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Barabin: Evidentiary Victory for the Defense or Evidentiary Cop-Out?

In Estate of Henry Barabin v. AstenJohnson, Inc., - F.3d -, 2014 U.S. App. LEXIS 774, 2014 WL 129884 (9th Cir., Jan. 15, 2014) en banc, the Ninth U.S. Circuit Court of Appeals vacated a $10.2 million judgment in the plaintiffs’ favor.  The Ninth Circuit held that the district court abused its discretion by abdicating its role as a “gatekeeper” and admitting, without a Daubert/FRE 702 hearing, testimony of asbestos plaintiff experts Kenneth Cohen and Dr. James Millette, including the controversial theory that “every fiber causes mesothelioma.” While this is great news for the defendants in this case, the Ninth Circuit did not go as far as it could and should have to limit such ill-founded expert testimony.    

The case was the largest asbestos verdict ever in the Western District of Washington.  The plaintiffs alleged Barabin was exposed to asbestos while working at a paper mill with dryer felts manufactured by defendants. The question at trial was whether the dryer felts substantially contributed to Barabin’s development of mesothelioma, a determination that required expert testimony.

The district court initially excluded industrial hygienist Cohen without a Daubert hearing because of his “dubious credentials and his lack of expertise with regard to dryer felts and paper mills.”  However, it allowed material scientist Millette to testify even though the court was “troubled by the marked differences between the conditions of Dr. Millette’s tests and the actual conditions at the mill.”  As to the “every exposure” theory, the court allowed the opinion in “the interest of allowing each party to try its case to the jury.”  The court then backpedaled and permitted Cohen to testify after the plaintiffs filed a motion seeking a Daubert hearing because they “did a much better job” in their motion of presenting the “full factual basis” behind Cohen’s testimony.  At no time did the district court conduct Daubert hearings on the above. 

After a three-judge panel reversed on Daubert grounds, the Ninth Circuit reheard the matter en banc. The en banc decision focused closely on Daubert and Federal Rule of Evidence 702, recognizing that “[t]he issue here is reliability: whether an expert’s testimony has ‘a reliable basis in the knowledge and experience of the relevant discipline.’ ” Barabin recognized that it is the duty of the district court to function as a gatekeeper “to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards.”   While a trial judge has broad latitude in determining the appropriate form of the inquiry, Rule 702 clearly contemplates some degree of regulation of the subjects and theories about which the expert can testify. 

The Ninth Circuit held that as to Cohen, Millette, and the “every exposure” theory to which they and occupational medicine physician Dr. Carl Brodkin testified, the district court failed to act as gatekeeper. “Rather than make findings of relevancy and reliability, the district court passed its greatest concern . . . to the jury to determine.”  The Barabin panel determined that the error was not harmless, because prejudice “is at its apex when the district court erroneously admits evidence that is critical to the proponent’s case.”

An Evidentiary Victory for the Defense?

On one hand, Barabin is an evidentiary victory for the defense. The Ninth Circuit’s analysis reaffirms the court’s exclusive gatekeeper role and holds that the role may not be ignored or shifted to a jury.  However, is this an evidentiary victory for all defendants, or a victory for the rules of evidence?  Although Barabin favored defendants in this litigation, it merely correctly applied the Daubert standard to expert witnesses, equally applicable to any party seeking to admit expert testimony in federal court.  

An Evidentiary Cop-Out?

Much of the commentary to date on the Barabin decision has focused on the affirmation of the court’s “gatekeeper” role in the “regulation of the subjects and theories about which an expert may testify” under Daubert and FRE 702.   However, the impact of what the court refused to do – specifically, evaluate the inherent reliability of opinions based on the “each fiber causes disease” theory – is likely to have a far more significant impact on asbestos litigation. Barabin is an opportunity foregone for the Ninth Circuit to take a position on the admissibility of these opinions, as well as to provide guidance as to what specific foundational requirements are required to admit – or exclude – these opinions under a Daubert analysis. The statement by the court that it lacked a “sufficient record” to make a ruling on the admissibility of the opinion is questionable; the testimony of Cohen and Millette and their “every fiber” opinion was in the record. Thus, despite increased asbestos filings and assertions in the media of the ongoing “asbestos scourge,” Barabin shows that even courts with the capacity to make rulings that could stem the tide of cases decline to do so.

As Gordon & Rees previously reported, a different federal court recently addressed the competing scientific theories of the plaintiff and defense in asbestos litigation in the context of determining the size of a trust to pay claims against gasket and packing manufacturer Garlock. In re Garlock Sealing Technologies, rendered after a 17-day trial with 28 witnesses and hundreds of exhibits, concluded that testimony offered by Brodkin (whose testimony also is at issue in Barabin) and Dr. Laura Welsh that any exposure, regardless of how minimal – i.e., “each and every exposure” – is a substantial cause of mesothelioma was an unjustifiable attempt to “apply the findings from . . . high-dose occupations [such as miners and manufacturing textile workers] to low-dose applications without an adequate basis.  Moreover, their methodology does not consider the portion of a person’s exposure to a particular product by time or intensity.”  Garlock reached similar conclusions regarding other frequent asbestos plaintiff experts, holding that the testimony of cell biologist/experimental pathologist Arnold Brody was not probative, and that the studies upon which material scientist William Longo based his testimony “suffer from a list of deficiencies sufficient to render them useless,” and are “pseudo-science at best.”

Though Barabin does not go as far as Garlock in this regard, the Ninth Circuit’s refusal to permit this commonplace “every exposure” expert testimony acknowledges that there are questions as to its reliability and probative value, which trial courts must answer before permitting such evidence to go to the jury. 

Guidance for California?

In Sargon v. University of Southern California (2012) 55 Cal.4th 747, the California Supreme Court affirmed the role of the court as a “gatekeeper” to exclude testimony that is (1) based on matter of a type on which an expert may not reasonably rely. (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.  Notably, Barabin could have – but did not – provide guidance to California on the “every fiber” opinion and these precise experts.

A Wake-Up Call for Plaintiffs’ Experts?

Another important impact of the Barabin and Garlock decisions, already emerging in deposition, is the attempt by plaintiffs’ experts to modify their testimony to avoid potential exclusion. At least one expert is now taking the position that “each and every exposure” was never his opinion in the first place and his prior testimony was “misunderstood.”  To avoid the potentially preclusive effects of the Barabin and Garlock decisions, the expert opined that the first step is locating an “identifiable exposure” to a particular asbestos-containing product, and second, the “identifiable exposure” then must be considered in context to determine whether, to a reasonable degree of medical certainty, it is a substantial contributing factor in causing the plaintiff’s mesothelioma.  Although the framing of the expert opinion may be different, the import is the same: A single exposure may not be sufficient to constitute a substantial contributing factor. This modification can be significant, particularly in jurisdictions in which joint and several liability could impose a substantial judgment on a defendant found responsible under the “each and every exposure” argument for even a de minimis exposure.

To read the decision, click here.


Kevin J. Craig
Christopher D. Strunk
Mark B. Tuvim

Environmental/Toxic Tort