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Ninth Circuit Vacates $9M Jury Award For Lack of Daubert Hearing

Finding that the trial court failed to exercise its gatekeeping responsibility to determine whether expert testimony is relevant and reliable, the U.S. Court of Appeals for the Ninth Circuit vacated a $9.4 million mesothelioma award.  Barabin v. AstenJohnson, Inc., No. 10-36142 (9th Cir. Nov. 16, 2012), available at www.bdlaw.com/assets/attachments/Barabin.pdfThe Ninth Circuit held that the district court abused its discretion when it failed to conduct a Daubert hearing or otherwise make relevance and reliability determinations regarding the expert’s testimony.  Barabin, slip op. at 7.  

Plaintiff, a retired paper mill employee, and his wife sued a paper mill and dryer felt manufacturers alleging that his mesothelioma was caused by over 20 years of occupational exposure to asbestos. Id. at 4-5. The defendants filed a motion in limine to exclude plaintiffs’ expert. Id. at 5. The district court initially excluded plaintiffs’ expert because of his “dubious credentials and his lack of expertise with regard to dryer felts and paper mills,” but later reversed its decision allowing the expert to testify at trial. Id. at 5. The district court determined that plaintiffs, in a subsequent court submission, had “clarified [their expert’s] credentials, including that he had testified in other cases”. Id. The court, however, did not conduct a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. Id. The case proceeded to trial, and the jury found in favor of plaintiffs, awarding $10.2 million in damages. Id. at 6. After settlement offsets, the plaintiffs were awarded approximately $9.4 million. Id.

On appeal, the Ninth Circuit vacated the jury’s verdict. The Court of Appeals concluded that the lower court failed to assess the scientific methodologies, reasoning or principles plaintiffs’ expert applied, and improperly left it to the jury to determine the relevance and reliability of the proferred expert testimony. Id. at 9. The Court of Appeals noted that the “decision to admit or exclude expert testimony is often the difference between winning and losing a case,” and emphasized “the importance of assiduous ‘gatekeeping’ by trial judges.” Id. at 9, 11.