Expert Testimony in Asbestos Cases

Decisions in our library in which the court ruled on admissibility or sufficiency of expert testimony (Daubert: 785 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

About this issue

Asbestos cases depend on experts: pathologists and pulmonologists on the diagnosis, epidemiologists and industrial hygienists on exposure and risk, and historians on what companies knew and when. Judges act as gatekeepers and can exclude opinions that are not reliable.

Federal courts apply Federal Rule of Evidence 702 and the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals (1993), which ask whether an opinion rests on sufficient facts and reliable methods reliably applied to the case. Rule 702 was amended in 2023 to stress that the party offering the expert must show this is more likely than not. Many states have adopted their own Daubert-style standards under their own evidence rules; others use the older Frye test, which asks whether the method is generally accepted in the relevant scientific field. The court's own law controls.

Asbestos cases on this issue often involve:

• whether an expert has a reliable, case-specific basis to say that exposure to a defendant's product contributed to the disease, rather than relying on a blanket "every exposure counts" opinion (see causation);
• testing showing that a product, such as cosmetic talc or brakes, contained or released asbestos. Testing alone does not show that this person was exposed to that product or that it caused the disease;
• whether diagnosis and fiber-analysis methods are reliable.

Alabama

• Bobo v. Tennessee Valley Authority (2017). Predicting Alabama law, the court held that an employer has a duty to prevent take-home asbestos exposure of an employee's household members when the injury is foreseeable and public policy supports a duty. The court also held that medical charges written off by providers under insurer agreements are not recoverable as damages.
• Bobo v. Tennessee Valley Authority (2015). Applying Alabama law as it predicted, the court held that an employer owes a duty of reasonable care to an employee's household member exposed to asbestos carried home on work clothes, and that substantial factor causation applies to asbestos negligence claims involving multiple exposures. It also held that TVA was not shielded by the discretionary function doctrine because it violated mandatory rules.
• Kruse v. Vanderbilt Minerals, LLC (2015). A summary judgment cannot rest on a failure of the non-movant's proof that the motion did not raise, because no burden shifts to the non-movant on an issue the motion does not challenge. Evidence of Vanderbilt's shipments and daily use of its talc where the worker was repeatedly present was enough on exposure.
• Bobo v. Tennessee Valley Authority (2014). An expert's opinion that each significant asbestos exposure contributes to the total dose and is a substantial contributing factor in causing mesothelioma is not inherently unreliable when supported by scientific literature. Remaining objections go to the weight of the testimony, not its admissibility.

Arizona

• City of Phoenix v. First State Insurance Company (2018). Under the policies' plain language, 'ultimate net loss' excludes defense costs and a 'No Costs' provision bars defense costs when a claim settles within the retained limit. The City therefore could not reach the excess or umbrella coverage, and its bad faith claim failed with it.

Arkansas

• Thomas v. Borg-Warner Morse Tec LLC (2018). Under Arkansas law, a plaintiff must show frequent exposure to a defendant's asbestos product and causation, and market share liability is not allowed. A non-buyer warranty claimant must give the defendant pre-suit notice, and a design defect claim does not require proof of a safer alternative design.

California

• Brooks v. Mission Stucco Company (2nd Appellate District, 3rd Division, 2024). A special verdict that finds a single design defect both was and was not a substantial factor in causing harm is irreconcilably inconsistent, and the reviewing court cannot choose between the answers. A new trial may be limited to liability on that theory and fault allocation, leaving the total damages intact.
• Marcus v. Air & Liquid Systems Corporation (2024). Under maritime law, plaintiffs can reach a jury on substantial-factor causation with testimony about the work done on a product, evidence the product contained asbestos, and expert estimates of exposure from that work, without relying on an "every exposure" theory. The government contractor defense does not apply to federal maritime claims, and loss of consortium and punitive damages are unavailable under maritime law.
• Smargisso v. Air & Liquid Systems Corporation (2024). Under maritime law, plaintiffs must show actual exposure to the defendant's asbestos products and that the exposure was a substantial contributing factor; circumstantial shipmate and records evidence can meet this. Non-pecuniary damages are not recoverable in a maritime wrongful death action based on negligence and strict liability absent historical support.
• Elorreaga v. Rockwell Automation, Inc. (2023). The Boyle government contractor defense rests on preemption of state law, so it does not apply to claims brought under federal maritime law. Plaintiffs' evidence of exposure to each defendant's products and of a substantial contributing factor was enough to create a genuine factual dispute.
• Elorreaga v. Rockwell Automation, Inc. (2023). Under federal maritime law, plaintiffs must show exposure to a defendant's product was a substantial factor in causing the illness. Expert testimony that considers the nature, frequency and proximity of exposure, even qualitatively, is not an excluded 'every exposure' theory.
• Bader v. Johnson & Johnson (1st Appellate District, 4th Division, 2022). A trial court's gatekeeping of expert opinion under Sargon is reviewed for abuse of discretion, and Rutherford's 'substantial factor contributing to the risk' causation standard may be applied to a fibrous talc theory where the same causation uncertainties exist as in asbestos cancer cases. Instructional and evidentiary errors that are assumed but not shown to have affected the verdict do not require reversal.
• Shelton v. Air & Liquid Systems Corporation (2022). Under federal maritime law, a specific-causation expert must analyze the plaintiff's actual exposure (frequency, duration, proximity) to each defendant's products, by a qualitative or quantitative method, rather than relying on product presence and general causation principles.
• Ann Strobel v. Johnson & Johnson (1st Appellate District, 4th Division, 2021). An expert may not relay an absent expert's case-specific test results as hearsay, but may rely on generally reliable third-party sources. Long-term product use, asbestos in the source talc ore, and reasonable inferences from the expert evidence were enough to create a triable issue on exposure to asbestos in the product.
• Harris v. Thomas Dee Engineering Co., Inc. (1st Appellate District, 5th Division, 2021). A court may not give no weight to an expert's declaration opposing summary judgment just because it was not disclosed in the expert's deposition or conflicts with it. The D'Amico rule on contradictory discovery admissions guides whether a triable issue exists but does not make such a declaration inadmissible, and it does not apply where the declaration reasonably explains the difference.
• Harris v. Thomas Dee Engineering Co., Inc. (1st Appellate District, 5th Division, 2021). Under D'Amico, a declaration that contradicts earlier deposition testimony is not inadmissible. Whether it creates a triable issue is reviewed de novo, and a declaration with a reasonable explanation for the discrepancy cannot be given no weight.
• Toy v. Warren Pumps (In re Asbestos) (2021). Expert testimony is admissible under Rule 702 if the expert is qualified and the testimony is relevant and reliable. Disagreement with an expert's studies, assumptions or conclusions goes to the merits and is addressed through cross-examination and contrary evidence, not exclusion.
• Toy v. Warren Pumps (In re Asbestos) (2021). Under Rule 702, an expert's testimony must rest on sufficient facts or data, so an expert with no knowledge of the specific products a plaintiff worked with, beyond the plaintiff's own deposition, cannot testify about them, and the plaintiffs bear the burden of showing the expert is qualified on a subject.
• Toy v. Armstrong Int'l (In re Asbestos) (2021). An expert need not be formally credentialed in a specific field to be qualified under Rule 702, and criticism of animal-based research goes to weight, not admissibility. The court denied the motion to exclude "every exposure" testimony because plaintiffs' experts did not appear to rely on that theory, but said it would exclude such testimony if offered at trial.
• Toy v. Honeywell Int'l (In re Asbestos) (2021). Under Rule 702 and Daubert, a causation expert's qualitative assessment of asbestos exposure, which considers the type, amount and duration of the work and the fiber levels it produces, can be admitted without a quantified dose. Disputes over the factual assumptions and competing studies go to weight and cross-examination.
• Toy v. Armstrong Int'l (In re Asbestos) (2021). An expert must be qualified by her own specialized knowledge, skill, experience, training or education, and the party offering her bears the burden of showing it. Being a pulmonologist who has read literature on a topic does not by itself qualify her to give opinions on it.
• Toy v. Armstrong Int'l (In re Asbestos) (2021). A rebuttal expert report must respond to new, unforeseen matters; opinions on issues where the offering party bears the burden of proof belong in the opening expert disclosures, so the rest of the report may be struck even though both sides missed the scheduling deadlines.
• Leavitt v. Johnson & Johnson (1st Appellate District, 5th Division, 2021). A plaintiff alleging mesothelioma from asbestos-contaminated talc must show it is more likely than not the product was contaminated when used, and that exposure was a substantial factor in contributing to the risk of disease; no dose-level estimate or testing of the plaintiff's own container is required. An appellant must show both error and prejudice.
• Sabetian v. Fluor Enterprises, Inc. (2nd Appellate District, 7th Division, 2021). A jury's asbestos causation finding stands if substantial evidence shows exposure to the defendant's product substantially contributed to the plaintiff's aggregate dose. An expert may rely on case reports for a very rare disease, and a request to apply foreign law must be timely. Under California's governmental interest test, California law governed compensatory damages.
• Vanni v. Honeywell International, Inc. (2nd Appellate District, 8th Division, 2021). In an asbestos case, causation requires proof of exposure and that the exposure was a substantial factor in contributing to the risk of disease. Expert opinion that is speculative is not substantial evidence, but under substantial-evidence review the jury resolves conflicts between experts and the evidence is viewed in the prevailing party's favor.
• Viale v. Foster Wheeler, LLC (2021). Plaintiffs must present non-speculative evidence that the defendant's asbestos-containing product or conduct was a substantial factor in causing the disease; a hirer of an independent contractor is presumptively not liable absent affirmative contribution to the injury, such as supplying unsafe equipment or exercising retained control.
• Webb v. General Cable Corp. (1st Appellate District, 1st Division, 2021). A plaintiff must prove threshold exposure to the defendant's asbestos-containing product, and evidence showing only a possibility or speculation of such exposure is not substantial evidence. Without it there is no causation and no liability.
• Barr v. Parker-Hannifin Corp. (1st Appellate District, 3rd Division, 2020). Expert and lay testimony that a plaintiff's father may have brought shipyard asbestos home was properly excluded because it rested on speculation about actual exposure. Punitive damages were supported by substantial evidence that the manufacturer knew of asbestos hazards, warned its own employees, and did not warn its customers.
• Hart v. Keenan Properties, Inc. (1st Appellate District, 5th Division, 2020). A plaintiff may prove past medical expenses through an expert's testimony on billed amounts where there is no evidence the lienholder or insurer would accept less, and a trial court has wide discretion to allocate prior settlement proceeds to future wrongful death claims when computing a nonsettling defendant's credit.
• Toy v. Honeywell Int'l (In re Toy Asbestos Litigation) (2020). Modifying a Rule 16 scheduling order requires good cause, which turns mainly on the moving party's diligence, and Rule 26(e)'s duty to supplement does not let a party reopen expert deadlines.
• Gibbons v. Johnson & Johnson Consumer (Laosd Asbestos Cases) (2nd District, Division 4, 2020). When a talc manufacturer supports summary judgment with expert testimony that its talc is asbestos-free, the plaintiff must produce competent evidence, in practice expert testimony, that the products she used were more likely than not contaminated with asbestos. Documents and an attorney's characterizations do not suffice.
• Pizarro v. Astra Flooring Company (2020). A defendant may remove an entire action under 28 U.S.C. § 1442(a)(1) if it shows by a preponderance of the evidence a colorable government contractor defense to a failure-to-warn claim, and declarations from a retired Navy admiral can suffice at the removal stage under Leite v. Crane Co.
• Viale v. Air & Liquid Systems Corp. (2020). A defendant is entitled to summary judgment where plaintiffs lack admissible evidence that the decedent was exposed to its product; a lay witness's belief without a sufficient factual basis is inadmissible opinion, and an expert opinion resting on such testimony assumes facts not in evidence.
• Viale v. Air & Liquid Systems Corp. (2020). A defendant is entitled to summary judgment where the plaintiffs offer no evidence that the decedent was exposed to asbestos from its product, and expert opinions resting on unsupported factual assumptions do not create a triable issue.
• Viale v. Air & Liquid Systems Corp. (2020). A defendant that shows the plaintiffs have no evidence of exposure to its product is entitled to summary judgment. A witness's belief without personal knowledge is inadmissible lay opinion, and an expert opinion resting on that testimony assumes an unsupported fact.
• Berg v. Colgate-Palmolive Company (1st Appellate District, 1st Division, 2019). A plaintiff opposing summary judgment must present evidence from which a jury could find it more likely than not that the specific product used contained asbestos; evidence showing only a possibility of exposure is insufficient.
• Harris v. Triple A Machine Shop, Inc. (1st Appellate District, 5th Division, 2019). In an asbestos case a plaintiff must show a probability, not merely a possibility, of exposure, and circumstantial evidence that supports a reasonable inference of exposure creates a triable issue that defeats summary judgment. An expert declaration giving a more detailed explanation of re-entrainment does not contradict his deposition.
• Malek v. Chevron U.S.A. (In re Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). A defendant that did not own, operate or control a premises, was not a joint venturer or principal of the operator, and did not undertake responsibility for worker safety owes no duty of care; workers who only incidentally benefit from a contract are not intended third party beneficiaries.
• Friedman v. American Biltrite (In re Laosd Asbestos Cases) (2nd Appellate District, 4th Division, 2019). Asbestos exposure may be shown through a plaintiff's testimony about breathing dust from an asbestos-containing product, and expert testimony that any exposure above background can increase mesothelioma risk can support substantial factor causation without a dose estimate. A minor difference between a study's method and the case facts goes to weight, not admissibility.
• Foglia v. Moore Dry Dock Company (1st Appellate District, 2nd Division, 2018). A defendant can shift the burden on summary judgment through plaintiffs' factually devoid discovery responses and other evidence, and an expert opinion resting on assumed facts with no admissible evidentiary support (here, that the father worked around asbestos at the shipyard) lacks foundation and cannot raise a triable issue.
• Hart v. Keenan Properties, Inc. (1st Appellate District, 5th Division, 2018). A witness's testimony about supplier names seen on invoices or delivery tickets that were not produced is hearsay offered for its truth. It is not admissible as a party admission, under the secondary evidence rule, or through authentication, and without it nothing showed the defendant supplied the pipe.
• Trapp v. CertainTEED Corporation (6th Appellate District, 2018). A defendant moving for summary judgment must produce admissible evidence negating an element of the claim, and an expert opinion built on case-specific data that is not in the record has no evidentiary value. Strict products liability can reach defendants in the stream of commerce when bystander injury is reasonably foreseeable.
• Wittman v. Coty, Inc. (2nd Appellate District, 4th Division, 2018). A defendant meets its initial summary judgment burden when the plaintiff's comprehensive discovery responses are factually devoid on product exposure to asbestos, and expert test results on a product sample may be excluded where the chain of custody linking the tested sample to the plaintiff's product is not established.
• Alfaro v. Imerys Talc America Inc. (2nd Appellate District, 4th Division, 2017). Under Evidence Code section 801, a trial court acting as gatekeeper may exclude expert opinion built on samples with serious chain-of-custody gaps, because such samples cannot reasonably be relied on, and an expert may not rest an opinion on assumed facts that lack evidentiary support.
• DeLOOF v. Ace Hardware Corp. (2nd Appellate District, 4th Division, 2017). A defendant can meet its summary judgment burden by showing through factually devoid discovery responses that the plaintiff cannot prove exposure to its asbestos-containing product, and by expert testimony that no respirable fibers were released. The plaintiff must then produce evidence of a triable issue, and causation cannot rest on speculation.
• Duty v. Trz Realty, LLC (1st Appellate District, 3rd Division, 2017). A physician with long experience reviewing epidemiological studies need not be an epidemiologist or gastroenterologist to be qualified to opine on asbestos causation of colon cancer, and a trial court acting as gatekeeper may not resolve scientific disputes over the studies or weigh competing opinions.
• Johnson v. Dock (1st Appellate District, 1st Division, 2017). A plaintiff must produce admissible evidence supporting a reasonable inference of exposure to the defendant's asbestos product; speculation or an expert opinion lacking a reasoned basis does not raise a triable issue, and without exposure there is no causation.
• Lyons v. Colgate-Palmolive Co. (1st Appellate District, 3rd Division, 2017). A plaintiff defeats summary judgment on product exposure by showing her use of the defendant's product together with expert evidence that the product contained asbestos; the lack of retained packaging or testing of her own container does not make that evidence speculative.
• Petitpas v. Ford Motor Company (2nd Appellate District, 4th Division, 2017). An employer's or premises owner's duty to prevent take-home asbestos exposure extends only to members of the worker's household, and a vehicle maker is not liable in design defect for asbestos in other makers' replacement brakes merely because its vehicles were compatible with them. A service provider that does not sell the asbestos parts it installs is not within the stream of commerce for strict liability.
• Phillips v. Honeywell International Inc. (5th Appellate District, 2017). An expert may testify that each identified, significant asbestos exposure contributed to a person's cumulative dose and risk of mesothelioma without relying on the rejected every-exposure theory. Substantial evidence supported the failure-to-warn finding and the finding of malice supporting punitive damages.