                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


HENRY BARABIN ; GERALDINE                No. 10-36142
BARABIN ,
              Plaintiffs-Appellees,        D.C. No.
                                        2:07-cv-01454-
                v.                           RSL

ASTEN JOHNSON , INC.,
             Defendant-Appellant.


HENRY BARABIN ; GERALDINE                No. 11-35020
BARABIN ,
              Plaintiffs-Appellees,        D.C. No.
                                        2:07-cv-01454-
                v.                           RSL

ASTEN JOHNSON , INC.,
                        Defendant,

                and                       OPINION

SCAPA DRYER FABRICS, INC.,
             Defendant-Appellant.


     Appeals from the United States District Court
       for the Western District of Washington
      Robert S. Lasnik, District Judge, Presiding
2              BARABIN V . ASTEN JOHNSON , INC.

                    Argued and Submitted
            January 11, 2012—Seattle, Washington

                    Filed November 16, 2012

        Before: A. Wallace Tashima, Susan P. Graber,
         and Johnnie B. Rawlinson, Circuit Judges.

                 Opinion by Judge Rawlinson;
                Concurrence by Judge Tashima;
                 Concurrence by Judge Graber


                           SUMMARY*


    The panel vacated the district court’s judgment and
remanded for a new trial because the district court failed to
fulfill its obligations under Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993).

    The panel held that the district court abused its discretion
when it failed to conduct a Daubert hearing or otherwise
make relevance and reliability determinations regarding
expert testimony. The panel held that the court’s decision in
Mukhtar v. California State University, 299 F.3d 1053 (9th
Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003)
(order), dictated that a new trial be provided in this
circumstance.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             BARABIN V . ASTEN JOHNSON , INC.                3

    Judge Tashima concurred in all aspects in the majority
opinion, and wrote separately to address an issue not
addressed by the majority. Judge Tashima stated that it
would be helpful if the district court would articulate whether
there is an impeachment exception to the Washington
collateral source rule.

     Judge Graber, joined by Judge Tashima, concurred fully
in the majority opinion, but wrote separately to express her
disagreement with the rule in Mukhtar, requiring the court to
vacate and remand for a new trial. Judge Graber would
conditionally vacate the judgment and remand with
instructions to make a new Daubert determination, and only
if the expert testimony was deemed not reliable should the
district court preside over a new trial.


                         COUNSEL

Michael B. King (argued) and Emilia L. Sweeney, Carney
Badley Spellman, P.S., Seattle, Washington, for
AstenJohnson, Inc.

Mary H. Spillane and Daniel W. Ferm, Williams, Kastner &
Gibbs, PLLC, Seattle, Washington, for Scapa Dryer Fabrics,
Inc.

Cameron O. Carter, Brayton Purcell, LLP, Portland, Oregon;
Philip A. Talmage (argued), and Sidney Tribe,
Talmadge/Fitzpatrick, PLLC, Tukwila, Washington; Alan
Brayton, Brayton Purcell, LLP, Novato, California, for Henry
and Geraldine Barabin.
4                  BARABIN V . ASTEN JOHNSON , INC.

                                OPINION

RAWLINSON, Circuit Judge:

    AstenJohnson, Inc. (AstenJohnson) and Scapa Dryer
Fabrics, Inc. (Scapa), appeal the district court’s entry of
judgment in favor of Henry and Geraldine Barabin following
a jury trial resolving Henry Barabin’s claim that his
mesothelioma was caused by occupational exposure to
asbestos. AstenJohnson and Scapa manufactured dryer felts
that contained asbestos and that were installed on paper
machines used in the paper mill where Henry Barabin
worked. As now relevant, AstenJohnson and Scapa contend
that the district court abused its discretion by improperly
admitting expert evidence.

     We have jurisdiction pursuant to 28 U.S.C. § 1291.
Because the district court failed to fulfill its obligations under
Daubert,1 we vacate the judgment and remand for a new
trial.2

I. BACKGROUND

        A. Pre-trial motions and trial proceedings

     Henry Barabin was exposed to asbestos from 1964
through 1984. He was employed from 1968 until his
retirement in 2001 at the Crown-Zellerbach paper mill, which
used dryer felts containing asbestos supplied by


    1
        Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

 2
   Because of our determination that a new trial is warranted on this basis,
we do not address the other issues raised on appeal.
                BARABIN V . ASTEN JOHNSON , INC.                        5

AstenJohnson and Scapa. During his employment, Henry
worked in various jobs that exposed him to the dryer felts that
AstenJohnson and Scapa provided. Henry also took pieces of
dryer felt home to use in his garden.

   In November, 2006, Henry was diagnosed with pleural
malignant epithelial mesothelioma.3 It is undisputed that
exposure to respirable asbestos causes mesothelioma.

    AstenJohnson filed a motion in limine to exclude Drs.
Cohen4 and Millette as expert witnesses. The district court
excluded Dr. Cohen as an expert because of his “dubious
credentials and his lack of expertise with regard to dryer felts
and paper mills. . . ” Additionally, the district court limited
Dr. Millette’s testimony requiring disclosure to the jury that
Dr. Millette’s tests were “performed under laboratory
conditions which are not the same as conditions at [Henry’s
workplace].” This limitation significantly diminished the
strength of Dr. Millette’s prospective opinion.

     During a pre-trial conference, the district court reversed
its decision to exclude Dr. Cohen’s testimony. The district
court explained that in the Barabins’ response to the motions
in limine, the Barabins clarified Dr. Cohen’s credentials,
including that he had testified in other cases. The district
court did not hold a Daubert hearing. See Daubert, 509 U.S.


 3
   Pleural malignant mesothelioma is a rare cancer that affects the tissue
surrounding the lungs. See http://www.mayoclinic.com (last visited Nov.
6, 2012).

     4
     There was some dispute as to whether Dr. Cohen was legitimately
referred to as a “doctor.” W e give him the benefit of the doubt because
his correct title is not dispositive.
6               BARABIN V . ASTEN JOHNSON , INC.

at 589 (setting forth the trial judge’s gatekeeping obligation
to ensure that prospective expert testimony is reliable).

        B. Procedural history

   After presentation of Plaintiffs’ case, AstenJohnson and
Scapa filed motions for judgment as a matter of law, which
were denied. After closing arguments and before the verdict,
AstenJohnson and Scapa renewed their motions for judgment
as a matter of law. The district court again denied the
motions.

    The jury found in favor of the Barabins and awarded
damages totaling $10,200,000. The district court granted
AstenJohnson’s and Scapa’s motions to vacate the judgment
and scheduled a reasonableness hearing. After the hearing
and after ruling that the damages award was reasonable, the
district court applied an offset of $836,114.61 for previous
settlements,5 ultimately awarding $9,373,152.12, plus
$9,266.73 in costs, to the Barabins.

    Scapa then filed a motion for a new trial or, in the
alternative, for remittitur, and also incorporated
AstenJohnson’s motion for a new trial. AstenJohnson and
Scapa sought a new trial based on, among other things,
improper admission of expert testimony. The district court
denied the motions in their entirety.




    5
    W ashington law provides that if a plaintiff receives a settlement from
another party, an offset occurs for the next tortfeasor unless the first
settlement was unreasonable. See W ASH . R EV . C O D E § 4.22.060(2).
                BARABIN V . ASTEN JOHNSON , INC.              7

    After entry of judgment in favor of the Barabins,
AstenJohnson and Scapa filed timely notices of appeal. We
consolidated these two appeals.

II. STANDARDS OF REVIEW

    Evidentiary rulings are reviewed for abuse of discretion;
however, we review a district court’s interpretation of the
Federal Rules of Evidence de novo. See United States v.
Urena, 659 F.3d 903, 908 (9th Cir. 2011), cert. denied, 132 S.
Ct. 1608 (2012).

     We review a district court’s denial of a motion for new
trial for abuse of discretion. See United States v. Montes,
628 F.3d 1183, 1187 (9th Cir.), cert. denied 131 S. Ct. 2468
and 132 S. Ct. 52 (2011).

III.      DISCUSSION

       The district court abused its discretion when it failed
       to conduct a Daubert hearing or otherwise make
       relevance and reliability determinations regarding
       expert testimony.

    In its role as gatekeeper, the district court determines the
relevance and reliability of expert testimony and its
subsequent admission or exclusion. See Ellis v. Costco
Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011).
Admission or exclusion under Daubert rests on the scientific
reliability and relevance of the expert testimony. See id. The
expert’s opinion must be deduced from a “scientific method”
to be admissible. Id. (citation omitted). “The test under
Daubert is not the correctness of the expert’s conclusions but
the soundness of his methodology . . . .” Primiano v. Cook,
8            BARABIN V . ASTEN JOHNSON , INC.

598 F.3d 558, 564 (9th Cir. 2010), as amended (footnote
reference and alteration omitted).

    Daubert provided the following non-exhaustive factors
for consideration in assessing the reliability of proffered
expert testimony:

           (1) whether the scientific theory or
       technique can be (and has been) tested, (2)
       whether the theory or technique has been
       subjected to peer review and publication, (3)
       whether there is a known or potential error
       rate, and (4) whether the theory or technique
       is generally accepted in the relevant scientific
       community.

Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1064 (9th Cir.
2002) (citations omitted).

    After the district court’s ruling resolving AstenJohson’s
motion in limine by excluding Dr. Cohen from testifying as
an expert witness, the Barabins filed a Motion for Pre-Trial
Daubert Hearing seeking reconsideration of the district
court’s ruling. Included within the motion was information
describing Dr. Cohen’s use as an expert in the Washington
state courts and in other courts. After considering the
information contained in the Barabins’ motion, the district
court declined to hold a Daubert hearing. Rather, the district
court simply reversed its prior exclusion of Dr. Cohen’s
testimony. The extent of the court’s explanation was: “I
think plaintiffs did a much better job of presenting to me the
full factual basis behind Mr. Cohen testifying and his
testimony in other cases. . . .”
                BARABIN V . ASTEN JOHNSON , INC.                         9

    Unfortunately, because no Daubert hearing was
conducted as requested, the district court failed to assess the
scientific methodologies, reasoning, or principles Dr. Cohen
applied. None of the Daubert factors was considered.
Instead, the court allowed the parties to submit the experts’
unfiltered testimony to the jury.

    It is notable that the district court’s order originally
addressing AstenJohnson’s motion in limine expressed
concerns with Dr. Millette’s testing procedures and excluded
Dr. Cohen’s testimony altogether, due to its concerns
regarding his credentials and expertise. Only after the
Barabins provided additional information that Dr. Cohen had
testified in other state court proceedings did the district court
allow Dr. Cohen to testify as an expert.6

    In federal courts, the admission of expert testimony is
governed by Federal Rule of Evidence 702, as elucidated by
the Supreme Court in Daubert. At the time of the trial in this
case, Rule 702 provided:

             If scientific, technical, or other specialized
         knowledge will assist the trier of fact to
         understand the evidence or to determine a fact
         in issue, a witness qualified as an expert by
         knowledge, skill, experience, training, or
         education, may testify thereto in the form of

   6
      It is unlikely that the W ashington state courts where Dr. Cohen
testified used the Daubert standard in assessing the admissibility of Dr.
Cohen’s testimony. See State v. Sipin, 123 P.3d 862, 867 (W ash. Ct. App.
2005) (“In Washington, the Frye test is used to determine the admissibility
of novel scientific evidence. . . .”) (citation omitted); see also Daubert,
509 U.S. at 587 (“[T]he Frye test was superseded by the adoption of the
Federal Rules of Evidence.”) (footnote reference omitted).
10           BARABIN V . ASTEN JOHNSON , INC.

       an opinion or otherwise, if (1) the testimony is
       based upon sufficient facts or data, (2) the
       testimony is the product of reliable principles
       and methods, and (3) the witness has applied
       the principles and methods reliably to the
       facts of the case.

Fed. R. Evid. 702 (2010).

    Compliance with Rule 702 is gauged by the district
court’s assessment of the reliability of the proffered expert
testimony. See Daubert, 509 U.S. at 589. Specifically, the
district court is charged with determining whether the
proffered expert testimony is trustworthy. See id. at 590 n.9.
“In a case involving scientific evidence, evidentiary
reliability will be based upon scientific validity.” Id.
(emphases in the original). Scientific validity is, in turn,
assessed in large part by the degree to which the theories
propounded by the expert have been subjected to and
survived scrutiny in the relevant scientific community. See
Mukhtar, 299 F.3d at 1063-64.

    As we observed in Mukhtar, the decision to admit or
exclude expert testimony is often the difference between
winning and losing a case. See id. at 1067-68 (noting that
once the challenged expert testimony was excluded no
evidence of discrimination remained). The potentially
significant influence of expert testimony underscores the
importance of assiduous “gatekeeping” by trial judges.

     Once presented with the additional information in the
Barabins’ response to the motion in limine, at a minimum the
district court was required to assess the scientific reliability
of the proffered expert testimony. See Ellis, 657 F.3d at 982
              BARABIN V . ASTEN JOHNSON , INC.                11

(“Under Daubert, the trial court must act as a ‘gatekeeper’ to
exclude junk science that does not meet Federal Rule of
Evidence 702’s reliability standards . . .”) (citation omitted).
In failing to do so, the district court neglected to perform its
gatekeeping role. See Mukhtar, 299 F.3d at 1066 (“Kumho
[Tire Co. v. Carmichael, 526 U.S. 137 (1999),] and Daubert
make it clear that the court must, on the record, make some
kind of reliability determination.”) (citation omitted)
(emphasis in the original).

    Rather than making the required determinations, the
district court left it to the jury to determine the relevance and
reliability of the proffered expert testimony in the first
instance. In its order, the district court wrote:

            There is obviously a strong divide among
        both scientists and courts on whether such
        expert testimony is relevant to asbestos-
        related cases. In the interest of allowing each
        party to try its case to the jury, the Court
        deems admissible expert testimony that every
        exposure can cause an asbestos-related
        disease.

(Emphases added).

     Under our precedent, the district court’s decision to allow
presentation of the expert testimony to the jury without
making any gateway determinations regarding relevance and
reliability constituted an abuse of discretion requiring a new
trial. See id. at 1063 (noting the “trial court’s ‘special
obligation’ to determine the relevance and reliability of an
expert’s testimony”) (citation omitted); see also id. at 1068
(remanding for a new trial where the expert’s testimony was
12             BARABIN V . ASTEN JOHNSON , INC.

admitted “without the proper reliability determination” and
the error was not harmless).7

    The district court committed reversible error when it
failed to assess the proferred expert testimony for relevance
and reliability. See id. Our decision in Mukhtar dictates that
a new trial be provided in this circumstance. See id.
Accordingly, the district court abused its discretion when it
denied AstenJohnson’s and Scapa’s motions for a new trial.
See Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir.
2007) (explaining that we may reverse the denial of a motion
for a new trial when the district court has “made a mistake of
law”) (citation omitted).

     JUDGMENT VACATED and CASE REMANDED for
     a new trial. Each party shall bear its own costs on
     appeal.


TASHIMA, Circuit Judge, concurring:

    I concur in all respects in the majority opinion, as well as
in Judge Graber’s concurring opinion. I write separately
briefly to address another issue raised in this appeal, which
the majority does not address, because it is likely to arise
again on retrial.

   At the trial, plaintiff Geraldine Barabin, Henry Barabin’s
wife, testified that she wanted to be able to maintain her
health, continue caring for Henry, and be able to pay for
Henry’s necessary medications. She further testified that she

   7
     The Barabins do not argue that any error in admitting Dr. Cohen’s
testimony was harmless.
             BARABIN V . ASTEN JOHNSON , INC.                13

did not “want to be left destitute,” implying that she would be
so left without a recovery from defendants. On cross-
examination, defendants sought to impeach Mrs. Barabin’s
credibility regarding her fear of financial destitution by
reference to collateral source evidence. The district court
sustained plaintiffs’ objection to this line of inquiry without
extended discussion, citing the collateral source rule, which
generally bars such evidence.

    But no reported Washington case appears to have
confronted the question of whether evidence of collateral
source payments can be used for impeachment. Other
jurisdictions, however, recognize an impeachment exception
to the collateral source rule. See, e.g., Corsetti v. Stone Co.,
483 N.E.2d 793, 802 (Mass. 1985) (“Our cases have long
recognized that in some circumstances, evidence of collateral
source income may be admissible . . . ‘as probative of a
relevant proposition . . . or credibility of a particular
witness.’” (emphasis in original)); McKinney v. Cal. Portland
Cement Co., 117 Cal. Rptr. 2d 849, 855-56 (Ct. App. 2002)
(“There are exceptions to the [collateral source] rule of
exclusion, for example, where the defendant is allowed to
introduce otherwise inadmissible evidence . . . to impeach
self-serving testimony . . . .”). Similarly, the Supreme Court
has recognized that even evidence excludable under the
Miranda rule is admissible for impeachment. See Harris v.
New York, 401 U.S. 222, 224-25 (1971).

    The district court appears not to have considered whether
the Washington Supreme Court would, if so confronted,
recognize an impeachment exception to the collateral source
rule, but relied only on the “well-established” general rule.
Because there appear to be good grounds to recognize an
impeachment exception to the Washington collateral source
14            BARABIN V . ASTEN JOHNSON , INC.

rule, and because of the lack of controlling Washington case
law, should the issue arise again on retrial, it would be helpful
on appeal if the district court would articulate the reasons for
its ruling on this issue.


GRABER, Circuit Judge, with whom TASHIMA, Circuit
Judge, joins, concurring:

    I concur fully in the majority opinion. The district court
failed to explain adequately its reasons for admitting the
expert testimony, and the error was not harmless.
Accordingly, the judgment cannot stand.

    I write separately, however, to express my disagreement
with the rule that, pursuant to Mukhtar v. California State
University, 299 F.3d 1053 (9th Cir. 2002), amended by
319 F.3d 1073 (9th Cir. 2003) (order), we must vacate the
judgment and remand for a new trial. On remand, the district
court dutifully will make a new Daubert determination. If the
court finds that the expert testimony is, indeed, reliable, what
purpose is served by empaneling a new jury and conducting
another lengthy trial the outcome of which likely will be
identical to the one already concluded? Mukhtar answers that
query by holding that we cannot trust a district court not to
succumb to “post-hoc rationalization.” 319 F.3d at 1074.
But we routinely trust district courts to reassess their earlier
judgments in matters of more consequence than disputes over
money. See, e.g., United States v. Ameline, 409 F.3d 1073
(9th Cir. 2005) (en banc). Regardless, I do not share
Mukhtar’s lack of faith in our district courts.

   Were it not for Mukhtar, I would conditionally vacate the
judgment and remand to the district court with instructions to
             BARABIN V . ASTEN JOHNSON , INC.              15

make a new Daubert determination. If the expert testimony
is reliable, then the original judgment should be re-entered.
If the expert testimony is not reliable, then the court should
preside over a new trial. See Mukhtar, 319 F.3d at 1077
(Reinhardt, J., dissenting from denial of reh’g en banc).
