We have posted before about Henry Barabin, et al. v. AstenJohnson Inc. and Scapa Dryer Fabrics Inc., as a case to watch. Interested readers should note that the 9th Circuit has now set the en banc oral argument in this case for June 25th.
You 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 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 panel 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 in setting the case for rehearing, 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).
(Note that my partner Mark Behrens was asked to submit an amicus brief on behalf of the Coalition For Litigation Justice, Inc., Chamber Of Commerce Of The United States Of America, NFIB Small Business Legal Center, American Insurance Association, Property Casualty Insurers Association Of America, American Chemistry Council,
And National Association Of Manufacturers.)