CLIENT ALERT: TOXIC TORT/ADMISSIBILITY OF EXPERT TESTIMONY

 Estate of BARBAIN v. ASTENJOHNSON, INC. 2014 DJDAR 523

9.3 MILLION DOLLAR ASBESTOS
VERDICT VACATED BY 
THE NINTH CIRCUIT COURT OF APPEALS

HELD:

The district court failed to make findings of relevancy and reliability before admitting into evidence the expert testimony of Kenneth Cohen and Dr. James Millette, and expert testimony regarding the theory that "every asbestos fiber is causative." The district's court failure to make these determinations was an abuse of discretion, that error resulting in severe prejudice mandating the judgment be vacated and the matter remanded for a new trial.

Of significant importance is the Ninth Circuit's holding that an appellate court can make Daubert determinations. More specifically, "[i]f the reviewing court decides the record is sufficient to determine whether expert testimony is relevant and reliable, it may make such findings. If it "determines that evidence [would be inadmissible] at trial and that the remaining, properly admitted evidence is insufficient to constitute a submissible case[,]" the reviewing court may direct entry of judgment as a matter of law. In so holding, it overruled Mukhtar v. California State University 299 F.3d 1053 to the extent it required that Daubert findings always be made by the district court.

FACTS:

Plaintiffs, represented by the BRAYTON PURCELL law firm, alleged decedent was exposed to asbestos contained in dryer felts supplied by defendants to the Crown-Zellerbach paper mill where Mr. Barabian worked. Decedent was diagnosed with Pleural Mesothelioma, the asserted result of the referenced occupational exposure.

Prior to trial, defendants filed motions in limine to exclude Cohen and Millette. After receiving the motions, the court, without holding a Daubert hearing, excluded Mr. Cohen, an Industrial Hygienist, as an expert witness because of his "dubious credentials and his lack of expertise with regard to dryer felts and paper mills." Subsequently, plaintiffs requested a Daubert hearing regarding Mr. Cohen, the court rejected this request but it reversed its decision to exclude Cohen, explaining that plaintiffs "did a much better job" in their motion "of presenting ... the full factual basis behind Mr. Cohen testifying and his testimony in other cases."

As with Mr. Cohen, the court did not have a Daubert hearing regarding Dr. Millette (MVA SCIENTIFIC CONSULTANTS). The court had concerns about this expert's testimony, it "troubled by the differences between conditions of Dr. Millette and actual conditions in the [mill]." Nonetheless, the court allowed this witness to testify if the jury was informed the conditions under which the tests were performed were different from conditions in the mill.

Addressing, the "every exposure" theory, the court observed there is "a strong divide among both scientists and courts" on whether it is relevant in asbestos cases. Despite this concern, the court allowed the testimony.

The jury awarded plaintiffs $9.3 million dollars. Defendants moved for a new trial arguing the district court improperly admitted expert testimony. This motion was denied, defendants appealed. A three judge appellate panel found the trial court's failure to make the necessary relevancy and reliability determinations was error and granted a new trial. Plaintiffs then successfully petitioned for an en banc hearing.

DISCUSSION:

Reminding that FRE 702 governs the admission of expert testimony in the federal courts, the En Banc Panel noted "[w]e have interpreted rule 702 to require that "[e]xpert testimony be both relevant and reliable." Since relevance simply requires that "[t]he evidence... logically advance a material aspect of the party's case," the court concluded the issue before it was whether an expert's testimony has a "reliable basis in the knowledge and experience of the relevant discipline."The court noted" evidentiary reliability [is] based on scientific validity. "The Determination of reliability is a duty that "falls squarely upon the district court to act as a 'gatekeeper' to exclude junk science that does not meet the... reliability standards."The panel held that the district court not only abdicated its role as gatekeeper but also impermissibly delegated that role to the jury. By doing so, the district court abused its discretion, the panel ultimately concluding such constituted harmful error.

ANALYSIS:

It has always been the duty of a trial court to rule on the admissibility of evidence. Historically, in jurisdictions such as California, there has been an aversion to engaging in such analysis as it applies to expert testimony. Oft repeated is "the weight of the evidence" mantra, an abrogation, in this author's opinion, of the court's obligation to determine if an expert's opinion is based on competent, valid scientific evidence. To delegate that evaluation to a jury is error.

Why certain courts ignore this responsibility has been a source of frustration, it compounded by the fact that "reliability of expert testimony" and the judge's role in that assessment have been a fixture of California law. Review of the Frye v. U.S. (D.C. Cir. 1923) 293 F. 1013 and People v. Kelly 919760 17 Cal. 3d 24 line of cases establish and define the court's function in deciding whether the challenged evidence has "been generally accepted." In other words, is there a reliable and trustworthy scientific foundation for that sought to be admitted? The "reliability and trustworthy" construct, too, has long been ingrained in the law. California Evidence Code section 801 sets the standard for the admissibility of expert testimony, requiring that the opinion be based on matter that is of the type that may be reasonably relied upon by experts in forming an opinion. The Law Commission states, "In large measure this assures the reliability and the trustworthiness of the information used by experts in forming their opinion." Furthermore, "[t]he rule stated in subdivision (b) permits an expert to base his opinion upon reliable matter, whether admissible or not, that may be reasonably used in forming an opinion...."

While the California Supreme Court in People v. Leahy (1994) 8 Cal. 4th 587 declined to adopt a Daubert standard (this despite observing that the criteria for the admissibility of expert testimony is essentially the same under the respective rule or code of evidence), a number of appellate court decisions reflect the increasing recognition of the role a court must adopt when evaluating the foundation of expert opinion. For example, in In re Lockheed Litigation Cases (2004) 115 Cal App 4th 558, the court excluded the plaintiffs' expert testimony because the literature he cited did not support his general causation opinion. While eschewing the word "gatekeeper," the trial judge in Lockheed performed that function. Most recently in Sargon Enterprises v. USC (2013) 55 Cal 4th 747, the Supreme Court, in no uncertain words, reminded trial judges they are to act as "gatekeepers," holding the trial court acted properly in excluding unfounded expert testimony.

In light of Sargon, counsel should consider employing Daubert based decisions like Barbain to persuade courts to hold pretrial evidentiary hearings examining the relevancy and reliability of expert testimony.  Indeed, a court’s failure to hold such hearings may constitute an abuse of discretion that, if deemed harmful error, could result in the grant of a new trial.