Trial lawyers frustrated by judges who delegate Daubert decisions to juries under the guise of “credibility” versus admissibility can take solace.  There is growing support for requiring trial courts to critically examine expert testimony.  In its recent decision in Estate of Barabin v. Asten Johnson, the 9th Circuit reversed a major verdict against two dryer felt companies which allegedly contributed to Henry Barabin developing mesothelioma while employed at a paper mill.

       At the trial in the U.S. District Court for Western Washington, the plaintiffs sought to introduce evidence from several expert witnesses including Kenneth Cohen, an industrial hygienist, Dr. Carl Brodkin, a typical “one-fiber” causation expert, and Dr. James Millette, a researcher who has long been involved in asbestos-related research.   The attorneys for the two dryer felt manufacturers moved to exclude the testimony of plaintiff’s experts on the grounds that methodology they utilized was not reliable.  The trial court declined to evaluate the reliability of the proffered testimony, did not conduct a so-called “Daubert” hearing, and permitted the experts to testify.  In fact, while originally ruling to exclude the proffered testimony of Mr. Cohen based on his “dubious credentials and lack of expertise,” the district court reversed its position following further argument from plaintiff’s counsel and permitted Mr. Cohen to testify.  The attorneys for the defendant manufacturers objected to each witness’ testimony during the trial.  Following the trial, the jury awarded the plaintiffs $10.2 million.  The defendants immediately filed a Motion for New Trial on the grounds that the expert testimony had been improperly admitted into evidence.

       The 9th Circuit found the trial court had abused its discretion by failing to act as a “gatekeeper” as required by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).  In the “gatekeeper” role, the trial court must assess or make findings regarding expert testimony.  In this case, the trial court abdicated its duty to assess the reliability of the expert testimony proffered by plaintiffs and failed to make any findings regarding the scientific validity or methodology of Dr. Millette and Mr. Cohen.  Further, the 9th Circuit found the trial court’s decision to allow plaintiff’s causation expert to testify that “every exposure” to asbestos was causative of the plaintiff’s mesothelioma, in the interest of “allowing each party to try its case to the jury,” to be an abdication of the trial court’s gatekeeper role.  Significantly, the appeals panel concluded that the district court could not cure the defects of relevancy and reliability in Dr. Millette’s video-taped fiber exposure recreations by cautioning the jury that there were marked difference between the conditions of the test and the actual conditions at the mill where Mr. Belbin worked.  The panel held that by allowing the three experts to testify without assessing the reliability of the evidence they were to present, the trial court severely prejudiced the dryer felt manufacturers, writing that prejudice “is at its apex when the district court erroneously admits evidence that is critical to the proponent’s case.”  In light of the trial court’s abuse of discretion and the severe prejudice to the defendants, the 9th Circuit remanded the case for a new trial.

       Additionally, the 9th Circuit, sitting en banc, overruled its own decision in Mukhtar v. California State University, 299 F.3d 1053, 1066 n.12 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003), and for the first time held that an appellate court may make findings to determine whether expert testimony is relevant and reliable if the record is sufficient (and where there was an underlying Daubert ruling, it nearly always will be).  In the Barabin case, however, where there was no Daubert hearing or findings, the court found the record to be too sparse to rule on the admissibility of the expert testimony.

      The important takeaway from this decision for practitioners is that knowledge of the procedural rules as well as the underlying science, and insistence upon building a complete record supporting their challenges to the plaintiff’s experts’ qualifications is essential, even when it is apparent that the testimony will be permitted by the trial judge.  On the other hand, it is also necessary to obtain, on the record, findings regarding the expert qualifications of experts being offered in support of your case.  The perseverance of the attorneys for the defendants in Barabin, in making a strong case to exclude the plaintiffs’ experts from testifying prior to the trial, and their careful attention to preserving the appellate record with appropriate objections again at trial created the record and preserved the issues by which they were able to nullify a $10 million jury verdict.  The Barabin case, together with the recent decision in In Re Garlock Sealing Technologies, are likely to lead plaintiffs’ experts to bring greater rigor and discretion to their causation opinions in future asbestos cases, and to develop strategies to be more trial-ready as increased attention is brought to the admissibility of the illogical and unreliable expert testimony routinely relied upon by plaintiffs’ counsel in the asbestos litigation.