Big Mesothelioma Verdict Thrown Out Over Expert

     (CN) – The 9th Circuit on Friday canceled the nearly $10 million awarded to a man who developed mesothelioma after working for decades in a Washington paper mill.
     Citing improper admission of expert testimony, the federal appeals court in Seattle ordered a new trial.
     Henry Barabin worked at the Crown-Zellerbach paper mill from 1968 to 2001. Up until 1984 Barabin regularly worked around dryer felts containing asbestos, supplied to plant by AstenJohnson Inc. and Scapa Dryer Fabrics Inc.
     Barabin used the felts at work, and he also took pieces home to use in his garden, according to the court.
     After a 2006 diagnosis of pleural malignant epithelial mesothelioma, which is known to be caused by exposure to asbestos, Barabin and his wife sued the two companies in the Western District of Washington.
     U.S. District Judge Robert Lasnik initially excluded industrial health expert Kenneth Cohen from testifying on behalf of the Barabins, citing Cohen’s “dubious credentials and his lack of expertise with regard to dryer felts and paper mills,” but he later changed his mind and let Cohen testify.
     A jury subsequently 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.
     “Unfortunately, because no Daubert hearing was conducted as requested, the district court failed to assess the scientific methodologies, reasoning, or principles Dr. Cohen applied,” Judge Johnnie Rawlinson wrote for the panel. “None of the Daubert factors was considered. Instead, the court allowed the parties to submit the experts’ unfiltered testimony to the jury.”
     Though Judge Susan Graber concurred with the ruling, she wrote separately to challenge the precedent that forced the panel to vacate the jury’s ruling in its entirety (Mukhtar v. California State University, 9th Circuit, 2002).
     “On remand, the District Court dutifully will make a new Daubert determination,” 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.”

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