paper mill. Until 1984, Mr. Barabin routinely worked around dryer felts containing asbestos, supplied to plant by AstenJohnson Inc. and Scapa Dryer Fabrics Inc. He used the felts at work, and he also took pieces home to use in his garden, according to the Court.
In 2006, Mr. Barabin was diagnosed with mesothelioma cancer.
He and his wife sued the two companies in the Western District of Washington. Initially, U.S. District Judge Robert Lasnik excluded industrial health expert Kenneth Cohen from testifying on behalf of the Barabins. Judge Lasnik had issues with Cohen’s “dubious credentials and his lack of expertise with regard to dryer felts and paper mills.” However, Judge Lasnik later changed his mind and allowed Mr. Cohen to testify.
A jury then ruled for Barabin and awarded $9.3 million in damages. AstenJohnson and Scapa moved for a new trial, arguing that the District Court should have waited to reverse itself after further assessing Cohen’s credentials in a Daubert hearing, named for the 1993 case Daubert v. Merrell Dow Pharm.
The District Court disagreed, but a three-judge appellate panel ruled Friday that the oversight was serious enough to prompt a new trial. For the panel, Judge Johnie Rawlinson wrote the decision, “None of the Daubert factors were considered. Instead, the Court allowed the parties to submit the experts’ unfiltered testimony to the jury.”
“On remand, the District Court dutifully will make a new Daubertdetermination,” she wrote. “If the court finds that the expert testimony is, indeed, reliable, what purpose is served by empaneling a new jury and conducting another lengthy trial the outcome of which likely will be identical to the one already concluded? Mukhtar answers that query by holding that we cannot trust a District Court not to succumb to ‘post-hoc rationalization.’ But we routinely trust district courts to reassess their earlier judgments in matters of more consequence than disputes over money. Regardless, I do not share Mukhtar’s lack of faith in our district courts. Were it not for Mukhtar, I would conditionally vacate the judgment and remand to the district court with instructions to make a new Daubert determination. If the expert testimony is reliable, then the original judgment should be re-entered. If the expert testimony is not reliable, then the court should preside over a new trial.”
The victims of Superstorm Sandy have seen enormous loss and devastation. Now, survivors need to recognize the risks of asbestos exposure.
The storm has claimed over 100 lives in the U.S.–mostly in New York, New Jersey and Pennsylvania. Over a hundred houses and housing units were destroyed, as witnessed by many news reporters throughout the New York/New Jersey area. We are talking about $62 billion and counting in damage and other losses in the country because of this latest storm.
To put Superstorm Sandy in perspective, Hurricane Katrina in 2005 left $128 billion damage in its wake, adjusted for inflation in 2012 dollars. In the Caribean, Sandy left no less than $315 million in damage.
A 2011 tornado in small town Joplin, Missouri left behind 2,600 tons of asbestos debris.
Contrast that one little community with all of the large communities, including the greater Manhattan area and the sizable New Jersey cities hit by Sandy. Linda Reinstein, president of the nonprofit Asbestos Disease Awareness Organization. “Do the math, and we can recognize that we have a significant public health risk with Hurricane Sandy.”
Along with schools and buildings, thousands of houses have water and wind damage, causing a spike in risks of exposure to various toxins. Asbestos related injury is one of the greatest concerns. Construction debris and waste likely contain microscopic asbestos fibers. Because these particles are virtually impossible to detect to the naked eye, people can unwittingly breathe it and ingest it. After time, mesothelioma or other severe medical conditions is a common result.