Judges GavelCircuit Judge N. Randy Smith of the United States Court of Appeals for the Ninth Circuit wrote the opinion of the court and bemoaned the fact that this case required the appellate court to “once again consider the district court’s admission of expert testimony at trial.”


The plaintiff worked at a paper mill from 1968 until his retirement in 2001. As part of the paper-making process, the paper went through dryers. These dryers used felts supplied by AstenJohnson, Inc. and Scapa Dryer Fabrics, Inc, which contained asbestos. The plaintiff was diagnosed with pleural malignant epithelial mesothelioma (“mesothelioma”) in 2006. This is a rare cancer that affects the tissue surrounding the lungs. Alleging that this occupational exposure to asbestos from the dryer felts caused his illness, the plaintiff and his wife brought suit against the two suppliers.

All of the parties agreed, and science makes clear, that asbestos exposure from inhaling respirable fibers can cause mesothelioma. At trial, the parties argued over whether exposure to the dryer felts provided by the defendants substantially contributed to the plaintiff’s mesothelioma.

Plaintiff’s experts were an industrial hygienist and an asbestos expert. The industrial hygienist had been employed in the industrial hygiene field for many years and taught industrial toxicology courses at a university. The asbestos expert witness had been involved in asbestos related research since 1974 and had published a number of articles dealing with asbestos, including an article concerning asbestos fiber release from dryer felts. Prior to trial, the defendants filed motions to exclude the expert witnesses. AstenJohnson argued that the industrial hygienist was not qualified to testify as an expert and that his theory was not the product of scientific methodology. The suppliers argued that the asbestos expert’s tests were unreliable because his methodology was not generally accepted in the scientific community. They also argued that the disparity between his tests and the conditions at the mill was so great that his testimony would not help the jury.

Without a Daubert hearing, the district court excluded the industrial hygienist as a witness because of his “dubious credentials and his lack of expertise with regard to dryer felts and paper mills.” The district court also had concerns with asbestos expert’s testimony and was “troubled by the marked differences between the conditions of [his] tests and the actual conditions at the [mill].” Nonetheless, the district court ruled that he could testify as long as the jury was informed his tests were “performed under laboratory conditions which are not the same as conditions at the [mill].”

The plaintiffs filed a motion to request a pretrial Daubert hearing regarding the industrial hygienist expert witness. The district court denied the request, and instead, reversed its decision to exclude the expert’s testimony. The district court’s only explanation for why it reversed its decision was that the plaintiffs “did a much better job” in their motion “of presenting … the full factual basis behind [the industrial hygienists] testifying and his testimony in other cases.”

After the plaintiffs presented their case at trial, the defendants filed motions for judgment as a matter of law.  The defendants argued that the plaintiffs failed to show that their companies had manufactured the dryer felts to which the worker had been exposed. In the alternative, they argued that the plaintiffs failed to demonstrate a causal link between the dryer felts and his mesothelioma. The district court denied the motions.

The jury found in favor of the plaintiffs, and the district court entered judgment in their favor for roughly $9.3M. The two suppliers filed motions for a new trial or, in the alternative, for a remittitur on the grounds, inter alia, of the improper admission of expert testimony. The district court denied the motions. The defendants appealed, and a three judges panel unanimously held that the district court abused its discretion by failing to make the necessary relevancy and reliability findings under Daubert. The panel remanded the case for a new trial pursuant to Mukhtar v. California State University (9th Cir. 2002). The plaintiffs petitioned for an en banc rehearing, which was granted.

Judge Smith wrote that the issue in this case was reliability: whether an expert’s testimony has a reliable basis in the knowledge and experience of the relevant discipline. Quoting Daubert, Smith said that the “evidentiary reliability [is] based upon scientific validity”, but that the appellate court was concerned with the soundness of the expert’s his methodology, rather than with the correctness of his or her conclusions. The duty, Judge Smith explained, falls squarely upon the district court to “act as a “gatekeeper to exclude junk science that does not meet Federal Rule of Evidence 702’s reliability standards.”

The reliability inquiry is “a flexible one,” Smith wrote, quoting Kumho Tire (U.S. 1999), in which the Supreme Court set out factors that can be used to determine the reliability of expert testimony:

1)    whether a theory or technique can be tested;

2)    whether it has been subjected to peer review and publication;

3)    the known or potential error rate of the theory or technique; and

4)    whether the theory or technique enjoys general acceptance within the relevant scientific community.

However, the Kumho Tire Court held that whether those specific factors are “reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.” The trial judge also has broad latitude in determining the appropriate form of the inquiry. For this, Daubert hearings” are commonly used.

Nevertheless, Judge Smith explained, citing Daubert, that Rule 702 “clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify.” Applying these principles to the facts in this case, the Ninth Circuit found the district court abused its discretion by failing to make appropriate determinations under Daubert and Rule 702.

The district court excluded the industrial hygienist’s testimony with little explanation for reversing its decision without a Daubert hearing or findings. There was also no indication that it assessed or made findings on the scientific validity or methodology of his proposed testimony. Therefore, the Ninth Circuit held that the district court failed to assume its role as gatekeeper with respect to the expert witness’ testimony. The same was true for the asbestos expert: instead of making findings of relevancy and reliability, the district court passed its greatest concern about his testimony to the jury to validate—and it took that same approach with respect to expert testimony regarding theories of exposure.

“Just as the district court cannot abdicate its role as gatekeeper, so too must it avoid delegating that role to the jury,” Judge Smith pointed out. Further, he stated that the district court delegated that role by giving each side the latitude to present its expert testimony to the jury. Before allowing the jury to hear the expert testimony, the district court should have first determined that the expert met the threshold established by Rule 702, which is “the entire purpose” of Daubert. The district court abused its discretion by admitting the expert testimony without first finding it to be relevant and reliable under Daubert.

When the Court of Appeals concludes evidence has been improperly admitted, it will consider whether the error was harmless, and treat the erroneous admission of expert testimony in the  same manner as all other evidentiary errors. As the beneficiaries of the erroneously admitted evidence, the plaintiffs failed to rebut the presumption of prejudice. In fact, they admitted they couldn’t win without this expert testimony. Given these circumstances, Judge Smith said there was no doubt the error was not harmless.

When the district court erroneously admits or excludes prejudicial evidence, the Court of Appeals will remand the case for a new trial, even if the trial court erred by failing to answer a threshold question of admissibility. In Daubert, the Supreme Court set the standard for admitting expert scientific testimony in a federal trial by requiring that the proponent of expert testimony lay a proper foundation. Laying a proper foundation means establishing relevancy and reliability rather than mere general acceptance [the Frye standard].

A reviewing court should have the authority to make Daubert findings based on the record established by the district court. The Ninth Circuit agreed and overruled Mukhtar to the extent that it required that Daubert findings always be made by the district court. If 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.

The plaintiffs, as well as the dissent, argued that the Court of Appeals should remand the case for a post-hoc Daubert hearing. Even assuming that a limited remand was available post-Mukhtar, judge Smith wrote that it would not be appropriate in this instance. The district court failed to make findings of relevancy and reliability before admitting into evidence the expert testimony of the experts, and expert testimony regarding the theory that “every asbestos fiber is causative.” In that this was an abuse of discretion and prejudicial, the appropriate remedy was a new trial. The Ninth Circuit vacated the judgment and remanded the case for a new trial.

[The trial in this case took place before the Federal Rules of Evidence were restyled in 2011.]


Case: Estate of Barabin v. AstenJohnson, Inc., — F.3d —-, 2014 WL 129884 (C.A.9 (Wash.) January 15, 2014)


By: Kurt R. Mattson,  J.D., LLM

Kurt R. Mattson is the Director of Library Services and Continuing Education at Lionel Sawyer & Collins located in Reno and Las Vegas, Nevada