Estate of Barabin v. AstenJohnson

A reviewing court has the authority to make findings under Daubert v. Merrell Dow Pharm., Inc. based the district court’s record, which overrules Mukhtar v. California State University to the extent that Daubert findings always are made by the district court.

In 2006, Henry Barabin was diagnosed with mesothelioma and alleged that it was due to exposure to asbestos from his work at a paper mill. Barabin brought suit against AstenJohnson, Inc. (“AstenJohnson”) and Scapa Dryer Fabrics, Inc. (“Scapa”), which supplied the dryer felts containing asbestos. The parties agreed that asbestos exposure causes mesothelioma but disagreed about whether the products the companies provided to the mill substantially contributed to mesothelioma. AstenJohnson and Scapa sought to exclude Barabin’s experts, Kenneth Cohen and Dr. James Millette, on the grounds that they were unqualified, theories were not the product of scientific methodology, and the tests relied upon were unreliable because they were not generally accepted in the scientific community. The district court initially excluded Cohen’s testimony, but allowed Millette to testify without holding a hearing under Daubert v. Merrell Dow Pharm., Inc. Before the trial, the district court reversed its ruling and allowed Cohen to testify, again without a Daubert hearing. After hearing both experts and the theory that “every asbestos fiber is causative,” the jury found in favor of Barabin. The Ninth Circuit held that the district court failed to first determine that the expert met the threshold established by Fed. R. Evidence 702 before presenting evidence to a jury. AstenJohnson and Scapa contended that a reviewing court should have the authority to make Daubert findings based on the district court record. The panel agreed, but declined to enter judgment because the record was too sparse to determine relevance and reliability. The panel held that the district court abused its discretion by failing to make proper findings of reliability under Daubert and Rule 702 before admitting expert testimony. This error prejudicially affected Barabin’s case, and the proper remedy is a new trial. VACATED and REMANDED.