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.

New York

• Gallagher v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot get summary judgment by pointing to gaps in the plaintiff's proof. Where the parties' experts conflict on general and specific causation, issues of fact remain, and the plaintiff need only show facts from which the defendant's liability may reasonably be inferred.
• Marzigliano v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; it must make a prima facie showing that its product did not contribute to the illness, and conflicting expert reports on general and specific causation raise issues of fact for trial.
• Linsky v. American Biltrite (In re New York City Asbestos Litigation) (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof and must show its product did not contribute to the illness. Conflicting expert opinions on whether chrysotile causes mesothelioma and on exposure level raise fact issues that cannot be resolved on papers.
• Mantovi v. American Biltrite (In re New York City Asbestos Litigation) (2019). In toxic tort cases an expert must show the plaintiff's level of exposure and that the toxin can cause the injury. A defendant's expert reports on exposure level and fiber type can meet its prima facie burden, and a plaintiff's expert who makes no comparison to exposure levels in other studies and no fiber-type distinctions cannot raise a triable issue.
• Germain v. Johnson & Johnson (In re New York City Asbestos Litigation) (2019). Expert reports prepared after the note of issue should generally be excluded to avoid prejudice, but late disclosure is allowed where the delay was not willful, there is good cause, and the other side is not prejudiced.
• Stock v. Jenkins Bros. (IN the Matter of the Eighth Judicial District Asbestos Litigation) (Erie, 2019). A manufacturer has a duty to warn of dangers from the known and reasonably foreseeable use of its product with a third-party product needed for it to function as intended. Specific causation does not require precise quantification of dose, only evidence that the plaintiff was exposed to levels of the agent known to cause the harm.
• Margolis v. Amchem Prods., Inc. (2019). A defendant cannot win summary judgment merely by pointing to gaps in the plaintiff's proof, and must make a prima facie showing that its product did not contribute to the illness. Conflicting expert reports on whether chrysotile can cause mesothelioma and on exposure level raise fact issues that cannot be resolved on motion papers.
• Matter of Marzigliano v. Amchem Prods., Inc. (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiffs' proof; it must make a prima facie showing that its product did not contribute to the illness, and conflicting expert evidence on causation raises fact issues that cannot be resolved on motion papers.
• Matter of New York City Asbestos Litig. (1st Dept., 2019). A plaintiff need not quantify exposure with exact mathematical precision, but must present evidence of an exposure level sufficient to cause the disease; an expert's opinion that unspecified "detectable" or "significant" levels caused mesothelioma is not enough.
• Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation) (1st Dept., 2019). A jury's findings of exposure and recklessness stand if supported by legally sufficient evidence, but damages awards that deviate materially from reasonable compensation under CPLR 5501(c) must be reduced or retried.
• Alleyne v. Revlon (Matter of New York City Asbestos Litigation) (2019). Late expert disclosure under CPLR 3101(d) need not be precluded where the noncompliance was not willful and prejudice can be cured; the court weighed the equal prejudice to each side and cured it by adjourning the trial rather than excluding the report.
• Moldow v. AI Friedman, LP (2019). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; it must show its product could not have contributed to the disease. Conflicting expert affidavits on general and specific causation raise credibility issues that cannot be resolved on motion papers.
• Shulman v. Brenntag N. AM., Inc. (2019). Post-note-of-issue discovery is allowed under 22 NYCRR 202.21 where unusual or unanticipated circumstances arise, such as the late discovery of tissue blocks, and preclusion of an expert is not warranted where the other side cannot show surprise or prejudice.
• Shulman v. Brenntag N. AM., Inc. (2019). Where the parties' experts conflict on whether the defendants' talc contained asbestos and whether it caused the plaintiff's mesothelioma, credibility issues cannot be resolved on summary judgment. Evidence that defendants knew of and concealed asbestos in their talc raises a fact issue on punitive damages.
• Smith v. Advance Auto Parts, Inc. (2019). A defendant seeking summary judgment in an asbestos case must show its product could not have contributed to the injury; conflicting expert and testimonial evidence on exposure and causation raises credibility issues that cannot be resolved on papers.
• Temperino v. Amchem Prods. (2019). Conflicting expert reports on whether exposure caused lung cancer raise credibility issues that cannot be resolved on summary judgment. The court deferred ruling on the admissibility of plaintiff's experts' cumulative-exposure opinions, and a Frye hearing was not warranted before trial.
• Cohen v. American Biltrite (2018). An expert may testify on matters within his expertise, including interpreting communications if they are admissible and open to expert interpretation, but may not testify to others' motives or to what the law requires. Disputes over the expert's opinions did not challenge the scientific principles underlying them, so no pretrial hearing was needed.
• Cohen v. American Biltrite Inc. (New York County, 2018). An expert may testify within her own field, such as the biological effects on humans of minerals' properties as found by geologists, but not outside it. Research on nonasbestiform cleavage fragments is irrelevant and excluded, as is testimony on subjects where the expert has admitted she lacks knowledge or qualifications, absent further foundation.
• Cohen v. American Biltrite Inc. (2018). On a summary judgment motion, a defendant must affirmatively show that exposure to asbestos in its product could not have contributed to the plaintiff's mesothelioma or was insufficient to do so; pointing to gaps in the plaintiff's evidence does not meet that burden, and conflicting expert findings raise fact issues.
• Hooper-Lynch v. Colgate-Palmolive Co. (2018). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's illness, and pointing to gaps in the plaintiff's proof is not enough. Conflicting expert evidence on exposure and causation raises fact issues for trial.
• Hooper-Lynch v. Colgate-Palmolive Co. (2018). A defendant moving for summary judgment on causation must unequivocally establish through admissible evidence that its product could not have contributed to the injury. Conflicting expert evidence on whether the talc contained asbestos raises credibility issues for a jury.
• Germain v. Johnson & Johnson (In re New York City Asbestos Litigation) (2018). A defendant cannot win summary judgment by pointing to gaps in the plaintiff's proof, and conflicting expert evidence on whether talc contained asbestos and caused mesothelioma raises fact issues for a jury. Plaintiffs need only show facts from which liability may be reasonably inferred.
• Rothlein v. Johnson & Johnson (In re New York City Asbestos Litigation) (2018). A defendant seeking summary judgment in an asbestos case must show its product could not have contributed to the plaintiff's illness, and conflicting expert evidence on whether talc products contained asbestos and caused the disease raises fact issues for trial. Unsworn expert reports may be considered in opposition if other admissible evidence is also submitted, and a court may consider late sworn affidavits absent prejudice.
• Isernia v. American Biltrite (In re New York City Asbestos Litigation) (2018). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's injury. Expert reports that cite unannexed studies or are conclusory do not meet the Parker and Cornell foundation standards, and a defendant cannot succeed merely by pointing to gaps in the plaintiff's proof.
• Swanson v. American Biltrite (In re New York City Asbestos Litigation) (2018). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's injury, and cannot do so with conclusory expert reports lacking a scientific foundation or by pointing to gaps in plaintiff's proof.
• Juni v. Ford Motor Co. (Matter of New York City Asbestos Litigation) (2018). Viewing the evidence in plaintiff's favor, it was legally insufficient to establish that Ford's conduct was a proximate cause of the decedent's mesothelioma under Parker v Mobil Oil Corp. and Cornell v 360 W. 51st St. Realty, so Ford was entitled to judgment as a matter of law under CPLR 4404 (a).
• Garrido v. Johnson & Johnson (Matter of New York City Asbestos Litigation) (2018). A defendant seeking summary judgment in an asbestos case must unequivocally show its product could not have contributed to the plaintiff's illness. Defense expert affidavits that relied on speculation, assumptions, unannexed studies, or data from outside the exposure period did not meet that burden, and conflicting expert evidence presented fact issues for trial.
• Pistone v. American Biltrite, Inc. (2018). Under Parker, Cornell and Juni, a plaintiff must offer a generally accepted scientific basis that the asbestos in the defendant's product can cause the disease and that her exposure to it was high enough to do so. Visible dust or cumulative-exposure theories do not satisfy this requirement.
• Pogacnik v. AO Smith Water Products Co. (2018). A defendant moving for summary judgment in an asbestos case must first show that its product's asbestos could not have contributed to the plaintiff's mesothelioma, or that the exposure was too low to do so. It cannot shift that burden to the plaintiff, and expert opinions resting on unsupported assumptions or on discrediting the plaintiff's testimony do not meet it.
• Robaey v. Air & Liquid Sys. Corp. (2018). Repeated exposure to visible dust from a defendant's asbestos gaskets, shown by its consistency, duration and intensity, can supply enough evidence of exposure to support an expert's specific-causation opinion under Parker; Juni does not require mathematical modeling or product-specific studies. A recklessness finding based on knowledge of asbestos hazards and failure to warn is not a finding of solely intentional conduct.
• Shulman v. Brenntag N. AM., Inc. (2018). A defendant seeking summary judgment in an asbestos case must unequivocally show its product could not have contributed to the plaintiff's illness, and speculative or conclusory expert affidavits fail that burden. Conflicting expert evidence on whether talc was contaminated with asbestos raises fact issues for trial.
• Zoas v. BASF Catalysts, LLC (2018). A defendant seeking summary judgment in an asbestos case must make a prima facie showing that its product could not have contributed to the plaintiff's illness; pointing to gaps in the plaintiff's proof or rebutting her experts is not enough. Conflicting expert affidavits on exposure and causation raise fact issues that preclude summary judgment.
• Evans v. 3M Co. (2017). Under Parker, an expert need not precisely quantify asbestos exposure; an expert analysis of the amount, duration and frequency of exposure and work history, with epidemiological support, suffices to avoid preclusion and a Frye hearing.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (1st Dept., 2017). A manufacturer of a grinder used on asbestos-containing brake linings has a duty to warn of the latent danger from the foreseeable use of its product, and expert testimony that the grinder's use created asbestos dust sufficient to cause mesothelioma was adequate to establish causation.
• Mtr OF Nyc Asbestos Litig. (1st Dept., 2017). In a mesothelioma case, as in other toxic tort cases, plaintiff's experts must provide some scientific expression of exposure to the defendant's product at levels sufficient to cause the disease, as Parker and Cornell require. General association between asbestos and mesothelioma, visible dust and unquantified cumulative exposure are not enough.
• Battistoni v. ITW Food Equipment Group (In re New York City Asbestos Litigation) (2016). A defendant cannot win summary judgment by pointing to gaps in plaintiff's proof; it must show its products could not have contributed to the injury. Under Parker, plaintiff's experts need not quantify exposure precisely, and whether exposure was a substantial factor is for the jury.
• Bartolone v. Union Carbide Corp. (In re New York City Asbestos Litigation) (2016). A defendant cannot obtain summary judgment by pointing to gaps in plaintiff's product identification proof; it must show its product could not have contributed to the injury, and conflicts over a witness's description of a product are for the jury. Under Parker, an expert may rely on work history and product asbestos content without precisely quantifying exposure.
• Jackson v. 84 Lumber Co. (Onondaga, 2016). State-of-the-art testimony is admissible where an adequate foundation is laid. Specific causation opinions on asbestos exposure need only give a scientific expression of exposure, and the question is generally one for the jury, so no Frye hearing was required.
• Feinberg v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litig.) (2016). Under CPLR 214-c, whether early symptoms were too isolated or inconsequential to start the limitations period is a fact question for the jury where the evidence is conflicting. On summary judgment, the defendant bears the burden of showing its product could not have caused the injury; the plaintiff need not exclude other causes.
• Miller v. Hennessy Indus. (Matter of New York City Asbestos Litig.) (2016). A manufacturer that knew its product would mainly be used with asbestos-containing brakes and designed it for that use may be held to have a duty to warn. Visible dust from an asbestos-containing product can support expert testimony on specific causation of mesothelioma without precise dose quantification.
• DePriest v. Crane Co. (Matter of New York City Asbestos Litig.) (2016). Under Parker v. Mobil Oil, a plaintiff need not quantify exposure precisely if the expert's methods are generally accepted; testimony about cumulative exposure to visible asbestos dust from an asbestos-containing product can support specific causation without a Frye hearing.
• Mtr OF Nyc Asbestos Litig. (2016). A manufacturer has a duty to warn of the danger from the known and reasonably foreseeable use of its product together with a third-party product that, by design, mechanics or economic necessity, is necessary for the manufacturer's product to function as intended. Foreseeability alone does not create the duty.
• Byer v. Bell Helicopter Textron, Inc. (2015). Although Rule 37(c)(1) calls for preclusion of late-disclosed expert information, courts in the Second Circuit treat it as discretionary and weigh the explanation, the testimony's importance, prejudice to the opponent and the possibility of a continuance. Preclusion was not warranted where discovery remained open, no trial date was set, and the opinions were not novel.
• Assenzio v. Burnham (In re New York City Asbestos Litigation) (2015). A verdict is set aside as a matter of law only where no valid line of reasoning could support it. Testimony on cumulative asbestos exposure, together with evidence of exposure to the defendant's equipment, can establish causation under New York's Frye standard. Awards that deviate materially from reasonable compensation must be reduced.
• Juni v. Ford Motor Co. (Matter of New York City Asbestos Litig.) (2015). Under the Court of Appeals' decisions in Parker and Cornell, which the court held control asbestos cases, plaintiffs must offer expert proof of general causation and a scientific expression of the plaintiff's exposure to the defendant's product. An unquantified 'cumulative exposure' opinion and proof of visible dust did not meet that standard.
• Pendolino v. Air & Liquid Sys. Corp. (2015). In asbestos cases a plaintiff must show actual exposure to asbestos from the defendant's product, which may be done with circumstantial evidence, but the link between the plaintiff and the product cannot rest on conjecture.
• Relyea v. Borg-Warner Corp. (2015). An expert's causation opinion that brake dust exposure caused mesothelioma is admissible under Rule 702 and Daubert when based on peer-reviewed literature, the Helsinki Criteria and exposure estimates; challenges to how she applies them go to weight, not admissibility.
• Bailen v. Air & Liquid Sys. Corp. (2014). A plaintiff opposing summary judgment need only show facts from which the defendant's liability may be reasonably inferred; testimony identifying the defendant's product and describing breathing asbestos dust from it raises a triable issue of fact.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (1st Dept., 2014). Consolidation of asbestos cases under CPLR 602(a) rests in the trial court's discretion, applying the Malcolm factors flexibly. A manufacturer that has a sufficiently significant role, interest or influence in the asbestos components used with its product after sale may have a duty to warn about them, though foreseeability alone does not create that duty.
• Lamberty v. Cleaver Brooks (Matter of New York City Asbestos Litig.) (2014). Where both sides violated the discovery order's deadlines, a unilateral sanction such as striking a defense or precluding experts is inappropriate, and the case should be decided on the merits by a jury.