Retrial for Mesothelioma Patient Debated by 9th

SEATTLE (CN) - The full 9th Circuit debated whether a retrial of an asbestos case is necessary after a federal judge failed to properly vet an expert witness.

During his decades of work at a Washington paper mill, Henry Barabin regularly worked with dryer fabrics made with asbestos. After he developed mesothelioma, Barabin and his wife sued AstenJohnson and Scapa Dryer Fabrics, which had supplied the fabrics.

Though a Washington jury awarded the Barabins $9.3 million in 2009, a three-judge panel of the 9th Circuit vacated the award in 2012. That court ordered a new trial because it found that U.S. District Judge Robert Lasnik should have ordered a Daubert review of Kenneth Cohen, the industrial health expert who testified on behalf of the Barabins.

Daubert v. Merrell Dow Pharmaceuticals Inc. requires trial courts to perform a "gatekeeping" function to determine the admissibility of expert witness testimony.

After the court voted in March to rehear the case en banc, an 11-judge panel met in Seattle last week.

Arguing on behalf of the manufacturers, Carney Badley Spellman attorney Michael King said his clients should not have to face a new trial.

There is no reason to send the case back for "gatekeeping that didn't occur the first time," King said.

"We are entitled to judgment as a matter of law," he added.

King pressed the point that the appellate panel could do its own review of the expert witnesses and was in a "superior position" to the District Court.

"You can do the job yourself just as well," King said.

The lawyer also noted that "we asked for a Daubert hearing and we were turned down."

"And now you don't want one," Judge M. Margaret McKeown said.

McKeown also noted that federal appeals courts are not mandated to conduct Daubert reviews.

King tried to persuade the judges to make a reliability determination themselves rather than "boot it back" to the lower court. He argued that a remand would "prolong the case unnecessarily."

Noting that he was "not exactly anxious" to do a Daubert review, Judge N.R. Smith said he was inclined to review for "harmless error."

If the lower court finds that Cohen's expert testimony was harmless error, the judgment stands. If it was harmful, the 9th Circuit can send the case back to the trial court. "I do it every day," Smith said.

King replied that Cohen's testimony represented the only evidence that the Barabins presented. If the court concludes the testimony is inadmissible, "we're done with this case," he said.

The Barabins' attorney, Phil Talmadge with Talmadge/Fitzpatrick, said it was a "misstatement to the court" to say the lower court "punted" on a Daubert hearing.

Judge Johnnie Rawlinson, who wrote the opinion for the panel that overturned the award, countered: "Didn't the court say that it was just going to let everything in and let the jury sort it out?"

Talmadge disagreed but conceded that Judge Lasnik had in fact said as much during the trial proceedings.

"The defendants want you to believe the judge did absolutely nothing to assess the validity of these experts' testimony," the lawyer went on. "He did address these issues."

Smith said he was "a little troubled" after reading in the trial transcripts that Lasnik said he didn't think he needed a Daubert hearing.

"That doesn't sound to me like he has in any way made a Daubert determination."

The panel then questioned Talmadge about why the case should be sent back if Lasnik failed to adequately vet the witnesses the first time.

Talmadge said that remanding the case was the right thing to do and was "important, because the District Court had the opportunity to sit through the entirety of the trial."

Chief Judge Alex Kozinski pressed, "Why not do it here? If all the District Court can do is what we can do here now, why not short-circuit a second opinion and just do it?"

Talmadge replied: "This is a matter that the district court should decide."

Smith countered by saying that, in an evidentiary decision, the panel should "not to send it back to have the district court tell us how they should have done it."

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