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Barabin v. AstenJohnson

November 16, 2012

HENRY BARABIN; GERALDINE BARABIN, PLAINTIFFS-APPELLEES,
v.
ASTENJOHNSON, INC., DEFENDANT-APPELLANT.
HENRY BARABIN; GERALDINE BARABIN, PLAINTIFFS-APPELLEES,
v.
ASTENJOHNSON, INC., DEFENDANT, AND SCAPA DRYER FABRICS, INC., DEFENDANT-APPELLANT.



Appeals 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

The opinion of the court was delivered by: Rawlinson, Circuit Judge

FOR PUBLICATION

Argued and Submitted January 11, 2012--Seattle, Washington

Before: A. Wallace Tashima, Susan P. Graber, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson; Concurrence by Judge Tashima; Concurrence by Judge Graber

SUMMARY*fn1

The panel vacated the district court's judgment and remanded for a new trial because the district court failed to fulfill its obligations under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

The panel held that the district court abused its discretion when it failed to conduct a Daubert hearing or otherwise make relevance and reliability determinations regarding expert testimony. The panel held that the court's decision in Mukhtar v. California State University, 299 F.3d 1053 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003) (order), dictated that a new trial be provided in this circumstance.

Judge Tashima concurred in all aspects in the majority opinion, and wrote separately to address an issue not addressed by the majority. Judge Tashima stated that it would be helpful if the district court would articulate whether there is an impeachment exception to the Washington collateral source rule.

Judge Graber, joined by Judge Tashima, concurred fully in the majority opinion, but wrote separately to express her disagreement with the rule in Mukhtar, requiring the court to vacate and remand for a new trial. Judge Graber would conditionally vacate the judgment and remand with instructions to make a new Daubert determination, and only if the expert testimony was deemed not reliable should the district court preside over a new trial.

OPINION

AstenJohnson, Inc. (AstenJohnson) and Scapa Dryer Fabrics, Inc. (Scapa), appeal the district court's entry of judgment in favor of Henry and Geraldine Barabin following a jury trial resolving Henry Barabin's claim that his mesothelioma was caused by occupational exposure to asbestos. AstenJohnson and Scapa manufactured dryer felts that contained asbestos and that were installed on paper machines used in the paper mill where Henry Barabin worked. As now relevant, AstenJohnson and Scapa contend that the district court abused its discretion by improperly admitting expert evidence.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the district court failed to fulfill its obligations under Daubert, *fn2 we vacate the judgment and remand for a new trial.*fn3

I. BACKGROUND

A. Pre-trial motions and trial proceedings

Henry Barabin was exposed to asbestos from 1964 through 1984. He was employed from 1968 until his retirement in 2001 at the Crown-Zellerbach paper mill, which used dryer felts containing asbestos supplied by AstenJohnson and Scapa. During his employment, Henry worked in various jobs that exposed him to the dryer felts that AstenJohnson and Scapa provided. Henry also took pieces of dryer felt home to use in his garden.

In November, 2006, Henry was diagnosed with pleural malignant epithelial mesothelioma. *fn4 It is undisputed that exposure to ...


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