This is another case that illustrates a major battleground in asbestos litigation today. The issue involves attempts by plaintiffs to hold manufacturers liable for increasingly trivial exposures to hazardous substances. In this case, a worker was exposed to amphibole insulation products sufficient to cause his mesothelioma, but he sued the manufacturer of dryer felts -- used in his workplace -- because they contain chrysotile asbestos fibers. Exposure to those fibers was minimal (if any), but the plaintiff relied on the “any exposure” theory, i.e., that any occupational exposure to asbestos, no matter how slight, is sufficient to be a substantial contributing factor to the plaintiff’s disease.
The NAM filed an amicus brief opposing the $11 million verdict. The trial court accepted expert testimony that any occupational exposure above ambient level was sufficient for causation. We opposed this theory because it is a litigation construct that is not found in any published and peer-reviewed article or textbook. It does not satisfy normal standards for expert testimony and is irreconcilable with the fundamental toxicology principle relating to dosage.
On Nov. 16, 2012, the Ninth Circuit reversed the verdict and told the trial court to have a new trial. It found that the court failed to conduct a Daubert hearing to determine the relevance and reliability of the expert testimony allowed in the first trial. It concluded that the trial judge must assess the scientific methodologies, reasoning, or principles that proposed expert witnesses will apply. It also recognized that the decision to admit or exclude expert testimony is often the difference between winning or losing a case, underscoring the importance of the role of a trial judge as a gatekeeper for such evidence.
However, on March 25, 2013 the Ninth Circuit voted to rehear the case en banc following a petition for rehearing by Barabin. Barabin’s petition argued that the remand to the trial court should be limited to liability, and therefore that the $11 million verdict should stand if the court finds AstenJohnson, Inc. liable. In addition, the petition argued that the failure to conduct a Daubert hearing was harmless error and the Ninth Circuit rule requiring a new trial where a violation of the Daubert rule cannot be said to be harmless should be reversed. Under the en banc procedure, the Ninth Circuit convened an eleven (as opposed to the normal three) judge panel to decide the case anew.
On Jan. 15, 2014, the en banc panel ruled that the trial court committed reversible error by failing to use the Daubert standards before allowing expert testimony. It also ruled that an appeals court can determine whether the expert's testimony was indispensable to the case, and if so, grant judgment for the defendant if the testimony should not have been admitted into the trial. This decision is an important affirmation of the important role of trial judges to thoroughly vet expert testimony to ensure its relevance and reliability. It also bolsters the importance of proceedings before the appeals court, which can itself reverse judgments based on faulty "expert" testimony.