Arbogast v. Georgia-Pacific LLC (D. Md. July 17, 2017)

Our plain-English summary of Arbogast v. Georgia-Pacific LLC (U.S. District Court, District of Maryland, July 17, 2017).

Barbara Arbogast, individually and as personal representative of the estate of Charles Lemuel Arbogast, Jr., sued Georgia-Pacific and others in federal court in Maryland. The case concerns Mr. Arbogast's mesothelioma and his alleged exposure to asbestos, including from Georgia-Pacific products. This short order decided only one pretrial motion. The plaintiffs asked the court to exclude the testimony of Donald Marano, a certified industrial hygienist whom Georgia-Pacific offered as an expert. He was to give a qualitative assessment of the exposures Mr. Arbogast described and a quantitative assessment of his exposure to asbestos from Georgia-Pacific products. He was also to testify about the level of mesothelioma risk tied to that assessment. The plaintiffs said he would address both risk and causation. Georgia-Pacific said he disclaimed expertise on causation and limited himself to risk assessment. The court, without holding a hearing, adopted the reasons in Georgia-Pacific's opposition. It found his opinion based on sound, recognized scientific methodology, meeting Rule 702, and helpful to the trier of fact. The motion was denied. The opinion does not describe where or how Mr. Arbogast worked.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

Court: U.S. District Court, District of Maryland
Decided: July 17, 2017
Stage: Discovery or evidence ruling
State: Maryland

Outcome. The district court denied the plaintiffs' Daubert motion to exclude the testimony of Georgia-Pacific's industrial hygienist expert, Donald Marano, so Georgia-Pacific won the motion.

What the court held. An industrial hygienist's exposure and risk-assessment opinion based on sound, recognized scientific methodology meets Federal Rule of Evidence 702 and is admissible as helpful to the trier of fact.

Issues decided: Expert Testimony.

The people and their exposure

Charles Lemuel Arbogast, Jr.: mesothelioma; died

The defendants

Georgia-Pacific LLC (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

Arbogast v. Georgia-Pacific LLC (April 24, 2017). The court granted CSXT Transportation's motion, treated as one for summary judgment, and dismissed the contribution claims by Georgia-Pacific and MCIC against CSXT because LHWCA exclusivity bars them; it also ordered defendants to show cause why the remaining claims should not be remanded to state court.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

BARBARA ARBOGAST et al., Plaintiffs,

GEORGIA-PACIFIC LLC et al., Defendants.

Civil No. JKB-14-4049.

July 17, 2017.

United States District Court, D. Maryland.

Barbara Arbogast, Plaintiff, represented by David M. Layton, Ashcraft and Gerel LLP.

Barbara Arbogast, Plaintiff, represented by John Eugene Herrick, Motley Rice LLC & John E. Guerry, III, Motley Rice LLC. Barbara Arbogast as Personal Representative for the Estate of Charles L. Arbogast, Jr., Plaintiff, represented by David M. Layton, Ashcraft and Gerel LLP.

Georgia-Pacific, LLC, formerly known as Georgia-Pacific Corporation, Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll,Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice.

MCIC, Inc., Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. Goodrich Corporation, Movant, represented by John C. Ruff, DeHay and Elliston LLP.

Georgia-Pacific, LLC, Cross Defendant, represented by Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll,Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice.

MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll,Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

The Goodyear Tire & Rubber Company, Cross Claimant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll,Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

Georgia-Pacific, LLC, Cross Claimant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll,Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

MCIC, Inc., Cross Claimant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. Georgia-Pacific, LLC, Cross Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll,Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC.

The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

Greene, Tweed & Co., Inc., Cross Defendant, represented by Thomas Peter Bernier, Goldberg Segalla. MCIC, Inc., Cross Defendant, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. The Goodyear Tire & Rubber Company, Cross Defendant, represented by Theodore F. Roberts, Venable LLP, Scott Mason Richmond & M. Elizabeth O'Neill, WOMBLE CARLYLE SANDRIDGE & RICE LLP, pro hac vice.

Georgia-Pacific, LLC, ThirdParty Plaintiff, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll,Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, pro hac vice & James E. Hooper, Wheeler Trigg O'Donnell LLP, pro hac vice.

MCIC, Inc., ThirdParty Plaintiff, represented by Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC. Georgia-Pacific, LLC, ThirdParty Plaintiff, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr., Schachter Harris LLP, Matthew R. Schroll,Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage, James E. Hooper, Wheeler Trigg O'Donnell LLP, F. Ford Loker, Jr., Miles and Stockbridge PC, Joshua Franklin Kahn, Miles and Stockbridge PC, Leianne S. McEvoy, Miles and Stockbridge PC, Michael L. Haslup, Miles and Stockbridge PC, Raymond P. Harris, Jr.,

Schachter Harris LLP, Matthew R. Schroll,Miles and Stockbridge PC, Robin Silver, Miles and Stockbridge PC, Cary I. schachter, Schachter Harris LLP, Eric D. Cook, Wilcox and Savage & James E. Hooper, Wheeler Trigg O'Donnell LLP. MEMORANDUM AND ORDER

JAMES K. BREDAR, District Judge.

Pending before the Court is Plaintiffs' "Daubert" Motion to Exclude the Testimony and Opinions of Donald E. Marano. (ECF No. 598.) The motion has been briefed (ECF No. 606),[1] and no hearing is required, Local Rule 105.6 (D. Md. 2016). The motion will be denied.

Federal Rule of Evidence 702 provides,

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(d) the expert has reliably applied the principles and methods to the facts of the case.

Mr. Marano is a certified industrial hygienist who is offered by Defendant Georgia-Pacific as an expert who will testify as to his qualitative assessment of the various exposures to asbestos described by the decedent, Charles Lemuel Arbogast, Jr.; additionally, Mr. Marano will offer his quantitative assessment of Mr. Arbogast's alleged exposure to asbestos from Georgia-Pacific products. He will also testify as to the level of risk of contracting mesothelioma associated with his quantitative assessment of Mr. Arbogast's exposure.

Plaintiffs indicate that Mr. Marano will be offered as an expert concerning both risk and causation of Mr. Arbogast's mesothelioma (Pls.' Mot. 1-2), but Georgia-Pacific counters that by saying Mr. Marano repeatedly disclaimed any expertise on causation and has confined his opinion "to explaining the risk assessments performed by various agencies and organizations and offering his risk assessment opinion based on the analysis that his profession is trained to provide" (Def.'s Opp'n 3).

Both sides have provided ample information and argument on this motion, and after carefully reviewing that, the Court concludes that the motion is properly denied for the reasons stated in Georgia-Pacific's opposition. Mr. Marano's opinion is based on sound, recognized, scientific methodology and meets all of the requirements of Rule 702, and it will be helpful to the trier of fact.

Accordingly, Plaintiffs' motion (ECF No. 598) is DENIED.

[1] No reply was filed by Plaintiffs.

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Arbogast v. Georgia-Pacific LLC (D. Md., July 17, 2017)