Daubert Decision to Watch in Ninth Circuit

Here's one to watch. The Ninth Circuit last week said it will rehear the case of a paper mill employee whose $9.4 million mesothelioma verdict was vacated by a panel of the appeals court. The court noted in a one-page order that it will rehear the case en banc, but did not provide any specifics. See Henry Barabin. et al. v. AstenJohnson Inc., No. 10-36142 (9th Cir.); Henry Barabin, et al. v. AstenJohnson Inc. and Scapa Dryer Fabrics Inc., No. 11-35020 (9th Cir.). 

We can certainly speculate, of course, and our guess is that the reason for the decision does not relate directly to the evidentiary issue the panel had when, in November, it overturned the award after finding that the trial court failed to adequately assess the reliability of the plaintiffs' expert testimony.

Readers may recall that plaintiff sued alleging that his 2006 diagnosis of mesothelioma was caused by occupational exposure to asbestos during the more than 30 years he worked at the Crown-Zellerbach paper mill.  The trial court originally excluded Kenneth Cohen, one of the plaintiffs’ expert witnesses, because of his “dubious credentials and his lack of expertise with regard to dryer felts and paper mills.”  But the court later reversed that ruling, after the plaintiff supplemented the record on the expert's credentials, including that he had testified in other cases (in Frye jurisdictions though). The jury found in favor of plaintiffs.

On appeal, the Ninth Circuit determined that the lower court had not properly considered all the Daubert factors, and instead had allowed the plaintiff to submit the expert’s "unfiltered testimony" to the jury.  “Once presented with the additional information in the Barabins’ response to the motion in limine, at a minimum the district court was required to assess the scientific reliability of the proffered expert testimony ...  In failing to do so, the district court neglected to perform its gatekeeping role.”

Our guess is that the court is thinking more about the fact that the panel remanded the case for a new trial in light of the court’s 2003 decision in Mukhtar v. California State University, 299 F.3d 1053 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003).  One of the concurring opinions questioned the rule from that case that requires the court to vacate and remand for a new trial, as opposed to deciding on the need for a new trial after making a new Daubert determination.  From where we sit, the court had it right in 2003 and this time too. To remand for an evidentiary hearing post-jury verdict undermines Daubert's requirement that some reliability determination must be made by the trial court before the jury is permitted to hear the evidence. Otherwise, instead of fulfilling its mandatory role as a gatekeeper, the district court clouds its duty to ensure that only reliable evidence is presented with impunity. A post-verdict analysis does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the Supreme Court envisioned in Daubert and its progeny.  The rule in Mukhtar gives trial courts a real and important incentive to be proper, active gatekeepers. 

 

Upcoming Mass Tort Seminar

Readers may be interested in the upcoming "2nd Annual Mass Torts Forum: A Roundtable for
Judges and Lawyers." Co-hosted by the Temple University, Beasley School of Law, and set for May 23, 2013, at The Ritz-Carlton Hotel, Philadelphia, hometown of your humble blogger.

 

This seminar (more info here) attracts plaintiffs counsel (such as Dianne Nast, Roda & Nast), defense counsel (such as Mark Cheffo, Skadden) and Judges, including Hon. Cynthia Rufe, U.S. District Court, E.D. Pa.

 

The agenda includes panels on Mass Tort Coordination and state and federal cooperation; E-discovery issues; Trial Issues, including bellwether trial selections; Hot Topics in Mass Torts, such as innovator liability in pharmaceutical cases; Mass Tort Resolution, including the difficulties with medical liens;  and Scientific Evidence in Mass Tort Cases, including joint science hearings.

 

The best news: a closing Cocktail Reception.

ACI Chemical Products Liability Seminar

My new firm (Shook Hardy & Bacon) is co-sponsoring the 4th Annual ACI’s Chemical Products Liability and Environmental Litigation conference.  This program brings together a faculty of outside attorneys directly involved in significant toxic tort litigation, as well as industry in-house counsel and the nation’s leading jurists with on-point chemical products experience. This essential litigation forum is designed to educate practitioners—both in-house and outside counsel—on the leading trends in chemical products liability and environmental litigation.  This includes experts from Chevron, Chevron Philips Chemical, The Dow Chemical Company, Dow AgroSciences, Georgia Gulf Corp., Marathon Petroleum, PPG Industries, Praxair, Solvay North America, and many more.

You humble blogger has the privilege of moderating a panel on '"In-House Perspectives: Controlling Costs When Preparing and Trying Cases."  We hope to focus on 

  • Building a trial team, including managing a multi-law firm team that has been “knitted” together
  • Responding to plaintiffs’ forum shopping by tailoring trial management strategies to fit mass tort, class action, or one-off cases
  • Settlement issues
  • Strategizing expert selection
  • Controlling the discovery process to help minimize costs
     

Looking forward to the conference on 4/30 in Chicago.

 

DRI Product Liability Seminar

Your humble blogger will be attending the annual DRI Products Liability seminar early next month in Maryland.

DRI is one of the leading organizations of defense attorneys and in-house counsel. Membership in DRI provides access to resources and tools for attorneys who strive to provide high-quality, balanced and excellent service to their clients and corporations. DRI is host to more than 25 substantive committees whose focus is to develop ongoing and critical dialogue about areas of practice.

 

This seminar from 4/3-5, will include a variety of panels on all things products, including: Using Technology to Pick the Right Jurors featuring fellow Philadelphia-based lawyer Pat Sweeney;  Navigating the CPSC: Advice from the Trenches on databases, investigations, reporting, and recalls, led my old pal John F. Kuppens; and Crisis Management and Recall Planning:
Complying with Governmental Oversight; and an interesting talk on Ethical Lessons from Lincoln, how the life and writings of “Honest Abe” provide meaningful lessons on professionalism
and ethics for lawyers today.

 

Duke Organizing Special MDL Conference

Here is a conference opportunity worth thinking about for our readers who work on MDLs.

The Director of the Duke Law Center for Judicial Studies notes that they are looking for additional experienced lawyers from diverse areas of practice to attend an invitation-only conference, addressing the “Future of MDL” on May 2-3 in Washington DC area. The Panel on Multi-District Litigation is addressing pressing issues affecting their responsibility and is seeking input from knowledgeable lawyers at the conference.

The conference is to bring together outstanding panels of academics, MDL Panel members, and experienced private practitioners who, along with the other conferees, will critically examine what works and what maybe does not work in MDL procedures. The upcoming conference is designed to give experienced lawyers the opportunity to make a difference by making their views known on pressing issues directly to some of the key officials responsible for administering the MDL system.

Information on the “Future of MDL” conference, including the agenda and faculty, is posted here. All who get invited to register for the conference are expected to actively participate during discussions. If any of our readers are interested in being invited to the conference you can send Ann Yandian at Duke (ann.yandian@law.duke.edu) a short description of your MDL experiences, and indicate your areas of practice, number of years practicing law, and which side of the “v” you typically represent.

As an aside, the Duke Law Center for Judicial Studies has as its mission advancing the study of the judiciary through interdisciplinary scholarship and cooperative thinking from multiple perspectives, including judges, researchers, teachers, theorists, and practitioners.