United States District Court, W.D. Washington, Seattle
ORDER DENYING POST-TRIAL MOTIONS
L. ROBART, UNITED STATES DISTRICT JUDGE.
the court are two post-trial motions: (1) Plaintiff Geraldine
Barabin's motion for a partial new trial on the issue of
non-economic damages (Rule 59 Mot. (Dkt. # 757)); and (2)
Defendant Scapa Dryer Fabrics, Inc.'s ("Scapa")
original and renewed motion for judgment as a matter of law
(JMOL Mot. (Dkt. # 758)). The parties each oppose the
other's motion. (See Rule 59 Resp. (Dkt. # 767); JMOL
Resp. (Dkt. # 768).) The court has reviewed the parties'
submissions in support of and in opposition to the motions,
the relevant portions of the record, and the applicable law.
Being fully advised,  the court DENIES both motions for the
reasons discussed below.
court has detailed the long and complex background of this
case on numerous occasions. (See, e.g., 12/12/07 Order (Dkt.
# 63); 8/18/09 Order (Dkt. # 200); 12/10/10 1st Order (Dkt. #
550); 12/10/10 2d Order (Dkt. # 551); 2/12/18 Order (Dkt. #
698); 2/22/18 Order (Dkt. # 700).) The court recounts here
only the relevant facts, including the procedural history,
the evidence presented at trial, Scapa's references
during trial to other entities sued by Ms. Barabin, and the
action stems from Mr. Barabin's work around and with
asbestos-containing dryer felts during his employment as a
paper worker at the Crown-Zellerbach paper mill in Camas,
Washington ("the Camas paper mill"). (See Pretrial
Order (Dkt. # 725) at 5:7-9, 8:3-10; Ex. 600 (Dkt. # 737)
¶¶ 4-5.) Mr. Barabin worked at the Camas paper mill
from 1968 to 2001. (Ex. 600 ¶ 4; 3/26/18 Trial Tr. (Dkt.
# 759) at 171:18-22.) His duties at the Camas paper mill
included changing the dryer felts on the paper machines as
well as using high pressured hoses to blow the dust and paper
out of the dryers. (See, e.g., 3/26/18 Trial Tr. at
Barabin alleged that Scapa and AstenJohnson Inc.
("AstenJohnson"), both of whom manufactured
asbestos-containing dryer felts for use at the Camas paper
mill, are liable under Washington state law for Mr.
Barabin's mesothelioma and subsequent death.
(See PL Trial Br. (Dkt. # 304).) Specifically, Ms.
Barabin brought a product liability design defect claim, a
products liability failure to warn claim, and a negligence
claim related to Scapa and AstenJohnson's manufacturing
and sale of the dryer felts. (See Id. at 10-11.) The
case originally went to trial in 2009. (See, e.g.,
10/26/09 Trial Tr. (Dkt. # 429).) A jury returned a verdict
in favor of the Barabins, awarding $700, 000.00 in economic
damages and $9, 500, 000.00 in non-economic damages.
(See 11/19/09 Judgment (Dkt. # 355); 11/19/09
Verdict Form (Dkt. # 354) at 3.) On appeal, the Ninth Circuit
held that the district court failed to make the appropriate
determinations under Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993), and remanded for a new trial.
See Barabin v. AstenJohnson, Inc., 740 F.3d 457,
464, 467 (9th Cir. 2014) (en banc). Ms. Barabin settled with
AstenJohnson on remand. (See Not. of Settlement
(Dkt. # 694).)
preparation for the new trial, Scapa moved to exclude several
of Ms. Barabin's expert witnesses, including, the
testimonies of Dr. Carl Brodkin, Dr. Steven Compton, and Mr.
Christopher DePasquale. (See Causation MTE (Dkt. #
683); Exposure MTE (Dkt. # 681).) Scapa argued that Dr.
Brodkin, an expert opining on causation, based his conclusion
on the unreliable "every exposure" and
"cumulative exposure" theories. (Causation MTE at
1.) Although the court agreed that neither theory passes
muster under Daubert (2/12/18 Order at 25-31), the
court concluded that Dr. Brodkin's causation opinion was
not based on either theory (id. at 31-33). Instead,
Dr. Brodkin required an exposure to meet certain
requirements, including the ability to generate significant
concentrations of airborne asbestos libers and the ability to
overcome the body's natural asbestos defenses.
(Id. at 31.) Thus, the court allowed Dr.
also moved to exclude the exposure testimonies of Dr. Compton
and Mr. DePasquale. (See generally Exposure MTE.)
First, Scapa took issue with the studies both experts relied
on, including the Millette studies. (Id. at 7-18.) The
court rejected that argument, concluding that the Millette
studies were sufficiently reliable. (2/12/18 Order at 17-21.)
Scapa next impugned the two experts for failing to account
for the exact conditions at the Camas paper mill. (Exposure
MTE at 5.) The court again rejected this argument, finding
that the two experts' methodologies were reliable and
thus admissible. (2/12/18 Order at 22-25.)
March 26, 2018, to April 6, 2018, the court held a second
jury trial on Ms. Barabin's claims against Scapa.
(See Trial Min. Entries (Dkt. ## 721, 728, 733, 736,
739, 742, 743, 747); see also 3/26/18 Trial Tr.;
3/27/18 Trial Tr. (Dkt. # 760); 3/28/18 Trial Tr. (Dkt. #
761); 4/2/18 Trial Tr. (Dkt. # 762); 4/3/18 Trial Tr. (Dkt.
#763); 4/4/18 Trial Tr. (Dkt. # 764); 4/5/18 Trial Tr. (Dkt.
# 765); 4/6/18 Trial Tr. (Dkt. # 766).) Scapa moved for
judgment as a matter of law after Ms. Barabin rested her
case. (See Org. JMOL Mot. (Dkt. # 738));
Fed.R.Civ.P. 50(a). Scapa renewed its motion after the jury
rendered its verdict. (See JMOL Mot.); Fed.R.Civ.P.
Evidence Presented at Trial
evidence that parties presented can be divided into two
categories: (1) testimony regarding Mr. Barabin's
employment at the Camas paper mill, his personal life, and
the impact that his mesothelioma had on him and his family;
and (2) expert testimony regarding asbestos, mesothelioma,
and Mr. Barabin's diagnosis. The court summarizes each
category of evidence below.
Mr. Barabin's Experience
Barabin began working at the Camas paper mill in the
technical department, where he tested the pulp and paper that
came off of the paper machines. (3/26/18 Trial Tr. at 180:2-6.)
As a pulp tester, Mr. Barabin recalled observing paper
machine shutdowns-when dryer felts were replaced on the paper
machines-two to three times a month from about 10 or 15 feet
away. (Id. at 189:2-6, 189:24-190:3.) After these
shutdowns, he would cut and take pieces of the old felts home
to use in his gardens. (Id. at 185:15-186:15.) He
observed a significant amount of dust during the shutdowns
and when he cut the dryer felts, both at the Camas paper mill
and at home. (Id. at 187:1-11; 190:19-21.) Mr.
Barabin spent about six years in that position. (Id.
1974, Mr. Barabin became a spare hand, a position that
required him to "work on whatever [paper] machine that
need[ed]" him. (Id. at 191:1-10.) Part of his
duties included standing in the paper machines between the
dryer felts and the machine and using high pressured hoses to
blow the dust and paper out of the dryers when the paper
sheets were caught in the dryer. (Id. at
191:20-192:14, 192:21-25.) As a spare hand, Mr. Barabin
observed but did not participate in paper machine shutdowns.
(3/27/18 Trial Tr. at 364:12-16.)
same year, Mr. Barabin transitioned to the position of a
fifth hand on paper machines 7 and 8. (3/26/18 Trial Tr. at
195:2-3, 195:18-22.) He also worked on machines 4, 5, and 6.
(Id. at 196:4-10.) As a fifth hand, he would
participate in paper machine shutdowns every two weeks,
during which he would blow out the paper machine. (3/27/18
Trial Tr. at 364:2-9.) He would also participate in changing
out the dryer felts, about once or twice a month, by cutting
old dryer felts out of the machine and fastening new felts in
their place. (Id. at 364:2-9, 368:21-369:1,
370:12-14, 377:20-378:1.) Furthermore, he would use
compressed air to clean the area around the paper machines
once or twice a day. (Id. at 367:10-19.) During this
time, Mr. Barabin briefly worked as a fourth hand, where
about once a month he would participate in changing out dryer
felts. (Id. at 3 73:6-7, 375:17-21.)
Barabin became a winderman on paper machines 7 and 8 around
1976. (Id. at 376:13-19, 380:25-381:2.) As a
winderman, Mr. Barabin experienced a felt break, where a
dryer felt broke into pieces in the paper machine.
(Id. at 378:7-10.) Mr. Barabin used a hook to pull
the broken pieces of dryer felt out of the machine and
disposed of the rest of the felt. (Id. at
378:11-17.) He continued to participate in changing the dryer
felts and cleaning the dryers. (Id. at
Mr. Barabin became a filterman and was responsible for the
paper machines' filters during a shutdown. (Id.
at 382:8-14, 383:10-13.) He would also observe shutdowns.
(Id. at 383:17-20.) In 1984, Mr. Barabin moved to
work on paper machine 20, which was located in another
building. (Id. at 385:20-22.) He stayed there until
his retirement in 2001. (Id. at 386:11 -13.)
Barabin did not recall ever wearing a respirator or mask
while performing his duties. (3/26/18 Trial Tr. at
194:12-24.) At no time during his career did he receive any
warnings from Scapa about the asbestos-containing dryer felts
with which he worked. (3/27/18 Trial Tr. at 390:7-12.) Mr.
Barabin remembers the name "Scapa" and knows that
there were Scapa felts at the Camas paper mill, but he has
"no particular knowledge of what particular felt [was
used on a] particular machine." (Id. at
391:3-10.) From 1964 to 1982, Scapa supplied 505 dryer felts
to the Camas paper mill, 229 of which contained asbestos.
(Ex. 600 ¶ 16.) These felts were used on various paper
machines that Mr. Barabin worked on. (Id. ¶ 17.)
retirement, Mr. Barabin and his wife moved to Arizona.
(3/27/18 Trial Tr. at 392:20-21.) Mr. Barabin handled a
number of chores around the house, including laundry,
mopping, dishes, and yardwork. (Id. at
393:22-394:5.) Mr. Barabin and his wife traveled together,
attended church, watched movies, visited their grandchildren,
and took walks. (Id. at 354:13-15, 355:3-7,
392:25-393:1.) In 2006, Mr. Barabin began experiencing
trouble breathing. (Id. at 355:13-17.) The doctors
withdrew several liters of fluid from Mr. Barabin's lungs
to aid his breathing. (Id. at 261:8-l 1,
395:13-396:2.) A biopsy of the fluid returned a diagnosis of
mesothelioma. (Id. at 261:24-262:2, 396:21-25.) When
the Barabins learned of this terminal diagnosis, they were
"pretty devastated." (Id. at 397:7-13.)
his diagnosis of mesothelioma, Mr. Barabin underwent several
rounds of chemotherapy, which sapped his energy and appetite.
(Id. at 357:6-11.) All in all, Mr. Barabin completed
three full rounds of chemotherapy over three years.
(Id. at 263:1-3.) The treatment left Mr. Barabin
tired and nauseated. (Id. at 265:1-3, 399:10-13.) As
the disease progressed, Mr. Barabin became unable to do his
usual activities with his wife. (Id. at 357:15-22.)
He could not help with household chores, and they stopped
going to church or traveling. (Id. at 358:12-19,
400:21-401:4.) Instead, he was "pretty listless, "
spending the majority of his day sitting or napping. (See
Id. at 348:7-12, 359:23-360:3, 405:18-25.)
the disease's invasion of the chest wall, Mr.
Barabin's pain grew increasingly worse as treatment
progressed, with the most serious pain in his chest and back
area. (Id. at 264:13-19, 358:25, 402:15-17,
403:4-5.) Mr. Barabin's mesothelioma eventually
metastasized to his brain. (Id. at 265:6-8.) In
2012, a CT scan revealed a right cerebral brain hemorrhage
that was likely due to the mesothelioma. (Id. at
265:9-11.) Shortly afterwards, on March 30, 2012, Mr. Barabin
passed away. (Id. at 265:16-17.)
Barabin testified that it "hurt [her] so bad" to
see her husband in pain after the chemotherapy began.
(Id. at 359:13-16.) Mr. Barabin's son, Bryan
Barabin, recalled that Ms. Barabin "became really
stressed, very nervous all the time" due to the pressure
of having to care for Mr. Barabin. (Id. at
349:22-350:11.) Mr. Barabin's death was
"devastating" to Ms. Barabin. (Id. at
350:14-15.) After he passed away, Ms. Barabin recalled,
"[S]ome days I sit and I just talk to his picture, or
wish he was still there ... I've lost my best
friend." (Id. at 362:2-5.)
Barabin called several expert witnesses, three of whom are
discussed in the post-trial motions. The court reviews the
relevant testimony of each.
Dr. Carl Brodkin
Brodkin is a physician in occupational and environmental
medicine and specifically studies factors in the workplace
that may cause exposure-related illnesses. (Id. at
210:15-21, 216:16-17.) He explained that asbestos is a
naturally-occurring mineral that breaks off into fibers,
which can be inhaled and become lodged in the lower
respiratory tract. (Id. at 224:9-10, 225:2-3,
225:17-20.) Although the body has natural defenses against
inhaled fibers, exposure to a high enough concentration can
overcome these defenses. (Id. at 226:2-227:3.)
Because asbestos fibers are difficult to break down, they
remain in the lungs and cause scarring, which in turn leads
to respiratory problems, known as asbestosis. (Id.
Brodkin also explained that asbestos can lead to cancer.
(Id. at 23 0:11 -15.) Asbestos fibers cause
mutations in a person's DNA by disrupting normal cell
division, such that the chromosomes do not divide evenly.
(Id. at 230:16-231:1.) Moreover, the fibers promote
the development of tumors because the body's immune
system reacts to the presence of fibers in the cells and
attempts to fight those foreign bodies, causing further
damage to the cells. (Id. at 231:2-8.) The cells
eventually become so abnormal that they lose control,
continuing to divide when they should not. (Id. at
231:9-13.) This uncontrolled cell growth eventually results
in cancer and the growth of tumor masses. (Id. at
231:13-16, 231:24-232:2.) When this uncontrolled cell growth
occurs in the pleura-the thin lining of the lung-the
resulting cancer is called mesothelioma. (Id. at
Brodkin recognized that the presence of asbestos in a
material alone is not sufficient to cause mesothelioma.
(See Id. at 240:24-25.) Instead, there must be what
Dr. Brodkin calls "an identified exposure": some
activity that disrupts the material and "generate[s]
airborne fibers of significant concentration, that overcome
the body's defenses." (Id. at 241:1-9.) In
other words, not every exposure alone increases the risk for
disease; a minor release of fibers would not generate the
significant levels of fibers necessary for such an increase.
(See Id. at 241:10-21.) Thus, in examining any
asbestos-exposed worker, Dr. Brodkin searches for identified
exposures in the worker's employment history to ascertain
what activities were significant in the development of
disease. (See Id. at 240:19-241:9.)
Brodkin reviewed Mr. Barabin's medical records, various
stipulations and interrogatories related to Mr. Barabin's
exposure to asbestos, and personally interviewed Mr. Barabin
regarding his employment history. (Id. at
235:25-237:8, 238:12-23.) Based on this information, Dr.
Brodkin concludes that Mr. Barabin's work manipulating
dryer felts qualified as identified exposures, or activities
that generated significant airborne fibers to overcome the
body's defenses. (Id. at 244:5-21.)
Specifically, Mr. Barabin "worked directly with an
asbestos-containing material, dryer felts ... [which]
contained between 20 and 75 percent asbestos" and was a
bystander to asbestos exposure when he was "in proximity
to other workers performing work on dryer felts."
(Id. at 239:17-240:1, 245:8-18.)
Brodkin additionally concluded that Mr. Barabin was likely
exposed to between 0.05 and 41 fibers per cc
("F/CC") when working with asbestos-containing
dryer felts. (Id. at 249:17-19.) Because even an
exposure of 0.07 F/CC can increase risk of asbestos-related
disease by 300% (id. at 253:6-8), Dr. Brodkin
qualifies Mr. Barabin's level of exposure for 12 years as
a "significant dose of asbestos" (id. at
251:18-21, 252:2-7). And because mesothelioma is a "dose
response disease"-meaning the greater the dose, the
greater the risk for developing disease-Mr. Barabin's
exposure to those significant doses of asbestos would
substantially increase the risk for developing mesothelioma.
(See Id. at 252:9-22.) In reaching this exposure
conclusion, Dr. Brodkin relied on several studies, including
a survey done by the International Agency for Research on
Cancer; the 1999 Millette study; the 2001 RJ. Lee study; and
two studies done on the national registries of mesothelioma
in France and Germany. (See Id. at 248:8-20,
Brodkin recognized that Mr. Barabin was exposed to asbestos
in other ways, such as through the asbestos-containing
insulation, gaskets, and packing material used at the Camas
paper mill. (Id. at 255:6-256:6.) But, in sum, Dr.
Brodkin concludes that Mr. Barabin's exposure to dryer
felts-and specifically, Scapa dryer felts-was a substantial
factor in causing his mesothelioma. (Id. at
281:1-12, 281:25-282:2, 283:18-20.)
Dr. Steven Compton
Compton is a physicist and microscopist who specializes in
condensed matter physics, which studies the properties of
solid materials. (3/28/18 Trial Tr. at 444:8-18.) He works at
a company called MVA Scientific Consultants ("MVA")
that provides consulting on matters requiring microscopic
analysis. (Id. at 445:22-446:19.) MVA has tested
asbestos-containing dryer felts since the late 1990s,
analyzing both the asbestos content of a material and how
those asbestos fibers are released after the material is
manipulated. (Id. at 471:10-25.) At MVA, Dr. Compton
has studied asbestos under the microscope since 2009 and has
tested asbestos-containing materials ranging from flooring
tiles to protective clothing. (Id. at 446:24-447:1,
Compton reviewed various dryer-felt studies and performed
testing on Scapa dryer felts. (See Id. at
472:4-483:1.) The dryer-felt studies he reviewed analyzed a
number of different asbestos-containing dryer felts and
concluded that all of them released asbestos when handled.
(Id. at 472:23-473:11, 475:15-20.) His own testing
of Scapa dryer felts revealed that the felts released between
35 and 75 F/CC of asbestos libers when they were cut or blown
with compressed air. (Id. at 479:4-17; 481:14-19;
482:23-483:1.) His ...