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Washington mesothelioma victim's verdict stripped for bad judging

In 2006, a long-term employee of the Crown-Zellerbach paper mill in Washington state was diagnosed with pleural malignant epithelial mesothelioma. As our readers are aware, mesothelioma is a rare but deadly cancer known to be caused by exposure to airborne asbestos particles. This man, now deceased, said he had regularly worked around asbestos-containing dryer felts over the course of his career from 1968 to 2001. He was even allowed to bring the dryer felts home to use as gardening underlayment.

He and his wife sued two companies that supplied the felts to the paper plant for product liability, and a jury awarded them damages amounting to $9.3 million. That jury award has now been stripped away on appeal because, according to the 9th Circuit Court of Appeals, the trial judge simply didn't do his job.

After the jury verdict, the defendants appealed to the 9th Circuit and, in 2012, a new trial was ordered by a standard three-judge panel. The plaintiffs petitioned for a rehearing of the case by the full 11-member court in what's called an en banc review, which was granted. Unfortunately, the en banc panel's opinion was released on Wednesday, and it wasn't good news for the deceased man's wife.

Mesothelioma cases, like many other product liability cases, rely in large part on the testimony of expert witnesses. When expert testimony is brought, however, trial judges are expected to act as gatekeepers against experts who aren't actually qualified or who might be unduly biased. Judges do this by making specific findings about each expert's qualifications and the scientific validity of any evidence they intend to present to the jury.

The trial judge failed to do that. The defendants challenged two of the experts brought on behalf of the mesothelioma victim and, without proper findings by the judge that they were qualified and legitimate, it simply doesn't matter whether they were. Their testimony was not properly admitted, even if it would have been if the trial judge had made the appropriate findings. Only a lone dissenting judge wanted to consider whether the wrongly-admitted expert testimony had actually affected the jury.

Sadly, the widow of the paper mill worker will now have to give up or go through an entirely new trial -- one in which the defendants and the jury have heard her entire case.

Source: Courthouse News Service, "Mesothelioma Verdict Thrown Out for Retrial," Tim Hull, Jan. 15, 2014

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