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Estate of Barabin v. AstenJohnson, Inc.

United States Court of Appeals, Ninth Circuit

January 15, 2014

ESTATE OF HENRY BARABIN; Geraldine BARABIN, personal representative, Plaintiffs-Appellees,
ASTENJOHNSON, INC., Defendant-Appellant. Estate of Henry Barabin; Geraldine Barabin, personal representative, Plaintiffs-Appellees,
AstenJohnson, Inc., Defendant, and Scapa Dryer Fabrics, Inc., Defendant-Appellant.

Argued and Submitted En Banc June 25, 2013.

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Michael B. King (argued) and Emilia L. Sweeney, Carney Badley Spellman P.S., Seattle, WA, for Defendant-Appellant AstenJohnson.

Mary H. Spillane and Daniel W. Ferm, Williams, Kastner & Gibbs PLLC, Seattle, WA, for Defendant-Appellant Scapa.

Cameron O. Carter, Brayton Purcell LLP, Portland, OR; Philip A. Talmadge (argued) and Sidney Tribe, Talmadge/Fitzpatrick PLLC, Tukwila, WA; and Alan R. Brayton, Gilbert L. Purcell, Lloyd F. LeRoy, James P. Nevin, and Richard M. Grant, Brayton Purcell LLP, Novato, CA, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Western District of Washington, Robert S. Lasnik, District Judge, Presiding. D.C. No. 2:07-cv-01454-RSL.


Opinion by Judge N.R. SMITH; Partial Concurrence and Partial Dissent by Judge NGUYEN.


N.R. SMITH, Circuit Judge:

This case requires us to once again consider the district court's admission of expert testimony at trial. We review the admission of expert testimony at trial for an abuse of discretion. Primiano v. Cook, 598 F.3d 558, 563 (9th Cir.2010). If the district court improperly admitted the expert testimony, we apply harmless error review to determine whether its decision must be reversed. United States v. Laurienti, 611 F.3d 530, 547 (9th Cir.2010). When we find the erroneous admission of evidence actually prejudiced the defendant, such that the error was not harmless, the appropriate remedy is a new trial. See United States v. 4.85 Acres of Land, 546 F.3d 613, 620 (9th Cir.2008). Applying this well-settled precedent to the facts of this case, we vacate the judgment and remand for a new trial.[1]


Henry Barabin worked at Crown-Zellerbach paper mill from 1968 until his retirement in 2001. In the mill, Crown-Zellerbach shredded logs into chips and then exposed the chips to corrosive chemicals and high pressure to create paper slurry. Paper slurry is ninety-nine percent water and one percent pulp fiber. The mill produced paper by removing water from the paper slurry. As part of that process, machines pulled the paper through dryers. Dryer felts held the paper against the dryers, so that the paper would dry properly. AstenJohnson, Inc. and Scapa Dryer Fabrics, Inc. supplied the mill with dryer felts that contained asbestos.

Barabin had a variety of jobs during the time he worked at the mill. He started as a paper sorter, working in a different

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building than where the dryers were located. He then moved to the technical department, where he worked as a pulp tester and a paper tester. On occasion, he worked at a test station that was about twenty feet from the dryers. After working in the technical department, he went to work on the paper machines. Part of his job was to clean the dryers. However, these jobs were not his only exposure to the dryer felts; he also took pieces of dryer felt home to use in his garden.

In 2006, Barabin was diagnosed with pleural malignant epithelial mesothelioma (" mesothelioma" ). Mesothelioma is a rare cancer that affects the tissue surrounding the lungs. Alleging that this occupational exposure to asbestos from the dryer felts caused his mesothelioma, Henry Barabin and Geraldine Barabin, his wife, brought suit against AstenJohnson and Scapa.

All parties agree, and the science makes clear, that asbestos exposure from inhaling respirable fibers can cause mesothelioma. At trial, the parties argued over whether exposure to the dryer felts (provided by AstenJohnson and Scapa) substantially contributed to Barabin's mesothelioma. Of necessity, the case was to be a battle of the experts. Both parties had experts who were prepared to testify in support of their arguments.

Two of the Barabins' experts were Kenneth Cohen and Dr. James Millette. Mr. Cohen had been employed in the industrial hygiene field for several decades. He had also taught industrial toxicology courses at a university. Dr. Millette had been involved in asbestos related research since 1974. He published a number of articles dealing with asbestos, including an article dealing with asbestos fiber release from dryer felts.

Prior to trial, AstenJohnson and Scapa filed motions in limine to exclude Mr. Cohen and Dr. Millette as expert witnesses. AstenJohnson argued that Mr. Cohen was not qualified to testify as an expert and that his theory was not the product of scientific methodology. AstenJohnson and Scapa argued that Dr. Millette's tests were unreliable, because his methodology was not generally accepted in the scientific community. They also argued that the disparity between his tests and the conditions at the mill was so great that his testimony would not help the jury. The motions also sought to exclude testimony from any expert regarding the theory that " every asbestos fiber is causative."

After receiving the motions, and without a Daubert [2] hearing, the district court excluded Mr. Cohen as a witness because of his " dubious credentials and his lack of expertise with regard to dryer felts and paper mills." The district court also had concerns with Dr. Millette's testimony. Specifically, the district court was " troubled by the marked differences between the conditions of Dr. Millette's tests and the actual conditions at the [mill]." Nonetheless, the district court ruled that Dr. Millette could testify provided the jury was informed his tests were " performed under laboratory conditions which are not the same as conditions at the [mill]."

As to the " every exposure" theory, the district court found " a strong divide among both scientists and courts" on whether it is relevant in asbestos cases. However, " [i]n the interest of allowing each party to try its case to the jury," the district court allowed the testimony.

The Barabins then filed a motion to request a pretrial Daubert hearing regarding

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Mr. Cohen. At a pretrial conference, the district court rejected the Barabins' request for a Daubert hearing. Instead, it reversed its decision to exclude Mr. Cohen's testimony. The district court's only explanation for why it reversed its decision was that the Barabins " did a much better job" in their motion " of presenting ... the full factual basis behind Mr. Cohen testifying and his testimony in other cases."

At trial, numerous experts testified. Both Mr. Cohen and Dr. Millette testified. Dr. Brodkin, another expert, also testified for the Barabins. Part of Dr. Brodkin's testimony was about the " every exposure" theory. As each of these experts testified, AstenJohnson and Scapa objected to their testimony. The district court overruled the objections.


After the Barabins presented their case at trial, AstenJohnson and Scapa filed motions for judgment as a matter of law. AstenJohnson and Scapa believed they were entitled to judgment as a matter of law, because the Barabins had failed to show that their companies had manufactured the dryer felts to which Barabin had been exposed. In the alternative, they argued that the Barabins had failed to demonstrate a causal link between the dryer felts and Barabin's mesothelioma. The district court denied ...

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