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.

Ohio

• State EX rel. Boyd v. Scotts Miracle-Gro Co. (2016). The Industrial Commission's denial of permanent total disability was supported by some evidence in the record. Resolution R03-1-02's B-reader requirement applies to the initial diagnosis and allowance of an asbestos claim, not to an examining physician's report on disability from an already-allowed claim. The Commission may reject vocational evidence in favor of its own analysis.
• Watkins v. Affinia Group (8th Appellate District, 2016). A trial court must act as gatekeeper and independently evaluate the reliability of an expert's causation opinion under Evid.R. 702 and Daubert. Admitting 'every exposure' causation opinions without a hearing to test their basis was error.
• Bryant v. General Motors Corp. (3rd Appellate District, 2015). A directed verdict is properly denied when, viewing the evidence for the nonmovant, reasonable minds could differ on workplace asbestos exposure and on whether it was a proximate cause of the lung cancer. A conflict between medical experts is for the jury, and an expert may rely on assumed facts that independent evidence supports.
• Ridenour v. Ohio Department of Rehabilitation and Correction (2014). A prisoner's Eighth Amendment claim for asbestos exposure requires a present injury or unreasonable risk of serious future harm, plus proof that each defendant knew of and disregarded an excessive risk. Knowing that asbestos is present, or holding a supervisory job, does not show that.
• Burkhart v. HJ Heinz Co. (6th Appellate District, 2013). A deposition from a prior asbestos suit is admissible as former testimony under Evid.R. 804(B)(1) when a party in the earlier case had a similar motive and opportunity to examine the witness (the Lloyd test). Properly authenticated business records, medical-history statements, and interrogatory answers from other cases may be considered on summary judgment, and disputes over whether the material was asbestos present fact questions.
• Welsh v. Ford Motor Co. (8th Appellate District, 2011). A workers' compensation claimant must show by a preponderance that the disease was contracted through injurious exposure in the course of employment. Coworker testimony about exposure, together with expert testimony and corroborating records, was enough for the jury, and a challenge to an expert's scientific foundation not raised at trial under Daubert or Evid.R. 702 was waived.
• Fagerholm v. Gen. Elec. Co., Inc. (8th Appellate District, 2009). To prove an employer intentional tort under Fyffe, the employee must show the employer knew harm was substantially certain; knowing of a risk or that asbestos is dangerous is not enough. A trial court may limit discovery of corporate knowledge to the products and conditions present at the plaintiff's facility.
• Jackson v. AC Product Liability Trust (2009). A verdict is against the weight of the evidence when there is no testimony showing the plaintiff's actual, substantial asbestos exposure on the defendant's vessel. Expert hypotheticals must rest on facts in the record, and a verdict that shocks the conscience is excessive.
• Werts v. Goodyear Tire & Rubber Co. (8th Appellate District, 2009). Out-of-court experiments need not duplicate the plaintiff's exact working conditions if they are designed to show the relevant exposure and differences are acknowledged; such differences go to weight. Admitting a proof-of-claim form to show liability violated Evid.R. 408 but was harmless error.
• Gomcsak v. US Steel Corp. (9th Appellate District, 2008). A trial court does not abuse its discretion by limiting an expert to the opinions in his written report under a local rule, or by denying a new trial where competent, credible expert testimony supports the jury's finding that asbestos did not cause the cancer.
• Barone v. Gatx Corp. (11th Appellate District, 2006). Under Horton, a plaintiff need not show regular, close-proximity exposure to a product, but must still offer some evidence that the defendant's product was at the workplace during the period of exposure. Speculation about earlier purchases is not enough.
• Blandford v. A-Best Prods. Co. (8th Appellate District, 2006). A party with the burden of proof must present its evidence in its case in chief and may use rebuttal only to answer new matter. Allowing an unreported expert and a video for the first time on rebuttal, with no chance to respond, prejudiced the defendant and was an abuse of discretion.
• Bartel v. John Crane, Inc. (2004). A plaintiff must show substantial exposure to the particular defendant's asbestos product for a substantial period, and that the exposure was a substantial contributing factor in causing the disease. An opinion that every exposure, however small, was a substantial factor does not meet that test, and there is no duty to warn of unknown hazards.
• Lindstrom v. AC Products Liability Trust (2003). Under maritime product liability law, a plaintiff relying on circumstantial evidence must show substantial exposure to a particular defendant's asbestos-containing product for a substantial period. A general opinion that every asbestos exposure was a substantial factor does not meet that test, and a manufacturer is not liable for other makers' products attached to its equipment.
• Horton v. Harwick Chem. Corp. (1995). Summary judgment in an asbestos case is governed by the ordinary standard, and Ohio does not adopt the Lohrmann frequency-regularity-proximity test for proving that a product was a substantial factor. Alternative liability does not apply where the defendants' products did not create a substantially similar risk of harm.
• In re Eagle-Picher Industries, Inc. (1995). Under 11 U.S.C. § 502(b) and (c), asbestos claims are estimated as of the petition date, and future values must be discounted to that date. A debtor's closed-claim settlement history is a sound basis for valuing open and future claims.
• English v. Johns-Manville Sales Corp. (1984). Under Ohio Civ. R. 26(B)(4)(a), experts retained in anticipation of litigation but not expected to testify are discoverable only on exceptional circumstances, but where an expert was contacted by both sides and no one sought to suppress his opinions, he may be used by all parties.
• Laster v. Celotex Corp. (1984). Under Fed. R. Evid. 201, a court may notice only facts not subject to reasonable dispute. The conditions under which asbestos causes asbestosis, and whether asbestos causes mesothelioma, were reasonably disputed, so notice was refused.

Oklahoma

• Bootenhoff v. Hormel Foods Corporation (2014). Under Oklahoma law, which governed because Oklahoma was the place of diagnosis and the plaintiffs' domicile, a non-asbestos-manufacturing employer owed no duty to a worker's wife for take-home exposure where the worker's own exposure was intermittent and nonoccupational and the risk to her was not foreseeable in the relevant period.
• Zinc Corp. OF America v. Reeder (2nd Division, 2007). The 60-day exposure requirement in Oklahoma's workers' compensation statute applies only to silicosis and asbestosis, not mesothelioma, so the general last-injurious-exposure rule applies, under which the last employer is liable without a minimum quantity of exposure.
• Angelo v. Armstrong World Industries, Inc. (1993). A trial court does not abuse its discretion by trying asbestos cases in reverse bifurcated format (damages, causation and disease first, liability second) when the issues are separable, it serves economy, and it is not unfair. Objections not raised at trial are reviewed only for plain error.

Oregon

• Griffin v. Allis-Chalmers Corporation Product Liability Trust (2010). A plaintiff opposing summary judgment in an asbestos case need only show the defendant's asbestos was present in the workplace and could have been inhaled, including through others' handling of it. Oregon's raw material supplier doctrine does not shield a supplier from claims of exposure to raw asbestos fibers themselves.

Other federal courts

• Boyd v. Warren Pumps, LLC (2016). A pump maker can be liable only for asbestos-containing products it manufactured or supplied. Circumstantial evidence that spare asbestos packing and gaskets were supplied with original pumps and disturbed during servicing while the plaintiff was aboard was enough to reach a jury, while evidence tying the makers to the replacement parts was not.
• Sequira v. 3M Company (2015). A defendant is entitled to summary judgment on the government contractor defense when the government approved reasonably precise specifications, the equipment conformed to them, and the government knew the hazards as well as the contractor did. A California mesothelioma plaintiff must offer expert evidence that exposure was a substantial factor in causing the disease, and an issue not raised in the district court will not be reviewed on appeal.
• Estate of Barabin v. AstenJohnson, Inc. (2014). A district court abuses its discretion when it admits expert testimony without first finding it relevant and reliable under Daubert and Rule 702, and it cannot leave that gatekeeping to the jury. Such an error is reviewed for harmless error, and where the erroneously admitted testimony was essential to the winner's case, a new trial is the remedy.
• Leite v. Crane Co. (2014). When a plaintiff factually challenges federal officer removal jurisdiction under 28 U.S.C. § 1442(a)(1), the Rule 12(b)(1) framework applies and the defendant must prove by a preponderance of the evidence a colorable federal defense and a causal nexus to acts taken at a federal officer's direction.
• Wannall v. Honeywell, Inc. (2014). A district court does not abuse its discretion under Rules 26 and 37(c) by striking an untimely expert declaration when the plaintiff, for strategic reasons, never invoked Rule 26(e) or 56(d) and so waived those arguments. Exclusion does not require a finding of bad faith.
• US v. Yi (2013). A deliberate ignorance instruction is proper where the evidence supports an inference that the defendant believed there was a high probability a fact existed and deliberately avoided learning the truth. The sentencing enhancements for substantial likelihood of death or serious bodily injury and for an organizer or leader role were supported by the evidence and not clearly erroneous.
• Barabin v. AstenJohnson, Inc. (2012). A district court must act as gatekeeper and make some on-the-record relevance and reliability determination before admitting expert testimony under Rule 702 and Daubert; failing to do so is reversible error requiring a new trial under Ninth Circuit precedent.
• Lindstrom v. AC Product Liability Trust (2005). Under maritime products liability law, a plaintiff must show for each defendant that he was exposed to that defendant's product and that it was a substantial factor in causing the injury. A generic expert opinion that every asbestos exposure contributed does not meet this requirement. A manufacturer is not responsible for asbestos in other companies' packing or gaskets attached to its equipment.
• Chism v. WR Grace & Co. (1998). Under Missouri law, an asbestos plaintiff needs expert evidence that each defendant's product directly contributed to the death as a substantial factor, and must show frequency, regularity and proximity of exposure to that product. Showing exposure to a product that is not shown to contain asbestos does not meet this requirement.
• Braun v. Lorillard Inc. (1996). A district court may exclude an expert who departs from the accepted methods of his field without knowing those methods or justifying the departure, since Daubert requires scientific rigor and does not make customary methods irrelevant. The court also upheld the district judge's discretion over pretrial witness disclosure, hearsay and expert qualification, and found an improperly limited redirect harmless.
• Holbrook v. Lykes Bros. SS Co., Inc. (1996). Under Rule 702's liberal standard, a court abuses its discretion by excluding a medical expert's testimony because the expert lacks the specialty the court considers most appropriate, and such exclusion is not harmless if the testimony bore on a critical issue such as diagnosis or causation.
• Peerman v. Georgia-Pacific Corp. (1994). Even under a 'job site' test of causation, a plaintiff must produce evidence that the defendant's product, as used, could have produced a significant amount of asbestos dust that the plaintiff might have inhaled; presence of the product at the work site is not enough.
• Jackson v. Anchor Packing Co. (1993). Under Arkansas law, an asbestos plaintiff must show that exposure to a particular defendant's product was more likely than not a substantial factor in causing the injury, measured by the frequency, regularity and proximity test. Arkansas has not adopted alternative or market share liability, and "fiber drift" evidence can widen the area of probable exposure but cannot by itself establish causation.
• Miller v. American President Lines, Ltd. (1993). Punitive damages are not available in a general maritime law unseaworthiness action for the wrongful death of a seaman. Indemnity and contribution among maritime tortfeasors, including product makers, are decided by comparative fault rather than the active-passive negligence rule.
• Blancha v. Raymark Industries (1992). A defendant need not present evidence of what type of asbestos its product contained in order to offer expert testimony that chrysotile does not cause mesothelioma. Such testimony is relevant to rebut plaintiffs' causation theory, and a new trial for jury confusion or a missing instruction was an abuse of discretion.
• In re Joint E. & So. Dist. Asbestos Litigation (1992). A mandatory non-opt-out Rule 23(b)(1)(B) class settlement that readjusts creditors' rights against an insolvent entity requires proper subclasses, and co-defendant manufacturers cannot be in the same class as health claimants. Bankruptcy jurisdiction cannot be used to modify a confirmed and substantially consummated plan in violation of section 1127(b).
• O'banion v. Owens-Corning Fiberglas Corp. (1992). A court may exclude cancer evidence under Rule 403 in a non-cancer asbestos case when the plaintiff offers no expert testimony of a reasonable medical probability of cancer. Former testimony admitted without a finding of unavailability under Rule 804(b)(1) is error but is not reversible if the party shows no prejudice.
• Dunn v. Owens-Corning Fiberglass (Division of St. Croix, 1991). A jury's finding that a defendant's asbestos product was a substantial contributing cause can rest on lay product-identification testimony plus medical evidence of asbestos disease, without expert testimony tying the specific product to the injury. Verdicts that shock the conscience are reduced by remittitur rather than set aside, and objections not made at trial are waived.
• George v. Celotex Corp. (1990). A manufacturer is held to the knowledge of an expert in its field, so an unpublished report showing what it reasonably should have known is relevant to the state of the art, and an ancient document may be admitted under Rule 803(16). A jury allocation of liability is upheld where evidence supports it.
• Hoffman v. Allied Corp. (1990). Under the summary judgment standard, affidavits that asbestos products were in use 300 to 400 feet away, that dust drifted into the shop, and that asbestos was the substantial cause of the disease allowed a reasonable jury to find exposure to the defendant's products and proximate cause.
• Dykes v. Raymark Industries, Inc. (1986). Tennessee's Contribution Among Tort-Feasors Act excludes only intentional tortfeasors, so a punitive award for willful and wanton conduct may be set off by settlements paid by co-defendants. Post-exposure documents may be admitted on punitive damages if relevant to pre-injury conduct.
• Kisor v. Johns-Manville Corp. (1986). Under Washington law, a manufacturer's ignorance of its product's danger, and evidence of industry standards and medical knowledge, are not a defense to a strict products liability claim based on failure to warn, and the jury must be told so.
• Gideon v. Johns-Manville Sales Corp. (1985). Under Texas law an asbestos plaintiff has one cause of action covering all harm from the injury, so expert testimony that cancer is probable is admissible and fear of probable future disease is recoverable. Liability requires proof that each defendant's product was unreasonably dangerous and a producing cause, and for Raymark and Standard that proof was insufficient.
• Jackson v. Johns-Manville Sales Corp. (1985). Federal common law does not govern punitive or cancer-related damages in asbestos diversity cases because no uniquely federal interest exists, so Mississippi law applies; the unresolved Mississippi-law questions were certified to the state's highest court. Evidence of earlier asbestos-hazard knowledge was admissible on the duty to warn, and cancer evidence was relevant to the duty to warn but admissible in this volume only if damages for cancer risk are recoverable.
• Porter v. American Optical Corp. (1981). A jury could find a respirator filter defective in design where it was never tested with asbestos dust and the plaintiff's experts showed asbestos passing through it, even though it met government and industry standards. For a progressive disease such as asbestosis, insurance liability is prorated among the insurers on the risk during the exposure period (the "injurious exposure" theory) rather than assigned to the insurer at the time symptoms first appeared.

Pennsylvania

• Constantine v. Lenox Instrument Co., Inc. (2024). A trial court may limit a toxicologist who is not a physician and has no experience diagnosing patients to general causation. Under Pa.R.Civ.P. 238, delay damages are excluded only for delay the plaintiff caused, not for administrative or COVID-related court delays. A Supreme Court reading of the Workers' Compensation Act that lets a mesothelioma claim proceed in tort does not take away a vested defense.
• Anderson v. Consolidated Rail Corporation (2023). In a FELA case, which applies a relaxed causation standard, an expert report should not be rejected on summary judgment over methodology concerns. If the trial court questions the expert's methodology, the proper step is a Frye hearing. A statute of limitations defense turns on fact questions that are ordinarily for the jury.
• Finello v. Foster Wheeler LLC (2023). Under Pennsylvania's frequency, regularity and proximity test, evidence of exposure to Kentile tiles that contained Union Carbide's asbestos fiber, plus expert opinions that the exposure was a substantial factor in causing the disease, raised a fact question on causation for a jury.