Barabin v. AstenJohnson, Inc: Daubert Hearings in Mesothelioma Cases

Our mesothelioma attorneys know that these cases are highly complex. Families must choose a law firm with the resources and experience to build these cases for the courtroom while demanding victims are compensated by corporations facing a barrage of litigation for asbestos exposure that occurred decades ago.

Those who have been diagnosed with mesothelioma have neither the time nor the energy to cope with legal missteps or mistakes. That is why it is critical to choose an experienced law firm that dedicates a significant portion of its practice to mesothelioma litigation.

A recent ruling out of Washington illustrates how one oversight can topple an entire case. The case, Barabin v. AstenJohnson, Inc., was brought first by Henry Barabin and later, after his death, was carried on as a wrongful death suit by his widow.

Mr. Barabin worked at a papermill from 1968 through 2001. From the time he started the job until about 1984, he routinely worked with dryer felts that were made with asbestos. Those felts were manufactured by two different companies, Scapa Dryer Fabrics Inc. and AstenJohnson Inc. In addition to using the felts in the course of his job, he also, with permission from his employer, took portions of the fabric home to use in his garden. He had no idea that doing so put himself and his family at grave risk for mesothelioma.

In 2006, just five years after he had retired, Mr. Barabin was diagnosed with mesothelioma, and he and his wife filed suit in U.S. District Court in the Western District of Washington.

During the course of the trial, one of the industrial health experts that was called to testify on behalf of the plaintiff was reportedly excluded from the witness list by the judge, who stated the individual had “dubious” credentials and was not well-qualified to speak as an expert with regard to paper mills and dryer felts. Later in the proceedings, however, the judge changed his mind, and allowed the witness to testify.

In the end, the Barabins were awarded nearly $10 million in punitive damages.

But the joy of that win was short-lived when the defendants requested a new trial, on the basis of the fact that the court had failed to conduct a Daubert hearing prior to allowing the “expert” witness to testify. Named after the Daubert v. Merrell Dow Pharm case of 1993, such hearings are held before a judge, who must determine the validity of so-called expert testimony. Such hearings can be held for witnesses of either side, and are done prior to trial, as a determination of what the jury will be allowed to hear.

The idea is to vet the scientific principals, methodologies or reasoning of a witness who claims to be an expert. The court has a vested interest in making sure juries don’t give more weight to the testimony of witnesses whose methods aren’t based in solid science, or who is inexperienced in the field or otherwise unqualified to testify.

It’s not uncommon for defendants in these cases to fight liability verdicts tooth and nail, and this was one of several points raised. While the District Court affirmed the earlier decision, a three-judge appellate panel ruled that the oversight was serious enough to warrant a new trial.

Which means the family must endure the ordeal all over again and hope for a similarly positive outcome.

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