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

• Proctor v. Alcoa, Inc. (2014). A plaintiff's deposition testimony that he used the defendant's asbestos-containing product and was exposed to its dust raises a fact issue defeating summary judgment. A defendant cannot establish its entitlement to judgment through an expert affidavit first submitted in reply.
• Wiacek v. 3M Co. (2014). A design defect claim against a product maker needs expert proof of a feasible safer design, so plaintiffs without an expert cannot defeat summary judgment. The adequacy of a warning is ordinarily a question of fact, and compliance with NIOSH standards does not by itself bar a state-law failure to warn claim.
• Logan v. AP Moller-Maersk, Inc. (2013). In asbestos cases a plaintiff may defeat summary judgment by showing facts from which exposure to the defendant's product can reasonably be inferred. Flawed or unrepresentative test samples, conflicting evidence on whether the supplier's asbestos was in the joint compound, and open questions about the adequacy of warnings leave triable issues of fact.
• Bernard v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litig.) (2013). Under Frye, a testing expert's opinion based on a self-modified TEM method for bulk talc samples that drops accepted fiber-count and fiber-identification criteria is inadmissible because it lacks general acceptance in the scientific community; this is a question of admissibility, not weight for the jury.
• Konstantin v. 630 Third Ave. Assoc. (2012). A verdict is set aside as a matter of law only if no valid line of reasoning could support it, and a pain and suffering award is reduced under CPLR 5501(c) when it deviates materially from reasonable compensation. Expert causation opinions need only a proper foundation in generally accepted methods, not studies on identical circumstances.
• Matter of New York City Asbestos Litig. Ronald Dummitt v. AW Chesterton (2012). A valve manufacturer may owe a duty to warn about asbestos gaskets, packing and insulation made by others when it meant its valves to be used with them or knew or should have known they would be. Under CPLR Article 16, the Navy is not counted in apportioning fault because Feres and the grave-injury rule bar suit against it.
• Neuer v. American Art Clay Co., Inc. (2012). Under FELA, with its relaxed causation standard, a plaintiff's own testimony of asbestos exposure plus expert opinions linking the exposure to his mesothelioma raise triable fact issues, and the plaintiff need not quantify his exposure to defeat summary judgment.
• Carroll v. AO Smith Water Prods. (2010). A defendant moving for summary judgment must show its products could not have contributed to the plaintiff's injury. Inconsistent deposition testimony about which valves were present goes to weight and is for the trier of fact, so an issue of fact on exposure defeats summary judgment.
• In re Quigley Company, Inc. (2010). A plan is not proposed in good faith under 11 U.S.C. § 1129(a)(3) when the parent seeking a § 524(g) channeling injunction buys the votes needed for acceptance through side settlements. A § 524(g) injunction is fair and equitable only if the third party's contribution is consistent with its likely liability outside bankruptcy. The best-interests test also counts the claims that dissenting creditors keep against the non-debtor.
• Aguirre v. Long IS. Rail RD. Co. (2007). In a FELA case tried in state court, plaintiffs still need expert testimony to show causation, but under New York law (Parker v. Mobil Oil) exposure need not be quantified precisely if the expert's method is generally accepted. Awards that materially deviate from reasonable compensation may be reduced under CPLR 5501(c).
• Aguirre v. Long Island Railroad Co. (2007). In a FELA case tried in state court, plaintiffs still need expert proof of causation, but under New York law exposure need not be quantified precisely and may be shown through work history and qualitative evidence. A verdict stands if some valid line of reasoning could lead rational jurors to it.
• Berger v. Amchem Prods. (2006). A Frye hearing is not warranted on whether chrysotile in friction products can cause mesothelioma, because the link between asbestos and disease is not novel science and epidemiological studies are not the only acceptable proof of causation.
• DeMeyer v. DaimlerChrysler Corp. (Matter of Asbestos Litig) (Wayne, 2005). New York applies the Frye general acceptance standard rather than Daubert; once the challenger makes a prima facie showing that an expert's methodology is not generally accepted, the proponent must prove general acceptance by a fair preponderance of the credible evidence, typically at a hearing with sworn witnesses.
• Lustenring v. AC&S, Inc. (1st Dept., 2004). A jury could find causation from evidence that plaintiffs worked in dust raised by manipulating the defendant's asbestos packing and gaskets, and a defendant's factual disagreement with the plaintiffs' causation theory does not require a Frye hearing.
• Polito v. Burns Int'l Services Corp. (Matter of Asbestos Litig.) (Monroe, 2003). Evidence of plant workers' compensation claims and plant conditions, and nonparty industry documents, may be admitted on what a manufacturer knew or should have known, subject to foundation and hearsay objections. An expert retained by a party in unrelated litigation is not that party's agent, so his statements are not admissions.
• Matter of O'malley v. Consolidated Edison Company of New York (3rd Dept., 2003). A medical opinion on causation need only signify a probability and have a rational basis. If it is uncontroverted, the Workers' Compensation Board may not reject it without contrary medical expert opinion evidence.
• Caruolo v. John Crane, Inc. (2000). A jury may infer that a manufacturer's asbestos-containing products released hazardous fibers from testimony that handling them produced visible dust and that visible dust carries high asbestos levels, even without product-specific fiber measurements. Under New York choice-of-law rules, prejudgment interest is a loss-allocating issue governed by the same state's law as joint and several liability (here Rhode Island), not automatically by the law governing liability.
• Maiorana v. United States Mineral Prods. Co. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1995). Daubert enlarged the court's gatekeeping role on admissibility but did not change the traditional standard for sufficiency of evidence; a court deciding judgment as a matter of law must view the evidence favorably to the non-movant and may not weigh competing expert and epidemiological evidence or credibility.
• Maiorana v. United States Mineral Prods. Co. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1993). Epidemiological evidence showing a weak, inconsistent association between asbestos and colon cancer, combined with only a differential diagnosis, is insufficient to show that asbestos more likely than not caused the cancer, so a jury verdict resting on it cannot stand.
• Matter of New York City Asbestos Litig. (1st Dept., 1993). A defendant may be precluded from relitigating a substantive point conclusively established against it in prior litigation, as a matter of fairness. Additur awards stand if they do not deviate materially from reasonable compensation.

North Carolina

• Walls v. Ford Motor Company (2022). A district court may reconsider an interlocutory order under Rule 54(b) to account for a change in controlling law or new evidence, or to correct clear error or prevent manifest injustice. It will not do so merely to rehash arguments already considered.
• Walls v. Ford Motor Company (2022). A district court may revisit interlocutory rulings under Rule 54(b), but the asbestos causation test requires proof of actual exposure to the product and that the exposure was a substantial factor in causing the injury. Causation may be shown by direct or circumstantial evidence, and plaintiff's expert evidence supported a genuine fact issue.
• Walls v. Ford Motor Company (2022). A party may not use supplementation to bolster an expert's opinions. A supplemental report that applies a previously disclosed analysis to a hypothetical to answer criticisms is not a proper supplement.
• Walls v. Ford Motor Company (2022). Under Rule 702 and Daubert, evidence from an experiment whose lead scientist and a review committee criticized its methodology, and whose data went unpublished, is unreliable. Its mention would also confuse and mislead the jury, so it is excluded.
• Walls v. Ford Motor Company (2022). Under Rule 702 and Daubert, a dose-response, qualitative assessment of exposure can support specific causation opinions, but 'substantial factor' is a legal standard that experts may not testify to. Quantitative figures without a reliable scientific basis, and speculative opinions about exposure in the Navy, are inadmissible.
• Brock v. Air & Liquid Systems Corporation (2021). Under North Carolina law, a plaintiff with mesothelioma must still show exposure to a specific defendant's asbestos product frequently, regularly and in close proximity to where he worked (the Lohrmann test); presence of a defendant's product or business at the workplace is not enough.
• McDaniel v. John Crane, Inc. (2021). Under North Carolina law, an asbestos plaintiff must show frequent, regular and proximate exposure to a specific defendant's asbestos product (Lohrmann test), and a contractor owes no duty to the spouse of a non-employee for take-home exposure absent a special relationship involving control.
• Settlemyer v. Borg-Warner Morse Tec, LLC (2021). An expert's opinion that each defendant's product was a substantial factor in causing mesothelioma is unreliable and unhelpful if the expert calculates no dose and merely restates the legal substantial-causation standard.
• Smith v. Schlage Lock Company, LLC (2021). Under North Carolina law an asbestos plaintiff must show actual exposure, and an expert opinion built on speculation cannot supply it. A landowner that hires an independent contractor and does not retain control over the work is not liable for dangers incident to that work.
• Walls v. Ford Motor Company (2021). A party seeking discovery from another party's non-testifying consulting expert may obtain the underlying facts and test data, though not the expert's opinions, on a showing of exceptional circumstances under Rule 26(b)(4)(D), such as destructive testing of limited tissue that the other side cannot replicate.
• Hinson v. Continental Tire the Americas (2019). In a North Carolina workers' compensation asbestosis claim, the employee must prove that workplace exposure was a significant causal factor in the disease. The Commission may weigh the form, quantity and frequency of exposure, air sampling, lung pathology and both medical and non-medical expert evidence, and its findings bind the appellate court if supported by competent evidence.
• Connor v. Norfolk Southern Railway Company (2018). Under North Carolina law, an asbestos plaintiff must show exposure to a specific defendant's product on a regular basis over an extended period in proximity to where the plaintiff worked (the Lohrmann frequency, regularity and proximity test), and this applies to mesothelioma cases too; speculative coworker testimony does not meet it.
• Finch v. BASF Catalysts LLC (2018). A party that fails to timely disclose an expert report and evidence under Rule 26(a) cannot use it under Rule 37(c)(1) unless the failure was substantially justified or harmless. An adverse inference for spoliation requires a duty to preserve, destruction of relevant evidence, and willful destruction.
• Harris v. Ajax Boiler, Inc. (2014). Under North Carolina products liability law, a boiler maker is not liable where the plaintiff cannot show the boiler left the factory with asbestos cement or that the asbestos mud he removed was the maker's. Nor is the maker liable for an asbestos cement the worker applied that was not part of the boiler when made, since liability rests with that product's manufacturer.
• In re Garlock Sealing Technologies, LLC (2014). In estimating aggregate asbestos liability, a bankruptcy court may use a merits-based legal-liability analysis instead of the debtor's settlement history when that history is unreliable because exposure evidence was withheld and because settlements reflected avoided defense costs rather than liability.
• Logan v. Air Products and Chemicals, Inc. (2014). Under North Carolina law a plaintiff must show actual exposure to the defendant's product, and that rule is not relaxed for mesothelioma. A failure-to-warn claim about third-party replacement parts needs evidence that the manufacturer knew or should have known such parts would be used.
• Wise v. Alcoa, Inc. (2013). The Industrial Commission may admit expert testimony from experts qualified in their general fields, and its findings are upheld if any competent evidence supports them. A non-mandatory federal guideline noting a general association between asbestos and esophageal cancer is not binding and does not establish causation in an individual case.
• Williams v. CSX Transportation, Inc. (2006). Under the FELA, the trial court acted within its discretion in its evidence rulings, its jury instructions and its handling of the trial. Conflicting expert testimony on causation properly went to the jury, so the post-trial motions were rightly denied.
• Payne v. Charlotte Heating & Air Cond. (2005). The time limit in the fourth paragraph of N.C. Gen. Stat. § 97-61.6, which gave asbestosis and silicosis death claims a shorter period than other latent occupational diseases, violates the Equal Protection Clause under rational basis review. The Commission's findings on asbestosis, causation and last injurious exposure were supported by competent evidence and so were binding.
• Robbins v. Wake County Bd. of Educ. (2002). A disease not listed in N.C. Gen. Stat. § 97-53 is a compensable occupational disease if it is characteristic of the trade, not an ordinary disease of life the public is equally exposed to, and causally related to the employment. Competent evidence of higher-than-normal asbestos in the workplace and expert testimony can satisfy this test.
• Bullard v. Johns-Manville Corp. (1979). The evidence did not support a finding that the decedent's lung cancer was caused by workplace asbestos exposure, because no expert said asbestos caused it and the evidence showed only an increased general risk or a possible contributing cause.

Ohio

• Parker Hannifin Corp. v. Standard Motor Products, Inc. (2023). Under the plain language of the 1986 sale agreement, asbestos personal injury claims first asserted in writing after the fifteenth anniversary of closing are Assumed Liabilities, which includes punitive damages awarded in such a claim. Ohio public policy does not bar sophisticated commercial parties from agreeing to indemnify punitive damages arising from the indemnitee's past conduct.
• Milone v. Aii Acquisition Corp., LLC (8th Appellate District, 2022). Under Goldman and Evid.R. 602, a worker's testimony that furnace boards were asbestos, based on general talk among workers and assumption without training or testing, lacks personal knowledge. An expert relying only on that testimony cannot establish exposure to the defendant's asbestos product.
• Shaffer v. AW Chesterton Co. (9th Appellate District, 2019). A state court hearing Jones Act and unseaworthiness claims must apply federal maritime substantive law, not Ohio's asbestos causation statute and Schwartz; the Jones Act uses a relaxed 'however slight' causation standard. A trial court also may not grant summary judgment on a ground the movant did not raise.
• State EX rel. Koepf v. Industrial Commission of Ohio (10th Appellate District, 2019). A claimant seeking loss-of-use compensation under R.C. 4123.57(B) must show with medical evidence a permanent total loss of use for all practical purposes. For a decedent, the evidence must show the loss would have persisted had he survived the disease. Mandamus is unavailable where some evidence supports the commission's denial.
• Alexander v. Honeywell International, Inc. (2018). A weight-of-the-evidence methodology for asbestos causation opinions is sufficiently reliable under Daubert. Ohio's Schwartz decision on cumulative-exposure theories does not bar an opinion based on exposure to a single product over time.
• Bennett v. the Scotts Miracle-Gro Co. (3rd Appellate District, 2018). A non-examining physician reviewing a file must accept the examining physician's factual findings but may draw his own opinions from them. The trial court could therefore rely on that physician's opinion that asbestosis requires interstitial fibrosis, and the denial was not against the weight of the evidence.
• Schwartz v. Honeywell Internatl., Inc. (2018). Under R.C. 2307.96, a theory of causation based only on cumulative exposure to various asbestos-containing products cannot show that exposure to a particular defendant's product was a substantial factor in causing the disease. The plaintiff must show this through the manner, proximity, frequency and length of exposure to that defendant's asbestos.
• Hart v. Honeywell International (2017). Under Ohio's Product Liability Act, a failure-to-warn plaintiff's own testimony that he did not read warnings and would not have heeded them rebuts the presumption of causation, and without contrary evidence the claim fails. Expert testimony is not required to prove a design defect in asbestos brake products, and the existence of asbestos-free brakes is evidence of a feasible alternative design.
• Schwartz v. Honeywell Internatl., Inc. (8th Appellate District, 2016). Expert testimony on cumulative asbestos exposure and brake dust causing mesothelioma was admissible without quantified dose, and evidence of manner, proximity and frequency of exposure met Ohio's substantial factor test (R.C. 2307.96). Evidence that a feasible non-asbestos alternative existed supported the design defect claim, and enough evidence of flagrant disregard existed that punitive damages should not have been taken from the jury.