Ninth Circuit Reverses Jury Verdict Based On Lack Of Daubert Determination

After an employee contracted mesothelioma from asbestos exposures during his employment at a paper mill, his $9.4 million jury verdict was reversed after the trial court erred in admitting expert causation testimony without conducting the required gateway determination for expert testimony, in Barabin v. AstenJohnson, Inc., _ F.3d _ (9th Cir. Nov. 16, 2012) (Nos. 10-36142, 11-35020)

Starting in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the Supreme Court clarified that the trial court has a gatekeeping role before expert testimony may be admitted, including some non-exhaustive factors for assessing the reliability of the expert testimony. As part of a series, we have previously noted that a formal Daubert hearing is not always required to admit expert testimony so long as the record is clear that the trial court’s screening function was fulfilled. See, e.g., Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (Part VI). A recent Ninth Circuit case highlights the consequences that may result when this gatekeeping function is not fulfilled.

In the case, employee Henry Barabin was exposed to asbestos during his employment at a paper mill. He was diagnosed with mesothelioma. He and his wife filed a tort action against his employer and the manufacturer of dryer felts that contained the asbestos. At trial, initially the trial court indicated that the plaintiffs’ expert testimony would be excluded based on the expert’s “dubious credentials and his lack of expertise with regard to dryer felts and paper mills. . . ” The court also placed limitations on the testimony of another expert (informing the jury that his tests were “performed under laboratory conditions which are not the same as” the workplace conditions). After the plaintiff urged the trial court to reconsider, noting that the first expert had testified in other state cases, the court ruled that the expert testimony would be admitted. No Daubert hearing was held concerning the expert testimony. The expert testified that the “mesothelioma was caused by occupational exposure to asbestos.” The jury returned its verdict for the plaintiff, and the defendant’s appealed, challenging the admission of the expert testimony. The Ninth Circuit reversed the jury verdict. As the circuit explained:

Unfortunately, because no Daubert hearing was conducted as requested, the district court failed to assess the scientific methodologies, reasoning, or principles Dr. Cohen applied. None of the Daubert factors was considered. Instead, the court allowed the parties to submit the experts’ unfiltered testimony to the jury. … [T]he decision to admit or exclude expert testimony is often the difference between winning and losing a case. The potentially significant influence of expert testimony underscores the importance of assiduous “gatekeeping” by trial judges. … The district court committed reversible error when it failed to assess the proferred expert testimony for relevance and reliability.
Barabin, _ F.3d at _ (citations omitted).


The plaintiffs did not argue that the error was harmless. The case was remanded for a new trial. For other cases noting the discretion of the trial court on whether to hold a Daubert hearing, see Full Daubert Hearing Is Not Always Required To Admit Expert Testimony, (II), (III), (IV), and (V).

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Federal Rules of Evidence
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