Concerns About Expert Testimony Upset Victory in Occupational Asbestos Exposure Case

Crown Zellerbach Paper MIll

Two companies that supplied asbestos-laced materials to a paper mill have urged a federal appeals court to assess the reliability of expert testimony on occupational asbestos exposure case. The expert testified in an asbestos personal injury lawsuit filed by a former paper mill employee. If the companies are successful, they may avoid a new trial in the U.S. District Court for the Western District of Washington, where a jury previously awarded $9.4 million to the plaintiffs.

Henry Barabin’s Legal Victory

The plaintiff, Henry Barabin, alleged that he developed mesothelioma as a result of occupational asbestos exposure. Mr. Barabin worked at the Crown-Zellerbach refinery and paper mill from 1968 until his retirement in 2001. During that time, he was exposed to asbestos dust from dryer felts manufactured by Scapa Dryer Fabrics, Inc. and AstenJohnson Inc. The dryer felts were installed on paper machines used in Mr. Barabin’s workplace. Mr. Barabin also took pieces of the dryer felts home for use in his garden.

Mr. Barabin was diagnosed with malignant epithelial mesothelioma in 2006. He and his wife, Geraldine Barabin, sued AstenJohnson and Scapa. A jury ultimately awarded them $9.4 million in 2009. Mr. Barabin died while his case was on appeal.

9th Circuit Snatches Victory Away

AstenJohnson and Scapa appealed the verdict on grounds that the district court didn’t assess the reliability of the plaintiffs’ expert testimony. They argued that the district court did not follow guidelines for admitting scientific evidence established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under the Daubert analysis, trial courts must assess the reliability of expert testimony based on several factors, including whether the technique or theory used by the expert can be tested.

The question of this particular expert’s reliability actually came up before trial. Before a court admits expert testimony, the parties must provide details about their proposed expert’s experience and qualifications. But in this case, the district court wasn’t initially satisfied with what the plaintiffs had to say about their expert. In fact, the court excluded the expert because of his “dubious credentials and … lack of expertise with regard to dryer felts and paper mills.” The district court later changed its mind after the plaintiffs provided more information about the expert’s credentials and testimony he had offered in other trials.

But according to the decision made by the U.S. Court of Appeals for the 9th Circuit on appeal, the district court’s analysis was also dubious. The 9th Circuit held that the district court “abused its discretion by improperly admitting evidence.” Although the trial court was satisfied that the plaintiffs had sufficiently explained their expert’s credentials, it didn’t hold a Daubert hearing to analyze the scientific validity of the expert’s methods.

This doesn’t mean that the court had to decide whether the expert’s testimony was right or wrong. It’s up to jury to decide whether to accept what an expert says. But under Daubert, it is the court’s job to consider whether the expert’s methods and theories have been tested and reviewed by others in the scientific community. In this role, courts are considered “gatekeepers” that keep “junk science” away from the jury.

In this case, the 9th Circuit held that the district court “neglected to perform its gatekeeping role.” As a result, it threw out the $9.4 million award to the plaintiffs and remanded the case to the district court for a new trial.

Reliability of Expert Will Ultimately Determine Outcome

It appears that expert testimony played a large role in the first trial. None of the parties disputed that airborne asbestos particles can cause mesothelioma. But there was conflicting expert testimony about the extent to which chrysotile asbestos fibers from the dryer felt contributed to Mr. Barabin’s injuries. 

Evidence offered by the plaintiffs focused on how Mr. Barabin was injured by fibers from the defendants’ products. But other experts testified that Mr. Barabin’s exposure to amphibole asbestos fibers from insulation product used in the paper mill, rather than chrysotile asbestos from the dryer felt, could have caused the plaintiff’s mesothelioma. Apparently, their testimony wasn’t persuasiveness enough to stop an award during the first trial. But it could prove more persuasive during a second trial if the plaintiffs’ expert is excluded.

Mrs. Barabin requested a rehearing after the 9th Circuit’s decision. During that hearing, her attorney argued that the district court did perform a Daubert analysis during motions made at the start of and after the trial. Meanwhile, the attorney for AstenJohnson and Scapa asked the 9th Circuit to simply rule on the reliability of the expert’s testimony now, instead of returning the case to the district court.

The 9th Circuit heard both sides’ arguments last month and is expected to issue a decision by the fall.


Karen Marshall has more than 17 years of legal experience and is an attorney with The Peterson Firm. She has been contributing to The Mesothelioma Center since 2011 and writes about asbestos-related legal issues and blogs for Asbestos.com.

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