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Citing the Lack of a "Daubert" Hearing, U.S. Ninth Circuit Vacates $10 Million Asbestos Verdict

November, 2012
By Jeanne F. Loftis, John R. Osburn

A three-judge panel of the United States Court of Appeals for the Ninth Circuit vacated a $10 million jury verdict and remanded Barabin v. AstenJohnson, Inc. to a Washington federal district court for a new trial after concluding that the district court should have held a Daubert hearing before permitting an expert witness to offer his "any exposure" theory.

The case involved expert testimony by plaintiff's expert Ken Cohen, and concerns a hotly disputed issue in asbestos litigation—the "any exposure" theory of liability, through which plaintiffs attempt to hold manufacturers liable for increasingly trivial exposures to asbestos. In Barabin, there was evidence that Mr. Barabin (who had mesothelioma) had causative exposure to amphibole insulation products, but he and his wife sued, among other defendants, the manufacturer of chrysotile-containing dryer felts that were used at his workplace. The evidence at trial established that exposure to fibers from dryer felts was minimal; nevertheless, plaintiff was allowed to present testimony through Dr. Cohen that any occupational exposure to asbestos, no matter how trivial, was enough to be a substantial contributing factor to Mr. Barabin's disease.

The Ninth Circuit vacated the jury verdict after concluding that the district court should have held a Daubert hearing to assess the scientific methodologies, reasoning, or principles behind Dr. Cohen's "any exposure" theory. The case was remanded to the district court for that hearing and a new trial.

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