$9+ Million Verdict for Asbestos Injury Victim Thrown Out
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.”