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Barabin v. Scapa Dryer Fabrics Inc.

United States District Court, W.D. Washington, Seattle

June 5, 2018





         Before 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, [1] the court DENIES both motions for the reasons discussed below.


         The 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 jury verdict.

         A. Procedural History

         This 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 187:14-188:4.)

         Ms. 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).)

         In 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.[2] (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 fibers and the ability to overcome the body's natural asbestos defenses. (Id. at 31.) Thus, the court allowed Dr. Brodkin's testimony.

         Scapa 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.[3] (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.[4] (2/12/18 Order at 22-25.)

         From 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. 50(b).

         B. Evidence Presented at Trial

         The 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.

         1. Mr. Barabin's Experience

         Mr. 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.[5] (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. at 180:7-9.)

         Around 1974, Mr. Barabin became a spare hand, a position that required him to "work[] on whatever [paper] machine that needfed]" 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.)

         That 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.)

         Mr. 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 379:23-380:20.)

         Afterwards, 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.)

         Mr. 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.[6] (Id. ¶ 17.)

         After 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 261:8-11, 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.)

         After 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.)

         Due to 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.)

         Ms. 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.)

         2. Expert Testimony

         Ms. Barabin called several expert witnesses, three of whom are discussed in the post-trial motions. The court reviews the relevant testimony of each.

         a. Dr. Carl Brodkin

         Dr. 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. at 228:24-229:13.)

         Dr. 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 232:3-4.)

         Dr. 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.)

         Dr. 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.)

         Dr. Brodkin additionally concluded that Mr. Barabin was likely exposed to between 0.05 and 41 fibers per cc ("F/CC")[7] 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 R.J. Lee study; and two studies done on the national registries of mesothelioma in France and Germany. (See Id. at 248:8-20, 253:15-254:5.)

         Dr. 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.)

         b. Dr. Steven Compton

         Dr. 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, 449:2-13.)

         Dr. 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 fibers when they were cut or blown with compressed air. (Id. at 479:4-17; 481:14-19; 482:23-483:1.) His ...

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