Estate of Henry Barabin v. Astenjohnson Inc

Opinion by Judge RAWLINSON; Concurrence by Judge TASHIMA; Concurrence by Judge GRABER.

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.

*430 We have jurisdiction pursuant to 28 U.S.C. § 1291 . Because the district court failed to fulfill its obligations under Daubert, 1 we vacate the judgment and remand for a new trial.

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…

concurring:

I concur in all respects in the majority opinion, as well as in Judge Graber’s concurring opinion. I write separately briefly to address another issue raised in this appeal, which the majority does not address, because it is likely to arise again on retrial.

At the trial, plaintiff Geraldine Barabin, Henry Barabin’s wife, testified that she wanted to be able to maintain her health, continue caring for Henry, and be able to pay for Henry’s necessary medications. She further testified that she did not “want to be left destitute,” implying that she would be so left without a recovery from defendants. On cross-examination, defendants sought to impeach Mrs. Barabin’s credibility regarding her fear of financial destitution by reference to collateral source evidence. The district court sustained plaintiffs’ objection to this line of inquiry without extended discussion, citing the collateral source rule, which generally bars such evidence.

But no reported Washington case appears to have confronted the question of whether evidence of collateral source payments can be used for impeachment. Oth *434 er jurisdictions, however, recognize an impeachment exception to the…

concurring:

I concur fully in the majority opinion. The district court failed to explain adequately its reasons for admitting the expert testimony, and the error was not harmless. Accordingly, the judgment cannot stand.

I write separately, however, to express my disagreement with the rule that, pursuant to Mukhtar v. California State University, 299 F.3d 1053 (9th Cir.2002), amended by 319 F.3d 1073 (9th Cir.2003) (order), we must vacate the judgment and remand for a new trial. On remand, the district court dutifully will make a new Daubert determination. If the court finds that the expert testimony is, indeed, reliable, what purpose is served by empaneling a new jury and conducting another lengthy trial the outcome of which likely will be identical to the one already concluded? Mukhtar answers that query by holding that we cannot trust a district court not to succumb to “post-hoc rationalization.” 319 F.3d at 1074 . But we routinely trust district courts to reassess their earlier judgments in matters of more consequence than disputes over money. See, e.g., United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). Regardless, I do not share Mukhtar’s lack of faith in our…

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 2 Because of our determination that a new trial is warranted on this basis, we do not address the other issues raised on appeal.

BARABIN V . ASTEN JOHNSON , INC.

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.3 It is undisputed that exposure to respirable asbestos causes mesothelioma.

AstenJohnson filed a motion in limine to exclude Drs. Cohen4 and Millette as expert witnesses. The district court excluded Dr. Cohen as an expert because of his “dubious credentials and his lack of expertise with regard to dryer felts and paper mills. . . ” Additionally, the district court limited Dr. Millette’s testimony requiring disclosure to the jury that…